2.1 Sustainability in Climate Change Law

The assertion has rightly been made that, “sustainable development and climate change mitigation are inseparable issues”.⁵ This is because Greenhouse Gas Emissions (GHG s) intensify complex global positive feedback loops that undermine sustainable development. In a similar vein, sustained suppression of GHG s emission will trigger negative feedback loops that are likely to enhance sustainable development. Sustainable development and climate change are therefore inextricably entwined in a “circular relationship”.⁶

Art 2 of the United Nations Framework Convention on Climate Change (UNFCCC) embodies the pursuit of sustainable development. The Convention aims at the “stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.⁷ Such stabilisation would “enable economic development to proceed in a sustainable manner”.⁸

This discussion interprets the foregoing provision of the Convention as the apt definition of sustainability in a climate change law context. Stabilisation of GHG s bespeaks a quest for climate energy balance by ensuring that economic activities do not accelerate the emission of pernicious GHG s. Such balance if achieved, engenders negative feedback loops, and checks negative anthropogenic activities that accelerate climate change.⁹

Sustainability conceived in the foregoing manner, is in consonance with the universal definition of sustainable development adopted by the Brundtland Commission as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs”.¹⁰ Permitting dangerous anthropogenic activities to put the earth’s climate out of balance will most definitely compromise the ability of future generations to meet their own needs as contemplated under the UNFCCC.¹¹

Consequently, the term “dangerous anthropogenic activities” in art 2 of the UNFCCC is decipherable as a euphemism for the pursuit of economic development in complete disregard of its effects on the global climate.¹² The proffered conception of sustainability in a climate change context, resonates with the three-pronged conceptualisation of sustainable development as an embodiment of economic; ecological and social components.¹³

To reify the nexus between sustainable development and climate change, art 7(1) of the Paris Agreement underscores the fact that climate action is geared towards the realisation of sustainable development. It provides:

Parties hereby establish the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development and ensuring an adequate adaptation response in the context of the temperature goal referred to in art 2.¹⁴

Art 4(1) of the Paris Agreement amplifies the inseparable nature of sustainable development and climate change. It predicates limiting of the increase in the global temperature to 1.5^oC upon achieving:

a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development.¹⁵

Sustainable development in a climate change context, simply put, strives to strike a delicate balance between ecological limitations on GHG s and the realisation of economic development. Art 4(1) of the Paris Agreement above emphasises this balance.

This discussion, therefore, conceives the relationship between sustainable development and climate change as a circular and indivisible one. Figuratively speaking, the two concepts are joined at the hip. The above conception of the nexus between sustainable development and climate change is employed as a springboard in evaluating the larger nexus between sustainable development and participation.

The author takes cognisance of studies that treat sustainable development and climate change as two independent concepts with varying incidences of confluence.¹⁶ It is, nevertheless, argued that this differentiation negates a functional and practical approach to addressing climate change. The differentiation elides indispensable causality in the relationship between sustainable development and climate change impacts.

2.2 Public Participation in Climate Change Context

Defining public participation in the context of climate change law is perhaps more technical than defining sustainability. This is because there is no universal definition of public participation that can be extrapolated to the climate change context. Further, the concept of public participation is open to multiple interpretations.¹⁷

Notwithstanding the difficulties involved in providing a definition, most attempts at evaluating public participation focus on its practical attributes.¹⁸ Thus, for instance, is public participation merely invoked to rubberstamp decisions that have already been taken or is there evidence of actual citizen control and exercise of power over decisions that are made?¹⁹ Does public participation refer to the involvement of sovereign states and other actors on the international plane or does it solely relate to actors within a state?

art 10 of the Rio Declaration provides procedural markers of public participation which conform to a practical attributes test. It highlights:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.²⁰

It is, therefore, presumable that by guaranteeing access to information; actual participation in decision making processes; access to judicial and administrative proceedings; and appropriate remedies, practical as opposed to theoretical or tokenistic public participation will be achieved.

The foregoing markers of practicality are discernible in both the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters²¹ and the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.²² In another sense, climate change participation could include but would not be limited to actions contemplated under goal 13 of the Sustainable Development Goals: ‘climate action’.²³ The question of who participates is germane in decoding ‘participation’ as a concept in climate change parlance. This is because the typology of participants and the level of their participation is ultimately informed by the unique nature of climate change. This means that the cadre of climate change participants would not necessarily be generalisable to other subject areas into which this book inquires.

The UNFCCC calls for the “widest possible participation by all countries”.²⁴ On the face of it, a textualist interpretation of the Convention would limit participation to state Parties of the UNFCCC. However, the Lima-Paris Action Agenda at the Conference of the Parties (COP20) in December 2014, in Lima, Peru, set the stage for global climate change participation by NSA s.²⁵ This culminated in the launch of the online portal for Non-State Actor Zone for Climate Action (NAZCA) portal (presently the Climate Action Portal) on either an individual or collaborative basis.²⁶

Decision -/CP.21 on the adoption of the Paris Agreement, in Part V, explicitly invited non-Party stakeholders “to [among others] address and respond to climate change” by scaling up their efforts and supporting actions necessary for reducing emissions and decreasing vulnerability to adverse climate change effects and to document such efforts through NAZCA.²⁷

With a view to mitigating GHG s and to support the realisation of sustainable development, the Paris Agreement explicitly established a voluntary mechanism to among others “incentivise and facilitate participation in the mitigation of greenhouse gas emissions by public and private entities authorised by a Party”.²⁸ The agreement further sought to “enhance public and private sector participation in the implementation of nationally determined contributions”.²⁹

Consequently, after the Paris Agreement came into force,³⁰ participation in the global climate change arena by NSA s has proliferated.³¹ NSA s identifiable as cities, regional governments, businesses, the financial sector, civil society groups among others has proliferated. Broad based climate action by NSA s not only augments mitigation targets set by states but also possesses real potential to bridge the emissions gap.³² Such action proceeds on the bases of both individual and cooperative action³³ and is one of the most innovative approaches to ‘participation’ in climate change governance.³⁴

With the foregoing terminological fixed points of orientation in mind, it is important to interrogate the causal nexus between the twin concepts of sustainability and participation in climate change law and thereafter demonstrate how such a causal link presents itself.

