What does the delegation of New Zealand mean by its reference (during the ADP meeting in Bonn in October 2014) to a “quasi-internationally binding” agreement? What are the implications?

Advice:

We understand that, at the recent UNFCCC Bonn talks, New Zealand’s submission to the ADP on the proposed 2015 universal climate agreement was accompanied by comments from the New Zealand delegation that New Zealand’s position on the agreement is that it should be “quasi-internationally binding”.

Under New Zealand law, there is no fixed legal meaning to the word “quasi” in either domestic or international contexts.  Ordinarily, “quasi” is used to describe something that resembles another thing but which lacks one or more essential features of that other thing.  This sense of meaning is very close to the original Latin.

New Zealand’s leading legal dictionary (Butterworths New Zealand Law Dictionary, 7 ed. (2012)) states that “quasi” is:

“A word prefixed to a noun meaning that, although the thing signified by the combination of quasi with the noun does not comply in strictness with the definition of the noun, it shares its qualities.”

From our review of New Zealand’s submissions on the universal climate agreement (both at the October 2014 talks and previously in March and June 2014), it appears that New Zealand is proposing an agreement that:

contains generally-applicable rules that will govern the conduct of states parties, which will be binding under international law; and

gives states parties discretion in relation to other key matters, including (for example) intended nationally determined contributions and other specific mitigation targets.  This aspect of the agreement will not be binding under international law.  An individual state party would be able to adjust its commitments without the consent of the other states parties.

New Zealand’s March 2014 submission to the ADP also describes this approach as creating a “hybrid” form of agreement.  In our view, the New Zealand delegation was likely using “quasi” during the October talks in the same sense as it used “hybrid” in the March submission.  Both words seem to be attempts to convey the mixture of binding and non-binding terms that New Zealand’s proposed agreement would have.

Our interpretation is also consistent with the general definition of “quasi” above, in that New Zealand’s description of a “hybrid” or “quasi-internationally binding” agreement shares the qualities of a more traditional internationally binding agreement but also permits states parties to make a number of non-legally-binding commitments.

On that basis, we would interpret the use of “quasi” by the New Zealand delegation in accordance with its ordinary meaning. Thus the use of “quasi” implies an almost or at least in parts internationally binding agreement.

Additional comments

However, from a strictly legal perspective there are at least two other slightly different possible interpretations:

In public international law, certain documents may be described as quasi internationally binding because they contain normative approaches, guidelines or generally applicable principles. Such documents (e.g. ministerial declarations, UN General Assembly Resolutions or instate conference declaration such as the Rio Declaration on Sustainable Development) – often referred to as ‘soft law’ have some political authority but lack the quality of a legally binding international agreement.

In some jurisdictions “quasi” may also indicate an obligation under the generally applicable law when there is no specific binding agreement. Under the law of restitution or unjust enrichment in New Zealand, for example, the application of general common law can result in obligations “quasi ex contractu” (“as if from a contract”). The corresponding interpretation in the context of interstate relations would be that the agreement as such is not legally binding (e.g. because it will not be formally ratified) but stipulates certain rights and obligations that are already established under higher ranking general public international law (e.g. restitution for certain climate change damages). It is unlikely that this is what the delegate from New Zealand meant.