A Study On The Improvement Of The Compliance Mechanism Under The Paris Agreement

The Paris Agreement was adopted at the 21st Conference of the Parties(COP)to the United Nations Framework Convention on Climate Change(UNFCCC)on December 12,2015,and entered into force on November 4,2016.The Paris Agreement sets a temperature goal and establishes a series of mechanisms and requirements,such as nationally determined contributions(NDCs),conservation of sinks and reservoirs of greenhouse gases,climate change education,financial support,technology transfer,capacity building,transparency framework and global stocktake.To ensure its effective implementation,the Paris Agreement creates a compliance mechanism.However,the result is not promising,which indicates that the compliance mechanism has not effectively played its role.There are four major problems.First,its initiation modes are limited,as it establishes only self-initiation and Compliance Committee initiation.Second,its response measures are useless,as it prescribes equivocal facilitative measures and excludes punitive measures.Third,its status is relatively isolated,as it is not closely linked to other mechanisms.Fourth,its preventive awareness is weak,as it tends to deal with existing non-compliance cases but ignores the possibility of non-compliance.Compliance theories of international law inspire the improvement of the compliance mechanism under the Paris Agreement.The mainstream compliance theories can be divided into two major categories:one is based on consensus and the other is grounded on interests.The first category,represented by natural law,legal positivism and pure theory of law,emphasizes that international law is the consensus of human society,while the second category,featured by realism and liberalism,considers the interests as the motivation that drives states to comply with international law.The former presupposes that contracting parties act in good faith,but in fact,many of them do not show their willingness to comply;the latter highlights the power of interests but ignores the value of consensus.In the long run,it is necessary to build "consensus" and provide real support for contracting parties who cannot comply.However,in the short term,it is indispensable to use "interests" to stimulate contracting parties who are unwilling to comply.It is also beneficial to learn from the compliance mechanisms of multilateral environmental agreements(MEAs).In recent decades,a series of MEAs,which aim to solve global environmental problems,have established compliance mechanisms,including the Montreal Protocol on Substances that Deplete the Ozone Layer,the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity.In terms of institutional arrangements,the Compliance Committee and the Meeting of Parties(MOP)are entrusted with different powers concerning the compliance issue.In terms of initiation modes,contracting parties and the Secretariat are integrated as the initiators of compliance procedures.In terms of response measures,punitive measures are introduced,and facilitative measures are specified.In terms of mechanism synergy,these compliance mechanisms cooperate closely with financial and technical mechanisms to provide real support.In terms of preventive awareness,these compliance mechanisms clearly emphasize their concern for the possibility of non-compliance.Therefore,with a consensus-and-interest-based approach,we can improve the compliance mechanism under the Paris Agreement from the perspectives of initiation modes,response measures,mechanism synergy and preventive awareness,to enhance willingness and ability to comply with clauses.First,initiation modes should be increased,with party-to-party referral and Secretariat referral integrated.A guide should be provided for all kinds of initiation modes,and initiation in bad faith should be avoided.Second,response measures should be enhanced.Punitive measures should be introduced,with the MOP entrusted with the power to issue a warning or make a decision to suspend carbon trading and other rights in the case of repeated non-compliance.Facilitative measures should be intensified,with the Compliance Committee monitoring the implementation of compliance action plans and prioritizing carbon trading of contracting parties that fulfill their obligations under the Paris Agreement.The MOP should also coordinate the allocation of financial support,technology transfer,and capacity building.Moreover,the Compliance Committee should strengthen communication with relevant contracting parties and adopt punitive measures prudently.Furthermore,a resource management mechanism should be established,the criteria for good compliance should be clarified,and the priority to carbon trading should be given without disturbing the market.Third,mechanism synergy should be promoted.The content of NDCs should be assessed under the compliance mechanism.In addition,obligations to communicate should be established in the mechanisms of climate change education as well as conservation of sinks and reservoirs of greenhouse gases,and the Compliance Committee should consider issues relating to these two mechanisms and pay attention to the double accounting that may result from the carbon trading mechanism.It is worth noting that the assessment of the content of NDCs should be facilitative,and financial support should be provided for these mechanisms to form a comprehensive synergy.Fourth,preventive awareness should be embodied in the principles and specific provisions,including initiation modes and response measures,to minimize the risk of non-compliance.The Compliance Committee should especially pay close attention to contracting parties with obviously insufficient willingness or ability to comply and conduct rigorous pre-consideration of possible non-compliance to avoid the abuse of preventiveness.