1. Are there examples of international agreements that “meld not legally binding at the international level with an approach that emphasizes the importance of the domestic measures and the legal force that they have at the domestic level (e.g., laws, regulations, etc.)” and what has the resulting system looked like? Could examples be of a memorandum of understanding or accord?
2. Assuming the overall agreement containing the nationally determined contributions is internationally legally binding, how might that agreement encompass a structure allowing some countries to take on economy wide emissions targets based on the third option (and so not internationally legally binding)?
Summary:
There are various examples in international law of flexible tools to permit differentiated obligations within a cohesive treaty structure. Key examples discussed include positive listing under GATs, differentiated obligations under the Montreal Protocol, different options for obligations in MARPOL, non-binding obligations under Port State Measures MOUs, flexible listing and delisting under the Ramsar Convention and treaties which use deemed acceptance of amendments (CITES, POPS and CCAMLR).
All of these techniques might be used to propose workable solutions for the US “third option” which incorporates both binding and non-binding obligations for states. This could be structured as overarching treaty level agreements under which NDCs remain binding in international law, NDCs are binding in domestic law; and/or parties select whether specific NDCs will be binding in international or domestic law; treaty level agreement containing provisions concerning the conditional entry into force of certain NDCs; non-treaty level agreement in the form of an MoU or political agreement; and COP Decisions.
Advice:
1. Are there examples of international agreements that “meld not legally binding at the international level with an approach that emphasizes the importance of the domestic measures and the legal force that they have at the domestic level (e.g., laws, regulations, etc.)” and what has the resulting system looked like? Could examples be of a memorandum of understanding or accord?
1. In its submission to the UNFCCC regarding the formulation of the upcoming 2015 agreement, the US has formulated a proposal in which Parties’ nationally determined contributions (in relation to each Party’s mitigation commitments) (NDCs) will be listed in individual schedules to the 2015 agreement. In relation to legal form, the submission contemplates that NDCs by Parties may not be enforceable at international law, but instead underpinned by domestic law (the “melding option”). This option reflects the need to allow developed and developing countries to set achievable mitigation targets that reflect their own responsibilities and capabilities, and achieve maximum participation in the new agreement, without being formally bound at international law.
2. A comparative analysis is difficult because there are very few examples of the above ‘melding option’ in international environmental law – ie. where concepts akin to nationally determined contributions derive their force from domestic rather than international law. We have set out below a number of international regimes which regulate similarly conflicting interests between Parties (one such being as between developed and developing countries) through mechanisms designed to allow for difference and thereby encourage maximum participation.
General Agreement on Trade in Services (GATS)
3. One of the WTO Agreements, GATS is an example of an international agreement which caters for a number of different interests, including different obligations taken up by different countries, within one broad legal framework. GATS was designed to create a multilateral trading system for the services sector involving a commitment by all parties to trade liberalisation. The structure of the GATS is useful because it allows for each Party to undertake specific commitments in the form of a national schedule appended to a broad agreement in a “positive list” format (similar in concept to the schedule approach for nationally determined contributions proposed by the US).
4. The GATS framework consists of three parts: (i) the general framework, containing the general principles and rules; (ii) national schedules, which list a country’s specific commitments on access to their domestic market by foreign providers (an approach referred to as positive listing); and (iii) annexes, in which specific limitations for each sector can be attached to the schedule of commitments.
5. The GATS distinguishes between general obligations (which bind all WTO Members regardless of whether they have agreed to liberalise a certain sector or not) and specific liberalisation commitments (which bind WTO Members to open up the particular service at hand to the extent that they had agreed). Through negotiating rounds, countries choose the sectors and modes of services trade they wish to include in their schedules as well as the limitations to market access (for example, this might include restrictions on foreign ownership) and national treatment (distinctions in rights granted to foreign and local businesses) that they wish to maintain.[1]
6. This formulation allows governments to exclude sectors from their commitments, or limit commitments to one or more mode of supply. When taking on commitments of national treatment, states are only bound in the industry sectors that they “positively list” on the appropriate schedule.[2] This means that 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. Commitments may also be withdrawn or renegotiated, although only through negotiations with affected countries (however, this may lead to the party withdrawing or renegotiating a commitment to pay compensation to other parties that are affected). [3]
Montreal Protocol on Substances that Deplete the Ozone Layer 1987 (the Montreal Protocol)
7. The Montreal Protocol, concluded in 1987, is a further example of an international agreement that was required to balance the interests of developed and developing countries, by making special provision for the needs of developing countries (who were concerned that limitations on the use of ozone depleting substances may impede their industrial development, or that alternative technologies may not be available to them[4]), and encouraging wider participation.
