Reproduced with permission from the blog of the European Journal of International Law,
Ever since President Donald Trump won the US elections, climate pundits have been playing the ‘will they, won’t they’ game in relation to US withdrawal from the hard-won and widely accepted 2015 Paris Agreement. The political need of the hour, it appears, is to keep the US in, and while that is certainly a desirable goal, it is time to ask, ‘at what cost’?
The US decision on whether it will withdraw from the Paris Agreement is imminent, but in advance of this decision President Trump has begun the process of dismantling Obama-era domestic regulations designed to address US greenhouse gas emissions. In the circumstances, even if the US decides to remain in the Paris Agreement, it would need to either lower the ambition of its nationally determined contribution (NDC), or be ready to fall short of it. This is at the heart of the current controversy animating the climate world – can a state downgrade its NDC under the terms of the Paris Agreement? American legal advisors in an understandable bid to keep the US in the Paris Agreement, are arguing that it can. I would like to argue that a different interpretation, one more in keeping with the object, purpose and spirit of the Paris Agreement, is possible, and even desirable.
At the outset it is worth noting that treaties are to be interpreted in good faith, in accordance with their ordinary meaning, in context, and taking into account their object and purpose (Article 31 (1), Vienna Convention on the Law of Treaties). The object and purpose of the Paris Agreement is to limit temperature increase to ‘well below 2°C’ (Article 2), and NDCs are the vehicle chosen to achieve that end (Article 3). The Paris Agreement provides considerable discretion to states in relation to choosing their NDCs, but once Parties have chosen their NDCs it sets expectations and imposes limits on state behaviour. I will consider the legality of a state downgrading its NDC in the context first of the overall normative expectations placed on Parties in relation to their NDCs, and then through an analysis of the relevant provisions of the Paris Agreement.
The Paris Agreement sets a firm expectation that Parties’ mitigation NDCs will progress from each five-year cycle of contributions to the next, and that these NDCs will reflect their ‘highest possible ambition’ (Article 4.3, see also Article 3, and preambular recital 4 for elements of ‘progression’). This expectation of ‘progression’ and ‘highest possible ambition’ sets a ‘direction of travel’ for the entire regime. This direction of travel is a critical foundational pillar of the Paris Agreement. Unlike the ill-fated Kyoto Protocol, which took the approach of starting with deep commitments by limited participants, the Paris Agreement chose, of political necessity, to start with broad participation, which predictably came at the cost of shallow self-determined commitments. The NDCs submitted by Parties in the context of the Paris Agreement cover an impressive 99% of global emissions, but the aggregate effect of these NDCs are at considerable variance with emissions pathways consistent with the agreement’s long-term temperature goal of ‘well below 2°C’, and even further from the aspirational 1.5°C. The Paris Agreement addresses this initial shorfall by setting strong expectations of progression and a clear direction of travel (forward and towards greater ambition) so that over time the regime is both broad in terms of participation and deep in terms of the necessary greenhouse gas commitments. The integrity, rationale and spirit of the Paris Agreement depends on forward movement. Permitting a state to downgrade its NDC falls foul of this intent. The specific provisions at play – Article 4, paragraphs 2 and 11 – need to be read in light of the normative expectation of progression, as well as the object and purpose of the Paris Agreement to limit temperature increase to ‘well below 2°C’.
Article 4.2, in pertinent part, reads:
‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.’
It has been argued that the word ‘maintain’ implies that a Party must have an NDC in place, not that it should maintain the level of ambition of the NDC that it has. While this is a plausible interpretation, I would argue that the term ‘maintain’ implies both that a Party must have an NDC in place – so it cannot withdraw its NDC without replacing it with another – and that it must preserve the level of ambition that it has in its NDC. To be clear, I am not suggesting that a party is subject to an obligation of result in relation its NDCs. It is not. I am suggesting, merely, that once a party chooses its NDC, tailored to its national circumstances and constraints, it has an obligation of conduct to maintain the level of ambition in that NDC for that cycle. This interpretation is in keeping with the overall thrust of the Paris Agreement which expects Parties to enhance their mitigation ambition through successive cycles. The alternative interpretation that allows Parties to withdraw their NDC, replace it with a less ambitious one, while being in compliance with Article 4.2, would do disservice to the overall purpose of the Paris Agreement, as well as its spirit of progression.
Turning to Article 4.11. In pertinent part it reads:
‘A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.’
In keeping with the progressive spirit of the Paris Agreement, this provision is designed to ensure that those Parties that choose to adjust their NDCs in an upward direction before the next cycle of NDCs commences, can do so. It does not either prohibit or permit downgrading of NDCs. It has been argued that this provision by implication permits downgrading because it neither mandates (‘shall’) upgrading of NDCs nor prohibits downgrading. First of all, Article 4.11. simply provides that should Parties choose to upgrade their NDCs, they can do so in accordance with rules that are to be developed. As such it does not lend itself to prescriptive language (‘shall’), and permissive language (‘may’) is more appropriate. Second, merely because this provision does not prohibit downgrading does not necessarily imply that it permits downgrading. The Geneva Negotiating Text, that formed the basis for the negotiation of the Paris Agreement, contained numerous options on these issues clustered under two provisions. The first dealt with situations where Parties choose voluntarily, possibly, mid-cycle, to upgrade their NDCs (para 180). The second dealt with situations where Parties may need to or choose to downgrade their NDCs. Under the latter the range of justifications for Parties to downgrade their NDCs stretched from force majeure, extreme natural events, lack of adequate international support to a change in subsequent international rules (para 181). Some of these options were regarded as justifications only for developing countries to downgrade their NDCs. Parties could not agree on any of these options, or indeed on whether Parties should be allowed to downgrade at all or not. Thus no provision on downgrading of NDCs was including in the Paris Agreement. It is telling that a shift (even a pendulum-scale one) in domestic politics was never proposed as sufficient justification for downgrading. Be that as it may, the fact that no provision on downgrading was included, could be read in two ways. Either it could be read as signalling an openness to downgrading, as some suggest. Or it could be read as an acknowledgment that downgrading is not in keeping with the spirit of the Paris Agreement, and thus does not feature in it. In any case, general treaty law permits suspension of the treaty in respect of a party where a fundamental change in circumstances makes it impossible for that party to comply with its obligations (Article 62, Vienna Convention on the Law of Treaties). Arguably, anything short of the compelling reasons captured in the term, ‘fundamental change in circumstances,’ would not be countenanced under general treaty law, or permissible under the Paris Agreement.
This seemingly arcane legal discussion has serious ramifications. While it is of critical importance that the US, the second largest greenhouse gas emitter, remains in the Paris Agreement, if the cost at which it does so is a tacit acceptance from other Parties that ‘downgrading’ of the US NDC is legal and permissible under the Paris Agreement, it would be a serious price to pay. Not only will the legalisation of such downgrading upset the carefully balanced architecture of the Paris Agreement, it could also have a cascading effect on other Parties’ NDCs. There is no scope for US exceptionalism here. It will be impossible, and indeed inequitable, to press countries like India, struggling with enduring energy access, development and poverty challenges, to stay the course, while the US is legally allowed to downgrade its NDC. There is only one direction of travel the Paris Agreement, and indeed the planet, countenances – forward – and it is ‘applicable to all’.