2. The Climate Change Regime
2.2 Mitigation Commitments
Article 4 of the UNFCCC determines the commitments. According to Article 4.1, all parties of the UNFCCC shall formulate and publish measures to mitigate climate change. This means reduction of the sources of GHG emission and enhancement of the sinks of GHGs.56 These commitments apply according to the common but differentiated responsibilities principle and specific development priorities.57 The extent to which developing country parties will effectively implement their commitments under the UNFCCC will depend on the effective implementation of developed country party commitments related to financial resources and technology transfer under the UNFCCC.58 Mitigation is not a voluntary measure but a substantive obligation on all parties. However, developing country obligations are subject to additional financial resources provided by developed countries.
The Kyoto Protocol established quantified legally binding obligations for developed countries to reduce their emissions for the first commitment period (2008-2012)59. In terms of the developed country perspective, it should be noted that Article 10 requires all parties of the Kyoto Protocol to formulate, implement, publish and update measures to mitigate climate change, to facilitate adaptation, and to cooperate.60 This is to be done in accordance with the common but differentiated responsibilities, specific development priorities, objectives and circumstances. In terms of the developing country obligations the Kyoto Protocol mainly repeats what was set in Article 4 of the UNFCCC.
54 Obergassel, W. et all (2016). Phoenix from the Ashes — An Analysis of the Paris Agreement. Wuppertal.
Wuppertal Institute. p. 41.
55 Voigt, C. and Ferreira, F. (2016). Differentiation in the Paris Agreement. Climate Law. 2016. (6). pp. 65-67.
56 UNFCCC Glossary available at http://unfccc.int/essential_background/glossary/items/3666.php#M [22/06/2016]. (UNFCCC Glossary).
57 UNFCCC. Note 27above. Art. 4.1.
58 Ibid. Art. 4.1 and 4.7.
59 The Protocol was amended in 2012 in Doha, to accommodate the second commitment period 2013-2020.
(UNFCCC. Decision 1/CMP.8, the Doha Amendment, UN Doc.FCCC/KP/CMP/2012/13/Add.1, 28 February 2013). Nevertheless the amendment has not yet entered into force.
60 Kyoto Protocol. Note16 above. Art. 10 (b) and (c).
28/111
The Bali Action Plan adopted at the 13th Conference of Parties (COP 13)61 in 2007 called for developing country parties to formulate Nationally Appropriate Mitigation Actions (NAMAs) that are measurable, reportable and verifiable.62 Moreover, it is expected that the NAMAs take into consideration sustainable development and are supported and enabled by technology, financing and capacity building.63 The NAMAs have thereafter been reconfirmed in a number of COP decisions, including the Cancun Agreements adopted at COP 16, in Cancun, Mexico in 2010, which clarified that the NAMAs should aim to reduce emissions compared to ‘business as usual’ levels that would have occurred by 2020.64 The NAMAs do however recognise that the time frame related to the peak of GHG emissions will be longer for the developing country parties compared to the developed parties.65 The Cancun Agreements and the Bali Action Plan (as COP decisions) promote the effective implementation of the UNFCCC. However, they are not legally enforceable under the UNFCCC, contrary to legally binding protocols and other amendments to the UNFCCC, such as the Kyoto Protocol, the Doha Amendment and the Paris Agreement which all require ratification by the parties.66
The Paris Agreement continued the spirit of the Cancun Agreements by recognising that the peaking of GHG emissions will take longer for developing country parties.67 According to the Paris Agreement, mitigation measures shall take the form of ‘nationally determined contributions’ which the party ‘intends to achieve’.68 Therefore, even though the parties have a legally binding obligation to pursue domestic mitigation measures, these measures are nationally determined and they are binding on the conduct (prepare, communicate, pursue and maintain contributions) but not on the results.69 This obligation applies to both
61 Every year parties to the UNFCCC and the Kyoto Protocol meet with a view to progress negotiations under the UNFCCC. The Conference of Parties is the decision-making body established in Article 7 of the UNFCCC.
The COP serves as the meeting of the Parties to the Protocol, as determined in the Article 13 of the Protocol.
