Hi everyone, I didn't reply to Ron's initial inquiry, but for what it's worth, I would just add the following:
It's important to look beyond the very limited mechanisms available in international law to push for compliance with Paris in general, and the NDCs in particular. The NDCs and other non-legal commitments by States are increasingly being used in domestic litigation aimed at forcing States to reduce their emissions more rapidly, even though those commitments are not binding under international law. The most famous example is the Dutch Supreme Court's 2019 decision in the *Urgenda *case, but a large number of other decisions are either pending or have recently been decided. Many of these cases rely on rights-based arguments - that is, claims that the effects of climate change are harming specific rights protected by constitutional law or international human rights law, and that the failure of the government to protect against that harm violates its obligations.To be clear, these courts are not enforcing Paris directly. But the Paris NDCs (and other non-binding State statements and commitments) are being cited as informing the arguments and decisions, because these commitments make clear what States *themselves *have said is necessary (and feasible) for them to do. I want to emphasize that these rights-based cases are extremely unlikely to have success in either of the two biggest emitters, whose courts are unfriendly to this type of rights-based litigation. A serious effort was made in the United States in the *Juliana *litigation, but it was not successful. (In fact, the US Supreme Court is far more likely to block the Executive from addressing climate change than to order it to take action.) In much of the rest of the world, however, the idea of rights-based climate litigation is not some kind of scholarly fantasy; rather, it is turning out to be one of the most important tools civil society has to force governments to move more quickly. Of course, one important way that these cases can have that effect is by adding to the political pressures whose importance Detlef rightly emphasized. Cheers, John John H. Knox *Henry C. Lauerman Professor of International Law* Wake Forest University School of Law 1834 Wake Forest Road Winston-Salem, NC 27109 (336) 758-7439 On Tue, Nov 2, 2021 at 12:50 PM Detlef Sprinz <[email protected]> wrote: > Dear Ron, > > let me briefly add one point to the thoughtful responses you received. > > In a functional sense (and given the architecture of the PA, incl. the > selection of what went into which document, i.e., COP resolutions and the > PA as an appendix), it is mostly domestic politics that can „enforce“ the > PA, more specifically, domestic policies aligned (to some degree) with the > PA. In addition, domestic court cases and a few at the international level > are making some headway, but nothing beats a government being removed from > office for reasons of lack of ambition and/or lack of implementation by way > of a regular, fair, etc. election. > > Empirically, I see more and more evidence going in this direction, > starting from extremely low levels, that this is happening. Whether it all > adds up, in time, remains an open question. > > Best wishes, > Detlef > > On 2. Nov 2021, at 16:35, Ronald Mitchell <[email protected]> wrote: > > > > Predictably, I got excellent answers promptly from GEPED. Here are the > summarized results. Hope they are helpful to others as well. Thanks to > all, Ron > > > > *Sebastian Oberthur:* When I get these enquiries, I usually try to > clarify (1) that enforcement is usually not the strength of international > relations and (2) that “enforcement” in the strict sense is not the only > way to bring about compliance (or at least behavioural change towards it). > Then one can go on to the mechanisms usually built into modern MEAs and the > PA that support norm-abiding behaviour, including transparency and > “compliance”/”implementation” mechanisms (to hold countries to account, > including blaming and shaming, recommendations, etc., occasionally > including some sort of sanction). > > > > *Dale Jamieson:* there really is no legal enforcement. one of the things > that people don't seem to realize is all that paris did really was to > reaffirm, clean up, and in small ways revise the voluntary structure of the > FCCC (unlike say kyoto, or what the copenhagen negotiations aspired to. > [And attached piece] > > > > *Harro van Asselt:* As I’d expect you know, there are no enforcement > mechanisms as such under the Paris Agreement, but the question would also > be what would need to be enforced, as most obligations in the PA are > procedural. I guess that most journalists would be interested in whether > the targets in NDCs could be “enforced”, but that’s not possible through > any mechanism in the Paris Agreement. What remains then? > > - The PA *Article 15 compliance mechanism *is facilitative (i.e. > not even containing ‘withdrawal of benefit’-type penalties like the Kyoto > Protocol Enforcement Branch could impose). The “trigger” for this mechanism > is either a “self-trigger” (a Party subjecting itself to the Implementation > and Compliance Committee), but in some cases the Committee can also > initiate proceedings on its own, namely when a Party has not: (1) > communicated or maintained an NDC, (2) submitted a Biennial Transparency > Report, (3) participated in the facilitative, multilateral consideration of > progress under the transparency framework, or (4) reported ex ante > information on climate finance to be provided. These are all mandatory > obligations that would otherwise not be covered by the technical expert > review of the transparency framework of the PA. The committee can avail of > a variety of “soft” measures, including: engaging in a dialogue with a > Party to identify challenges, make recommendations and share information; > assisting the Party in engaging with the PA’s bodies on finance, technology > and capacity-building support with a view to identifying challenges and > solutions; making recommendations to those bodies with respect to > challenges and solutions identified; recommending the development of an > action plan; and issuing findings of fact in relation to the issues for > which the committee can initiate proceedings on its own. Arguably, > findings of fact can come at a Party’s reputational cost. > > - Enforcement could take place through *international litigation*, > though while there are some rumblings (e.g. Vanuatu wanting to go to the > International Court of Justice), it is difficult to envisage a (successful) > court case as this would require a state to prove that the (in)action by > another state (and only that other state) caused transboundary harm. > > - Lastly, NDCs could (theoretically) be enforced by states using > their trade agreements, e.g. if the US makes complying with an NDC a > conditionality in a bilateral trade agreement. > > > > *Dan Bodansky’s article:* below my signature > > > > Ronald Mitchell, Professor > > Department of Political Science and Program in Environmental Studies > > University of Oregon, Eugene OR 97403-1284 > > [email protected] > > https://rmitchel.uoregon.edu/ > > IEA Database Director: https://iea.uoregon.edu/ > > > > > > -- You received this message because you are subscribed to the Google Groups "gep-ed" group. 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