8. In order to address concerns regarding developing countries’ ability to meet their obligations (the ‘Control Measures’[5]), the Montreal Protocol differentiates specifically between developed and developing countries:
First, under Article 5(1), developing countries that meet certain criteria are permitted a 10 year delay in compliance with certain Control Measures “in order to meet its basic domestic needs”, so that their obligation to phase out production and consumption only began to take effect in 1999.[6]
Second, developing countries’ obligations to implement certain control measures are made dependent upon the effective implementation of certain provisions concerning financial cooperation and the transfer of technology by developed countries.[7]
Third, the Protocol establishes a multilateral fund financed by parties to the Convention that are not developing countries operating under Article 5(1), in order to assist developing countries to comply with the Control Measures under the Protocol.[8] The forms of assistance dispensed by the multilateral fund include meeting agreed incremental costs to enable developing countries to comply with the Protocol, and assisting developing countries through country-specific studies and other technical cooperation to identify further needs for cooperation, and then facilitate technical cooperation to meet those identified needs.[9]
Parties are further required to take every practicable step to ensure that the best available environmentally safe substitutes are expeditiously transferred to those developing countries operating under Article 5(1), and that such transfers occur in fair and most favourable conditions.[10] If these provisions do not work effectively, the matter may be referred to the parties, which must decide upon appropriate action.[11] Birnie & Boyle have argued that this gives developing states the “power to put pressure on developed states to ensure that they have the means to meet the protocol’s targets for elimination of ozone-depleting substances.”[12]
Convention on the Prevention of Pollution from Ships (MARPOL)
9. MARPOL is a further example of a regime that allows Parties some flexibility to determine which obligations will apply to them. The main body of the Convention deals mainly with jurisdiction, powers of enforcement, and inspection, whilst the more detailed provisions concerning anti-pollution are contained in the Annexes. Regulations contained in Annexes are capable of adoption and amendment by the Marine Environmental Protection Committee of the International Maritime Organisation, subject to acceptance by at least two-thirds of parties constituting not less than 50 per cent of gross tonnage of the world merchant fleet.[13]
10. All MARPOL parties are bound by Annexes I and II (which regulate oil and chemical pollution respectively), although the obligations contained in additional annexes are optional, and participation varies widely.[14]
11. MARPOL further offers an example of where member states have used domestic measures in the form of memorandums of understanding (MoUs) on port state control, which effectively help to enforce compliance with the Convention. Under MARPOL, flag states have an obligation to inspect a vessel at periodic intervals and issue an ‘international oil prevention certificate.’[15] Ships that are required to hold such a certificate are also subject to inspection by any party at whose ports the ships are present (port states). Groups of maritime authorities have agreed MoUs in order to implement harmonized systems of port control, which include agreements on inspection and detention procedures, and the exchange of information (see for example, the 1982 Paris MoU on Port State Control and the 1983 Tokyo MoU on Port State Control).[16] This system is now being regularized through the adoption of a legally binding Port State Measures Agreement, which was adopted by the FAO in 2009 and is currently open for ratification by states.
12. This example is distinct to the “melding option” as proposed by the US, as these MoUs deal with the enforcement of internationally binding norms (as opposed to operating as an alternative system). However, they do offer an example of how regional groups of parties can cooperate to form supplemental agreements to an overarching convention, which might then take on more binding force over time, as has occurred with the Port State Measures Agreement.
Ramsar Convention on Wetlands (the Ramsar Convention)
13. The Ramsar Convention, designed to protect wetlands of international importance, contains a mechanism that allows Parties to select (and change) the domestic obligations that the Parties adopt under the Convention. The Ramsar Convention requires each Party to designate suitable wetlands for inclusion in a “List of Wetlands of International Importance” (the List).[1] Each Party is required to designate at least one wetland to the List when signing the Ramsar Convention, or when depositing its instrument of ratification or accession.[2] Parties further have the right to add further wetlands to the List, or delete or restrict wetlands already on the List “due to urgent national interests.”[3] However, where a Party does delete or restrict the boundaries of a wetland(s) due to its urgent national interest, it “should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and for the protection, either in the same area or elsewhere, for an adequate portion of the original habitat.”[4] This mechanism allows Parties an appealing level of flexibility, whilst maintaining a certain overall level of conservation of wetland areas.
