Can you Please advise on possible scenarios for integrating nationally determined contributions (NDCs) into the new 2015 agreement, such as an annex document, a COP decision or registry?
Summary:
The following scenarios are available for integration of NDCs into the 2015 agreement:
- NDCs in a legally binding Annex or national schedules to a treaty
- NDCs in a partially legally binding Annex or national schedules to a treaty
- NDCs in a non-binding attachments to the 2015 agreement
- NDCs as part of a COP decision (either adopted or noted), or
- NDCs in a Registry separate from the 2015 agreement (but perhaps referenced)[1]
In determining which approach is most appropriate Parties will need to balance the following considerations: legal status of NDCs; rigour and certainty of commitments; flexibility of commitments; timing of when commitments will be finalised (that is, on, before or after the 2015 agreement); transparency of commitments and the extent to which obligations are nationally determined, negotiated or prescribed from a ‘top down’ architecture.
Advice:
As you have identified there are a number of options which UNFCCC Parties could use in integrating NDCs into the new 2015 agreement. The choice of legal form is important because if it is properly designed it will facilitate the substantive commitments of the Parties.
In deciding which approach to choose, it is not a matter of which legal architecture is ‘best’ but rather which architecture achieves the objectives of the Parties. The different approaches described below of incorporating NDCs will vary according to their:
- legal status and whether they are considered legally binding obligations under international law.
- flexibility, that is, how easily NDCs can be amended and the procedure for amending them.
- timing of when NDCs are finalised, whether before or after the 2015 agreement;
- review and transparency of NDCs by other Parties, and
- the extent to which obligations are nationally determined, negotiated or prescribed from a ‘top down’ architecture.
Most approaches described below can accommodate each of the above elements (for example, a treaty can be both rigorous and allow some flexibility). However, the most suitable approach will depend on the importance given to each element.
1. NDCs in a legally binding or partially legally binding Annex or national schedules to a treaty
National schedules or an annex[2] to a legally binding agreement recording each Party’s NDCs would have a similar legal effect. The important issue is whether these attachments to the agreement are legally binding or not. [3]
There are precedents under international law for national schedules including at the WTO, where Parties take on specific commitments to liberalise their domestic laws, in schedules to the WTO Agreements. In the WTO context these schedules constitute an integral part of the overarching WTO Agreements and carry the same legal status. The schedules describe the measures that a party will take domestically and thereby incorporate domestic action into international law.
Although there is some flexibility in such an approach to tailor commitments to the domestic laws of a country, it is important to note that scheduled commitments are negotiated with other members. Because they are an integral part of the final agreement all parties must agree to each party’s schedule.
Scheduled commitments are amended through subsequent negotiating rounds (or cycles) involving all Parties (although, of course, some Parties may not participate). Legal devices could be included in the treaty to allow some flexibility (for example, for parties to strengthen their commitments outside of negotiating cycles).
Wholly legally binding schedule to the agreement
The most rigorous and inflexible approach to recording NDCs would be to include them in wholly legally binding national schedules or an annex to a treaty level 2015 agreement. This would mean that the commitments themselves were an integral and legally binding part of the Agreement as a whole.
Being legally binding commitments, each Party’s NDC could only be varied by formal amendment of the treaty. How an amendment would be achieved would be specified in the treaty itself, but generally under international law a treaty may only be amended by agreement of all Parties.[4] Accordingly, this approach would offer the least flexibility to change NDCs.
It is important to note, however, that the commitments themselves may include flexibility within them. For example, a legally binding commitment may simply be that a Party “make best endeavours” to reduce emission intensity of its transport sector by X%. Such a commitment, although technically legally binding, would not create onerous obligations.
Schedules which are in part legally binding
There is nothing preventing aspects of national schedules or an Annex to a treaty being non-binding. This is simply a matter for negotiation between the Parties. The clearest means of achieving binding and non-binding aspects of schedules or an annex would be to expressly indicate which aspects are taken on as legally binding commitments and which are non-binding political commitments (for example by specifying which aspects are an ‘integral part of the agreement’).
These non-binding undertakings could be subject to special procedures for amendments which are easier achieve and do not require the agreement of other Parties.
2. NDCs in a wholly non-binding attachment to the 2015 Agreement
Another option is to create a non-binding attachment to the 2015 Agreement which does not create legal obligations. This Annex would simply elaborate commitments found in the overarching agreement by illustrating the kinds of actions each Party intends to take.
Annexes to the Agreement would not need to be agreed at the time of ratification, nor would they necessarily have to be negotiated with other Parties. The extent to which each Party would have to discuss its Annexed commitments with other parties would depend on the process for settling them. The procedure for amendment the non-binding annex could be set out the overarching treaty or in COP decisions.
3. NDCs part of a COP decision
NDCs could be included in COP decisions which are part of a package of decisions adopted or noted by the COP. It is generally accepted by international lawyers that COP decisions are not legally binding in a formal sense. COP decisions at the UNFCCC are adopted by ‘consensus’, therefore, all Parties would have implicitly agreed to the NDCs which were included in the decision. This would create a degree of transparency and accountability during negotiation and adoption of the NDCs.
However, the international status and priority given to NDCs recorded in a COP decision would be far less than that accorded to a legally binding treaty. As a consequence the degree of certainty that Parties would have that others will follow through on their commitments will also be less than in a legally binding treaty.
4. NDCs recorded in a separate Registry referenced in an agreement
A registry, separate to the 2015 agreement, could be maintained to record aspects of the NDCs which each party is intending to carry out. Such an approach would not create any legally binding obligations in relation to pledges made in the registry and NDCs could be varied as a party wishes.
While such an approach would offer the greatest flexibility, it would provide very little certainty that Parties will follow through on their pledges. Indeed, depending on the specifics of its design such an approach may amount to little more than an indication of what Parties plan to do.
[1] Please also refer to the UNFCCC Secretariat’s characterisation of these options in document ADP.2014.6.NonPaper at 3.
[2] ‘National schedules’ refer to attachments to the agreement, one for each Party, outlining the mitigation commitments that they are taking as part of the agreement. An ‘Annex’ to the agreement would set out similar information in one document, although that document would still include an entry for each Party.
[3] Note on Legally Binding vs Non-Binding Obligations
Whether a commitment is legally binding under international law is dependant on the intention of the Parties. Legally binding commitments have greater status in international relations and their breach is a more serious concern to the community of nations.
However, it is important to differentiate legally binding commitments from the consequences of breaching a commitment. Simply because a commitment is legally binding does not mean that penalties will result from its breach. Ultimately what consequences flow from breaching a particular commitment depends on the terms of the treaty itself.
[4] Vienna Convention on the Law of Treaties 1969.
“Article 40 Amendment of Multilateral Treaties
- Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.
- Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:
(a) the decision as to the action to be taken in regard to such proposal;
(b) the negotiation and conclusion of any agreement for the amendment of the treaty.
- Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.
- The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to such State.