Is the Paris Agreement a “turning point” in the global efforts to deal with climate change ?
Holding the initial euphoria of the Paris Climate Change Conference (COP21), Richard Kinley, Deputy Executive Secretary of the United Nations Framework Convention on Climate Change (UNFCCC), highlighted during a conference held at University of Cambridge, two month after the COP 21, that “the Paris Agreement and its related decisions constitute a turning point in the global efforts to deal with the climate change problem and chart a new course to a low carbon future (…) all in all — a game changing outcome”.
While Kinley is highly optimistic about the Paris Conference’s outcomes, which is understandable given the failure of past conferences, other analysts have been more sceptical, resulting in a variety of opinions with regards to the goals and innovations of the Paris Agreements. Given the relevance of the Paris Agreement, it is important to analyse whether or not this agreement is a favoured turning point on the climate negotiations. Is the Paris Agreement the instrument needed to address climate change?
In the following sections, three main features of the Paris Agreement will be analysed: (i) the “common but different responsibilities” (CBDR) principle and the “goal” of 2/1.5 Cº limit emission, (ii) the bottom-up approach and (iii) the facilitative techniques. The discussion will be based on whether these main features constitute “innovations” on the ground of the international environmental law that will lead to a “game changer” scenario.
1. Brief history.
In order to better understand the initial euphoria generated by the adoption of the Paris Agreement during the COP21, it is necessary to provide a brief overview of the climate change context and negotiations preceding the agreement.
While the issue of global climate change has been on a number of different scientific agendas for over a century, substantial legal attention was not directed to the issue until the mid-1980s (Bodansky et al, 2008). It was after the creation of the International Panel in Climate Change (IPCC) and the publication of its first assessment report that the states agreed on the adoption of an international agreement. The UNFCCC was adopted in 1992, with the object of “(…) the stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.
The UNFCCC entry into force in 1994 and was followed by the 1997 Kyoto Protocol. Based on the principle of CBDR, the Kyoto Protocol established a regime were only developed countries are required to adopt legally binding mitigation commitments or actions. This division (the so-called “Chinese wall”) has been in the centre of the climate change negotiations since then. The 2009 Copenhagen conference (COP 15), intended to create a more effective successor treaty to the Kyoto Protocol, collapsed in acrimony, leading many observers to conclude that multilateral climate diplomacy had reached a dead end (Falkner, 2016).
However, despite the failure of the COP15, during the Durban Conference in December 2011, the Parties agreed on establish the “Durban Platform for Enhanced Action”, an Ad-Hoc working group with the mandate to develop a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”. The main challenge of this new legal agreement was to end with the division between developed and developing countries, in order to include all states in a long-term commitment for the reduction of GHG. Therefore, among other favoured circumstances, the Paris Agreement is the result of negotiations that started in 2011 during the COP17. The main features and “innovative” techniques of this legal instrument will be discussed in the next sections.
2. The three main features of the Paris Agreement
2.1. The “Common but different responsibilities” under the Paris Agreement & the “goal” of 2/1.5 Cº limit emission.
While is widely accepted that Climate change is a “common concern of humankind”, it is also accepted that the response should be differentiated (Bodansky et al, 2008). The CBDR principle has been on the bases of climate negotiations since the beginning, reflected in the UNFCCC, the Kyoto Protocol  and now in the Paris Agreement. Nevertheless, what may be considered as an “innovation” of the new legal instrument is the extent on how the obligations have been distributed among the Parties.
It is important to highlight that previous multilateral environment agreements (MEAs) have also established different regulations to developed and developing countries. For instance, the Montreal Protocol, which in the history of international law stands as a success (Dupuy and Viñuelas, 2015a), based its architecture, above all, on the robust application of the CBDR and precaution principles. The Montreal Protocol includes a requirement for developed countries to undertake their control measures first, followed by a grace period, typically of ten years, before developing countries undertake their control measures in exchange of incremental financing for technology transfer and other benefits under the treaty (Zaelke, 2012). The Protocol developed a complex structure that led all states to gradually, along specific periods, reduce the consumption and production of the target substances until zero.
