Blog Post

Question 3 for COP 21: Compliance

Nov 19, 2015 | Brian P. Flannery, Raymond J. Kopp, Clayton Munnings

In this blog series, Questions for COP 21, we are posing several questions that should be considered before—and after—the negotiations. Here we address compliance: Does strong compliance promote or inhibit strong actions?

Procedures under the United National Framework Convention on Climate Change (UNFCCC) make it impossible to force unwilling nations to take on strong commitments or to accept onerous compliance sanctions. Ultimate long-term progress to manage climate risks will require participation by all major emitting nations, and at this time many are unwilling to obligate themselves to ambitious commitments with strong compliance (for various reasons). Consequently, stark choices for the Paris Agreement today are between ambition and participation, and between commit and comply or pledge and report. Paris appears to be moving toward enhanced participation under a pledge and report regime. However, the Agreement may still have legally binding aspects, but they would not apply to achieving commitments for emissions or finance.

One understands that proponents for a legally binding agreement see strong compliance as a tool to ensure ambitious outcomes. However, there is another side to the coin: demands for strong provisions may discourage participation by unwilling nations, encourage those that ostensibly support compliance to take on less ambitious commitments than otherwise, or cause those that fail to withdraw from the agreement.

Experience with compliance in the Kyoto Protocol is not encouraging. First, there is the challenge of designing provisions with real consequences. Under Kyoto, if a party failed to meet its emissions obligations, it would need to make up the difference between actual emissions and the assigned amount during the second commitment period, plus an additional deduction of 30 percent. Watching the withdrawal of Canada, Japan, New Zealand, and Russia makes clear that such consequences have no real bite. Canada withdrew from the Kyoto Protocol early and the others walked away from the 2nd period, not necessarily over concerns with compliance per se as over the structure of the agreement with its lack of participation for developing nations. In spite of agreeing to adopt the Kyoto Protocol in 1997, the United States never intended to push for ratification because of overwhelming opposition in the Senate. Without such key players, the top-down, legally binding Kyoto approach became recognized as a dead end.

Compliance and transparency processes share many features, and an effective transparency process can contribute to de facto compliance in a pledge and report framework. Merely creating and distributing information on proposed national actions and performance generates its own pressures from a variety of sources; these can have great influence, especially on nations that intend to honor their pledges and do not wish to be named and shamed.

Compliance and transparency in the Paris Agreement will apply not only to emissions but also to proposed action on finance, technology, and perhaps other areas as well. Many aspects of these new features will require new methodologies, among them methodologies to address and quantify: climate finance, mobilizing finance from public and private sources, and improvements relative to business as usual. As with the Kyoto Protocol, establishing rules may be contentious and could take several years.

Finally, note that actions and compliance by business occur primarily under domestic (not international) rules, laws, and authorities. Nonetheless, the two can affect one another. For example, under the Kyoto Protocol, emissions allowances of several kinds served both as instruments for firms to meet domestic obligations and for nations to meet international commitments. Compliance processes that affected a nation’s ability to use Kyoto Mechanisms potentially also had consequences for transactions by firms. As procedures develop, it will be important to consider how such relations may interact under the Paris Agreement.

Read more posts in the series, Questions for COP 21: