Advisory Memo

Advisory Memo: Fossil Fuel Commitments in Nationally Determined Contributions under the Paris Agreement

Contents

1. Introduction: Fossil fuel production is intrinsically linked to GHG emissions

2. A Framework for Fossil Fuel Commitments in NDCs

3. Legal Foundations: The Paris Agreement, UNFCCC and Fossil Fuel Commitments

4. Policy Foundations: The Strategic Benefits of Fossil Fuel Commitments

1. Introduction: Fossil Fuel Production is Intrinsically Linked to Greenhouse Gas Emissions

1. Insufficient attention to fossil fuel production is at the heart of the failure to adequately address the climate emergency to date. This is despite the fact that the central role of fossil fuels in driving the climate emergency is incontrovertible. Global warming is caused mainly by the increasing cumulation of anthropogenic emissions of greenhouse gasses (GHG) (especially carbon dioxide, or CO2, emissions) in the atmosphere. The overwhelming driver of these cumulative GHG emissions is fossil fuel combustion and industrial processes. Fossil fuels – coal, oil, and gas – were responsible for 86% of CO2 emissions in the most recent decade (2010-2019). 

2. Fossil fuel production cannot be disconnected from combustion and industrial processes, because upstream fossil fuel production inevitably leads to, and is necessarily and causally linked to, downstream GHG emissions. Fossil fuels, once extracted, are predominantly burned for energy production across a range of sectors, and lead to GHG emissions. Moreover, the production and extraction process itself releases emissions, including methane and CO2.

3. Against this background, and the present state of climate emergency, it is clear we cannot avert the climate emergency or effectively limit its impacts without rapidly reducing fossil fuel production and use. The factual relationship between fossil fuels and climate change cannot be ignored or omitted; it is an indispensable part of the context for countries’ climate change commitments. 

4. Despite this, the UNEP Production Gap Report finds that countries are planning to produce 110% more fossil fuels than is compatible with the Paris Agreement’s 1.5oC temperature limit by 2030, and to produce more fossil fuels than is in line with the emissions reductions committed to in their Nationally Determined Contributions (NDCs) under the Paris Agreement. Current research shows that to remain within the the 1.5oC temperature limit, fossil fuel production must fall by at least 40% but possibly as much as 58% by 2030. There is therefore a clear policy gap between emissions reduction obligations under the UNFCCC and Paris Agreement on the one hand, and fossil fuel production plans on the other.

5. Updated NDCs due in 2025 represent the last opportunity countries face to take the action required to limit global temperature rise to below 1.5oC and avert catastrophic climate change. It is therefore a scientific and policy imperative that updated NDCs directly address the primary cause of the problem - fossil fuel production and use.

6. This memo outlines:

1. A framework of commitments that countries should include in their NDCs;

2. The legal rationale for inclusion of fossil fuel commitments in NDCs under the Paris Agreement, UNFCCC and international law more broadly; and

3. The strategic benefits and policy rationale of including fossil fuel commitments in NDCs.

2. A Framework for Fossil Fuel Commitments in NDCs

1. Countries will ideally adopt a comprehensive package of commitments relating to limiting fossil fuels, scaling up renewable energy and ensuring a just transition. At the very minimum all countries should commit to issuing no new extraction licenses. However, NDCs should also go further than this in line with the suggested commitments below. 

2. NDCs should be based on equity, with developed countries carrying phasing out quickly in line with their greater capacity to do so, while also providing finance, technology and capacity building support to ensure developing countries can best take advantage of the opportunities to benefit from the just transition. Individual country NDCs should reflect this principle of equity in their commitments.

3. To meet the goals of the Paris Agreement, countries should adopt commitments in accordance with the list below. Commitments should be detailed, clear and quantifiable. For a holistic overview of best practice commitments across other components of NDCs, please also refer to the Climate Action Network Guidelines for NDCs 3.0.

