What are the legal implications of submitting a pre-2020 pledge placed in an annex versus an INF document, in relation to the legal strength and nature of each form of document?
Summary: In our view, new legally binding mitigation targets under the UNFCCC could only be brought into effect by means of an amendment to either the UNFCCC or the Kyoto Protocol. Annexes to COP decisions are part of the COP decision. In our view COP decisions cannot create legally binding obligations, but do create obligations with political weight. Therefore, any mitigation targets in an annex would be political obligations of the Parties. INF documents do not, of themselves, create even political obligations. However, mitigation targets that are set out in such a document could become political obligations if a COP decision subsequently refers to them. From a practical perspective however, it would be preferable to include the pledges in an annex to a COP decision (for clarity of the pledges that the Parties are referring to).
When considering which of the different types of documents set out in the query is ‘more legally binding’, the most important thing to note is that there is considerable debate as to whether any of the documents would be legally binding without an amendment to either the UNFCCC or the Kyoto Protocol.
In other words, we believe there is little legal difference between the INF document and annex options and in our view, for mitigation targets to be legally binding, an amendment to either the UNFCCC or the Kyoto Protocol or both would be required. We do not believe that a COP decision setting out targets in the operative part of the decision would be legally binding either. However, if mitigation targets were set out in a COP decision, they would still carry considerable political weight even if they were not legally binding.
It is important to keep in mind that the effect may be modified if the document is subsequently referred to in a COP decision as referred to below.
Annex to a COP Decision
If mitigation targets were set out in an annex to a COP decision, and provided that the relevant operative paragraphs link the obligations of the relevant parties to the annex, then these mitigation targets would carry the same force as a COP decision. In other words, they would carry strong political weight but would not be legally binding.
Please note that the (political) obligation to meet this target would depend on the language used in the operative paragraphs: ‘shall meet the targets in the annex’ would be stronger than ‘should meet the targets in the annex’ which in turn is stronger than ‘should aim to meet the targets in the annex’ and so on.
INF means ‘information series’ and is usually used for lists of information such as the lists of participants in a conference or meeting. It is usually prepared by the Secretariat. It could conceivably be attached to a document created by the Secretariat which lists the mitigation pledges already declared by Parties (as required by the Copenhagen Accord) or to compile a list of mitigation targets.
INF documents, by themselves, have no legal force. In the context of mitigation pledges or targets, they are, by themselves, nothing more than a compilation of pledges or targets made by the parties elsewhere (whether orally or in writing). The legal or political force of the targets listed in an INF document will depend on the statement or document in which the pledge or target is made (e.g. statements (written or oral) made to other parties or the UNFCCC Executive Secretary or in a new treaty text or annex) or the COP decision pursuant to which it was created.
Linking to a COP decision
Within the context of the UNFCCC (or the Kyoto Protocol), in order for mitigation targets to create even a political obligation, they would have to be linked to a COP (or CMP) decision. Referring to a document in a COP decision may modify the effect of the mitigation target, converting it to an obligation with political weight regardless of the status of the base document.
In respect of targets set out in an annex to the COP decision, this linkage is relatively straightforward since the annex will be part of the COP decision (providing that the relevant operative paragraph of the COP decision dealing with mitigation targets links to the annex).
In respect of mitigation targets listed in a INF document, provided all the Parties agree, these documents could be referred to in the COP decision in the following manner: “The COP…Decides that [each] [Annex I] Party [shall] [should] [should aim to] meet its targets as listed in [Document FCCC/ …/INF.x]”. These targets would then have the same force as if they were annexed to the COP decision, but note that the language used when referring to the mitigations targets (shall meet / should meet / should aim to meet) will also affect the strength of the obligation. In practice, however, it is likely that the INF document would be annexed to the COP decision anyway.
Giving legal effect by incorporating targets into a legal agreement by reference
As set out at the beginning of this advice, we believe that mitigation targets can only be made legally binding if set out in amendments to the UNFCCC or the Kyoto Protocol or both (or a new legally binding form of instrument). If there is sufficient political will for this, the targets agreed in a COP decision, an annex to a COP decision, or an INF document could be made legally binding by referring to the relevant document in the amendment or new legal instrument. This is called ‘incorporation by reference’.