A paradigm shift occurred in global climate negotiations because of a failure to introduce a successor to the Kyoto Protocol based on a top-down negotiated model of targets. The Paris Agreement has been built on the back of ‘bottom-up’ pledges by parties, in a loose, non-punitive structure with top-down rules of the game around review and collective effort. The relative lack of enforcement written into the Paris Agreement has led to accusations of it being weak and inadequate. Nevertheless, obituaries of multilateral efforts to prevent dangerous levels of climate change should not be written just yet.

A growing body of literature post the failure of the Copenhagen talks in 2009 called for climate governance to adopt more ‘polycentric’ approaches,¹ emphasizing the need for an ambitious ‘direction of travel’ over long-term targets and penalties for non-compliance,² which were hard to agree on. In the Paris Agreement, the global community is searching for middle ground – a fine balance between bottom-up voluntary contributions and top-down rules. A ‘clumsy’ approach to climate policy may just work; institutional experts have pointed out the problems with applying ‘simple’, ‘elegant’ solutions to complex problems such as climate change. Paris represents a step away from the rigidity and inflexibility that underpinned and then ultimately undermined the Kyoto Protocol.

However, in the absence of the incentives and sanctions regime that characterized Kyoto, the Paris Agreement will have to rely on new avenues to foster cooperation to avoid inadequacy of action, breakdowns in implementation and compliance, and lack of progress on climate goals. Trust and legitimacy, in particular amongst Parties to the Agreement and beyond, will be key to glue the many ‘moving parts’ of the agreement together.

In a sense, the limited legally binding power in the Paris Agreement is what makes its legitimacy all the more important. Legitimacy may refer to the ‘normative belief by an actor that a rule or institution ought to be obeyed.’³ In the absence of legal enforcement options, Paris is moving beyond the scope of legitimacy solely as a legal concept, instead framing it in the context of norms, approaches and expectations. It has been noted that lack of a legal basis is no deal breaker for other notions of legitimacy in the eyes of actors.⁴ Julia Black, for instance, makes the case for the international Forest Stewardship Council, an institution which is seen as legitimate by a number of actors in related industries such as chemical and forestry industries and yet lacks any legal basis for that perceived legitimacy.⁵ In polycentric, loose and hybrid regimes norms, values and expectations have to be reinforced for securing perceptions of legitimacy,⁶ which in turn may influence behaviour and decisions about interests. The success of the Paris Agreement will be contingent on favourable perceptions of legitimacy amongst its parties for effective implementation, compliance and consensus.

 

Similarly, enhanced trust amongst Parties to the Agreement and beyond will be central to the peer review system proposed in the agreement as well as prevention of free-rider problems. While no single definition for trust exists in the context of international cooperation,⁷ we can nevertheless outline the key principles that shape trust amongst actors. Scholars agree that trust refers to an inclination that may permit placing the fate of one’s interests in the hands of others.⁸ This can certainly be applicable to the climate change arena where countries are basing their well-being and, in some cases, survival on action that may or may not be taken by others. Trust amongst poorer countries and their wealthier counterparts will need to be built to ensure that both sets of actors continue to step up ambition of climate action and prevent a breakdown in implementation.

Trust and legitimacy are, therefore, different but interlinked. Increasing levels of trust will be necessary for perceptions of legitimacy – a coalition of the willing cannot work if members do not trust each other and yet, for them to trust each other and their objectives, the legitimacy of agreed goals and actions should be evident. The next section deals with both issues and how they are central to many aspects of the Paris regime.

 

The global climate is a common pool resource (CPR). A limited carbon budget remains to prevent dangerous levels of climate change and global warming. Governance of the commons usually depend on approaches that stress the ‘prisoner’s dilemma’. However, Daniel Cole points out that climate negotiations may instead be better understood as an ‘assurance game’, a concept advanced by Amartya Sen.⁹ Assurance game outcomes depend on perceptions of cooperation and the levels of mutual trust built over time amongst actors. Polycentric approaches are more likely to build that trust Cole talks about, instead of massive, centralized conferences involving thousands of participants in closely followed meetings.¹⁰ Keohane has further argued that informal, bilateral discussions, along with cooperation on a wide variety of issues, may be more conducive to building trust than the traditional relationships characterized by large, intransigent bureaucracies that strictly control discourse and discussion with external actors.¹¹

Compromise, as has been noted by Barrett, is also not uncomplicated when done in full public spotlight.¹² Countries are more likely to engage one another constructively if they are not under the pressures of large multilateral conversations conducted in full public glare. The Paris Agreement may be a step in the right direction in that regard. The lead up to Paris, for instance, saw many bilateral agreements being signed between countries such as the US-China and US-Brazil, accords which helped achieve breakthroughs in larger multilateral conversations. Bilateral and minilateral clubs of action will make it more likely for common ground to be found between countries that may eventually push forward larger multilateral agendas.

 

The Paris Agreement’s structure allows for building of trust over time. For instance, commitments made by member states are not legally binding. However, meeting commitments can lead to building of mutual trust. For instance, Ostrom et al. have previously argued that trust can be earned by mutual commitments that are credible.¹³ The collective peer review mechanism also helps promote that agenda – parties can review the contributions and progress of others. Trust built over time through peer confirmation of action can lead to increased ambition of action over time. As Cole notes, verifiability is central to trust.¹⁴ Further, action at lower governance levels which are marked by successful cooperation can be useful for fostering trust that then translates to all levels of decision making.¹⁵

Lastly, international relations can be seen to have developed increasing levels of trust when leaders of states devolve power and agency to interact with others to lower units of governance in the belief that their counterparts are trustworthy.¹⁶ In the context of climate change, increasing trust among parties to the Paris Agreement may means greater agency transferred to non-state and sub-national actors as well as transnational efforts.

