Binding commitments via IMO and ICAO

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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.

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Date produced: 03/11/2009

1. If qualitative language only were adopted by UNFCCC (e.g. §18), could it be regarded as having legal weight in relation to measures adopted by IMO or ICAO? E.g., could a UNFCCC Party not only refuse to ratify a measure in IMO or ICAO, but seek legal redress against such a measure by other Parties, on the basis that it restricted international trade or failed to recognise the principle of common but differentiated responsibilities (CBDR)?

2. Could COP decisions ever be binding on IMO (and indeed ICAO)? It is often stated that COP could not ‘direct’ IMO/ICAO to do anything, but is this in fact the case?

3. The EU explains that its proposal would bind Parties, who are national Governments, and those same national Governments are Contracting States to IMO and ICAO. Thus the States in their work at IMO and ICAO would be under a legal obligation to discharge commitments they took on as UNFCCC Parties. Does this explanation hold water? Can obligations be transferred in this way?

4. If bunker protocols are negotiated at UNFCCC, by what legal mechanism could COP create a target that was legally binding on private entities (ie airlines and ship operators) who are not Parties?

1. Venezuela’s suggestion in para 18 of non-paper 17 says, in the context of addressing emissions from aviation and shipping, that “the ICAO and IMO shall be guided by the relevant dispositions and principles of the UNFCCC”. Like Article 2.2 of the Kyoto Protocol, which urges parties to ‘work through’ the ICAO and IMO, such language is vague. It has legal weight insofar as it sets the broad agenda for the IMO and ICAO by reference to UNFCCC principles, but it leaves a broad discretion as to how they should address emissions from these sectors in practice. The detail concerning how such emissions will be addressed is left open.

A state that believes that a proposed amendment to the conventions overseen by the IMO and ICAO is in breach of the Venezuelan language’s requirements (i.e. that the 2 organisations should be guided by the principle of CBDR and that they should prevent disguised trade restrictions) should argue that in the appropriate negotiations concerning the proposed amendment. Where such an amendment has sufficient support for it to be submitted to the ratification procedures required for it to come into force, a dissenting state should not expect to be able to halt the ratification by legal action based on the Venezuelan language.

For example, the Convention on International Civil Aviation (“CICA”) requires amendment to be approved by a two-thirds majority of the CICA Assembly and that such amendments enter into force after ratification by the appropriate number of states. States that do not ratify an amendment do not become bound by it, but can be expelled from CICA for a failure to ratify an amendment which is considered important enough for the CICA Assembly to provide for expulsion in its resolution recommending adoption. CICA also provides for settlement of disputes and penalties for non-compliance include suspension of state’s voting powers.

The dispute settlement provisions of CICA are broadly worded but they are not in our view intended to provide an opportunity for halting the ratification procedure discussed above should a state fail to persuade the majority of members of its view. If the international community, working through the IMO and ICAO, decides a particular path which one state nevertheless believes contradicts the principles set out in the Venezuelan language, that state is not likely to succeed in using the CICA dispute machinery to overcome its lack of supporting votes.

2. A CAN-Legal document on COP decisions concludes that: “COP decisions do not provide an unambiguous basis to impose adequately binding, enforceable commitments with respect to quantified emissions reduction commitments or financial obligations for developed countries. Accordingly, suggestions for a Copenhagen outcome with a universally uncontested and unequivocal legal nature relying only on COP decisions for such commitments may not be sufficient.”

Note that the intention behind Article 2.2 of the Kyoto Protocol was not to prescribe specific action by either IMO or ICAO but to urge the Anne 1 parties to use such existing structures and their institutional arrangements to achieve a particular goal. To the extent that the parties to the COP overlap with the parties to the conventions overseen by the IMO and ICAO, those parties can use the relevant institutional arrangements to make the changes that they believe reflect their commitments under the UNFCCC. Given this reality, IMO and ICAO will as a matter of practice be influenced by UNFCCC decisions but would expect parties to the relevant conventions to effect changes using the appropriate machinery.

3. The EU language in para 19 of non-paper 17 does require specific action and is in that sense ‘binding’. However, it leaves the detail as to how the specific reduction targets which it would contain are to be achieved to later negotiations. Under the EU language the “parties shall work through the ICAO and IMO to enable effective international agreements to achieve these targets to be approved by 2011.” As has been noted, there has been little progress working through these bodies under Article 2.2 of the Kyoto Protocol although that did not contain specific targets and a deadline. The EU provision would put pressure on the parties to achieve what they had publicly undertaken but would not make it any easier to agree the detail and there are liely to be no meaningful sanctions for failure to comply with it.

4. The EU’s emissions trading system and UK’s climate change levy are examples of UNFCCC parties imposing obligations on private parties which are intended to facilitate achievement of those entities’ Kyoto Protocol obligations. The detail of how targets should be achieved is likely to be negotiated within IMO and ICAO structures, which are then likely to need co-ordinated national implementation.