What legal form for the future international climate regime?

The future of global climate action hinges heavily the development of an effective, well-designed legal structure for the 2015 climate agreement at COP 20 in Peru, says Melissa Low.

Governments from around the world are expected to decide on a negotiating text that would form the basis of the 2015 Climate Agreement, in about four months’ time, at COP 20 in Lima, Peru.

The current legal architecture of global climate action is governed by the UN Framework Convention on Climate Change and its Kyoto Protocol, both of which include some binding and non-binding elements. Under these two treaties, only developed countries have legally binding commitments even though the science requires all countries to act.

A well designed agreement, with an appropriate legal form would command widespread adherence and trigger early action for a global low-carbon transition. If crafted correctly, this should trigger transformative change well ahead of its legal entry into force. A poorly designed agreement might do the opposite, locking in low ambition and be difficult to ratify. An acceptable legal form is important for the overall functioning of the agreement, including future cycles of contributions and commitments by countries and would also incentivize those that have not yet communicated a climate action goal to do so as a matter of highest priority.

A highly prescriptive, enforcement-oriented legal agreement is not a realistic outcome of the climate negotiations. The critical issues right now are which elements apply to all countries and the nature of countries’ emissions reduction targets; whether these targets would be binding at the international level. The final option chosen will depend on the objective and purpose of such an agreement or outcome, and whether or not it is politically acceptable to all parties.

The Durban Platform, a subsidiary body of the Conference of Parties (COP) set up in 2011, articulates the need for countries to develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.” This limits the choice of legal form for a new climate agreement to three options.

Table 1: Options for legal form of the future international climate regime

Under the UN Framework Convention on Climate Change and its Kyoto Protocol, only developed countries have legally binding commitments even though the science requires all countries to act.

Option 1, a protocol, is the most straightforward. A legally binding agreement all countries will need to sign, ratify and adhere to.

Option 2 is would read as “another legal instrument… under the Convention” and could refer to any legal instruments other than or in addition to protocols, such as amendments, annexes and amendments to annexes.

But annexes can be difficult to amend, as evidenced by the uphill struggle to bring the second commitment term of the Kyoto Protocol into force. Thus, this option could consider decisions by the Conference of the Parties, typically adopted at the end of each major negotiation round. Decisions would minimize the legal and political hurdles to an effective global climate regime and ensure that the more dynamic elements of an agreement such as emissions reduction targets can be updated when required. But decisions can be political in nature, particularly if more influential countries are able to steer the talks and dilute obligatory language (for example, ‘must’ or ‘shall’, versus ‘should’ or ‘aim’).

Option 3, “an agreed outcome with legal force… under the Convention”, is the least clear, given that the formulation itself uses language which does not appear in the Convention. Many scholars and negotiation trackers have noted that this came about as a result of a “huddle” in the final hours of the Durban conference. It was a compromise between the EU and India who disagreed on legally binding results, that was derived after thirty minutes, after which Parties reconvened to replace the phrase “legal outcome” with “agreed outcome with legal force”. 

The third option gives more room for maneuver in negotiating the new climate agreement, as it does not limit the result to one instrument. Rather, there could be a package – a multitude of instruments – including an anchor protocol with COP decisions.  The possibility has been contemplated that an “agreed outcome with legal force” could also be interpreted as legal instruments embodied in domestic, rather than international law.

Countries are beginning to find convergence on elements for a draft negotiating text to be finalized this December in Lima, Peru. Some are optimistic and feel that the 2015 outcome will be a package made up of a concise legally binding agreement supported by COP decisions and will include a national schedule for each country to fulfil their intended nationally determined contributions or pledges. Others are concerned with the mode of inscription of targets and the determination of the legal status of the contributions. Some countries have already made calls for legal experts’ involvement in the process, suggesting that this is something of utmost importance for countries who wish to put targets on the negotiating table.

Shaping the legal form of the 2015 agreement will not be an easy task, given the endless interpretations that can stem from the mandate given to the countries in the Durban mandate which itself contains language marked by ambiguity. However difficult the task, with only 500 days left to Paris, it has to be done. The key will be to balance certainty and flexibility in the legal form of the future international climate regime and to pave the way for broad participation and effective compliance.

Melissa Low is a research associate at the Energy Studies Institute at the National University of Singapore.

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