Lucas Bergkamp: Paris Climate Agreement May Be A ‘Trojan Horse’

  • Date: 06/01/16
  • Lucas Bergkamp, Energy Post

What will happen if the objectives of the Paris Climate Agreement are not achieved? Most people assume that since the agreement is non-binding, failure to reach the targets will necessitate new political action, writes Lucas Bergkamp, Partner at the Brussels-based law firm Hunton & Williams LL.P. But according to Bergkamp, what is likely to happen is that climate activists will instead turn to the judiciary to enforce the treaty. This, he argues, represents a threat to democracy and constitutional government.

At the COP-21 in Paris, 195 countries[1] negotiated a decision and an agreement on international climate change policy-making.[2] To a significant extent, the decision and agreement overlap and address many of the same issues, with the decision often going into more detail in an attempt to begin implementing the agreement. The Paris Agreement covers mitigation, adaptation, as well as ‘loss and damage,’ a process aimed at addressing harms caused by climate change, and establishes processes for financing and technology transfer. With respect to mitigation, it sets an ambitious objective of limiting the global average temperature increase to well below 2 °C or even 1.5 °C.[3] In pursuit of this objective, it establishes a procedural framework for future climate policy-making by the parties.

To assess the consequences of COP-21, it is necessary to analyze what the Paris Agreement does, and what it does not do, as a matter of both law and political dynamics. The question as to its binding effect does not have a simple answer. Even if the Paris Agreement is in some way legally binding, what exactly does it require and how could a signatory violate any of its provisions? As a related matter, although a multitude of political ramifications might apply, what are the tangible legal means of recourse to deal with non-compliance?

Yet there is more to the Paris Agreement than meets the eye. The agreement’s ambiguous wording and legal force (or lack thereof) tell only part of the story. The rest of it can be discerned by asking why so much time and effort has been spent on non-binding commitments and proclamations; if it is all non-binding and unenforceable anyway, why bother? […]

Trojan Horse

The Paris Agreement’s implicit reliance on political activism and the related non-hierarchical governance by the courts – a direct result of efforts to ensure the participation of the United States and other major-emitting Parties –  reflects the steep price the international community has had to pay to claim victory at COP-21. At its most fundamental level, this constitutes a threat to constitutional government, the separation of powers, and representative democracy. It may well result in an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges, and, thus, will undermine legislative power and the role of positive law in deciding legal disputes.

This risk of subversion of the rule of law is not well understood by politicians and governments. If this risk materializes, the non-binding parts of the agreement, which were the least haggled over, will become the most influential legal provisions. And, unlike executive governments, judges have no way of ensuring that other nations do their fair share; they can rely only on their colleagues’ enlightened thinking, which may not be as widespread as they might hope.

Irrespective of whether these features are parts of some intentional design, the Paris Agreement thus may turn out to be a Trojan horse. Ambiguous references to science, which is at risk of being politicized in any event, do not remedy this deficiency. While the agreement does little to reduce the threats it identifies, it creates risks of a different kind: it threatens our constitutional arrangements, including the separation of powers. In deciding on ratification, countries should consider not only the need for international coordination of climate policy, but also the protection of their constitutions, representative democracy, and the rule of law. Specifically, once they agree to Paris’ high collective ambition and ambitious substantive requirements, countries need to be mindful of the risks of the judiciary taking over when it becomes clear that the world will not deliver.[8]

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