Special Issue: 5th Anniversary of the Paris Agreement
A lot has happened since the triumphal adoption of the Paris Agreement five years ago, which I had the chance to attend as an observer for the University of Toronto and the Centre for International Sustainable Development Law. One thing has remained unchanged, however: the expectation of stakeholders around the world that the treaty provisions adopted and the national policies announced translate into action. The youth participants of Mock COP26, for instance, recently called for governments to be held accountable for what they actually do to prevent further large-scale climate harms, as opposed to what they say they will do.
The Paris Agreement does not contain the word “accountability,” but comes close at Article 4(13): “Parties shall account for their nationally determined contributions” to the global response to climate change (also known as the NDC targets). Will states implement this obligation in the bookkeeping sense of reporting how much carbon pollution is emitted each year, what targets have been set, and what actions have been taken toward these targets? Or will the obligation “to account” be interpreted in line with the Oxford English Dictionary’s definition of being “accountable” as the possibility of being called to explain, justify, and answer for something? The Paris Agreement’s fifth anniversary provides a fitting occasion to draw on my forthcoming doctoral dissertation to explore what meaning international accountability for climate actions has assumed in the practice of Parties since 2015.
Accountability or Sanctions?
Based on my personal experience, state negotiators often become uncomfortable when presented with the word “accountability,” the use of which has surged since the 1960s to the point where it acts as a “cultural keyword” that may “shape our understanding of politics and governance.”[i] Negotiators tend to equate accountability with political or economic sanctions, as did Grant and Keohane in their famous definition,[ii] and quickly counter that consensus around adopting the Paris Agreement was reached on the condition that it would be implemented in a facilitative, non-intrusive, and non-punitive way (e.g. Article 13(3)).
Nonetheless, despite the climate regime’s clear cooperative orientation, a growing body of legal scholarship describes the Paris Agreement’s potential to influence the course of international affairs in terms of accountability. For instance, Bodansky, Brunnée, and Rajamani observe that “bottom-up substance to promote participation (contained in parties’ NDCs) is combined with a top-down process to promote ambition and accountability (contained in the agreement’s internationally-determined provisions on progression and highest possible ambition, accounting, transparency, stocktake, and compliance).”[iii] Similarly, Carazo and Klein argue that the “nature of the NDCs opens up new opportunities to hold the parties accountable to the Paris Agreement, including to their obligation to pursue domestic mitigation measures.”[iv] More recently, Voigt and Gao concluded that the Paris Agreement architecture “puts accountability at the core of international climate governance.”[v]
This academic interest suggests the need for a more inclusive concept of “accountability” to refer to the practices that the Paris Agreement’s 189 state Parties (pending the USA’s return) may be engaged in. As a result, I adopt a broader three-pronged definition: opportunities for states to justify their implementation actions, assessment of these actions (by actors that may include independent experts, other states, treaty-based bodies, and even stakeholders) in light of the Paris Agreement’s norms, and the potential for these actors to apply consequences as a result.[vi] Under this definition, consequences can be positive or negative (e.g. praising or shaming), they can be stern or facilitative in tone (e.g. findings of fact or offers of assistance), they can be one-time or ongoing in nature (e.g. a one-off review report or an offer to help in creating an action plan), and they can be backward or forward-looking. Most importantly, depending on the circumstances, accountability interactions may either be successful at transforming how a government and its population take climate actions or fail at doing so altogether.
One of the most important developments in the climate regime since 2015 has been the marathon negotiation of the modalities for the many implementation mechanisms contained in the Paris Agreement. Often dubbed the “Katowice Rulebook,” these 2018 decisions give a more definitive shape to the treaty’s approach to accountability, which only defines the Enhanced Transparency Framework, Global Stocktake, and Implementation and Compliance Committee (Articles 13, 14, and 15) in very broad strokes.
While the tremendous multilateral effort necessary to adopt almost all of the necessary modalities must be celebrated (market mechanisms and timeframes for NDC targets being two important exceptions), an analysis from the perspective of state accountability also reveals significant gaps. For example:
- The modalities for Technical Expert Review under the Enhanced Transparency Framework are essentially limited to whether Parties’ reports include all the required information and follow the applicable methodology. Although the Paris Agreement calls this review to promote the treaty’s “effective implementation,” experts may not engage with the “adequacy” of Parties’ levels of climate finance or of their actions to achieve their NDC targets (let alone the adequacy of those targets themselves in light of the global climate challenge).