Table of Suggested NDC Commitments

3. Legal Foundations: The Paris Agreement, UNFCCC and Fossil Fuel Commitments

The UNFCCC and Paris Agreement justify including measures relating to fossil fuel extraction and just transition in NDCs in a range of ways

1. Article 2.1(a) of the Paris Agreement requires countries to pursue efforts to limit the global average temperature increase to 1.5oC above pre-industrial levels. It provides as follows:

   1. Article 2

      1. This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by: (a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change; …

2. Article 3 of the Paris Agreement requires countries to submit nationally determined contributions, in line with the purpose of the Agreement as set out in Article 2. Article 3 makes explicit that Article 2 articulates the purpose of the Paris Agreement, and that NDCs should meet this purpose. 

3. Article 18 of the Vienna Convention on the Law of Treaties requires that parties to a treaty must ‘refrain from acts which would defeat the object and purpose of a treaty’. As noted above, current fossil fuel production policies would see more than double the amount of fossil fuels produced than is consistent with the 1.5oC temperature limit. Failing to change this trajectory and phase out fossil fuels in line with the Paris Agreement’s 1.5oC temperature goal would ‘defeat the object and purpose’ of the Paris Agreement. Thus, including measures with respect to fossil fuel extraction in countries’ NDCs is not only consistent with meeting the temperature limit under 2.1(a) but is imperative to meeting the Paris Agreement’s purpose.

4. Article 4 of the Paris Agreement does not limit the types of mitigation measures which should be included in countries’ NDCs. Article 4 requires countries to ‘prepare, communicate and maintain’ NDCs, and to pursue domestic mitigation measures with the aim of achieving these NDCs. As fossil fuel extraction inevitably results in greenhouse gas emissions, regulating the extraction and supply of fossil fuels is a mitigation measure. Each successive NDC must ‘represent a progression beyond’ a country’s previous NDCs (Article 4.3), thus each round of NDCs must represent enhanced ambition as part of the Paris Agreement’s ‘ratchet’ mechanism.

5. Article 4.5 requires support to be provided to developing country Parties to implement their obligations under Article 4. Articles 9, 10, and 11 of the Paris Agreement further require the provision of financial, technological and capacity building support respectively to developing country parties in fulfillment of their NDCs. Developing countries which include measures relating to fossil fuel extraction and a just transition in their NDC would therefore have a case for requesting support for any related fossil fuel phase-out or just transition-related measures from developed country Parties. 

6. Article 4.13 requires countries to account for their nationally determined contributions under the transparency framework further articulated in Article 13. Including fossil fuel extraction and just transition in a country’s NDC will require that country to be transparent about progress towards achieving its commitments, which will set a strong precedent for other states. It will also provide a platform for the country to report on the economic and development challenges associated with transition from fossil fuel dependence.

7. Article 4 should also be interpreted in the light of the Preamble and other Articles of the Paris Agreement. For example:

   1. The Preamble of the Paris Agreement takes into account ‘the imperatives of a just transition of the workforce and the creation of decent work and quality jobs’. A just transition for workers will be essential in the transition away from fossil fuel dependence, and thus is relevant to articulate in countries’ NDCs.

   2. The Preamble also requires Parties to take action in light of their obligations relating to human rights, health, the rights of indigenous peoples and others. Research has shown that fossil fuels undermine international obligations in each of these areas.

8. The Paris Agreement was adopted under the UN Framework Convention on Climate Change (UNFCCC) and as such, must be interpreted in light of the UNFCCC. In its Article 3.3, the UNFCCC states that ‘Parties should take precautionary measures to anticipate, prevent and or minimize the causes of climate change and mitigate its adverse effects.’ This reflects the precautionary principle in customary international law. Given the intrinsic link between fossil fuel extraction and greenhouse gas emissions, it is clear that taking precautionary measures necessitates measures relating to reducing the production of fossil fuels.

9. The preamble of the UNFCCC also recognises ‘the special difficulties of those countries, especially developing countries, whose economies are particularly dependent on fossil fuel production, use and exportation, as a consequence of action taken on limiting greenhouse gas emissions,’ and that ‘responses to climate change should be coordinated with social and economic development… taking into account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty.’ 

