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Love Locks on a bridge in Paris
© Gonzales Photo/Michael Hornbogen/Corbis
13 November 2015 16:29

Explainer: The legal form of the Paris climate agreement

Simon Evans


Simon Evans

13.11.2015 | 4:29pm
COP21 ParisExplainer: The legal form of the Paris climate agreement

The aim of the UN summit in Paris is to seal a universal, international agreement on avoiding dangerous climate change, that has legal force.

In broad terms, this means the Paris agreement is almost certain to include a legally binding treaty at its core, despite headlines to the contrary. Yet the treaty’s precise legal form remains unclear.

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What will the treaty bind countries to do? Will it even be called a treaty? Carbon Brief has read the lengthy legal texts and spoken to the experts on the legal form of the Paris climate agreement — and whether the legal form matters.

Basis for action

UN negotiations have been building towards Paris since the Durban Platform in 2011 asked for “a protocol, another legal instrument or an agreed outcome with legal force under the Convention [the UN Framework Convention on Climate Change, UNFCCC] applicable to all Parties”.

The Durban Platform appears to present three different options as a basis for agreement in Paris. Much ink has been spilt attempting to tease out the legal basis and implications of these options.

If you want the gory details, a comprehensive discussion is available in a clearly-written academic article, written last year by Sandrine Maljean-Dubois and colleagues. Another useful commentary is co-authored by Selam Kidane Abebe, legal advisor to the Africa Group of negotiators.

For practical purposes, however, all of the experts Carbon Brief heard from seem to agree. “Only a treaty will satisfy the Durban mandate,” said Sandra de Wet, chief state law advisor to South Africa’s Department for International Relations and Cooperation, at an event in Bonn.

Yet according to a Financial Times interview, US secretary of state John Kerry “insisted the agreement was ‘definitively not going to be a treaty'”. The interview has sparked a series of responses, articles and questions. What’s going on?

The answer comes down to the definition of a treaty and the US Senate’s likely refusal to ratify any Paris agreement. “The term ‘treaty’ has a different meaning within the US than internationally,” Dr Franz Perrez, Switzerland’s chief climate negotiator, tells Carbon Brief.

Speaking in June, Perrez said:

If you want to stay within the mandate of the Durban Platform, then it has to be a legally binding treaty according to the Vienna Convention. That’s just a legal perspective, but what does that mean? The next step is sometimes political, emotional [or] public relation perspectives…For example, the name. Many colleagues care so much about the name. From a public relations perspective, [it] might be important. For a policy perspective that might also be important. But from a legal perspective you can call it an accord, a convention, agreement, protocol, it doesn’t matter.

Don’t mention the ‘t’ word

Kerry’s comments, then, largely reflect US political and public relations perspectives, rather than a wider disagreement about the legal form of the Paris agreement. An EU source tells Carbon Brief:

Under international law, a treaty is any binding agreement between states – regardless of its title.  Under US constitutional law, the term ‘treaty’ describes an international agreement that needs to go the Senate for advice and consent.  As I understand it, Kerry is essentially sending the message to Congress that this won’t be a treaty in the US sense of the word.

The EU source stressed, however, that Paris “will be an international, legally-binding agreement”. Privately, US sources agree that Paris will agree a “legal instrument”. In a moment we will explore in more detail how the US can sign up without Senate approval, and how states will be bound.

For now, it’s just worth reiterating the breadth of support for an international, legally-binding agreement, which will technically be a treaty — even though it will not be given that name.

Speaking in Bonn during climate talks in June, Professor Sebastian Oberthür, researcher at the Institute of European Studies of Free University Brussels, told Carbon Brief that “99% of the people around here assume it will be a legal agreement under international law”.

This view is backed by a review of the key legal issues for Paris from US thinktank the Center for Climate and Energy Solutions (C2ES). It is echoed by the Towards 2015 vision for Paris, agreed by more than 20 senior officials from the US, China, Africa, Latin America, Europe and Asia.

