When the COP 21 (the 21st session of the conference of the parties to the United Nations Framework Convention on Climate Change or UNFCCC) started this fall in Paris, I had little hope we would accomplish anything. In all honesty I spent more time thinking about what would happen if the world couldn’t agree on something concrete in Paris. However, the international community realised it was no longer possible to postpone or ignore the issue. We needed to act now, and to my great relief we did through the last minute adoption of the Paris Agreement and the accompanying COP 21 Decision.[1] It is of course not the best agreement, and on its own it is clearly not enough to stop catastrophic climate change. But it is a first step that binds the international community, and a much needed signal that we need to take climate change seriously. In this post I will first briefly summarize what the Paris Agreement entails. I will then offer some thoughts on what the Agreement means for Canada.
The Paris Agreement and Legal Obligations
One of the first aspects of the Paris Agreement that attracted the interest of the legal community is whether or not it is legally binding.[2] At first view this might appear as a simple question (especially considering the way it has been put in the media) since non-jurists tend to see law as black and white: it is the law or it is not. However, the question is more complex. Firstly, the Paris Agreement is a Treaty under international law.[3] Treaties are basically the legislation of the international community. In that sense the Agreement is legally binding as it will be subject (once it enters into force after at least 55 states representing at least 55% of global GHG emissions ratify the text)[4] to Article 26 of the Vienna Convention on the Law of Treaties: “every treaty in force is binding upon the parties to it and must be performed by them in good faith”.[5] The Agreement is also clearly an agreement under the UNFCCC (as was the Kyoto Protocol).[6] In fact it relies heavily on UNFCCC structures and principles and is only open for signature to UNFCCC parties. The use of the word agreement instead of protocol seemed to have been a way to enable the US to ratify the Agreement without the Senate,[7] and thus should not be interpreted as a sign that the parties wanted the Agreement to be less or not legally binding.
Saying something is legally binding or is law does not end the discussion however. The more complex question is what does the Paris Agreement obliges States to do? Is the Agreement enforceable? The Agreement’s provisions can be categorized in at least three types: clear obligations, goals and aspirations, and facilitation. Clear obligations include Article 4(2) which indicates that States “shall” determine their national contributions to GHGs reduction and “shall” adopt domestic climate mitigation measures, and Article 9(1) which affirms that developed countries “shall” (continue to) provide financial resources to developing countries. Aspirations are usually formulated as “should”, such as Article 5(1) which states that parties “should” ensure the conservation of carbon sinks. These provisions are indicative of what is expected of the parties and should not be discounted. It would be highly unlikely, however, that any court would find a state liable for not fulfilling such provisions. Finally, facilitation provisions exist to help the parties meet their obligations and the overarching GHGs reduction goal of the Agreement. An example is the voluntary joint implementation mechanism of Article 6. Like many legal obligations, determining what is enforceable in the Paris Agreement is an exercise in legal interpretation.[8] One thing that the Agreement does not have is a traditional compliance mechanism with sanctions. The Agreement is geared instead towards transparency (ensuring that each state’s target is known), procedure and facilitation.[9] This lack of sanction is not abnormal in international law and even when they exist they are not always efficient (Canada withdrawing from the Kyoto Protocol to avoid sanction is a good example). In addition, binding targets and strong sanctions might have prevented the adoption of the Agreement. Only time will tell how efficient the Agreement will be at achieving its goals.
This brings me to the content of the Paris Agreement. The Agreement is obviously geared towards mitigating climate change. It holds that the global average temperature should stay well below 2 °C above pre-industrial levels and that efforts should be made to limit temperature increase to 1.5 °C.[10] This overall objective is in line with climate science and represents the threshold to avoid catastrophic climate change. It will require significant cut in GHG emissions. Under the Agreement this will be achieved through a bottom-up approach where states determine nationally determined contribution (NDCs) to reduce GHGs.[11] The NDCs are published in a flexible public register. The NDCs cannot be reduced and in fact are expected to become more ambitious as they are revised (at least every five years). Parties must also adopt and communicate climate change adaptation plans which are published on the registry.[12] A technical expert committee is established to help with compliance and implementation.[13] The process of reviewing parties’ implementation is set out in detail in Article 13 and relies heavily on transparency.[14]
Canada’s Choices – Pre and Post Agreement
Before going into what lies ahead for Canada, I think it is worth looking at its role during the negotiation of the Paris Agreement. For most of the 21st Century, Canada has been a laggard in terms of climate change. Indeed the Harper government often adopted an obstructionist approach to international climate negotiations. A shift away from this obstructionist approach would have already been a great improvement. However, Canada went further and made a complete 180o shift by supporting the 1.5 °C goal. This shift, according to Ms. May, leader of the Green Party of Canada who was on the ground, did make a huge difference[15] While this change in attitude is more than welcomed, real leadership will be measured by actual actions to mitigate climate change.
Canada came to Paris with the Harper government’s embarrassingly low target. While the new government has indicated that this target was a floor, Canada is not even on track on meeting this minimal target.[16] Not only will we not meet our reduction target, GHG emissions in Canada are likely to increase by 2020, the same year parties are supposed to submit new targets in anticipation of the first global stocktake in 2023 (when the parties collectively measure their progress under the Paris Agreement).[17] The governments of Canada and of each province and territory have a long way to go if we are to meet the objective Canada so strongly advocated for in Paris. The inter-governmental process to determine Canada’s plan has started, but it is going slowly and hitting some obstacle (e.g. Saskatchewan’s resistance to any carbon pricing mechanism).[18] Canada’s federal structure complicates things, but the federal government could impose national obligations.[19] For now, the Canadian government has heavily focused on a collaborative approach, but if discord between actors increases, the need to adopt a target and mitigation strategies quickly may force the federal government’s hand.
