OPINION: Options for the legal form of the climate agreement
With the climax of climate negotiations around the corner, CDKN shares an excerpt from a piece written by Illari Aragon of The Legal Response Initiative and Selam Kidane Abebe, legal advisor to the Africa Group of Negotiators on the legal form options and the potential outcomes.
So far, the negotiations have centered their attention on the content of the agreement, but the decision on its legal form remains to be resolved. Apart from setting out that the agreement could be ‘a protocol, another legal instrument or an agreed outcome with legal force under the Convention’ (Durban mandate) no further specification as to what is intended or covered by each of these options has been agreed. As Paris approaches, the legal form question needs to be addressed with urgency. Clarity about the contours and instruments compounding these three options is paramount; more so, as the outcome in Paris is likely to be a ‘package’, comprising not one, but a combination of instruments of different legal character.
Indeed, many Parties seem to be in favour of a ‘mix bag’ outcome’. This would be formed by a core agreement (possibly, a legally binding ‘protocol’) accompanied by COP decisions. Annexes to the core agreement (which would form an integral part of it) and, eventually, political declarations on some aspects, might also form part of this so-called ‘package’.
For many countries, a ‘protocol’ under article 17 of the UNFCCC, is indeed the preferred legal form for the agreement. As States would be required to manifest their consent to be bound (normally through ratification), this instrument signals the highest form of political will in which governments express their consent to act. Countries would buy into the agreement as States, meaning that commitments will survive eventual changes in administration. But despite the legal certainty provided by this legal form, this outcome might also pose risks and limitations: if countries are concerned about the costs of stringent and enforceable commitments, a protocol may fail to secure wide participation or incentivise the ambition required.
But even a legally binding protocol could contain only general provisions that do not create legal rights and obligations. Provisions can be softly worded or formulated in ambiguous terms. These can refer to general aspirations, commending Parties to ‘increase efforts’ without creating legal obligations as such. For the Paris agreement it is important to consider that legal form alone will not determine its strength or legal force. Its content, with precise, prescriptive language, specifying expected activities and outcomes from States, is crucial. Additionally, even if the content is prescriptive – the strength of compliance procedures, mechanisms, or even sanctions for addressing non-compliance, might influence the degree of enforceability by States.
The Paris package might also contain one or more political declarations. As COP decisions require consensus for adoption, a sub-set of Parties could arrive at political declarations on outstanding issues. These might be considered an appropriate vehicle to address issues not covered in the core agreement. But owing to the fact that political declarations are soft law instruments, with no formal legal standing to the Parties or the Secretariat, considerable uncertainty remains about their strength and actual effect.
As noted by Selam Kidane, in her paper, Options of the Legal Form of the 2015 Climate Agreement, the legal form could be left for political discussion as long as the content of the 2015 agreement enhances the implementation of the Convention. Parties need to examine the content of the ‘Paris Package’ as obligations from the agreement can be categorised in several ways. The agreement could for instance include obligations of efforts from Parties (designing policies and measures), obligation of result from Parties (targets on GHGs) or include procedural obligations (compliance and reporting).
The threat posed by climate change to human societies and the planet requires the ‘widest possible cooperation by all countries and their participation in an effective and appropriate international response’ (Decision 1/CP.17 preamble). The 2015 agreement should strive to maximise ambition while at the same time retaining flexibility to achieve the broadest possible participation. Choosing the right combination of instruments might be in fact be the key to accomplish an effective and enduring climate change regime. Let’s hope that countries raise to the challenge.
The Legal Response Initiative (LRI) supports developing nations at the climate change negotiations. LRI runs an advisory service in real time, produces briefing papers and implements training for country delegations. For more information visit: legalresponseinitiative.org
The Legal Response Initiative (LRI) is supported by CDKN.
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The views expressed here do not necessarily represent the views or the position of the Africa Group of Negotiators.