By Jacqui Fetchet
Jacqui attended the 2015 United Nations Climate Change Conference (COP21) in Paris.
The United Nations Framework Convention on Climate Change (UNFCCC) has an ambitious objective to reduce greenhouse gas emissions and limit global warming by two degrees Celsius by the end of the century. Key themes underpin the UNFCCC process and determine its effectiveness: sovereignty and common but differentiated responsibility (CBDR); target setting and intended nationally determined contributions (INDCs); and compliance and review. The compliance and review process will be central to the Paris Agreement, even if the mechanism is established at a later negotiation. The system of compliance and review must be anchored and enabled by strong text in the Agreement referencing transparency, compliance, regular review and capacity building. To achieve the objectives of the UNFCCC, the compliance and review system needs to be robust, promote enduring ambition for the future, and have the commitment and buy-in of all countries.
1. The Paris Agreement needs to apply a more relevant and accurate application of sovereignty and CBDR to reflect state differentiation and responsibilities.
2. If INDCs are not legally binding in a new agreement, targets must be accountable through a comprehensive compliance system.
3. The Paris Agreement must include a strong compliance system by reference to:
- Transparency of reporting, assessment and commitments
- Regular review periods to track progress against commitments
- Capacity building to limit differentiation in implementation and reporting
- A hybrid approach of facilitative and enforceable compliance.
The objective of the United Nations Framework Convention on Climate Change (UNFCCC) is to stabilise “greenhouse gas concentration levels in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. The Cancún Agreements, recognised this would require keeping the global average temperature rise below two degrees Celsius. To achieve these objectives and address the challenges of climate change, ‘collective action’ is required. Instruments of the UNFCCC have introduced different approaches to target setting over time through the Kyoto Protocol and intended nationally determined contributions (INDCs). The effectiveness of these targets, and the UNFCCC itself, depends on the system of compliance and review embedded in the Convention and its instruments, as adopted by the Parties.
This paper takes a conceptual, historical and solutions-focused analysis of compliance and review within the UNFCCC. Part one explores key concepts that influence state action: sovereignty and common but differentiated responsibility (CBDR); target setting and INDCs; and compliance and review. Part two examines the history and issues of compliance and review in the UNFCCC. Part three provides solutions for how the Paris Agreement can deliver a strong system of compliance and review. Embedding a robust, collectively agreed and enforceable compliance and review mechanism poses a great challenge; however, the consequences of failure to do so would undermine the UNFCCC and be catastrophic for the planet’s future.
Pt 1: Key concepts
Sovereignty and common but differentiated responsibility are the foundations of state action
The UNFCCC (also ‘the Convention’) sets the international legal framework for combating climate change and is subject to international law principles. Core to the Convention are: sovereignty, a fundamental principle in the UN Charter and a tenet of Westphalian statehood; and CBDR, first acknowledged in international environmental law in the 1992 Rio Declaration and adapted to multilateral environmental agreements (MEAs) such as the UNFCCC and the Kyoto Protocol. The operationalisation of these concepts has drawn intense debates around differentiation as it applies to state commitments and action.
Sovereignty is central to international law. Sovereignty is the ‘supreme legal authority’ of states to make and enforce their own laws, suggesting non-intervention by other states or the international community in the domestic affairs of a state. States have a duty to adhere to the obligations arising from international treaties and sovereignty is enshrined in the UNFCCC. The proscriptive approach of the Kyoto Protocol was seen to be ‘overly taxing’ on state sovereignty, meaning future approaches will need to give greater self-determination to states. INDCs are an attempt to achieve this. Important, but beyond this paper, is the question of whether sovereignty should even apply to ecological, environmental and climate change issues that are by their nature borderless, and do not respect state-centric sovereignty.
Common but Differentiated Responsibilities
The responsibilities and contributions of different states are at the nexus of debate in UNFCCC negotiations since its inception. While there is no universally agreed definition, CBDR is ‘soft law’ that recognises the “historical differences in the contributions of developed and developing States to global environmental problems, and differences in their respective economic and technical capacity to tackle these problems”.
CBDR suggests that developed countries should lead climate change action and developing countries can ‘follow suit’ as they develop economically and socially. This has led to CBDR being culpable for perpetuating the developed-developing country divide and, to a point, the ongoing political ‘impasse’ in negotiations, rather than a tool for burden sharing and equity as it was intended. CBDR remains relevant as a core principle, but if it is to be applied in future agreements it will have to be ‘reframed and refined’ to ensure global targets are inclusive, collective and achieve real emissions cuts.