Conventions using flexible mechanisms to adopt specific amendments/measures
14. Deemed acceptance of amendments is another tool to facilitate the adaptation of treaties, or other supplemental agreements, to changing environmental, scientific or technological factors. The Convention on International Trade in Endangered Species (CITES) sets out the species to which trade prohibitions or limitations apply in Appendices I and II. Any amendments to those appendices will be adopted by a two-third majority present and voting,[5] and shall enter into force for all Parties 90 days after Parties are notified of the adoption of an amendment, unless a party makes a reservation in respect of it.[6] A similar provision appears in the Stockholm Convention on Persistent Organic Pollutants (POPS).[7] These types of deemed acceptance amendments are primarily used for technical amendments which are not expected to be too controversial to states (although states retain the ability to expressly opt out).
15. Similarly, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) established the Commission for the Conservation of Antarctic Marine Living Resources, with the authority to pass ‘conservation measures’ for specific and general purposes consistent with the Convention’s objectives.[8] Conservation measures are adopted at each annual meeting of the Commission. Once a Conservation Measure is passed, the Commission must notify all Members of the Commission. The Commission Measure will then become binding on all members after 180 days of such notification, except where parties notify the Commission within 90 days of any such notification that it is unable to conservation measure.[9]
16. The above examples show that a number of flexible tools are already in use to permit differentiated obligations within a cohesive treaty structure. In summary, the main examples are:
GATS: a system that allows states to ‘positively list’ the obligations they are willing to adopt;
Montreal Protocol: a regime that allows for developing countries to adopt differentiated obligations, the fulfilment of which is linked to the fulfilment of the financial and technical assistance obligations of other parties;
MARPOL: an overarching framework binding on all states, with different technical Annexes covering specific subject areas which states may opt into;
Port State Measures: a series of non-binding regional MOUs which over time are reflected in an overarching binding agreement (Port State Measures)
The Ramsar Convention: a system that allows flexible listing and delisting of obligations, provided a certain threshold level of obligation is met; and
CITES, POPS and CCAMLR: systems that utilise the flexible tool of deemed acceptance of amendments, with the ability for states to opt out.
2. Assuming the overall agreement containing the nationally determined contributions is internationally legally binding, how might that agreement encompass a structure allowing some countries to take on economy wide emissions targets based on the third option (and so not internationally legally binding)?
1. In this section, we discuss the various legal form options that may establish the basis of the new 2015 agreement. In particular, this section focusses on the legal architectures that promote flexibility and encourage wider participation, by (i) allowing for different approaches to be taken by different countries, and/or (ii) allowing for NDCs to be enshrined in domestic, rather than international law, or enshrined in a mixture of international and domestic law. The options for legal form range from legally binding protocols and amendments to soft law options such as decisions taken by the Conference of Parties (COP). We suggest a number of options for consideration. The following legal form options are discussed below:
an overarching treaty level agreement under which NDCs remain binding in international law;
an overarching treaty level agreement with NDCs governed by domestic law (using schedules or implementing agreements to either introduce NDCs specifically or simply containing obligations to subsequently include NDCs);
an overarching treaty level agreement with NDCs governed by a combination of domestic and international law;
an overarching treaty level agreement containing a ‘Model Law’ for states to implement domestically;
a treaty containing ‘best endeavours’ or other non-binding language;
a treaty containing conditional entry into force provisions (whereby developing states’ commitments are delayed, or made conditional on developed countries providing certain technical or financial assistance, or even on developed countries meeting their own targets);
a differentiated system whereby certain parties have binding commitments that thereby enable them to participate in global emissions trading and other Kyoto style flexible mechanisms, and other parties have non-binding commitments with the option of progressing to binding commitments; and
the use of non-binding Memoranda of Understanding to express political commitments as a basis for norm creation.
2. Following earlier work by Lavanya Rajamani,[10] Daniel Bodansky has published the most relevant and accessible summary of legal form options available to the UNFCCC parties.[11] He considers three approaches:
an expanded ‘Kyoto-like’ approach, which would maintain the basic architecture of the Kyoto Protocol, modified to include a greater number of countries;
a legalisation of the Cancun architecture, whereby each countries’ commitments are determined through a bottom-up process of national decision making, but are then incorporated in a document with some legal force (a UNFCCC amendment, a protocol, or possibly a COP decision); and
a multi-track approach, where an agreement could include a number of different annexes from which states could choose the most appropriate.
