The European Union has long sought to play a leadership role in the international climate change negotiations. As part of the European Green Deal, it increased its emission reduction target from at least 40% to net 55% by 2030 in comparison to 1990 levels. A corresponding update to the EU’s NDC was submitted on 17 December 2020. In July 2021, it announced further far- reaching plans to decarbonise its economy. For the time being, however, it is non-compliant with a procedural obligation under the Paris Agreement: to notify the UNFCCC secretariat of the individual emission levels allocated to each Member State.
Why the EU Member States are legally non-compliant
The EU and its Member States are the only parties to the Paris Agreement that have a joint NDC. Article 4 paragraph 16 of the Paris Agreement specifically provides that parties that have reached agreement on a joint NDC “shall notify the secretariat of the terms of that agreement, including the emission level allocated to each Party with the relevant time period, when they communicate their nationally determined contributions”. As a result, the Member States of the EU (or any other economic integration organisation) are jointly with the EU and severally liable for their individual emission levels (Article 16 para.18).
The EU Decision approving the Paris Agreement (2016/1841 of 5 October 2016) explicitly recognized the need to notify the secretariat of the emission levels allocated to the EU and its Member States, and the European Commission has tabled proposals for amending the relevant EU legislation (on the EU Emission Trading Scheme and the Effort-Sharing Regulation) in light of the new target. But because members states are still negotiating, the bloc has not been able to notify the UNFCCC secretariat of the terms of an agreement, including Member States’ individual emission levels.
But as long as the EU and its Member States try their best to meet the collective target – does the missing notification matter?
As many other multilateral environmental agreements, the Paris Agreement is built around procedural commitments (as opposed to specific substantive outcomes). For the Agreement to succeed parties will have to take these requirements seriously. The need to inform other parties about individual emission levels ensures a degree of clarity, transparency and accountability in case an agreement to act jointly, for example, fails or is prematurely terminated. Unlike the Kyoto Protocol (Annex B), the Paris Agreement does not list parties’ mitigation targets.
Non-compliance could weaken the Agreement’s ability to function effectively and undermine trust in the system. In the future, other parties may also agree on a joint NDC and the current situation risks setting a precedent for the Agreement’s further implementation, may result in different interpretations of parties’ obligations and legal uncertainties. While the EU does not fully meet its obligations under the new treaty it may also be problematic to raise non-compliance issues of other parties – and there have been a few already:
Before the US withdrew from the Agreement under Article 28, they briefly considered downgrading their nationally determined contribution (NDC) although each successive NDC should “represent a progression” (Art.4.3), and adjustments be done “with a view to enhancing its level of ambition” (Art.4.11). However, by modifying the methodology and relevant reference points (base line) for their mitigation target Brazil has effectively lowered its overall ambition in an update to its first NDC. All parties to the Paris Agreement were requested to submit a new or updated NDC by the end of 2020 but not even half of them met that deadline.
But there may also be another element why it matters: States compliance with international treaties to a large extent depends on mutual respect, good will, peer pressure, fairness and the wider dynamics created by a treaty regime. The intergovernmental negotiations are often more about gestures, face-saving and posturing then the immediate outcomes. By ignoring their own failure to notify the UNFCCC secretariat of Member States’ emission levels, the EU may be missing an important opportunity to strengthen the Paris system, lead by good example and rekindle some of the lost trust between parties in the international climate negotiations.
The planet is in a state of emergency that already affects or immediately threatens human rights, biodiversity and the territorial integrity of many states. The upcoming climate conference in Glasgow could be the last opportunity to avoid a complete “climate break down”. Tackling the missing notification issue head on and, for example, bringing it up in the governing body of the Paris Agreement (the “CMA”) or even (self-) reporting it to the new committee for facilitating implementation and compliance may create a whole new momentum of solidarity and for “doing things differently” - something all governments have promised to do at some point during the Covid-19 pandemic.
As a result, the COP serving as the meeting of parties to the Agreement (CMA) could potentially take a decision that “invites all parties that act jointly under Article 4.2 to notify the secretariat as soon as they have reached an agreement”, or it may “request that, pending the conclusion of such an agreement, parties provide additional information on the likely outcome of their internal discussion or on the specific problems encountered during their deliberations”. But this is as far as it goes and none of it would affect the EU’s internal efforts to reach agreement and to address climate change effectively. Such a decision would, however, provide an important clarification for the future implementation of the Paris Agreement.
For a comprehensive legal analysis of the current situation and EU climate policy in general see Christoph Schwarte, EU Climate Policy under the Paris Agreement, Climate Law 11 (2021), pp.157-175.