Possible legal forms of new Agreement and implications of “applicable to all parties”

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 13/11/2013

1. What are the possible legal forms of the new post 2020 agreement?

2. Does the reference to “applicable to all parties” represent a shift from developing countries differential treatment under CBDR and the principles of the Convention?

Advice: 

1) What are the possible legal forms of the new post-2020 agreement?

Possible forms of how an agreement could be captured include:

  • A new international treaty (Protocol, Implementation Agreement, Covenant, etc);
  • Unilaterally binding declarations;
  • Amendments of the Convention or to the Protocol;
  • Mix bag of outcomes, for example: unilateral declarations on mitigation ambition + political agreement on finance; or COP decisions on adaptation, technology transfer etc + a treaty on mitigation targets and/or finance;
  • Political agreement (e.g. based on national commitments)
  • COP decisions

For further details on these legal forms, please see LRI Briefing Paper “Unwrapping the Durban Package” (paras. 28 to 57).

2) Does the reference to “applicable to all parties” represent a shift from developing countries differential treatment under CBDR and the principles of the Convention?

The Convention is “applicable to all” Parties that have ratified it, as is the Kyoto Protocol. The fact that an agreement is applicable to all Parties does not necessarily mean that all Parties have the same obligations. For example, Article 4(1) of the Convention is applicable to all Parties, while Article 4(2) applies only to developed country Parties (and other Parties included in Annex I to the Convention). Similarly, the Kyoto Protocol creates new mitigation obligations for Annex I Parties while making it clear that it does not introduce any new commitments for Parties not included in Annex I.

Thus the principle of CBDR can be applied to an agreement which is “applicable to all” Parties. An example in other multilateral agreements can be found in the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (as amended). Although it does not specifically state that CBDR is applicable to the Ozone regime, its application is apparent in the provisions of the protocol. Article 5 (as amended) takes into account the special situation of developing countries (calculated by reference to the level of consumption of controlled substances rather than by static lists as in the Convention) and gives them longer timeframes within which to phase out production and consumption of controlled substances. It also makes the effective implementation by developing countries of their obligations dependent on the provision of sufficient financial and technological support from developed countries (similar to Article 4(7) of the Convention). In this way, developing countries are afforded differential treatment despite the Montreal Protocol being “applicable to all” Parties.

However, the recent inclusion of this phrase “applicable to all” in the climate change regime could be interpreted as new trend requiring developed and some developing country Parties to work towards taking on similar commitments, something to which developing country Parties have thus far not agreed. While it is true that the term can also be interpreted so as to provide for differentiated commitments for developed and developing country Parties even in the absence of an explicit reference to CBDR (as in the Montreal Protocol), the political context of the adoption of the ADP Decision suggests the application of CBDR in the post-2020 regime may not reflect the same application of CBDR as in the Convention or the Kyoto Protocol. (see also LRI Briefing Paper “Unwrapping the Durban Package”, paras. 67 to 70).