Paris Agreement and Consensus to Address Climate Challenge
A world record 150 country leaders launched landmark climate talks in Paris. The 2015 Paris Agreement provides tools for states to commit to climate mitigation goals, to collectively ratchet up their ambition, and to oversee their implementation. Representatives of 195 nations have adopted this climate blueprint.
This Insight provides an overview of the Decision adopted by the Conference of the Parties to the UN Framework Convention on Climate Change (COP 21 Decision) and the Paris Agreement that map engagement on:
- Mitigation - reducing emissions fast enough to achieve the temperature goal, [in Article 2, of “holding 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”]
- A transparency system and global stock-take - accounting for climate action
- Adaptation - strengthening the ability of countries to deal with climate impacts
- Loss and damage strengthening their ability to recover from climate impacts
- Support - including finance, for nations to build clean, resilient futures.
The Paris Agreement’s central binding obligation requires states to submit and implement increasingly ambitious nationally determined contributions (NDCs) in five-year cycles. Parties have set a long-term trajectory through national climate action plans and are coordinating peaking emissions as soon as possible. While the facilitative nature of five-year reviews remains broad brush rather than clearly defined, the Paris Agreement sets forth the principle that future national plans will be no less ambitious than existing ones.
The climate action plans submitted to date serve as a foundation for higher ambition. Parties will update their nationally determined contributions every five years in a process that seeks to ratchet up climate ambition.
Increasing ambition is to occur through a two-stage process, recognizing that the current provisions do not add up to the agreed upon 2°C temperature goal let alone 1.5°C. Until the Paris Agreement enters into force, an interim 2018 facilitative dialogue will take stock of collective country actions. This will occur under the accompanying Paris COP 21 Decision to the Paris Agreement and should inform the nature and caliber of future commitments.
Parties are legally bound to a transparency framework to track progress. At the core of the Paris Agreement are five-year cycle reviews of each nationally determined contribution. While legally bound to communicate nationally determined contributions, parties are not legally bound to exact targets. Global stocktaking offers stepping stones for coordinated mitigation, adaptation, technology sharing, and support. By holding ongoing, five-year stocktakes midway through the nationally determined contribution cycle, an upwardly ratcheting climate response must do the heavy lifting of keeping global warming well below 2°C or 1.5°C above pre-industrial levels.
Significant elements that did not find landing zones in Paris include: compensation for loss and damages, reference to indigenous rights in operative areas of the agreement, and a call for curbing fossil-fuel extraction.
Even if the Paris Agreement enters into force by 2020, general terms are still far more prevalent than sharp, clearly focused details such as specific rights and obligations.
Afforestation (Article 5: Sinks) on degraded lands and wetlands can help balance greenhouse gas emissions and sinks. Facilitating environmentally and socially sound land use, forestry, and agricultural best practices can contribute to rapidly decarbonizing the global economy by the middle of the century. The land sector and all terrestrial, marine, and coastal ecosystems are effective natural sinks and reservoirs.
Sectoral emissions from shipping and aviation represent 5 percent of humanity’s greenhouse gas emissions but it remains an open question whether emissions should be tied to registration countries or the countries in which emissions actually occur. Regulating international trade and business transactions raises challenging questions such as where to account for rapidly increasing aviation and shipping emissions. These questions will need to be addressed in future forums.
The Paris Agreement signals that markets (Article 6) are a viable implementation approach. The Agreement introduces the new term, “internationally transferred mitigation outcomes” (ITMOs), to describe carbon currency and clearly states that a mechanism for ITMOs should be designed to achieve overall mitigation in global emissions. The Paris Agreement avoids reference to terminology of market-based approaches as a concession to countries opposed to them. Countries can transfer units of mitigation outcome to implement their nationally determined contributions in a manner that ensures the avoidance of double counting. The caliber of emissions trading will depend on how robust the accounting guidelines for nationally determined contributions that are being developed prove to be in their implementation. The Paris Agreement establishes a new mechanism to succeed the Kyoto Protocol’s Clean Development Mechanism with rules to be adopted at the first meeting of parties after the Paris Agreement enters into force.