 

One interesting new development in the Paris Agreement was the reference to climate justice and human rights in the preamble text. Climate change is quite simply intertwined with almost every aspect of modern economics and politics as well as with issues around social justice. The complexities of climate change, both physically and otherwise, may mean that climate governance needs to link itself to other regimes – issues of trade, human rights, justice or banking and finance. Strong interdependencies of impact, causality and action mean that the UNFCCC may just be an overspecialized regime for dealing with the problem of climate change.¹⁷ An attempt to address climate change is also an undertaking to transform the very fundamentals of our food systems, machinery, electricity grids, transportation and economic models, not to mention the patterns of consumption and production that have sustained us thus far. Previous action on climate change risked being viewed as illegitimate when it failed to account for these interconnections and dependencies that significantly affect the success of climate action.

For instance, the US vs. India case at the World Trade Organization (WTO) over solar panels illustrates the contradictions at play between different regimes. India’s national solar policy has domestic content requirements (DCR), which dictate that all investors have to source 30 per cent of input locally. The US challenged the DCR at the WTO, arguing that it violated India’s commitment to global trade rules and discriminated against American firms, who had witnessed a 90 per cent fall in solar exports to India from 2011 when India imposed the clause. India tried to justify the clause, arguing that it was necessary to ensure compliance with its commitments under the United Nations Framework Convention on Climate Change (UNFCCC). This was, however, rejected by the WTO who ruled that international environmental obligations imposed no binding commitments on nations and thus were not ‘laws or regulations’ that had to be complied with. Naturally, this presents a massive problem. Energy transitions should also fuel growth, create jobs and build an ecosystem of innovation. If trade regimes reject the legitimacy of climate agreements, ambitious action is unlikely to be forthcoming.

 

Calls for linking regimes of governance, therefore, go hand in hand with both polycentricity and issues of legitimacy. Climate action will increasingly be viewed as legitimate when it starts to account for the core causes and implications of our economic systems – organization of labour, international trade, issues around human rights and climate induced migration as well as norms around banking which affect investments into clean energy. Institutional linkages boost legitimacy and external and internal perceptions of legitimacy are in turn critical to survival of regimes and institutions.¹⁸ Absurd contradictions and hindrances such as the WTO case also need to be prevented. The new polycentric order emerging in climate governance will benefit from extending the actors and stakeholders under the climate umbrella and recognizing the opportunities and co-benefits associated with tackling concurrent global challenges.

Another positive development from Paris is that it is the first climate treaty to not only recognize the importance of non-state actors but also conceptualize a framework for their action. Non state actors in the past had limited sway over international climate governance as transnational governance approaches were eschewed in favour of centralized multilateralism between member states. However, the Paris Agreement explicitly welcomes action by non-state and sub-national actors and the COP Decision Text creates a framework for their action. All future COPs, for instance, will have a ‘high level action day’ where companies and cities report on their efforts, a process directly linked under the formal review of the UNFCCC. Furthermore, all actors, not just countries, are encouraged to voluntarily pledge commitments on climate action.¹⁹ Transnational alliances such as the Mission Innovation Fund also promise to deliver meaningful contributions to climate action.

 

Just as time has allowed us to judge Kyoto’s failures in a harsher light, so must time and space be allowed to the Paris Agreement before adjectives of success or failure become synonymous with the outcomes of COP 21. Paris has several unfinished agendas on its plate, and dealing with those may be key to the durability and effectiveness of the regime. Differentiation, technology, finance, loss and damage and review mechanisms all remain unresolved. For breakthroughs in these areas, it is important that notions of legitimacy and trust amongst actors is credible. As this article has outlined, polycentric approaches to dealing with climate change may just create conditions that allow for that to happen, and therefore deliver equitable outcomes that protect both our planet and the most vulnerable in our societies.

 

Footnotes:

1. Elinor Ostrom, ‘A Polycentric Approach for Coping With Climate Change.’ Available at SSRN 1934353 (2009).

2. Steve Rayner, ‘How to Eat an Elephant: A Bottom-up Approach to Climate Policy’, Climate Policy 10(6), 2010, pp. 615-621.

3. Ian Hurd, ‘Legitimacy and Authority in International Politics’, International Organization 53(02), 1999, pp. 379-408.

4. Julia Black, ‘Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes’, Regulation and Governance 2(2), 2008, pp. 137-164.

5. Ibid.

6. Ibid.

7. Aaron M. Hoffman, ‘A Conceptualization of Trust in International Relations’, European Journal of International Relations 8(3), 2002, pp. 375-401.

8. Ibid.

9. Daniel H .Cole, ‘Trust, Cooperation, and Polycentric Climate Negotiations.’ Available at SSRN 2368447 (2013).

10. Ibid.

11. Robert O. Keohane, ‘The Demand for International Regimes’, International Organization 36(02), 1982, pp. 325-355.

12. Scott Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-making. Oxford University Press, Oxford, 2003.

13. Elinor Ostrom, Roy Gardner and James Walker, Rules, Games, and Common-Pool Resources. University of Michigan Press, 1994.

14. Daniel Cole, op. cit., 2013, fn. 9.

15. Ibid.

16. Aaron Hoffman, op. cit., 2002, fn. 7.

17. Stephen Humphreys, ‘Climate Change: too Complex for a Special Regime’, Journal of Energy and Natural Resources Law, 2015, pp. 1-6.

18. Joel A.C. Baum and Christine Oliver, ‘Institutional Linkages and Organizational Mortality’, Administrative Science Quarterly, 1991, pp. 187-218.

19. Paris Agreement, Decision 122.