The legal form of the final Paris Climate agreement remains in contention. Legal form can be understood as the method, style or structure used in a legal instrument; distinct from its substantive scope.
The draft Paris negotiating texts has been developed by the The Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), a subsidiary body to the UNFCCC which was established in 2011. The ADP’s mandate is to “develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.” This leaves the form of the agreement wide open. The current draft text re-states these options on page 1, and “does not prejudge” any outcome in regards to legal form.
So what are the options?
Sandrine Maljean-Dubois, Thomas Spencer and Matthieu Wemaere, writing for the Carbon and Climate Law Review, have comprehensively discussed the legal form of a potential Paris agreement. They outline the options as follows:
- “Protocol”: At international law, a treaty that supplements or adds to a pre-existing treaty is often called a Protocol. Article 17 of the UNFCCC allows for the adoption of protocols. A protocol to the UNFCCC will be a legally binding agreement for all ratifying parties, per Article 26 of the Vienna Convention on the Law of Treaties. A protocol will generally contain ‘hard’ law mechanisms, meaning its commitments are prescriptive and enforceable. Many nations will need to pass domestic legislation in order to integrate the protocol into their law (these are known dualist legal systems; monist systems integrate their international obligations automatically). The most well-known previous UN Climate agreement, the Kyoto Protocol, adopted this approach. It contained binding legal mechanisms for emission reductions in its main articles, and specific national targets in its annexes.
- “Another legal instrument or an agreed outcome with legal force”: This softer approach could include one of the following options
- A revision to the UNFCCC and/or its annexes: Article 15 of the UNFCCC allows for its amendment, which take legal effect once a three-fourths majority has ratified (but only for those ratifying parties).
- A Conference of Parties (COP) decision (or a set of COP decisions): Article 7 of the UNFCCC covers the COP. A COP decision requires consensus to be adopted. These have political weight, but are seen as ‘soft’ (guiding) law rather than binding and prescriptive.
- Hybrid approach: A third, hybrid option would involve the parties choosing to adopt a ‘core’ legal agreement (protocol) alongside a complementary decision (or set of decisions) or an amendment to the UNFCCC. For example, the core provisions may include a binding legal framework for sticking to national commitments, but the nationally determined commitments (NDCs) themselves might be contained in a more flexible document which allows for regular updating.
Each approach has its own strengths, weaknesses and degrees of ambiguity. The protocol option is perhaps the most ambitious: commitments enshrined in such a treaty will usually be durable, robust, and not easily reversed. However, this outcome requires Parties to have the political willpower to cede a degree of sovereignty and sign up in the first place. As such, a Protocol may take a long time to finalize. The Kyoto Protocol was negotiated in 1997 but was not ratified by enough parties to come into force until 2005, and some nations (such as the US) never ratified the Protocol while others (such as Canada) later pulled out.
In contrast, revisions to the UNFCCC may be easier and quicker to enact, and would still carry some formal legal weight However, as the UNFCCC has no compliance mechanisms, any obligations would be almost impossible to enforce. Furthermore, while it is encouraging that amendments could be made without full consensus (a ¾ majority is required), the dissenting parties would remain bound by the previous version of the UNFCCC, creating some confusion and overlap.
Similarly, COP decisions have the advantage of being applicable immediately and comparatively flexible. That being said, COP decisions have proven to be relatively weak in the past, and few decisions with any “teeth” have been concluded since the Kyoto protocol. It is doubtful that a COP decision alone could effect meaningful action from the state parties.
The hybrid option is the most attractive. It contains the strengths of all the other options, contaning a legally enforceable “core” and a more flexible second-tier. It leaves open the question of how the secondary decisions are to be “anchored” to the core agreement and can be adapted to fit the relevant context. Whether and to what extent national obligations would be legally enforceable would depend on the provisions of the core text, but there is a very real possibility that the core agreement will require states to adhere to the national targets they themselves set.
The problems with each regime essentially boil down to the inescapable reality that the international legal regime is built on consensual participation. If nations do not want to be bound, they will not be.
Another reality that cannot be forgotten is that regardless of the legal form of the agreement, it will only be as strong as its surrounding compliance measures. A binding international norm is not necessarily enforceable if the means are not there to enforce it and it can only become enforceable if it is backed by effective procedural mechanisms that incentivise parties to act in the prescribed manner. These incentives can be reputational or material, implicit or explicit, and can come from all angles – transparency, facilitation, compliance and enforcement. Which compliance mechanisms are agreed upon in section I and K of the final Paris text will have a considerable impact on the resulting enforceability, and legal form, of the outcome at Paris.
So which option is the likely outcome?
Recent negotiations have indicated that the Parties will opt for a hybrid structure, that is, a core agreement with associated COP decision.
Last July, the Co-Chairs of the ADP provided a new version of the draft text which was entitled “A Non-Paper Illustrating Possible Elements of the Paris Package.” The tool divides the content of the draft Paris text into three parts:
- a draft Agreement (“e.g. overarching commitments, durable provisions and standard provisions for an agreement”);
- a draft COP decision (“e.g. details of implementation, provisions likely to change over time, provisions related to pre-2020 actions and interim arrangements”); and,
- a third section containing provisions which require further clarity or placement.
This document remains unofficial as it was not drafted by the parties; instead it reflects the co-chairs “suggestions on the way forward” while acknowledging that “the initial distribution does not establish a hierarchy among [the provisions].” That said, Parties seems to have generally taken the suggestions on board. Deconstructing Paris correspondent Saskia McCulloch reported from the ADP 2.10 negotiations last week:
[T]he parties do want to succeed in creating a ‘Paris Package’ (legal agreement and complimentary decisions passed by the COP), and the process remains optimistic… Parties accepted this document rather well, and readily used and build upon it throughout the session.
Thus, it appears there is a solid foundation going into the December negotiations and we can be hopeful that a hybrid agreement will be achieved, one that combines flexible national targets with binding international enforcement. Even so, many of the critical details remain up in the air, such as how the NDCs are to anchored, and how compliance and transparency mechanisms are to be conducted or administered. Much will depend on what can be agreed between the parties prior to, and at Paris, as well as during the five-year interim period between the finalisation of the agreement and its operation. There is stll a long road ahead to a legally enforceable climate treaty, but the coming months will prove critical in the success or failure of the so-called “paris package.”
Simon Hillier | Image by Jean-François Schmitz