USA must be held li­able for its exit

Is there a le­gal way to hold the world's sec­ond largest emit­ter ac­count­able for with­draw­ing from the Paris Agree­ment?


DRAMA IS not the first word that comes to mind when one thinks about global cli­mate pol­icy ne­go­ti­a­tions and yet dra­matic would be an apt word to de­scribe the fate of the Paris Agree­ment on cli­mate change. On June 1, Don­ald Trump, pres­i­dent of United States of Amer­ica (us), which is by far the heav­i­est pol­luter his­tor­i­cally, pulled Amer­ica out of the land­mark Agree­ment on cli­mate change to limit global warm­ing by 2 de­grees Cel­sius.

In his typ­i­cal style, Trump bran­dished half-truths and full lies with equal flair as he dumped the Agree­ment for be­ing “un­fair to Amer­i­cans.” Dur­ing his pres­i­den­tial cam­paign last year, Trump had in­fa­mously called cli­mate change a hoax. Since his elec­tion, sev­eral per­son­al­i­ties have tried to school the Pres­i­dent on the is­sue. But his ad­dress from the White House Rose Gar­den about the Agree­ment skirted cli­mate change al­to­gether. In­stead, Trump de­liv­ered a 25-minute tirade against the per­ceived global con­spir­acy to hurt the US econ­omy. While his lack of com­pe­tency in cli­mate sci­ence is well known, Trump’s speech be­trayed a lack of com­pre­hen­sion of both the econ­omy and the Paris Agree­ment it­self.

Trump be­lieves fos­sil fu­els can help the US achieve 3-4 per cent growth. So in March, he signed a sweep­ing Ex­ec­u­tive Or­der on “Pro­mot­ing En­ergy In­de­pen­dence and Eco­nomic Growth”, which pushes coal mining on fed­eral land, re­vokes car­bon pol­lu­tion stan­dards from the power sec­tor and halts the im­ple­men­ta­tion of the clean power plan that aims at re­duc­ing car­bon diox­ide emis­sions from US power plants. The only prob­lem: coal is long past its date of com­pet­i­tive­ness with re­new­able sources of en­ergy. So­lar en­ergy sys­tems are be­com­ing cheaper by the day. As per a re­port by the US depart­ment of en­ergy’s Lawrence Berke­ley Na­tional Lab­o­ra­tory (Berke­ley Lab), cost of so­lar pho­to­voltaic (PV) sys­tems is de­clin­ing by 5 per cent year-over-year for res­i­den­tial sys­tems, and by 7 per cent for smaller non­res­i­den­tial sys­tems. Galen Bar­bose, the au­thor of the re­port, says that 2015 marked the sixth con­sec­u­tive year of sig­nif­i­cant price re­duc­tions for dis­trib­uted PV sys­tems in the US.

Even the pre­vi­ous US ad­min­is­tra­tion pushed for re­new­ables. In 2016, the coun­try added 27 gi­gawatts (GW) of elec­tric­ity gen­er­at­ing ca­pac­ity in the county, of which over 60 per cent is from re­new­ables. The ca­pac­ity of re­new­ables in­stalled in the US in 2016 is equal to the to­tal amount of coal power ca­pac­ity aug­mented over the last 15 years. Stud­ies also point to­wards grow­ing pop­u­lar­ity of elec­tric ve­hi­cles in the coun­try.

The US pres­i­dent’s grasp of the Paris Agree­ment is also non-ex­is­tent. He be­lieves

that the Agree­ment im­poses “dra­co­nian fi­nan­cial and eco­nomic bur­dens” on the US, while the truth is that its terms were cus­tom-made to fit Amer­ica. For ex­am­ple, the Agree­ment was made non-puni­tive and vol­un­tary to al­low the for­mer US Pres­i­dent Barack Obama to by­pass the US Se­nate in rat­i­fy­ing it. This is the rea­son Trump could uni­lat­er­ally pull the US out of the deal. The US is also the rea­son all the 194 coun­tries in the Agree­ment have pledged to re­duce their green­house gases emis­sions, even though many are not even re­spon­si­ble for the cur­rent sit­u­a­tion. And the US, in re­turn, pledged to a re­duc­tion of just 26-28 per cent, con­sid­er­ing 2005 as a base­line. This amounts to a mere 13-15 per cent re­duc­tion by 2025, con­sid­er­ing a 1990 base­line. In com­par­i­son, the Euro­pean Union has com­mit­ted to re­duce emis­sions by 40 per cent be­low 1990 lev­els by 2030. Still, Trump went ahead and placed the US in the same bracket as China and In­dia—even though the to­tal cu­mu­la­tive emis­sions by the US be­tween 1913 and 2013 is more than dou­ble that of China and over 10 times that of In­dia. Even the per capita car­bon emis­sions of the US (16.4 met­ric tonnes of Car­bon diox­ide or CO2) is close to dou­ble that of In­dia (1.7 met­ric tonnes of CO2) and China (7.6 met­ric tonnes of CO2) put to­gether, sug­gests the World Bank. And even if the US did meet its com­mit­ments to the Paris Agree­ment, the per capita emis­sions would have come down to 12 met­ric tonnes of CO2, large enough to still be one of the high­est in the world (see ‘Half-truths, full lies and a steeper slope’, p16-17).

