THE BLOG
04/18/2016 05:04 am ET Updated Apr 18, 2017

A Climate Deal That Counts: How Compliance Could Evolve in the New Global Deal

In New York this Friday, the UN Secretary General will welcome a stream of Heads of State to a signing ceremony for the historic global climate deal agreed in Paris last year. This political orchestration of international leaders is the first big "climate" job for the UN in 2016. The Agreement will only officially enter into force after 55 countries representing 55% of global emissions have signed. Then the attention turns fully to implementation - practical solutions, concrete policies, investments and partnerships to deliver the commitments made. Accountability of, compliance with, and ideally over-performance on the voluntary national contributions that underpin the Agreement will be key.

While the timelines set by the Agreement look pragmatic, the timelines for transition set by the science leave no room for early non-performance on climate action. The deal needs a strong referee - in this case a robust accountability and compliance mechanism. I've touched on the implications of the new climate deal for climate accountability before, but what can wider experience from international law and behaviour science teach us about what good looks like? How could compliance in the world's climate agreement build in more muscle?

Keeping global climate action on track

In 2018 the Paris Agreement requires parties to get together to take stock on progress. Two years later in 2020, countries will be asked to increase their contributions again. It is around this date that global emissions will need to peak in order to meet the Agreement's overarching goal of limiting warming to "well below 2C". By the time the world has its first legally-binding climate health check in 2023 (the global "stock take") we will have a good idea of whether the global climate deal is effective and if countries are indeed on track to tackling climate change.

Historical experience suggests that an effective international treaty is one that has ambitious yet feasible targets and timetables for achieving these, but also a robust mechanism to ensure accountability and compliance. Strong accountability is vital to instil a sense of confidence in the wider market; in this case to attract the capital needed to fund the world's low carbon transition. Business, investors and consumers need to have confidence that all governments, regardless of political terms, are going to deliver on their pledges and will not compromise low carbon investments made to date.

Under the climate Agreement, the accountability (ie transparency, review and compliance) mechanism is doubly relevant as it is the legally binding part of the Agreement, not, as many might consider, the achievement of the emissions cuts themselves. Getting this system right from the outset therefore is fundamental to the legitimacy, effectiveness and longevity of the regime going forward.

As it stands the Paris Agreement has the skeleton of a compliance framework built in. It is a form of compliance focused on transparency and review, not on enforcement. This negotiation went down to the wire in Paris, with some parties against the word "compliance" appearing at all in the text, while others including the Least Developed Countries (LDCs) pushed for a compliance mechanism that included enforcement. The deal agreed, however, loosely outlines a mechanism of self-monitoring, a periodic expert review (and time for improvement), financial and technical assistance to build country's reporting and compliance capabilities, and a state-nominated committee to address compliance issues in a non-confrontational way. There is enough in the agreed text to give legitimacy to further discussions in 2016 and beyond to flesh out a compliance mechanism fully.

2018 is the official timeline set to finalise the system and procedures for transparency and compliance. For example common international rules and systems need to be agreed, parties need to agree what the flexibility in reporting allowed for developing countries means in practice, and countries need support on data, methods and capacity so that they are ready to report performance accurately and comparably when the deal comes into force. The more contentious issues of triggers for non-compliance, and consequences of non-compliance will also be re-visited, and either dismissed or incorporated.

What does wider experience in international law tell us about what could be built in to this new international system for climate accountability?

Compliance in international law tends to be treated in one of two ways. Either through international adjudication of disputes brought state-to-state or by non-governmental actors; or through a model of managed compliance where states monitor and report their actions and compliance.

The first, for example, is the model used in many areas of international law including Human Rights law. Adjudication on its own does not enforce compliance, but experience suggests that states often comply with the decisions of international tribunals, and when they don't the outcome provides legitimate grounds for the threat of sanctions. To this end, adjudication is often cited as essential to effective compliance.