3. Options (b) and (c) are more detailed versions of the US Submission’s “melding option”, which is to meld legally binding and non-binding obligations. We discuss these and other options below.
Overarching treaty level agreement with NDCs governed by international law
4. Option (a), noted above, involves retaining an overarching treaty structure, with schedules of NDCs, determined through international negotiations, that are binding in international law.[12] Essential elements of such a structure would be inherited from the current Kyoto Protocol structure and include: absolute national emission targets, international accounting rules, international emissions trading rules and mechanisms, international expert review and an international compliance review.
5. However, in order to encourage greater wider participation, increased flexibility would be required. Bodansky suggests that an ‘expanded’ Kyoto Protocol regime may allow countries to adopt indexed rather than absolute targets and/or sectoral rather than economy-wide targets, and the stringency of targets might be differentiated to encourage participation and to promote equity.[13]
Overarching treaty level agreement with NDCs governed by domestic law
6. In its submission, the US proposes that NDCs might derive their force from domestic rather than international law. This is similar to Bodansky’s second option, involving a ‘bottom-up’ process of national decision-making, in which some countries might adopt absolute emission targets, others indexed or efficiency targets and others particular policies and measures.[14]
7. A potential model 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.[15]
8. Bodansky suggests that if Parties listed and implemented national climate change legislation in schedules, it would either allow countries to adopt new climate change legislation, or to list and implement existing climate change legislation.[16] To avoid over rigidity, it may also need to include a mechanism for countries to amend their legislation as long as it increases their mitigation commitments, rather than reducing them.[17] This is similar to the mechanism in the Ramsar Convention, which allows Parties to delist a protected wetland if it compensates for listing additional wetlands elsewhere (as discussed above in Section I).
9. Various requirements are possible: the treaty could simply make it a requirement that all states file a schedule in a prescribed form (eg NDCs that are measurable, reportable and verifiable using standard metrics). Such an approach has already been tried in a non-treaty format at Cancun.[18] A more ambitious proposal would be to require states to file schedules in a prescribed form and commit to appropriate financing within a particular time period and/or use all appropriate means to the maximum of its available resources to ensure compliance with their own Schedules (a similar obligation to that on states bound under the International Covenant on Social Economic and Cultural Rights, Art 2).
10. Although arguably this approach may encourage greater participation from nations that do not wish to be bound at an international level, Bodansky argues that the rationale for this approach is that “national law is typically more effective than international law. So a country’s national legislation to address climate change would arguably provide a greater assurance of action than an international commitment.”[19]
11. This concept is reminiscent of the proposal submitted by the US in its 2009 Submission to the Ad Hoc Working Group on Long-Term Cooperative Action for the introduction of an Implementing Agreement with mitigation commitments inscribed in schedules.[20] The US described the draft Implementing Agreement as allowing “for legally binding approaches”[21] and provided that “Parties shall implement their respective nationally appropriate mitigation actions reflected in Appendix 1.”[22] The draft agreement further provided that Appendix 1 would include quantitative emissions reductions and/or removals “in conformity with domestic law.”[23]
12. The Least Developed Countries Group has argued that an implementation agreement usually aims to enhance the effectiveness of a governing treaty by supplementing the treaty with additional rules, and in this way is similar to a protocol.[24] Rajamani has argued, however, that in the context of the US proposal, the status of the proposed agreement is unclear, and its domestic law suggests that the binding or non-binding nature of the implementation agreement was intended to depend on the domestic law of each state.[25]
13. 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. On this basis, the obligation to implement measures at a domestic level would be internationally binding, although any subsequent breaches of the substance of those measures would only be judicially enforceable at a domestic level.