But Trump’s world view is one where com­pe­ti­tion is eter­nal and co­op­er­a­tion is farce. “It seems like Don­ald Trump doesn’t un­der­stand how this agree­ment works. This is an agree­ment that is built on col­lab­o­ra­tion, not com­pe­ti­tion,” says Navroz Dubash of non-profit Cen­tre for Pol­icy Re­search. “The agree­ment only works with the mo­men­tum cre­ated by coun­tries do­ing more than what they in­di­cated and both China and In­dia are good ex­am­ples of coun­tries that are over­shoot­ing their na­tion­ally de­ter­mined con­tri­bu­tions (ndcs),” he adds. Cur­rent in­vest­ment trends show that both In­dia and China com­fort­ably over­shoot their tar­gets of re­duc­tions in emis­sion in­ten­si­ties of 33-35 per cent and 60-65 per cent re­spec­tively.

Same mis­take

While the in­con­sis­ten­cies in Trump’s stance are glar­ing, the with­drawal of the US, for many, is sim­ply his­tory re­peat­ing it­self. By far the heav­i­est pol­luter his­tor­i­cally, the US had dealt a sim­i­lar blow to in­ter­na­tional ef­forts on cli­mate change by with­draw­ing from the Ky­oto Pro­to­col in 2001. Af­ter the with­drawal, the Pro­to­col ceased to be an ef­fec­tive in­stru­ment to bring about co­he­sive cli­mate ac­tion as it ended with just 55 per cent rat­i­fi­ca­tion. Fears are that the Paris Agree­ment may end up with a sim­i­lar fate.

The US walk­out can po­ten­tially shake the faith of other na­tions in the agree­ment. While there is no pos­si­bil­ity un­der in­ter­na­tional law for the Paris Agree­ment to be rolled back and “ex­ited out of force”, other coun­tries could con­ceiv­ably claim a right to back out of the agree­ment terming the US with­drawal as a “fun­da­men­tal change of cir­cum­stances”.

The US pull out has also left a deep

The Agree­ment has a lock-in pe­riod of three years af­ter en­try into force. Fol­low­ing this, a one-year no­ti­fi­ca­tion of the with­drawal must be sub­mit­ted to the UN Sec­re­tary-Gen­eral. So the ear­li­est date of a US with­drawal is Novem­ber 4, 2020, which in­ci­den­tally will co­in­cide with the next US pres­i­den­tial elec­tions

void in terms of who should take lead­er­ship in the cli­mate change is­sue. Dur­ing its pre­de­ces­sor Ky­oto Pro­to­col’s pe­riod, the Euro­pean Union (EU) was the undis­puted leader in cli­mate change ne­go­ti­a­tions. By tak­ing a slew of pos­i­tive do­mes­tic mea­sures in­ter­nally and push­ing oth­ers for even­tual rat­i­fi­ca­tion of the Ky­oto Pro­to­col when the US pulled out of it, proved EU’s diplo­matic ca­pa­bil­i­ties as a soft power in deal­ing with a sub­ject that it con­sid­ered crit­i­cal apart from an is­sue of high-pol­i­tics. But the EU has its hands full deal­ing with a va­ri­ety of en­ergy needs and pref­er­ences within the group, in­ter­nal fi­nan­cial in­sta­bil­ity and brexit. China, in re­cent months, has demon­strated on sev­eral global fo­rums that it isn’t averse to tak­ing lead­er­ship is­sue and is rapidly ex­pand­ing its re­new­able en­ergy po­ten­tial. How­ever, China has no proven track record on cli­mate ac­tion. As a prag­matic so­lu­tion to this prob­lem, an EU-China coali­tion is ex­pected to ma­te­ri­alise soon.

An im­me­di­ate test of such a coali­tion would be the line of ac­tion to be taken against the US in or­der to dis­suade other na­tions from join­ing its ranks. They can un­der­take counter-mea­sures, ac­cord­ing to the in­ter­na­tional law un­der the Vi­enna Con­ven­tion on the Law of Treaties (vclt). The US is not a mem­ber of vclt, but the pro­vi­sions are re­garded to re­flect cus­tom­ary in­ter­na­tional law. Counter-mea­sures backed by the ma­jor­ity of the world could have dis­as­trous ram­i­fi­ca­tions for the US as sev­eral sec­tors de­pend on sen­si­tive global sup­ply chains. While it is still too early to spec­u­late on what such in­stru­ments could be, car­bon taxes on US im­ports and rene­go­ti­a­tion of bi­lat­eral and mul­ti­lat­eral trade pacts have been floated as sug­ges­tions.

