By Prof. Christina Voigt
The Importance of the Mechanism
A crucial factor for the success of the Paris Agreement will be ensuring parties’ compliance with their obligations. Negotiations of international treaties are generally challenged with striking a balance between sufficiently broad participation and high enough levels of commitment amongst the parties. The effectiveness of agreements necessarily hinges on ensuring that parties adhere to their commitments, thus compliance mechanisms are key. Such mechanisms can contribute to establishing trust and confidence amongst parties that others will honour their commitments, which in turn can positively impact participation and ambition. However, the form of compliance mechanisms can also negatively affect participation, as some states might be deterred by very stringent or punitive mechanisms.
For multilateral environmental treaties more generally, non-compliance is often grounded less in a lack of political will, and more in insufficient capacity and limited financial resources. While the drafters of the Paris Agreement were able to find consensus on the broad parameters for the workings of the envisioned implementation and compliance mechanism, its architecture, functions and procedures were left open and still need to be agreed on. Thus, setting up guidance for the compliance mechanism will be among the priorities and challenges for the first conference of the parties serving as the meeting of the parties (CMA) scheduled to take place in conjunction with the UNFCCC COP22 in Morocco. In this post, I would like to provide a brief overview of the design choice I propose for the compliance mechanism of the Paris Agreement.
Compliance in the Paris Agreement
During the negotiations, the drafters of the Agreement were faced with the challenge of integrating compliance mechanisms into a complex architecture of the agreement, including its instruments of nationally determined contributions (NDCs) and new processes for enhancing transparency and ratcheting up of ambition. This balance has arguably been achieved through the establishment of an in-house ‘mechanism to facilitate implementation of and compliance with the provisions of the agreement’ in Article 15; a considerable achievement in light of the convoluted negotiation history on this component of the Agreement which I have written about elsewhere. This provision together with paragraphs 102 and 103 of Decision 1/CP.21 also sets out the basic structural and functional elements. Parties, through Article 15, agreed to establish an expert-based committee with equitable geographical composition of its members. However, as mentioned above, most of the details have yet to be further fleshed out and negotiated.
Sketching a Proposal for the Compliance and Implementation mechanism
With an architecture vastly different to that of the Kyoto Protocol, the design of the Paris Agreement also calls for new thinking with respect to the modalities and procedures applying to its compliance mechanism. Compliance, in its legal sense, only applies to legally binding obligations, which in the Paris Agreement are limited to procedural obligations. However, provisions which are not legally binding, such as those, for example, relating to the substance of NDCs or the mobilization of climate finance, or some aspects of adaptation, can be addressed through facilitating implementation as part of the mechanism. As implied in Article 15, the mechanism that is put in place should fulfill two complementary functions: “facilitate implementation” and “promote compliance”.
The compliance element should be responsible for determining if parties are complying with their obligations and investigating reasons for possible non-compliance, in accordance with narrowly and specifically defined functions and competences. The mechanism needs to be facilitative and not punitive. It should serve to assist parties in clarifying uncertainties as to what is required, and provide meaningful recommendations on how to achieve compliance. Once such a procedure has been triggered, the committee may seek information on performance, request a compliance action plan if parties are not complying with their obligations, and, if the committee is not satisfied with a party’s performance, it could issue a declaration of non-compliance if the actions taken are insufficient to satisfy the requirements under the Agreement.
To facilitate implementation, the committee would primarily focus on the elements in the agreement that do not establish legally binding obligations. It could provide parties which seek its access voluntarily with a forum to discuss (domestic) challenges in, for example, implementing their mitigation contributions, providing clarifications and giving suggestions and recommendations, taking into account national capabilities and circumstances. This element of the mechanism should also be connected to the enhanced transparency framework. Where information shows that parties are making little progress in, for example, achieving their nationally determined contribution, the procedure for facilitating implementation could provide suggestions in how to access appropriate technical or capacity assistance. However, to avoid perverse incentives it would be important not to provide financial assistance.
Conclusion
The negotiators of the Paris Agreement were conscious of the challenges involved in creating an implementation and compliance mechanism, and mandated the Ad Hoc Working Group on the Paris Agreement to develop modalities and procedures to be adopted by the first Conference of Parties serving as the Meeting of Parties (CMA1). A well thought out implementation and compliance mechanism that assists parties in fulfilling their obligations and provides meaningful assistance for the implementation of the provisions of the agreement would be a crucial contribution to making the Paris Agreement an effective tool in responding to the threats posed by climate change. It would allow the international community to deliver above and beyond the action that could be contributed by individual countries alone.
For more information on the functioning of compliance mechanisms including the architecture, procedures, triggers and outcomes as well as the history and the content of the provision on compliance see Christina Voigt’s article “The Compliance and Implementation Mechanism of the Paris Agreement” (RECIEL 25(2) 2016).
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