The 21st Conference of the Parties to the UN Framework Convention on Climate Change was held in Paris from Nov. 30 to Dec. 11 last year. The resulting Paris Climate Agreement has marked a milestone in international efforts to combat climate change, and are to be opened for signature in April.
This new climate agreement adopts the “bottom up” approach enshrined in the Copenhagen Accord in 2009. It requires nations to publicly outline what post-2020 climate actions they intend to take, known as their Nationally Determined Contributions (NDCs). With the submission of NDCs by 188 parties, the commitment to achieve specific national emissions reduction targets has become almost universal.
Taiwan voluntarily published its NDCs before the Paris talks. The government last year passed a Greenhouse Gas Reduction and Management Act (溫室氣體減量及管理法), which aims for a 50 percent greenhouse gas reduction by 2050 compared with 2005 levels.
As a non-member state, Taiwan was excluded from the Paris negotiations, but it would be of interest to discuss the legality of Taiwan’s national reduction commitment at an international level and other alternative participatory approaches.
However, are these NDCs legally binding? The answer is ambiguous. At least two possible arguments can be made to claim that the current NDCs are legally binding: One, they are authentic interpretations of the Paris Agreement, once ratified, would be legally binding, and two, the NDCs are binding unilateral acts of states under international law.
In the case concerning nuclear tests (New Zealand versus France, 1974), the International Court of Justice recognized that declarations made by way of unilateral acts, concerning legal or factual situations, might have the effect of creating legal obligations. So Taiwan could consider this second argument and bind itself by the initially voluntary statement.
Article 4 (16) of the Paris Agreement states that parties, including regional economic integration organizations and their member states, communicate with the secretariat of the agreement regarding their successive NDCs and the emission level allocated to each party within the relevant time period.
Based on this article, it is possible for Taiwan to join a regional economic integration organization’s mitigation goal first, and then the regional plan would be collectively integrated into the whole Paris Agreement.
APEC, for example, despite several joint crediting and measurement mechanisms for greenhouse gases that have been established, still does not have a common mitigation goal. Thus, Taiwan, as an APEC member, could propose an APEC mitigation framework at the upcoming energy ministerial meetings, and, certainly, there is no reason that the regional plan incorporating Taiwan’s mitigation target should be treated differently under the Paris Climate Agreement.
International environmental governance is changing. Most notable are the declining importance of the state and the rise of multi-actor governance networks. Ongoing policy discussions show that not only nation-states negotiate international treaties, but a plurality of lower-level “climate contracts” between private, non-profit sectors and municipal governments could provide flexible and tailored solutions to address global warming.
Ultimately, exclusion from the Paris Agreement meetings offers Taiwan insightful lessons and direction for future climate action.
Yang Chung-han is a doctoral candidate researching international environmental law at the University of Cambridge and a member of the Taipei Bar Association.
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