1. Is there a precedent for having ‘gentleman’s agreements’ made on issues that might normally comprise COP decisions?
2. What is the actual form of a Gentleman’s agreement? For example, would they be ‘decision’ type language with placeholders in brackets?
3. Are there any dis/advantages to this approach compared to COP decisions? For example is it more difficult to reopen decisions to use them as treaty text, or to make linkages between particular issues of the negotiations (e.g. finance, REDD, adaptation, MRV) if they have previously been ‘locked’ as COP decisions?
1. Assuming that by “gentlemen’s agreement” you mean a non-binding commitment outside the formal structure of the United Nations Framework Convention on Climate Change (“UNFCCC”), there is a precedent. In December 2009, world leaders agreed to the Copenhagen Accord at the United Nations Climate Change Conference in Copenhagen, Denmark. The Copenhagen Accord is a political agreement—not a legally binding instrument—which addresses issues that could be addressed by a COP decision. For example, the parties to the Copenhagen Accord have agreed that funding will be provided to developing countries to enable and support enhanced action on mitigation, including funding to reduce emissions from deforestation and forest degradation, adaptation, technology development and transfer, and capacity-building. The UNFCCC Ad Hoc Working Group on Long-Term Cooperative Action (“AWG-LCA”) has carried forward similar draft decision language from the fifteenth session of the COP. It is possible that a decision adopted by the sixteenth session of the COP could follow language similar or identical to language in a “gentlemen’s agreement,” such as the Copenhagen Accord and , if it did, it would then become a COP decision.
2. By definition, there is no specific format that a gentlemen’s agreement must or should take. In fact, a “gentlemen’s agreement” could take many possible forms. For instance, an agreement could take the form of a non-binding political agreement, such as the Copenhagen Accord, which essentially contains draft COP decision language.
3. Inevitably, politics must enter into the decision whether to address a particular issue by way of agreement or COP decision. As was demonstrated in Copenhagen, certain parties may enter into an agreement they think will advance negotiations when a consensus is not being reached via the COP decision-making process. In certain instances, it may be more politically or legally feasible for world leaders to enter into side agreements on contentious issues rather than work to garner widespread support for COP decision language.
While a “gentlemen’s agreement” among certain parties to the UNFCCC may have the merit of flexibility (since no requirement for a consensus or restrictions on scope would apply), a “gentlemen’s agreement,” at least theoretically, would not carry the same legal weight as a COP decision. Given that the UNFCCC designated the COP as the supreme decision-making body of the UNFCCC and granted it the authority to implement the UNFCCC, decisions reached through the multilateral process established by the UNFCCC generally are accorded a certain degree of credibility. For example, while a decision at the fifteenth session of the COP “took note” of the Copenhagen Accord, it remains to be seen what legal and practical effect the Copenhagen Accord will have on UNFCCC negotiations.
In addition to questioning the legal weight of “gentlemen’s agreements,” some countries have expressed concern that such agreements might undermine the work being done within the UNFCCC process. Therefore, the flexibility and adaptability of “gentlemen’s agreements” should be weighed against the risk of undermining the multilateral process. That said, in practice, parties may be more willing to honour the terms of a “gentlemen’s agreement” they actively negotiated than a COP decision, particularly if the COP decision, regardless of its nominal legal authority, lacks a means of enforcement.
COP decisions are not necessarily binding and enforceable. For example, in a report prepared by the United State Senate Committee on Foreign Relations (the “Committee”) on the resolution of ratification of the UNFCCC, the Committee noted that “a decision by the Conference of Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement. . . . [A] decision by the executive branch to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States would alter the ‘shared understanding’ of the Convention between the Senate and the executive branch and would therefore require the Senate’s advice and consent.” S. Exec. Rep. No. 102-55, at 14 (1992). Although the United States did not pass a bill or resolution at the time it ratified the UNFCCC that prohibits the United States from entering into substantial obligations by way of a COP decision, the Committee’s report suggests that such an approach would require the United States Senate’s advice and consent.