Binding nature of COP decisions

Legal assistance paper

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Date produced: 21/11/2011

Of the various issues under negotiation in the AWG-LCA track, which issues must be addressed by a treaty/protocol instrument and which can be addressed by a COP Decision in order to give rise to legally binding obligations? Please comment by reference to the proposed protocol to the Convention submitted by Grenada for adoption at the sixteenth session of the Conference of the Parties (“Grenada Proposal”) 

Summary

Treaties are binding on those countries that ratify them or complete whatever process the treaty provides to signify that the country accepts the obligations as binding. To the extent that the parties to the treaty are obligated to comply with decisions validly taken by an administrative body established by the treaty (such as a COP) then those will also be binding as a matter of international law. Thus, to the extent that the COP has a clear mandate to take a decision binding on all parties to the treaty that created the COP, that decision will also be “binding”. It is then up to each party to take whatever steps are necessary in its domestic law to assure that it complies with binding decisions. A COP cannot impose obligations on nations that have not adopted the underlying treaty, nor can the COP create binding obligations by decision if the decision exceeds the COP’s mandate under the treaty.

Article 7 of the UNFCCC creates a COP and declares that it “shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.” More specifically, Article 7 provides that the COP shall:

  1. Periodically examine the obligations of the Parties and the institutional arrangements under the Convention, in the light of the objective of the Convention, the experience gained in its implementation and the evolution of scientific and technological knowledge;
  2. Promote and facilitate the exchange of information on measures adopted by the Parties to address climate change and its effects, taking into account the differing circumstances, responsibilities and capabilities of the Parties and their respective commitments under the Convention;
  3. Facilitate, at the request of two or more Parties, the coordination of measures adopted by them to address climate change and its effects, taking into account the differing circumstances, responsibilities and capabilities of the Parties and their respective commitments under the Convention;
  4. Promote and guide, in accordance with the objective and provisions of the Convention, the development and periodic refinement of comparable methodologies, to be agreed on by the Conference of the Parties, inter alia, for preparing inventories of greenhouse gas emissions by sources and removals by sinks, and for evaluating the effectiveness of measures to limit the emissions and enhance the removals of these gases;
  5. Assess, on the basis of all information made available to it in accordance with the provisions of the Convention, the implementation of the Convention by the Parties, the overall effects of the measures taken pursuant to the Convention, in particular environmental, economic and social effects as well as their cumulative impacts and the extent to which progress towards the objective of the Convention is being achieved;
  6. Consider and adopt regular reports on the implementation of the Convention and ensure their publication;
  7. Make recommendations on any matters necessary for the implementation of the Convention;
  8. Seek to mobilize financial resources in accordance with other section of the Convention;
  9. Establish such subsidiary bodies as are deemed necessary for the implementation of the Convention;
  10. Review reports submitted by its subsidiary bodies and provide guidance to them;
  11. Agree upon and adopt, by consensus, rules of procedure and financial rules for itself and for any subsidiary bodies;
  12. Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies; and
  13. Exercise such other functions as are required for the achievement of the objective of the Convention as well as all other functions assigned to it under the Convention.

In addition, Article 4.2 entrusts the COP with periodically reviewing and improving key operative paragraphs requiring developed country parties to both report on and actually mitigate their greenhouse gas emissions until the overall goals of the Convention are achieved. However, nothing in Article 4 suggests that the COP could create new enforceable obligations against particular parties.

As can be seen, the COP’s powers do not include the power to impose new substantive obligations on individual parties; rather the powers tend to be of an administrative character, or to make or develop proposals or recommendations. The practice of the COP confirms this. The COP has not attempted to take decisions imposing financial obligations or limitations on party action beyond those already stated. When the parties to the UNFCCC wanted to create such obligations, it was done by Protocol that was subject to domestic approval processes, like the original UNFCCC. Attempts to impose new obligations by COP decision outside of the COP’s mandate would likely draw objection not only from those who did not like the decision, but also from those who feared the precedent of allowing the imposition of obligations on nations that had not agreed to them.

Advice

The Proposed protocol to the Convention submitted by Grenada for adoption at the sixteenth session of the Conference of the Parties (“Grenada Proposal”) seeks agreement on several provisions relating to climate change adaptation and mitigation, and reduction of greenhouse gasses. The following is a summary of the key provisions in the Grenada Proposal, and whether such proposals could be achieved through a COP decision, rather than through adoption of a new treaty or protocol.

ADAPTATION

The Grenada Proposal provides that developing countries shall be provided with the necessary financial, technological and capacity-building support by developed countries through a new Multilateral Fund on Climate Change. It is unlikely that the creation of a new funding mechanism, calling for mandatory funding by developing countries, could be achieved through a COP decision. Neither the UNFCCC nor the Kyoto Protocol provide the COP with the authority to establish such a funding mechanism. Therefore, any attempt to do so by COP decision would not be accepted as binding by the parties.

MITIGATION

The Grenada Proposal provides that parties to the UNFCCC must abide by certain binding greenhouse gas emissions limitations. The COP is not authorized to impose new greenhouse gas emissions limitations under either the UNFCCC or the Kyoto Protocol. Therefore, any attempt to do so by the COP would be binding upon the parties.

The Grenada Proposal also requires developing countries to undertake certain mitigation actions designed to reduce greenhouse gas emission and enhance greenhouse gas removal by sinks through the use of funds to be provided by developed nations. Again, neither the UNFCCC nor the Kyoto Protocol grants the COP with authority to create new funding or mitigation obligations. Therefore, while the COP arguably could recommend or propose such new obligations to the parties for their action, any attempt to do so simply by COP decision would not be binding upon the parties.

EMISSIONS FROM INTERNATIONAL AVIATION AND MARITIME TRANSPORT

The Grenada Proposal invites the International Maritime Organization and the International Civil Aviation Organization to initiate technical and operations actions, and provide updates of progress to the COP at its sessions. The COP is authorized to seek and utilize the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies. Therefore, it appears that this action could be achieved through a COP decision. The COP decision, however, could not force the other organizations to cooperate with the COP.

REDUCING EMISSIONS FROM DEFORESTATION AND FOREST DEGRADATION

The Grenada Proposal generally calls on nations to develop plans to halt future deforestation and forest degradation. To the extent that this proposal differs from the mandates of the UNFCCC and the Kyoto Protocol, the Grenada Proposal would need to be adopted by the parties. Moreover, the Grenada Proposal calls for implementation of the national plans through funding provided by a new mechanism to be funded by developed countries. The COP is not authorized to require new or increased financial contributions. Therefore, any attempt to do so by the COP would not be binding upon the parties.

TECHNOLOGY DEVELOPMENT AND TRANSFER

The Grenada Proposal call for the creation of a new mechanism to promote the development, deployment and transfer of climate friendly technologies. To the extent that this mechanism is voluntary and does not require funding from any new funding sources provided for in the Grenada Proposal, it appears that a COP decision could establish such mechanism. That said, the technology transfer mechanism as provided for the in Grenada Proposal does rely on funding from a source created by the Grenada Proposal, so the technology transfer mechanism as drafted could not be made binding on the parties simply by a COP decision.