Finding the legal balance in the Paris agreement

balance

As I couldn’t find my lovely FYEG delegates at my arrival in Bonn for the conference, I decided spontaneously to go to a side event organized by CAN (Climate Action Network) called To be (legally binding) or not to be” Options for the structure and form of the Paris outcome. What a bad idea … ! It seems like the legal structure of the Paris agreement is an emerging question in the negotiations, but a hard one.

Ordinary decisions of the COP, UNFCCC highest decision-making body, have the legal force of recommendations – meaning in plain terms that there is no action taken if a Party does not comply with the decisions made. Sometimes a decision enters into legal force and in most cases this means that it is legally binding; this is for example what happened to the Kyoto-Protocol. On the table below, the different legal options possible under the Convention are presented from the most binding possibility to the less binding:

Elements of bindingness Highly binding Less binding
Form of Agreement Treaty or Protocol COP decision with explicit legal authority from the treaty COP decision with implicit legal authority from the treaty COP decision with no apparent treaty authority Political Agreement
Effect and Specificity of Commitment “Shall” (without qualification) with sufficient detail “Shall” (with qualification) but with sufficient detail to determine when met “Shall” (with qualification) and little specificity “Should” “May”/none
Institutions for Transparency, Compliance, or Enforcement Robust MRV, Independent review, incentives for compliance and automatic consequences MRV with facilitation – i.e., independent body with powers to support implementation, financial assistance & capacity building MRV with international verification MRV without international verification No MRV or Compliance Review

Source: Vositha Wijenayake, Policy and Advocacy Coordinator CAN South Asia:“To be (legally binding) or not to be” Options for the structure and form of the Paris outcome, Ppt presentation, 1.06.15

Concerning the Paris agreement, the Parties are apparently pushing for a combined form. The outcome of COP21 in Paris could also be the agreement of a package, which may include any of the option mentioned above in conjunction with political declarations, annexes, information documents, and registries.

Up till now the discussion stayed understandable… But when it comes to point of including the INDCs in the agreement, there are two points of discussion:

  • Are the Parties going to adopt a top-down or a bottom-up approach in the Paris agreement? A top-down approach would mean to have a strong multilateral institution. The agreement would also include legally binding commitments for as many national governments as possible. To enhance effectiveness such a agreement would also apply monetary or trade sanctions in case countries do not fulfil their commitments. However, after the failure of Copenhagen it seems unlikely to reach a top-down agreement. Another option would be a bottom-up agreement. In this case, the agreement would include unilateral pledges of mitigation action and domestic mitigation policies, which could be linked among different countries. A third possibility is a hybrid approach made of top-down and bottom-up element. This could, for example, be a legally binding agreement with systems in case of non-compliance, with the INDCs anchored outside of the protocol.
  • Are the mitigations commitments obligations of result or obligation of conduct?1 Obligations of result are obligations to achieve a particular outcome, such as a national emissions target. In contrast, obligations of conduct are obligations to do particular things, such as adopting a policy or measure, providing financial assistance, or promoting technology transfer. The advantages for obligations of result are: the freedom in the choice of the means to achieve, the flexibility in the implementation , certainty of environmental outcome (if the Parties complied with) & a clear ex-post benchmark for the compliance assessment. However, there are some difficulties to ensure actual and timely policy changes. For example, countries with an “economy in transition” (EIT) are allowed to have a certain degree of flexibility in implementing their commitments. Several EITs like Russia have invoked this clause to choose a baseline earlier than 1990, that is, before the economic changes which led to big reductions in their emissions. This way, they didn’t have to pursue any ambitious emission reduction policy, but respected their obligation of results. Obligations of conduct can facilitate early compliance assessment on the way to the materialisation of any result. However, there is a danger of ineffective obligations of conduct aiming at achieving results without connecting to them. Their effectiveness depends on: the precision and level of prescriptiveness (for ex. requirement to implement binding domestic, legislation vs. obligation to ‘take implementing measures’) and their link to results. It seems then than both are complementary and needed!

As a conclusion, they are calling the Paris agreement a package, I would say a mishmash. I am not sure if it will contribute to ensure us a safe future, time will tell …

1 Prof. Dr. Sebastian Oberthür: “Towards a 2015 Paris Agreement: Obligations of Result, Obligations of Conduct – or Both?”, International Workshop on Legal Aspects of the Paris Climate Change Agreement, Brussels, 21 April 2015