To what extent may Nationally Determined Contributions (NDCs) be made legally binding at an international or domestic level in the new 2015 agreement to the United Nations Framework Convention on Climate Change (UNFCCC)?
A key feature of the 2014 and 2015 climate change negotiations will concern the legal form of NDCs and the extent to which they will become binding on individual member states once the treaty (or other such agreement) enters into force. The legal form of the NDCs is particularly important given the broad spectrum of countries involved in the negotiations which prevents a ‘one size fits all’ approach.
Various examples exist in international law of mechanisms that have been, and are, used to permit differentiated obligations within a cohesive treaty structure in order to encourage broad participation. In particular, outlined below, are tools used where the key differentiator is between developed and less developed or “developing” states, such as GATS and the Montreal Protocol.
Such precedent mechanisms may be indicative of the structure of the final form climate change framework expected to be published in 2015. Linked to that, we have also set out a range of potential structural solutions for the climate change framework that (1) allows for different approaches to be taken by different countries, and/or (2) allows for NDCs to be enshrined in domestic, rather than international law (or enshrined in a mixture of international and domestic law).
Existing international models incorporating differentiated legal obligations:
General Agreement on Trade in Services (GATS) – created a multilateral trading system for the services sector involving a commitment by all parties to trade liberalisation. It is a system that allows states to ‘positively list’ the obligations they are willing to adopt by way of a national schedule appended to the broader agreement. The general framework contains the principles and rules applicable to all states irrespective of the schedules. All states can be bound using the same types of commitments expressed in the same format, but the ultimate control as to whether they are bound in particular sectors remains in each state’s control.
Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (Montreal Protocol) – created a regime that distinguished between developed and developing countries to encourage wider participation. The regime has 3 key elements applying to developing countries: (1) a 10 year delay in compliance with certain Control Measures; (2) the fulfilment of differentiated obligations is linked to the fulfilment of the financial and technical assistance obligations of other parties; and (3) the establishment of a mutual fund financed by parties that are not developing countries to assist developing countries comply with the Control Measures.
Convention on the Prevention of Pollution from Ships (MARPOL) – introduced an overarching framework binding on all states (containing jurisdiction, powers of enforcement, and inspection clauses for example), with different technical Annexes covering specific subject areas which states may opt into. Some member states have since used domestic measures in the form of memoranda of understanding (MoUs) to enforce compliance. (See further information on this point below).
Ramsar Convention on Wetlands (Ramsar Convention) – a system that allows flexible listing and delisting of obligations, provided a certain threshold level of obligation is met. It also introduces a requirement for compensation in the event of delisting to maintain an overall level of conservation.
The Convention on International Trade in Endangered Species (CITES), Stockholm Convention on Persistent Organic Pollutants (POPS) and Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) – systems that utilise the flexible tool of deemed acceptance of amendments after an elapsed time period, with the ability for states to opt out. However these types of deemed acceptance amendments are primarily used for technical amendments which are not expected to be too controversial to states.
Legal form options for an internationally binding 2015 agreement:
Overarching treaty level agreements – whereby NDCs would remain binding in international law, domestic law or the parties may select whether specific NDCs will be binding in international or domestic law. The former would likely mirror the structure of the current Kyoto Protocol and for example include absolute national emission targets. Daniel Bodansky has suggested flexibility could be built into this approach by allowing indexed (rather than absolute) targets and/or sectoral rather than economy-wide targets.
The second option could consist of a core internationally binding treaty that sets out the key institutional arrangements, which requires parties to enact climate change legislation which could then be inscribed in schedules to the treaty. Another option is to conclude an agreement that already contains each Party’s NDCs in the form of a (non-binding) schedule, with an obligation to introduce those NDCs or equivalent measures into domestic law within a particular time frame. The obligation to implement measures at a domestic level would then be internationally binding.
The third “multi-track” approach would allow parties to choose their NDCs from a number of different annexes. Parties could determine the scope of their NDCs, as well as which NDCs would be binding in international law, or national law only. A less flexible approach may be to introduce a model whereby countries, or classes of countries, are required to negotiate towards commitments under particular tracks, for example countries with per capita GDPs above an agreed threshold might be expected to assume economy-wide emissions targets.
Treaty level agreement containing provisions concerning the conditional entry into force of certain NDCs – a treaty level agreement containing mitigation commitments which will only enter into force upon certain conditions being met may help overcome some of the difficulties associated with addressing the differences between developed and developing countries. For example, obligations of developing countries may be delayed, be conditional upon the receipt of financial/technological assistance and/or be conditional upon developed countries meeting their targets, similar to the provisions of the Montreal Protocol.
Non-treaty level agreement – in the form of a memorandum of understanding (MoU) or political commitment presents a less binding option. Whilst inherently flexible, they can play a role in setting standards and have operational force. Given that MoUs are predominantly regarded as political and moral instruments, breaches by states can result in political sanctions. MoUs may be considered by domestic common law courts. It is also plausible for MoUs to become binding over time. In the context of MARPOL, groups of parties agreed to MoUs to implement harmonised systems of port control. This system of MoUs is now being regularised through the adoption of a legally binding Port State Measures Agreement, adopted by the FAO in 2009, and now open for ratification. This approach shows how regional groupings of parties can cooperate to form supplementary agreements to an overarching Convention, which may become binding over time as per the Port State Measures Agreement.
COP Decisions – all parties could simply adopt a COP decision setting out each of the parties’ commitments. The COP has general authority to inscribe national commitments in a new schedule, or to adopt rules for the implementation of existing commitments, but it does not have authority to establish new legally binding commitments. Opinion falls generally that COP decisions are not legally binding but they can be of significant operational importance especially when language agreed in a COP decision is propagated or reproduced extensively in future forms of agreement.