Ratchet provisions

Legal assistance paper

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Date produced: 11/12/2009

1. Can a COP decision adopt a floor, or threshold, for minimum commitment levels, with a view to a subsequent COP only being able to increase them, not decrease them?

2. What would be the best way to entrench such a commitment in a COP decision, such that a subsequent COP would find it hard to renege on such a commitment? In particular, does UNFCCC or Kyoto Protocol, or any of the subsequent decisions, provide a mechanism to achieve this?

3. Are there examples of such an entrenched commitment level, whether in a decision of a conference of parties, or in treaty language itself? Are the principles on successive treaties helpful here or a digression?

The COP comprises representatives from all Parties to the Convention. COP decisions represent the agreement of all of the Parties under the auspices of the Convention but not do not carry the status of the 1992 Framework Convention (“Convention”) itself (or amendments thereto), or of Protocols to the Convention, which must be agreed according to procedures set forth in Articles 15, 16 and 17 of the Convention. Depending on the legal system of the member state, the Convention and Protocols to the Convention must be formally adopted or “ratified” by an additional domestic legislative process in some of the Parties. COP decisions have fewer procedural hurdles within the UNFCCC process and generally do not need to be formally ratified by legislative process in the contracting Parties. However, the binding nature or otherwise of COP decisions rests on the power ascribed to the COP in the relevant treaty text and the authority granted to the COP under the UNFCCC is ambiguous. This and the lower procedural hurdles with respect to implementation or reversal of COP decisions make them less permanent and less authoritative than treaty or protocol text.

1. Yes, subject to the points made about reversal in para 2 below, a COP decision can adopt a floor, or threshold, for minimum commitment levels, with a view to a subsequent COP only being able to increase them, not decrease them.  This can be accomplished with plain language. For example, “The Conference of the Parties decides that all Annex I Countries shall [insert commitment] with a view that this commitment will be reconsidered at subsequent Conferences of the Parties and either held stable or increased based on [evolving scientific understanding] / [financial need].”

2. Entrenchment is difficult as any COP decision can be reversed by a subsequent COP decision or higher order agreement (i.e., amendment to the Convention or by adoption of a Protocol).  However, a COP decision is less likely to be reversed (or ignored) if it is phrased using language that has proven to have resilience (such as “common but differentiated responsibilities” or “dangerous anthropogenic interference”) over the history of UNFCC or has grounding in otherwise accepted principles of international law (such as certain tenets of human rights law). We are considering whether there are suitable examples already in existence for question 3, but currently are assuming that the ‘floor and ratchet upwards’ concept is not one that has a long pedigree. One might add references to “dangerous anthropogenic interference” as a preamble to the suggested language in para 1 above, but its effect in terms of entrenching the newer ratchet and floor concept may be limited.

3. There are no examples of such a commitment level in COP decisions. In the timescale we have been unable to check the position in other treaties, but our international law expert considers this to be unlikely. Principles on successive treaties do not assist in this case.