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 (PA), especially to limit global warming ‘to well below 2°C’ and possibly 1.5°C above pre-industrial levels.
‘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. Such a translation – or ‘individuation’ – is not only of political but also of legal importance, given that considerable voices assume that the PA’s long-term temperature goal creates a collective obligation. While 2°C arguably constitute the desired minimum mitigation outcome, the 1.5°C goal forms a mere obligation of conduct. 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.
An ‘individuation mechanism’ 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.
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). However, despite some improvements resulting from the supplementary 2018 Paris Rulebook, the current rules are insufficient to incentivise states to closely align state-level ambition with the collective temperature goal. The PA especially contains only vague self-differentiation criteria and does not ensure appropriate comparability, reliability and reflectiveness of NDCs, so that these tend to be self-centred and uncoordinated. The transparency framework and compliance mechanism are unable to compensate these deficits in the bottom-up architecture. The rules governing the global stocktake which is to take place every five years, by contrast, offer some potential to use it as an individuation mechanism. This would, however, only lead to ex-post adjustments of individual state contributions and depend on the political willingness of states.
While the PA so far falls short of its collective goals in practice, both the Framework Convention (UNFCCC) and the Kyoto Protocol (KP) at least partly effectively achieved their key targets. This did, however, not result from a convincing individuation mechanism. On the contrary, the UNFCCC’s predominantly bottom-up approach and the KP’s top-down emission reduction targets – unlike the PA – display a strong bifurcation between developed and developing countries and thus address only a small share of global emissions.
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. It relies upon a comprehensive legal framework to ensure adequacy, coherence and achievement of its ambitious collective and member state-level climate goals. As the EU approach – balancing top-down and bottom-up elements of individuation – has enabled it to so far mostly effectively meet its collective targets, 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. While it is upon EU member states themselves to decide how to achieve these, the regulatory framework also envisages corrective action plans and a critical dialogue with the European Commission on individual mitigation action. Further lessons from the EU include enhanced individuation over time, transparency, depoliticisation of the process, and well-designed flexibilities.
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. To this end, a scientific body should determine and publish a fair-share range of individual ambition in line with the collective temperature goal, preferably based on the criteria of mitigation capacities, environmental integrity and intergenerational equity. Another independent body should then regularly assess the adequacy of current individual contributions in that light. Where states wish to deviate from its recommendations, they should publicly state their reasons to facilitate institutional, public and political scrutiny and peer pressure. 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. It could thus well complement a strengthened global stocktake.
Furthermore, states still struggling with capacity limitations should be allowed to use limited flexibilities. 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. 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.
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.
-  Paris Agreement (opened for signature 22 April 2016, entered into force 4 November 2016) 4/2017 UKTS 9365.
-  PA art 2(1)(a).
-  Ibid; United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties serving as the meeting of the Parties to the Paris Agreement Decision -/CMA.3 Glasgow Climate Pact (13 November 2021) Advance unedited version , , -, - available at <https://unfccc.int/documents/310497> accessed 27 December 2021.
-  T Etty et al, ‘The End of a Decade and the Dawn of a Climate Resistance’ (2020) 9 Transnational Environmental Law 1, 7; A Zahar, ‘Collective Obligation and Individual Ambition in the Paris Agreement’ (2020) 9 Transnational Environmental Law 165, 179-180, 187-188.
-  Zahar, ‘Collective Obligation’ (n 4) 165, 167.
-  Pointing e.g. to the mandatory wording of article 3 PA (‘As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts (…) with the view to achieving the purpose of this Agreement as set out in Article 2.’ (emphasis added)).
-  A Huggins and M Karim, ‘Shifting Traction: Differential Treatment and Substantive and Procedural Regard in the International Climate Change Regime’ (2016) 5 Transnational Environmental Law 427, 438; A Huggins, ‘The evolution of differential treatment in international climate law: Innovation, experimentation, and “hot” law’ (2018) 8 Climate Law 195, 204; Zahar, ‘Collective Obligation’ (n 4) 169-174; G Winter, ‘Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation‘ (2020) 9 Transnational Environmental Law 137, 144. Similarly, J Pickering et al, ‘Global Climate Governance Between Hard and Soft Law: Can the Paris Agreement’s “Crème Brûlée” Approach Enhance Ecological Reflexivity?‘ (2019) 31 Journal of Environmental Law 1, 23.
