United Nations recently released a twenty-page draft of an agreement
containing legal provisions on climate goals in early October, intended to help guide the 195
countries in further talks in mid-October and final negotiations in Paris in December.
aim of the December climate conference is “to reach, for the first time, a
universal, legally binding agreement that will enable us to combat climate
change effectively and boost the transition towards resilient, low-carbon
societies and economies.” This progress is crucial since NASA predicts
that “average surface temperatures could rise between 2°C and 6°C by
the end of the 21st Century" compared to current levels.
Negotiators have not agreed how to measure emissions reductions.
climate change conferences have resulted in a more united push for climate
agreement. The Warsaw Conference in 2013
required all U.N. Member States to communicate efforts combating greenhouse gas
emissions that they were planning to take even before the Paris conference
began. Another, the Kyoto Protocol, is a forerunner to the expected Paris agreement. The
agreement’s current version, which has been distilled from ninety pages, is intended to commit the governments
to keeping warming under 2 degrees Celsius compared to pre-industrial levels. Within the document are bracketed blanks, representing specific numbers that
still need to be negotiated, such as the dates by which the countries will need
to reach specified goals. Moreover, even the metric for progress
remains undecided; possibilities include (1) “peak greenhouse gas emissions by
the decided date”, (2) “zero net emissions by the decided date” (3) or “a
vaguely worded ‘global low carbon transition.’” This vague language leaves doubt as to how a protocol could realistically be enforced. Nonetheless, the draft
is being used to
provide a basis for the final pre-Paris preparation talks, scheduled to run from October 19 to 23 in Bonn, Germany; on the conference's first day, less-developed countries protested that negotiators had removed provisions aimed at helping them cover the cost of shifting toward cleaner energy.
agreement will “take the form of a protocol, another legal instrument or ‘an
agreed outcome with legal force’, and will be applicable to all Parties.” The current negotiation is through the U.N. Ad
Hoc Working Group on the Durban Platform for Enhanced Action (“ADP”), which is scheduled to be adopted in December at the Paris Convention and to be in
effect by 2020.
problem is that “‘legal force’ is a variable concept at international law.” Hillier and Stuart argue that a legal
norm may be called binding but still not guarantee that it is enforceable since
it must be backed by “procedural mechanisms to incentivise parties to act in
the prescribed manner.” Unfortunately, the availability of measures that penalize non-compliance may discourage countries from signing on
to the global initiative of counteracting climate damage. Indeed, whether these goals should be
commitments at all is still an issue to be decided. To keep the countries accountable, the
agreement would require them to communicate and improve their commitments so as
to encourage transparent emissions calculations and encourage the governments
to meet those commitments.
the facilitation of implementation and compliance essentially has been left
undecided under Article 11. The Kyoto Protocol’s Compliance
Committee may be used as a model. It has used independent experts to
“monitor and control the procedure surrounding the Protocol’s Parties emission-reduction
commitments.” Parties can report non-compliance; the
Committee uses two branches, a traditional enforcement branch and a “facilitative”
branch to respond with non-punitive consequences such as providing suggestions
or recommending actions when progress is not being made toward completion of
commitments. The facilitative branch advises and provides
warnings of potential non-compliance while the enforcement branch determines
whether the reporting and reduction requirements are being met.
the Kyoto Protocol is a framework to consider, it is not necessarily considered
successful; for example, its voluntary nature allowed Canada to withdraw. What is the correct balance to strike
between voluntary participation and incentives and sanctions for failure to
comply? Will countries be willing to
sign on to strict commitments that may result in punishments for failure? Will those punishments deter countries from
participating or rather deter participating countries from shirking their commitments?
while the Agreement is much more concise than the previous ninety-page
suggested version, key provisions are still surprisingly vague, given that the
final agreement is scheduled to be reached in December.  The balance between encouraging
countries to make real progress while also holding them accountable for their
commitments is proving delicate and difficult. The parties will have to shape the text to strike
this delicate balance in Paris in December.
 U.N. Ad Hoc Working
Group on the Durban Platform for Enhanced Action (Non-paper), Oct. 5, 2015, available athttp://unfccc.int/resource/docs/2015/adp2/eng/8infnot.pdf () [http://perma.cc/8J72-J4V6]; see also Sylvie Corbet, UN releases a draft for potential agreement
on climate, Associated Press para.
