The Paris Climate Agreement and Bederman's Six Myths About International Law and International Legal Practice

• Author: Markus G. Puder
• Position: The Honorable Herbert W. Christenberry Professor of Law, Loyola University New Orleans College of Law. First Legal State Examination, Ludwig-Maximilians University, Munich, Germany; Second Legal State Examination, Munich Upper Court of Appeals; LL.M., Georgetown University Law Center; Ph.D. in Law, Ludwig-Maximilians University. Member of the ...
• Pages: 233-264

The Paris Climate Agreement and Bederman’s

Six Myths About International Law and

International Legal Practice

M

ARKUS

G. P

UDER

, P

H

.D.*

“Let us face it: there is no planet B.” Emmanuel Macron**

In his seminal work, International Law Frameworks, the late Professor

David J. Bederman of Emory Law School confronts and debunks several

myths that have persistently clouded international law and international

legal practice. In homage to Professor Bederman’s insightful and creative

work, my article harnesses his myths to elucidate recent developments in the

evolving field of international climate law.

I. Introduction***

The international scientific, legal, and political conversation about our

climate barely covers four decades.

1

As the spectrum of opinions in the

climate debate has continued to range from cataclysmic doomsday scenarios

of life, or the absence thereof, on a hotter planet

2

to conspiracy theories

* The Honorable Herbert W. Christenberry Professor of Law, Loyola University New

Orleans College of Law. First Legal State Examination, Ludwig-Maximilians University,

Munich, Germany; Second Legal State Examination, Munich Upper Court of Appeals; LL.M.,

Georgetown University Law Center; Ph.D. in Law, Ludwig-Maximilians University. Member

of the New York State Bar and the U.S. Supreme Court Bar.

** July Hirschfield Davis, Macron Critiques Trump’s Policies in Speech to Congress, N.Y. T

IMES

(Apr. 25, 2018), https://www.nytimes.com/2018/04/25/us/politics/macron-congress-speech-

trump.html.

*** This article develops themes broached in my keynote address at the 23rd International

Petroleum Environmental Conference (IPEC-23) in New Orleans, Louisiana. I would like to

thank John A. Veil of Veil Environmental LL.C. and the organizers of IPEC-23. The views

advanced in this article are strictly mine.

1. John W. Zillman, A History of Climate Activities, 58 (3) Bulletin of the World Meterological

Org. [WMO] 141 (2009) (referring to the First World Climate Conference convened under the

auspices of the World Meteorological Organization in 1979), https://ane4bf-datap1.s3-eu-west-

1.amazonaws.com/wmocms/s3fs-public/article_bulletin/related_docs/58_3_zillman_en.pdf?I_

nHSQzd.63T9FloxaG7rtlV8pQCUW4F.

2. See generally M

ARK

L

YNAS

, S

IX

D

EGREES

: O

UR

F

UTURE ON A

H

OTTER

P

LANET

(Nat’l

Geographic 2008).

THE INTERNATIONAL LAWYER

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234 THE INTERNATIONAL LAWYER [VOL. 52, NO. 2

labeling climate change a Chinese hoax,

3

international climate law has

moved quite slowly.

4

Lawmaking efforts to protect the global climate did not gain steam until

the 1990s. Prior to the arrival of the Paris Agreement in late 2015,

5

they

resulted in the UN Framework Convention on Climate Change of 1992

(UNFCCC),

6

the Kyoto Protocol of 1997,

7

and the Copenhagen Accord of

2009.

8

The UNFCCC pursues the long-term objective to stabilize “greenhouse

gas concentrations in the atmosphere at a level that would prevent

dangerous anthropogenic interference with the climate system.”

9

Commitments under the UNFCCC, which are generally prefaced by

“shall,” differ by degrees of development.

10

In addition to inventorying and

reporting information related to the implementation of the UNFCCC, all

parties shall mitigate climate change by reducing or avoiding greenhouse gas

emissions.

11

But only developed countries shall deploy policies and measures

(PAMs) to abate and mitigate climate change.

12

Yet, the PAMs are not linked

up with a legally binding target beyond the aim to return to 1990 levels.

13

Finally, a subset of developed countries shall collectively mobilize financial

resources for developing countries.

14

Especially through the Conference of

the Parties (COP), which serves as supreme decision-making body and

mechanism to regularly review and progressively tighten international

3. Edward Wong, Trump Has Called Climate Change a Chinese Hoax. Beijing Says It Is Anything

But., N.Y. T

IMES

(Nov. 18, 2018), https://www.nytimes.com/2016/11/19/world/asia/china-

trump-climate-change.html.

4. See, e.g., Daniel Bodansky, et al., Int’l Relations and Global Climate Change, The History

and Legal Structure of the Global Climate Change Regime at 24, Potsdam Institute for Climate

Impact Research (2001).

