What is the legal strength that the following clause of the Bali Action Plan (“BAP”) has for ensuring that a mechanism to address “loss and damage” is contained in the outcome of the LCA track? Does it mean that the Parties negotiate to get an agreed outcome, and while they negotiate they must address adaptation, including considering loss and damage – but no more than that?
The BAP states:
“1. … negotiations … in order to reach an agreed outcome and adopt a decision at its fifteenth session, by addressing, inter alia: (…)
1(c) Enhanced action on adaptation, including, inter alia, consideration of:
(iii) Disaster reduction strategies and means to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change;”
It may be possible to construct an argument that the COP decision constituting the Bali Action Plan (“BAP”) imposes a legally binding requirement on the parties to include provisions on ‘loss and damage’ pursuant to paragraph [1(c)] of the BAP, but such an interpretation is unlikely to meet with consensus given the general uncertainty surrounding the binding nature of COP decisions and the ambiguity of the language of the UNFCCC and BAP that must be relied on in this context.
In our view, the Bali Action Plan is merely a political declaration of intent. This flows amongst other things from the title of the document itself , as well as the language used in Article 1. It may be noted in this respect that there is no comma in front of “and adopt”. There is in other words no ‘decision to adopt a decision’, but only a decision to negotiate.
Even if it is accepted that paragraph 1(c) creates a legally binding requirement to deal with the subject of ‘loss and damage’ in any text resulting from the LCA track, the parties have considerable discretion as to content. Parties are required to address action on adaptation, including inter alia ‘consideration’ of ‘means to address loss and damage’. This language does not in any way prescribe a specific outcome on this issue-the ‘consideration of means’ can be argued to exclude doing nothing (which is important) but every other approach to the issue, including starting a further process to develop appropriate means to address loss and damage appears to remain on the table.
Similarly, even if these arguments were overcome, one would still face the enforcement obstacle.
If paragraph 1(c)(iii) of the BAP is not legally binding, it nevertheless carries considerable political weight as the BAP was a negotiating mandate for the parties, with a view to reaching a decision at COP15. In practice, such negotiating mandates are not reopened once agreed.
It is arguable, therefore, there is no meaningful distinction between ‘legally binding’ and ‘politically binding’ in this context. The decision to launch the process is framed in binding terms so far as procedure and timetable and matters to be discussed are concerned. It is much more difficult to argue in support of a binding decision on specific outcomes (this would after all fly in the face of this being a negotiating mandate), except that not addressing an issue which is covered in the roadmap is not an option, particularly given (in this case) existing obligations under Article 4 of the Convention (see further below). In either case there is a strong argument that loss and damage should be discussed and subsequently referenced in the COP decision on adaptation. As stated above, what the COP decision says about loss and damage is left to the Parties to agree.
In order to successfully argue that BAP para 1(c)(iii) is legally binding and therefore must be discussed and referenced in the COP decision on adaptation, the specific articles of the Convention which grant the COP authority to take such decisions that bind the parties need to be examined. For these purposes, the relevant articles of the Convention and paragraphs of the BAP are set out at the end of this answer 1.
There is a distinction between the treatment of ‘new obligations’ and ‘existing obligations’ under the Convention. The BAP concept of ‘loss and damage’ is not explicitly addressed in Articles 4(4) or 4(8) but is an issue that adaptation would be expected to cover. It is arguable as to which category it should fall under, but on balance we believe it could be characterised as falling within an ‘existing obligation’ under 4(4) and 4(8). In either case there are doubts as to its legally binding nature.
The implicit authority for any ‘new obligations’ created by the BAP would be Article 7.2 of the Convention which provides that the COP shall take “decisions necessary to promote the effective implementation of the Convention”. However, the CAN Legal paper on “COP Decisions: Binding or Not?” of June 8, 2009 , makes it clear that this is a weak basis for supporting the legally binding nature of new obligations.
Article 4(8) of the Convention provides an explicit authority for certain actions. It provides that, for the purposes of, inter alia, implementation of Article 4(4) on assistance regarding adaptation to the adverse effects of climate change, the Parties shall give “full consideration” to actions necessary under the Convention and further provides that the COP “may take actions” as appropriate.
The language of the BAP in paragraph 1(c) provides for a COP decision to be taken which address enhanced actions on adaptation including ‘consideration’ of, inter alia, the means to address ‘loss and damage’ associated with climate change. This BAP language could be said to be an example of the COP taking the appropriate action referred to in Article 4(8) and that it is therefore legally binding as an existing obligation. However, it should be noted that the CAN Paper specifically discusses whether the reference in Article 4(8) of the Convention to the COP taking appropriate action is sufficient to render legally binding any decisions the COP may make about substantive commitments to finance. The CAN Legal paper concludes that the language of Article 4(8) is “ambiguous at best” for this purpose and that this would give grounds for Parties to disagree on the binding nature of such commitments. The same is likely to be true for the argument that it renders the language on ‘loss and damage’ binding.
It should be noted that even if para 1(c)(iii) is not held to be legally binding, it still carries considerable political weight as the BAP was agreed by the parties in Bali as a negotiating mandate for the parties, with a view to reaching a decision at COP15. In practice, such negotiating mandates are not reopened once agreed.
As noted above, even if paragraph 1(c) can be characterised as binding, the Parties have a large degree of discretion as to what any language about loss and damage should contain. As a result, it is not clear that characterisation of this issue as legally binding offers any significant advantage.