2.3 Impact of Participation on Sustainability

Broad based participation if effective,³⁵ for instance as contemplated on the NAZCA portal, should result in climate change sustainability previously defined in this context as, “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.³⁶ The global coterie of climate actors at diverse levels of participation all strive for the common and overarching goal of stabilisation of GHG s in the atmosphere to sustain climate balance. These actors, succeed to varying degrees, but in this way, participation secures and advances sustainability. Put differently, effective participation is indispensable for realisation of climate sustainability.³⁷

Indeed, historical attempts at drafting effective international climate change law have gravitated around the quest for a stringent framework that would concomitantly stimulate optimum global participation and be ambitious enough to significantly dent global carbon emissions. The Kyoto Protocol for instance established legally binding Quantified Emissions Limitations and Reduction Commitments (QELRC s) for Annex I Countries and exempted participation by developing countries, based on their low total contribution of global GHG s.

The net effect of this top-down regulatory approach was that the United States, being the largest global emitter of CO₂, refused to ratify the protocol as long as other significant developing country CO₂ emitters like Brazil, Russia, India, China and South Africa were left off the hook. Participation was, therefore, not only low but even efforts by participating countries were insufficient to secure significant emission reduction gains.³⁸ Canada for instance completely withdrew from the Protocol to avoid $14 billion in penalties for failing to meet its obligations³⁹ and even the zealous European countries that strived to meet their QELRC s missed their targets. The low uptake of binding targets by Annex I countries in the second commitment period proposed under the Doha Amendments was also a major indictment of participation under the Kyoto Protocol.

Participation alone is not a silver bullet for achieving sustainability. It must also be effective.⁴⁰ For instance, whereas the 2009 Copenhagen Accord elicited broad based participation, its quest towards stabilisation of GHG s was unsuccessful. Described as a “non-binding political statement”,⁴¹ the Copenhagen Accord essentially invited developed countries to submit voluntary quantified economy-wide emissions targets while developing countries were to submit “nationally appropriate” mitigation actions by January 2010.

The number of countries making quantified pledges accounted for over 80 per cent of global emissions;⁴² however, the pledges made were effete and insufficient to meet the 2°C objective specified in the accord.⁴³ The country pledges represented nothing more than prevailing state practice of the parties that were not ambitious enough to tilt the balance in favour of deeper emission cuts.

The Glasgow Pact 2021 concluded at COP 26 bears promise for participation by NSA s. The Pact underscores the commitment by Heads of Government to partner with non-Party Stakeholders to enhance sectoral action for cutting back emissions by 2030.⁴⁴ Furthermore, the Pact engenders participation by calling for collaboration among a constellation of climate actors that include non-Party Stakeholders, civil society, indigenous peoples, local communities, youth, children, local and regional governments as well as other stakeholders in realising the overarching objective of the UNFCCC and the Paris Agreement 2015.⁴⁵

2.4 Participation under Paris Agreement

The architecture and design of the Paris Agreement essentially catalyses broad-based global participation while simultaneously heightening emission reduction commitments of Parties.⁴⁶ The ”effectiveness of an international agreement is a function not only of the stringency of its commitments but also the levels of participation and compliance by states”.⁴⁷

In terms of participation, the historic Paris Agreement managed for the very first time to forge a global consensus on collective climate action among the assembly of more than 195 developed and developing nations that met at Le Bourget Airport in Paris after over two decades of futile attempts. The inherent contentions in global climate change politics and blame shifting between developed and developing nations that undermine participation, had become emblematic of climate negotiations over the years and had seriously hampered meaningful progress.⁴⁸

For instance, the question of compensation for developing nations by developed nations for extreme climate events was a stumbling block in the negotiations at COP19 held in Warsaw in 2013 that saw the mass walkout by G77 and China from the talks. Another illustrative example of this schism was the refusal by the United States to ratify the Kyoto Protocol ostensibly because large developing CO₂ emitters like China, India, Indonesia, South Africa and Brazil were exempted from binding emission commitments.⁴⁹

To achieve effectiveness, the Paris Agreement provides for Nationally Determined Contributions (NDC s) that ratchet up progressively and which are verifiable through stringent and transparent accounting procedures.⁵⁰ The NDC s though anodyne at the beginning, are expected to become progressively more stringent with successive state Party commitments. The ratchet-up clause in the Paris Agreement can, for instance, be contrasted to the very insipid “voluntary quantified economy-wide emissions targets” and ”nationally appropriate” mitigation actions for developed and developing countries respectively in the Copenhagen Accord.

In summary, the Paris Agreement has catalysed overwhelming global participation and buy-in, as evidenced by its entry into force barely 10 months after its adoption.⁵¹ By combining both top-down features of the Kyoto Protocol and bottom-up elements of the Copenhagen Accord, the agreement catalysed global confidence and shored-up optimism that it will deliver the ambitious goal of climate sustainability in terms of the UNFCCC.

Suffice to say, in the context of this discussion, long-term climate sustainability is predicated upon effective and broad-based participation. More importantly, however, the Paris Agreement embodies ‘hybrid multilateralism’ by complementing State Party participation with voluntary commitments by non-state and NSA s.⁵²

3.1 Direct Emission Reduction Targets

The full emission reduction potential of ICI s has been estimated at “15-23 GtCO₂e per year by 2030”.⁵⁷ Therefore, as significant emitters, ICI s can through appropriate practices directly cut their emissions thereby bridging projected emission gaps.

