Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University, has graciously agreed to join the CEGE Connection conversation and share his insights on climate change and environment law.  We highly recommend a visit to Professor Doelle’s Blog: Environment Law News, which provides vital information that speaks to the complexities of environmental and energy law, climate change, GHG emissions, and the role of human rights in these areas of enquiry.

“Negotiating the Paris Rulebook: Compliance in Transition.” has been republished from Professor Doelle’s blog, Environment Law News.

In December, 2018, Parties to the UN Climate Regime are set to negotiate a Rulebook on how to implement the Paris Agreement. The Rulebook will cover a broad range of issues, from market mechanisms, to finance, reporting, and the 5 year review cycles build around the global stocktake. Key among the elements of the Rulebook is the compliance system. In this post, my intention is to briefly highlight some of the issues before negotiators of the compliance system. A more detailed assessment of the draft negotiating text is available in my article entitles “Compliance in Transition: Is Facilitative Compliance Finding Its Place in the Paris Climate Regime?”. It is published in CCLR, and a draft is available at SSRN: https://ssrn.com/abstract=3228766.

In the transition from the Kyoto Protocol to the Paris Agreement, some parties took great lengths to distance themselves from the architecture and institutions of the Kyoto Protocol. Key among this architecture was the Kyoto compliance system, which was seen as a departure from the norm for multilateral environmental agreements (MEAs). The system included an enforcement branch that applied automatic consequences in case of non-compliance with key obligations of developed country parties. It is therefore not surprising to see a focus on facilitation in Article 15 of the Paris Agreement and specific direction that the compliance system is to be non-adversarial and non-punitive.

The differences between the Kyoto compliance system and that to be developed under the Paris Agreement are, of course, also driven by substantive differences between the two agreements. Most notable among these differences is that the Paris Agreement establishes a much broader range of commitments and obligations covering mitigation, adaptation, funding, technology access, education, capacity building, and loss and damage. The commitments, furthermore, have been made by a much broader range of parties, including all developing countries, in particular the least developed countries and small island states. Many of the commitments are self-determined in the form of nationally determined contributions (NDCs) to be updated by parties every five years.

While there are many important differences, some of the core challenges of ensuring compliance are, on closer examination, remarkably similar to the Kyoto Protocol. Both agreements include a range of commitments from voluntary to binding. Both include provisions for market mechanisms, which will be dependent on compliance to be effective. Both include a range of reporting obligations that are fundamental to the functioning of the regime. These parallels suggest parties would be well advised to draw on the compliance experience under the Kyoto Protocol in negotiating the design of the Paris compliance system.

This post assesses the state of play in the negotiations under Article 15 heading into the COP 24 negotiations in Poland from December 2-14, 2018. The negotiations are taking place in the context of the provisions of Article 15 itself as well as provisions 103 and 104 of the Paris COP decision. Before delving into the current state of the negotiations, it is helpful to identify the key relevant elements of the agreement parties reached in Paris.

The overall purpose of the compliance process under Article 15 is to facilitate the implementation and promote compliance with the provisions of the Paris Agreement. It is important to highlight that Article 15 refers to “the provisions”, not just some provisions, and not just obligations. It seems clear, therefore, that the mandate of the compliance committee should be broad in scope, include individual and collective commitments, and include binding obligations as well as non-binding commitments.

Another set of provisions in Article 15 clarify the overall approach to be taken in the design of the compliance system. They refer to the facilitative, non-adversarial and non-punitive nature of the process, and the principle of transparency. These elements offer important guidance to negotiators on the design of the compliance process and the measures the compliance committee should have at its disposal to facilitate implementation and promote compliance.

A key message in Article 15 relates to the “respective national capabilities and circumstances of the Parties”. This reference to the revised principle of common but differentiated responsibilities (CBDR) in the Paris Agreement signals that the process needs to be sensitive to the capacity challenges of the least developed countries in particular. Article 15 is clear that with respect to compliance, differentiation based on capabilities and other relevant circumstances is the job of the compliance committee. This suggests that the compliance modalities and procedures should provide flexibility for the committee to apply certain aspects of the compliance system to parties that have capabilities and circumstances that may warrant either relaxing process requirements or warrant the application of different measures at the conclusion of the compliance proceedings.

The agreement reached in Paris offers considerable direction on the process to be designed.  Included is the composition of the compliance committee (12 members, two from each of the 5 UN regions plus one each from a least developed country and a small island developing state), required areas of expertise, and the importance of gender balance on the committee.  The committee is to report annually to the Conference serving as the Meeting of the Parties to the Paris Agreement (CMA).  This is the context within which parties are now negotiating the modalities and procedures for compliance. Among the key issues are the following:

Purpose, Principles and Nature of Compliance Procedures

Functions of the Compliance Committee

Institutional Arrangements

Scope of Work of the Compliance Committee

Initiation of Proceedings before the Committee

Process to be followed by the Committee

Measures and Outputs at the Committee’s Disposal

Identification of Systemic Issues (ie beyond individual party issues)

Sources of Information for the Committee’s Work

Relationship with and Accountability to the Conference of the Parties (COP)

Who Carries out Reviews of the Modalities and Procedures

Secretariat Support for the Work of the Committee

A particular source of complexity in the negotiations is that the compliance modalities are being negotiated in parallel with the overall Paris Rulebook. Not only is there uncertainty about the nature of substantive rules on mitigation, emissions trading, and finance, but as discussed elsewhere in this special issue, the Paris Agreement contemplates a comprehensive 5 year review cycle that consists of parties reporting on their efforts to implement their NDCs, review of those efforts and reports, a global stocktake of progress against the long term goals, and revised NDCs. Even though the Paris Agreement clearly provides for a compliance system, it seems that some parties would prefer to subsume the compliance effort under the work of the transparency framework and the global stocktake.