Target setting and intended nationally determined contributions commit states to action
The UNFCCC to date has focused on mitigation targets to achieve the emissions reduction objective, which will be the focus of this paper. Target setting under the Convention has taken opposing approaches:
- ‘top-down’ imposed targets under the Kyoto Protocol first commitment period
- ‘bottom-up’ state-determined targets through INDCs as a result of the Cancún Agreements.
These approaches have influenced the compliance and review system and each approach is not without flaws.
The top-down Kyoto Protocol approach could be considered an imposition on sovereignty, though states are free to determine their domestic policy mechanisms to reach targets. The legally binding nature should make it more effective for reducing emissions in Annex I countries. The exclusion of major non-Annex I emitters undermines its potential.
The compliance and enforcement system is relatively underutilised and limited by the Annex system. Depledge & Yamin consider the system of annexation to be “the regime’s greatest weakness”. This is because it institutionalised CBDR to the extent that key emerging and transition economies were excluded (i.e. China, India and Brazil). These countries developed rapidly and carbon-intensively during the 1990s and first commitment period, leading to significant increases in global emissions. Another weakness was the ease of withdrawing at the threat of non-compliance (i.e. Canada). There was evidently need to refine and strengthen the approach to target setting to make it more inclusive, with greater state buy-in.
Intended Nationally Determined Contributions
Parties to the UNFCCC have pursued an alternate method of target setting following the first commitment period of Kyoto and the failure of Copenhagen to secure a legally binding future climate agreement. The Durban Platform (ADP) was tasked with developing a new ‘protocol, another legal instrument or an agreed outcome with legal force’ by 2015, including actions to enhance mitigation efforts by Parties. At Warsaw, Parties were invited to submit INDCs, domestic contributions to meet the UNFCCC emission reduction objective.
INDCs take a bottom-up approach that emerged at Cancún, and evolved to be broad reaching (beyond mitigation) and flexible (all countries submitting targets, activities and policy measures). The submission of ‘state-developed’ rather than imposed contributions meant a more palatable approach to differentiation, greater ownership by states and limited impact on sovereignty. Target setting has the potential to be ambitious, but ambition will only be as strong as the compliance and enforceability measures that align with it.
Review and compliance set enforceability and accountability measures
Review and compliance has the capacity to give strength to, or weaken, agreements within the Convention. MEAs lack the punitive judicial compliance mechanisms of international trade or criminal law and sovereignty in enforcement remains relevant. The benefits of a strong compliance mechanism are to enhance trust among Parties, support effective implementation and protect against the impacts of free riding. Challenges to the efficacy of the Convention are whether review and compliance should be standardised across Parties and what system of enforcement or resolution for non-compliance should be introduced.
Like target setting, the approach to compliance has divided between top-down, rules-based international law and bottom-up, flexible state-sovereignty. Tanzi & Pitea suggest that the administrative procedure requirements under MEAs align with a system of formalized rules, as established under the Kyoto Protocol. In contrast, Chayes & Chayes favour a ‘co-operative, problem-solving approach’ to encourage compliance, aligning with the facilitative style adopted after Cancún. Setting a compliance agenda is evidently as contentious and politicised as the inextricable target setting process. Therefore, Parties need to agree on an approach that is appropriately flexible, discretionary yet enforceable.
Pt 2: Compliance and Review - History & issues
Compliance and review has taken an enforcement, facilitation and assessment approach under the UNFCCC
The UNFCCC uses a variety of strategies under international law to create a system of compliance and enforcement and give effect its legally binding instruments. The strategies include: coercive measures, such as sanctions or loss of privileges; transparency methods, such as monitoring, reports and civil society participation; and positive incentives, such as technical and financial assistance, access to technology and training. These strategies are integrated in a system of compliance that helps maintain a dynamic balance between divergent Parties’ interests and the legal rules in the instrument, to ensure the viability of the instrument in a changing international context.
The UNFCCC has established two main systems of compliance and review:
- The Kyoto Protocol takes an enforcement and facilitation approach
- The Cancún Agreement introduced a facilitative, two-pronged approach known as International Assessment and Review (IAR) for developed countries and International Consultation and Analysis (ICA) for developing countries (non-Annex I).
The Kyoto Protocol applies global administrative law to set monitoring, reporting and review requirements for Parties, grounded in notions of accountability, transparency and review. Articles 5, 7 and 8 of the Kyoto Protocol establish an approach to gathering and communicating performance review information to an independent body that is somewhat ‘sophisticated’ in comparison with other MEAs.
The Kyoto Protocol appears comprehensive, but relies on data gathering and centralised, institutional analysis for accountability. However, as Huggins suggests, the review process assumes the ‘completeness and reliability’ of data in national inventories. The quality and consistency of this reporting process therefore contributes directly to the efficacy of the UNFCCC and its ultimate objective – to reduce greenhouse gases.
Compliance is assessed centrally or self-regulated by states. If non-compliance is found, the matter will be sent to the Compliance Committee to resolve and allocated to the Facilitative or Enforcement Branches, based on the compliance procedure required. The Enforcement Branch has a quasi-regulatory role; the Facilitative Branch gives advice and facilitates implementation for all Parties. The Facilitative Branch is also tasked with taking into account CBDR as part of promoting compliance among Annex I Parties.
However, when non-compliance occurs actions are lightly punitive and do little to deter ongoing non-compliance. The Facilitative Branch can give ‘soft’ recourse, such as advice or recommendations. Options for the Enforcement Branch include requesting a ‘compliance action plan’ if reporting obligations are breached, suspension from participation in the flexibility mechanisms and deductions from future emissions allocations for exceeded emissions targets.
The practical experience of compliance has been more ‘politicised’ than punitive and expert review teams (ERTs) have struggled to maintain impartiality, with only eight matters facing non-compliance referral to the Compliance Committee during the first commitment period. As Huggins argues, ‘politicisation’ is partly due to the expectation of ERTs to respect state sovereignty and international diplomacy. This leads to negative outcomes for the reliability and consistency of the review process and an inability for ERT reviewers to be neutral as they are often involved in the negotiation and reporting tasks of their home states.
IAR and ICA emerged in the Cancún Agreement as tools to increase the transparency and review of mitigation targets of developed countries (IAR) and of mitigation commitments by developing countries (ICA). The distinction recognises CBDR between Annex I and non-Annex I countries. The first stage involves review of biennial reports submitted by the countries. The second stage involves a ‘multilateral assessment’ (IAR) or ‘facilitative sharing of views’ (ICA) conducted by the Subsidiary Body for Implementation, based on the first stage reports and reviews. This review process builds on the existing reporting and review guidelines, processes and experiences established under Kyoto and aims to promote the comparability of efforts among all countries.
The IAR and ICA processes are facilitative and have no mandate to issue findings or penalties for non-compliance. The focus is on increasing the transparency of mitigation, including implementation (IAR), actions (ICA) and their effects. Similar to the compliance mechanism in the Kyoto Protocol, the Cancún approach lacks substantive punitive measures in practice. As Oberthür identifies, this is further weakened by two shortfalls: “(1) the ability to address and follow up on identified problems…and (2) the institutional capacity to address problems in depth”. While the Cancún approach has attempted to move away from the rules-based procedures of Kyoto, it seems many barriers to operational effectiveness remain.
Significant issues limit the effectiveness of compliance and review
The compliance and review system under the UNFCCC is analytically and procedurally evolved, yet its effectiveness has been highly politicised and few punitive cases have arisen. In practice, three issues limit the effectiveness of existing processes: capacity; differentiation; and enforceability.
Technical and financial capacities are essential to reliable and accurate reporting in the review process. Van Asselt et al. assess that “most technical review processes have been hindered by resource limitations and capacity constraints,” which will continue to pose a challenge for review systems in the future. The Kyoto facilitative approach focuses on capacity building to improve technical reporting, yet technical capacity, particularly for developing countries will be determined by financial capacity.
The main mechanism for differentiation in the Kyoto Protocol is through Annex I and non-Annex I countries, each with a different process of target setting, review and reporting. Targets remain inherently differentiated between developing and developed countries, a divide that this paper and many commentators argue is too binary, out-dated and has lead to a bulwarked impasse in negotiations. Analysis by van Asselt et al. shows that some methods of differentiation can be applied between and within groupings of developed and developing countries (whether in Kyoto Annexes or other divisions). This could include differentiation in target setting for mitigation or adaptation, reporting, finance, technology transfer or review to encourage co-operation and drive collective ambition, rather than the ‘you first’ approach that has pandered progress in a race to the bottom not the top.
