Legal bindingness of mitigation contributions stated in a Party’s INDC

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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

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Date produced: 04/12/2015

1)  Will a developing country be legally bound to comply with the mitigation contributions stated in its INDC?

2)   Can a developing country ‘back-slide’ from its mitigating contributions, upon reviewing its INDC, at a later date?

Advice:

1)  Will a developing country be legally bound to comply with the mitigation contributions stated in its INDC?

 There is no clear answer to this question, since the current versions of the draft agreement and the draft decision still leave much to be decided:

Upon reading Article 2bis(1) (Option 1) and Article 3(2) of the draft agreement, it remains open whether the NDMCs/INDCs will be binding upon the States concerned. This decision has still to be made.

If we break down the obligations potentially imposed on Parties: the current text in Article 3(2) provides a number of increasingly onerous obligations in relation to INDCs. It seems quite clear from this text that the Parties will have legally binding obligations to regularly prepare and communicate INDCs. This is somewhat qualified by Article 3(4), which is primarily directed at LDCs, and give the latter some discretion in relation to the communication of their INDCs/NMDCs. The provision envisages extending this flexibility to African States, but note that this is in brackets.

Beyond this, the text envisages a requirement to put in place the domestic laws and policies necessary to implement an INDC/NDMC. The text also refers to [achieve] which is a much higher standard still, and would commit each nation to achieving the measures they have put in their INDC. However, those parts of the text are still bracketed. Whether the obligation is limited to implementing or extend to achieving an INDC, it is also still undecided whether this latter requirement should be a binding obligation or not (as illustrated by the use of “[shall]” and “[should]”.

Even if the final version were to opt for the NDMCs/INDCs to be legally binding, a number of provisions leave room for flexibility vis-à-vis developing States and make their obligations conditional on support from developed country Parties. Article 2bis (3) (Option 1) of the draft agreement, for instance, foresees that ‘the extent to which developing country Parties will effectively implement this Agreement will depend on the effective implementation by developed country Parties of their commitments on the provision of finance, technology development and transfer and capacity-building.’ Similarly, Article 3(3bis) Option I – which places less onerous mitigation obligations on developing country Parties – provides that they should undertake diversified mitigation actions, supported by finance, technology and capacity-building by developed country Parties. The use of the term “should” indicates that this is not a legally binding obligation but an aspirational one. The obligation is further conditioned on the provision of means of implementation.

Even assuming States opt for legally binding NDMCs/INDCs, the INDC submitted by a developing country may not necessarily be regarded as its ‘first’ NDMC/INDC under the final agreement. Article 3.8 (Option I) includes several options vis-à-vis the ‘first communication option for agreement’ (inclusion in an annex to the agreement, inclusion in the registry or website, or a separate communication upon acceptance or ratification). Option 1 of Article 3.8 suggests that it is the INDCs already submitted which will form part of the agreement and will be annexed (since the annex will be adopted at the same time as the agreement). Option 2 of Article 3.8 gives the Parties the chance to submit a different version of their INDC, as it states “Each Party [shall] [should] communicate its first [NDMC*][INDC] no later than upon [ratification or acceptance of] [joining] this Agreement”. This would allow the relevant country to submit a different version of their INDC to the one which has already been submitted to the UNFCCC.

In a similar vein, Article 24 of the Draft Decision identifies various options for communicating Parties’ first NDMC/INDC. Admittedly, Article 24 Option (I)(1) ‘affirms that if a Party that has communicated its first INDC before joining the agreement, the INDC communicated will be automatically recognized as its [undertaking][NDMC][INDC] under [the] agreement’. However, the draft provision adds the caveat ‘unless otherwise decide by the Party concerned’. The latter phrase suggests that, even if this option gains the upper hand, the relevant country can still declare that the INDC now submitted should not be regarded as its first undertaking.

Furthermore, even if (1) the final agreement opts for ‘legally binding’ undertakings, including on the part of developing countries, and (2) automatically takes INDCs already submitted as the basis for these binding undertakings, they would only become binding for States that choose to ratify or approve the Convention after signing it… In theory then, the country could choose not to ratify.

One should also bear in mind that, even if (1) the final agreement opts for ‘legally binding’ undertakings, including on the part of developing countries, (2) automatically takes the current INDC submissions as the basis for binding undertakings, and (3) is ratified by the relevant country, the question remains how the obligations would be enforced. Article 11 of the draft agreement identifies a number of options. Under Option 1, for instance, the compliance/implementation committee would not be able to take ‘punitive’ action vis-à-vis developing States, but would aim at ‘facilitating implementation’ instead… Disputes arising under the final agreement would moreover not necessarily lead to legal proceedings at the international level: Article 21 of the draft agreement refers back to the dispute settlement provision of the UNFCCC (Article 14), which focuses on negotiation.

Finally, the INDC submission arguably cannot be regarded as a unilateral declaration generating legally binding consequences independent from the agreement framework (in the sense of the ICJ’s, Nuclear Tests Case). It could indeed be argued that the INDC submission does not display an unequivocal intent to assume a legally binding obligation, since even the ‘unconditional contribution’ is contingent upon the achievement of an ‘ambitious, comprehensive legally binding global agreement’ (which leaves the relevant country some room for discretion).

 2) Can the developing country ‘back-slide’ from its mitigating contributions, upon reviewing its INDC, at a later date?

The draft agreement and draft decision leave little leeway for States to reduce their initial INDCs. In principle successive INDCs should represent a progression beyond previous efforts (e.g. Article 2bis(2)(Option I),Article 3(5) and (8)(d) draft agreement). In other words, the current texts leave little room to ‘back down’ from prior commitments (and indeed currently has in brackets [and requests Parties to ensure that there is no backsliding from the level of mitigation effort presented in their intended nationally determined contributions when submitting their nationally determined mitigation commitment] see para 21, Option I of draft Decision). A notable exception can be found in Article 21bis of the Draft Decision, according to which ‘a developing country Party may adjust its INDC when severely affected by an extreme natural event or force majeure, or when adequate finance, technology development and transfer, or capacity-building support is not available.’ (see also Article 3(8) (d)) The term ‘force majeure’ should arguably be construed narrowly, in line with general international law and the case-law of the ICJ (and will, for instance, not encompass events for which the State Party is itself to blame…).

It further states that “[Developing country Parties may adjust their [NDMC*][INDC] at their discretion depending upon the adequacy and availability of finance, technology development and transfer and capacity-building support.]”. This provision could arguably be leaving a door open to developing countries to adjust their INDCs, provided that they are able to argue that their difficulties in meeting their targets is due to the inadequacy or lack of availability of finance, technology development and transfer and capacity-building support.