Application of new Agreement and binding commitments under the UNFCCC

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 13/11/2013

1. What measures, if any, can be taken to ensure the new agreement can be made applicable immediately, without being undermined by the usual delays of the ratification process?

2. A statement from the Philippines representative in ADP Plenary today suggested that without Kyoto Protocol there are no binding commitments on emissions reduction under the UNFCCC regime, since the objective of the Convention is to “stabilize” the concentration of greenhouse gases in the atmosphere, rather than specifically reduce emissions. Does the Convention set out autonomous binding commitments for emissions reduction without the KP?

Advice: 

1) What measures, if any, can be taken to ensure the new agreement can be made applicable immediately, without being undermined by the usual delays of the ratification process?

Measures to ensure immediate application of the new agreement may include:

Conditions for entry into force, for example:

  • Number of states that have to ratify in order for it to take effect;
  • Low combined emission threshold for entry into force (KP: enters into force once 55 countries have ratified, including 55% of total 1990 carbon emissions)
  • Allowing qualified ratification (eg. reservations) – to increase rates of ratification.

Allow and explicitly provide for provisional application pending entry into force;

Flexibility of provisions, for example:

  • Duration & renegotiation provisions- allows states to modify agreement;
  • Escape clauses in case of unanticipated circumstances
  • “Flexibility mechanisms” (trading, join implementation) to help countries meet hard commitments (as in KP)
  • Overall structure and language: e.g. principles v. rights and obligations; domestic activities v. specific outcomes; reporting and assessment v. monitoring and compliance etc.

2) A statement from the Philippines representative in ADP Plenary today suggested that without Kyoto Protocol there are no binding commitments on emissions reduction under the UNFCCC regime, since the objective of the Convention is to “stabilize” the concentration of greenhouse gases in the atmosphere, rather than specifically reduce emissions. Does the Convention set out autonomous binding commitments for emissions reduction without the KP?

The Convention provides for commitments on reduction of emissions by developed countries under article 4.2. However, the provision is not automatically applicable because there are no specific targets and timetables, which were further detailed under the Kyoto Protocol.

The objective of the Convention is indeed vague by referring to “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.

This is a feature of framework conventions, which comprise general objectives, principles and basic commitments in the Convention, leaving more specific rules and technical details to protocols, annexes and subsequent decisions by the meetings of the parties.

Therefore, to some extent, the Philippines delegate is correct. Until the outcome of the ADP is implemented, the Kyoto Protocol will remain the only legally binding agreement in the climate regime that imposes hard and concrete mitigation targets and obligations on any Party.