14. A less ambitious variant on this approach, also put forward by Bodansky under his option (b), is for NDCs to take the form of pledges, so that the NDCs would be political commitments only. [26] In this instance, Bodansky suggests that because legal instruments signal a greater buy-in than political agreements due to the procedures required to ratify a treaty, this form of agreement may still increase the likelihood of compliance.[27]
15. Bodansky acknowledges that many argue the above proposals do not overcome what many perceive to be the chief weakness of a bottom up approach: that nationally determined approaches are often lacking in ambition (stemming precisely from the fact they are nationally determined, rather than not being binding in international law). Bodansky suggests that a way to address this may be to provide for an ex ante review of pledges by parties or international experts to determine the emissions likely to result from NDCs as a means of exerting pressure on Parties to offer credible NDCs.[28]
Overarching treaty level agreement with NDCs governed by a combination of international and domestic law
16. As noted above, Bodansky offers a third ‘multi-track’ approach, which seeks to resolve ongoing differences as to whether NDCs should be governed by national or international law. This proposal would allow Parties to choose their NDCs from a number of different annexes. Parties would determine the scope of their NDCs, as well as which NDCs would be binding in international law, or national law only. Bodansky offers three examples of what a multi-track approach might look like:[29]
One track might involve internationally defined emissions targets with common accounting rules (as in the “expanded Kyoto” approach). Countries that assumed a target pursuant to this track might be allowed, for example, to engage in a newly-defined UNFCCC emissions trading mechanism.
A second track might involve the selection of an annex containing nationally-defined emissions targets governed by national accounting rules. These targets would be tradable only through bottom-up, bilateral linkages between particular countries that agreed to mutually recognise each other’s allowances.
Other tracks might consist of the domestically binding approach, or address particular sectors, facilitate broad and equitable access to existing and emerging technologies, facilitate adaptation planning and implementation, or provide financial support.
17. Rather than give Parties complete latitude to select the scope and binding nature of their NDCs, however, it may be possible 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, while others might have the option of taking sectoral targets or policy-based commitments.[30] Bodansky suggests that countries will be more willing to negotiate commitments if the terms of engagement ensure that both they and their counterparts are negotiating within tracks appropriate to their respective circumstances.[31]
18. A variant on this approach has been proposed by the Environmental Defense Fund (the EDF). It has proposed a legal architecture that separates Parties depending on the nature of the obligations they are willing to undertake, and then links parties’ mitigation commitments to participation rights in global carbon markets.[32] Under this proposal, parties could inscribe internationally binding quantitative emissions limitation and reduction commitments (the QELRC Parties), or inscribe only domestically binding commitments to implement non-quantitative nationally appropriate mitigation responsibilities in accordance with their common but differentiated responsibilities (NAMA Parties). The NAMA Parties would not face any binding international or bilateral/regional consequences if they did not meet their mitigation commitments.
19. The QELRC Parties would benefit from eligibility to participate in international carbon market mechanisms under UNFCCC auspices (such as the Clean Development Mechanism, Joint Implementation and Emissions Trading, or any other mechanisms developed by the COP). NAMA Parties would not be eligible to participate in these carbon markets, but could form their own domestic carbon markets. NAMA Parties would have the option to become a QELRC Party.
20. Whilst this approach appears to introduce negative measures to penalize Parties that do not sign up to an internationally binding commitment, the EDF proposal includes further provision to encourage wider participation– for example, low-emitting parties (whose emissions do not exceed a certain percentage of global emissions) would be entitled to participate as a QLERC Party, with a grace period to determine and implement its commitments.[33]
21. In a similar theme, it may be possible to propose a structure whereby particular parties’ NDCs are subject to different legal forms. For example, specified Parties in Schedule I would adopt binding mitigation targets, whereas other Parties in Schedule II would adopt aspirational, albeit specified, mitigation targets. In addition, there could be financial incentives for those Parties that are developing countries and do meet targets.
Overarching treaty framework annexing a ‘Model Law’
22. A further option would be for states to be bound by an overarching treaty framework (similar to Bodansky’s first option above), which annexes a ‘Model Law’ that states could then adopt domestically, similar to the UNCITRAL Model Law on International Commercial Arbitration (1985) which has been so successfully applied in arbitration.
23. The UNCITRAL Model Law was developed in response to concerns that the diversity of national laws on international arbitration was a serious impediment to the efficiently of the international arbitration process. The Model Law was proposed as a vehicle for harmonization. The Model Law provides a framework for international arbitration, by setting out provisions for all stages of the arbitral process from the arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by states of all regions and the different legal or economic systems of the world.
24. Adopting a similar approach in the climate change context would allow all states to endorse a Model Law that contained both minimum recognized standards and more aspirational regulatory frameworks that would require greater technical capability or financial backing (eg an emissions trading system). The UNFCCC could then update the Model Law over time as technological and/or scientific knowledge and capability increased states’ abilities to regulate GHG emissions, and/or as state practices became more mainstream. The existence of a Model Law would also help states to put in place basic mitigation and adaptation policies as well as institutional aspects such as emissions trading systems, compliance and dispute resolution procedures, and would allow international organisations to monitor those states that complied with the model law and those that did not.
