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A Bottom-Up Compliance Mechanism for the Paris Agreement Chinese Journal of Environmental Law � (�0�7) 69–98 brill.com/cjel A Bottom-Up Compliance Mechanism for the Paris Agreement Alexander ZAHAR Luo Jia Distinguished Professor, Research Institute of Environmental Law, Wuhan University [email protected] Abstract The article discusses the development of the Paris Agreement’s provision on a com- pliance mechanism contained in Article 15 of the agreement. There is a risk that a compliance mechanism set up as a separate body within the new regime will be du- plicative and dysfunctional. Keeping state parties to their Paris Agreement obliga- tions can be achieved, instead, through the elaboration of pre-existing and already well-developed reporting-and-review processes under the United Nations Framework Convention on Climate Change (UNFCCC). In the past, these have generated sufficient pressure on states to maintain compliance with their UNFCCC obligations, and are likely to have the same effect for the new treaty. The fact that the Paris Agreement does not impose any onerous new obligations on states is a reason to continue to rely on existing processes. I show that the separate compliance body envisaged by the Paris Agreement has no obvious way to improve on the diffuse ‘compliance mechanism’ cur- rently operating under the UNFCCC. The most efficient approach to ‘Paris Agreement compliance’, therefore, would be to delay implementation of the Article 15 mechanism and allow current practices, suitably modified, to continue for as long as their perfor- mance is satisfactory. Keywords Paris Agreement Article 15 – compliance mechanism – United Nations Framework Convention on Climate Change – Kyoto Protocol – Kyoto Protocol Enforcement Branch – Kyoto Protocol Facilitative Branch – ‘enforcement’ versus ‘facilitation’ – ‘top-down’ versus ‘bottom-up’ approaches to mitigation obligations and compliance © koninklijke brill nv, leiden, ���7 | doi �0.��63/�468604�-��340005Downloaded from Brill.com09/26/2021 03:36:26PM via free access 70 Zahar 1 A Placeholder for a Compliance Mechanism Article 15 of the 2015 Paris Agreement makes provision for the creation of a compliance mechanism. According to the Decision of the Conference of the Parties to the UNFCCC adopting the Paris Agreement (‘COP Decision’), the mechanism is to consist of twelve persons ‘with recognized competence in relevant scientific, technical, socioeconomic or legal fields’.1 The purpose of the mechanism led by this group of twelve is ‘to facilitate implementation of and promote compliance with the provisions of this Agreement’.2 The mechanism is to be ‘facilitative in nature and function in a manner that is transparent, non- adversarial and non-punitive’.3 In addition, it ‘shall pay particular attention to the respective national capabilities and circumstances of Parties’.4 Neither the Paris Agreement nor the COP Decision develop the compliance mechanism of Article 15 beyond what I have just stated. The matter was taken up for discussion at the UNFCCC’s Conference of the Parties in November 2016, in Marrakech, but the mechanism was not further developed at that COP. A decision developing Article 15 is not expected before the end of 2017 or perhaps the end of 2018. There is still time to reflect on Article 15, before state parties commit to a particular approach.5 Even before the Paris Agreement materialized, scholars had begun to ponder the form of a compliance mechanism for the post-2020 regime. Commentary on this picked up after the Paris COP in December 2015. The presumption has been that a separate compliance mechanism is likely to be necessary and im- portant for the success of the new treaty.6 This stance has not been unanimous, 1 UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement, FCCC/CP/2015/10/Add.1 (2015), para 102. The author is grateful to the journal’s two referees for their detailed comments on earlier versions of this article. 2 Paris Agreement, Article 15.1. 3 Ibid. Article 15.2. 4 Ibid. 5 The parties to the Paris Agreement were until recently still at the stage of compiling party views on how to develop Article 15; see Ad-Hoc Working Group on the Paris Agreement, Informal Note by the Co-Facilitators: Agenda item 7: Modalities and Procedures for the Effective Operation of the Committee to Facilitate Implementation and Promote Compliance Referred to in Article 15.2 of the Paris Agreement (14 November 2016), available at <https://unfccc.int/files/ meetings/marrakech_nov_2016/in-session/application/pdf/apa_item_7_informal_note.pdf>. 