-  As already the wording of article 2(1)(a) PA suggests (‘pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’) (emphasis added). See also L Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’ (2016) 65 ICLQ 493, 496-497 (differentiating between a ‘“well below 2°C” target and aspirational 1.5°C goal’ (emphasis added)); M Rouxel, ‘The Paris Rulebook’s Rules on Transparency: A Compliance Pull?’ (2020) 14 CCLR 18, 20 (regarding the similarly framed obligation of individual states in view of aiming to achieve their NDC in PA art 4(2)).
-  UNFCCC Glasgow Climate Pact (n 3) -, -.
-  Zahar, ‘Collective Obligation’ (n 4) 167.
-  See also Rajamani (n 8) 493-494; C Voigt and F Ferreira, ‘”Dynamic Differentiation”: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement’ (2016) 5 Transnational Environmental Law 285, 291.
-  See especially PA art 4.
-  See e.g. UNFCCC Conference of the Parties Decision 4/CMA.1 Further guidance in relation to the mitigation section of decision 1/CP.21 attached as an addendum to the Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the third part of its first session, held in Katowice from 2 to 15 December 2018 (19 March 2019) UN Doc FCCC/PA/CMA/2018/3/Add.1  read in conjunction with Annex I  and [7(b)] (which makes it mandatory for each state to explain how it considers its NDC to be ‘fair and ambitious’ including a reflection on equity and how it contributes to the collective temperature-, global peaking- and greenhouse gas (GHG) neutrality-objectives); Rouxel (n 8) 28, 34.
-  Zahar, ‘Collective Obligation’ (n 4) 179, 182-188.
-  See e.g. PA art 4(3) (which merely refers to the general notions of ‘highest possible ambition’ and ‘common but differentiated responsibilities and respective capabilities’ (CBDR-RC) ‘in the light of different national circumstances’); M Doelle, ‘Assessment of Strengths and Weaknesses’ in D Klein et al (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP 2017) 379, 385; J Friedrich, ‘Global Stocktake (Article 14)’ in D Klein et al (eds), The Paris Agreement on Climate Change: Analysis and Commentary (OUP 2017) 330.
-  H Winkler et al, ‘Countries start to explain how their climate contributions are fair: more rigour needed‘ (2018) 18 International Environmental Agreements 99, 103, 112; Rouxel (n 8) 33, 35, 38; Zahar, ‘Collective Obligation’ (n 4) 168-169, 179-184, 188.
-  PA art 13.
-  PA art 15.
-  Rouxel (n 8) 20, 23, 35, 38; H van Asselt, ‘International climate change law in a bottom-up world’ (2016) 26 Questions of International Law 5, 9; Zahar, ‘Collective Obligation’ (n 4) 185-186.
-  PA art 14; UNFCCC Conference of the Parties serving as the meeting of the Parties to the Paris Agreement Decision 19/CMA.1 Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.21 annexed as an addendum to the Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the third part of its first session, held in Katowice from 2 to 15 December 2018 (19 March 2019) UN Doc FCCC/PA/CMA/2018/3/Add.2.
-  PA art 14(2).
-  Zahar, ‘Collective Obligation’ (n 4) 186-188; A Zahar, ‘Collective Progress in the Light of Equity Under the Global Stocktake’ (2019) 9 Climate Law 101, 101, 112-113, 116-118, 121.
-  Zahar, ‘Collective Obligation’ (n 4) 186. See also Friedrich (n 15) 321; M Peeters, ‘Article 14 The Global Stocktake’ in G Van Calster and L Reins (eds), The Paris Agreement on Climate Change: A Commentary (Edward Elgar Publishing 2021) 331.
-  See n 3 above; UNFCCC Conference of the Parties serving as the meeting of the Parties to the Paris Agreement Nationally determined contributions under the Paris Agreement Synthesis report by the secretariat (26 February 2021) UN Doc FCCC/PA/CMA/2021/2 , , .
-  D Bodansky, J Brunnée and L Rajamani, International Climate Change Law (OUP 2017) 133; B Mayer, The International Law on Climate Change (CUP 2018) 42.
-  See e.g. United Nations Framework Convention on Climate Change (opened for signature 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC) art 4(1)(a) and (b) (pursuant to which all Parties shall periodically communicate national GHG inventories and develop national programmes containing mitigation and adaption measures); Mayer (n 25) 37-38; J Peel, ‘Climate Change’ in A Nollkaemper et al (eds), The Practice of Shared Responsibility in International Law (CUP 2017) 1022.
-  Kyoto Protocol to the United Nations Framework Convention on Climate Change (opened for signature 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (KP) art 3(1) read in conjunction with Annex B.
