Developing country protocol

Legal assistance paper

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Date produced: 06/08/2010

1. Can a non-legally binding agreement that includes targets for developing country emissions targets have legal effect? If so, what would be the elements of such an agreement and what would be the appropriate name of such an agreement?

2. What steps can be taken to ensure that once a domestic legislation is passed implementing international climate commitments, the (BASIC) country will (a) remain obligated to fulfill commitments and not dilute them even if there are changes in governments, and (b) there will be no need to pass additional domestic legislation for subsequent commitment periods under the same international agreement?

3. Is it possible to develop some parameters which can then be converted into a legal architecture for developing countries which takes into account the difference between these countries’ abilities to reduce emissions?

1. A non-legally binding agreement cannot create legally binding obligations, however it can have ‘legal effect’ in a broader sense e.g. a court could attach significance to such a document and ‘soft law’ can help add to the understanding of harder obligations (e.g. by adding details to things that have been committed to elsewhere and example of this would be the Human Rights Council in respect of the ICCPR).

To create legally binding obligations, the State parties would have to consider that they were in fact legally bound – public statements suggest that States do not consider themselves to be legally bound.

2. International legal obligations, whether set out in a convention or arising simply as a matter of customary law, operate independently of domestic law and have separate enforcement mechanisms (e.g. through the International Court of Justice). It is often necessary for States to implement domestic legislation in order to fulfil their international obligations, however the two regimes operate largely independently of each other.

By way of illustration, the rights and obligations under the European Convention on Human Rights (“ECHR”) do not require domestic legislation to be effective. Nevertheless, a number of countries have enacted domestic legislation (e.g. the Human Rights Act 1998 in the UK), which facilitates the fulfilment of these obligations. Where any such domestic legislation fails to discharge these obligations properly, rights holders are entitled to bring challenges under the ECHR. One of the key reasons that this model has been successful is the creation of enforcement mechanics and institutions and the difficulties this system faces now are largely institutional rather than legal.

It is difficult (and generally inappropriate) for States to interfere in the domestic affairs of other States as this independence is the essence of sovereignty. However, the existence or otherwise of domestic legislation is not a valid defence against a failure to fulfill international obligations. From a practical perspective, where it is not possible to reach an agreement establishing international obligations, it may be necessary to rely on political pressure to encourage States to ‘voluntarily’ commit to domestic solutions, however the nature of such commitments would take them outside of the international legal framework.

3. Yes, the parameters could be developed and incorporated into a legally binding agreement between those states that wish to be bound. It would be very important to ensure that there was political agreement as to the exact parameters prior to attempting to incorporate such parameters into a legal architecture. We would be happy to assist with such an exercise if clear parameters could be provided and happy to discuss what parameters are relevant in this context.