The UNFCCC and Kyoto Protocol have had limited success in driving compliance, suggesting better enforcement, or legally binding commitments are required. Rajamani observes that under these instruments, “the setting of a standard, a ﬁnding of compliance or non-compliance, and the resulting visiting of consequences [are] problematic tasks” due to the discretionary language of the text. The draft text of the Paris Agreement implies language similarly couched. It introduces a process that is “facilitative, non-punitive, non-adversarial and non-judicial,” suggesting greater emphasis on facilitation than enforcement. Such language impacts effectiveness because interpretations are broad and context-specific, and have resulted in procedural breadth that drags out the enforcement process and creates options for states to avoid punitive action.
The efficacy of the agreement will be determined by the strength of the language of the compliance elements. If this framing is weak or ineffectual, it is likely a return to the non-committal, discretionary and contextual language that has undermined compliance and action within the UNFCCC so far will occur.
Pt 3: Compliance and review – Solutions
Compliance and review must be transparent, reviewable, encourage enduring capacity building and take a complementary approach that is both facilitative and enforceable. The strength, durability and robustness of how compliance is incorporated into the agreement are central. The Paris Agreement will seek flexibility as a priority to meet the differentiated capacities, targets, responsibilities and needs of all Parties. But will too much flexibility make it toothless, weak or unenforceable?
Compliance and review need to work in a complementary way to address the inherent challenges of sovereignty and CBDR that remain in the UNFCCC and pursue collective ambition through target setting, review and compliance. To achieve this, some key features must be included in the Paris Agreement:
1. transparency – of reporting, assessment and commitments
2. regular review periods – to track progress against commitments
3. capacity building – to limit differentiation in implementation and reporting
4. facilitative and enforceable compliance – through a hybrid approach.
The ADP draft text from the October 2015 final negotiation and drafting session in Bonn includes reference to each of these elements, as articles or in text. Whether the language achieves these goals will be determined in the final agreement and fought out at Paris.
A strong system of transparency can play a fundamental role in fostering and enabling ambition. Deprez et al. state: “By generating, reviewing, and disseminating information on countries’ mitigation progress, the transparency of implementation system plays a critical role in building the foundations on which this trust in collective action can grow.” In this way, transparency can act as the nexus between targets, compliance and review to drive ambition, prevent ‘back-sliding’ and finally drive the pursuit of a ‘race to the top’ towards which the UNFCCC process has lagged for two decades.
Transparency can also incorporate core principles in an adaptive way. It can address sovereignty by encouraging ‘peer review’ by other Parties or fostering self-reporting by states with adequate capacity. It can incorporate CBDR by facilitating Parties to adjust their self-determined targets in-line with comparative states, while facilitating knowledge-sharing and capacity building between developed and developing states. Such an approach recognises the centrality of these principles but applies them in a way that responds to changing economic and political contexts.
Transparency relates to differentiation to some extent. Compliance and review processes should be consistent and applied to all Parties, taking account of their capacities, to ensure transparency and political feasibility. Differentiation of commitments, or targets, reflects the principle of CBDR and further differentiation is not required at the level of compliance. However, future differentiation may result in convergence as review processes for developed and developing states become increasingly similar. The current ADP text suggests a transparency framework that is ‘robust’, applies to all Parties that may be self-differentiated and builds on existing arrangements. The Paris Agreement should establish a common framework that enables future convergence for all Parties toward the same requirements for review and compliance.
Regular review periods
Both the UNFCCC and the Kyoto Protocol provide for a review of the adequacy of mitigation commitments. Regular review periods, or ‘cycles of contributions’ are a key mechanism for raising ambition. Cycles of contribution refer to the timeframe for Parties to regularly schedule future commitments.
Collective ambition can be used as a tool to complement individual efforts and enhance environmental effectiveness towards the UNFCCC objective. Building on the IAR/IAC approach from Cancún, this could incorporate a ‘facilitative examination’ or peer review process where other countries could review and inquire as to state-based progress, and potentially share knowledge on lessons learned from implementation. This would work towards achieving ‘collective action’ and encourage more meaningful ‘buy-in’ of Parties in a competitive, yet collaborative effort to reach mitigation goals.
To achieve a form of this ‘collective ambition’, Morgan et al. propose two approaches:
- Automatic increases in emissions reduction to be scheduled at regular intervals into the Paris Agreement, with the rate scheduled and agreed to in advance
- Regular ‘strengthening’ of commitments to determine future commitments through a meeting or peer review by other Parties based on the current commitment, suggesting an extension of the INDC process.
In this way, reporting and review processes can be a mechanism for inclusivity to push real ‘collective action’.
