And The Law Says

The 4 things you need to know on the Paris Agreement

December 17, 2015

paris climate

by Stephen Kingsley In the 23 years since the 1992 United Nations Framework Convention on Climate Change (UN FCCC), the agreement at the 21st Conference of the Parties under the Convention (COP21) in Paris on 12 December 2015 is the most significant step toward addressing the issue of global warming.  President Obama’s description of the agreement as “historic” is well-justified.   The fact that 195 countries have acknowledged the extent of the problem and have agreed to tackle the issue is a unique event.  However, the Agreement is only a starting point and concrete action is necessary to reduce the impact of man-made climate change.

What does the Paris Agreement require?

The aim of the Paris Agreement is to “strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty” by:

  • keeping the increase in the global average temperature to below 2°C above pre-industrial levels and to try to limit the temperature increase to 1.5°C above pre-industrial levels;
  • adapting to the adverse effects of climate change; and
  • providing finance in order to achieve low greenhouse gas (GHG) emissions and to adapt to climate change.

The difficulty with the proposed limit in the rise in pre-industrial mean temperatures is that, according to recent research, the temperature rise is already 1°C and the current GHG reduction pledges tendered at and before COP21 give a predicted increase of at least 2.7°C.  The proposal that there should be annual funding of US$100 billion to help developing nations reduce their own actual and potential GHG emissions and to adapt to the consequences of climate change has been criticised by some as being too little.

When does it come into effect?

The speed at which the negotiation and implementation of international law on climate change has progressed has been described as glacial, which is perhaps unfair as certain glaciers move with rather more rapidity.  The Paris Agreement does not become available for signature until 22 April 2016 and remains open for signature until 21 April 2017.  Only after it has been closed for signature does it become open for accession, when the individual countries file their acceptance or ratification of the Agreement.  The Agreement does not come into force until 30 days after at least 55 parties to the UN FCCC (who must account for at least 55% of the total global GHG emissions) have filed such acceptance or ratification.   As a consequence it may be some time before the Paris Agreement comes into effect as the delays in ratifying the 1997 Kyoto Protocol, which was also regarded as a landmark event in the reduction of GHG emissions, meant that it did not come into force until 2005, over seven years after it was first agreed.

Will the Paris Agreement be binding and enforceable?

The Agreement is intended to be binding, but has no teeth and apart from “naming and shaming” there is no mechanism to enforce the Agreement against those states that agree to be bound by it.  Furthermore, even when a state has agreed to be bound by the Agreement it can, after the expiration of three years from the date the Agreement comes into force, withdraw from the Agreement on one year’s notice at any time. A major factor which limited the effectiveness of the Kyoto Protocol was the fact that the United States, although a signatory, failed to ratify the agreement and was thus never bound.  Canada withdrew from the agreement when it became apparent that it would not be able to comply with its obligations.  Although the Kyoto Protocol has 192 parties, only 37 states have binding targets (China and India, although large emitters of GHGs, were exempt as developing nations) and as the Paris Agreement requires action on the part of all 195 signatories (assuming they ratify the agreement) the problem of enforcement will be correspondingly greater.

Where do we go to from here?

The Paris Agreement is a start and, given that many commentators did not expect any agreement of substance, a very good start.  The wording of the Agreement is generally vague and lacking in specifics and its effectiveness will depend on how it is implemented.  The next step is for the Agreement to be brought into force, but first it must be signed and ratified – which is not necessarily a quick and easy process as was demonstrated with the Kyoto Protocol.  In particular, President Obama will have to work hard to persuade Congress to ratify the Agreement.

After that, the Agreement will require fleshing out so as accelerate the reduction in GHGs and bring the projected increase in mean temperatures down to the levels stipulated in the Agreement. In Britain, it will be necessary to take steps to decrease the reliance on carbon based energy sources.  This can be achieved by increased use of renewable energy and nuclear energy as well as the development of cleaner power stations using carbon‑capture technology but to do so will entail a change in government policies on these issues as well as changes in public attitudes to nuclear power, on-shore wind farms, transport infrastructure and domestic life.

The Paris Agreement is a fresh beginning, albeit 23 years on from the creation of the UN FCCC, but there is much to do before the detail of how the aims of the Agreement will be achieved emerges and time may be limited.  The next few months will show whether the Paris Agreement can ignite a new climate change regime rather than being a damp squib like the Kyoto Protocol.


Stephen Kingsley is a partner in the law firm gunnercooke llp and holds a LLM degree in Climate Change Law and Policy from the University of Strathclyde

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