Professor of International Law and Co-Director of Lincoln Centre for Environmental Law & Justice, Duncan French on the US withdrawal from the Paris Agreement
“The decision by President Trump to withdraw the United States from the Paris Agreement on Climate Change has rightly been criticised by other world leaders and civil society groups. Within the United States, it marks a further step by the new US Administration in relegating environmental considerations from the government’s priorities. Globally, this is the most pronounced movement by the Trump Presidency in giving effect to the populism of his election campaign. Its timing around World Environment Day on 5 June seems particularly regrettable and ironic. The United States now joins Nicaragua and Syria as the only countries outside of the Agreement.
The Paris Agreement was adopted in December 2015 as a multilateral environmental agreement to move the international community forward together to both tackle climate change and to begin to prepare and to finance the resilience and adaptation necessary in response to its more extreme consequences. It is far from a perfect agreement, and most view it as only the next step in what has to be a much more ambitious programme of reform and change. But it is an important step.
The issue of climate change has been on the international agenda for thirty years. In that time, the international community has adopted two important treaties – the 1992 UN Framework Convention on Climate Change and the 1997 Kyoto Protocol – and the world has become increasingly aware, both through the hardening of the scientific evidence but also with our own eyes, of the reality of climate change. The international community, never completely in consensus on this issue, has nevertheless slowly and sometimes painstakingly edged forward in its commitments. Most notably, India and especially China have now adopted ambitious climate plans.
The United States has always had an awkward history with international climate change law, notwithstanding its historical role as the largest polluter of greenhouse gases. It was not a party to the Kyoto Protocol, concerned then that it only imposed obligations on developed countries and not the more industrialised developing countries. It was this, amongst so many reasons, which made the Paris Agreement so significant; all countries, regardless of level of development, were willing to commit to bring down their greenhouse gas emissions. The obstacle to US participation in the Kyoto process – that of perceived developing country competitive advantage – was thus removed.
Moreover, unlike the Kyoto Protocol, the Paris Agreement works on the basis of “pledge and review” rather than through the establishment of legally binding emission reduction obligations. Each country is to submit a nationally determined contribution (NDC), which it will try to attain (or ‘intends to achieve’ in the words of the Agreement) towards keeping global temperature down ‘to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’. These NDCs are to be reviewed periodically to ensure they are set at the necessary ambition to achieve the Paris Agreement’s climate objectives.
Thus, the US secured its twin objectives in the Paris negotiations; ensuring that China and India made an effective contribution and that climate commitments were “bottom-up” goals set by the countries themselves and not “top-down” prescriptive rules.
Of particular concern was the announcement by President Trump that the US would cease all Paris Agreement implementation actions with immediate effect, including supporting the Green Climate Fund, which provides finance to developing countries to meet their own obligations under the Paris Agreement. Lawyers will argue whether the US has acted unlawfully by violating the Agreement in advance of withdrawal, but the ecological and developmental impact of this non-implementation decision will be quickly felt, and not just (or primarily) in the United States.
So are there any grounds for optimism despite the Trump decision to withdraw? First, formally, withdrawal cannot take effect until 4 November 2020 at the earliest, as the Paris Agreement includes its own rules of departure (12 months following notification, but then only after three years of a country being a member). It is ironic that 4 November 2020 is the day after the next US election. Secondly, while what the US Government chooses to commit to (or not) is important it isn’t the totality of what can be achieved. China, the EU and others are seeing the political and moral, as well as the economic, opportunities in tackling climate change.
And beyond the State level, much can be done. Consumer choice, local government action and the private sector all have a hugely instrumental role to play in responding to climate change. And in the US, states such as California are taking a leadership role in tackling the issue. Moreover, while the global market is not invariably environmentally-friendly, as the costs of climate change become ever more apparent, so the market itself will steer towards green solutions so as to achieve co-called “climate neutrality”. Finally, the courts themselves are beginning to take climate change seriously. Decisions as far afield as The Netherlands, South Africa, Austria and the United States are considering, and increasingly accepting, climate arguments. Nevertheless, President Trump’s decision is a retrograde one.
Thus, is the US withdrawal from the Paris Agreement to be regretted? Absolutely. But less because of how far a treaty can coerce States to do things they don’t want to do, and more because participation is symbolic of broader political engagement. And it is the politics that will determine our planet’s – and our own – future. If we fail to keep within the temperature limits indicated by the Paris Agreement, “Make America Great Again” will resound hollow when we transgress one of the key planetary boundaries. The United States can withdraw from the world, but not from the planet.”
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