Can you provide a high level analysis of what could be the legal form of the 2015 Paris agreement?

Advice:

The ADP was established at COP17 in Durban in 2011 with the mandate: “…to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties…”. These three options (protocol, legal instrument and outcome with legal force) are ambiguous and leave room for interpretation.

They are the outcome of difficult negotiations and a last minute compromise in Durban in 2010. India, for example, resisted the EU’s request to include reference to a “legally binding instrument”. As a result the text refer to “legal instrument” only (not “binding”) and the option of “an agreed outcome with legal force” was included.

To date, Parties negotiating under the ADP have been discussing substance rather than form of the 2015 agreement. The following provides an overview of the different possible formal outcomes. It analysis the options explicitly mentioned in the Durban decision first, before addressing other possible outcomes.

a) “Protocol”

The 2015 agreement could take the form of a protocol, under Art.17 UNFCCC. Such a protocol would be a new international treaty formally binding on all ratifying Parties, according to the general rules of international law. The process of domestic ratification usually involves the approval of the treaty by the national parliaments. The requirements for the entry into force of a protocol (e.g. number of ratifications, representing a certain percentage of global greenhouse gas emissions) will be established in the language of the protocol itself.

For its adoption, the text of a proposed protocol must be communicated to the Parties by the Secretariat at least six months in advance of the relevant session (when it should be adopted). In order to comply with this formal requirement the Geneva text has been circulated in all six UN languages, without prejudice to the final outcome eventually adopted in Paris, by Note Verbale dated 19 March 2015.

Whether the Geneva text in its current shape can really be considered the “text of any proposed protocol” in the sense of Art.17 para.2 may be questionable. However, in the UNFCCC practice (and that of other international convention processes) it is not uncommon to circulate an early version of a text (including open questions, different options, brackets etc.) that is then significantly modified before its adoption.

In this connection, Parties may raise procedural concerns during the final stage of the negotiations in Paris (possibly to hamper the conclusion of the negotiations). But if there is political consensus and Parties adopt a new international treaty, previous procedural errors would be remedied (because of the agreement on substance).

Although the UNFCCC (in Art.17) envisages the adoption of protocols for the further implementation of the Convention, Parties are free to call a new international treaty on climate by another name (e.g. Covenant, Implementation Agreement, Memorandum of Understanding or just Agreement). They could do so based on the concept of state sovereignty, the implied powers doctrine or the general mandate of the COP in Art.7 UNFCCC.

b) “Legal instrument”

While the meaning of “protocol” in the Durban COP decision is clear, the term “legal instrument” is open to at least two conflicting interpretations. The fact that “another legal instrument” is written alongside “protocol” could suggest that it refers to another international treaty of equivalent character (e.g. a protocol, convention, charter etc.). This interpretation further strengthens the argument (see above) that Parties can choose any title for the agreement.

Another interpretation is that “another legal instrument” refers to amendments to the Convention or its annexes, including the adoption of new annexes, under Arts.15 and 16 UNFCCC. Such amendments would be legally binding in nature, and could modify any aspect of the UNFCCC, including provisions defining its scope, objective and principles. Some Parties have, therefore, argued that “under the Convention” in the Durban COP decision means “under the existing Convention” and does not allow for amendments of its core provisions.

According to Art.15 para.2 UNFCCC, however, the text of any amendment also needs to be communicated to the Parties at least 6 months before the meeting at which it is proposed for adoption. To date, no amendment option has been put forward by the Parties. This appears to indicate that – at least for the time being – this option is not pursued any further.

c) “Agreed outcome with legal force”

The most uncertain and contentious part of the Durban COP decision concerns the final option “agreed outcome with legal force”. This alternative seems to be designed to allow room for an outcome that does not take the form of the legal instruments expressly contemplated in the Convention (e.g. Protocol, amendment or annex) but is still “under the Convention”. The description as “with legal force” signals something less stringent than “legally binding” (under international law).

In a submission in 2012, India expressed the view that, whereas a Protocol or another legal instrument are legally binding outcomes, an “agreed outcome with legal force” could be an outcome whose legal force derives from a country’s domestic law. So voluntary commitments on mitigation, for example, could meet this requirement if they were also captured in binding national legislation.