5. See generally Paris Agreement in United Nations Framework Convention on Climate

Change [UNFCCC], Report of the Conference of the Parties on its Twenty-First Session,

Addendum, at 21, U.N. Doc. FCCC/CP/2015/10/Add.1(Jan. 29, 2016) [hereinafter PA]. For

Decision 1/CP.21 of the Conference of the Parties to which the Paris Agreement is attached, see

Adoption of the Paris Agreement, Decision 1/CP.21, in COP Report No. 21, Addendum, at 2,

U.N. Doc. FCCC/CP/2015/10/Add/1 (Jan. 29, 2016) [hereinafter PD].

6. See generally United Nations Conference on Environment and Development: Framework

Convention on Climate Change, U.N. Doc. A/AC/23718 (Part II)/Add.1, 31 I.L.M. 849 (May,

9, 1992) [hereinafter UNFCCC].

7. See generally Conference of the Parties to the Framework Convention on Climate Change:

Kyoto Protocol, U.N. Doc. FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (Dec. 10, 1997)

[hereinafter Kyoto Protocol].

8. See generally Conference of the Parties, Rep. of the Conf. of the Parties on its Fifteenth Session,

U.N. Doc. FCCC/CP/2009/11Add.1, Decision 2/CP/15, at 4 (Mar. 30, 2010) [hereinafter

Copenhagen Accord].

9. UNFCCC, supra note 6, art. 2.

10. See generally id.

11. Id. arts. 4.1, 12.

12. Id. art. 4.2(a).

13. Id. art. 4.2(b).

14. Id. art. 4.3.

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2019] PARIS CLIMATE AGREEMENT & BEDERMAN’S SIX MYTHS 235

climate law,

15

the UNFCCC is alive and well.

16

But this cannot be said

about the Kyoto Protocol and the Copenhagen Accord.

The Kyoto Protocol grew out of the UNFCCC.

17

Sparing developing

countries, it imposed on developed countries ambitious targets and

timetables.

18

These were mollified by flexibility-and-market mechanisms to

internationally transfer mitigation outcomes.

19

Ultimately, however, the

Kyoto Protocol failed to deliver. After the first commitment period expired,

a second commitment period under the Doha Amendment to the Kyoto

Protocol, with tightened obligations for even fewer countries and the

European Union,

20

never entered into force.

21

While the international community debated whether the Kyoto Protocol

should be extended or replaced by a new global climate treaty, the

Copenhagen Accord emerged in a political intermezzo.

22

Independent of

the uncertainties surrounding its status,

23

the Copenhagen Accord, as

incorporated into the UNFCCC’s ambit,

24

offered a new paradigm for

achieving mitigation goals: self-declared national emission limitation pledges

submitted by all countries.

25

But the horizon of the Copenhagen Accord did

not extend beyond 2020.

26

The package that emerged in Paris comprises several components.

Foremost, the Paris Decision, which was taken by the conference of the

parties, provided the vehicle for formally adopting the Paris Agreement—a

new international instrument with legal force, defining how countries will

implement their UNFCCC commitments after 2020.

27

Ahead of the

15. Id. art. 7.

16. See generally Annalisa Savaresi, The Paris Agreement: Reflections on an International Law

Odyssey, 13 E

UR

. S

OC

’

YOF

I

NT

’

L

L. 1 (2016).

17. UNFCCC, supra note 6, at 869.

18. Kyoto Protocol, supra note 7, at 34, 42; UNFCCC, supra note 6, at 872.

19. Kyoto Protocol, supra note 7, at 34–35, 38, 40.

20. Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol,

Rep. of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on its

Eighth Session, FCCC/KP/CMP/2012/13/Add.1, annex I (Feb. 28, 2013).

21. See Press Release, UNFCCC, Doha Amendment (Sept. 28, 2018) (reporting that (1) 144

instruments of acceptance are required for the entry into force of the amendment; and (2) as of

March 15, 2018, 111 parties have deposited their instruments of acceptance).

22. See generally Lavanya Rajamani, The Making and Unmaking of the Copenhagen Accord, 59

I

NT

’

L

& C

OMP

. L. Q. 824 (2010).

23. Id. at 828–31 (discussing that neither a decision of the Conference of the Parties nor an

independent plurilateral agreement, but a political rather than a legal instrument).

24. Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 A

M

. J. I

NT

’

L

L.

288, 292 (2016) (referring to the 2010 Canc´un Agreements).

25. Copenhagen Accord, supra note 8, ¶ 4, app. I (developed countries identify their

quantified economy-wide emission targets), app. II (developing countries describe their

nationally appropriate mitigation actions).

26. See Bodansky, supra note 24, at 292.

27. Center for Climate and Energy Solutions, Paris Climate Agreement Q&A, at 1 (June

2017), https://www.c2es.org/site/assets/uploads/2017/06/paris-climate-agreement-qa.pdf

[hereinafter Paris Climate Agreement Q&A].

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SMU DEDMAN SCHOOL OF LAW