- The Facilitative Multilateral Consideration of Progress (also under the Enhanced Transparency Framework) will allow Parties to question each other regarding whether they are on track to achieve their NDC targets (an important avenue for accountability), but the modalities exclude questions about whether those targets themselves are fair and ambitious. Furthermore, the modalities preclude the participation of stakeholders as initially proposed by some Parties. Both design features reveal an important missed opportunity for what Kramarz and Park call “first tier” accountability, that is answerability for the goals that have been set, as opposed to how these are being pursued.[vii]
- The modalities limit the outputs of the Global Stocktake to collective examinations of progress on mitigation, adaptation, and support, and explicitly bar any “individual Party focus” or “policy prescriptive” conclusions. Furthermore, although stakeholders may make written submissions, they are also excluded from the interactive parts of this collective examination. Again, both features limit state accountability, even though the Stocktake’s core mandate is to “inform Parties in updating and enhancing” their climate actions.
- The modalities also constrain how the Implementation and Compliance Committee may engage with Parties in order to “promote compliance” with the Paris Agreement. For example, the committee may unilaterally approach a Party that fails to submit an NDC or one of its reports. However, it may not engage with a Party that is failing to achieve its NDC or that has only provided limited climate finance unless that Party self-refers to the committee. One may speculate, as a result, that the committee’s primary focus will be Parties that lack the capacity to implement the Paris Agreement, rather than political will.
To be clear, continuous review of whether Parties have submitted an NDC and the associated reports, and of whether such submissions contain all the required elements, does not amount to an accountability gap per se. Quite on the contrary, holding Parties accountable for their reporting obligations is key for all Parties and stakeholders to understand where the global response to climate change stands at any given time. However, taking accountability seriously also implies understanding which provisions of the Paris Agreement are not covered by the treaty’s accountability-generating potential.
As my four examples suggest, Parties’ accountability for their obligations to pursue NDC targets (Article 4(2)) and to provide climate finance (Article 9(1)) are essentially limited to the Facilitative Multilateral Consideration of Progress. Furthermore, determining whether a given Party’s NDC is adequate in light of the goals of highest possible ambition, fairness, and progression over time (Article 4(3)) suffers from an almost complete accountability gap; a Party’s self-referral to the compliance committee or the assessments conducted by stakeholders (e.g. NGOs and research institutions) offer only two limited exceptions. Because of their high ad hoc nature, however, it is unclear how questions raised during the Facilitative Multilateral Consideration of Progress, Party self-referrals to the committee, and stakeholder accountability could spark the kind of race to the top currently needed.
In this sense, while this year sets the Paris Agreement’s accountability mechanisms in motion, their potential to impact state behaviour should be scrutinized with care. The Katowice Rulebook is heavily focused on reporting obligations and highly deferential to national sovereignty over climate policy. Indeed, the modalities come closer to a bookkeeping approach to accountability than to one that enables Parties, treaty-body experts, and stakeholders to interpret and affirm the treaty’s key substantive provision –what Doelle has called a “norm-building approach to global cooperation.”[viii]
The primary focus of the Paris Agreement’s modalities on accounting for climate actions, rather than accountability, is a source of concern from the point of view of engaging Parties in the implementation of the treaty’s core substantive provisions.[ix] But all is not grim on the treaty’s fifth anniversary.
At the domestic level, a growing number of states are enshrining their NDCs in national law, thereby providing foundations for political and legal accountability processes that will likely quickly proliferate. At the international level, the Paris Agreement architecture offers certain avenues for a more substance-oriented approach to accountability that could be the object of heightened attention by practitioners and researchers, as well as eventual amendments to the Katowice Rulebook. I close with three examples:
- One avenue is for audacious Parties to play a leadership role during the Facilitative Multilateral Consideration of Progress by asking their peer’s hard questions about their mitigation actions, or even raising such questions about their own level of progress. Indeed, developing country negotiators are likely to weigh their desire to hold other countries accountable for the risk of damaging diplomatic ties or even jeopardizing access to climate finance. By contrast, there is an opportunity for other countries to act as “norm entrepreneurs”[x] by putting the questions of the highest possible ambition, fairness, and progress of NDC targets on the agenda.
