The 2015 agreement under the ADP mandate will need to be “under the Convention”. The practical legal implications will inform the discussion on options.
What does “under the Convention” mean and what are the options for bringing the 2015 agreement under the Convention, in particular if the output is an agreed outcome with legal force? how to, practically and procedurally, hook “an agreed outcome with legal force” to the Convention ?
Would the Convention possibly need amending, and if so in what circumstances?
Please provide textual examples from other agreements that linked to MEAs in a form other than a protocol, amendment, or annex (including the UN Fish Stocks Agreement, possibly?)
1. Under The Convention
Any agreement “Under the Convention” would have to be implemented in accordance with the provisions of the UNFCCC, either as it stands or as amended. As it stands, the UNFCCC provides for amendments to the convention, adoption and amendments of annexes to the convention, and the adoption of protocols (which then have their own provisions for amendments to the protocol).
There are examples in other regimes where parties have adopted instruments that were not specifically provided for in the convention that established the regime. There are also examples where side agreements were reached before an instrument came into force or before provisions allowing for amendments to a convention came into force. Examples include the 1978 Protocol that amended MARPOL, and the 1995 Fish Stock Agreement, an agreement that formally dealt with the implementation of the 1982 Law of the Sea Convention, but that commentators generally regard as having amended the Convention.
In case of the UNFCCC, all the mechanisms for amending the convention, for establishing annexes and protocols, and for amending existing annexes and protocols, are in force. In addition, decisions can be made by the COP under article 7 regarding the effective implementation of the convention, and by the COP/MOP under article 13 for the effective implementation of the Kyoto Protocol. In light of this, any agreement that does not follow the process set out in articles 7, 15 to 17 of the UNFCCC or articles 13, 20 to 22 of the Kyoto Protocol, would not be considered an agreement under the Convention.
2. An Agreed Outcome With Legal Force
This leaves the question whether an agreement reached under the convention is “an agreed outcome with legal force”. Clearly, subject to the use of permissive or other non-mandatory language in the text of the agreement, an amendment to the convention, one of its annexes, or the Kyoto Protocol would have “legal force”. In addition, a new annex or a new protocol under the convention would also be an agreement with “legal force”. It is important to note in this regard, that other conventions have annexes that include substantive provisions, rather than just lists, as is currently the case for the UNFCCC. In short, a substantive agreement with legal force under the UNFCCC could be developed by way of an annex to the convention, by way of a protocol, or by way of amendments to existing provisions of the convention, its annexes or the Kyoto Protocol.
A more difficult question to answer is the legal status of an agreement by way of COP decisions. The general approach has been to consider COP decisions that set out rules and procedures on how Parties are to meet their existing legal obligations under the convention or the Kyoto Protocol as having legal force. For example, the Marrakech Accords, which set out detailed rules for the functioning of the Kyoto Mechanisms, and the accounting rules are generally regarded as having legal force. Rules in the Marrakech Accords with respect to the Kyoto compliance system are more difficult to characterize, because Article 18 specifies that binding consequences are to be agreed to by way of an amendment to the Kyoto Protocol. This has generally been interpreted to mean that the compliance process agreed to in Marrakech has legal force as a result of its adoption by the COP/MOP in Montreal, but that the consequences are not binding on Parties.
In order for an agreement reached by way of a COP decision to have “legal force”, it would have to be clearly linked to an existing obligation under the convention. It is difficult to reach specific conclusions on whether a COP decision on the range of issues currently under negotiations, including issues such as mitigation, adaptation, finance, technology, loss and damage, capacity building, and long term vision, would have legal force. In each case, what would be required, would be a careful assessment of what obligations exist under the convention, and to what extent the agreement reached on each issue can be considered an elaboration on the effective implementation of the obligation that currently exists in the convention. Where there is not a sufficiently clear obligation in the convention, the COP decision would not be considered to have legal force, unless the COP decision is combined with an amendment to the Convention that clearly sets out an obligation that is then implemented through the COP decision.