Whether in the entries of the parties to the ABS who deal with compliance or through discussions in committee, as expressed in the informal note, these words are generally used as a gateway to determine acceptable outcomes or legitimate triggers. They are never applied as their context would suggest: as instruments of interpretation. Whether it`s the human tendency to choose sides or the complexity of a truly global mechanism, the regulatory framework of the Paris Agreement and the pivot of mixing metaphors depend to an unrealized extent on the Compliance Committee. Not realized because of the weakness hypothesis. This assumption of weakness comes from misleading ideas about their form. These ideas are partly due to a misinterpretation of how one can read “non-contradictory and non-punitive”. This affects the negotiations themselves. While the compliance stream is (relatively) more stable, there is no denying that it is located in the center of a house of cards. Mechanisms such as the Article 6 market mechanisms, currently under discussion with the SBSTA, the transparency enhancement mechanism under the APP and more, monitor the type of compliance requirements that can be implemented while the compliance flow waits to some extent for some of the decisions made in those flows before reaching an agreement. Late, such a conversation could begin to flourish, which at least indicates that the role of moderator of the committee is beginning to be recognized. That Bangkok sees this flow of negotiations more turbulent and, therefore, the other flows calmer. The opposite reading is not unexpected either: the Paris Agreement being a child of compromise and voted in tears after a long session of negotiations with many concessions, one can expect it to have no teeth. Therefore, the compliance mechanism should be read in terms that are as flexible and restrictive as possible.
Upsetting the above, from negative to positive, would perhaps allow the following chain of reaction: if “non-contradictory and non-punitive” were read as an interpretation of action, not as a goal, then more action would be allowed. And although this is a mediator, the Committee would have minimal influence. That would mean that the true form of the Committee, its different potential from Kyoto, would be better understood. And then, this current would be less calm. Because it would have a meaning that would encompass all the elements of the agreement. But instead of limiting its power, discussions would focus on the safeguards needed to prevent the commission`s support element from being a “skip the line” vehicle for funding and support. 1www.wri.org/sites/default/files/mechanism-facilitate-implementation-promote-compliance-paris-agreement-design-options.pdf accessed 14.5.18. Given the unusual language of the Paris Agreement – a half-legal document with a mix of imperative and ambitious law, harder and softer, preamble and borderless convention – normally core international obligations become even more difficult to read. Thus, parties tend to go back on their assumptions of the past – and often read the Paris Agreement in relation to the Kyoto Protocol.
This raises fears of strict compliance and, dare I say it, of enforcement. Article 15 of the Paris Agreement is brief. It describes in two sub-articles the compliance mechanism of the entire agreement. It is in this direction that the negotiating groups have moved. Either they strive for wider application and ask for increased powers to ensure compliance, or they fear compliance burdens and therefore try to limit the Committee. . . .