In contrast, the Kyoto Protocol established a regime where the developed countries (Annex I countries of the UNFCCC) were assigned quantified emission limitation (by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012) and reduction commitments, while developing countries (non-Annex I countries) were not. This division has been the cause of many disagreements between states, and over the last decades the international community has been negotiating a legally binding agreement that includes all the states, especially because along the last decades some of the non-Annex I countries have become the main emitters of GHG, such as the case of Brazil, Russia, India and China (the so-called BRIC). Hence, under the Kyoto Protocol, the commitments cover not more than 14% of global annual emissions, whereas the main emitters, including China and the United States, which account together for almost half of global annual emissions, were not bound by any clear commitments (Viñuales, 2015b). Given the failure of the Kyoto Protocol, the main challenge was to move forward to a new legal instrument that would end with the separation between developed and developing countries, and that would include all the States under a quantified emission limit scheme.
Based on a bottom-up approach (that will be examined in the following sections), the Paris Agreement set that all Parties have to undertake and communicate ambitious efforts, as nationally determined contributions (NDC) to the global response to climate change, in order to achieve, among others, the goal to “hold the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels”.
As can be seen, the Paris Agreement achieves the goal to include all the Parties under a quantified emission limit scheme, however -as it will be seen later — it does not include a compliance system and the quantified emission limit remain, in practice, similar to the one establish under Kyoto Protocol, since the 1.5 °C achievement rest on the goodwill of each State. Moreover, unlike Montreal Protocol that established a gradual reductions target scheme for all countries — but taking into account flexible measures to developing countries — Paris Agreement led States to choose their level of ambitions, which could increase even more the CBDR gap between developed and developing countries.
The mitigation actions rest on a soft structure based on the NDCs, which seems to be weak and uncertain. However, this measure should be analyse as part of the whole architecture that includes different techniques aimed to give governments the tools needed to comply with their commitments. Likewise, it must be highlighted that the obligation of “non-regression”, under article 4 (3) of the Paris Agreement, could lead to a gradual increase of emission reduction target.
2.2. The Bottom-up approach
With the Paris Agreement, the climate change structure has shifted from the “top-down” approach established under the Kyoto Protocol to a “bottom-up” one based on NDCs. Under a bottom — up approach, a less frequently used method, the strategies are elaborated by different level of groups of stakeholders that are likely to be affected by the problem in question. This approach is embodied in a participatory mechanism that allows stakeholders groups to express their views or even-take part in the decision — making process (Dupuy and Viñuales, 2015a).
It is worth pointing out that this is not the first time that a bottom-up approach is used in a multilateral environmental agreement. The main previous legal instrument that has used this approach is the United Nation Convention to Combat Desertification (UNCCD).  The UNCCD seeks to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, particularly in Africa, through effective action at all levels, supported by international cooperation and partnership arrangements.
In an intention to draw a parallel between the UNCCD and the Paris Agreement some similarities can be illustrated. While the bottom-up approach of the Paris Agreement relies on the NDCs, the UNCCD’s central element is the National Action Program (NAP). Under the UNCCD each affected country must formulate, make public and implement a NAP that lays out its strategy to combat desertification and mitigate the effect of drought; it also sets that the NAPs must be updated through permanent participatory processes on the basis of lessons from field action. Additionally, the UNCCD establish obligations for developed countries, with emphasis on: (i) provide financial assistance, particularly for developing countries in Africa, (ii) promote mobilization of funding from developed to developing countries, and (iii) transfer of technology, knowledge and know-how. Furthermore, the UNCCD, is call for international cooperation between Parties and international communities to ensure the promotion of an enabling international environment in its implementation. Many of the main features of the UNCCD have been reflected in the Paris Agreement and will be exanimated in the next section.
Despite of its architecture, the UNCCD is facing serious implementation challenges (Viñuales, 2015 and Tal and Cohen, 2007). Based on many cases that show the insufficient commitment of countries and international community, most of them placed in Africa, it has been argued that the “bottom-up” approach of the Convention needs to be questioned and that a new approach may be required to achieve more meaningful results (Tal and Cohen, 2007). Regarding this issue, the discussion can be based on why the Paris Agreement relies in an approach that seems to be unsuccessful on the international ground?
