The meaning of ‘legal instrument’ and ‘applicable to all parties’

Legal assistance paper

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Date produced: 10/12/2011

What is the meaning of “Protocol or another legal instrument” and “applicable to all Parties” in the text below ? more specifically: 

1. “Protocol or another legal instrument”: is it right that the second part does not give any guarantee for a legally binding instrument, since legal instrument can also mean COP decision?

2. “applicable to all Parties”: does this contain any indication that legally binding commitments would be included for all Parties (in case of a Protocol), or does this leave open to have a Protocol but not necessarily with legally binding commitments for all Parties?

The latest Indaba text contains the following paragraph 4:

“4. Decides also to launch a process to develop a Protocol or another legal instrument applicable to all Parties under the United Nations Framework Convention on Climate Change, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on XX;”

1.       “Protocol or another legal instrument”: is it right that the second part does not give any guarantee for a legally binding instrument, since legal instrument can also mean COP decision?

The answer is ultimately one of interpretation and what is meant by “legal” – the lawfulness of the instrument or the character of the obligations contained within it. If intended to be the latter, which on balance I think it does (but there is a genuine grey area), the word “legal” should be replaced by “legally binding” for the sake of clarity.

 2.       “applicable to all Parties”: does this contain any indication that legally binding commitments would be included for all Parties (in case of a Protocol), or does this leave open to have a Protocol but not necessarily with legally binding commitments for all Parties?

In relation to the second part of the question, all paragraph 4 suggests is that the instrument would apply to all Parties. Whether they would all have commitments under it is a separate question that is not answered by paragraph 4 alone. However, read together with the first preambular paragraph, it would suggest that all Parties need to participate in the international response to climate change. This could be interpreted to suggest that developing countries should take on legally binding commitments under the new “legal instrument”. In order to ensure different treatment between developed and developing countries, express reference should be made to CBDR in the mandate. If it is not, there is a strong argument that if the new “instrument” is under the Convention, it has to respect the principles of the Convention and thus CBDR applies to the new “instrument” in any case, whether expressly mentioned or not. For the sake of clarity and certainty, however, it is preferred that express reference to CBDR (and any other applicable principles) is made.

 See also our separate advice on the Meaning of ‘Legal Instrument’.