The Paris Climate Change Conference is especially significant for the global community, because an agreement is to be adopted to address one of the greatest challenges facing human kind related to climate change. Climate Change and its impacts are a reality now and immediate actions are needed to limit temperature rises to less than 2C, perhaps even 1.5C, above pre-industrial levels. Parties of UN Framework Convention on Climate Change (UNFCCC) have been struggling for last 23 years to structure an international climate governance regime. The upcoming Paris Conference is an avenue to adopt a new, legally binding agreement to establish a multilateral regulatory regime and to bring an end to the impasse of the current climate regime.
In response to growing concerns about climate change, the UNFCCC (the Convention) was adopted in 1992. The Kyoto Protocol (KP) was adopted five years later in 1997 at the third Conference of the Parties (COP 3), with legal commitments for mitigation and an agreement for a five-year commitment period from 2008 to 2012 to meet mitigation (or emission reductions) commitments. Negotiations for a second commitment period of the KP ended in 2012 with an agreement for an eight-year commitment period which is rife with political and legal challenges. Other notable milestones include the Bali Action Plan (BAP) adopted at COP 13 in 2007 which ended without any agreed outcomes, and in Copenhagen in 2009 the global community was shocked at the catastrophe of the political leaders.
The Bali Action Plan influenced the launch of a process at COP 17 to negotiate a new agreement to be adopted at COP 21 this year in Paris. At COP 17 held in 2011 in Durban, South Africa, the Parties of UNFCCC, agreed to adopt a new agreement in 2015 to be implemented from 2020. Thereafter, Parties started to negotiate under an Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), and in February 2015, the ADP formally adopted a negotiating text for the Paris agreement called the Geneva Text. Subsequent ADP sessions were dedicated to trying to turn this 90-page Geneva Text into a sizeable form, that of a legal instrument to be adopted by COP 21 in December, 2015. However, at the end of the last ADP session held in October this year, Parties made limited progress on the Geneva Text and now the 31 page draft text is largely incoherent with diverging options on all core issues.
Apart from the contents of the Agreement, a fundamental challenge remains related to the legal form of the new agreement. The Durban Mandate provides different options regarding the legal form of the new agreement including a “protocol, another legal instrument or an agreed outcome with legal force.” This still remains contentious and needs to be decided further in Paris. However, unlike Copenhagen, Parties of UNFCCC already adopted a negotiating text formally within the timeline required by Article 17 of the UNFCCC for the adoption of a Protocol to the Convention. So, the initial legal requirement for adopting a protocol is met, which suggests that the outlook for Paris is more favourable than what was for Copenhagen in 2009.
A Protocol is the best form of a multilateral legal agreement, and many Parties of UNFCCC including Least Developing Countries (LDCs) want the Paris Agreement to be a protocol under the UNFCCC adopted by the Conference of the Parties and applicable to all parties. Such outcome would secure the continuing implementation of the Convention under a rules-based regime. The form of the protocol of an agreement is clear enough, but other forms suggested in the Durban Mandate need further clarification. The 2015 agreement could also take the form of another legal instrument and COP can adopt such an instrument other than a protocol. However, it is not clear how and what form is required to adopt such an instrument. Moreover, 2015 agreement can be an international instrument adopted in the form of “agreed outcome with legal force” through COP decision.
A COP decision would not be an appropriate outcome of the Durban Mandate as it must be an instrument in the form of a treaty within the meaning of the Vienna Convention on the Law of Treaties (VCLT). In accordance with VCLT, “treaty” means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument, or in two or more related instruments and whatever its particular designation (VCLT, Art. 2). The binding force of such a treaty must be represented by the principle of “pacta sunt servanda,” meaning that “agreements must be kept”.
The treaties bind only those states that express their consent to be bound through ratification or accession. Therefore the clauses of a treaty related to ratification, entry into force and compliance mechanisms are important parameters for creating legal obligations of the Parties of a treaty. In terms of the contents of a legally binding treaty, it incorporates in general, the objectives, basic principles, and the substantive and procedural commitments that are binding for the ratifying states. What is crucial is to have legally-binding obligations and provisions for compliance and enforcement within an international agreement that must be ratified by countries. The negotiation text for Paris Agreement does not provide a clear indication of whether the Paris agreement would be a protocol to the UNFCCC or not, but still it contains key elements for adopting a legally binding treaty.
The current approach to the new climate regime is extremely bottom up, as parties are deciding their level of contribution on mitigation, adaptation, loss and damage and means of implementation. However, substantive commitment is needed to form the basis of a legally binding treaty instead of contribution. Commitments need to be differentiated based on common but differentiated responsibility and respective capacity with rigorous compliance mechanism within a treaty.
The Durban mandate and the contents of the negotiation text, in particular the “nationally determined contributions” submitted by Parties, indicates a range of possible outcomes in Paris. The Paris outcomes might be a package comprising of an Agreement, COP decision, supplementary instruments (such as information and/or miscellaneous documents, schedules etc), and one or more political declarations.
More than 150 countries in the current negotiations are calling for the Paris outcome to be a legally binding agreement in accordance with international law. However, political consensus is crucial to agree on the legal form of the agreement, prior to initiating further technical negotiation in Paris. Paris Climate Conference will start on November 30 with a high level segment in the presence of many head of states. It is expected that political leaders would provide necessary guidance to structure the negotiating text into the form of a legally binding treaty.
The Paris attacks that took place on November 14, just 16 days before the Paris Conference is a shock to the global community. However, it is expected that, the Conference will take place according to schedule. A successful Paris Climate Conference would provide not only a way to ensure climate justice, but also peace and security for humankind. The Paris climate conference is a seminal moment for the global community to come together to agree on a legally binding climate agreement and to express political will to implement such an agreement.
M. Hafijul Islam Khan and Sharaban T. Zaman, are environmental lawyers, working with International Centre for Climate Change and Development (ICCCAD) and Centre for Climate JusticeBangladesh (CCJB). Email Hafij at [email protected]