When it comes to international agreements that tackle global environmental challenges - like climate change or ozone depletion - compliance tends to handled not by adjudication but by mechanisms that manage, rather than enforce it. The agreement of a global climate deal in Paris was only politically possible as compliance was included as managed and not enforced. As compliance was, as it states in the Paris text, "non-adversarial" and "non-punitive".

The second option, of purely managed compliance uses transparency - reporting, monitoring, review and assessment of parties' performance - to drive results. It is about persuasion rather than enforcement. This model is considered effective when it is believed that parties do wish to comply with treaty obligations. Failure to do so is more to do with limited capacity, ambiguities, or delayed performance. It's the model the new global climate agreement uses: a managed, facilitated and non-confrontational approach. But as currently designed, truly independent third party monitoring and review is lacking, as are the triggers for, and consequences of, non-compliance. As it stands today it is a model with potential when all are committed, but with little muscle when non-compliance is intentional.

So how could compliance in the climate agreement be strengthened?

The "soft" measures of transparency and compliance currently described in the Paris Agreement will undoubtedly be strengthened over the next couple of years. But whether we will see "sticks" for non-compliance built in over time is questionable given the language of the Agreement (i.e. "non-punitive") and the highly political nature of the climate challenge.

The Montreal Protocol, in contrast, whose non-compliance procedure is often held up as an example for other international environmental agreements, has a non-compliance armoury to threaten persistent non-complying parties with. These include issuing formal cautions, suspending specific rights under the Protocol including finance, and trade sanctions. In practice, the trade sanctions have only been threatened under the Protocol in cases of consistent non-compliance, not implemented. But the existence of these "sticks" is viewed as important to encouraging both compliance with, and participation in, the treaty.

For the new global climate regime it will be very difficult to have any sticks for intentional non-compliance built in. At the most, formal cautions might be possible as a lever to apply reputational and political pressure to comply, but we are not likely to see removal of finance or the use of sanctions. The incorporation of compliance at all in the agreement made in Paris was already a big win.

What else could be incorporated to make compliance more persuasive?

Stronger monitoring and review systems, such as those employed in human rights law which give formal roles to private parties and independent experts, could be a good start. In addition to self-reporting by nations, a parallel formalised system of truly independent expert reporting and verification and/or review of state compliance could be set up. The involvement of non-state actors could also extend to transparency of wider business, sub-national and NGO actions, and therefore improve the accuracy and completeness of any national and global performance assessment. A complaint-activated step could also be incorporated to allow both other states and private parties to trigger the review procedure by claiming that states have repeatedly failed to comply with their obligations. A role like this for non-state actors and independent experts could help to build trust in, and ultimately the effectiveness of, the deal.

There are other lessons from behaviour science that could be incorporated to aid compliance at relatively little cost. For example, using the social norms approach, the national reporting and review templates could showcase not just a country's compliance relative to their own national commitments, but also how the average performs relative to their commitments. Given the norm would most likely be to comply (i.e. to meet the commitment made), nations who don't comply would be incentivized to improve performance in order to meet the social norm. Furthermore, to address the flexibility around reporting and independent review given to developing countries in the Agreement, a default "opt-out" rather than "opt-in" of the more comprehensive requirements would reduce the tendency towards minimal transparency. Finally the data emerging should be made easily accessible to all, to enable more uptake and analysis by more parties, thereby enhancing the impact it has.

Post Paris those working on climate change in 2016 are focused on the immediate task at hand - ratification so that the deal enters in legal force ideally this year, and on implementing the first round of national (and wider business, city, NGO) commitments underlying the Paris Agreement. But with this action and further momentum building, the importance and urgency of building a strong global accountability system in parallel should not be understated. For the climate deal to work, it needs a system that supports, reinforces, and accelerates implementation of the Agreement by all, and that won't happen without collaboration both public and private, and international and local.

Acknowledgements: I would like to thank both Achala Abesinghe (legal advisor on the climate negotiations for the least developed countries) and Todd Rogers (Associate Professor at the Harvard Kennedy School) for your respective insights that helped to shape this blog,