by Alexander Grene

What is the Paris Agreement?

The Paris Agreement is a 2015 international treaty on climate change signed by 196 countries under the United Nations Framework Convention on Climate Change (UNFCCC). The United States is a signatory to the treaty – it briefly left the agreement in 2020 during the Trump administration, but rejoined in early 2021 under President Biden.

In the United States, the Paris Agreement technically isn’t a treaty – it’s an executive agreement.¹ This is because in American constitutional law, treaties have to be ratified by the Senate, whereas an executive agreement can be negotiated and signed by the President with foreign heads of state, without getting approval from Congress.

Is the Paris Agreement legally binding?

Yes, in a somewhat abstract sense:

1. There are no penalties for any nation breaking the terms of the Agreement.
2. Nations set their own individual goals for progress, and those goals are non-binding. The Agreement doesn’t compel signatory countries to do what they pledge to do in their NDCs, or curb their emissions by any specific amounts; nor does it ban any specific emissions-creating practices.
3. Most of the articles of the Agreement are not binding. Only a few items are mandatory – and even in most of the binding items, the language includes qualifiers that create significant flexibility.

Scope of this Article

Reaching For Zero is about the United States and climate change, and is written for non-lawyers. I’m reviewing the Paris Agreement to examine the United States’ obligations and commitments under it. To do so, this article will cut a line between parts of the Paris Agreement that create obligations for the United States and everything else in the Agreement, which is either (a) non-binding or (b) not directed at the U.S. That means a lot of subtle distinctions between different types of non-binding commitments – things that are “encouraged”, “suggested” or “recommended” – will not be fully addressed. Nor will obligations placed on UN administrative bodies, panels, or other entities that are not the United States.

For a more nuanced, legalistic discussion of the Paris Agreement’s varying use of legal character and the holistic concept behind those choices, Professor Lavanya Rajamani’s “The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations” does a far better job than I could or will do.

Onward!

In this article, we’ll cover:

• Obligations
• Non-Binding Agreements / Goals / Encouragements
• Global Emissions-Trading Market: Article 6
• Summary: U.S. obligations under the Paris Agreement