Treaty level agreement with ‘best endeavours’ language
25. A lesser, but simpler alternative is for states to simply agree a treaty with ‘best endeavours’ language, including an obligation at treaty level that Parties “use its best endeavours to comply with [relevant schedule]” or “steps…to the maximum of its available resources, with a view to achieving progressively [its obligations]”, as stated in the ICESCR Art 2 (as above). Although such wording does not have the same force as binding language, it can still give rise to hard law obligations on parties and be judicially enforceable in international law. This could apply to the obligation to implement and meet NDCs at an international level, or proscribe them in domestic legislation.
Treaty level agreement with non-binding language
26. A further alternative is a treaty agreement that utilizes aspirational, rather than binding language. For example, a treaty may provide that states shall ‘seek to achieve the obligations set out in [relevant schedule].’ This would be an example of what Rajamani has described as a “treaty-generated” obligation, ie. obligations which emanate from hard law instruments but are unlikely to be judicially enforceable.[34] This could apply to the obligation to implement and meet NDCs, or proscribe them in domestic legislation.
Treaty level agreement with conditional entry into force
27. 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, and encourage wider participation.
28. As noted above, a key concern in climate negotiations is ensuring that both developing and developed countries adopt targets that properly reflect their responsibilities and capabilities. In order to help assuage these concerns, NDCs could be made conditional in the following circumstances:
Obligations on developing countries to comply with certain targets or commitments are delayed by a certain number of years after the new instrument comes into force. This allows developing countries the time and opportunity to increase capacities, and receive the necessary technical and financial assistance to be enabled to meet their mitigation commitments. This option is similar to the architecture in the Montreal Protocol, which, as discussed above, allowed developing countries a ten year delay to reach compliance with their obligations (‘Control Measures’) as proscribed in the Montreal Protocol.[35]
Obligations on developing countries to meet mitigation targets or commitments may be made contingent upon developed countries meeting certain technical and financial assistance requirements. Again, this model could follow the structure of the Montreal Protocol, which established a multilateral fund to dispense assistance such as meeting agreed incremental costs to enable developing countries to comply with their commitments, and assisting developing countries through country-specific studies and other technical cooperation to identify further needs for cooperation, and then facilitate technical cooperation to meet those identified needs.[36]
Obligations on developing countries to meet mitigation targets or commitments may be made conditional upon developed countries also meeting the targets and commitments set out in their NDCs
MoUs/ Political Commitments
29. A less binding option is to include states’ commitments as MoUs, or political commitments. MoUs are understood by many states to be instruments concluded between states which they do not intend to be governed by international law (or any other law) and consequently, are not legally binding.[37] (Although note that some states, including the USA, can view MoUs as legally binding in certain circumstances.) As noted above, in relation to Port State Measures, MoUs can be an important and effective tool in assisting in the enforcement of treaty provisions. Although not binding in most countries’ municipal legal systems, MoUs can play a role in standard setting and have operational force. Given that MoUs are predominantly regarded as political and moral instruments, breaches by states can result in political sanctions.[38]
30. Further, in some circumstances, MoUs arguable are of domestic legal consequence. Aust argues that common law courts are increasingly becoming open to having recourse to non-traditional sources of material, such as MoUs, where they are relevant to an issue in dispute.[39]
COP Decisions
31. Finally, it has been suggested that it all parties could simply adopt a COP decision setting out each of the parties’ commitments. Article 7.2 of the UNFCCC provides the COP with general authority to “make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.” This general authority includes the power to inscribe national commitments in a new schedule, or to adopt rules for the implementation of existing commitments, but it does not give the COP authority to establish new legally binding commitments.[40] Although the precise legal status of COP decisions is open to debate, the preponderance of scholarly opinion is that they are not legally binding.[41]
32. Rajamani has argued that COP decisions may still be of significant operational importance even absent being legally binding.[42] In the climate regime, the argument follows, COP decisions have expanded the normative core of the regime by fleshing out treaty obligations, reviewing the adequacy of existing obligations and launching negotiations to adopt further negotiations. Furthermore, the operational significance of COP decisions is strengthened by the fact that agreed language is regarded as particularly important in the environmental field, where negotiations are so protracted and difficult that any agreed language is subsequently propagated and reproduced extensively, regardless of the legal form of the agreement.[43] However, although COP decisions do have advantages, they are not legally binding and do not create new substantive obligations, so are inevitably limited in the progress that they are capable of achieving.
