Tuesday, May 3, 2016

Bodansky: The Paris Climate Change Agreement: A New Hope?

Daniel Bodansky (Arizona State Univ. - Law) has posted The Paris Climate Change Agreement: A New Hope? (American Journal of International Law, forthcoming). Here's the abstract:
The Paris Agreement seeks a Goldilocks solution to the climate change problem that is neither too strong (and hence unacceptable to key states) nor too weak (and hence ineffective). To safeguard national decision-making, it adopts a bottom-up approach, in which the agreement “reflects rather than drives national policy.” But to promote stronger action, states’ “nationally-determined contributions” (or NDCs, for short) are complemented by international norms to ensure transparency and accountability and to prod states to progressively ratchet up their efforts. Eight features of the Paris Agreement stand out: (1) It is a legally binding instrument (albeit with many non-binding elements). (2) It applies not only to developed countries, like the Kyoto Protocol, but also to developing countries, which account for a growing share of global emissions. (3) It establishes the same core obligations for all countries. In doing so, it abandons the static, annex-based approach to differentiation in the United Nations Framework Convention on Climate Change and the Kyoto Protocol, in favor a more flexible, calibrated approach, which takes into account changes in a country’s circumstances and capacities and is operationalized differently for different elements of the regime; (4) It establishes a long-term, durable architecture. (5) It institutionalizes an iterative process, in which parties come back to the table every five years to take stock of their collective progress and put forward emission reduction plans for the next five-year period. (6) It sets an expectation of progressively stronger action over time. (7) It establishes a common transparency and accountability framework. (8) It appears to command universal, or near universal, acceptance. The Paris Agreement falls short of putting the world on a pathway to avoiding dangerous climate change. But, given current political realities, it produced as much as could reasonably have been expected, and perhaps more. That may or may not make Paris historic, but it is certainly cause for celebration.