Obligations

1. Nationally Determined Contributions (NDCs), Article 4: NDCs are some of the very few real, solid obligations in the Paris Agreement. Every nation is required to write out their plans for intended emissions reductions and submit them to the United Nations Framework Convention on Climate Change (UNFCCC); these plans, called Nationally Determined Contributions (NDCs), are laid out in five-year increments.² Each NDC should represent an evolution of the previous NDC, and should reflect the “highest possible ambition” of emissions reduction.³ Nations must pursue domestic measures aimed at meeting the goals outlined under their NDCs⁴, and are obliged to release information about their emissions and reduction efforts with “environmental integrity, transparency, accuracy, completeness, comparability and consistency, and ensure the avoidance of double counting.”⁵ For our purposes: the United States is legally bound to make NDCs, to try to meet the goals listed in those NDCs, to make new NDCs that reflect updated goals from previous US NDCs, and to be honest about all results throughout the process. So far, the US has submitted two NDCs – one for 2025, one for 2030. Both of these will be examined in our article on the U.S. NDCs and Long Term Strategy, which will be linked here.
2. Adaptation planning measures, Article 7: Article 7 is about countries taking measures to deal with the damaging effects of climate change, present and future, and includes two “obligations.” The Agreement says “each Party shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions.”⁶ It also says that : ‘Continuous and enhanced international support shall be provided to developing country Parties’ for taking adaptation measures.⁷ It could be argued that neither of these statements is actually binding. “Shall” is generally binding language in legalese; however, “as appropriate” is a powerful back door that (if used creatively) could essentially negate the binding-ness of this provision in most situations. As for the second obligation, it doesn’t specify who has to provide that international support; it just says that support has to be provided.
3. Money, Article 9: The United States assumes two obligations under Article 9. First: “Developed countries shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention.”⁸ Second: Every two years, developed nations must communicate quantitative and qualitative information about their funding, including projected levels of public financial resources to be provided to developing countries, and information on support for developing countries through public interventions.⁹ Article 9 is facially straightforward, but doesn’t say (a) how much money is required (b) from which countries in (c) which respective percentages. It’s worth noting that if hard-cash amounts were included, the U.S. President would likely have been unable to sign the Paris Agreement without Congressional approval: Congress holds the “power of the purse” under the Constitution, meaning the President can’t spend money without their votes. It’s also worth noting that there’s some debate about whether Article 9 creates new obligations for developed countries to financially support developing countries, or just reaffirms previously existing financial mandates.
4. Technology, Article 10: Parties shall “strengthen cooperative action on technology development and transfer” in order to mitigate and adapt to climate change.¹⁰ While this statement is theoretically binding, the phraseology is so ambiguous that it’s more of a suggestion to work together on green-tech sharing than it is a binding requirement to perform anything in particular. Clause 6 of the Technology provision stipulates that “support, including financial support, shall be provided to developing country Parties for the implementation of this Article,” but doesn’t specify who has to provide that support.¹¹
5. Capacity-Building, Article 11: In the Paris Agreement, “capacity-building” means enhancing developing countries’ ability to act against climate change by developing their technology, accessing funding, increasing education, training, public awareness and information transfer.¹² Developed countries like the U.S. are not required to help capacity-build, but “All Parties enhancing the capacity of developing country Parties to implement this Agreement… shall regularly communicate on these actions or measures on capacity – building.”¹³ For our purposes: if the United States decides to help developing countries build their climate change-fighting capacities, it is obliged to “regularly communicate” regarding what it’s doing.
6. Education, Article 12: This short Article states that “Parties shall cooperate in taking measures, as appropriate, to enhance climate change education, training, public awareness, public participation and public access to information.”¹⁴ This provision is vaguely worded, includes an “as appropriate” qualifier, and does not specify who has to cooperate or take measures – so it’s unlikely that Article 12 can be applied in an obligatory way to any specific country, including the United States.
7. Enhanced Transparency Framework (ETF) and Biennial Transparency Reports (BTRs), Article 13: Like the Article 4 NDCs, the Article 13 ETF and BTRs are some of the few hard obligations in the Paris Agreement. Every two years, starting in 2024, every nation is required to provide (a) a national inventory report of man-made emissions by sources and removals by sinks of greenhouse gases,¹⁵ (b) any information necessary to track that nation’s progress toward meeting their NDCs,¹⁶ and (c) information on any measures taken to stave off or adapt to the effects of climate change.¹⁷ Additionally, developed nations like the United States must provide (d) information on financial, technology transfer, or capacity-building support given to developing nations.¹⁸ Additionally, every nation’s submitted information must undergo a “technical expert review,” and every nation must participate in a “multilateral consideration of progress’ with respect to its efforts on finance, and ‘implementation and achievement’ of its NDC.¹⁹ Article 13 also says that support “shall be provided” to developing countries for implementing the ETF²⁰ and building transparency-related capacity,²¹ although developed nations like the U.S. aren’t specifically told to provide that support. For our purposes: every two years starting in 2024, the United States is required to submit (a), (b), (c) and (d) from above, written out in BTR format (there’s a template), and go through the UNFCCC’s grading process on how it’s doing.

Non-Binding Agreements / Goals / Encouragements

If you’re an environmentally-minded person, chances are that a lot of the goals you’d like to see made mandatory are, in fact, included in this section. You’ll also see a lot of the same concepts (adaptation, capacity-building, education, etc.) repeated between the Obligations and non-binding parts – that’s because in writing this article, we’re separating the binding commitment parts from the softer, flexible stipulations that surround those commitments.

