Legal language on 5 year commitment cycles

Legal assistance paper

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Date produced: 31/07/2015

What changes might be made to the following draft provision to make it more precise and remove ambiguities?

“Commitments, for all Parties, for each 5-year commitment period, shall be established in amendments to their Nationally Determined Commitment listed in Annex [X], which shall be adopted in accordance with the provisions of Article [Y], paragraph [Z]. The Conference of Parties serving as the meeting of Parties to this Protocol shall initiate the consideration of commitments for the second commitment period of this Protocol at its twenty-seventh session, and four years before the beginning of each subsequent 5-year commitment period. Commitments for all Parties shall be informed by the most recent Assessment Reports of the Intergovernmental Panel on Climate Change and the ultimate objective of the Convention.”

Advice

Summary

Based on the proposed text and stated general aims, suggested draft text is as follows:

  1. ” Commitments, for all Parties, for each 5-year commitment period, shall be established in amendments to their Nationally Determined Commitment listed in [[[[Annex] / [Schedule]] [X] to this Protocol] / [the registry maintained by the UNFCCC Secretariat]], and shall be adopted in accordance with the provisions of Article [Y], paragraph [Z].
  2. The Conference of the Parties serving as the Meeting of the Parties to this Protocol shall initiate the consideration of commitments for [the second commitment period at its [first session] / [session coinciding with the twenty-seventh session of the Conference of the Parties to the UNFCCC] and for] subsequent commitment periods of this Protocol four years before the beginning of each subsequent 5-year commitment period.
  3. Commitments by all Parties shall be based on and consistent with the requirements of the best available science, informed by the most recent Assessment Report of the Intergovernmental Panel on Climate Change and in accordance with the principles and ultimate objective of the Convention.”

Assumptions

There are continuing uncertainties around the legal form of the 2015 agreement so proposing draft text on any aspect of the agreement in a relative vacuum is difficult. For the purpose of answering this particular query the following assumptions were made:

  • The core provisions of the agreement would be in a protocol (or similar treaty-level instrument)
  • Nationally determined contributions/commitments would be an integral part of the protocol – an integral part of the protocol will have the same legal character as the protocol in international law
  • The agreement would contains complementary provisions elaborating on this general paragraph, including on the legal character of the contributions/commitments, the entry into force and/or provisional application of the agreement and commitment periods and the elaboration of relevant modalities, procedures and timeframes

Drafting suggestions (broken down)

Regarding timeframes

Suggested draft text: “The Conference of the Parties serving as the Meeting of the Parties to this Protocol shall initiate the consideration of commitments for [the second commitment period at its [first session] / [session coinciding with the twenty-seventh session of the Conference of the Parties to the UNFCCC] and for] subsequent commitment periods of this Protocol four years before the beginning of each subsequent 5-year commitment period.”

There are a few issues with the original proposed text.

First, the twenty-seventh session mentioned would be a session of the COP and not of the CMP. Assuming both the 2015 agreement enters into force and the first commitment period starts at the beginning of 2020, the end of 2020 (ie. four years before the beginning of the second commitment period at the start of 2025) would likely coincide with the first ordinary session of the CMP – in other words CMP 1.

In any case, a specific reference to CMP 1 or the session coinciding with COP 27 could be considered superfluous since the text requiring consideration four years before the beginning of each commitment period covers the second and all subsequent commitment periods. As a result, I’ve left the specific references to CMP 1 and COP 27 bracketed so they could be easily removed if desired.

However, while the draft text could be considered unequivocal it isn’t necessarily precise.

First and foremost, the entry into force of the 2015 agreement and consequently the first commitment period could be delayed due to technical requirements (eg. requirements covering scope of emissions or number of ratifications, etc). Second, the 5-year commitment periods might not flow seamlessly from one into the next (ie. there could be a gap between commitment periods). References to specific sessions become potentially less relevant or impractical in either of these situations.

As with past discussion under the Kyoto Protocol, provisional application of the agreement or commitment periods could be an option to address a potential delay or gap between commitment periods. Similarly, clear provisions on the roll-over from one commitment period to the next is another option.

Regarding reference to science and the Convention

Suggested draft text: “Commitments by all Parties shall be based on and consistent with the requirements of the best available science, informed by the most recent Assessment Report of the Intergovernmental Panel on Climate Change and in accordance with the principles and ultimate objective of the Convention.”

Simply being informed by a particular input potentially allows that input to be considered and ignored in whole or in part. Requiring action to be based on an input creates a stronger causal link between the input and the resulting action. Similarly, without spelling out the principles of the Convention in detail (since they’re still subject to a lot of debate and interpretation) requiring future action to be in accordance with the principles (whatever they are agreed to mean) provides another anchor to the Convention and its guiding principles.

Regarding inscription of commitments

Suggested draft text: “Commitments, for all Parties, for each 5-year commitment period, shall be established in amendments to their Nationally Determined Commitment listed in [[[[Annex] / [Schedule]] [X] to this Protocol] / [the registry maintained by the UNFCCC Secretariat]], and shall be adopted in accordance with the provisions of Article [Y], paragraph [Z].”

It’s assumed that “Article [Y], paragraph [Z]” contains provisions on the modalities, procedures, timeframes and technical requirements for commitments. It’s also important to stress the initial assumption (mentioned at the beginning of this advice) that the Protocol contains provisions clearly incorporating the commitments (in whatever vessel they are housed – eg. annex/schedule/registry) as integral parts of the Protocol. There is a growing body of commentary about these options.[1] The key here would be the language in the Protocol creating the link and making the contributions/commitments an integral part of the Protocol.

A point about annexes: an annex containing contributions/commitments (as originally proposed by the enquirer) would clearly be an integral part of the protocol since it would be part of the protocol text itself. But annexes have to be finalised and adopted when the protocol itself is adopted. This would require contributions/commitments for all Parties to be ready for inscription into one or more annexes by December which doesn’t seem likely at the moment. Depending on the provisions of the 2015 agreement, amending annexes would also normally require adoption and ratification unless the agreement provides otherwise (eg. streamlined amendment process).

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[1] See for example, Sandrine Maljean-Dubois et al., A comprehensive assessment of options for the legal form of the Paris Climate Agreement, Working Papers N°15/14, IDDRI available at: http://www.iddri.org/Publications/Collections/Idees-pour-le-debat/WP1514_SMD%20MW%20TS_legal%20form%202015.pdf.