To be effective, the compliance process under Article 15 will have to find its place within the Paris Climate Regime, both substantively (i.e. its role with respect to mitigation, emissions trading, finance, adaptation, technology, capacity building, coordination among institutions and connection among commitments) and in relation to the overall institutional structure being developed. The aim must be to complement the bottom up NDC approach with appropriate top down elements to help close the significant ambition gaps that currently exist in all key areas of the Agreement. A key contribution of the compliance process will be its relative independence and its resulting opportunity to impartially assess compliance with individual and collective commitments. This will help inform the broader discussion about the effective implementation of the Paris Agreement.

There is much to be resolved in developing an effective, efficient, and fair compliance process under Article 15. Key among them are effective triggers for the compliance process, an adequately broad mandate to be able to effectively facilitate implementation and promote compliance with all important commitment in the Paris Agreement whether binding or not and whether made by a developed or a developing country Party. The inclusion of “implementation and compliance” and the language of “the provisions” in Article 15(1) clearly enables the process to deal with all important commitments. Any differentiation between binding and non-binding and differentiation among parties should focus on applying appropriate measures in the circumstances. This can be assured through an appropriate combination of general direction to the committee and appropriate discretion. A fair and effective process will depend on the full implementation of the commitment to transparency and on procedural fairness to any Party being investigated.

It will be important to keep the focus of the committee on technical issues and to avoid having it dragged into political issues and equity judgement calls. This seems particularly important and tricky when it comes to the assessment of systemic issues. The committee will be well advised to stick to assessing whether the collective goals are on track and to technical assessments of the causes, without being seen to point fingers at any particular party or group of parties unless they have clearly failed to meet their individual commitments. This means the focus should be on commitments that allow for a technical assessment of compliance or implementation, rather than political consideration or judgements. Committee has the potential to make an important contribution to progress on collective commitments, particularly those that involve all parties or a clearly identified group of parties, as this can be assessed without getting to any assessment of who within the group of parties needs to do more. Having said this, to ensure the committee has the full opportunity to pursue important systemic issues as they arise, the triggers for systemic issues should include the CMA, the Article 13 outcomes, and the committee based on its own assessment of reports generated under the PA.

It will be important to properly integrate the work of the committee with Article 13 and 14. Not much can be said about the details of how to ensure this is done until there is more clarity on the review process under Article 13 and the global stocktake under Article 14. However, it is clear that the compliance committee can benefit greatly from the work proposed under Article 13, and its conclusions and recommendations have the potential to be important for the global stocktake.

For binding commitments, it will be important for the committee to make a finding of compliance/non-compliance and to apply other appropriate consequences including a compliance action plan, and other non-punitive measures. It would be helpful for negotiators to recognize in this regard that compensatory measures are different from punitive measures, and that for markets under Article 6 to function, it may be important to include compensatory measures in the toolbox of the compliance committee. Special access to support should be limited to LDCs and SIDS.

 

Conclusion

It is too early to say whether the compliance system is finding its place among the many institutions and processes under the Paris Regime. There are still many issues unresolved within the compliance negotiations, and many more issues to be worked out on other key aspects of the Paris rulebook, such as the reporting, transparency and global stocktake provisions. In the absence of significant progress in other areas in advance of COP 24, negotiators may be well advised to develop the modalities and procedures for compliance at a fairly high level, and to leave some of the detail for the compliance committee to work out after there is more clarity on how other aspects of the Paris Agreement, including Articles 6, 13 and 14, will be implemented. As a result, while this year’s COP should be an important milestone in the development of the Paris compliance system, it is unlikely to mark the end, as much of the detail will inevitably have to be finalized later, either by the CMA or by the compliance committee once it is established.

 

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

 

Professor Doelle specializes in environmental and energy law, with a focus on climate change and environmental assessment processes. He has been involved in the practice of environmental law in Nova Scotia since 1990 and in that capacity served as drafter of the NS Environment Act and as policy advisor on the Canadian Environmental Assessment Act (1992). Professor Doelle was a non-governmental member of the Canadian delegation to the UN climate change negotiations, 2000 – 2006. He continues to follow the negotiations as an official observer.  Professor Doelle was a visiting scholar at the Environmental Law Center of the IUCN in Bonn, Germany, 2008. He co-chaired a strategic environmental assessment on tidal energy in the Bay of Fundy from 2007 to 2008, served on the Lower Churchill Joint Federal-Provincial Review Panel from 2009 to 2011, and co-chaired a provincial panel on aquaculture from 2013 to 2014.

Teaching

Professor Doelle’s teaching within the law school has involved courses in environmental law, energy law, climate change and contract law. He has also been involved in interdisciplinary teaching outside the law school, most notably at the College of Sustainability, where he co-taught a course on Humanity in the Natural World from 2009 to 2012.