Legal low-down on US-friendly climate deal: Update
Countries will have to report on progress and update their intended nationally determined contribution (INDC) in line with an agreed cycle, but they will not be bound to meet their pledge in international law.
This is the situation most likely to emerge from a range of possible legal formats for the deal, all with different degrees of enforceability, given the US administration's reluctance to ratify a legally binding climate treaty.
US foreign secretary John Kerry stirred controversy earlier this month when he said that the new deal will be no be legally binding and will not contain legally binding greenhouse gas (GHG) emissions reduction targets. But widespread criticism of his comments was somewhat surprising — and perhaps slightly misplaced — for two reasons.
Firstly, those following closely UN climate negotiations have long accepted that a Republican-controlled US would block an internationally binding climate treaty. To avoid the Paris deal suffering the same fate as the Kyoto protocol, which the US signed but never ratified, the legal format of the Paris deal must not require state endorsement. Kerry's comments may simply reflect the political reality of the power balance in the US, rather his personal convictions.
And those who accused Kerry of undermining efforts to forge a legally binding deal overlook the legal complexities of the new agreement, which will fall be somewhere between binding and non-binding, rather than being one or the other.
The Paris deal will be a package of political and legal outcomes, containing a range of instruments with varying degrees of legal force. It will consist of a core agreement, countries INDCs, related decisions of the UN Conference of the Parties (Cop), and one or more political declarations. Binding and more durable elements will generally be placed in the core agreement, while more detailed elements that evolve over time will be outlined in Cop decisions. Alongside these, political declarations will capture broad vision and aspirational goals.
"It is necessary to assess the instrument as a whole in determining its legal nature on the spectrum between hard and soft law, binding and non-binding,"according to France's national centre for scientific research (CNRS).
With all options still on the table, it is worth considering the different legal forms that the Paris deal could take, the benefits and disadvantage of each — and the likelihood of it winning US support.
But it is important to note that the agreement's strength or legal force will be determined not only by its legal form, but also by the "anchoring" of parties' commitments or INDCs in the core agreement; mechanisms for transparency, accountability and facilitation; and mechanisms for compliance.
And the precise language used and the prescriptiveness of its content will be decisive. Even a legally binding protocol can contain general provisions that are softly worded or formulated in ambiguous terms, so that they do not create legal rights and obligations.
The mandate agreed at the 2011 UN Framework Convention on Climate Change (UNFCCC) summit in Durban, South Africa, called for "a protocol, another legal instrument or an agreed outcome with legal force" under the UNFCCC applicable to all parties.
The Durban mandate was deliberately vague on the post-Kyoto deal's legal character to secure the broadest possible support among all UNFCCC parties. As a result, it has engendered the emerging bottom-up, voluntary, nationally appropriate, pledge-based policy architecture that is very different from the legally binding, economy-wide, quantified emissions-reduction obligations enshrined in the Kyoto protocol.
Legally the Durban mandate includes two main options: a "protocol" or "another legal instrument or an agreed outcome with legal force". A protocol would provide the greatest legal certainty — it would be a new, international treaty, legally binding under international law. Countries would enter the treaty as states, meaning their commitments will be enforceable and will survive changes in administration.
But a legally binding protocol needs state ratification and would probably be blocked by a Republican-controlled US Congress. And other countries may be concerned about the potential costs of stringent, enforceable commitments too. Consequently, a protocol risks securing less participation and being less ambitious than a non-binding instrument such as a Cop decision.
The option of "another legal instrument" does not mean much, in as far as the terms "instrument" and "legal" are vague and generic, the CNRS said. And it is difficult to distinguish between a "legal instrument" and an "agreed outcome with legal force", because a legal instrument is not always legally binding, it said.
Ultimately, there two options can reasonably be considered: either a revision of the 1992 UNFCCC and/or its annexes; or a Cop decision or a set of Cop decisions, the CNRS said.