The question may be answered based on the circumstances preceding the climate negotiation. During the last decades, a number of bottom-up initiatives had begum to rise at different levels around the world. Local communities have sprung up to advance voluntary carbon emission reductions, multinational corporations have increasingly invested in low-carbon business opportunities and adopted corporate social responsibility approaches with an explicit focus on climate change, institutional investors have begun to demand greater transparency on climate risks in business operations; and subnational authorities such as cities and municipal governing bodies have taken it upon themselves to create climate mitigation pledges and policies (Falkner, 2016). Moreover, these non-state climate initiatives have grown in parallel with the adoption of domestic climate policies. By November 2016, there were 852 climate change laws and regulations, rising from only 54 laws and policies in 1997, and 426 in 2009 when the Copenhagen Accord was signed. These previous developments of climate policies/initiatives at the state and non-state level prepared the ground for the further development of a bottom-up approach.
A good indicator that this approach could be successful under the Paris Agreement is that up to day — two month after the agreement entered into force -, 111 Parties have already submitted their first NDCs. While in the case of the UNCCD, it was not until 2000, four years after it entered into force, that the first country, Zimbabwe, submitted its NAP (Tal and Cohen, 2007). Likewise, during the COP22 in Marrakech, the companies and investors to Cities and Regions announced a New Commitments in Support of Paris Agreement. 
The next steps, which have been broadly discussed in the recent Marrakech conference, are related to the implementation of the NDCs. What methodology will be used to measure compliance and emission reduction? How to deal with the variety of GHG reductions commitments of the States? What leads to higher ambitions? These are some questions that must be answered in the following negotiations. This opens the door to the next section, in which the implementation techniques of the Paris Agreement will be analysed.
2.3. Implementation techniques
2.3.1. Information based techniques
Information-based techniques are designed to generate and provide information to various constituencies, including consumers, investors, government officials and the public generally, about the environmental performances of certain actors (Bodansky, 2008). This technique, which was introduced in article 12 of the UNFCCC and in other legal instruments such as the Convention on Long-Range Transboundary Air Pollution and Gothenburg Protocol, is further developed in the Paris Agreement in article 13 and 14.
220.127.116.11.Enhanced transparency framework for action and support
Article 13 of the Paris Agreement establishes a sophisticated transparency mechanism named “enhanced transparency framework for action and support”, that aims to create a mechanism of measuring, reporting and verification (MVR) of the action and support of individual States (Viñuales, 2015b).
This measure applies to all States; however, its application is more flexible in the case of developing countries. The purpose is to: (i) provide a clear understanding of the climate change actions that may be undertaking to comply with the objective under the UNFCCC, (ii) track the progress on the implementation of the national NDCs; and (iii) provide clarity on the support provided and received by relevant individual Parties in the context of climate change actions under mitigation, adaptation, finance, technology transfer and capacity-building.
Unlike the Gothenburg Protocol, in which the information exchange obligations are based on the cooperation principles, under the Paris Agreement the main motive is to have a system of ‘naming and shaming’. Insofar, the main value of this technique remain in the potential that it may create informal, but nonetheless of often effective, public and international political pressure for improved performance by States (Bodansky et al, 2008). However, to fulfil the requirements under this technique, further tools and procedures have to be developed by the Ad Hoc Working Group on the Paris Agreement (APA).
It is mentioned in the Paris Agreement that “much greater emission reduction efforts will be required than those associated with the NDCs in order to hold the increase in the global average temperature to below 2 ˚C above pre-industrial levels (…)”.
To address this challenge, the Paris Agreement incorporates in article 14 the concept of “global stocktake” which implies a periodically (every 5 years, starting in 2023) take stock of the implementation of the Agreement to assess the collective progress towards achieving its long-term goals. The APA will define the procedures on how this global stocktake will take place.
The system highlights not only the importance of the science and policy interface, but also the need for environmental agreements to have internal scientific bodies capable of processing (Viñuales, 2016b). The importance of this interface has been proved among different legal instruments. For instances, the Expert Group on Techno-Economic Issues (EMPE) and Working Group on Strategies and Review (WGE) — the organization of scientific bodies within LRTAP Convention — played a key role on the development of Gothenburg Protocol. Similar is the case of the Montreal Protocol, originally this Protocol addressed eight ozone-depletion substances (five CFCs and three halons), but ongoing scientific assessment encourage that over the time the Parties increased ambition and controlled a dozen new substances through amendments to the treaty and agreed to accelerate the phase-outs of production and consumptions through adjustments to it. (Zaelke, D et al, 2012). Moreover, the advanced knowledge on the impact of HFC gases on global warming led to the adoption of the Kigali Amendment.
Therefore, in order to tackle present and future environmental challenges, close collaboration and interaction between science and policy-makers play a crucial role (Reis et al, 2012).