2 (Oct. 5, 2015), http://bigstory.ap.org/article/8b248903a0f94ea99f0ce6b86231ea28/un-releases-draft-potential-agreement-climate [http://perma.cc/NFC6-PSLA].
Id. at para. 3.
 Fiona Harvey, UN publishes draft of slimmed-down Paris
climate change deal, The Guardian para. 1 (Oct. 5, 2015), http://www.theguardian.com/environment/2015/oct/05/un-publishes-draft-of-slimmed-down-paris-climate-change-deal [http://perma.cc/SK8P-35VW].
 Gov’t France, COP21 Main Issues para. 3, http://www.cop21.gouv.fr/en/cop21-cmp11/cop21-main-issues [http://perma.cc/4AGS-XKB4]
(last visited Oct 13, 2015).
 How Much More Will Earth Warm?, Nat’l Aeronautics & Space Admin. (U.S.), para. 3 http://earthobservatory.nasa.gov/Features/GlobalWarming/page5.php [http://perma.cc/EYY2-3DLS] (last
visited Oct. 12, 2015).
 Gov’t FRANCE, Climate Change and Decisions para. 3, http://www.cop21.gouv.fr/en/cop21-cmp11/climate-change-and-decisions [http://perma.cc/KYQ6-YT33] (last
visited October 13, 2015).
 Simon Hillier &
Thomas Stuart, Can the Paris Text
Guarantee Compliance?, Deconstructing Paris para. 6 (Sept. 2, 2015), http://paristext2015.com/2015/09/can-the-paris-text-guarantee-compliance [http://perma.cc/9VGY-YGWY].
 Harvey, supra note 3
Id. at para. 5; see also Simon
Hillier, October’s Draft Text: A
Breakdown, Deconstructing Paris para. 11 (Oct. 8, 2015), http://paristext2015.com/2015/10/octobers-draft-text-initial-appraisal [ http://perma.cc/NNA7-GVNN] (debating
whether the long term goal should be to hold temperatures under 2 degrees
Celsius or 1.5 degrees Celsius).
 Harvey, supra note 3, at paras. 6–7; see also Hillier, supra note 9, at para. 4 (discussing
brackets). Some of the brackets include
options of “[shall][should]” or “[other]” which means that there is still some
debate about whether these commitments will be mandatory, merely guidelines, or
giving Parties the capability of deciding a different standard.
 Hillier, supra note 9, at para. 13.
 Harvey, supra note 3, paras. 16–17; China, developing
countries crying foul over UN climate change summit in Bonn, Deutche Welle, http://www.dw.com/en/china-developing-countries-crying-foul-over-un-climate-change-summit-in-bonn/a-18792155.
 Climate Action: The 2015 International Agreement (EC) para. 1 (Sept. 24, 2015), http://ec.europa.eu/clima/policies/international/negotiations/future/index_en.htm [http://perma.cc/L5HX-LZVU].
Id. The Durban Platform was adopted by “parties to the United
Nations Framework Convention on Climate Change (UNFCCC)” and launched the new
climate negotiations; see also Daniel
Bodansky, The Durban Platform
Negotiations: Goals and Options, para. 1 (July 2012), http://belfercenter.ksg.harvard.edu/publication/22196/durban_platform_negotiations.html [ http://perma.cc/Y2YH-7WXH] (discussing the Durban
Platform). “The Durban Platform represents a finely balanced compromise among
the principal negotiating groups in the UN climate-change regime.” Id. at para. 2
 Climate Change and Decisions, supra note 6, para. 2.
 Hillier & Stuart, supra note
7, at para. 2.
Id. at para. 4.
 Hillier, supra note 9, at para. 5.
 Corbet, supra note 1, paras. 9, 11–12; see also Hillier, supra note 9 at paras. 16-17 (stating that each commitment cycle
spans five years and that each update must be “progressively more
 Hillier, supra note 9, at para. 40.
 Hillier & Stuart, supra note 7, at para. 6.
Id. at para. 7.
 Hillier, supra note 9, at paras. 3–5.
Posted by Kathryn E. White on Mon. October 19, 2015 8:45 PM
Climate Change, Environmental, France, International regulatory coordination, United Nations