1. 2.0° C vs 1.5° C temperature goals, Article 2 & 3: The member states agree that their goal is to limit temperature increase to well below 2.0° C, while pursuing measures to try and limit it to 1.5° C.²² Article 3 says that all nations are supposed to undertake ambitious efforts across the whole of the agreement to try and meet this goal.²³
2. Global emissions peaking and Net Zero Emissions, Article 4: States agree to attempt to reach global peaking of anthropogenic emissions as soon as possible, and to “undertake rapid reductions thereafter” to achieve a balance between man-made emissions and removals by greenhouse-gas sinks – in other words, a net zero emissions scenario – in the second half of this century.²⁴ “Peaking” is the point at which the maximum amount of emissions is reached – a country has “peaked” when its overall emissions go into a permanent decline. As of 2022, the United States’ peak emissions occurred in 2005 and 2007.²⁵
3. Long Term Strategy (LTS), Article 4: All nations “should strive” to develop and communicate long-term strategies for low greenhouse gas emissions.²⁶ The U.S. has already complied with this provision. The United States Long Term Strategy, which was released in 2021, is actually a Net Zero by 2050 plan – we’re working on an article examining its contents, which will be linked here.
4. Protecting Forests, Greenhouse Gas Sinks & Reservoirs, Article 5: Nations are encouraged to “conserve and enhance” greenhouse gas sinks and reservoirs.²⁷ “Sinks and reservoirs” in this case seems largely to refer to the world’s forests, although other types of carbon sinks exist, both natural and man-made.
5. Adaptation, Article 7: Article 7 establishes a common goal of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.”²⁸ Article 7 “encourages” nations to strengthen their cooperation by sharing information, good practices, experiences, and other informational resources, and assist developing countries in their pursuit of the same goals.²⁹
6. Loss and Damage, Article 8: Loss and Damage is the Paris Agreement term for the devastation caused by climate change. Article 8 of the Paris Agreement puts the Warsaw International Mechanism for Loss and Damage (which is basically a reporting system for damage and best-practices information reference center) under the authority of the UNFCCC³⁰. Article 8 says nations “should enhance understanding, action and support… as appropriate… with respect to loss and damage associated with the adverse effects of climate change.”³¹ If this seems somewhat toothless, there’s a good reason. Developing island nations like the Marianas (which are facing literal existential threats from rising sea levels, due to anthropogenic climate change caused disproportionately by large developed nations like the United States)³²
7. Capacity-Building, Article 11: Article 11 says developed nations like the United States “should” enhance support for capacity-building in developing countries³³, pointing specifically to small island developing states³⁴. As mentioned above, if the U.S. chooses to do so, it is obliged to report on its efforts.

Global Emissions-Trading Market: Article 6

*There’s no United States obligation or encouragement to use the Article 6 market – I’m covering this because (a) it’s a direct, important result of the Paris Agreement, (b) the U.S. could engage in the Article 6 market, and (c) if the U.S. did use the Article 6 market, there are affirmative obligations that would be created by doing so.

One of the more interesting and pragmatic parts of the Paris Agreement, Article 6 – “Voluntary Cooperation” – establishes a high-level framework for countries to improve their NDC performance by buying emissions credits (called “Internationally Transferred Mitigation Outcomes,” or ITMOs) from other countries, who have to add a corresponding amount of debits to their annual emissions total as if they’d done the polluting instead of the buyer.³⁵

The idea behind the Article 6 market is simple: many countries with larger amounts of money have high per-capita carbon footprints, and many developing countries have large carbon sinks (i.e. forests, undeveloped tracts of rural land), lower per-capita carbon footprints, and less public money. Lowering a developed nation’s carbon footprint has proven to be an expensive and difficult process, both practically and politically – and developing nations need money to fund sustainable development projects. So by paying developing nations a per-metric-ton carbon dioxide equivalent (Co₂e) price, a developed nation can reduce the emissions number they get graded against on their NDC evaluation.

These country-to-country transactions must be reported to the UNFCCC, and any country using the Article 6 market, including the developing nation receiving the money, is supposed to “promote sustainable development and ensure environmental integrity and transparency” and “apply robust accounting” to ensure that there’s no double counting, cheating or number-fudging concerning emissions.³⁶ Article 6.4 establishes a UN body to oversee the transfer of ITMOs.³⁷

While several of the details of the Article 6 market are still being worked out, the 2021 COP26 meeting in Glasgow resulted in a set of ground rules governing its operation; those rules are beyond the scope of this article, but you can read them here if you’re interested.

