Intended Nationally Determined Contributions (INDCs) are fundamental to the new climate change agreement to be negotiated by governments in Paris in December 2015. IlIari Aragon, Programme and Outreach Officer of the Legal Response Initiative argues that several key aspects around the role of INDCs need to be clarified if the Paris Summit is to deliver an agreement that can truly protect people and the planet.

Integrating INDCs into the new agreement

For many, it remains unclear how and to what extent INDCs will be turned into national commitments, contributions or actions as part of a new global deal on climate change to be adopted in Paris. INDCs are public statements made by countries that set out their intended actions for a climate regime post-2020. INDCs should represent a progress beyond current mitigation efforts, and be sufficient to limit global warming to below 2°C relative to pre-industrial levels, which, according to scientists, is the cap after which risks associated with climate change are likely to become dangerously acute.

As agreed at the 20th Conference of the Parties to the UNFCCC (COP 20) in Lima last year, INDCs will not be mitigation-specific but can also include undertakings in adaptation planning. Ethiopia for example, despite being a country with low greenhouse gas emissions, is the first Least Developed Country to submit its INDC. This covers greenhouse mitigating action as well as adaptation measures, ranging from measures to cope with the spread of diseases to strengthening natural resource management.

Although the scope of INDCs is now generally understood (they can cover adaptation as well as mitigation action), many wonder about the practicalities and implications for integrating INDCS into the new agreement, and how this will impact on their legal nature. This aspect was, in fact, the focus of many questions brought to the LRI’s advisory service at the latest UNFCCC meeting in June. Few possibilities for integrating, or ‘housing’, contributions in the text are yet being considered.

One option would be to inscribe INDCs into an attachment to the agreement designated to be an ‘integral part of the agreement’. This attachment could take the form of a single annex for example; bringing together all INDCs or several annexes differentiating INDCs by type or category of Party (see LRI’s advice through LRI’s database). It could also take the form of an Appendix or National Schedules. But considering INDCs as an ‘integral part of the agreement’, and therefore part of what states would need to formally accept or ratify, might raise practical complications. As noted by Bodansky 2015 (C2ES, Key legal issues in the 2015 climate negotiations, June 2015), Parties might need to formally accept or ratify other states’ INDCs to become a Party to the agreement. This raises the question of what might happen if a Party feels reluctant to endorse other states’ INDCs. Furthermore, annexes to the agreement are normally adopted together – procedurally, they would require consensus to be adopted by the COP. However, not all Parties may be in a position to finalise their INDCs by December. In that scenario, it would be unclear what the implications might be for those not submitting INDCs on time.

Proposals for integrating INDCs ‘outside’ the core agreement (miscellanies document, UNFCCC website, depositary) are also being considered. While the approach outlined above offers a higher standard of transparency, this ‘outside’ approach might afford the greatest flexibility. INDCs could be incorporated after the agreement is adopted. They would not need formal adoption or ratification, and could be updated without having to amend the agreement. At present, INDCs are listed and published by the secretariat and this practice might continue after Paris (see LRI’s advice through LRI’s database).

What matters is what INDCs commit States to do, not their location in the agreement

The legal character of INDCs will be defined by the provision in the core agreement and not by where they are located. This is linked to the issue of the language of the provision in the agreement addressing INDCs (‘anchoring provision’) and the type of obligations created as result. More specifically, this provision may create procedural obligations – for instance, requiring Parties to prepare and communicate INDCs, provide information, maintain INDCs and accept international review; or go beyond that, and create substantive obligations. This might involve requiring Parties ‘to achieve their INDCs’ or commit states to ‘adopt measures to implement their INDCs’, including legislation and policy to deliver on these commitments. In sum, a key aspect is the specific obligation that the agreement provides in respect of INDCs. Will the agreement contain an obligation to implement INDCs or just to put them forward?

Even if INDCs are housed outside the core agreement, substantive obligations can still be created, making the content of these contributions legally binding. For instance, if the provision relating to INDCs contains language that is clear and precise, mandating states to deploy measures ‘to achieve their INDCs’, then, it may be possible to argue a breach of treaty obligations in the case that these contributions are not fulfilled. Conversely, INDCs could be an ‘integral part of the agreement’ (inside option) yet not create any substantive obligation – that is, using soft language that does not really lead to any obligation as a result. A provision could merely commit states to ‘take note of their contributions’ or ‘make their best endeavours to meet their commitments’, for example. Overall, the objective should be to bring INDCs into a legal instrument with language that delivers certainty about the coherence of the regime over the longer term.

Issues of language and legal character are key aspects of INDCs that require elucidation. However other aspects are also uncertain. While these contributions are submitted publicly and information about them is available, there is little clarity about how these will be analysed and considered with respect to the 2°C objective. More specifically, it is not clear whether they are fair and ambitious enough or whether states must collectively do more. A formal peer-review process was not agreed in Lima but the role of the UNFCCC Secretariat might help to bridge this gap. The report by the UNFCCC Secretariat due by 1st November 2015 on the ‘aggregated effect’ of all INDCs submitted by 1st October will outline what the contributions added together mean in terms of future temperature rise. . Ideally, this might enable potential adjustments before Paris COP21. However what is realistically possible is not clear given the short time available.

INDCs are foundational to the new agreement, and to the global good as a whole. Time is short, but Parties need to address these how to house and anchor INDCs in the new agreement, and how to assess and raise their ambition periodically, as soon as possible. Only by clarifying these matters ahead of the Paris climate summit will Parties ensure that COP21 delivers on its promise.

Visit http://legalresponseinitiative.org/legal-assistance/ to see all legal opinions produced so far by LRI in connection with the UNFCCC negotiations. Subscription to the LRI’s legal database is free of charge. LRI is supported by CDKN.