Cities are, for instance, estimated to be responsible for about 70 per cent of global emissions and they possess influence over critical sectors that can increase or reduce emissions such as “planning, energy, transport and infrastructure”.⁵⁸ In this respect, notable GHG emission reduction initiatives include carbonn Cities Climate Registry,⁵⁹ the C40 Cities Initiative,⁶⁰ and the Covenant of Mayors.⁶¹ Reductions of “0.4 GtCO₂e emissions from a baseline level of 3.5 GtCO₂e by 2020 and 0.5 GtCO₂e emissions from a level of 4.1GtCO₂e by 2030” are projected from the C40 initiative.⁶² The Covenant of Mayors is projected to “reduce emissions by 0.3 MtCO₂e by 2020 from a baseline level of 1.4 GtCO₂e and by 0.3 GtCO₂e by 2030 from a level of 1.7 GtCO₂e”.⁶³

Companies constitute a significant category of GHG emitters. One study for instance observed that between 1988–2015, just 100 fossil fuel companies were responsible for 71 per cent of global emissions.⁶⁴ A 2014 emission reductions survey undertaken by the Carbon Disclosure Project (CDP) of the 500 largest global corporations indicated that 65 per cent of these surveyed had set emission reduction targets.⁶⁵ Their estimated GHG emission reductions was projected at “0.7 GtCO₂e by 2020 compared to a baseline of 3.8 GtCO₂e; 1.3 GtCO₂e by 2030 compared to a baseline of 4.2 GtCO₂e”.⁶⁶ The RE100 initiative is noteworthy for its quest by influential businesses to transit to 100 per cent renewable energy. Most of member businesses have set a target of 100 per cent renewable energy by 2028 with three quarters aspiring for 2030 at the latest. If this target is met, it is projected that ensuing GHG reductions will halve GHG emissions reductions in the next 10 years in conformity to the objectives of the Paris Agreement.⁶⁷

Regional initiatives also bear great potential for GHG reductions. Ambitious actions taken by the Compact of States and Regions⁶⁸ for instance includes 651 adaptation actions, 3821 actions to mitigate climate change across 11 sectors, and an undertaking to reduce emissions by an average 14 per cent.⁶⁹ If regions achieve their set target, it is projected that they will cumulatively cut about 21.9 GtCO2e between 2010 and 2050.⁷⁰

Specific sector GHG emission reduction projections for ICI s are also significant.⁷¹ The effectiveness of direct GHG emission reductions and projections are, however, vitiated by several factors such as opacity of provided data, inconsistent reporting that hinders implementation tracking, and the absence of a permanent secretariat responsible for tracking ICI s commitments.⁷² Measuring the effectiveness of ICI s in emission reduction is however a technical exercise and focus has been placed on the potential of ICI s to reduce emissions as opposed to their actual effectiveness. An assessment of an ICI’s potential can for instance evaluate the sector relevance of an ICI and presence of capacity for the ICI to achieve set targets.⁷³

When one attempts to measure the direct GHG emission reductions attributable to ICI s, it is instructive that action is being measured by such ICI s against the desired goal of keeping global temperatures “to well below 2°C above pre-industrial levels” and striving to constrain any increase in temperature to 1.5°C above pre-industrial levels.⁷⁴ Sustainability is achieved where this goal is realised. Misgivings on accurate computation of GHG s notwithstanding, the crux of this discussion is to demonstrate the massive potential that resides in broad based global participation and how it spurs on the quest for sustainable development in a climate change context.

3.2 Enhancement of Ambitions under UNFCCC

The criticality of ICI s participation in heightening ambition of state Parties under the UNFCCC is not in doubt.⁷⁵ This essentially means that ICI s should ‘pick up the tab’ on the ‘emission gap’ left uncovered by state Party commitments. By making their own commitments, ICI s help to raise cumulative global ambition to a desirable level namely, where all commitments would keep aggregate global temperature significantly below 2°C and constrain an increase in temperature to 1.5°C above pre-industrial levels. In the face of acrimonious pre-Paris Agreement climate negotiations, much hope was vested in the potential of ICI s to enhance pledges by nation states. However, the lack of formal recognition of ICI s under UNFCCC and their conception by some actors as a possible threat to sovereignty created ambivalence.⁷⁶

Explicit recognition of ICI s under the Paris Agreement, therefore, legitimises their participation through their commitments in pursuit of the overarching goal in the Paris Agreement. Furthermore, the requirement under the Paris Agreement that parties ratchet up their successive party NDC s, offers more than a forlorn hope that combined commitments of state parties and ICI s may be enhanced well beyond what would otherwise have been possible without the Paris Agreement.

In 2017, UNEP indicated that party NDC s alone covered only a third of global GHG emission reductions required to meet the goal set in art 2 of the Paris Agreement and are, therefore, largely inadequate.⁷⁷ The need to increase ambitions constituted one of the major findings in the successive 2018 Emissions Gap Report.⁷⁸ In fact this report projected that a tripling of ambitions would be necessary to make the goal under the Paris Agreement reachable.⁷⁹

The 2019 Emissions Gap Report underscores the fact that “even if all unconditional NDC s under the Paris Agreement are implemented”, that still puts the globe “on course for a 3.2°C temperature rise”.⁸⁰ Consequently, increased but structured participation by ICI s possesses massive yet unexhausted potential to enhance ambition and close the emissions gap highlighted in the three successive reports cited above. The acute inadequacy of NDC s means that the realisation of ICI s potential is indispensable in putting the globe on a course where the overarching goal under the Paris Agreement becomes achievable.

In enhancing collective ambition for climate change by states and ICI s, the UNFCCC process enshrines an inclusive, transparent and participatory framework under the Talanoa Dialogue Platform. This is a broad-based participatory forum convened under the UNFCCC that allows participants to enagage in transparent dialogue on the best means of enhancing ambitions to swiftly achieve the goal under art 2 of the Paris Agreement.⁸¹ Anticipatory of the global stock takes envisaged under the Paris Agreement,⁸² the dialogue was intended to discuss the first round of NDC s that were due in 2020. The dialogue is informed by three fundamental questions on ambition to wit, Where are we? Where do we want to go? How do we get there? A wide array of states, non-Party stakeholders and individuals participate in the UNFCCC process by considering the foregoing questions and submit their opinions on a portal established by the UN climate change secretariat.

Complementary platforms through which ICI s strive to enhance ambition are rapidly emerging, for instance, the Climate Initiatives Platform and the Global Climate Action Summit.⁸³ Whereas participation is certainly on the rise, determining progress towards the Paris Agreement goal still remains a challenge.⁸⁴ It is, however, enough for this discussion to demonstrate that participation where it is sufficient to raise ambition to address GHG reduction, will contribute to the sustainable goal of keeping aggregate global temperature significantly below 2°C and constraining the increase in temperature to 1.5°C above pre-industrial levels.

3.3 Channeling Climate Finance

Climate finance⁸⁵ plays a central role in GHG emission reduction and in the overall realisation of “climate-resilient development”.⁸⁶ The 2016 Climate Change Adaptation Finance Gap Report projects that adaptation costs in the run up to 2030 will amount to US$140-300 annually and that international public finance available will be inadequate to meet the projected costs.⁸⁷ Input of private sector finance will therefore be indispensable in realising adaptation targets. To this end, ICI s constitute appropriate vehicles for mobilising and channeling climate finance.⁸⁸

The Green Climate Fund (GCF) established under the UNFCCC, proffers an ideal platform on which non-Party stakeholders with significant financial capabilities can augment state party contributions for climate mitigation and adaptation in developing countries. Non-party stakeholders’ contributions to the GCF, for instance, helped plug the deficit of about US$ 2 billion created when the US under the then President Trump repudiated its commitment under the Paris Agreement.⁸⁹

In 2017 for instance, subnational governments of Brussels, Wallonia and Flanders and Quebec together with the cities of Paris pledged US $48.2 million to diverse global climate funds including GCF.⁹⁰ On the whole, sizeable funding by non-Party stakeholders would in the long run serve to mitigate the unpredictability of Party capitalisation of the GCF.⁹¹

The Marrakech Partnership for Global Climate Action is reflective of the proliferation of non-Party stakeholders’ participation under the Paris Agreement. It underscores the fact that “the momentum created in the lead up to Paris among public and private entities in mobilising financial resources for climate action continues to grow”. Consequently, it invites ICI s to inter alia help state parties ”scale up investment in infrastructure that delivers a range of benefits, including ones for addressing climate change in cities and communities”.⁹²

Private climate funding constitutes the bulk of global climate finance. In 2017-18 this funding amounted to US$ 326 billion accounting for 56 per cent of climate finance.⁹³ ICI s and particularly financial institutions can narrow the climate funding gap by redirecting further capital away from high-carbon intensive sectors towards more climate friendly sectors.⁹⁴ Such “climate-aligned capital mobilisation” would be a step closer to realisation of the overarching goal under the Paris Agreement.⁹⁵

3.4 Technological Transformation to Zero-Carbon Technologies

A radical technological shift from the utilisation of path dependent fossil fuel intensive technologies to zero-carbon technologies lies at the heart of realising the Paris Agreement target of global temperature below 2^oC and not more than 1.5^oC.

To achieve the goal of the Paris Agreement, a technological shift to a zero-carbon pathway by 2050 is sacrosanct. The most radical technological shift is premised among others on the “carbon law” which presupposes the halving of GHG s every decade until 2050.⁹⁶ Participation must, therefore, embrace a two-pronged strategy that encourages increased and widespread uptake and dissemination of renewables and other zero emissions technologies, while contemporaneously scaling down “fossil-based value propositions” to completely eliminate then from the market.⁹⁷

To realise the desired technological shift, there is need for joint action by public and private sector actors. Investment of public funds alone in the desired technological transformation is grossly inadequate. Consequently, a collaboration between state and non-state stakeholders is indispensable in setting the world on a zero-carbon technological trajectory.⁹⁸

To this end, diverse and laudable innovation initiatives and strategies are emerging. For instance, Breakthrough Energy Coalition (BEC) was unveiled by Bill Gates at COP 21 in Paris in 2015. The coalition brings together individual investors, financial institutions and organisations to transform the world from the current annual emission of 51 billion tons of GHG s to a net-zero world by funding cutting-edge research, technological innovations and advocating clean energy policy interventions.

Mission Initiative (MI) was also launched at COP 21 in Paris in 2015 and comprises 24 countries and the European Commission. MI aims to “reinvigorate and accelerate global clean energy innovation with the objective to make clean energy widely affordable”.⁹⁹ In this quest, MI pursues four key objectives that include bolstering public sector investment; enhancing private sector participation and investment; increasing awareness on the transformative power of energy innovation and accelerating international collaboration.¹⁰⁰ It aims to accelerate innovation in eight key technological areas: smart grids; off-grid access to electricity; carbon capture; converting sunlight; clean energy materials; affordable heating and cooling of buildings; and renewable and clean hydrogen.¹⁰¹ To achieve its goal, MI collaborates with other like-minded organisations such as BEC; Global Covenant of Mayors for Climate and Energy (GCoM); International Energy Agency (IEA); International Renewable Energy Agency (IRENA); World Bank Group (WBG); and World Economic Forum (WEF).¹⁰²

Other noteworthy initiatives include the One Planet Summit which is a joint initiative of France, the World Bank and the United Nations geared towards an accelerated implementation of the Paris Agreement; RE100 which is a collaborative forum of ‘influential’ businesses spanning North America, Europe, China and India that aspire to 100 per cent renewable electricity in their operations at the latest by 2050; New Energy Nexus an initiative to support clean energy entrepreneurs, etc.

The proliferation of emergent zero-carbon initiatives globally should trigger positive contagion dynamics that will herald an inflection point at which fossil fuel intensive technologies are consigned to the archives. An ingrained zero-carbon culture should in turn spur a rapid realisation of the technological aspirations set out in both the UNFCCC¹⁰³ and the Paris Agreement.¹⁰⁴

In summary, participation in making effective climate policy is one avenue through which fairness and sustainability can be enhanced.¹⁰⁵ Climate policy if effective should advance sustainability as envisaged under art 2 of the UNFCCC and art 2(1)(a) of the Paris Agreement. Participation by ICI s at the four levels discussed: direct emission reduction targets; enhancement of ambition; mobilisation of climate finance; and technological transformation to zero-carbon technologies should drive concomitant policy initiatives globally. Caution has, however, been sounded against over expecting NSA s to result in the successful implementation of the Paris Agreement. This is owing to the fact that the Paris Agreement fails to define their roles with specificity and does not stipulate how roles of NSA s should be implemented.¹⁰⁶

4.1 Tangled Power Cable Effect

Climate change governance is inherently “characterised by a multitude of institutions and initiatives with overlapping mandates”.¹⁰⁷ Participation must therefore be structured, targeted and well-coordinated to preclude what the author terms a tangled power cable effect. The author conceives the tangled power cable effect as a phenomenon where a myriad of overlapping and rapidly emerging participatory initiatives result in confusion and curtail the very goal and rationale of participation. Consequently, a chaotic global scenario of saturation and congestion of participatory initiatives without any concomitant rise in effectiveness. In this case, participation will exist for the sake of participation but with neither quantifiable nor meaningful output. This risk is particularly veritable in the post Paris Agreement era where the Agreement’s “all hands-on deck” approach has thrown the doors open to a broad range of stakeholders, both typical and atypical.¹⁰⁸

Whereas Decision -/CP.21 preempts the tangled power cable effect by institutionalising participatory initiatives of NSA s within NAZCA, it does not cure it.¹⁰⁹ The larger question of how to structure participation of NSA s under UNFCCC remains. For instance, should NSA s initiatives be mainstreamed within UNFCCC or should they be left within the twilight zone of non-stringent regulation? How does the UNFCCC regime account for NSA s initiatives that report action on parallel climate registries? Does the NAZCA platform provide an adequately robust framework to coordinate, track, synthesise and accurately quantify NSA s GHG emission reductions?

One source, for instance, observes that “registries for reporting climate initiatives are proliferating but in a haphazard way. Most have a narrow focus and differ in their criteria for inclusion and reporting”.¹¹⁰ The global labyrinth of climate actors and data lends veracity to the apprehension of a tangled power cable effect.

Gaps in NAZCA, among them a bias of pledges by developed countries, low participation by “heavy-polluting” sectors and non-reflection of efforts by small and medium sized players come to the fore and reify concerns for a better structured NAZCA.¹¹¹ If NSA s initiatives proceed uncoordinated globally, the same will result in a highly bureaucratic and labyrinthine network that will impede progress towards the end goal of climate sustainability. This concern has been captured as follows:

Although several initiatives (eg NAZCA, Carbonn, CID, SD in Action) aim to provide broad overviews of non-state and subnational climate initiatives, questions about their effectiveness and performance remain. The sheer amount and diversity of climate actions also complicates their comparability, and the devising of methodologies that can be applied across different samples.¹¹²

4.2 Asymmetry of Participation

One of the structural ‘defects’ of the Kyoto Protocol that the Paris Agreement sought to alleviate was the lopsidedness of participation. Allocation of QELRC s to Annex I countries and the absence of corresponding commitments for Non-Annex I countries stirred discontent and has among other factors, been attributed to the Protocol’s failure.¹¹³ The Paris Agreement institutionalised parity of participation by stipulating NDC s for all Parties. However, they were subject to “common but differentiated responsibilities” (CBDR) of the Parties and their ”respective capabilities, in the light of different national circumstances” (RCNC).¹¹⁴ The short-handedness of CBDR vis a vis NDC s with regard to developing countries has been explained thus:

…in a climate regime that is increasingly nationally determined and (transnationally) complex, questions of equity and responsibility cannot be addressed by CBDR, as transnational arrangements are generally voluntary and self-organising. Yet their location, impacts, and investments have considerable impact on global equity. In our opinion, a more comprehensive framework could help international organisations and governments to steer climate actions towards greater equity.¹¹⁵

A global survey of participation by developing countries on NAZCA and other platforms reveals an acute underrepresentation of developing country initiatives in a manner reminiscent of the Kyoto Protocol regime.¹¹⁶ Developed countries and associated NSA s exercise a monopoly of climate action in terms of enhancement of ambition, financial investments, technological interventions and other regulatory initiatives. Comparatively, developing countries are passive recipients of climate solutions who play second fiddle to developed countries. Consequently, though well intentioned, the letter of the Paris Agreement on parity of participation has until now not been matched by a corresponding spirit.