To increase accountability, time frame and requirements of review should be established in the Paris Agreement. According to Deprez et al., “depending on the approach, an appropriately designed cycle of contribution can create dynamism and shared expectations of continued, stronger collective action.” The ADP draft text suggests review periods will be every five years, and submissions promote biennial reporting of progress and updates. If negotiation processes can be more efficient and less deadlocked than the past, five year review periods seem appropriate and achievable – the increasing impacts of climate change show there is no alternative but to act and raise ambition as quickly as possible.
The operationalisation of CBDR is illustrated in emphasis on ‘national circumstances’ and ‘special capabilities’ across the MEAs and the ADP draft text. The Durban Agreements introduced finance, technology transfer and capacity building in the decision to institutionalise assistance to developing countries based on their special circumstances. Capacity building is crucial to ensure developing countries can set commitments or actions and conduct monitoring, reporting and review to ensure goals are met.
The effectiveness, transparency and accountability of review processes rely on some sort of technical expertise. Three issues, or opportunities, are evident in capacity building:
- Technical reviews can be, and are, increasingly combined with ‘Party-to-Party interactions’ (i.e. multilateral assessment under IAR and the facilitative sharing of views under ICA). This can encourage knowledge sharing, trust and transparency between Parties, but the reliability of this approach and its capacity to drive ambition as expected, remain to be seen.
- Technical reviews can be ‘streamlined’ to limit overlap between review processes and address technical and financial constraints. This could allow consistency in reporting, centralise knowledge and data and create a more efficient process of review for Parties and compliance bodies.
- Technical resources and capacity can be incorporated into technology transfer or finance commitments of developed countries to provide complementary support to domestic reporting efforts in developing countries. This practical sharing of skills will enable better participation of developing countries in the Convention and allow other finance flows to be redirected in the economy.
Capacity building is essential to ensure CBDR better reflects current dynamics and facilitates collective action through more efficient flows of resources from developed to developing economies. As Joffe et al. state the lack of sufficient human, technical and financial resources has hindered developing countries from achieving the full potential in the shift to both a low carbon and resilient economy. To collectively address climate change, this divide needs to be addressed. The current ADP text suggests capacity building could be facilitative and led by country-ownership of needs, with a focus on vulnerable developing countries. Effectiveness of addressing the capacity divide will be determined by the extent of financial flows to countries with the greatest need.
Facilitative and enforceable compliance
In terms of targets, it is unlikely that INDCs will be legally binding in the Paris Agreement. The efficacy of INDCs will be determined by the strength of the compliance mechanism, which is likely to be established in the text of the agreement itself. As Torney & Fujiwara write, “commitments and compliance could be seen as the two sides of one coin” suggesting a legally binding agreement in Paris will drive strong compliance, even if commitments are not enshrined.
The ADP has options for embedding a compliance mechanism in the Paris Agreement that facilitates and/or enforces compliance. Options for the function are:
- An enforcement branch for developed countries (to review compliance of commitments) and a facilitative branch for developing countries (to facilitate action on mitigation)
- A compliance and an implementation forum (independent expert panels like the ERTs)
- A compliance mechanism for developed countries (to address non-compliance of commitments) and a facilitative mechanism for developing countries (to facilitate implementation and transparency of actions).
Inevitably, the compliance mechanism will incorporate elements of enforcement in Kyoto and facilitation in Cancún to introduce both top-down and bottom-up aspects to compliance. Bodansky & Diringer define this as an “emerging hybrid approach [that] seeks to balance national flexibility and international discipline to produce greater ambition.” This hybrid model of climate governance encourages broad, lateral participation of states to define their own commitments, while transparency and accountability are driven by international rules to encourage action.
There is caution to be had when embracing flexibility and state-centred approaches – it risks the laggard, minimal effort approach of Kyoto and needs the right binding mechanisms to drive competitiveness, compliance and ambition.
Analysis of the compliance and review system under the UNFCCC must take account of core concepts that determine, or limit, its effectiveness: sovereignty, CBDR and the target-setting approaches within the Convention. The implementation of compliance and review reveals the challenges, issues and limitations to the current process. The UNFCCC process has evolved to deliver a hybrid top-down and bottom-up compliance approach of facilitation and enforcement, in an attempt to maintain accountability, political feasibility and effectiveness. A modified version of this flexible, quasi-rules based approach looks to be adopted in the Paris Agreement.
Full Footnotes and Bibliography can be found here or by copying the following URL into your browser: http://bit.ly/Jacqui-Fetchet