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?Part of the answer is that the international climate negotiations have long served as the premier platform for climate policy ideas. Even short of an agreement, a well-articulated or well-advocated concept can exert influence on national political leaders and domestic regulatory bodies. More recently, however, the United Nations Framework Convention on Climate Change (UNFCCC) itself, whose annual year-end negotiating sessions have become a regular staple of front page news, has evolved from a rather ordinary, non-partisan treaty secretariat into a kind of global, pro-climate political movement, amplifying and legitimizing all manner of activism around climate change.These and other undercurrents will conspire to place climate change near the top of global policy priorities for decades to come, with important ramifications for national and sub-national policymakers and political systems.

Climate LitigationNowhere is this more apparent than in the “bottom up” nature of the Paris Agreement. By allowing individual Parties to the UNFCCC to offer up their own pledges, targets, and timetables for reducing emissions, the Paris Agreement seems both practical and achievable. Yet the fact that the sum total of these promises to reduce greenhouse gas emissions falls short of what the Parties themselves, with reference to the science, suggest is necessary to prevent dangerous climate change, opens up a palpable gap between ambition and obligation. The Paris Agreement defers to a periodic review process to try to close this gap, but its success would seem to depend on political will and technological prowess. Indeed, the agreement provides for no purely legal recourse to reduce emissions.

The Paris Agreement will bolster climate activists’ claims about the inadequacy of governments’ climate policies

The lack of any mechanism to overcome the ambition-obligation disparity will likely result in a failure to reach the collective targets. After all, countries are subject to the forces of (regulatory) competition, and have incentives to do as little as possible or at least lag behind.While the parties may think they will have to go back to the negotiation table once this happens, the reality may well be different. If the collective efforts appear to fall short of achieving the Paris Agreement’s objectives, it is likely that instead the judiciary will be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will seek the help of the courts to get governments to “do the right thing.”

In this vein, for example, Mike Burger, the Executive Director of Columbia University’s Center for Climate Change Law, considers failure to take adequate climate action illegal, and warns that “if governments can’t set a course, courts may have to do it for them.”[4]The London-based Business & Human Rights Resource Centre has commented that “[a]mid uncertainty about how the agreement reached at the COP-21 Paris climate conference will be implemented, civil society can take charge through climate litigation.”[5]According to Dutch climate litigator Roger Cox, national law may well entail a legal obligation for states to bring national climate policy into line with the (well below) two-degree objective established under international law.[6] If these statements are indicative of what is to come, courts will have to rule with some regularity on climate change policies.Thus, the Paris Agreement will bolster climate activists’ claims about the inadequacy of governments’ climate policies. To support their cases, they can invoke several features of the agreement, including its recognition of the need for urgent action to fight dangerous climate change, its high goals, and its ambitious substantive provisions, all of which can be cited to give content to the parties’ procedural obligations.

In other words, climate policy law suits against governments to force them to adopt stronger emission reduction policies are not necessarily prevented by the absence of binding emission reduction obligations or targets in the Paris Agreement. Experience in The Netherlands and other countries, including Pakistan, has shown that courts concerned about the government’s failure to adequately address climate change, are willing to entertain such law suits and to order governments to step up their climate policies, even though such orders are legally doubtful.[7]Trojan HorseThe 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.

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

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]Policymakers should be aware that signing away control over climate policy to unaccountable and unelected actors is not in the public interest. Nor is it a viable path to rational, effective and sustainable climate policies.