Difference between legal form options for ADP

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Date produced: 30/04/2013

What is the difference between the different legal form options for the future ADP text (i.e. protocol, legal instrument, agreed outcome with legal force under the Convention)?

Summary

The negotiations under the Durban Platform for Enhanced Action aim to develop ‘a protocol, another legal instrument or an agreed outcome with legal force.’

While it is generally understood that a protocol or another legal instrument would be internationally binding, the meaning of ‘agreed outcome with legal force’ is less clear. ‘Legal force’ could be interpreted as equivalent to ‘binding’ but some commentators have argued that it is even broader than ‘binding’ (though some parties have argued that it is narrower).

In any event, the relative bindingness of each option depends not only on the legal form agreed but also on the substance of the obligations contained in the outcome.

Therefore there are at least two levels of bindingness: (i) the legal form of the agreement; and (ii) whether the obligations contained in the agreement are sufficient to create an enforceable and binding commitment.

As a result, it is not possible to know how binding the outcome will be until we know what the obligations are and how they’re framed.

Advice

The negotiations under the Durban Platform for Enhanced Action aim to develop ‘a protocol, another legal instrument or an agreed outcome with legal force.’

Bindingness generally

With respect to bindingness, the legal form of the outcome is an important factor. However, the relative bindingness of each option also depends on the substance of the obligations contained in the outcome.

As a result there are at least two levels of bindingness:

i. The legal form of the outcome – a protocol or another legal instrument would be binding internationally while an agreed outcome with legal force may or may not be binding depending on what is agreed; and

ii. Whether the obligations contained in the agreement (whether a protocol, another legal instrument or an agreed outcome with legal force) are sufficient to create an enforceable and binding commitments.

Legal Form

Protocol or another legal instrument

In addition, even where the instrument itself is binding, it does not necessarily mean that obligations contained within it will be binding on all Parties.

For example, although a protocol or another legal instrument are, in respect of the instrument, legally binding on all Parties to the instrument, Parties may not be bound by certain parts of the instrument. For example, Article 4(2) of the Convention contains a legal commitment for ‘[t]he developed country Parties and other Parties included in Annex I’ – i.e. non-Annex I Parties are not bound by commitments under Article 4(2).

Likewise, non-Annex I Parties are not bound by the legal obligations under Articles 3(1) and 3(2) of the Kyoto Protocol which respectively provide that ‘[t]he Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions […] do not exceed their assigned amounts […]’ and ‘[e]ach Party included in Annex I shall, by 2005, have made demonstrable progress in achieving its commitments under this Protocol’.

A different example of where obligations in a legally binding instrument only bind certain Parties can be found in Article 12 of the Kyoto Protocol. This article provides for legally binding rules regarding the Clean Development Mechanism (CDM). However, these are not strictly binding on/relevant to Parties unless they voluntarily participate in the CDM.

An agreed outcome with legal force

While it is generally understood that a protocol or another legal instrument would be internationally binding, the meaning of ‘agreed outcome with legal force’ is less clear. ‘Legal force’ could be interpreted as equivalent to ‘binding’ but some commentators have argued that it is even broader than ‘binding’.

On the other hand, it has been suggested that such an outcome could take the form of one or more COP decisions, unilateral decisions, or with the outcome deriving force from a country’s domestic law (as suggested in paragraph 7 of the 30 April 2012 ‘Indian Submission on ADP Work Plan’), or something else entirely.

The extent to which an ‘agreed outcome with legal force’ will be legally binding (as opposed to politically, diplomatically or morally binding) on Parties (whether developed or developing) will depend on what the Parties agree this option means.

Type and Nature of Obligations

Even where a legally binding agreement purports to create obligations, such obligations may be framed in such a way as to limit their effectiveness.

Type of obligation- general v specific

For example, obligations may be expressed in aspirational terms. Or they may be general in nature (rather than specific), making it difficult to determine the specific obligation that must be undertaken by a specific Party (or set of Parties). Article 4(2)(a) of the Convention is a good example of this. Although it requires developed countries Parties and other Parties included in Annex I to adopt policies and measures to mitigate climate change, this in itself was viewed as not being sufficient to achieve the ultimate objective of the Convention. Part of the reason for this is that it is difficult to assess whether the relevant Parties have adequately implemented this obligation, meaning that as a result it could be argued that the obligation is only weakly binding on Parties.

By contrast, Article 3(1) of the Kyoto Protocol, sets out specific obligations with respect to Parties listed in Annex B of the Kyoto Protocol, making it much easier to assess compliance. In this sense, it can be argued that Article 3(1) is strongly binding on the Parties to which it applies.

Nature of obligation – mandatory v discretionary

Furthermore, even specific obligations may be qualified in nature if they give Parties discretion as to whether to implement them. A good example of this is Article 4(2)(g) of the Convention:

[Non-Annex I Parties] may … notify the Depositary that it intends to be bound by sub-paragraphs (a) and (b) above.

Here non-Annex I Parties have the right (but not the obligation) to bind themselves to the obligations contained in Article 4(2)(a) and (b). By contrast, sub-articles (a) and (b) require mandatory action on the part of Annex I Parties. Sub-article (a), for example, states that:

[Annex I Parties] shall adopt national policies and take corresponding measures on the mitigation of climate change…

In addition, obligations of Parties may be qualified by reference to national circumstances, the use of the term ‘as appropriate’. Qualifiers such as these (there are many other) all ‘reduce’ the strength (and in turn the bindingness) of obligations, even if they are contained within a legally binding agreement.

Conclusion

In conclusion, the legal form of the outcome is only one variable in determining the bindingness and effectiveness of the agreement. The nature, scope and type of obligations contained are equally important considerations.

Therefore, the degree to which Parties will be bound to undertake obligations under the ADP outcome will depend on the legal form of the outcome, the type of obligation (general or specific) and the nature of the obligation (mandatory or discretionary).