Guest Editorial: Nathan Ross

Published on: December 21, 2015

Filed Under: Commentary, COP 21, Guest Editorial

Francis Joseph Glacier by Burton Brothers Studio, 1870 (from the Te Papa Online Collection)

 

The Paris Agreement: A Tale of Two Interpretations

On the 13th of December (NZ time), the world agreed to the text of new international law about climate change: the Paris Agreement.

On the 14th of December, New Zealand’s Prime Minister John Key sought to play down what just about everybody else was hailing as enormous progress. First he talked up costs for New Zealand households [1] (see an alternative view at [2]), and then he was saying that it’s business as usual for coal, oil and gas in New Zealand [3].

Irrespective of the pros and cons of what he’s said, what do such statements reveal about the effectiveness of this much-celebrated global agreement?

There are reasons for thinking about it very positively and the most important among them is its universal adoption. There are 193 members of the United Nations and yet 195 countries assented to the Paris Agreement. That’s 195 countries whose international relations on matters relating to mitigation and adaptation will be interpreted through the Paris Agreement; their common language.

For countries indicating that the Paris Agreement will change little for them, they cannot prevent other countries from making headway towards a less dangerous future. It pays to remember that many governments around the world (national, provincial and local) were moving ahead and that the renewable energy sector had been growing at a phenomenal rate before the Paris Agreement, which will only increase that momentum.

Also, there are specific positive features of the Agreement, especially when we consider their combined effect. First, countries must now set new commitments every five years. (Remember that it’s been nearly 20 years since the last targets were set in the Kyoto Protocol.) Second, those commitments must always be stronger than the previous commitment. Third, new transparency rules make it tougher for countries to manipulate data and pretend they’re doing things that they’re not.

While there are good reasons for feeling positive about the Paris Agreement, the New Zealand Government’s laissez faire attitude hints at the Agreement’s most critical weakness. Diplomats in international negotiations use the phrase “strategic ambiguity” to describe the language that countries try to embed in certain treaties. So, what is “strategic ambiguity” and why does it matter?

Normally, legislation is very precise and every word matters. As an example, the New Zealand Land Transport Act says that “A person may not drive a motor vehicle on a road without an appropriate current driver licence”. It later says that, if you break this rule, then you will be liable for a $400 fine. Overall, it is crystal clear what the offence is, who is responsible and what the consequences will be.

The Paris Agreement doesn’t contain that kind of clear, specific language; at least, not where it really matters. And the purpose of strategic ambiguity is to free countries from being liable for whatever they might otherwise be liable for.

One small example of this ambiguity is Article 13(14). It’s about the new transparency framework (the irony shouldn’t be lost) and it says that, “Support shall be provided to developing countries for the implementation of this article”. This sounds fair and reasonable, but what does it really mean?

For a start, which countries are responsible for providing this support? And which developing country (or countries) is the beneficiary of this support? Article 13(14) is presumably setting up a network of bilateral relationships, but between which countries, exactly? How does a developing country know which other country it can ask for this support?

Even more concerning is asking the simple question, what is “support”? Is $5 acceptable? Okay, that’s a bit cynical, but would a developed country’s existing aid satisfy this article if some fraction of that aid already goes towards some small project that was not set up for the Paris Agreement but can be loosely related to “transparency”? What if, for example, New Zealand was already helping a developing country with instituting a general records management system: would that suffice?

In other words, as a matter of law, how on earth could a developing country assert this article against any other particular country? How could a developing country meaningfully argue in an international court that a specific developed country has failed to fulfil this supposed obligation?

But the problems don’t stop there. To make matters worse, there is no real enforcement. It’s quite clear in the Land Transport Act that, if you drive without a licence, you’ll get a $400 fine. But in the Paris Agreement, enforcement simply doesn’t exist. The “mechanism to facilitate implementation and compliance” (Article 15) specifically says that it will be “non-adversarial and non-punitive”. In other words, if you don’t comply, the international community will ask again. Pretty please, with sugar on top? Just imagine if our domestic laws had no penalties, just social pressure.

This strategic ambiguity is littered throughout the Paris Agreement and the result is that it is not really law at all. It’s a vision statement. If a party doesn’t want to be a part of that vision, the international community’s response is reduced to asking again. Peer pressure is a real tool in international relations but hinging the Earth’s life support systems on it is a high risk strategy.

If the text of the Paris Agreement reduces it to something less than law, was it all an epic waste of time? No. As a vision statement, it is one that has been universally adopted. And it’s not just a vision statement; it is new, universal vocabulary with bold objectives that will influence international relations and, therefore, domestic actions. This language wouldn’t have been so widely accepted to if it was more binding and punitive. Overall, the world is better with the Paris Agreement than without it.

 

By Nathan Ross

PhD Candidate, Faculty of Law, Victoria University of Wellington.

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