- Another avenue is for the Global Stocktakes, starting in 2023, to deliver outputs that take a clear and replicable approach to inform Parties on how to upgrade their NDC targets. Unfortunately, as much cannot be said of the Talanoa Dialogue held in 2018. The Stocktake’s mandate to engage with equity and the best available science opens the door to creative ways of going beyond a purely global examination of progress, for instance through the identification of indicators, benchmarks, and best practices.[xi]
- The Implementation and Compliance Committee is mandated to identify systemic issues and to refer these to the Conference of the Parties (CMA) with its recommendations. Although reporting challenges are likely to arise on a systemic scale for Parties with capacity limitations, the committee could also be on the lookout for substantive implementation concerns. The current development of the committee’s Rules of Procedure offers an opportunity to anticipate how the committee could hold Parties to account in response to large-scale issues with the ambition and progression of NDCs such as those identified in UNEP’s Emissions Gap Report 2019.
In sum, even as the Paris Agreement turns five, the extent to which Parties are ready to be held to account is far from obvious. The Katowice Rulebook’s adoption at COP 24 was only possible because important concessions were made on all sides, as a result of which accountability for Parties’ substantive climate actions suffers from important weaknesses and gaps. Yet the flipside observation is equally important: the Paris Agreement’s accountability mechanisms are not only procedural in their focus. Albeit few and narrow, they do offer concrete opportunities for Parties to learn, change their positions, and mediate their outstanding disagreements regarding how to share the burdens and opportunities of climate action that only await to be seized.
* Christopher Campbell-Duruflé is a doctoral candidate and Pierre Elliott Trudeau Foundation Scholar 2016 at the University of Toronto. He was an accredited observer to COP 21 on behalf of the University of Toronto and of the Center for International Sustainable Development Law and has supported the delegation of Burkina Faso from COP 22 to COP 25. He wishes to thank his supervisor Jutta Brunnée, University Professor and Metcalf Chair in Environmental Law at the University of Toronto, for helpful comments on this post. Any shortcomings remain his.
[i] Melvin J. Dubnick, “Accountability as a Cultural Keyword” in Mark Bovens et al, eds, The Oxford Handbook of Public Accountability (New York, NY: Oxford University Press, 2014) at 30.
[ii] Ruth W. Grant & Robert O. Keohane, “Accountability and Abuses of Power in World Politics” (2006) 99 American Political Science Review 29.
[iii] Daniel Bodansky, Jutta Brunnée & Lavanya Rajamani, International Climate Change Law (Oxford, New York: Oxford University Press, 2017) at 214.
[iv] María Pía Carazo & Daniel Klein, “Implications for Public International Law: Initial Considerations,” in Daniel Klein et al., eds, The Paris Agreement on Climate Change: Analysis and Commentary (Oxford: Oxford University Press, 2017) at 404.
[v] Christina Voigt & Xiang Gao “Accountability in the Paris Agreement: The Interplay between Transparency and Compliance” (2020) 1 Nordic Environmental Law Journal 31 at 57.
[vi] Among others, I draw from Jutta Brunnée, “International Legal Accountability through the Lens of the Law of State Responsibility” (2005) 36 Netherlands Yearbook of International Law 21 and Mark Bovens, “Analysing and Assessing Public Accountability: A Conceptual Framework” (2006) 13 European Law Review 447.
[vii] Susan Park & Teresa Kramarz, eds, Global Environmental Governance and the Accountability Trap (Cambridge, Massachusetts: The MIT Press, 2019).
[viii] Meinhard Doelle, “The Paris Agreement: Historic Breakthrough or High Stakes Experiment?” (2016) 6:1-2 Climate Law 1 at 20.
[ix] Christopher Campbell-Duruflé, “Accountability or Accounting? Elaboration of the Paris Agreement’s Implementation and Compliance Committee at COP 23” (2018) 8 Climate Law 1.
[x] Martha Finnemore & Kathryn Sikkink, “International Norm Dynamics and Political Change” (1998) 52 International Organization 887.
[xi] See also: Alexander Zahar, “Collective Progress in the Light of Equity Under the Global Stocktake” (2019) 9:1-2 Climate Law 101.