Editorial

• Published date: 01 July 2016
• DOI: http://doi.org/10.1111/reel.12173
• Date: 01 July 2016
• Author: Harro Asselt

Editorial

International climate change law has always felt like a

constant work in progress. For over 20 years, parties

have been seeking to overcome the same disagreements

–who should do what to mitigate climate change; who

should pay for reducing emissions and for adapting to

the inevitable climate impacts; etc. –taking one small

step at a time. Notwithstanding the inherently incre-

mental nature of this process, there have been import-

ant leaps forward in the evolution of the international

climate regime established by the 1992 United Nations

Framework Convention on Climate Change (UNFCCC)

including, of course, the Convention itself, as well as its

1997 Kyoto Protocol.

The Paris Agreement, adopted by parties to the

UNFCCC in December 2015, is an important new mile-

stone, as it can be seen to mark the end of an era, but

also the beginning of a new one. The era it ends is one

in which the focus was largely on developed countries’

legally binding targets. The new Agreement establishes

commitments for all parties, and even though the

UNFCCC did so as well, the new treaty offers more

detail compared to the Convention, and moves away

from the developed/developing country bifurcation

prevailing in both the UNFCCC and the Kyoto Protocol.

The Agreement also departs from the Kyoto Protocol’s

approach of putting in place legally binding quantif‌ied

emission limitation and reduction obligations, backed

up by a compliance mechanism that can impose (soft)

sanctions.

The new era the Agreement seemingly launches is, in

fact, not so new. Its blueprint can be traced back to

the much-lamented Copenhagen Conference of the

Parties (COP) in 2009.

1

What is new is that the Paris

Agreement anchors this blueprint in a treaty, estab-

lishing a legally binding, iterative process in which all

countries submit f‌ive-yearly climate plans –or rather:

nationally determined contributions (NDCs) –in

which they outline their main goals and policies. The

NDCs, which are to ref‌lect a party’s highest ambition,

are at the heart of the Paris Agreement. Combined

with several processes to review implementation

(through a ‘transparency framework’that is to build

on existing reporting and review processes under the

Convention), ambition (through a new, f‌ive-yearly ‘glo-

bal stocktake’) and compliance (through a new imple-

mentation and compliance mechanism), they offer a

basic framework for international climate law and pol-

icy for the decades to come.

As usual, the most challenging issues and strongest dis-

agreements remain unresolved, and much of the hard

work still lies ahead. Yet the enthusiastic reception of

the Agreement –with only one country protesting at the

time of its adoption –and the strong signals that the

Agreement will enter into force sooner than expected,

show that it at least enjoys broad support among the

international community. Over time, it is hoped, this

will mean that these countries will ramp up their

actions at the national level, with a view to achieving

the Agreement’s objective of keeping the global average

temperature increase well below 2 °C.

Against this backdrop, this special issue of RECIEL

brings together a collection of analyses of various elem-

ents of the Paris Agreement. Rather than analysing the

Agreement as a whole, the contributions to this issue

focus on selected aspects of the Paris outcome, includ-

ing its legal form, differentiation, compliance, f‌inance,

forests, loss and damage, international shipping and

aviation, response measures and non-State actors. The

special issue is by no means exhaustive –further

research can still shed light on the role of market-based

mechanisms, adaptation, technology transfer and

transparency –but it offers insights into the intricacies

of international climate change law post-Paris. The var-

ious contributions should provide a solid foundation for

further research on the Paris Agreement as parties

move from its adoption to its implementation.

The f‌irst article, by Dan Bodansky, offers a systematic

overview of the legal character of the Paris Agreement

itself, as well as its key provisions. Although much was

made of the Agreement’s possible legal nature following

the vague mandate agreed in Durban in 2011 to negoti-

ate ‘a protocol, another legal instrument or an agreed

outcome with legal force under the Convention applic-

able to all parties’,

2

Bodansky notes that it is undeniable

that the Agreement is a treaty in the sense of the Vienna

Convention on the Law of Treaties. He further examines

specif‌ic provisions, including the core obligation of the

Agreement to prepare, communicate and maintain suc-

cessive NDCs. He also explores the legal relationship

between the Paris Agreement and the COP decision

adopting the treaty. Bodansky cautions against the ten-

dency of some lawyers –as well as other observers –to

attach too much importance to the question whether

the treaty or its provision are legally binding or not,

positing that the effectiveness of the Paris Agreement

will also depend on securing broad participation, the

1

D. Bodansky, ‘The Paris Climate Change Agreement: A New

Hope?’, 110 American Journal of International Law (2016, forthcom-

ing).

2

UNFCCC, Decision 1/CP.17, Establishment of an Ad Hoc Working

Group on the Durban Platform for Enhanced Action (UN Doc. FCCC/

CP/2011/9/Add.1, 15 March 2012), at paragraph 2.

ª2016 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12173

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