2.3.2. Facilitative techniques
The facilitative techniques of the Paris Agreements reliance on existence mechanism under the UNFCCC and the Kyoto Protocol, such as the case of the Financial Mechanism of the UNFCCC, the Adapation Fund and the Technology Mechanism. Therefore, in the light of previous climate change legal instruments, the facilitative techniques of the Paris Agreements will not ground under the definition of “innovative”, but while keeping a broad approach two main improvements will be analysed, which are in articles 5 and 6 (2)-(3) of the Paris Agreement.
Article 5 refers to REDD+, a mechanism to reduce emissions caused by deforestation and forest degradation that has been under the climate negotiations for several years. The inclusion of REDD+ in the Paris Agreement has mainly driven by tropical countries with vast forest areas, such as the case of Brazil. It worth mentioning that the broad statement of this article provides room to cover other conservation tools as the payment for ecosystem services schemes.
The other “innovative” mechanism is set in article 6 (2)-(3). This mechanism has as a precedent the mechanism developed under the UNFCCC and the Kyoto Protocol; the latter provides a more detailed provisions on joint implementation, as well as the basis for a system of tradable permits of various kinds. Article 6(2)-(3) allows for this type of linking on a voluntary basis. In other words, there is no requirement for a Party to link its system with that of another Party. In addition, Article 6(2) is formulated in a sufficiently broad manner so as to allow for linking of different types of domestic mitigation policies (Viñuales, 2015b).
2.3.3. Management of non-compliance
Last but not least, another important feature of the Paris Agreement is its non- compliances system. This is certainly not a new technique, since it has become a standard practice in many multilateral environment agreements. The Montreal Protocol was among the first international agreement in which a specific non-compliance procedure was envisaged, and it is generally held to be the most developed example (Bodansky, 2008). The LRTAP Convention and the Kyoto Protocol also includes non- compliances procedures, just to mention a few. In the case of Kyoto Protocol, the mechanism is established in article 18 with the mandate to approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of the Protocol.
Similar as the Montreal and Kyoto Protocol, the Paris Agreement establishes an institutional mechanism to facilitate the implementation and the promotion of compliance under the Agreement. This mechanism consists of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive. The Committee will operate under the modalities and procedures that will be develop by the Ad Hoc Working Group.
Therefore, there are no sanctions in the Paris Agreement to enforce implementation of the NDCs, but process to facilitate its targets, as the ones explained above. After all, the whole goal of a non- compliance system is to facilitate compliance; to this end, the compliance committee may provide advice or assistance (such as technology transfer or capacity building), promote further reporting or request a compliance action plan (Bodansky, 2008).
It is necessary to emphasise the political value of the Paris Agreements and its potential as a starting point from which the NDCs may be strengthen and more ambitious GHG reduction commitments must be reached.
In relation to its “innovative” approaches/techniques, with exception of the “enhanced transparency framework for action and support” and the inclusion of “REDD+, it was explains along the essay that most of this tools have already been developed in previous legal instruments, and later adapted to the specific case of the Paris Agreement. However, in despite of the “innovative” tools, the Paris Agreement does constitute a “game changer”, it has broke separation between developed and developing countries, including all the States in a long-term commitment to the reduction of the GHG, which is a turning point under climate negotiations.
It is too early to evaluate or anticipate results and end up in positivist or pessimistic scenario. It is also necessary to develop further tools and procedures, and to evaluate their implementation in order give a more informed opinion. Finally, due to the fact that it does not include a non-compliance system the role of non-state actors is vital in order to push governments to comply with their NDCs.
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 The essay does not include an analyse of the Kigali amendment, that aim to eliminate planet-warming the HFCs, a substance that contributes significantly to climate change, due to the fact it was adopted after the Paris Agreement.
 United Nations Framework Convention on Climate Change, adopted 9 May 1992, entered into force in 1994 (“UNFCCC)
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 United Nations Convention to Combat Desertification, adopted 17 June 1994, entered into force in December 1996 (“UNCCD”) United
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 This information is from “The Global Climate Legislation Study”, which has analysed the development of climate change law and policies in 99 jurisdictions. The summary of the key trends 2016 could be find in: < http://www.lse.ac.uk/GranthamInstitute/wp-content/uploads/2016/11/The-Global-Climate-Legislation-Study_2016-update.pdf >
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 Paris Agreement, supra 2, paragraph 17
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