6 See, for example, Michael MEHLING, ‘Enforcing Compliance in an Evolving Climate Regime’, in Jutta BRUNNÉE, Meinhard DOELLE, and Lavanya RAJAMANI (eds), Promoting Compliance in an Evolving Climate Regime (Cambridge University Press 2012) 214; Lavanya RAJAMANI, ‘Developing Countries and Compliance in the Climate Regime’, ibid. 393–394; Chinese Journal of EnvironmentalDownloaded Law from Brill.com09/26/2021 1 (2017) 69–98 03:36:26PM via free access A Bottom-Up Compliance Mechanism for the Paris Agreement 71 for there are some who have questioned the role of a compliance mechanism in the context of a ‘bottom up’ regime—which is the way the Paris Agreement tends to be characterized.7 Those in the doubting group emphasize the poten- tial for state-on-state ‘peer pressure’ to act as a significant constraining influ- ence on non-compliance. They suggest that if transparency of state action and an opportunity for communal questioning of states about their actions could be maintained, it may be enough to sustain an acceptable level of compliance.8 The doubting group is only half right, in my view. It is right in saying that peer pressure among states can be a significant force in the climate change regime. However, little is ever said about how this pressure on states actually works. A lack of engagement with the mechanics of the exerted pressure is a weak- ness in the literature, which this paper attempts to correct. Of greater concern is the doubting group’s suggestion that a (top-down) compliance mechanism may be unsuited to the Paris Agreement because the treaty has a bottom-up Lavanya RAJAMANI, Jutta BRUNNÉE, and Meinhard DOELLE, ‘Introduction: The Role of Compliance in an Evolving Climate Regime’, ibid. 11; and Harro VAN ASSELT et al., Maximizing the Potential of the Paris Agreement: Effective Review in a Hybrid Regime (Stockholm Environment Institute 2016) 1 and 6. 7 Eg Laurence BOISSON DE CHAZOURNES, ‘Editorial on Paris Agreement’ (2016) 27(2) European Journal of International Law 253, 254 (‘[The NDCs of the Paris Agreement are a] bottom-up approach … in contrast to an approach whereby targets are imposed from “above” in a treaty. The Kyoto Protocol has become a symbol of this failed top-down approach, and, hence, the idea of a new approach has since prevailed, creating an opportunity for another normative model’); and Meinhard DOELLE, ‘The Paris Agreement: Historic Breakthrough or High Stakes Experiment?’ (2016) 6(1–2) Climate Law 1, 20 (‘The Paris Agreement is an experi- ment in a bottom-up, managerial, transparency-building, and norm-building approach to global cooperation. The shift in approach is a reasonable gamble in light of the failed efforts over the past two decades to implement the top-down approach under the Kyoto Protocol’). 8 See Daniel BODANSKY, ‘The Legal Character of the Paris Agreement’ (2016) 25(2) Review of European Community and International Environmental Law 142, 149; idem, ‘The Paris Climate Change Agreement: A New Hope?’ (2016) 110(2) American Journal of International Law 288, 291 (‘peer and public pressure’); Harro VAN ASSELT and Thomas HALE, Reviewing Implementation and Compliance under the Paris Agreement: Arizona State University Work- shop Background Note (2016), available at <https://conferences.asucollegeoflaw.com/work shoponparis/files/2012/08/Reviewing_implementation_compliance_background_ note_310316.pdf>, 3, Table 1 (where the claim is made that ‘An expert review process flagging problems with implementation can help facilitate compliance without the intervention of a compliance mechanism’; however, the authors give no argument in support of this claim); and VAN ASSELT et al. (n 6) 2 (‘opportunities to apply political pressure’). Chinese Journal of Environmental Law 1 (2017) 69–98Downloaded from Brill.com09/26/2021 03:36:26PM via free access 72 Zahar design.9 This would be a superficial justification for an otherwise correct conclusion. Granted that there is a pleasant symmetry in having a bottom-up approach to mitigation kept in check by a bottom-up approach to compliance; however, the Paris Agreement is no more bottom-up in its design than the Kyoto Protocol, for whose second commitment period Annex I parties pledged essentially the same nationally determined mitigation targets which they had appended to the UNFCCC’s Copenhagen Accord. What could be more bottom- up than that? The relevant difference between the Paris Agreement and the Kyoto Protocol, which explains why a bottom-up approach to compliance is adequate for the former but not for the latter, is that the Paris Agreement lacks a feature which the Protocol enjoyed and which enabled the Protocol’s top- down compliance mechanism to at least run on one piston: namely, it had legally binding mitigation targets. Therein lies the critical difference, and it has nothing to do with any divergence between the two treaties’ approaches to the method of generation of mitigation targets. I will advance two arguments in favour of delaying the operationalization of Article 15. However, before coming to those arguments, in a section that serves as a conceptual backdrop, I will outline why an ‘enforcement’ function for a compliance mechanism under Article 15 is completely excluded. Some read- ers may need no convincing of this—the article’s wording itself suggests that a compliance mechanism with an enforcement function has been rejected by the parties to the Paris Agreement. Here is the text of Article 15: 1.
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