Translating collective international climate goals into adequate individual state contributions

Author Faculty of Business and Law | Posted on
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By Marcus Liedtke, member of the Environmental Law and Sustainability Research Group

The recent Glasgow climate conference (COP 26) once again highlighted that the international community falls far short of its ambitious collective goals set out in the Paris Agreement[1] (PA), especially to limit global warming ‘to well below 2°C’[2] and possibly 1.5°C above pre-industrial levels.[3]

‘Individuation’ as a central and urgent challenge in international climate change law

A crucial but often neglected question in this regard is how to effectively translate collective international mitigation goals into adequate individual state contributions in order to ensure as far as possible that the collective goal is met.[4] Such a translation – or ‘individuation’[5] – is not only of political but also of legal importance, given that considerable voices[6]  assume that the PA’s long-term temperature goal creates a collective obligation.[7] While 2°C arguably constitute the desired minimum mitigation outcome, the 1.5°C goal forms a mere obligation of conduct.[8] Whether COP 26’s attempts to encourage enhanced immediate collective and individual state action towards closing the emissions gap and limiting global warming ideally even to 1.5°C will prove successful in practice, remains to be seen.[9]

An ‘individuation mechanism’[10] to bridge the gap between individual state ambition and the collective temperature goal should strike a careful balance between competing demands both in terms of practical effectiveness and conceptual design, especially between bottom-up and top-down approaches.[11]

Shortcomings of the Paris Agreement

The PA, recognising different national circumstances, attempts to achieve its long-term objective primarily based on bottom-up nationally determined contributions (NDCs).[12] However, despite some improvements resulting from the supplementary 2018 Paris Rulebook,[13] the current rules are insufficient to incentivise states to closely align state-level ambition with the collective temperature goal.[14] The PA especially contains only vague self-differentiation criteria[15] and does not ensure appropriate comparability, reliability and reflectiveness of NDCs, so that these tend to be self-centred and uncoordinated.[16] The transparency framework[17] and compliance mechanism[18] are unable to compensate these deficits in the bottom-up architecture.[19] The rules governing the global stocktake[20] which is to take place every five years,[21] by contrast, offer some potential to use it as an individuation mechanism.[22] This would, however, only lead to ex-post adjustments of individual state contributions and depend on the political willingness of states.[23]

Previous approaches

While the PA so far falls short of its collective goals in practice,[24] both the Framework Convention (UNFCCC) and the Kyoto Protocol (KP) at least partly effectively achieved their key targets.[25] This did, however, not result from a convincing individuation mechanism. On the contrary, the UNFCCC’s predominantly bottom-up approach[26] and the KP’s top-down emission reduction targets[27] – unlike the PA –[28] display a strong bifurcation between developed and developing countries and thus address only a small share of global emissions.[29]

Lessons from the European Union

To resolve its joint contribution under the PA into member state commitments, the European Union (EU) has to conduct a similar exercise to the one required at global level.[30] It relies upon a comprehensive legal framework to ensure adequacy, coherence and achievement of its ambitious collective and member state-level climate goals.[31] As the EU approach – balancing top-down[32] and bottom-up[33] elements of individuation – has enabled it to so far mostly effectively meet its collective targets,[34] it can in many regards inspire an individuation mechanism for the PA. Under the Effort Sharing Regulation, for instance, the collective EU 2030 mitigation target enshrined therein is broken down into individual minimum state contributions.[35] While it is upon EU member states themselves to decide how to achieve these,[36] the regulatory framework also envisages corrective action plans[37] and a critical dialogue with the European Commission on individual mitigation action.[38] Further lessons from the EU include enhanced individuation over time,[39] transparency,[40] depoliticisation of the process,[41] and well-designed flexibilities.[42]

Designing an effective individuation mechanism

A key feature of an effective individuation mechanism for the PA should therefore be a regular constructive dialogue on the consistency of the states’ individual mitigation ambition with the long-term temperature goal and more precise collective interim goals.[43] To this end, a scientific body should determine and publish a fair-share range of individual ambition in line with the collective temperature goal,[44] preferably based on the criteria of mitigation capacities, environmental integrity and intergenerational equity.[45] Another independent body should then regularly assess the adequacy of current individual contributions in that light.[46] Where states wish to deviate from its recommendations, they should publicly state their reasons to facilitate institutional, public and political scrutiny and peer pressure.[47] The constructive dialogue would thereby largely preserve the bottom-up dynamic of the PA, while creating additional top-down incentives for more regular and objective equity reflections.[48] It could thus well complement a strengthened global stocktake.[49]

Furthermore, states still struggling with capacity limitations should be allowed to use limited flexibilities.[50] To encourage also developing countries to make an as ambitious contribution as possible and avoid delaying of mitigation action, these flexibilities should, however, only be available as a last resort.[51] This would especially require that the respective state cannot deliver its full adequate contribution otherwise, even after exhausting available support which developed countries should provide as part of their fair share.[52]

Conclusion

In conclusion, the most promising way to translate collective international mitigation goals into adequate individual state contributions in order to ensure as far as possible that the collective goal is met would be a constructive dialogue between states and an independent body based on suitable equity criteria. Further refinement of the international legal framework thus seems necessary.

This blog post builds upon the author’s LLM dissertation submitted in 2021.[53]

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