The asymmetry of participation between developing and developed countries is attributable to initiatives which are too small that they barely make a blip on the climate radar.¹¹⁷ It could also be explained away in terms of financial constraints that prohibit developing countries from participating in global climate action. For instance, cost implications may hamper developing countries from tracking and reporting their GHG reduction efforts on established reporting platforms.¹¹⁸ Lack of goodwill and feet dragging by developing countries could also be a decisive factor. Opposition to the participation by NSA s in the UNFCCC climate regime emerged among some G77 countries in Lima in 2014 when NAZCA was established and has continued.¹¹⁹ Lack of awareness in developing countries due to weak research and development capacity could also account for the asymmetry.

As the aphorism goes, whether the rock hits the pitcher, or the pitcher hits the rock it is generally bad for the pitcher. Participation asymmetry is the rock that poses an existential threat to the pitcher of global climate action, and it will undermine the stabilisation of global temperature at 1.5^oC if it continues unchecked. Whereas macro interventions by large emitters are ‘writ large’ on the global climate wall, seemingly innocuous micro-effects from developing countries if ignored, will over time coalesce to undermine the macro-efforts by industrialised nations.

4.3 Bottlenecks in Tracking Progress

The Paris Agreement establishes a flexible Enhanced Transparency Framework (ETF) that helps to track the progress of Parties in achieving their NDC s and their adaptation actions under the agreement.¹²⁰ This is achieved by requiring parties to regularly provide information that can enable tracking of their progress in implementing and achieving their NDC s.¹²¹

The aphorism ”if you can’t measure it, you probably can’t manage it” vindicates the operationalisation of the ETF to track overall progress towards the stabilisation of global temperature at 1.5^oC. Progress in reducing GHG s consistent with the overarching goal of 1.5^oC validates global climate participation. Essentially, therefore, all efforts aimed at reaching the foregoing goal, rise and fall with how accurately progress is tracked.

Tracking collective progress in the reduction of GHG s vis a vis the 1.5^oC goal, forms the basis for the global stocktake.¹²² The stocktake will seek answers to questions posed within the Talanoa dialogue platform: Where are we? Where do we want to go? How do we get there? Bottlenecks, however, exist that blur answers to these questions and undermine both participation and sustainability.

First, the transparency Modalities, Procedures and Guidelines (MPG s) for the operationalisation of the ETF do not address the absence of standardised reporting indicators. This will complicate and possibly obscure the tracking of progress. The non-standardisation of indicators will affect reporting on mitigation measures where NDC s are presented in terms of diverse, non-standardised, non-GHG indicators.¹²³ With respect to adaptation, different countries experience diverse and varied climate change impacts. The infeasibility of a one-size-fits-all approach in tracking the implementation of adaptation measures, will therefore precipitate accounting difficulties.

Second, effective tracking is underpinned by assumptions on the accuracy and reliability of information, the monitoring capabilities of parties and low administrative costs. Where these assumptions fail to hold true, as they will do particularly in the case of many developing countries, tracking will very likely be dogged by serious inexactitude possibly characterised by overly optimistic projections.¹²⁴ The capacity of the technical expert review to address the challenges related to the foregoing assumptions will be severely tested.

Third, the significant participation by NSA s in enhancing ambition and stopping emission gaps, means that computation of NDC s will significantly rely on extraneous information beyond that furnished by parties. This might blur the accuracy of party commitments. Similarly, in undertaking the global stocktake, financial information by NSA s such as ”multilateral development banks, environmental funds, international organisations” will be indispensable.¹²⁵ Aggregating financial information for diverse parties across many NSA s with diverse tracking and reporting approaches will be highly technical and complicated.¹²⁶

4.4 Critical Junctures

Parties were required to update their NDC s and communicate their long-term strategies under the Paris Agreement starting 2020 and thereafter every five years. The litmus test for the Paris Agreement going forward, will be the potential of communicated NDC s to narrow the emissions gap and align with the achievement of a 1.5^oC pathway.¹²⁷ However, certain critical junctures exogenous to the Agreement may intervene to undermine this goal.

For instance, shifting Party commitments influenced by geopolitical events, force majeure and other unforeseen circumstances are a cause for concern. Where Parties are forced to renege on their commitments, it will be difficult to hold them to account in the absence of enforcement mechanisms in the Paris Agreement. The Agreement is essentially a facilitative and collaborative framework that precludes punitive enforcement mechanisms.

In the context of this discussion, therefore, critical junctures are understood as a mixed bag of global events synonymous with a ‘turning point’, ‘crisis’, and ‘unsettled times’.¹²⁸ These events, previously unforeseen, might negatively impact climate action by precipitating path dependent choices that might be extremely difficult to alter at later stages.¹²⁹

The United States and China closed ranks under the leadership of President Obama and President Xi to galvanise global participation that saw the signing and subsequent ratification of the Paris Agreement in record time in 2015. Five years later, the set of geopolitical dynamics that coalesced to catapult the historic climate pact into reality have dissipated.

The United States under the administration of President Donald Trump declared its intention to withdraw from the Paris Agreement on 1 June 2017. Pursuant to art 28 of the Paris Agreement, on 4 November 2019, the United States began the formal process of withdrawal by submitting its formal notification of withdrawal to the United Nations.¹³⁰

Effectively, on 5 November 2020 the United States had ceased to be a Party to the Paris Agreement. The domino effect of this withdrawal would have been momentous and far reaching on global climate action had Joe Biden not been elected as President.¹³¹ The capacity of the American private sector to fill the hiatus that was left by the Federal Government particularly in as far as galvanising global action by other players was in doubt. Whereas the private sector could have mitigated some effects of the withdrawal, it could not have supplanted Federal Government action. Concomitantly, a blistering trade war between the United States and China threatened goodwill, trust and the modest gains for the Paris Agreement that were birthed out of the pre-2015 collaboration.¹³²

An unfolding economic downturn has seen China waver on its steadfast commitment to the Agreement as one of its leaders.¹³³ Investments in coal are picking up and the Chinese Government has substantially cut back on its aggressive renewable energy subsidies.¹³⁴ Bearing in mind the incentive-laden nature of climate change inaction, flagging commitment from China and the withdrawal by the United States will have a significant knock-on effect on the commitment and participation of other Parties. The feasibility of meaningful global climate action without the critical leadership and support of the United States and China, both as major economic powers and emitters, appears dead in the water.

