May 2018. Climate Law and Policy.
Article 15 of the Paris Agreement is a short one. It describes in two sub articles the compliance mechanism of the whole agreement.
However, as can be expected, the preparation for and attempt to finalise a text in anticipation of, the rule book is the arena of many a heated debate.
Yet one of the calmer streams is that of compliance, and not due to any agreement. It is assumed by many that the compliance mechanism of the Paris Agreement will be a weak one. While discussions still rage, politely, regarding the potential outputs of the mechanism, its linkages with other mechanisms and with other articles within the Paris Agreement, the capacity to trigger it, and so on, the bulwark against its effectiveness is accepted. That bulwark is a simple phrase, one which appears in the whole agreement twice only, the second of which is in subsection 2 of article 15, is ‘…non-adversarial and non-punitive…’. These words hold much resonance precisely because their meaning is never unpacked, always assumed, they are rarely discussed. But they are constantly used.
Whether in the submissions by the parties to the APA dealing with compliance, or through the discussions in the committee as expressed in the informal note, these words are mostly used as a gateway, determining acceptable outcomes or legitimate triggers. They are never applied as their context would indicate: as interpretative instruments.
Given the unusual language of the Paris Agreement- half legal document with a mixture of imperative and aspirational, harder and softer law, preamble and convention with no border, the usually ethereal international obligations become even harder to read. So, parties tend to fall back on their past assumptions- and often read the Paris Agreement in comparison with the Kyoto Protocol. This raises fears of hard compliance and, dare it be mentioned, enforcement.
The opposite reading to this is also not unexpected: As the Paris Agreement is a child of compromise and was passed with tears after a long session of negotiations, with many concessions, it is to be expected that it will not have teeth. Therefore, the compliance mechanism is to be read in the softest, most limiting terms possible.
It is along these lines that the negotiating groups have aligned themselves. Either seeking fuller enforcement and demanding greater powers to ensure compliance, or fearing the burdens associated with compliance and therefore seeking to limit the committee.
There is, however, a third option. One which takes into account both positions and stems from the unique structure and birthing pains of the Agreement. One that also comes very simply from a contextualised reading of this phrase.
Two facts immediately emerge: The Paris Agreement is not, cannot be, and probably will not be, Kyoto. Nor will it have the sanctioning capacity of CITES. The Compliance Mechanism will not have an enforcement branch. On the other hand, ‘Non-Adversarial and Non-Punitive’ were not meant to exclude measures. Read within their context they should be used to provide aid and facilitate, to interpret authority, direct it, not pre-emptively limit it.
The term, in other words, is meant to be used as an Ex-Post lens, not as an Ex-Ante bouncer. Yet the common perception is that the words are used to stop things from happening, not interpret actions that need to happen. This is enforced by two additional elements other than the party interpretation: the perception and position of civil society, and the ‘house of cards’ structure of the negotiations. Along with the above fear of Kyoto, and alignment of the parties, these all limit what could be a fruitful, useful international mechanism.
Civil society, most blatantly in the form of a WRI PACT paper1, pushes for sanctions which are, by definition, punitive. Phrases such as ‘the suspension of rights and privileges’, no matter the accompanying text and good intentions, tend to reinforce previously held positions of hardliners on either side of the debate. These are not only a tactical misjudgement or faults of diplomacy, but a misunderstanding of the point made above: the Paris agreement is not the Kyoto protocol. It is a tool meant to be used in a different, subtle, and equally effective way. As a general mechanism, it creates a balance of self made ambitions, complex reporting channels and varied support instruments. When imagined in the form of the Kyoto enforcement, the compliance committee ceases to function within the framework of Paris, it plays on different forms of power and triggers that simply do not, and were not meant to, exist.
This touches on the negotiations themselves. While the compliance stream is a (relatively) stable one, it cannot be denied that it lies at the centre of a house of cards. Mechanisms such as market mechanisms in article 6 under discussion with SBSTA, the enhanced transparency mechanism under the APA and more cast an eye to the type of compliance requirements that may be initiated, while the compliance stream awaits, to an extent, some of the decisions in those streams before agreement can be achieved.
Be it the human tendency to pick sides or the complexity of a truly global mechanism, the Paris Agreement rulebook, and the lynchpin in it, if to mix metaphors, depend to an unrealised extent on the compliance committee. Unrealised because of the assumption of weakness. This assumption of weakness stems from misleading ideas on its form. These ideas are, in part, due to a misinterpretation of how ‘non-adversarial and non-punitive’ are to be read.
Spinning the above on its head, from the negative to the positive, would perhaps allow the following chain of reaction to take place: If ‘non-adversarial and non-punitive’ were to be read as an interpretation of action, not a gateway to it, then more action would be permitted. And while this would be facilitative in nature, it would give the committee a modicum of influence. This would mean that the true form of the committee, its potential, distinct from Kyoto, would be better understood. And then, this stream would be less placid. Because there would be a significance to it that would include all elements of the agreement. But instead of limiting its power, discussions would centre around the safeguards needed to prevent the facilitative element of the committee from being a vehicle for ‘queue jumping’ for funding and assistance.
Belatedly such conversation may be beginning to bloom, which indicates at least that the role of the committee as a facilitator may be starting to be acknowledged. May Bangkok see this stream of negotiations more turbulent, and the other streams calmer as a result.
1http://www.wri.org/sites/default/files/mechanism-facilitate-implementation-promote-compliance-paris-agreement-design-options.pdf accessed 14/5/18.