The Paris Agree­ment also has a lock-in pe­riod of three years for par­tic­i­pants, ap­pli­ca­ble af­ter the Agree­ment en­ters into force, dur­ing which they can­not exit the Agree­ment. Fol­low­ing this, a one-year no­ti­fi­ca­tion of the with­drawal must be sub­mit­ted to the UN Sec­re­tary-Gen­eral. So the ear­li­est date of a US with­drawal is Novem­ber 4, 2020, which in­ci­den­tally will co­in­cide with the next US pres­i­den­tial elec­tions. Un­til this time, the US is legally re­quired to ful­fil obli­ga­tions to main­tain and reg­u­larly up­date their ndc (Ar­ti­cle 4.2), to pur­sue do­mes­tic im­ple­men­ta­tion mea­sures (Ar­ti­cle 4.2), and to re­port on its emis­sions and its progress in im­ple­ment­ing and achiev­ing its ndc (Ar­ti­cle 13.7). This can go ei­ther way. Since the US would still be part of the ne­go­ti­a­tions, it might play the role of ob­struc­tion­ist or ham­per the progress in ne­go­ti­a­tions. Coun­tries there­fore, have a cru­cial role to play to deal with US hence­forth in ne­go­ti­a­tions. Cur­rently, 148 of the 197 par­ties to the United Na­tions Frame­work Con­ven­tion on Cli­mate

Change have rat­i­fied the agree­ment and it en­tered into force on Novem­ber 4 last year.

An­other big dif­fer­ence this time round, as com­pared to the Ky­oto ex­pe­ri­ence, is the ex­tent of do­mes­tic sup­port. In con­trast to 2001, a ma­jor­ity of the US pop­u­la­tion, which in­cludes busi­ness lead­ers, are in sup­port of stick­ing with the cli­mate ac­cord. In­ter­est­ingly, the stiffest chal­lenge to the Trump ad­min­is­tra­tion is likely to come from the Amer­i­can peo­ple rather than in­ter­na­tional diplo­macy. Trump’s de­ci­sion is ap­par­ently so un­pop­u­lar in the US that gover­nors of 12 states and Puerto Rico formed a bi­par­ti­san cli­mate al­liance to pres­sure the govern­ment to act on cli­mate change in the im­me­di­ate aftermath of the an­nounce­ment.

De­spite the cur­rent ad­min­is­tra­tion’s dis­dain to­wards the Paris Agree­ment, do­mes­tic ac­tion could yet force the US to un­der­take reg­u­la­tory steps that go above and be­yond their ndcs, while re­main­ing outside the Paris Agree­ment. The US govern­ment is al­ready fac­ing a land­mark law­suit filed by a group of 21 youth (aged 9-20 years) for fail­ing to ad­e­quately pro­tect the earth from cli­mate change. The group claims that the pro­mo­tion of fos­sil fu­els and ne­glect of is­sues caused by emis­sions of green­house gases have cul­mi­nated in “a dan­ger­ous desta­bi­liz­ing cli­mate sys­tem” that poses a risk to fu­ture gen­er­a­tions.

The law­suit aims to force the govern­ment to cre­ate a re­cov­ery plan to re­duce car­bon con­cen­tra­tion in the at­mos­phere to 350 parts per mil­lion (ppm), which sta­bilises the cli­mate, from the cur­rent level of 400 ppm by 2100. Last Novem­ber, Ore­gon dis­trict judge Ann Aiken re­jected mo­tions from the US govern­ment and fos­sil fuel in­dus­tries to dis­miss the law­suit. In a 54-page writ­ten opin­ion, the judge sided with the youth and stated “Al­though the United States has made in­ter­na­tional com­mit­ments re­gard­ing cli­mate change, grant­ing the re­lief re­quested here would be fully con­sis­tent with those com­mit­ments. There is no con­tra­dic­tion be­tween promis­ing other na­tions the United States will re­duce CO2 emis­sions and a ju­di­cial or­der di­rect­ing the United States to go be­yond its in­ter­na­tional com­mit­ments to more ag­gres­sively re­duce CO2 emis­sions.”

In­ci­den­tally, weeks be­fore an­nounc­ing his de­ci­sion, the Trump ad­min­is­tra­tion un­suc­cess­fully at­tempted to file an early ap­peal and de­lay the trial likely to be­gin later this year. Such ac­tions of do­mes­tic push back could in fact be the crit­i­cal “x-fac­tor” in cir­cum­vent­ing the Amer­i­can govern­ment’s in­flu­ence and en­sur­ing that Amer­ica—the peo­ple and busi­nesses, not the coun­try— stays in line with the ob­jec­tives of the Paris Agree­ment.”

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