How can Parties’ nationally determined contributions (NDCs) be integrated into a new 2015 Paris climate agreement?

Advice:

If the Parties do not adopt a new formally binding international legal instrument (but rather a set of COP decisions or a purely political deal) then the question of “integration” is of limited relevance. For the purposes of this legal opinion, it is, therefore, assumed that there will be a legally binding core agreement – potentially the Paris Protocol. This would result in three basic options for the integration of nationally determined contributions (NDCs) that partially overlap:

• NDCs may be included in an attachment to the 2015 agreement (one or more annexes, schedules, other tables or listings).
• NDCs (whether initial, new or revised) may be adopted, accepted or otherwise integrated by decision of a new governing body of the agreement (or another authorised entity).
• Rather than existing within the 2015 agreement, there may be another external link (e.g. through the UNFCCC website, a registry or INF document).

1. Formal attachment

NDCs may be formally integrated into a new legal instrument through provisions that describe them as an integral part of that agreement. The most transparent and inflexible approach would be to inscribe NDCs in an attachment to the governing agreement. This could be, for example, a single annex bringing together all NDCs, similar to the Kyoto Protocol, several annexes differentiating NDCs by type or category of Party, or a national schedule for each Party.

Given the complexity of issues under negotiation with regard to INDCs it seem currently unlikely in practice that Parties will agree on Kyoto Protocol-like annexes (that specify at least mitigation targets but could also address finance, adaptation, etc.) that could be adopted in Paris. Procedurally, they would also need to gain the consensus of the Parties to be adopted by the COP. On a practical level, not all Parties may have finalised their INDCs for adoption by COP 21.

Whereas an annex would normally be adopted with the agreement, Parties may alternatively decide to subsequently submit additional information in, for example, national schedules. This would allow for national adjustments post-Paris and flexibility in the timing of submission. The effectiveness of the new agreement (e.g. the combined global emission reductions) would, however, remain uncertain at the time of its adoption. Setting clear and comprehensive criteria for the submission of such schedules would reduce this uncertainty.

National schedules could be notified to the Secretariat according to a common format. They could be automatically, or following further decisions (see below), become integral parts of the 2015 agreement (according to the agreement’s provisions). National schedules could also indicate restrictions, exemptions or even conditions for the implementation of the NDC.

This model has been advocated with reference to the WTO schedules on market access. There, the schedules contain the commitments made by individual WTO members allowing specific foreign products or service-providers access to their markets. In the print version these schedules comprise about 30,000 pages for all WTO Members. Whether this model can and should be applied to the climate change context may be questioned.

Once notified and forming part of the agreement, NDCs would be implemented according to the agreement. But, as mentioned previously, whether or not such NDCs are legally binding depends on the substantive and procedural provisions of the treaty.

Thus, an attachment to a formally binding international agreement may only capture voluntary commitments by Parties. For example, a provision in the core agreement may state that a Party “should make best endeavours to meet the target indicated in Annex X”. It would also be possible to capture a mix of legally binding obligations (e.g. on mitigation) with voluntary commitments (e.g. on adaptation support) in schedules or annexes.

In general, binding obligations under an international treaty can only be modified by a formal amendments (requiring ratification). However, there is an increasing number of multilateral environmental agreements that include a tacit or simplified amendment process. One could, for example, work as follows: a Party may notify the Secretariat of an amendment to an attachment which would enter into force automatically unless any Party objects within a set number of months.

2. COP decisions

The 2015 agreement may also provide that initial NDCs, as well as any revised or new NDCs, be adopted by a decision of a new governing body to be established under the 2015 agreement – for example at its first session. As a result, the agreement would contain a provision delegating the relevant authority to the new governing body (or another institution).

Since the new legal instrument is unlikely to enter into effect before 2020, the COP to the UNFCCC would also have to undertake further work and prepare such a decision for any new governing body to adopt. This could include the development of formats and criteria for NDCs, the management of INDCs and their review to identify opportunities to raise ambition.

Parties are expected to apply COP decisions in good faith. But unlike some other multilateral environmental agreements, the UNFCCC does not delegate the authority to take binding decisions to the COP. Therefore, although COP decisions are often framed in mandatory language, they are not considered legally binding on the Parties to the UNFCCC. (Theoretically, Parties to a new international treaty could make the decisions of the treaty’s governing body binding – but this seems rather unlikely at present.)

As a result, the international status and priority given to NDCs recorded in a COP decision could be less significant than if they were captured explicitly in a legally binding agreement. Consequently, Parties may have a lesser degree of certainty that others will comply with their commitments.

However, COP decisions are less scrutinised by the general public and provide Parties with additional flexibility and an opportunity to make aspirational commitments. In the UNFCCC context they are adopted by consensus and, therefore, subject to often intense discussions that also ensure a degree of transparency and accountability. In addition NDCs adopted through COP decisions (and endorsed by a new governing body) could be subject to an ex-ante assessment on the basis of upfront information, and an assessment of progress made by Parties in their implementation.

3. ‘Informal’ link

At present, INDCs indicate voluntary undertakings listed and published by the secretariat. This practice may continue after Paris. Alternatively or in addition, Parties may establish an external registry (to log INDCs), occasionally publish a summary of commitments or request the Secretariat to provide an analysis or other information. The 2015 agreement may contain a reference to this system and, for example, encourage Parties to submit their contributions.

At COP 15 in Copenhagen, the Parties did not adopt the Copenhagen Accord. The following year in Cancun, they also did not take a decision to endorse the pledges made at and since Copenhagen. Instead they took note of two “INF” documents compiled by the Secretariat on pledges (of “quantified economy-wide emissions reduction targets” for developed countries, and “nationally appropriate mitigation actions” for developing countries).

This “outside” approach would offer the greatest flexibility. INDCs could be incorporated after the agreement is adopted. They would not need formal adoption or ratification and could be updated without having to amend the agreement. While NDCs would be publically available, there is little legal certainty that Parties will follow through on their pledges.

Overall, this system would not really advance the current approach. As the NDCs would be “housed” outside the core agreement it is unlikely that Parties obligations (if any) would go beyond submitting NDCs (process not substance). This could be different if, for example, a registry to record and manage NDCs (from 2020) was established under the new agreement. In this case NDCs would be formally integrated into the structure and institutional framework of a legal instrument that may – in principle – contain substantive requirements and compliance criteria for NDCs.