Different instruments to bind the USA to emission reduction targets (Part 2) – Table of alternative legal outcomes

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 06/11/2009

Summary of legal pros and cons of legal outcomes.

The list is not comprehensive and a combination of instruments is possible

OptionMain PositivesMain Negatives
COP decisions
  • Can provide incentives to comply with existing commitments
  • Can have operational effects for various implementation actions (e.g. a decision to establish a compliance mechanism similar to the KP, a decision on the use of Article 18 of the KP (compliance mechanism) to enhance Annex 1 commitment enforcement, a decision on shared vision)
  • Can have legally binding effects depending on the phrasing used

(i.e. you can have a decision to create/enhance a compliance mechanism, or to establish a tech transfer or finance mechanism etc) as well as the interpretation of the legal status of the decision

  • Can be immediately effective after adoption
  • Major substantial and procedural obligations tend to remain enshrined only in international treaty law
  • The legal status of the decision depends on the authority given to the COP to make those decision – this authority is not clear in the case of the UNFCCC
  • May not be sufficient to trigger Party action or compliance because of differences in domestic legal systems (e.g. they might only recognise treaties or protocols*)
  • Consensus is the only way to reach a COP decision
UNFCCC amendment
  • Can be used to strengthen the provisions of the Convention, e.g. a compliance mechanism directly under the Convention
  • Requires ¾ majority voting if no consensus reached
  • Can be used to weaken the UNFCCC
  • Can disrupt the existing balance of obligations
  • Does not have immediate effect (effective for those Parties accepting it, 90 days after receipt of acceptance by at least ¾ of Parties)
Kyoto amendments
  • An amendment could be used to provide deeper emissions reduction commitments
  • An amendment could be used to ensure binding consequences for non-compliance
  • Requires ¾ majority voting if no consensus reached
  • An amendment could be used to weaken the KP
  • An amendment could disrupt the existing balance of obligations
  • Does not have immediate effect
Annexes to the UNFCCC
  • Form an integral part of the Convention and can be used to strengthen or enhance existing obligations

 

  • Cannot contain substantive commitments or obligations
  • Do not take immediate effect (effective 6 months after date of communication by Depositary except for those Parties notifying non-acceptance)
Protocol to the UNFCCC
  • Can provide supplementary or complementary obligations to the UNFCCC
  • Can be used to establish a ratifiable and legally enforceable compliance and liability regime
  • In some cases, entry into force provisions could allow for immediate application-provisional application ??
  • In most cases it wont have immediate effect
  • It might not even enter into force if requisite number of accepting or ratifying Parties is not met

 

* In 2006, the Court of Appeals for the District of Colombia Circuit decided that the ‘decisions’ of the MOP to the Montreal Protocol are not law within the meaning of the Clean Air Act and are not enforceable in federal court.  Moreover, without 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