President Digong, 4 Ways Paris Agreement is not the Treaty of Paris, %^&*@#!

Elpidio V. Peria
6 November 2016


In a newsclip on TV recently, President Duterte said he will listen to legal advise on what he will have to do with the Paris Agreement on climate change that entered into force last Friday or 4 November 2016. Apparently still unconvinced of the importance of the said Agreement, there’s even a joke that perhaps the President mistook the Paris Agreement for that much-ballyhooed Treaty of Paris of 1898 where Spain, in exchange for US$20million, ceded its sovereignty over the Philippines to the US.

As a long-serving treaty negotiator/legal adviser with the Philippine delegation to the United Nations Framework Convention on Climate Change (UNFCCC) since 2011 and the United Nations Convention on Biological Diversity (UN CBD) since 1998, please let me try to put my own opinion on the matter, highlighting the ways Paris Agreement is not the Treaty of Paris :

1. Paris Agreement is a multilateral environmental agreement, that takes to the 21st century the United Nations Framework Agreement on Climate Change, the only international legally-binding instrument that deals with climate change

Paris Agreement came about since the developed countries don’t want to be the ones to be solely burdened in limiting their GHG emissions as that will put them at an economic disadvantage over the rising countries of the developing world, particularly China and India.

The developed countries, as part of the bargain arrived at in Durban, South Africa, in 2011, and in Doha in 2012, agreed to take the lead in limiting their GHG emissions within the period 2013-2020, through the second commitment period of the Kyoto Protocol and developing countries for the first time ever, also agreed to undertake mitigation activities. This deal in Durban eventually led to the elaboration of the Paris Agreement where every country now in the world, rich and poor, will work together to limit their GHG emissions such that the average temperature rise will not go beyond 2degrees centigrade.

Paris Agreement, which takes effect in 2021 onwards, updates all the agreements already made on the issue of climate change and carries it forward to the 21st century, with an arrangement that all countries joining the Paris Agreement will have to enhance their commitments to cut their GHG emissions so that the temperature of the earth will not be like a child whose fever will suddenly shoot up the child will have convulsion, which in turn will endanger the life of the child.

The Paris Agreement is an international instrument that is closely linked to the United Nations Framework Convention on Climate Change (UNFCCC), the only international legally-binding instrument that deals with climate change. There is no other treaty or agreement in the world today that deals with the issue of climate change except the UNFCCC. If we will not join the Paris Agreement, since we are already signatories and have already ratified the UNFCCC, we will still be covered by the provisions and the various institutional mechanisms under the UNFCCC.

But what can we do if we will only work under the UNFCCC? Actually not much since we are not obliged to do anything under the UNFCCC except take on the usual developing country commitments listed in Article 4 of the UNFCCC. But can we ask for money and technology under the UNFCCC still? Yes we can, but the Parties from whom we will ask such money and technology may not now comply with their commitments under the UNFCCC since most of those obligations will now be carried under the various institutional mechanisms and processes under the Paris Agreement.

Mr. President, one way to look at this is that the UNFCCC is the original promissory note that was issued to us by the developed countries for their climate debts back in 1992, but that promissory note has now been updated, or restructured, like what usually happens to those who have debts to us, so we can not really go back on the old commitments in the original promissory note but we now have to take into account what are the new conditions for them to repay their debt, and that is now the Paris Agreement, the updated, or restructured promissory note. If we seek to redeem those so-called climate debts, we need to use both the old and the new promissory notes so we can exact full recovery or satisfaction of our claims.

2. Paris Agreement will not prevent us from undertaking our own industrialization efforts, any way we want to do it.

You want the country to industrialize like what these developed countries have already done in the course of their economic history. Of course, we can still do that under the Paris Agreement, and contrary to what you have been told, actually we can do so at our own pace and the Paris Agreement has this country-level statement of national actions for climate change called the nationally determined contribution, which gives us sufficient flexibility how much to commit in terms of how much greenhouse gas we are willing to cut at a period that we will define. See, the word “contributions” do not actually compel us to do something that we are not willing to do as a country.

You may be aware by now that we have already submitted last 1 October 2015 to the UNFCCC what is called our Intended Nationally Determined Contributions or INDC and there we said that we are willing to cut 70% of our GHG emissions along a timeframe that stretches up to 2030 based on our business-as-usual scenarios from 2010. What is important about that number is that is conditional, depending on the amount of money and technology that will be provided us by the international community. Being conditional, that number is not final, we can undertake further national consultations to clarify that number.

3. The Paris Agreement does not let major GHG emitting countries get away from their historical responsibility of limiting their emissions since the Industrial Revolution

Perhaps your advisers may have told you that the Paris Agreement is unfair since other developed countries will not have to do more. Actually, not really. There is this international law principle called common-but-differentiated responsibilities or CBDR where countries that are more capable of doing more because of their good economic standing are supposed to do more and they are expected to do more under the Paris Agreement. Countries that are in the light of their economic circumstances are not able to cut their emissions at the same level as that of the developed countries may do so.

There are also other provisions in the Paris Agreement that clearly lays out this CBDR principle, in the following provisions :

a) Para. 3, article 7 on ADAPTATION;
b) Paras. 1, 3 (should), 5, 7 in article 9 on FINANCE;
c) Para. 6, article 10, on TECHNOLOGY DEVELOPMENT & TRANSFER;
d) Paras. 9 (should), 14 & 15, article 13, on TRANSPARENCY;

All these shows that developed countries will actually have to do more in terms of providing the money and the technology so that countries like us which are developing and are vulnerable to the adverse impacts of climate change may be able to continue in their development path as a country.

The Philippines, while we only contributed 0.34% of the world’s GHGs in 2010, there are still over a hundred countries that emit less than us but they are formulating their nationally-determined contributions. We have to do our share in taking care of the planet.

4. Should we reject the Paris Agreement, the Philippines will lose the respect and credibility it has earned through the years, among all the other Parties to the Agreement

If you may have read Max Fisher of the New York Times recently, he is all praises for you, he thinks you are like Josip Broz Tito of Yoguslavia or Gamal Abdel Nasser of Egypt who, like all iconic 3rd world leaders, have managed to play off the world’s great powers, in their time, USSR and the US, by maximizing their gains by playing off these countries against each other. How can you now do that if in this great climate debate you are outside of the arena where the US and China are now about to play an active role, that arena being the Paris Agreement? Your actions has already made the Philippines the center of attention among all other countries of the world. We need to be seen as a credible country where our actions and our words matter. This credibility and yours is maintained if we ratify the Paris Agreement.


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