In attempting to bind the USA to emissions reduction targets, does any agreed outcome have to be contained in just one specific type of instrument (e.g. decision or ratifiable text) or can we think of different instruments for various parts of the agreed outcome? E.g. COP decisions for BAP paragraphs coupled with a COP decision either launching a negotiating mandate for or adopting a ratifiable instrument creating an enhanced/stronger compliance regime under the UNFCCC.
What are the considerations that we need to take into account in considering various instruments? E.g political context, efficiency, effectiveness, entry into force, legal effect, legal enforceability?
An enforceable commitment by USA to emissions reduction targets would in all probability have to be by way of a ratifiable treaty text, whether a Protocol or a Treaty amendment, as opposed to a COP decision. However, in the absence of a new Protocol or Treaty amendment at Copenhagen, a COP decision can provide the necessary procedural steps that might lead to a future commitment.
A COP decision can also create mechanisms that implement UNFCCC provisions that expressly authorise COP action. Such provisions include Articles 11 and 12 on Financial Mechanisms and Communication of Information related to Implementation respectively. However, they do not authorise action in relation to binding emissions reduction targets. There is considerable doubt as to whether Article 11 allows COP to bind a non consenting party to make any financial commitments, although COP could make decisions on mobilising resources generally.
The commitments to reduce emissions are contained in Article 4.2 UNFCCC, including
“adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs…”
This Articles contains several express powers for COP decisions under Article 4.2, including:
*Review the information on national measures (4.2 b)
*The COP shall consider and agree on methodologies for these calculations [of emissions by sources and removals by sinks] at its first session and review them regularly thereafter” (4.2 c)
*Review adequacy of national measures and take appropriate action, which may include the adoption of amendments to those commitments (4.2 d)
COP decisions could also be used to integrate the regimes under Kyoto Protocol and the UNFCCC, for example in relation to measurement. This would not of itself produce a binding commitment to reduce emissions, but in procedural terms would enable the Parties to maintain the Kyoto Protocol and to adopt a new Protocol or UNFCCC amendment that would be binding on USA if it ratifies it, and would enable the two regimes to harmonise many of their rules and processes.
For further detail of the options for combining different instruments see our separate advice which contains a Table of alternative legal outcomes.
Multiple considerations need to be taken into account when deciding which type of instrument to use to bind the parties. The political and policy considerations are not within the scope of this note, but for information regarding key legal considerations, please refer to our separate advice with Table of alternative legal outcomes.