Options for including NAMAs in legally binding instruments

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 11/11/2011

What are the options for making actions and targets by developing countries binding, such as the inscription of a target or NAMA in an Annex, establishment of a registry of NAMAs or schedules ? It is recognised that the degree to which an action or target will be binding may vary depending on the type of instrument used but it would be useful to have thoughts on these and any other options.

Summary

For purposes of creating legally binding obligations on the part of developing countries, what is needed is essentially the following:

–          A provision expressing a clear intent to create legally binding obligations: e.g., ‘Developing countries shall implement the actions/targets laid down in Annex/Schedule…’

–          Clear legal authority: the aforementioned provision should be included in a(n amended) Treaty/Protocol, rather than in a COP decision.

–          The actions/targets themselves should be clearly defined.

If the intention is to establish a registry, whereby developing countries would communicate certain commitments at their own initiative, the (treaty) provision establishing the registry should indicate that every entry into the registry creates binding obligations on the part of developing country communicating a mitigation action/target.

Even if Parties would agree to create legally binding obligations on the part of developing countries, one should not ignore the need for certain enforcement/sanctioning mechanisms. Indeed, a binding instrument without some form of enforcement mechanism may still be a rather toothless instrument after all.

Advice

For purposes of answering the query, it is useful to distinguish between two aspects: (1) the legally binding character of the actions and targets to be undertaken by developing countries, and; (2) the enforceability and compliance pull of legally binding norms.

1. The legally binding character of the actions and targets to be undertaken by developing countries

As for the first aspect, it is clear that a non-legally binding international agreement cannot have legal effect of itself. It may well be that a State chooses to implement certain provisions of such an ‘agreement’, but in such scenario it will do so on a voluntary basis, rather than because it is bound to undertake certain actions.

This raises the question as to what distinguishes legally binding from non-legally binding instruments. Article 2(1)(a) of the Vienna Convention of the Law of Treaties (VCLT) defines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ It flows from this definition that the form of an agreement is not determinative of its legally binding character. The title (‘declaration’, ‘treaty’, ‘MOU’, etc) is at best indicative (an agreement entitled ‘Schedule’ may well be a legally binding instrument of itself).

Furthermore, the customary definition of legally binding agreements under international customary law is even broader than the one enshrined in the VCLT. Even oral agreements can give rise to internationally binding obligations (although this may give rise to problems of proof).

What matters most for present purposes is whether the language of the agreement reflects the will of the parties to effectively make the commitments/obligations enshrined therein legally binding. If the language used is vague and non-committal, it should not be regarded as legally binding. If it is clear and compelling, it probably should.

Thus, when looking at the Copenhagen Accord, it is clear from the language used in the preamble and in the different Articles, that this was generally not meant to be a legally binding instrument of itself. The provision dealing with developing country mitigation actions (§ 5 – ‘Non-Annex I Parties to the Convention will implement mitigation actions…’) left some room for debate as to whether it should be regarded as predictive or prescriptive in nature (see: LRI Briefing Paper, The Copenhagen Accord – a legal analysis). Yet, the absence of concrete actions/targets and the wording used by those developing countries actually communicating commitments to engage in concrete mitigation actions made clear that the provision did not give rise to direct legal obligations of itself.

The language used in the Cancun agreement on ‘nationally appropriate mitigation actions by developing country Parties’ is similarly too vague and non-committal to be capable of creating legal obligations (Decision 1/CP.16, III.B).

In essence, what is needed then is the following:

–          A provision expressing a clear intent to create legally binding obligations: actions/targets to be undertaken by developing countries should find there basis in a provision that unequivocally reflects the intention of the Parties to create legally binding obligations. For example: ‘Developing countries shall implement the actions/targets laid down in Annex/Schedule…’ By contrast, the following language should be avoided: ‘Developing countries ‘should’ OR ‘are invited to’ implement the actions/targets laid down in…’

–          Clear legal authority: the aforementioned provision should be included in a document whose legal status is beyond doubt. Examples include an amended version of the UNFCCC, or a new Annex to the UNFCCC, or even an amended version of the KP. By contrast, a more unorthodox approach would consist in enshrining the provision in a COP decision. The legal authority of such instrument would be more open to questioning. See on this e.g.: Can International/ LRI Briefing Paper, COP Decisions: binding or not? Substance and Mandates.

–          Actions/targets should be framed in such a way as to require no further clarification/definition: the actions/targets that are to be imposed upon developing countries should be framed in clear terms. They should contain obligations of result/hard obligations (e.g., a specific targets), rather than obligations of means/soft obligations (e.g., indicative targets). The title of the document in which these obligations are incorporated (‘Annex’, ‘Schedule’,…) is of no importance.

If the intention is to establish a registry, whereby developing countries would communicate at their own initiative certain commitments to be undertaken, then the (treaty) provision establishing the registry should indicate that every entry into the registry creates binding obligations on the part of developing country communicating a mitigation action/target. If, in their communications, developing countries would nonetheless object that the action/target communicated is not intended to be binding, but only a voluntary, entry into the registry should be refused (cf. as a matter of principle, States cannot be compelled to accept binding obligations against their will).

2. The enforceability and compliance pull of legally binding norms.

Even if Parties would agree to create legally binding obligations on the part of developing countries, one must still take account of the enforceability and the compliance pull of these obligations. Put differently: one should not ignore the need for certain enforcement/sanctioning mechanisms (reporting requirements, periodic review, sanctions (financial repercussions, exclusion etc)). While we assume that this aspect is beyond the scope of the query, it is nonetheless worth stressing that a treaty without some form of enforcement mechanism may still be a rather toothless instrument after all.