Ratification of COP decisions

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 21/11/2009

1.Is it possible for countries to ratify a COP decision? If so, which countries have? 

2.Did the Congress of the USA pass a bill or another legal act when ratifying the UNFCCC which declares that the USA cannot enter into substantial obligations by way of COP decision unless the Congress expresses its consent?

3. If not, would domestic legislation have to be passed to create legally binding emissions reductions and financial support targets adopted by a COP decision (which the US agreed to)? [This question is based on the assumption that a COP decision in this respect would not be automatically binding on the parties.]

1. Although we have not been able to locate any examples of a country ratifying a Conference of the Parties (“COP”) decision, we have not identified any authority that wholly forecloses the possibility.  The international experience, however, with the “Basel Ban” at the Second Meeting of the COP of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (the “Basel Convention”) strongly suggests that there would be questions about the binding nature and enforceability of a COP decision that imposed binding and enforceable emissions reduction commitments, particularly when it is unclear whether the COP has authority to do so under the United Nations Framework Convention on Climate Change (the “UNFCCC”).[1]

In 1994, the COP to the Basel Convention agreed to an immediate ban on the export of hazardous wastes intended for final disposal from Organisation of Economic Cooperation and Development (“OECD”) to non-OECD countries.  The parties to the Basel Convention, however, questioned whether the ban was legally binding because the decision was not incorporated into the text of the Basel Convention.  Therefore, at the Third COP on the Basel Convention in 1995, the parties decided to formally incorporate the ban as an amendment to the Basel Convention.[2]

2. The United States did not attach any formal conditions to its resolution of ratification of the UNFCCC.  In a report on the resolution prepared by the United State Senate Committee on Foreign Relations (the “Committee”), however, the Committee stated the following:

The Committee notes that a decision by the Conference of Parties to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement.  The Committee notes further that a decision by the executive branch to reinterpret the Convention to apply legally binding targets and timetables for reducing emissions of greenhouse gases to the United States would alter the “shared understanding” of the Convention between the Senate and the executive branch and would therefore require the Senate’s advice and consent.[3]

Although the United States did not pass a bill or resolution at the time it ratified the UNFCCC that prohibits the United States from entering into substantial obligations by way of a COP decision, the Committee’s report suggests that such an approach would require the United States Senate’s advice and consent.

Furthermore, the United States Court of Appeals for the District of Columbia ruled in a 2006 case that “[w]ithout congressional action, . . . side agreements reached after a treaty has been ratified are not the law of the land; they are enforceable not through the federal courts, but through international negotiations.”[4]

The case involved the legal consequences of consensus decisions of the parties to the Montreal Protocol.  Noting that if decisions agreed to by the parties after ratification of the Montreal Protocol were “law,” “serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers,” would be raised.[5]

Therefore, it is very unlikely that a COP decision establishing emissions reduction targets for developed countries would automatically be binding and enforceable under United States law.

3. Assuming that a COP decision would not automatically be binding on the parties, domestic legislation creating legally binding emissions targets would need to be passed.

[1] See CAN International, COP Decisions: Binding or Not? (2009), http://www.climatenetwork.org/publication/cop-decisions-binding-or-not-legal-analysis.

[2] See http://archive.basel.int/pub/baselban.html.

[3] S. Exec. Rep. No. 102-55, at 14 (1992).

[4] Natural Res. Defense Council v. Envtl. Prot. Agency, 464 F.3d 1, 10 (D.C. Cir. 2006).

[5] Id. at 9.