What is the difference between various types of documents for inscribing mitigation targets? Would using one type of document make the mitigation targets legally more binding than another?
In our view, new legally binding mitigation targets under the UNFCCC could only be brought into effect by means of amendment to either the UNFCCC or the Kyoto Protocol.
A ‘noted’ document could (depending on the Parties intention and other requirements of international treaty law) be a source of legally binding mitigation targets as between the parties to that document.
Annexes to COP Decisions are part of the COP Decision. In our view COP Decisions cannot create legally binding obligations, but do create obligations with political weight. Therefore, any mitigation targets in an annex would be political obligations of the Parties.
INF documents, MISC documents and non-legally binding forms of noted documents do not, of themselves, create even political obligations. However, mitigation targets that are set out in such a document could become political obligations if a COP Decision subsequently refers to them.
1. Making targets legally binding
When considering the bindingness of different types of documents, the most important thing to note is that there is considerable debate as to whether any of them would be legally binding without an amendment to either the UNFCCC or the Kyoto Protocol.
In our view, for mitigation targets to be legally binding, an amendment to either the UNFCCC or the Kyoto Protocol or both (depending on the outcome of the LCA and KP tracks) would be required. We do not believe that a COP decision setting out targets in the operative part of the decision would be legally binding either. However, if mitigation targets were set out in a COP decision, they would still carry considerable political weight even if they were not legally binding.
2. Effect of the different types of documents
We set out below the effect of different types of documents. However, the effect may be modified if the document is subsequently referred to in a COP decision as referred to in section 3, below.
Annex to a COP Decision
If mitigation targets were set out in an annex to a COP decision, and provided that the relevant operative paragraphs links the obligations of the relevant parties to the annex, then these mitigation targets would carry the same force as a COP decision. In other words, they would carry strong political weight but would not be legally binding.
Please note that the (political) obligation to meet this target would depend on the language used in the operative paragraphs: ‘shall meet the targets in the annex’ would be stronger than ‘should meet the targets in the annex’ which in turn is stronger than ‘should aim to meet the targets in the annex’ and so on.
The UN, its specialised agencies and its treaty bodies (including the COP of the UNFCCC and the CMP of the Kyoto Protocol) notate documents with a number of different abbreviations to indicate the distribution category of a document.
INF means ‘information series’ and is usually used for lists of information such as the lists of participants in a conference or meeting. It is usually prepared by the Secretariat. It could conceivably be attached to a document created by the Secretariat which lists the mitigation pledges already declared by Parties (as required by the Copenhagen Accord) or to compile a list of mitigation targets (which are yet to be agreed under the AWG-LCA or the AWG-KP).
INF documents, by themselves, have no legal force. In the context of mitigation pledges or targets, they are, by themselves, nothing more than a compilation of pledges or targets made by the Parties elsewhere (whether orally or in writing). The legal or political force of the targets listed in an INF document will depend on the statement or document in which the pledge or target is made (e.g. statements (written or oral) made to other Parties or the UNFCCC Executive Secretary or in a new treaty text or annex) or the COP decision pursuant to which it was created.
MISC is another notation used by the UN to indicate the distribution category of the document. It stands for ‘miscellaneous documents’ and, within the UNFCCC process, is usually attached to documents which compile and set out the views of Parties or Observers on a particular issue. These views are usually provided to the Secretariat or the Chairs of the respective Convention Bodies – COP, CMP, SBI, SBSTA, AWG-LCA or AWG-KP – in response to a ‘request for submissions’ by the Chairs of those bodies.
MISC documents, by themselves, have no legal status as they merely reflect the views of those Parties which have made submissions.
We have assumed for the purposes of this advice that ‘note document’ refers to a document ‘taken note of’ by the COP. We are not aware of a type of document referred to as a ‘note document’ within the UNFCCC categorisations.
A document which is ‘noted’ by the COP (as opposed to ‘adopted’ or ‘agreed’) is not a formal UNFCCC document. Instead, by the process of ‘noting’ the document, the COP puts all UNFCCC Parties on formal notice of its existence but expresses no view on its contents.
