ROLE OF NON-STATE ACTORS IN THE PARIS AGREEMENT AND THE DEVELOPMENT OF INTERNATIONAL LAW.

• Author: Kimura, Hitomi

1 INTRODUCTION

In the summer of 2018, the world experienced another stage of global warming and its consequences with abnormal or extreme weather events such as heat waves, forest fires and heavy rains. Scientists in 2018 warned that the earth could become a 'hothouse' with a temperature rise of 4-5 degrees, even if human beings could achieve the emission reduction goals of the Paris Agreement that were intended to limit the temperature rise to 2 or 1.5 degrees. (3)

Under the Paris Agreement, the role of non-State actors has become crucial, in response to President Trump's decision to turn his back on multilateralism by withdrawing from the Paris Agreement, ceasing funding of the Green Climate Fund (GCF) under the UNFCCC and retracting President Obama's Clean Power Plan and national clean car standards. The US federal government is also trying to alter initiatives by local governments. Proactive actors, including nine states, 125 cities, 902 companies and investors, and 183 universities, submitted their joint statement to reiterate their commitment to the Paris Agreement ('We Are Still In') in order to achieve the Obama-era US pledge to reduce emissions by 26-28% by 2025 below 2005 levels. New York City developed a 1.5 degree target, (4) the state governor of Hawaii signed a similar bill, (5) and the US Climate Alliance and the US Climate Mayors also made similar commitments. (6) These bottom-up initiatives finally led to California's America's Pledge. (7) The GDP of the 5 states, 455 cities, 1,743 businesses and 325 higher learnings institutions participating in the America's Pledge as of 2017 is equivalent to the third largest GDP in the world ($10.1 trillion), behind the US and China, and exceeding that of Japan and representing more than half of the US's GDP. Their total emissions of 2.7Gt is the global fourth, behind China, the US and India. It seems anomalous for a country to have all the responsibilities and obligations under international law in a situation where the capacity of non-State actors, in fact, equals or even exceeds that of the country.

In addition, in 2018, Bloomberg Philanthropies announced to cover $4.5 million funding to the UN Climate Change Secretariat, which is 60% of the US's contribution to the UNFCCC and launched a $70 million Cities Climate Challenge program to support cities reducing greenhouse gas (GHG) emissions while growing local economies during a time of inaction from the federal government. (8) What captured global interest especially from businesses at COP23 held in Bonn in 2017 was the launch of the Powering Past Coal Alliance, led by the UK and Canada and comprising of several states and local governments such as the states of California, Oregon and Washington, to phase out traditional coal power stations as stranded assets. (9)

These bottom-up initiatives by non-State actors at multiple levels support the UNFCCC process toward effective implementation of the Paris Agreement. As the Paris pledges only bring one third of what is needed to avoid the worst impact of climate change by 2030, governments and non-State actors have to upgrade their Nationally Determined Contributions (NDCs) under the Paris Agreement, (10) but at the same time, these pledges pose fundamental questions about the role of non-State actors in the development of international law, which has been traditionally based on State actors. More specifically, is there any way or approach to incorporate those local non-State actors' proactive commitments to achieve the Paris Agreement under the UNFCCC in spite of their government's non-participation? Is there any possibility that the various forms of transnational cooperation among non-State actors such as cities and private companies across the globe will develop international law including customary international law? This article analyses the role of non-State actors, especially of cities and companies, in the Paris Agreement in the context of development of international law.