Switzerland made two deals under the Article 6 program in 2020 – one with Peru, and one with Ghana. Neither of these deals has a hard-cash amount written out, and both deals work the same way – either country can buy from or sell to the other. The assumption, though, is that (a) Switzerland, which has higher per-capita emissions than Ghana or Peru, will pay those countries some amount of money to reduce the overall Swiss emissions number when Switzerland reports their NDC progress to the UNFCCC, and that (b) Peru and Ghana will use that money to fund sustainable development projects, in compliance with their obligations under Article 6.

There’s plenty of speculation about the direction that the Article 6 global carbon market will take, but it’s still developing, and apart from the early-stages Swiss deals, it hasn’t been used much yet.

Summary

There you have it. The Obligations section covers what the U.S. is required to do under the terms of the Paris Agreement. The main obligations are creation and submission of National Domestic Contributions (NDCs), compliance with the Enhanced Transparency Framework, and (starting in 2024) creation and submission of Biennial Transparency Reports (BTRs). The Non-Binding section covers what the U.S. is encouraged to do.

The Paris Agreement is the result of lengthy negotiations between 196 nations with very different priorities. The Paris Agreement’s ambiguous legal character, and the somewhat freeform obligations it places on the United States, are the result of a negotiated balance between these interests.

References

1. Gwynne Taraska, “The Paris Climate Agreement,” pg. 1. Center for American Progress, December 15, 2015. Link.
2. United Nations Framework Convention on Climate Change (UNFCCC), “Nationally Determined Contributions.” Link.
3. UNFCCC, “Nationally Determined Contributions.” Link.
4. UNFCCC, “Nationally Determined Contributions.” Link.
5. Paris Agreement Art. 4 Clause 13. Link.
6. Paris Agreement Art. 7 Clause 9. Link.
7. Paris Agreement Art. 7 Clause 13. Link.
8. Paris Agreement Art. 9 Clause 1. Link.
9. Paris Agreement Art. 9 Clause 5, 7. Link.
10. Paris Agreement Art. 10 Clause 2. Link.
11. Paris Agreement Art. 10 Clause 6. Link.
12. Paris Agreement Art. 11 Clause 1. Link.
13. Paris Agreement Art. 11 Clause 4. Link.
14. Paris Agreement Art. 12 Clause 1. Link.
15. Paris Agreement Art. 13 Clause 7a. Link.
16. Paris Agreement Art. 13 Clause 7b. Link.
17. Paris Agreement Art. 13 Clause 8. Link.
18. Paris Agreement Art. 13 Clause 9. Link.
19. Paris Agreement Art. 13 Clause 11. Link.
20. Paris Agreement Art. 13 Clause 14. Link.
21. Paris Agreement Art. 13 Clause 15. Link.
22. Paris Agreement Art. 2 Clause 1. Link.
23. Paris Agreement Art. 3 Clause 1. Link.
24. Paris Agreement Art. 4 Clause 1. Link.
25. United States Environmental Protection Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks 1990-2018, pg. ES-27. Link.
26. Paris Agreement Art. 4 Clause 19. Link.
27. Paris Agreement Art. 5 Clause 1. Link.
28. Paris Agreement Art. 7 Clause 1. Link.
29. Paris Agreement Art. 7 Clause 7. Link.
30. Paris Agreement Art. 8 Clause 2. Link.
31. Paris Agreement Art. 8 Clause 3. Link.
32. Mj Mace & Roda Verheyen, Loss, Damage and Responsibility after COP21: All Options Open for the Paris Agreement, pg. 203. Review of European, Comparative & International Environmental Law, Issue 25 (2016). Link.
33. Paris Agreement Art. 12 Clause 3. Link.
34. Paris Agreement Art. 12 Clause 1. Link.
35. Paris Agreement Art. 6 Clauses 1, 2, 3, 4. Link.
36. Paris Agreement Art. 6 Clause 2. Link.
37. Paris Agreement Art. 6 Clause 4. Link.