However, if the decision was really meant to allow for an agreement whose legal character is completely decoupled from the international level, its drafters should have inserted a comma between “legal force” and “under the Convention”.

d) Other outcomes

In general, legal scholars and the parties to the UNFCCC agree that COP decisions do not have a legally-binding character. While the Durban decision represent a strong political commitment to reach the anticipated outcome it is not binding on the Parties. This allows for a wide interpretation of the decision text, and the 2015 agreement could also take another legal form, or a combination of different formal outcomes.

(1) Binding unilateral declarations

The International Court of Justice has confirmed that states can legally bind themselves through unilateral declaration. Such declarations become a legal undertaking if they are made publicly, and manifest the will to be bound. If these criteria are met the binding character of such declarations is based on good faith. States concerned may then take them into consideration and rely on them.

It could also be argued that binding unilateral declarations represent an “agreed outcome with legal force” in the sense of the Durban decision. In the climate negotiation context, it would be possible for Parties to make explicit, unequivocal individual commitments on, for example, mitigation or finance. At present this seems rather unlikely.

(2) COP decisions

The COP can take decisions to promote the effective implementation of the Convention. Although they are often framed in mandatory language, they are usually not considered legally binding on the Parties to the UNFCCC. Unlike some other multilateral environmental agreements, the UNFCCC does not delegate the authority to take binding decisions to the COP.

Hence, if the Paris agreement consisted of COP decisions alone this would probably not meet the criterion of “legal force” in the Durban decision. However, it is likely that they will be part of the Paris outcome and address issues not covered in the core outcome, and/or focus on the implementation and further work in some of the subject areas addressed in the new agreement (see below on mixed outcomes).

In the lead-up to the COP15 in Copenhagen in 2009, the question whether a COP decision on mitigation targets could be qualified as “legally binding” by the Parties was considered. This would be unusual but could potentially result in stronger pressure at the international and domestic level for national compliance. Legally, however, it remains an additional political self-commitment, and does not change the legal character of COP decisions.

(3) Political agreement

At COP15 in Copenhagen, but outside the formal UNFCCC negotiations, the Copenhagen Accord was drawn up by a limited number of governments. Arguably, its provisions do not have any legal standing under the UNFCCC process. Subsequently, however, many countries have associated themselves with the Accord (and submitted targets or actions to the Secretariat). Others have explicitly stated their disagreement (e.g. Bolivia, Kuwait and Tuvalu).

Non-binding international (legal) instruments (such as the Universal Declaration of Human Rights or the 1992 Rio Declaration on Environment and Development) can have a significant impact over time. However, objectives and commitments tend to be broad and loosely defined. By definition there is no formal compliance mechanism and it is usually at the discretion of the participating states as to how goals are pursued.

At present, the UNFCCC Parties’ commitment to develop a new formally binding legal instrument, seems to be stronger than in the lead-up to the Copenhagen COP. Nevertheless, a merely political agreement, joint declaration or other non-binding outcome may (depending on the negotiation dynamics in Paris) be a means of last resort for some Parties. They might also consider it an appropriate vehicle to address issues that are not covered in the core agreement.21 While this could indicate a degree of good will, considerable uncertainty about the effect of purely political commitments would remain.

e) Mixed outcome

It is difficult to predict at what point in the negotiations, the Parties will decide on the legal form of the 2015 agreement. They might wait until the last days of the Paris conference or naturally gravitate towards a new international treaty as part of the Geneva text streamlining process. In this connection, the steer provided by the co-chairs but also ministerial meetings or other developments outside the UNFCCC process (G7 summit and bilateral meetings) will be important.

There appears to be, however, a tendency towards an agreement that comprises different legal forms. This could be, in particular, a formally binding core agreement (possibly the “Paris Protocol”) with accompanying COP decisions. The UNFCCC COP took a similar approach in connection with the adoption of the Kyoto Protocol. It adopted the Protocol and, at the same time, passed two COP decisions: Decision 1/CP.3 related to preparatory work towards the Protocol’s implementation and decision 2/CP.3 addressing methodological issues to be noted by the Parties.

If such a mixed bag of formal outcomes is agreed in Paris, it remains to be seen what will be included in the core agreement, and what not. Choosing the right combination of instruments might be the key to accomplish an effective and enduring climate change agreement. In this connection, the Durban decision provides some general guidance but does not restrict the Parties.