10. Thus, the UNFCCC recognises the challenges associated with a just transition from fossil fuels for fossil fuel dependent developing countries. NDCs under the Paris Agreement provide an important opportunity to address both the need to take precautionary measures in reducing fossil fuel production, and to highlight the need for support for a just transition and economic diversification from fossil fuels.

11. At COP28 in Dubai countries called on states to contribute to global efforts towards 1.5oC, including ‘Transitioning away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, so as to achieve net zero by 2050 in keeping with the science’ (Decision 1/CMA.5, para 28(d)). This was one of the outcomes of the Global Stocktake, which occurs every five years (Article 14 of the Paris Agreement). The 2023 Global Stocktake also stated that the next round of countries’ NDCs should be 1.5oC-aligned and cover ‘all greenhouse gases, sectors and categories’ (Decision 1/CMA.5, para 39). Article 14.3 of the Paris Agreement specifies that the Global Stocktake shall inform parties in updating and enhancing their commitments under the Paris Agreement, including their NDCs. Hence countries should address the commitments and findings of the Global Stocktake in their updated NDC, including the commitment to transition away from fossil fuels.

12. The Pact for the Future adopted by the UN General Assembly in September 2024 further cements the COP28 language relating to fossil fuels, reconfirming countries’ obligations to transition away from fossil fuels and demonstrating that fossil fuels are one of the key challenges on the multilateral agenda.

13. At COP27 in Sharm El-Sheikh country Parties agreed to establish a ‘work programme on just transition for discussion of pathways to achieving the goals of the Paris Agreement’, including the 1.5oC temperature goal. Including measures relating to a just transition from fossil fuels in a country’s NDC will create a clear hook for technical engagement within the just transition work programme that may result in useful technical or capacity building support to aid in the transition.

14. A growing body of international law is beginning to recognise that countries face binding legal obligations with respect to limiting greenhouse gas emissions, and that these obligations derive not only from the UNFCCC and Paris Agreement but also more broadly. For example, the ITLOS Advisory Opinion on climate change found that the definition of “pollution” under Article 1(1)(4) of the UN Convention on the Law of the Sea encompasses anthropogenic GHG emissions because they have deleterious effects on the marine environment, both directly and indirectly, and that states have an obligation to take all necessary measures to prevent, reduce, and control pollution from GHG emissions. Advisory Opinions further exploring a) obligations with respect to climate change and human rights, and b) the broader corpus of international law are forthcoming from the Inter-American Court of Human Rights and International Court of Justice respectively. Addressing the source of greenhouse gas emissions - fossil fuels - in countries’ NDCs is therefore also a critical step in discharging a broader set of international obligations that include and extend beyond the Paris Agreement.

4. Policy Foundations: The Strategic Benefits of Fossil Fuel Commitments

1. In addition to the justifications found within the UNFCCC and Paris Agreements themselves, there are important policy considerations for the inclusion of fossil fuel extraction and just transition measures in a countries’ NDC. These include:

   1. Policy coherence - as noted above, countries are currently planning to produce more fossil fuels than is compatible with their NDCs. There is a clear policy mismatch between fossil fuel supply policy on the one hand and climate policy on the other.

   2. Setting a precedent in the multilateral sphere - by including fossil fuel extraction and just transition measures in their NDCs, countries can contribute to further normalizing discussions about fossil fuel supply in multilateral climate fora, and potentially influence future UNFCCC negotiations.

   3. Emphasize the need for support for the transition - developing countries can make some of their commitments conditional on financial, technological or capacity building support from developed country Parties, and outline their needs in relation to the just transition and economic diversification. This would engage the relevant provisions under the Paris Agreement related to support - as outlined above - as well as make an important public policy statement that may be used as a future advocacy tool about the need for greater financing of the transition from fossil fuels.

   4. Including an investment plan in NDCs - covering fossil fuel supply would also reinforce the UNFCCC’s call for finance and investment plans to be included in NDCs, given the objective (as per Article 2.1.c of Paris) to move away from financing high-carbon to low-carbon sources.