Previously unforeseeable events such as the coronavirus (COVID-19) pandemic, have already dulled climate change momentum, for instance through the cancellation of important climate talks and initiatives such as COP 26 that was initially set for 2020 in Glasgow but later convened in 2021.¹³⁵ The pandemic will fundamentally impact climate change action globally going forward at a scale that will be felt for years to come. The global economic morass resulting from the pandemic will certainly shift priorities of most parties to the Paris Agreement.

The impact of critical junctures on climate agreements is not unprecedented. The failure of the Kyoto Protocol has, among other factors, been attributed to a slew of critical junctures that ensued in the wake of its entry into force in 2005.¹³⁶ For instance, the election into the White House of George W. Bush a ”Texas oilman” over Al Gore an ”environmentalist Democrat” led to the non-ratification of the Kyoto Protocol.¹³⁷ In the post Kyoto ratification period Chinese GHG emissions grew three times. Further the 2007-08 global financial crisis did not help climate matters. Considerable thought, therefore, needs to be invested on how to counter the enduring effects of identified critical junctures on participation and sustainability in the Paris Agreement.

5.1 If You Aim at Nothing

The greatest obstacle in the Paris Agreement to stabilising global temperature at below 2^oC but not beyond 1.5^oC is perhaps its’ lack of individual binding targets and a concomitant enforcement mechanism. It has been argued that:

a top-down allocation of binding individual emission reduction obligations, perhaps even with an enforcement mechanism would have been a more direct and predictable way of staying below that threshold, but that proved impossible to agree on.¹³⁸

Whereas the overarching goal spelt out in art 2 of the Agreement is clear to all, Parties neither bind themselves to nor aim at specific individual targets in delivery of this overall goal. NDC s, in their discretionary and voluntary character, aim at nothing specific by failing to apportion individual party ambition for realisation of the collective goal.

I do not argue here for parity of apportionment of emission reduction targets among parties for obvious reasons. Nevertheless, NDC s presently allow parties to make only lowest common denominator commitments most of which are commensurate to paying climate alms.¹³⁹ This approach is reminiscent of the apothegm “if you aim at nothing, you will hit it every time”. Therefore, whereas the Paris Agreement has galvanised near global participation, its ability to deliver sustainability in climate change terms largely remains doubtful.

An agreement without binding targets renders stringent enforcement mechanisms superfluous. This logic explains the absence of concrete enforcement mechanisms in the Paris Agreement. The absence of enforcement mechanisms in the agreement affirms Hobbes’ ipssisma verba, “covenants, without the sword, are but words and of no strength”.¹⁴⁰ Ultimately therefore, whereas the flexible and voluntary nature of NDC s incentivises participation, mere carrots without corresponding sticks are unlikely to lead to sustainability.

The regulatory pathway parties elected in the Paris Agreement due to the “wicked”¹⁴¹ nature of the climate change problem is one that “begin[s] with an agreement that has broad based participation and is at least moderately legalised (legally binding) but includes only shallow substantive commitments, and deepen the substantive content over time”.¹⁴² This architecture has been described as offering “no action, just promises”.¹⁴³ A disjunction between the collective climate goal and individual Party commitments will persist and continue widening the global emission gap.¹⁴⁴

Does this pathway offer a future possibility for Parties to adopt ambitious individual binding emission reduction commitments? Would provisions for taxing GHG s across the board find accommodation within the Paris Agreement? How can underlying political will for radical global climate action be stimulated? Answering these questions will ultimately determine the trajectory of climate sustainability.

5.2 Big Emitters Small Participators

A defining debacle of the Kyoto Protocol was the weak participation by otherwise large emitting non-Annex I countries which did not have binding targets. The Paris Agreement sought to redress this drawback by institutionalising NDC s across the board for all Parties based on CBDR.

However, stipulating NDC s for all Parties has morphed into a conundrum that allows big emitters to adopt extremely anodyne NDC s. The 2018 Intergovernmental Panel on Climate Change’s (IPCC) special report on the impacts of global warming of 1.5°C was instructive that the current NDC pledges are consistent with the realisation of global warming of 3°C.

For instance, notwithstanding that Russia is the fourth biggest GHG emitter, its’ NDC ”is so weak that Russia is already achieving its 2030 target”.¹⁴⁵ Other notable big emitters with insufficient NDC s include United States, Canada, and Japan. The identified countries are not even on track to achieve their initial weak ambitions for 2015.¹⁴⁶

Among the Group of 77 and China, (Brazil, India, China, South Africa and Mexico) Brazil, Russia, India, China, South Africa and Mexico (BRICSAM countries) have in their ranks NDC s that are acutely insufficient and do not reflect their significant GHG emissions.¹⁴⁷ In this group, it is noteworthy that China is the biggest emitter and India is the third largest emitter. Indeed, the combined emissions of the United States, China and India account for almost half of global emissions.¹⁴⁸

It is a cruel paradox, however, that some vulnerable and low GHG emitting countries, have committed to more ambitious NDC s in comparison to the big emitters.¹⁴⁹ In this respect the argument may be advanced that smaller countries have less to lose economically by embracing greater ambitions. However, by the same token, it is a fact that Small Island Developing States (SIDS) are also the most vulnerable group of countries.

