1. Would it be possible for developing countries to submit NAMAs without officially ‘associating’ oneself with the totality of the Copenhagen Accord, i.e. without being listed in the chapeau?
2. Does being listed in the chapeau mean a country is associated with the totality of the Copenhagen Accord?
Numerous legally binding treaties (which the Accord itself is not) allow for countries to sign (and ratify) a treaty and have the country listed at the end as a signatory of the treaty even though they have attached a reservation to it.
A reservation, under international law, allows a country to be bound by an international treaty while being excused from some specific requirement. Thus, reservations allow a country to rewrite certain treaty obligations as they will affect that country. A reservation is distinct from an exception provided by a treaty as exceptions can apply to all countries. Unless prohibited by the treaty, reservations are allowed under article 19 of the Vienna Convention on the Law of Treaties 1969 (Vienna Convention).
As the Accord is not a ‘treaty’, as defined by the Vienna Convention, article 19 does not apply to it. However, by analogy, it is arguable that the principle of entering a ‘reservation’ or not associating with a particular provision would apply to non-binding international agreements between states. The Accord does not expressly exclude the option of entering a reservation and the fact that it is a political agreement suggests that if the other parties to the Accord allow reservations, they may be permitted.
If the foregoing is correct, being listed in the chapeau would not necessarily mean that the relevant country is associated with the totality of the Accord; it could be in agreement with the Accord as a whole, but have expressed a formal reservation as to a particular provision.
If reservations are not permitted, it is possible that being listed in the chapeau means that the relevant country is associated with the totality of the Accord. However, in our view and based on the information available at the present time, the former position is more likely for the reasons set out below. It should be noted that the statements made by individual countries as they ‘associate’ themselves with the Accord will be instructive as to how the parties perceive being listed in the chapeau.
Are reservations to the Accord permitted?
As mentioned above, the Accord does not expressly prohibit countries from not associating with a particular provision of the Accord when associating themselves with the Accord in general terms.
To see whether countries could choose to not associate with a particular provision of the Accord, it would be instructive to see whether this has been done before whether within the UNFCCC or other international non-binding agreements.
Geneva Ministerial Declaration
At COP2 of the UNFCCC in 1996, the parties had failed to make significant progress in accordance with the Berlin Mandate. The Berlin Mandate had called for a progress report to be given to COP2 with a legally binding agreement being reached at COP3. The Geneva Ministerial Declaration (GMD) was the result of the lack of progress at COP2 but was only agreed by a number of countries.
The GMD called for work to continue along the lines of the Berlin Mandate with certain principles being expanded on. Yamin and Depledge note that the GMD “injected political momentum into the Protocol negotiations” but was not adopted by the COP due to lack of consensus. Instead the Parties ‘noted’ the GMD and it was reproduced in a report of the meeting together with the objections raised by Parties. The GMD therefore is similar, in status, to the Accord.
The Part 1 of the Report of COP2, at paras 42-44, states that numerous countries made statements in relation to the GMD, though it is not clear whether all of these statements were made during or after COP2. Annex IV to Part 1 of the Report of COP2 sets out these statements. In these statements, various countries choose to not associate with particular provisions of the GMD, sought to add to it, formally objected to it or set out their understanding of it.
By way of example:
- Australia stated that it “cannot associate itself with the language on targets in paragraph 8”;
- The US sought to add that “that our negotiated outcome must ensure maximum national flexibility for all Parties to implement their medium-term, legally-binding commitments”;
- New Zealand said it “ha[d] difficulty with the wording of the second star of the first tiret of paragraph eight concerning targets”;
- 14 states (mainly oil producing ones) formally objected to the GMD for a number of reasons including the “lack of opportunity for the [COP] to discuss the draft Ministerial Declaration”;
- Ireland (on behalf of the EU) “confirm[ed] its full and unequivocal support for the Ministerial Declaration”;
- Venezuela “reserve[d] its position on the Ministerial Declaration” as it was “concerned to ensure that the process of discussion and agreement should be widely-based and transparent”; and
- Samoa, on behalf of AOSIS, stated that “[t]he Ministerial Declaration is not agreed with in all aspects” but went on to say, “we accept the Ministerial Declaration for what it is: a declaration of determination to give force and direction to the Berlin Mandate”.
This suggests that reservations can be made to the Accord.
It should be noted however, that while reservations were expressed in relation to the GMD, the GMD can be distinguished from the Accord. The GMD simply sets out a political mandate for continued negotiations under the Berlin Mandate. The Accord, however, is an attempt to implement actions to reduce emissions and to provide support to developing countries. The implications of reservations to the Accord is therefore different to the implications of reservations to the GMD. Whether reservations to the Accord prevent its effective implementation remain to be seen.
UN Declaration on the Rights of Indigenous Peoples
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) is a non-binding agreement which was adopted by the UN General Assembly on 13 September 2007. 144 countries voted in favour of the resolution, 4 voted against and 11 abstained.
UNDRIP does not explicitly mention reservations. Nonetheless a number of states expressed reservations when supporting it, including Guyana (which has a substantial indigenous population) who stated:
“We also take note of the fact that the Declaration is political in character, as opposed to being a legally binding document, though not without potential legal implications. We are aware that some of its provisions could give rise to interpretations and expectations that may be out of consonance with its fundamental spirit and intent. My delegation therefore wishes to reserve its position on provisions of the Declaration that we view as unclear or at variance, in effect or interpretation, with our Constitution and laws.”
If allowed, how would countries submit a formal reservation to the Accord?
Under international law, reservations to treaties (where permitted) can be made on signature, ratification, acceptance, approval, accession etc. As a matter of practice, only heads of state or government (or Ministry of Foreign Affairs) can sign a reservation. The formal reservation would be sent to the UN Depositary which would, where the relevant UN treaty is silent as to reservations, communicate the reservation to the other parties to that treaty. If no objection to the reservation is received within 12 months, the reservation is presumed to be accepted.
As the Accord is not a formal UN agreement, and given that it seems that the Secretariat is collating the list of states that associate themselves with the Accord, the logical body with which to lodge a reservation is the UNFCCC Secretariat. The Secretariat would then presumably take on the role as ‘depositary’ and notify the parties to Accord of the reservation and leave it to them to review and ultimately accept or object to it. It is not possible at this stage to advise on the procedure and time requirements for lodging a reservation with the Secretariat, but it is likely to be similar to that followed for formal UN treaties.
What are the practical implications of submitting a reservation?
Until such time as the Secretariat or the parties themselves formally state how they intend to implement the Accord, it is unclear what the implications of submitting a reservation are. However, there are three alternative outcomes that are likely.
- The reservation is accepted and the relevant part of the Accord will not apply to the reserving state.
- The reservation is not accepted and state must decide whether to associate itself with the Accord in totality or not at all.
- The reservation will be accepted but the state will be ineligible for other provisions linked to the provision with which the state does not wish to associate itself.
For example, if a developing country decided to accept the Accord in general but chose not to associate itself with the requirement of international MRV for internationally supported NAMAs, developed countries may state that that developing country will not be eligible for financial (or technological or capacity building) support under the Accord.
Therefore, if developing countries wish to submit NAMAs but not associate themselves with the totality of the Accord, there is no obvious reason why they cannot do so. As mentioned above, whether the reservation is accepted (with or without conditions) remains to be seen. When choosing to associate themselves with the Accord (if indeed they decide to), they should make clear that notwithstanding their association with (and reservation to) the Accord, they are submitting the NAMAs so that they (and potentially the Accord itself) can be fed back into the UNFCCC process, in particular the work of the AWG-LCA.