The Durban negotiating mandate for the new climate deal to be reached by 2015 in Paris requires that the agreement be “under the convention” and that it have “legal force”. Many proposals are on the table on the legal form of the 2015 agreement, and negotiators seem no closer to resolving this critical issue. In this post, I try to offer some clarity on the options “Under the Convention” that could have “legal force”, in other words, on the options under the UNFCCC that would be consistent with the Durban negotiating mandate.

1. Under The Convention

Any agreement “under the Convention” would have to be implemented in accordance with the provisions of the UNFCCC, either as it stands or as amended. As it stands, the UNFCCC provides for amendments to the convention, adoption and amendments of annexes to the convention, and the adoption of protocols (which then have their own provisions for amendments to the protocol). Article 7 of the UNFCCC and Article 13 of the Kyoto Protocol also provide for the Conference of the Parties to make decisions for the effective implementation of the UNFCCC and the Kyoto Protocol respectively.

There are examples in other regimes where parties have adopted instruments that were not specifically provided for in the convention that established the regime. This raises the question whether there are options under the UNFCCC other than those specifically provided for in the regime.

The 1995 Fish Stock Agreement is an example of an agreement not specifically provided for under the 1982 Law of the Sea Convention. The agreement makes reference to the Law of the Sea Convention, but the agreement was not negotiated under the convention. In this case, the convention had not yet come into force, but the convention also did not specifically provide for the type of agreement entered into. Substantively, the agreement purports to be consistent with the convention, but fill some gaps in the convention with respect to straddling stocks. Commentators have generally concluded that the agreement actually goes beyond filling gaps, and that it in fact seeks to elaborate and arguably alter the substance of the convention with respect to straddling stocks.

There are also examples where side agreements were reached before an instrument came into force and before provisions allowing for amendments to a convention came into force. Examples of agreements entered into before the instruments they amend have come into force include the 1978 Protocol that amended MARPOL, and the 1995 Fish Stock Agreement previously discussed. While the status of the Fish Stock Agreement under the Law of the Sea Convention is somewhat unclear both in terms of substance and process, as the convention did not provide for this type of agreement, the 1978 MARPOL Protocol is clearly an amendment to the MARPOL convention, and in fact an amendment that made the entry into force of MARPOL possible.

MARPOL provided for the adoption of Protocols, however, the provisions of MARPOL providing for the adoption of Protocols only entered into force once enough Parties had ratified MARPOL to allow it to come into force. Parties were reluctant to ratify MARPOL as it was originally negotiated, and the 1978 amendments addressed the concerns that Parties had with the original MARPOL, enabling the entry into force of the amended MARPOL convention. In essence, Parties used a procedure for the adoption of a Protocol under MARPOL, even though it had not yet come into force, in order to bring MARPOL into force.

Both the Fish Stock Agreement and the MARPOL Protocol are unique circumstances that differ from the UNFCCC. Neither offers an obvious precedent for an agreement “under the UNFCCC” with “legal force”. A key difference in the case of the UNFCCC, of course, is that the UNFCCC has come into force. With it, all the mechanisms for amending the UNFCCC, for establishing annexes and protocols under the UNFCCC, and for amending existing annexes and protocols, are also in force.

In addition, decisions can be made by the COP under Article 7 regarding the effective implementation of the UNFCCC, and by the COP/MOP under Article 13 for the effective implementation of the Kyoto Protocol. In light of this, any agreement that does not follow the process set out in Articles 7, 15 to 17 of the UNFCCC or Articles 13, 20 to 22 of the Kyoto Protocol, would likely not be considered an agreement under the UNFCCC. An implementing agreement under the UNFCCC, other than a protocol or an annex, would most appropriately be negotiated under Article 7 of the UNFCCC, but any associated amendments to the UNFCCC or its annexes would still have to follow the process set out in the UNFCCC, as the COP is not given the power to amend the UNFCCC or its annexes.

In short, it is difficult to see any legitimate basis for an agreement “under the UNFCCC” that would not follow the process set out in Articles 7, 15 and 17 of the UNFCCC or 13, 20, and 22 of the Kyoto Protocol.

2. An Agreed Outcome With Legal Force

This leaves the question under what circumstances an agreement reached under the UNFCCC is “an agreed outcome with legal force”. Clearly, subject to the intention of the parties as expressed through the use of permissive or other non-mandatory language in the text of the agreement, an amendment to the UNFCCC, one of its annexes, or the Kyoto Protocol would have “legal force”. In addition, a new annex or a new protocol under the UNFCCC would also be an agreement with “legal force”. It is important to note in this regard, that other conventions have annexes that include substantive provisions, rather than just lists, as is currently the case for the UNFCCC. In short, a substantive agreement with legal force under the UNFCCC could be developed by way of an annex to the convention, by way of a protocol, or by way of amendments to existing provisions of the UNFCCC, its annexes or the Kyoto Protocol.

A more difficult question to answer is the legal status of an agreement by way of COP decisions. The general approach has been that a COP decision under the UNFCCC can only have legal force only if:

1. the COP decision clearly establishes the intent of the parties to create rules with legal force,
2. the COP decision sets out rules and procedures on how Parties are to meet their existing legal obligations under the UNFCCC or the Kyoto Protocol, and
3. the COP is mandated under the UNFCCC or the Kyoto Protocol to create these rules and procedures.

For example, aspects of the Marrakech Accords, which set out detailed rules for the functioning of the Kyoto Mechanisms, are generally regarded as having legal force. They are worded in mandatory language, they set out rules and procedures for Parties to the Kyoto Protocol to meet their legal obligations under the Kyoto Protocol, and the Kyoto Protocol provides for the establishment of these rules and procedures.

Rules in the Marrakech Accords with respect to the Kyoto compliance system are a bit more difficult to characterize, because Article 18 of the Kyoto Protocol specifies that binding consequences are to be agreed to by way of an amendment to the Kyoto Protocol. This has generally been interpreted to mean that the compliance process agreed to in Marrakech has legal force as a result of its adoption by the COP/MOP in Montreal, but that the consequences are not binding on Parties.

In order for an agreement reached by way of a COP decision to have “legal force”, it would have to be clearly linked to an existing obligation under the UNFCCC or the Kyoto Protocol. It is difficult to reach specific conclusions on whether a COP decision on the range of issues currently under negotiations, including issues such as mitigation, adaptation, finance, technology, loss and damage, capacity building, and long term visions, would have legal force. In each case, what would be required, would be a careful assessment of what obligations exist under the UNFCCC, and to what extent the agreement reached on each issue can be considered an elaboration on the effective implementation of the obligation that currently exists in the UNFCCC. Where there is not a sufficiently clear obligation in the UNFCCC, the COP decision would not be considered to have legal force, unless the COP decision is combined with an amendment to the UNFCCC that clearly sets out an obligation that is then implemented through the COP decision.

Conclusion

In short, a new protocol under the UNFCCC would clearly be consistent with the negotiating mandate to reach an agreement under the convention with legal force. Amendments to the UNFCCC and its annexes would also meet this requirement. Aspects of the agreement could also be in the form of an implementing agreement under Article 7 of the UNFCCC and Article 13 of the Kyoto Protocol, however, such an implementing agreement could not impose new obligations. It would have to be firmly rooted in existing obligations under the UNFCCC or the Kyoto Protocol. Otherwise, it would risk being outside the power of the COP under Article 7 of the UNFCCC and Article 13 of the Kyoto Protocol, and would not meet the “legal force” requirement of the negotiating mandate.

To download my publications on the UN Climate Regime, see http://ssrn.com/author=715387.  

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute