We have a deal! The Paris Agreement: An innovative legal agreement to save the planet?

Unless you have been living under a rock, or about to head out on a long holiday, you may have heard the news this past weekend that 195 states and the EU (196 Parties) adopted a new international agreement on climate change in Paris. The Paris Agreement aims to limit the increase in global temperature to an aspirational, but likely necessary, 1.5 degrees Celsius. The Agreement is the result of years of negotiation and was concluded during an intense two-week period of negotiations.
The Agreement includes substantive provisions regarding a) mitigation; b) adaptation; c) loss and damage; d) financial support; e) technology development and transfer; f) capacity-building; g) transparency measures; h) stocktaking events; and i) implementation and compliance. The Agreement also includes provisions for the pre-2020 period before the proposed $100 billion USD per year fund to assist developing countries begins in 2020. As a public health lawyer, I am interested in the potential implementation and results of the Paris Agreement and am hopeful it is a success. However, I do not profess to have much knowledge about the substantive environmental elements of the Agreement.
Procedurally, however, the resulting Agreement is pretty fascinating. The following are three procedural points I found interesting about the Paris Agreement:
One: The Paris Agreement is a hybrid agreement of legally binding provisions and voluntary commitments. One of the reasons the Agreement was structured in such a manner was to prevent the U.S. government from having to submit the Agreement to the Senate for ratification. The hybrid agreement was another form of recent innovative international agreements that use a combination of binding and non-binding mechanisms to create agreement and incentivize adherence. Another example is the WHO’s Pandemic Influenza Preparedness (PIP) Framework, which is the combination of a nonbinding framework and legally binding contracts between WHO and various parties. It will be interesting to watch whether agreements such as the PIP Framework and the Paris Agreement will begin to create a precedent for the use of hybrid international legal agreements in other forums.
Two: The Paris Agreement was adopted by consensus. All 196 Parties agreed by consensus for its adoption and no country voted against the Agreement. At least in WHO proceedings, agreement by consensus is the desired form of international agreement. Personally, it is great to see the desire for consensus extending to other forums and all Parties willing to agree with the final agreement. Hopefully, this will result in broad and rapid adoption of the Agreement.
Three: From “should” to “shall,” to references of 1.5 or 2.0 degrees Celsius, to the exact location of the figure $100 billion USD in the Agreement’s text, this Agreement demonstrates careful and detailed negotiations between the 196 Parties. Substantively, could the language be stronger? Yes, I’m sure there are points where the various negotiating sides would have liked to have seen stronger language. However, in international negotiations and lawmaking, it often seems to be the case of reaching agreement on the lowest common denominator. Here, I’d like to think that recognizing the nature of the problem, Parties pushed themselves to an agreement greater than the lowest common denominator. The Agreement seems to include both a “pay for” – the Green Climate Fund – and a monitoring mechanism. The inclusion of these two provisions should be seen as a powerful and positive step in international negotiations, as international agreements often seem to lack dedicated funds for implementation and a mechanism to promote transparency of country implementation (e.g. some of the ongoing concerns with respect to the IHR(2005)). Overall, my hope is the Paris Agreement is a happy outcome for the end of 2015 and a positive jumping off point for implementation of the Agreement and efforts to reduce the impacts of climate change.
In closing, I wish everyone Happy Holidays and a Happy and Healthy New Year!