The robust and meaningful participation by big emitters is indispensable for sustainability. This was possibly the wisdom of requiring ”at least 55 Parties to the Convention accounting in total for at least an estimated 55 per cent of the total global GHG s” to ratify the Paris Agreement before it could enter into force.¹⁵⁰

Cumulatively therefore, present NDC s are a harbinger of successive weak commitments that will not limit warming to 1.5^oC. The inability of the Paris Agreement to resolve disputes that relate to the inadequacy of NDC s or even call out laggards and ask them to do more raises concern.¹⁵¹ This then begs the question, how can big emitters become big participators?

5.3 Climate Politics and Participation

Climate change is no doubt the most obstinate political issue of the day on the global stage. This is because participation by states and NSA s is ultimately driven by political will. The observation that UNFCCC decisions “reflect the will of the laggards” certainly rings true.¹⁵² The failure to reach actionable outcomes in previous climate talks such as Bali 2007 and Copenhagen 2009 are largely attributable to the lack of political will.

The optimism of Paris 2015 as a milestone representing a break with a past of elusive political will, was palpable in the exultation “there’s never been such political will as we have today”.¹⁵³ As has already been mentioned, however, this triumph seems to have been short lived. This is evidenced by a deterioration in the geopolitical relations responsible for the consensus in Paris and a dissipation of factors which made that consensus possible. Withdrawal from the Paris Agreement by the United States was emblematic of the nadir of political will in the Paris Agreement.

In climate change governance, the nub of elusive political will lies in pursuit of short-term economic goals, strategic interests and myopia to seemingly remote long-term consequences.¹⁵⁴ The most rabid form of elusive political will goes beyond mere inaction and entails deliberate action to scupper the Paris Agreement and brake its momentum, as the United States attempted to do under former President Donald Trump.¹⁵⁵

It will, therefore, be critical to see whether buoyant ‘political will’ can weigh heavier than the floundering goodwill of the United States and other laggards. The European Union and a significant number of States in the United States under the America’s Pledge initiative, have remained steadfast and demonstrated goodwill in realising commitments in the Paris Agreement.¹⁵⁶

A critical feature of the Paris Agreement is ”creative ambiguity” without which a political compromise for its adoption would have been almost impossible.¹⁵⁷ It will be critical to understand how this feature of the Paris Agreement acts as a brake-block or an accelerator. Laggards are likely to continue exploiting creative ambiguity for maximum advantage whereas leaders will be unlikely to generate sufficient lift for enhancement of collective ambition.

As withdrawal by the United States perfectly illustrated, participation under the Paris Agreement will be susceptible to domestic politics and strategic interests of the parties. Domestic political interference it has been observed ‘has the potential to uproot and gut any meaningful impact of’ the Paris Agreement.¹⁵⁸ This is a veritable challenge not the least because participation in the agreement is founded on voluntary national contributions.

The sum-total of the foregoing political considerations invites further reflection on avenues for engendering goodwill and in turn enhancing participation and sustainability within the climate change regime. The very nature of climate change means laggards cannot be left to poetic justice since everyone is ultimately imperiled and developing states even more so.

5.4 Non-state Actors under Paris Agreement

This chapter has underscored the unique and massive potential NSA s possess to complement efforts by state parties in limiting warming to 1.5^oC. Indeed the “all hands on deck” approach of the Paris Agreement is the culmination of an idea that has been gradually gaining momentum across many COP s.¹⁵⁹ Yet beyond NAZCA, the ”multi-actor, multi-sector, and multilevel” participation by NSA s within the Paris regime remains largely ad hoc and unstructured in the extreme.¹⁶⁰

NSA s are explicitly recognised in Decision -/CP.21 on the Adoption of the Paris Agreement, however, they are not expressly incorporated in the operative text of the Paris Agreement. This has the effect that NSA s are outside the formal Paris Agreement structures but are at the same time generally recognised under the UNFCCC as being complementary to state commitments under the Paris Agreement.¹⁶¹

One source pertinently underscores the ”surprisingly little attention paid in the Paris Agreement to the role of NSA s and subnational governments”,¹⁶² notwithstanding their potential role in enhancing the mitigation ambition of parties. Several challenges of participation by NSA s within this so called ‘hybrid multilateralism’¹⁶³ architecture of the Paris regime present themselves, summed up variously under the UNFCCC.¹⁶⁴

First, most NSA s initiatives are largely uncoordinated. Second, structures for disclosure of conflicts of interest are not apparent. Third, a dearth of funds afflicts the ability of NSA s to participate, particularly those from vulnerable developing countries. Finally, there is lack of a permanent forum within which activities of NSA s are housed The foregoing challenges in turn undermine ”the quality, practicality” of NSA s initiatives under the UNFCCC thereby attenuating their potency.¹⁶⁵

Consequently, there is a general need to retool the participation of NSA s under the Paris Agreement for the realisation of sustainability benefits that can emerge from broad based participation. In this sense, it is necessary to alleviate hurdles that stymie effective participation.¹⁶⁶

To this end, recommendations are to:¹⁶⁷ establish appropriate coordination mechanisms of NSA s initiatives; enhance transparency among NSA s by creating avenues for disclosure of conflicts of interest; craft-out means of funding participation by NSA s from vulnerable developing and small island States; and initiate a permanent forum for NSA s through which they can engage in dialogue and exchange views tailored along the lines of the UNEA model which hosts a two day multi-stakeholder forum prior to the Assembly. The Marrakech Platform for Global Climate Action has been identified as a potential permanent forum.¹⁶⁸