Since to the UNFCCC and Kyoto Protocol several COP decisions have been made to clarify and amend existing agreements.
62 UNFCCC. Decision 1/CP.13, The Bali Action Plan. 14 March 2008. UN Doc. FCCC/CP/2007/6/Add.1. (Bali Action Plan). Para 1 (b) (ii)).
63Ibid. Para 1 (b) (ii)).
64 UNFCCC. Decision 1/CP.16, The Cancun Agreements. 15 March 2011. UN Doc. FCCC/CP/2010/7/Add.1.
(Cancun Agreements). Art. 48.
65Ibid. Art 7.
66 Brunnee, J. (2002). COPing with Consent: Law-Making Under Multilateral Environmental Agreements.
Leiden Journal of Environmental Law. (15). pp. 17-18. Bodansky, D. (2016). The Legal Character of the Paris Agreement. Review of European, Comparative, and International Environmental Law. 25 (2) pp.144-145.
67 Paris Agreement. Note 1 above. Art. 4.1.
68Ibid. Art. 4.2.
69 Rajamani, L. (2016).Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics. International and Comparative Law Quarterly. (65). pp.497-498.
29/111
developing and developed parties. The Paris Agreement mentions that developed countries
‘should continue taking the lead’ in implementing mitigation measures and that ‘support shall be provided’ to developing countries.70
As mentioned above, the Paris Agreement quantified a global temperature increase target of reducing emission well below 2 ○C compared to pre-industrial levels and seeking to limit the temperature increase below 1.5 ○C.71 This is of specific importance from a human rights perspective, as the temperature increase is directly proportional to the adverse effects on human health, security, poverty and livelihood.72 As the temperature increases, so do the adverse effects. However, it should be noted here, that the submitted Indented Nationally Determined Contributions, which entail reductions against a business-as-usual scenario, are estimated to lead to a mean global temperature increase in the range of 2.7 °C to 3°C.73 This shortfall has also been recognised in the decision text adopting the Paris Agreement.74 Therefore, an obligation of the parties to improve the ambition of their subsequent Nationally Determined Contributions is of crucial importance.
While the Paris Agreement requires new Nationally Determined Contributions to be formed every five years and the first global stocktake is to take place in 2023, the decision text adopting the Paris Agreement ‘urges’ parties to submit new Nationally Determined Contributions by 2020 and ‘decides’ to schedule a facilitative dialogue for a global stocktaking in 2018.75 The COP 22, serving as the first meeting of the parties to the Paris Agreement held in Marrakesh, Morocco, November 2016, decided that the presidents of COP 22 and the forthcoming COP 23 would consult with the countries on the organisation of this
70 Ibid. Art. 4.4 and 4.5.
71 Ibid. Art. 2.1 (a)).
72 IPCC. Note 5 above. Chapters 11-13.
73 Climate Action Tracker. Available at: http://climateactiontracker.org/global.html [visited 24/05/2016]. (The parties of UNFCCC submitted their Intended Nationally Determined Contributions (INDCs) to UNFCCC before the COP 21, which outlined their post 2020 climate measures. These INDCs are formally submitted in from of Nationally Determined Contributions when the party ratifies the Paris Agreement.)
74 Paris Agreement. Note 1 above. Decision text Para. 17.
75 Paris Agreement. Note 1 above. Art. 4.9. 14.2 and Decision text Para. 20 and 23. (Stocktake is a type of inventory, which will include mitigation of GHG emissions as well as progress on adaptation, financial, technical, and capacity building support provided and received as prescribed in the Paris Agreement. At the COP 22 several parties agreed that the stocktake should comprise a technical and analytical phase, which is to be followed by political phase. Many developing countries hold that the process should further enhance international cooperation and climate financing, whereas others, including the EU, emphasized raising climate ambition. The modalities and procedures are expected to be finalised at COP 23.)
30/111
dialogue and report back on their findings in COP 23.76 Furthermore, it was agreed that a rulebook for the implementation of the Paris Agreement, based on transparency and accountability, should be developed by 2018.77 The stocktake forms a basis of the extent to which actions by the parties are making progress toward achievement of the goals of the Paris Agreement.78