1. What is the meaning of “stoppling” in the context of mitigation targets?
2. What are the consequences of the proposal that mitigation targets be written in INF documents, with COP and CMP Decisions “taking note of” those documents (the “Proposal”)? Does it entail going back on commitments in the Copenhagen Accord or make the mitigation targets of the Parties even less legally binding than the Copenhagen Accord?
3. In the light of the fact that we are not familiar with the word “stoppling”, we have considered whether Venezuela may have been referring to “estoppel”. Does the principle of estoppel have a basis under international law?
(a) We are not familiar with the phrase “stoppling” and are not aware that it has any legal meaning.
(b) Inclusion of the pledges in an INF document has no effect, of itself, on the legal status of the pledges (i.e. the legal status will continue to derive from the base document, in this case the Copenhagen Accord).
It is possible that a Party’s obligations in respect of mitigation targets set out in an INF document could be strengthened to become political obligations if a COP Decision subsequently ‘agrees’ or ‘adopts’ them. However, the Proposal is only to “take note” of the INF document, which falls short of this. ‘Noting’ only recognises the existence of the mitigation targets and has no effect on the legal status of those obligations (i.e. any status they do have would continue to derive from the status of the Copenhagen Accord).
(c) Estoppel is widely recognised as a general principle of international law. However, in our view, it would not have any application to the mitigation targets set out in the Copenhagen Accord (that have never been represented to be legally binding obligations by the Parties or prevent the noting of the same targets as set out in some other document).
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 agreed to or adopted by a COP (or CMP) Decision.
Effect of inclusion of pledges in an INF document
Inclusion of the mitigation targets in an INF document has no effect on the legal status of those targets. INF documents are for informational purposes only and the legal (or political) status of those pledges derives from the base document in which the pledges are made (in this case the Copenhagen Accord). In the context of mitigation targets, they are, by themselves, nothing more than a compilation of pledges or targets made by the Parties elsewhere (whether orally or in writing).
Mitigation targets that are set out in such a document could become political obligations if a COP Decision subsequently refers to them.
Effect of ‘noting’ an INF document in a COP Decision
In our view COP Decisions cannot create legally binding obligations, but do create obligations with political weight. Therefore, if the targets in an INF document as at a particular date were referred to in a COP Decision they would be ‘incorporated by reference’ (i.e. be deemed to be part of the COP Decision) and so assume the political weight given to the COP or CMP Decision. The aim of “taking note” appears to be to give formal recognition within the process to a statement without it having the actual endorsement of the parties to the proceedings.
From a practical perspective, it would be preferable to include the targets in an annex to the proposed Decision.
However, referring to mitigation documents in another document (e.g. an INF document) in a COP Decision and “agreeing”, “adopting” or “inscribing” those targets would modify the effect of targets, converting them to an obligation with political weight regardless of the status of the base document.
The Proposal falls short of this however, by merely ‘noting’ the INF document. A document which is ‘noted’ by the COP (as opposed to ‘adopted’ or ‘agreed’) has no legal status within the UNFCCC. 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. Following the ‘noting’ of the INF document, the legal (or political) status of those pledges will therefore continue to derive from the base document in which the pledges are made (i.e. the Copenhagen Accord). On the other hand ‘noting’ the INF document does not entail going back on commitments in the Copenhagen Accord or making the mitigation targets of the Parties even less legally binding than the Copenhagen Accord.
The parties would not be legally prevented from agreeing to different (weaker or stronger) targets than those which they adopted under the Copenhagen Accord.
As noted above, “stoppling” is not a word that is in current English language usage. It is possible that the term intended may have been “estoppel”.
Estoppel is widely recognised as a general principle of international law (Art. 38 (1) (c) ICJ Statute).
The elements of estoppel under international law are:
(a) a representation of fact made by the representor State; and
(b) detrimental reliance on the representation by the representee State.
Estoppel can create binding obligations as between States or be the basis of interpretation of an international instrument.
However, it is difficult to see what representation the Parties to the Copenhagen Accord have made (either within the Accord itself or by the act of associating themselves with that agreement) which would preclude the COP taking note of those mitigation targets at set out in a INF document. Further, it is difficult to identify any detriment to other States in so doing given that noting the INF document would not affect the status of the Accord itself, but be another means of ‘recognising the existence’ of these targets.
In our view, therefore, the concept of estoppel as recognised in international law does not have any application to the Proposal.