-  See e.g. PA art 4(2) (which contains no differentiation (‘Each Party’)); Voigt and Ferreira (n 11) 295, 297; Bodansky, Brunnée and Rajamani (n 25) 223; B Lahn, ‘In the light of equity and science: scientific expertise and climate justice after Paris’ (2018) 18 International Environmental Agreements 29, 30.
-  See e.g. UNFCCC art 4(2)(a) (obliging only developed countries and countries in transition to becoming a market economy (Annex I-Parties) to limit their GHG emissions and report in detail on their mitigation measures with the internationally determined but non-binding aim ‘of returning individually or jointly to their 1990 levels’ (UNFCCC art 4(2)(b)); KP art 3(1) read in conjunction with Annex B (imposing binding ambitious quantified emission reduction targets only on developed countries); Rajamani (n 8) 494, 507, 509; Voigt and Ferreira (n 11) 287, 290, 295; Mayer (n 25) 39-40.
-  See also M Peeters and N Athanasiadou, ‘The continued effort sharing approach in EU climate law: Binding targets, challenging enforcement?’ (2020) 29 RECIEL 201, 209-210.
-  See especially Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013  OJ L156/26 (Effort Sharing Regulation or ESR); Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, amending Regulations (EC) No 663/2009 and (EC) No 715/2009 of the European Parliament and of the Council, Directives 94/22/EC, 98/70/EC, 2009/31/EC, 2009/73/EC, 2010/31/EU, 2012/27/EU and 2013/30/EU of the European Parliament and of the Council, Council Directives 2009/119/EC and (EU) 2015/652 and repealing Regulation (EU) No 525/2013 of the European Parliament and of the Council  OJ L328/1 (Governance Regulation); Regulation (EU) 2021/1119 of the European Parliament and of the Council establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’)  OJ L243/1 (ECL).
-  See e.g. ESR preambular recital 2, art 1, 4(1) in conjunction with Annex I (setting out binding 2030 emission reduction targets for individual member states in the ESR sectors ranging from -0% (e.g. for Bulgaria) to -40 % (e.g. for Sweden)); Peeters and Athanasiadou (n 30) 201-203, 210; K Kulovesi and S Oberthür, ‘Assessing the EU’s 2030 Climate and Energy Policy Framework: Incremental change toward radical transformation?’ (2020) 29 RECIEL 151, 157.
-  EU member states, for instance, decide themselves how they wish to achieve their reduction targets under the ESR and are to set out their measures in their integrated national energy and climate plans (NECPs) to be submitted under the Governance Regulation; see Governance Regulation art 3, 4(a)(1)(i), Annex I Part 1 (2.1.1.), (3.1.1.)(i.); ESR preambular recital 23; Kulovesi and Oberthür (n 32) 153; Peeters and Athanasiadou (n 30) 205.
-  European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2020 report on the State of the Energy Union pursuant to Regulation (EU) 2018/1999 on Governance of the Energy Union and Climate Action’ (Commission Report) COM (2020) 950 final 2; European Commission, ‘Kick-starting the journey towards a climate-neutral Europe by 2050 – EU Climate Action Progress Report November 2020’ (Commission Report) COM (2020) 777 final 6-10.
-  ESR art 1, 4 in conjunction with Annex I and Commission Implementing Decision (EU) 2020/2126 of 16 December 2020 on setting out the annual emission allocations of the Member States for the period from 2021 to 2030 pursuant to Regulation (EU) 2018/842 of the European Parliament and of the Council  OJ L426/58.
-  See n 33 above.
-  See e.g. ESR art 8(1); Peeters and Athanasiadou (n 30) 207.
-  See e.g. ESR art 8(3) (pursuant to which the European Commission is entitled to issue an opinion on the corrective action plan which the respective member state ‘shall take utmost account of’); Governance Regulation art 9(2) and (3), 29(5)(b), 30(1), 34; Peeters and Athanasiadou (n 30) 207-208.
-  See e.g. ECL preambular recital 30, art 4(1) (requiring the EU and its member states to ‘prioritise swift and predictable emission reductions’), 4(3)-(5) (requiring the European Commission to develop an intermediate 2040 target and an indicative EU GHG emissions budget for 2030-2050). See also Kulovesi and Oberthür (n 32) 156; D Torney and R O’Gorman, ‘Adaptability versus certainty in a carbon emissions reduction regime: An assessment of the EU’s 2030 Climate and Energy Policy Framework’ (2020) 29 RECIEL 167, 175.
-  See e.g. ECL art 4(4) (laying the ground for a transparent quantification of an EU trajectory by the European Commission, which makes progress more measurable and adds to predictability for individual states and economic actors); Torney and O’Gorman (n 39) 174-176.
