1. What will be the legal implications of incorporating adaptation into the INDCs? If mitigation elements of the INDCs are legally binding would adaptation elements need to be as well?

2. Would including one requirement (mitigation) that is legally binding and another (adaptation) that is not legally binding create problems or confusion within the overall agreement?

3. In addition to INDCs, the agreement will likely include an adaptation goal. Are there effective ways to link the adaptation elements of the INDCs to the global adaptation goal? If so are there examples from other international agreements that are instructive?

4. If developing countries, like LDCs, AOSIS and other vulnerable developing countries, adopt adaptation components as part of their INDCs, will they be obligated to fulfil those commitments at any cost?

5. More generally, are there precedents within the UNFCCC or other MEAs that are instructive on these questions? 

Advice:

The response to this query is highly speculative as the legal nature, scope and purpose of INDCs in a future agreement on climate is uncertain and depends on the consensus of the parties that may gradually emerge over the coming months. A comprehensive assessment of the legal implications may not be possible until the relevant decisions have been taken by the parties. For the time being the following preliminary observations must suffice:

1. Incorporating adaptation into the INDCs

Parties are requested to communicate the INDCs in a way that facilitates their clarity, transparency and ability to be understood well in advance of COP 21 in Paris or by the first quarter of 2015. While many developed country parties maintain that INDCs should only cover mitigation, many developing country Parties expect that they will also address other areas, such as adaptation. At present, parties are not required to use a particular format and the nature of INDCs does not go beyond a pledge or declaration of intent.

However, this may change and parties could agree to translate INDCs on mitigation into legally binding targets listed, for example, in an annex to a new legal instrument – similar to the QELROs of the Kyoto Protocol. This does not prejudice the legal form of INDCs in areas other than mitigation. In principle, they could be made legally binding too (although politically this does not seem very likely at present) or not. It entirely depends on the agreement between the parties; even if INDCs were eventually captured in national schedules, a new instrument could distinguish between binding and voluntary commitments (in the schedules).

2. Including legally binding and not legally binding elements

The combination of legally binding and non-binding commitments is a common feature of international treaties. For example, parties may have to: comply with catch quotas (legally binding) and are encouraged to exchange scientific data (not binding) in connection with fisheries agreements; allow for free passage of maritime vessels and collaborate on pollution control measures (river management agreements); or ensure that their CO2 emissions do not exceed their assigned amount and also cooperate in the transfer and diffusion of environmentally sound technologies (Kyoto Protocol). Thus, the relevant precedents suggest that differentiation as such, if expressed in clear legal lingua, is unlikely to create confusion.

3. Linking the adaptation goal to the adaptation elements of the INDCs

The response to question number 3 depends on how, if at all, an overarching goal for adaptation will be defined in a new international agreement. Based on the submission by the African Group on Work Stream 1 of the ADP (October 2013)[1], such a goal may reflect an ex ante determination of the costs of adaptation to climate impacts and the required finance and technology support. Thus, it would essentially require developed country parties to raise additional resources to improve climate resilience in developing countries.

With the exception of contributing to the budget of an organisation, States rarely take on legally binding specified financial commitments in international treaties. More commonly, they agree to provide resources for certain activities or the pursuit of specified objectives in general non-binding terms. Relevant examples in this connection range from the achievement of the Millennium Development Goals to rebuilding Afghanistan by the “international community” (the Afghanistan Compact).

However, there could be other ways to formulate a possible adaptation goal by, for example, outlining adaptation measures or priority areas of climate vulnerability. In this case INDCs may respond to specific uniform criteria determined at the international level. A broadly similar approach is, for example, taken to designate nature reserves (under the Ramsar and Biodiversity Conventions) and World Heritage sites (under the UN World Heritage Convention). A more detailed analysis would require at least an emerging consensus on the features of the adaptation goal.

4. Adaptation goals of LDCs, AOSIS and other vulnerable developing countries

If developing countries, like LDCs, AOSIS and other vulnerable developing countries, adopt adaptation components as part of their INDCs, their resulting commitments would depend on the legal nature and scope of the “adaptation component”. In line with previous decisions, it is possible that under a new agreement, in comparison to other developing countries, they would be given additional flexibility in implementing their adaptation measures. Other general reasons under public international law that may excuse parties from compliance (with legally binding obligations) at “all costs” include, for example, reservations (made to a treaty) or the proportionality of measures (in view objective and capacity).

5. Precedents within the UNFCCC or other MEAs

See responses to questions 2 and 3.

[1] unfccc.int/files/documentation/submissions_from_parties/adp/application/pdf/adp_african_group_workstream_1_adaptation_20131008. pdf