The Paris Agreement recognizes the need for adaptation (Article 7) efforts to be gender sensitive in establishing the adaptation goal. The global community still needs to flesh out how support will flow to developing countries for adaptation action in a clear and predictable manner.
The free-standing loss and damage (Article 8) provision extends the Warsaw International Mechanism for Loss and Damage that established an interim body at COP 19. It is intended to help vulnerable countries establish early warning systems, risk insurance, and other means of coping with climate change. Article 8 on loss and damage was critical for acutely vulnerable countries, yet the core thorny issue is clarified in the COP 21 Decision, paragraph 52, where parties agree that loss and damage “does not involve or provide a basis for any liability of compensation.” The Executive Board of the Warsaw Mechanism is to establish a task force to recommend ways to respond to climate change induced migration. 
The Paris Agreement calls for developed countries to help finance (Article 9) mitigation and adaptation in developing countries under the United Nations Framework Convention on Climate Change (UNFCCC). Discussions circled around how to ramp up finance beyond $100 billion a year and over what timeframe parties could plausibly mobilize and review support. Parties have agreed that by 2025 the COP will set a new collective quantified goal from a floor of $100 billion a year. Every two years, developed countries commit to submit quantitative and qualitative information on future support, while other countries are encouraged to do so voluntarily. COP 21 participants from vulnerable small islands pointed out to large emitting countries that “[y]our right to pull people out of poverty doesn't negate my right to survival.” The High Ambition Coalition reminder “1.5 to stay alive” gained acceptance after having been nearly taboo in serious discussion leading up to Paris; it gained broad credence among African, Caribbean, and Pacific nations. Then the United States joined the High Ambition Coalition, followed by Canada, Australia, and Brazil. These developed, oil producing nations entering the plenary hall with the Marshall Islands shook up the dynamics of the developing nation negotiating bloc.
Beyond agreeing to review nationally determined contributions every five years starting in 2018 before the Paris Agreement enters into force, parties have yet to hammer out the detailed modalities of such reviews. They will do so through a non-punitive, facilitative implementation committee. This means that no sanctions will be applied if a country does not fulfill its contribution. The recent first round of submitting nationally determined contributions demonstrated the level of assistance that many countries still need in determining their current and future emission and in specifying what ratio of ecosystem, efficiency, and other environmentally sound technology solutions could facilitate the highest level of ambition for each country. Environmentally and socially sound tech- and nature-based solutions abound and are becoming increasingly widespread. They are economically viable ways to reduce emissions and raise resilience. With the fleshing out of accounting guidelines by the Conference of the Parties, global stocktake reviews can clarify the dynamics of flows of support as countries report finance biannually.
Country submissions relating to finance and technology will be reviewed by technical experts with an eye for ways of improving clarity and offering an opportunity to share best practices. The Paris COP 21 Decision strengthens the Technology Mechanism (TM) and establishes a new technology framework to provide overarching guidance. Linking the Technology Mechanism and UNFCCC financial bodies—combined with iterative reviews detailing effectiveness and scale of support to the Technology Mechanism—may help raise the funds needed with which to broadly ramp up renewables and other innovations. 
The Paris Agreement creates a new capacity-building (Article 11) initiative to facilitate developing country transparency. Parties agreed that all parties other than least developed countries (LDCs) and small island developing states (SIDS) should share information on adaptation, loss and damage, finance, and technology. These submissions should occur every other year.
The Agreement’s Article 12 reaffirms the commitment of parties to public participation, access to information, education, and climate awareness.
The transparency framework legally binds all parties to reporting requirements. It acknowledges that developing countries need support and that small island nation states and least developed countries need additional capacity building assistance. Support is to come from developed countries that shall provide financial resources as well as countries that are not developed. The latter are encouraged to provide such support voluntarily. Parties are prohibited from making individual reservations to the Paris Agreement.
The Paris climate consensus building process has approached problem solving as a facilitative rather than a punitive process. Parties have made national commitments under an international instrument with legal effect and placed some strategic stepping-stones, if not a robust foundation, for policy coordination. Yet, efforts to have principles of human rights and intergenerational equity in the operative language fell short. The attempt by some states to frame loss and damage in terms of liability and compensation failed. Landing zones were never agreed upon for establishing a top down element to the five-year stocktaking cycles. International shipping and aviation sectors were not included in the Paris Agreement or its related COP Decision. Similarly, neither document states a peak year at which emissions and sinks would balance each other. These are serious omissions. Yet given the trajectory of climate talks, the Paris Agreement marks a diplomatic breakthrough to agree upon legally binding processes.
About the Author: Elizabeth Burleson, an ASIL member, writes reports for the UN and partners with the UNFCCC Climate Technology Center and Network.
 Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, UN Climate Change (Dec. 12, 2015), http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/.
 Targets include mitigation and a range of other climate measures.
 Paris COP Decision & Paris Agreement art. 14, Dec. 12, 2015, U.N. Doc. FCCC/CP/2015/L.9/Rev.1, https://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf.
 Summary of the Paris Climate Change Conference: 29 November – 13 December 2015, Earth Negotiations Bulletin, Dec. 15, 2015, at 1, available at http://www.iisd.ca/download/pdf/enb12663e.pdf.
 Preliminary Legal Assessment of the Paris Agreement, Legal Response Initiative (Dec. 14, 2015),
 See Suzanne Goldenberg, Climate Change: Will “1.5 to Stay Alive” Deal be Enough to Save Seychelles?, Guardian (Dec. 12, 2015), http://www.theguardian.com/environment/2015/dec/12/climate-change-seychelles-cop21-economy-collapse. Parties can conserve and enhance sinks through results-based payments, joint mitigation, and adaptation approaches.
 IUCN Position on UNFCCC Negotiations in 2015 (Int’l Union for Conservation of Nature, Position Paper, 2015), available at http://cmsdata.iucn.org/downloads/eng_iucn_2015_position_paper_for_unfccc___final.pdf.
 Benjamin Hulac, Rules for Ship, Airplane Emissions Left Out of Paris Deal, Climate Wire (Dec. 14, 2015), http://www.eenews.net/climatewire/2015/12/14/stories/1060029447.
 Paris Agreement, supra note 3, art. 6.3.
 Meinhard Doelle, The Paris Climate Agreement: Historic Breakthrough in Spite of Shortcomings, Dalhousie University Blogs (Dec. 13, 2015), https://blogs.dal.ca/melaw/2015/12/13/the-paris-climate-agreement-historic-breakthrough-in-spite-of-shortcomings/.
 Paris Agreement, supra note 3, art. 2.
 Paris COP Decision, supra note 3, ¶ 52 (“Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”).
 Id. ¶ 50. See also Preliminary Legal Assessment of the Paris Agreement, Legal Response Initiative (Dec. 14, 2015), http://legalresponseinitiative.org/preliminary-legal-assessment-of-the-paris-agreement/.
 Paris Agreement, supra note 3, at 26
 Lisa Friedman, India's Position Becomes a Challenge as Substantive Climate Talks on Finances Begin, Climate Wire (Dec. 2, 2015), http://www.eenews.net/stories/1060028805.
 Paris Agreement, supra note 3, art. 15.
 “The end of a journey, the start of another” as Paris Agreement adopted, Int’l Center for Trade and Sustainable Development (Dec. 13, 2015), http://www.ictsd.org/bridges-news/biores/news/biores-paris-update-3-%E2%80%9Cthe-end-of-a-journey-the-start-of-another%E....
 Earth Negotiations Bulletin, supra note 4.
 Paris Agreement, supra note 3, art. 15.
 Those Who Slam the Paris Climate Talks are Missing the Point, New Scientist, at 1 (Nov. 11, 2015), available at https://www.newscientist.com/article/mg22830473-200-those-who-slam-the-paris-climate-talks-are-missing-the-point/.