Legal Form & Function in the international Climate Change Regime

1. Legal Form & Function in the international Climate Change Regime LavanyaRajamani, Professor - International Law Centre for Policy Research, New Delhi

2. Overview • Legal Form Options • Legally Binding Instruments (LBIs) • Characteristic Features • LBIs in the Climate Regime • Negotiating & Interpreting LBIs • Compliance & Enforcement of LBIs • COP Decisions: Status & Significance • Unilateral Declarations: Promise & Limits • Copenhagen Accord: Status & Significance • Stepping Back • Form Follows Function • Conclusion

3. Legal Form Options Kyoto Protocol Track FCCC Track Kyoto Protocol repealed / Parties withdraw OR Kyoto Protocol continues at least until the end of the compliance cycle (possibility that CDM, Article 10 and 11 continue to operate) • Annex B Amendments (or interim CMP decision under article13(4) to extend the first commitment period) • CMP Decisions to fine tune and further implement the Kyoto Protocol • Provisional application • Linked entry into force • A new legally binding instrument under the Framework Convention on Climate Change (FCCC), 1992 to replace and build on the Kyoto Protocol • A new legally binding instrument under the Framework Convention on Climate Change (FCCC), 1992 to complement the Kyoto Protocol • A set of Conference of Parties (COP) decisions to further implement the FCCC • by themselves • in addition to a new legally binding instrument • possibly endorsed through Unilateral Declarations • Provisional application • Linked entry into force

4. Legally Binding Instruments (LBIs) Characteristic Features • LBIs in international law render state conduct • mandatory, and • judicially enforceable • LBIs signal the “highest expression of political will” • LBIs crystallize international commitments • into domestic legislative action • co-opt domestic enforcement mechanisms • and thereby generate • predictability and certainty in implementation • accountability at the domestic and international level

5. LBIs in the Climate RegimeFCCC & Kyoto Protocol • Create substantive obligations for Parties through a finely balanced set of soft and hard obligations (between which there is dynamic interplay) • Contain a range of • absolute norms (that apply to all Parties) • differential norms (that differentiate between Parties) • contextual norms (that introduce flexibility and discretion) • Their breach, can, in theory, lead to legal consequences • in the case of the Kyoto Protocol through its compliance system and general international law • in the case of the FCCC through general international law

6. Interpreting & Negotiating LBIs • Content matters: The rigour will depend on the content of the obligations • Precision matters: The more precise the standard the more effectively it can function within the context of a legally binding instrument • Location matters: Preambular references add “colour and texture” to an agreement but do not have operational value • Language matters: Contextual and discretionary language, such as - “as appropriate,” as far as practicable” can create considerable flexibility even within a legally binding instrument

7. Compliance & Enforcement of LBIs • Compliance and enforcement of a legally binding instrument rests on a range of factors including • the normative content, and • precision of its provisions • Example: Article 4(5) FCCC - commitments of industrial countries relating to financial resources peppered with phrases such as “as appropriate,” and “all practicable steps.” • Even though the FCCC is a legally binding instrument such language makes it difficult to • set standards • find compliance or non-compliance • enforce the instrument

8. COP Decisions: Status • COP decisions are considered as a “subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions.” They are relevant factors in interpreting the treaty • Their legal status depends on • the enabling clause [eg: FCCC article 7(2) and Kyoto article 13(4)] • the content of the decisions • Parties’ behaviour and legal expectations • From a formal legal perspective COP decisions are • not, absent explicit authorisation, legally binding • not capable of creating substantive new obligations for Parties

9. COP Decisions: Significance • COP decisions do, however, have considerable operational significance • COP decisions have expanded the normative core of the regime by • fleshing out treaty obligations • reviewing the adequacy of existing obligations • launching negotiations to adopt further obligations • COP/CMP decisions have also put in place the rules of the game and created an elaborate institutional architecture inter alia to supervise compliance with obligations

10. Unilateral Declarations: Promise • There are suggestions that COP decisions could be rendered legally binding through Unilateral Declarations by states • Unilateral Declarations can create binding legal obligations (Nuclear Tests Case, ICJ) if the undertaking : • is given publicly, and • with a clear intent to be bound • The attribution of intention to a State’s unilateral statements however: • “should be subject to strict conditions” and, • “the fulfilment of the most stringent criteria”

11. Unilateral Declarations: Limits • Difficulties in ascribing “intent to be bound” to Unilateral Declarations in particular because targets/actions are likely to be conditional • Difficulties in extending Unilateral Declarations beyond mitigation targets/actions • Difficulties in satisfying concerns about “legal symmetry” • US wants “legal symmetry” with BASIC • Kyoto Annex B Parties want “legal symmetry” with the US in • Form - so may also choose unilateral declarations, and • Substance - so may require US to accept not just comparable targets but also comparable framework for actions/targets and rules of the game • Difficulties, if several unilateral declarations, in • interpreting each conditional unilateral declaration, and • deciphering the “global regime” if patched together from a set of conditional unilateral declarations, some of which may be expressed in a form that suggests it is legally binding, others not - no multilateral anchor or framework

12. The Copenhagen AccordStatus & Significance • The Copenhagen Accord is characterized as a “principled consensus” or “political understanding” • It has “no formal legal status” in the FCCC process. But, • 138 countries (86.7% of GHG emissions) have associated with it, some of them have inscribed commitments/actions in its Appendices • 8 countries have rejected it (2.09% of GHG emissions) • textual compromises and trade-offs in it (eg: “international consultation and analysis”) are beginning to find their way into COP decisions and any eventual LBI • It generates principled expectations of those countries that negotiated it, as well as those that have subsequently associated with it • It could, arguably, be politically binding, in that its breach could lead to political consequences, however most pledges are conditional and some are expressly voluntary

13. Stepping Back • What function must the international legal regime play in the multi-level climate governance architecture? • Restricted to accountability/transparency/MRV or a more comprehensive regime? • A bottom up flexible approach or a top-down prescriptive approach? • What does each country seek for itself from the international legal regime? • Long term goal, mid-term ambition, and path to reach it • Commitments – in terms of nature, form and stringency – for itself and others • Differential treatment • Acceptable level of symmetry in form and substance • Acceptable level of differentiation between and within categories • Flexibility - areas of regulation (or countries/groups for whom) flexibility is appropriate, and others for which/whom absolute norms are appropriate

14. Form follows Function • If seeking a legally binding instrument, as many developing countries are, first need to determine the purpose and therefore scope of such an instrument • Elements that require the creation of substantive new obligations and therefore can only be achieved through a legally binding instrument • Annex I targets? • Non Annex I actions? • Support for mitigation and adaptation? • Elements that can be achieved through COP decisions • MRV/Transparency? • Accountability? • Institutional architecture/governance? • Choice of instruments, and mix of hard and soft obligations, within these instruments will depend on answers to these broader questions

15. Conclusion • Although there may be bright lines between different types of instruments in terms of formal legal status, the lines are blurred in terms of operational significance, impact and effectiveness • A well designed climate regime will contain a set of complementary instruments and a dynamic mix of hard and soft obligations • Choices between instruments and the character and mix of obligations will hinge on national goals and strategies in the first instance, and intergovernmental negotiations in the next