The Compliance and Implementation Mechanism of the Paris Agreement

• Published date: 01 July 2016
• Date: 01 July 2016
• Author: Christina Voigt
• DOI: http://doi.org/10.1111/reel.12155

The Compliance and Implementation Mechanism of

the Paris Agreement

Christina Voigt*

Parties to the United Nations Framework Conven-

tion on Climate Change decided to include an

in-house compliance arrangement in the Paris

Agreement. Article 15 of the Agreement establishes a

mechanism to facilitate implementation of, and pro-

mote compliance with, the provisions of the Agree-

ment. The mechanism consists of a committee whose

exact competence and function have yet to be

decided. However, the establishment of the mechan-

ism clearly shows convergence among parties on

the necessity and desirability of promoting compli-

ance. This article tracks the negotiation history of

the compliance arrangement and analyses the rele-

vant provisions in the Paris Agreement. While the

mechanism is in place, signif‌icant negotiation time

will still be needed to sort out the details for the

effective operation of the compliance arrangement.

For that reason, the Paris Agreement has set up a

work programme for the Ad Hoc Working Group

on the Paris Agreement to develop modalities and

procedures to be adopted by the f‌irst meeting of the

Conference of Parties serving as the Meeting of the

Parties to the Paris Agreement. The article also dis-

cusses the work programme and suggests possible

design choices.

INTRODUCTION: TO COMPLY OR

NOT TO COMPLY

The Paris Agreement

1

has been hailed as a vindication

of environmental multilateralism.

2

Apparently, the

ability of 197 parties to the United Nations Frame-

work Convention on Climate Change (UNFCCC) to

reach an agreement in Paris came as a surprise to

many. Commentators and negotiators had grown

weary of the international community’s capacity and

willingness to base collective action on a multilateral

instrument of legally binding character. Now that the

agreement is in place, the question turns to its effect-

iveness.

Effectiveness is determined by, at least, three elements:

participation, ambition and compliance.

3

Each of these

three parameters is interlinked with the others. Partici-

pation determines effectiveness by aiming at capturing

those actors that have the moral and/or causal respon-

sibility as well as the capacity to address the problem at

stake. Yet, the stringency of the obligation and the level

of ambition can be detrimental to broad participation.

The Paris Agreement thus had to strike a careful bal-

ance between broad participation and a level of com-

mitment that mattered in the f‌ight against climate

change. It did so by establishing mainly administrative,

procedural obligations of a legally binding nature, leav-

ing the substantive content to a large extent to the dis-

cretion of parties. This is captured in the bottom-up

approach of ‘nationally determined contributions’

(NDCs) which was already established by the nine-

teenth Conference of the Parties (COP19) in Warsaw in

2013, based on the notion of countries’voluntary con-

tributions under the Copenhagen Accord (2009). By

encapsulating this approach, coupled with certain

parameters for NDCs as well as iterative processes for

successively and collectively increasing ambition over

time (i.e., f‌ive-year cycles in Article 4.9, the trans-

parency framework in Article 13 and the global stock-

take in Article 14), the agreement seeks to establish that

balance. The legally binding obligations thus pertain

largely to regularly communicating and updating an

NDC, to providing necessary information and to report-

ing according to the rules to be established under the

enhanced transparency system.

4

However, the effectiveness of an agreement also

depends on the extent to which parties follow up on

these obligations. Participation and ambition alone are

of little value as long as parties do not do what they said

they would do and refrain from complying with their

obligations.

5

Compliance of parties with their

* Corresponding author.

Email: christina.voigt@jus.uio.no

1

Paris Agreement (Paris, 12 December 2015; not yet in force).

2

Thomas Spencer, @iddrilef‌il #COP21, 12 December 2015.

3

S. Barrett, Environment and Statecraft: The Strategy of Environmen-

tal Treaty-Making (Oxford University Press, 2003); D. Bodansky, ‘Le-

gally Binding Versus Non-legally Binding Instruments’, in: S. Barrett,

C. Carraro and J. de Melo (eds.), Towards a Workable and Effective

Climate Regime (CEPR Press and Ferdi, 2015), 155.

4

D. Bodansky, ‘The Legal Character of the Paris Agreement’, 25:2

Review of European, Comparative and International Environmental

Law (2016), 142.

5

R.B. Mitchell, ‘Compliance Theory’, in: D. Bodansky, J. Brunn

ee and

E. Hey (eds.), The Oxford Handbook of International Environmental

Law (Oxford University Press, 2007), 893.

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

161

RECIEL 25 (2) 2016. ISSN 2050-0386 DOI: 10.1111/reel.12155

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