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14 December, 2015The Paris Agreement, released on Saturday 12 December, has already been hailed by some as an historic achievement, and by others as a historic failure. These reactions do not help us to understand what it is, and what it is not.
First, and importantly, the Paris Agreement is not simply a new version of the Kyoto Accord. It takes a fundamentally different approach. The Kyoto Protocol was a “top down” system that imposed emissions targets and included systems for verifying them. However, developed countries considered it unfair and many simply failed to meet their targets or withdrew from it entirely, without any effective consequences. The Paris Accord, on the other hand, is a sort of “bottom up” system that encourages countries to set their own targets and embed those targets in their own legislation. Even if some countries do not make them a legislative commitment, this approach made Paris Agreement politically achievable.
Recall labour's three top demands going into these talks:
- To raise ambition and realize the job-creation potential of climate action;
- To deliver on climate finance and support the most vulnerable;
- Commit to securing a Just Transition for workers and their communities. The necessary ingredients for a successful climate accord are all there, even if the wording and placement of some of those agreements could have been better. There is the ambition to hold “global average temperature to well below 2 degrees C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees C above pre-industrial levels” (Article 2). There is provision for periodic review (Articles 13 and 14). There is acknowledgement that a transformation of the economy is implied (several references to development, including the preamble and Article 6 among others). There are references, although weak, to needed finance (Decision, paragraphs 54 and 115 and Agreement, Article 9) and technology transfer.
Just Transition is incorporated with clear language: “Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities” but unfortunately in the preamble to the Agreement rather than attached to Article 2 where we hoped to have it. Signatory Parties must now accept that they have made a political commitment to Just Transition, strengthened by the ILO's recent Guidance document on Just Transition.
One question has always been, will a Paris Agreement be legally binding? What do the words “legally binding” mean in this context? The Paris Agreement meets the criteria of the Vienna Convention on the Law of Treaties, so in this sense it is as legally binding as any other international treaty. That does not make every clause in it enforceable, since the wording can be vague and unhelpful. Enforcement of an agreement of this nature is always problematic: the Kyoto Accord was supposed to be legally binding, except that it turned out not to be. The core of the Paris Agreement is legally binding in international law. The details of what countries must do to be in compliance are often missing, and some of the text is clearly aspirational. Therefore, although the Agreement is a legal document, in practical terms enforcement of it will be difficult or impossible without the political will of the Parties to make it effective. The wording of the Agreement certainly provides the space for Parties to do the right things; but provides little resembling penalties for Parties that do not. “Enforcement” will largely result from political pressure exerted by citizens, stakeholders, and other countries. Legal actions, if any, will be rare.
If the ingredients are there, the pathway to implement them is often missing or is to be defined by decisions taken at the next COP. Many have expressed disappointment at this outcome, but the reality is that this may have been the only possible outcome other than no outcome at all. We will have to maintain pressure on our governments to elaborate on the necessary mechanisms and verification procedures over the next couple of years.
The Paris Agreement may be the best that can be politically achieved at this moment in time. The French Presidency has worked hard, and effectively, to prevent a catastrophe such as Copenhagen's COP15. The credibility of the United Nations Framework Convention on Climate Change has been preserved, at least for now. As a political document, it sets out a process: not only does it create an institutional framework based on international negotiations, which has been in question during the discrediting of the Kyoto Protocol; but sets a tone for a positive path forward. The framework has flexibility and universal application; although it is an unfilled vessel with respect to many of the specifics we would like to see.
Crucial to future success will be the adoption of clearly defined mechanisms for measuring, reporting, and verifying the Intended Nationally Determined Contributions (INDCs), commitments made by countries to reduce greenhouse gas emissions.
An extremely important effect of the Paris Agreement will be in the signals it sends to the global economy. Kumi Naidoo, International Executive Director of Greenpeace has said “The wheel of climate action turns slowly, but in Paris it has turned. There’s much in this deal that frustrates and disappoints me, but it still puts the fossil fuel industry squarely on the wrong side of history.” This may not be an understatement, as it will become increasingly difficult for investors or insurers to justify the risks of putting their money into fossil fuels. This will not change the financial world overnight, but it will change it.
The Paris Agreement must be seen as a starting point, not a finish line. It creates an institutional framework that has all the necessary ingredients to succeed. Whether it actually does, or not, is now up to us. IndustriALL must be ready to lead the way forward.