It has no legal status within the UNFCCC but as between the Parties who have ‘agreed’ or produced the document, its legal status will depend on the intentions of those Parties; ‘noting’ a document cannot give it a legal status it does not already have. For example, neither the Copenhagen Accord nor IPCC Assessment Reports are legally binding, but this is not because they were only ‘noted’ by the COP but because they do not possess the inherent characteristics required for them to be legally binding under international law. On the other hand, one could easily envisage a situation where the COP ‘takes note of’ a treaty agreed by some or all UNFCCC Parties; the act of the COP ‘taking note of’ such a treaty would not deny the treaty’s legally binding nature.
We note that registries are referred to in the LCA Chair note of 4 December in the context of developing countries providing information on nationally appropriate mitigation actions, however these would not themselves be the source of mitigation targets. The Registry itself is not a type of document. Instead it is a mechanism which is used to keep track of information. Under the Kyoto Protocol, there are two types of registry: national registries (which keep account of each Annex B Party’s assigned amount units) and the CDM registry (which issues and distributes CDM credits (CERs) to national registries).
In respect of new mitigation targets, a registry could have a role in keep track of information relating to emissions by states with targets, but the legal or political status of the targets themselves would need to be derived from some other document.
We note that registries are referred to in the LCA Chair note of 4 December in the context of developing countries providing information on nationally appropriate mitigation actions, however these would not themselves be the source of mitigation targets. National communications (to which the ‘NC’ abbreviation is attached) are submissions by the Parties relating to their implementation of the UNFCCC. They usually contain information on national circumstances, vulnerability assessment, financial resources and transfer of technology, and education, training and public awareness. National communications from Annex I Parties additionally contain information on policies and measures they are implementing.
In addition, Annex I Parties that have ratified the Kyoto Protocol must include supplementary information in their national communications and their annual inventories of emissions and removals of greenhouse gases to demonstrate compliance with the Protocol’s commitments.
In light of the above, national communications will not set out the targets for all Parties, but will only contain information relating to one Party’s implementation of the Convention and, for Annex I Parties, the Kyoto Protocol.
Mitigation targets, if they are included in the national communication, would derive their legal status from some other source (e.g. the Kyoto Protocol) and would not be legally binding for the reason that they are included in the national communication.
3. Giving effect to mitigation targets set out in the different types of document
Linking to a COP decision
Within the context of the UNFCCC (or the Kyoto Protocol), in order for mitigation targets to create even a political obligation, they would have to be linked to a COP (or CMP) decision. Referring to a document in a COP decision may modify the effect of the mitigation target, converting it to an obligation with political weight regardless of the status of the base document.
In respect of targets set out in an annex to the COP decision, this linkage is relatively straightforward since the annex will be part of the COP decision (providing that the relevant operative paragraph of the COP decision dealing with mitigation targets links to the annex).
In respect of mitigation targets listed in a INF or MISC document, provided all the Parties agree, these documents could be referred to in the COP decision in the following manner: “The COP…Decides that [each] [Annex I] Party [shall] [should] [should aim to] meet its targets as listed in [Document FCCC/…/INF.x] [FCCC/…/MISC.x]”. These targets would then have the same force as if they were annexed to the COP decision, but note that the language used when referring to the mitigations targets (shall meet / should meet / should aim to meet) will also affect the strength of the obligation. In practice, however, it is likely that the INF or MISC document would be annexed to the COP decision anyway.
Similar considerations would apply for targets contained in documents which are ‘taken note of’ by the COP. The important point is that by expressing a view on a document which has previously merely been ‘noted’ and therefore outside of the UNFCCC), the Parties are implicitly endorsing part of its contents, and thereby bringing it (or at least the part of it that is referred to) within the UNFCCC.
For the reasons set out in section 2 above, we do not discuss how targets set out in the registries or national communications can be given political effect.
Giving legal effect by incorporating targets into a legal agreement by reference:
As set out in section 1, we believe that mitigation targets can only be made legally binding if set out in amendments to the UNFCCC or the Kyoto Protocol or both (or a new legally binding form of instrument). If there is sufficient political will for this, the targets agreed in a COP decision, an annex to a COP decision, an INF or MISC document or a document which has been ‘taken note of’ could be made legally binding by referring to the relevant document in the amendment or new legal instrument. This is called ‘incorporation by reference’.
However, while this is possible, for practical purposes it would be better to replicate the targets in the amendments (or new agreement) themselves.