-  See e.g. ECL art 3 (establishing a European Scientific Advisory Board on Climate Change ‘as a point of reference for the Union on scientific knowledge relating to climate change by virtue of its independence and scientific and technical expertise’), 4(2)-(7); Torney and O’Gorman (n 39) 175.
-  See e.g. ESR art 4(2), 5-7, 8(1), 9(1), 11; Peeters and Athanasiadou (n 30) 205-206, 210.
-  See also Doelle (n 15) 378 (advocating an ex-ante assessment of NDCs to enhance ambition); Friedrich (n 15) 334 (arguing in favour of a similar dialogue as part of the global stocktake); Lahn (n 28) 41 (proposing to use science-based assessments to ‘enable (…) an informed conversation’); Zahar, ‘Collective Obligation’ (n 4) 181-182 (demanding discussions during the global stocktake based on an independent equity assessment). A first indication of a quantified collective interim goal can be found in Glasgow Climate Pact (n 3)  (recognising ‘that limiting global warming to 1.5 °C requires (…) reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around mid-century’).
-  See also United Kingdom Climate Change Act 2008 s 34 (entrusting an independent committee with the task of advising the government on carbon budgets for particular time periods); Lahn (n 28) 32, 34-37, 39; Mayer (n 25) 20-21; Zahar, ‘Collective Obligation’ (n 4) 181. A recently published draft of a new IPCC report already contains some examples of scientific recommendations on what (collective) action needs to be taken to meet the PA’s temperature goal; see e.g. R Allan et al, ‘Summary for Policymakers’ in V Masson-Delmotte et al (eds), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2021) 36, 40.
-  See also PA preambular recital 11 (briefly mentioning intergenerational equity); BVerfG Order of the First Senate of 24 March 2021 1 BvR 2656/18 (German Constitutional Court) , , , - (which – in a landmark judgment – derives an intertemporal perspective on climate action that necessitates more ambitious immediate action from article 20a of the German Constitution (Grundgesetz), stressing at the same time that currently there still are significant uncertainties in calculating a national emission budget based on the PA’s temperature goal, inter alia, due to the absence of agreed-upon criteria); Voigt and Ferreira (n 11) 288; Bodansky, Brunnée and Rajamani (n 25) 27; Mayer (n 25) 29-31; Lahn (n 28) 32, 35-36, 39-40; Peel (n 26) 1015.
-  Doelle (n 15) 387. See also Governance Regulation art 9(2) and (3) (on a similar review of draft NECPs at EU level); Rouxel (n 8) 34-35; Lahn (n 28) 36-37, 39.
-  See also ECL art 7(3)(b) (which obliges EU member states that choose to deviate from Commission recommendations on improving the consistency of individual ambition to provide their reasons for doing so); Governance Regulation art 34(2)(b); Peeters and Athanasiadou (n 30) 208; J Brunnée, ‘Enforcement Mechanisms in International Law and International Environmental Law’ in U Beyerlin, P Stoll and R Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academia (Martinus Nijhoff Publishers 2006) 8 (who frames such a ‘justificatory discourse’ as a typical element of managerialist approaches).
-  See also Winkler et al (n 16) 100 (arguing that an equity approach that combines ‘bottom-up assessment and top-down allocation’ would fit in well with the PA’s hybrid architecture); Doelle (n 15) 378, 387; Friedrich (n 15) 337; Zahar, ‘Collective Obligation’ (n 4) 181.
-  See also Zahar, ‘Collective Obligation’ (n 4) 186-188; Friedrich (n 15) 337.
-  See also Rouxel (n 8) 26 (emphasising the interlinkage between flexibility and the perceived equity of rules).
-  The safety reserve pursuant to ESR art 11 offers an example of a so-designed flexibility at European level; Peeters and Athanasiadou (n 30) 206; European Commission, ‘Effort sharing 2021-2030: targets and flexibilities’ (Climate Action) <https://ec.europa.eu/clima/policies/effort/regulation_en> accessed 1 September 2021.
-  See also C Voigt, ‘The Compliance and Implementation Mechanism of the Paris Agreement’ (2016) 25 RECIEL 161, 167; C Holz, S Kartha and T Athanasiou, ‘Fairly sharing 1.5: national fair shares of a 1.5°C-compliant global mitigation effort’ (2018) 18 International Environmental Agreements 117, 118, 131; Climate Action Tracker, ‘Comparability of effort’ (Climate Action Tracker) <https://climateactiontracker.org/methodology/comparability-of-effort/> accessed 11 June 2021.
-  Unless expressly indicated otherwise, this blog post therefore refers to the state of the law as of early September 2021.