What was not said in the Paris Agreement

Prof David Campbell

Professor of Law, Lancaster University Law School

The Government has drawn an extremely positive picture of an ‘historic global climate deal [by which] the whole world has signed up to play its part in halting climate change’ in the account it has given to the public of the draft ‘Paris Agreement’ reached at the recent Paris Climate Change Conference. The gist of all the Government’s public accounts is conveyed by a press release issued on 12 December 2015 at the conclusion of the Conference (see also EU Commission press release, 12 December 2015). This positive picture seems to justify continuation with the UK’s domestic policy of drastic and costly – these adjectives are not strong enough – decarbonisation in order to ‘mitigate’ global warming by reduction of global greenhouse gas emissions. But, very disturbingly, the Government’s accounts are so misleading that they completely undermine public consideration of the issues. The Paris Agreement does not merely fail to ground the mitigation policy, it ensures that the policy will fail. Two principal points should be made.

First, the Government will lead the public to believe that an agreement to set a limit to warming of 2°C or less has been reached. But Art. 2 of the draft Agreement in fact provides only that it ‘aims to strengthen the global response to the threat of climate change … including by the holding the increase to well below 2°C’. This is an expression, not of setting a concrete limit, but merely of an aspiration to set such a limit at some unspecified point in the future. The Government’s account typically is expressed in a deplorably equivocatory and convoluted language which fails to convey this vital point, indeed it obscures it.

What weight can be put on this aspiration? Neither 2°C nor any other specific target has ever been agreed at the UN climate change negotiations. To the best of my knowledge, the 2°C target was itself devised by the EU Commission and first put forward at a meeting of the Council of the European Union in 1996 in order to push forward UN negotiations which even then were giving ‘concern’ because they were ‘not advancing as needed to achieve [their] intended objective’. The diplomacy principally of the UK and the EU and the collaboration of the UN Climate Change Secretariat has since led to the 2°C target being mentioned in various ways in subsequent UN negotiations, including in the ‘Copenhagen Accord’. But it has never been actually agreed and it is not agreed now. The Government was therefore obliged to make it clear to the public that an expression of mere aspiration is all that has been reached after more than a quarter century of UN negotiations! To speak of the Paris Agreement now driving ‘us forward on our path to limiting global temperature rises to below’ 2°C without mentioning this history of failure at all is also deplorable.

Secondly, the Paris Agreement gives even greater force to what has, even more than failing to agree a target, completely undermined the mitigation policy since the agreement of the Framework Convention in 1992. It is not, despite general belief, that no emissions agreement was reached in the Convention or in its 1997 Kyoto Protocol. An agreement was reached, but, far from being an agreement to reduce global emissions, it was an agreement to allow their unbounded increase. Under the ‘common but differentiated responsibilities’ strategy without which the Convention would never have been agreed by the newly industrialising countries such as China and India, those countries, classified amongst the developing countries, are given explicit permission to give economic growth priority over emissions reduction. And as the emissions of China itself are enough to prevent any global reductions (with India about ten years behind), this has implicitly but more than sufficiently meant the mitigation policy was impossible from the outset. No emissions caps have ever been set on the developing countries, and the emissions of those countries has been the principal reason that global emissions have, not merely not been reduced, but grown enormously over the period of the UN negotiations.

In the Paris Agreement, this disastrous position is actually strengthened by being made explicit. In discussions of climate change policy, a crucial distinction has been drawn between ‘absolute’, i.e. actual, emissions reductions and other forms of reductions, principally in carbon intensity, which do not necessarily lead to absolute reductions and are, indeed, perfectly consistent with a great growth in absolute emissions. Art 4(4) of the Paris Agreement confines ‘absolute emissions reduction targets’ to the developed countries and distinguishes them from the ‘mitigation efforts’ the developing countries might undertake, which will not involve absolute reductions. This puts on an explicit basis the permission to the developing countries not to refuse make reductions and will be the legal basis of continued immense growth in China’s and India’s emissions.

It is therefore in one sense understandably difficult for the Government to give a clear account of the Paris Agreement. Pursuit of its domestic policy of decarbonisation will be completely fruitless because the Government has long internationally agreed, and has now even more strongly agreed again, that global emissions will grow. But unilateral reduction of the UK’s 2% of global emissions is simply senseless in light of China’s and India’s emissions trajectories. It is as if the UK was emptying a bath with a ladle whilst China was filling it with a bucket, with India standing behind getting its own bucket ready. Persistence in such a policy is possible only of the public does not understand the issues, and the Government’s account of the Paris Agreement will do a very great deal to ensure that this is the case.

A version of this article was first published in The Solicitors Journal on 9th February 2016, and is reproduced by kind permission. The original publication is available to read here.

David Campbell is a Professor of Law at Lancaster University Law School and an Editor of Social & Legal Studies and author of ‘How UK climate change policy has been made sustainable‘ (2015) 24(3) Social & Legal Studies 399-418  He has previously studied the foot and mouth disease outbreak of 2001.

The image used is in the public domain.

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