But a legally binding UNFCCC amendment is highly unlikely to receive US backing because it would require ratification — by at least three-quarters of parties to enter into force.
A Cop decision requires consensus to be adopted and can be applied immediately once adopted. But a Cop decision's legal standing is ambiguous in international law, because although it can have political force, it is not automatically legally binding. So what it adds in terms of flexibility and expedience, it loses in terms of legal security, the CNRS said.
Most parties have stated their preference for the adoption of a legally binding instrument in the form of a protocol to the UNFCCC, which would be complemented by a series of Cop decisions, the CNRS said. "This seems the best option because it gives the opportunity to optimise between the pros and cons of each option," it said.
This core treaty would be complemented by a series of Cop decisions that would allow flexible and swift implementation, despite the lower level of legal security that they provide. "With this multi-layer structure of the Paris agreement, the core provisions can be robust and durable, while the content of the treaty and its ambition can be progressively upgraded over time," the CNRS said.
Five different INDC formats
If the Paris accord takes the form of a new protocol to the UNFCCC, there are five legal options for the inscription of INDCs, all of which would have different consequences in terms of timing, legal force, transparency, accountability and non-compliance.
The first option would be for INDCs to be inscribed in one or several annexes of the protocol, which would give them the same legal force as a legally binding treaty. This option has the added advantage of providing a robust legal basis to ensure transparency, accountability and compliance.
But it also has the distinct disadvantage that, once the treaty is adopted, the approach is rather rigid and not very flexible over time. In addition, the US is again unlikely to ratify such an internationally binding obligation.
As a second option, INDCs could be nationally determined and inscribed into national schedules, which could then be integrated into the protocol so that they form an integral part to it. This option would offer more flexibility, while providing the same binding legal force to INDCs as if they were included in an annex.
National schedules could be valid for one cycle of collective action, in which case parties would have to decide if and under what conditions states could modify their contributions. A "no back-sliding" principle can be introduced to prevent a downward revision of an INDC's ambition.
Under a third option, INDCs could also exist outside the protocol, for example in a registry kept by the secretariat. But the protocol would legally oblige all parties to submit a national contribution and to implement it.
This option is favoured by the Independent Association of Latin America and the Caribbean Countries (Ailac), which submitted a similar approach in a proposal on the legal architecture and structure of the 2015 agreement to the UNFCCC in October 2014.
As with the option of national schedules, this would allow flexible timing for some adjustments post-Paris, as well as the simple updating of INDCs during each subsequent round of collective action. Ans it could create the legal basis for a more robust regime for transparency, accountability and facilitation.
But the US is unlikely to support an approach that places an international legal obligation on parties to implement their national contribution.
A fourth option would be for INDCs to be adopted by and inscribed in Cop decisions, which parties then apply in good faith as implementing measures of the international treaty they have signed. Under this option, a country has no legal obligation and cannot be held liable for non-compliance.
A last option would be for INDCs to be compiled in an "information" document and/or in a registry maintained by the UNFCCC. INDCs would have no legal force internationally, so implicit naming and shaming would be the only means to encourage implementation.
Not only is this option less robust legally, it also not very dynamic — a COP decision can be amended only by another COP decision, requiring consensus for INDCs to be reviewed or new ones adopted.
Key requisites
As a minimum, the core Paris agreement should contain a legal obligation to implement an INDC and update it every five years, in line with the agreed cycle of negotiations, the CNRS said. It should provide for a robust mechanism to enforce core procedural obligations relating to the submission and updating of INDCs and the reporting of progress against these pledges.
"This is a crucial element to operationalise a dynamic and durable agreement operating on regular predictable cycles of strengthened action. This is the political and legal signal of credibility that Paris must send," the CNRS said.
And INDCs' inherent diversity creates an even greater need for a robust mechanism to ensure transparency, accountability and facilitation. This should have "independent institutional capacity and a technical mandate to track progress, identify problems, and provide guidance for the implementation of INDCs and the preparation of INDCs for subsequent rounds," the CNRS said.
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