INDCs on adaptation as a legal commitment

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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

Print Friendly, PDF & Email

Date produced: 09/12/2014

1. Under the UNFCCC developed country Parties have agreed to support the adaptation to climate change impacts in developing countries. If developing countries as part of their INDCs commit to national adaptation efforts in a legally binding form does this modify existing obligations (or other arrangements) under the Convention?

2. If so, what additional measures (e.g. ex ante limitation) could developing countries that take on binding commitments on adaptation put in place to avoid a change in the existing legal obligations (and other arrangements) under the Convention?

Advice:

The scope or extent of developing countries’ obligations in respect of national adaptation efforts will depend on the wording of the relevant parts of any future agreement, together with the wording of any ‘savings clause’ which clarifies the relationship between such an agreement and the Convention either generally and/or in relation to adaptation.

If we assume that the ultimate decision adopted on INDCs requires or allows a country’s adaptation commitments to be in a legally binding form, then such commitments would modify the legal obligations of any country making such a commitment to the other parties in a legally binding form. For international lawyers, a “binding” commitment to another country or countries is a legal obligation to those countries. It would not matter that the country making the commitment had no obligation to make such a commitment under the Convention, since the commitment would be made later in time than the Convention.

To avoid incurring a new legal obligation, a developing country would have to avoid making any commitment in a form that constituted a legal commitment to other parties. The October 24 draft decision does not contemplate that INDCs will initially be made in legally binding form, but rather is expressly:

Without prejudice to the legal nature of the contributions of Parties, pursuant to decision 1/CP.19, as well as to the content and form of the protocol, another legal instrument or agreed outcome with legal force under the Convention applicable to all Parties to be adopted by the twenty-first session of the Conference of the Parties (November–December 2015)….”

If similar language were included in any final decision, then it would not be necessary for any party to take steps to avoid incurring new obligations to the other parties. If instead the decision were revised to take the form of an agreement binding on all parties with respect to adaptation commitments made thereunder, then countries wanting to avoid binding commitments would have to avoid scheduling them under that agreement.

It should be noted that the fact that adaptation measures may be adopted into national law or regulation by a country does not make those adaptation measures internationally binding or an international obligation to other parties. Accordingly, it would be possible for a country unilaterally to take adaptation measures without making those measures a legally binding commitment to other countries.

Another possibility would be to make commitments that are binding but subject to conditions, if this is allowed in the final decision or agreement. For example, a party could make commitments that were binding provided that other countries made similar commitments.