II NON-STATE ACTORS UNDERTHE UNFCCC

Under the UNFCCC and the Kyoto Protocol, the role of non-State actors has been limited, reflecting their positions in the legal text. The focus of non-State actors has been on exerting influence in international negotiations, where States are the primary actors in sharing the burden of emission reductions. (11)

The role of non-State actors was initially highlighted at COP17 at Durban in 2011. COP20 at Lima in 2014 launched a Marrakech Partnership for Global Climate Action (GCA) and the Non-State Actor Zone for Climate Action (NAZCA), a central tool for the Lima Paris Action Agenda (LPAA) to bring together the commitments to action by various non-State actors. As of June 2018, 12,549 actors including 2,508 cities, 209 subnational regions, 2,138 companies, 479 investors and 238 civil society organisations were registered. (12)

The Paris Agreement in its preamble recognises 'the importance of the engagements of all levels of government and various actors'. COP21 in its decisions (13) 'welcomes the efforts of non-Party stakeholders to scale up their climate actions, and encourages the registration of those actions in the Non-State Actor Zone for Climate Action platform'. COP21 in its decisions also 'welcomes the efforts of all non-Party stakeholders to address and respond to climate change, including those of civil society, the private sector, financial institutions, cities and other subnational authorities' and 'invites the non-Party stakeholders... to scale up their efforts and support actions to reduce emissions and/or to build resilience and decrease vulnerability to the adverse effects of climate change and demonstrate these efforts via the Non-State Actor Zone for Climate Action platform.' COP21 also launched the Lima-Paris Action Agenda. The subsequent COP22 presidency convened the High-Level Meeting on Global Climate Action.

Participation of non-State actors at COP23 at Bonn in 2017 exceeded that of governments for the first time (14) and the Bonn-Fiji Commitment of Local and Regional Leaders to Deliver the Paris Agreement At All Levels was finally adopted. (15) The UNFCCC's report points out the importance of bringing together and connecting different actors, and describes possible GHG mitigation and adaptation polices and good practices to support the development of NDCs; non-State climate action supports the implementation and improvement of parties' bottom-up initiatives. (16) The enforcement of adaptation under the Paris Agreement also makes these bottom-up initiatives by non-State actors more crucial.

The Paris Agreement promoted the participation of various non-State actors in addition to traditional State actors. They employ the Paris Agreement to push forward their own activities through various instruments such as diplomacy, coercion, negotiation, persuasion, fact-finding and advocacy. The Talanoa Dialogue toward COP24 at Katowice in 2018 reviewed the progress under the Paris Agreement, including inputs from regions, States, cities, businesses and civil society based on Marrakech Partnership for Global Climate Action. Through this inclusive, participatory and transparent dialogue process, these instruments are intertwined with each other in a complex manner, but are expected to take stock of the collective efforts of parties to achieve the common goal of the Paris Agreement and to help countries implement and enhance their NDCs by 2020.

III INITIATIVES BY NON-STATE ACTORS

1. Cities

   Cities are vulnerable to, but at the same time have great potential to cope with, climate change (17) or reduce emissions. (18) Turku in Finland, for example, has launched a new Climate Plan in 2018 to make the city carbon neutral by 2029 and end the use of coal in energy' production by 2025. Recently proactive cities have created trans-municipal institutions such as the International Council on Local Environmental Initiatives (ICLEI) to promote robust municipal climate policies and provide information about compliance with the Mayors Climate Change Protection Center. (19)

   The former New York Mayor and Special Envoy to the UNFCCC, Michael Bloomberg, and California Governor Jerry Brown held the Global Climate Action Summit (GCAS) in 2018 for non-State actors, focusing on major issues to build up climate change efforts to the next stage and in response, the UNFCCC also identified actions on each of the issues. This is a new type of international cooperation, where cities lead and the international organisation supports, without involving the national government. (20) The C40 Cities Climate Leadership Group, (21) which calls for actions by 25 cities to realise the ambition of the Paris Agreement and carbon neutrality by 2050, has developed numerous ties with international organisations and private corporations. These transnational networks of non-State actors, if strengthened and enhanced, have potential to enhance transparency and legitimacy, reinforce their impact on the UNFCCC regimes by diffusing the norms with their urban climate laws, (22) and create a new international regime without directly infringing national sovereignty.

   Whereas cities may not yet be recognised subjects of international law, their law-making processes are beginning to have a significant impact on processes of global governance. (23) While top-down lawmaking often creates significant gaps between...