[1] Article 2(1)
[2] Article 2(4)
[3] Article 2(5)
[4] Article 4(2)
[5] Article 15(1)(b)
[6] Article 15(2)(e) ; 2(l)
[7] Article 22(3)(c)
[8] Article 9
[9] Article 9, 6(c) and (d)
[10] See L. Rajamani, Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime’ International Comparative Law Quarterly vol 58, October 2009, pp. 803-834
[11] D Bodansky, The Durban Platform: Issues and Options for a 2015 Agreement, Centre for Climate and Energy Solutions, December 2012: http://www.c2es.org/docUploads/durban-platform-issues-and-options.pdf
[12] Bodansky, n 27, p. 8
[13] Bodansky, n 27, p. 8
[14] Bodansky n 27, p. 8
[15] D Bodansky, The Durban Platform: Issues and Options for a 2015 Agreement, Centre for Climate and Energy Solutions, December 2012: http://www.c2es.org/docUploads/durban-platform-issues-and-options.pdf
[16] Ibid, p. 9.
[17] Ibid. p. 9.
[18] Bodansky, n 27. p. 8
[19] Ibid, p. 8-9
[20] US Submission to the AWG-LCA, 4 May 2009: Submission http://unfccc.int/files/kyoto_protocol/application/pdf/usa040509.pdf. See also L Rajamani, The Durban Platform for Enhanced Action and the Future of the Climate Regime, International and Comparative Law Quarterly, Vol 61, Issue 2, April 2012, pp 501-518
[21] US Submission to the AWG-LCA, 1 May 2009, n 5, p. 3
[22] Ibid, Article 1
[23] Ibid, Article 2(1)(a)
[24] LDC Paper Series, Climate Law in Brief: A brief summary of key legal issues relevant to Durban and beyond, at: http://ldcclimate.files.wordpress.com/2012/05/legal-dossier_final.pdf
[25] L Rajamani, n 1, 809-810, ftn 24
[26] Bodansky, n 27, p. 8
[27] Bodansky, n 27, p. 8
[28] Bodansky, n 27, p. 9
[29] Bodansky,n 27, p. 10
[30] Bodansky, n 27, p. 10
[31] Bodansky, n 27, p. 10
[32] Environmental Defense Fund, Rooms with a View: Legal Architecture of a Future Framework for Global Climate Change Action: http://unfccc.int/resource/docs/2013/smsn/ngo/302.pdf
[33] EDF, n 1, p. 3
[34] L Rajamani, n 1, p. 811
[35] Montreal Protocol, Article 5(1)
[36] Montreal Protocol, Article 10
[37] A. Aust, Modern Treaty Law and Practice 2nd Ed, Cambridge University Press, 2009, p. 32
[38] Aust, n 11, p. 53-54
[39] Aust, n 11, p. 56
[40] D Bodansky, Legal Form of a New Climate Agreement: Avenues and Options, Pew Centre on Global Climate Change, April 2009, p. 3
[41] See Rajamani, n 1, p. 824 for factors that may be taken into account when examining whether a COP decision is binding or not.
[42] Rajamani, n 1, p. 824
[43] Rajamani, n 1, p. 825
[1] Article 19
[2] Articles 16, 17, 18, 20
[3] See Article 21 generally, and see Article 21(2)(b) sepcifically in relation to the compensation requirement.
[4] P Birnie & A Boyle, International Law & the Environment, 2nd ed., Oxford University Press (2002), p.517-518; 519.
[5] Articles 2 – 2I for the relevant Control Measures.
[6] Article 5(1)
[7] Articles 10 (financial cooperation) and 10A (transfer of technology)
[8] Article 10
[9] Article 10
[10] Article 10A
[11] Article 5(6)
[12] Birnie & Boyle, n 4, p. 520
[13] Birnie & Boyle, n 4, p. 363
[14] Birnie & Boyle, p. 363-364
[15] Annex I, regulations 4 and 5.
[16]See: https://www.parismou.org/ and www.tokyo-mou.org. These MoUs also cover the implementation of other IMO Conventions in addition to MARPOL.