How strong is a “legal instrument”? Does it imply any legal bindingness? Can a COP Decision be a “legal instrument”?
The text “legal instrument”, as used in paragraph 4 of the “Indaba: The Bigger Picture” (current draft text on the LCA – Chair’s Proposal), is the same as that used in the Berlin Mandate (Decision 1/CP.1). However, since that mandate was concluded by the adoption of a protocol (as specified as an option in the Berlin Mandate), this does not assist in determining the meaning of “legal instrument”. Recourse must thus be had to its ordinary meaning.
The term “legal instrument” is ambiguous. It could mean one of at least two things. On the one hand, it could mean an instrument that was legally adopted – i.e. a COP decision that was adopted following the correct procedures. As has been discussed many times, COP decisions only rarely create legally binding obligations under international law. More normally, they do not.
On the other hand, the term “legal instrument” could mean an instrument that is binding under international law (such as a protocol, treaty, convention, Charter, Constitutive Act etc. See here for some definitions). It would also cover amendments and new annexes which fall short of a new legally binding instrument, but which could be legally binding nonetheless. In the context of the draft mandate text, it could thus encompass amendments to the Convention (or Annexes) to address the issues intended to be discussed under the mandate, without needing to create a new ‘treaty’. The key point would be that breach of such an instrument (whether a new agreement or amendments or a new annex) would allow Parties to invoke the law of State Responsibility (even if there is no forum in which disputes can be judicially settled).
In my view, the second option is the better interpretation since the term is used in the context of developing a “Protocol or another legal instrument”. In context, a reasonable interpretation is that the “other” legal instrument would of equivalent character to the “Protocol”. However, you should be aware that the former interpretation (i.e. that it encompasses non-binding COP decisions) may have supporters too. It maybe that the term “legal instrument” was chosen for the very reason that it is “constructively ambiguous” thus allowing all the Parties to agree to take things forward. In which event, the final form of the outcome of the mandate will be deferred again.
If the intention is to create an agreement which is legally binding under international law, the Parties should be encouraged to precede the term “instrument” with the phrase “legally binding” rather than “legal”.