I conclude this post with a pressing issue the Canadian government can address: pipelines. Canada is a major producer of oil and this oil comes mainly from the prairies’ tar sands (mostly in Alberta). The extraction process itself emits GHGs (8% of Canada’s emissions according to the Albertan government),[20] but it is the production of more petroleum products and their subsequent distribution and use that are especially problematic from a climate change mitigation perspective. In order for the tar sands to be a profitable endeavour, the oil needs to be exported. Oil corporations have thus turned to pipeline projects in order to export oil (proposed pipelines would bring oil to the East and West Coasts, and subsequently to new markets like Europe or China). The federal government is responsible for the approval and regulation of pipelines. It is thus in a position to stop tar sands development by rejecting the construction of new pipelines based on climate change concerns. The argument that most GHG emissions would not happen in Canada cannot hold considering the global nature of climate change. Where the GHGs are emitted does not matter. Additionally, approving projects that would increase GHGs is contrary to the goals of the Paris Agreement. Even before the coming into force of the Agreement, Canada has to refrain from acts that would defeat the object and purpose of the Agreement (after signature, which is planned on 22 April 2016).[21] Premier Notley’s (of Alberta) statement that opposition to the Energy East pipeline is short sighted is ironic since it is oil and GHGs related projects that are short sighted.[22] The Paris Agreement signals a move towards a GHGs free future. Canada should lead the way towards this future, not lag behind because of regional and short term economic and political considerations. Climate change mitigation is the imperative of this century if we went to preserve the world as we know it. Difficult choices lie ahead for Canada and the world, and I believe we can make the right ones. Time, however, is a luxury we no longer have. Actions need to be taken now.
[1] Conference of the Parties, Twenty-first session, Adoption of the Paris Agreement, Paris, 12 December 2015, UN Doc FCCC/CP/2015/L.9/Rev.1, online: unfccc.int < http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf >.
[2] Daniel Bodansky, “The Legal Character of the Paris Agreement” Rev Eur Comp Int’l Env L (forthcoming) available at SSRN: http://ssrn.com/abstract=2735252; Annalisa Savaresi, “The Paris Agreement: A Rejoinder” EJIL: Talk!, 16 February 2016, < http://www.ejiltalk.org/the-paris-agreement-a-rejoinder/ >; and Audrey Garric, “L’accord obtenu à la COP21 est-il vraiment juridiquement contraignant ?” Le Monde, 14 December 2015, < http://www.lemonde.fr/cop21/article/2015/12/14/l-accord-de-paris-sur-le-climat-est-il-vraiment-juridiquement-contraignant_4831255_4527432.html >.
[3] See Artilce 2(1)(a) of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 332 [VCLT].
[4] Article 21 of the Paris Agreement.
[5] Article 26 of the VCLT.
[6] COP 21 Decision at para 1; and Article 2(1) of the Paris Agreement; see also Savaresi, supra note 2.
[7] Savaresi, supra note 2; and Garric, supra note 2.
[8] For a full analysis on the question of bindingness, see Bodansky, supra note 2. See also Jorge Viñuales, “The Paris Climate Agreement: An Initial Examination (Part III of III)” EJIL: Talk!, 8 February 2016 < http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-iii-of-iii/ >
[9] See Bodansky, supra note 2 at 16-17.
[10] Article 2(1)(a) of the Paris Agreement.
[11] Articles 3 & 4 of the Paris Agreement.
[12] Article 7 of the Paris Agreement.
[13] Article 15 of the Paris Agreement; and COP 21 Decision at para 103.
[14] See Viñuales, supra note 8. For more on the content of the Agreement see Jorge Viñuales, “The Paris Climate Agreement: An Initial Examination (Parts I & II of III)” EJIL: Talk!, 7 & 8 February 2016 < http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-i-of-ii/ > and < http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/ >.
[15] Elizabeth May, “COP 21 Final Blog – Day 13” 13 December 2015 < http://www.greenparty.ca/en/blog/2015-12-13/cop21-final-blog-day-13 >.
[16] Justin Ling, “Canada Admits There’s No Chance It’ll Reach Its Climate Change Targets — Not Even Close” Vice News, 1 February 2016 < https://news.vice.com/article/canada-admits-theres-no-chance-itll-reach-its-climate-change-targets-not-even-close >.
[17] Articles 4(9) & 14(2) of the Paris Agreement; and COP 21 Decision at para 23.
[18] CBC News, “Trudeau, premiers agree to climate plan framework, but no specifics on carbon pricing” 3 March 2016 < http://www.cbc.ca/news/politics/first-ministers-premiers-trudeau-1.3474380 >.
[19] See Nathalie Chalifour, “Making Federalism Work for Climate Change: Canada’s Division of Powers Over Carbon Taxes” (2008) 22:2 NJCL 119 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1624968 >.
[20] http://www.oilsands.alberta.ca/ghg.html
[21] Artilce 18(a) of the VCLT.
[22] Erika Tucker, “Naheed Nenshi says Montreal mayor ‘wrong’ on Energy East pipeline; Notley calls criticism ‘short sighted’” Global News, 22 January 2016 < http://globalnews.ca/news/2471152/energy-east-criticism-short-sighted-notley/ >.