A legally-binding deal also has the backing of key ministers, assembled by France and Peru in Paris in July. A summary of the meeting seen by Carbon Brief says:

The Paris agreement should consist of at least a core legally-binding agreement…a number of COP [Conference of the Parties] decisions…and a more detailed work plan on operational arrangements to be further developed after [Paris].

The COP decisions will include guidance on implementing the core legal deal, along with technical details, such as methodologies for reporting, accounting and so on. There will also be a COP decision on climate action before 2020, when the Paris agreement is set to enter force.

Why legal form matters

Before we look more closely at what legally binding means, it’s worth asking why it matters.

In the build up to the Copenhagen conference in 2009, there was wide expectation that leaders were set to sign a legally-binding treaty to “save the world” from global warming. Copenhagen’s failure to get that deal is one reason why it is often seen as a failure.

The status of the Paris agreement as legally-binding, or not, is already hotly contested as competing sides attempt to frame the deal.

In June, Jacob Werksman, principal adviser to the European Commission’s Directorate General for Climate Action, said the legally binding character of a treaty matters, because it represents the highest form of political will through which governments can express their intent to act.

It also matters because it is more likely to create the international institutions and procedures to give confidence that countries will deliver their commitments, he said, and is more durable in the face of changes in government — even though countries would always have the option to opt out.

Jennifer Morgan, global director of the World Resources Institute (WRI) climate programme, tells Carbon Brief:

I think it does matter if you get an international legally-binding agreement. It’s a recognition by sovereign nations that they will work together on solving a problem.

What legally-binding means

All treaties contain a mixture of binding and non-binding elements. Oberthür tells Carbon Brief: “It’s always confusing because the binding treaty could have nothing binding in it.” In July, he said:

The ideal legal obligation has a ‘shall’ in there with some sort of precise action like ‘shall reduce emissions’, and a deadline – by the year so-and-so. But then there are lots of things that you can do to not quite get to this ideal world. Qualificatory language like ‘should’, ‘should strive to’, ‘as soon as practicable’, ‘as appropriate’. These are just some of the terms that make it less precise.

The strength of the Paris agreement remains in the balance, as many articles in the draft text contain options to use either “shall”, “should” or “other”. The prescriptiveness and precision of the terms of the agreement are sometimes referred to as their “bindingness“.

In an interview with Carbon Brief in June, UN climate chief Christiana Figueres said:

Bindingness…[is] a word that we’ve actually created, it doesn’t really exist. But the fact that we’re already using that word, already denotes that we’re understanding that there is a much more nuanced consideration of legal nature of the different components of the [Paris] text.

With varying degrees of bindingness, then, the Paris agreement is likely to ask countries to draw up plans on cutting emissions and adapting to climate impacts. It may also ask for climate finance commitments. Some or all of the provisions could be softened with aspirational language.

Another issue is that even legally binding obligations may not be legally enforceable, the Maljean-Dubois article explains. Mechanisms to ensure parties meet their treaty obligations range from transparency and assistance through to compliance and punitive enforcement.

Strong compliance mechanisms are rare in international law, however. Even where they exist — in the Kyoto Protocol, for instance — they may do little to prevent non-compliance in practice.

Binding targets?

The question of legal bindingess comes into sharp focus with the Intended Nationally Determined Contributions (INDCs) submitted in the run-up to Paris. These pledges are expected to form part of to the Paris agreement, most likely anchored to the legal text, but stored elsewhere.

Perrez said that it doesn’t matter where the pledges are stored: “They can be on the moon.” Their bindingess is determined by the language anchoring them to the agreement, he explains.

For instance, Article 4 of the UN climate convention agreed in 1992 says that “all parties…shall…formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change”.

The EU and others, including small island states, would like the Paris agreement to go further than this, binding countries to achieve the targets laid out in their climate pledges. In an August speech, Miguel Arias Cañete, EU climate commissioner said:

Nationally determined targets must be backed by multilaterally agreed rules on transparency and accountability. Without these there will be no trust or confidence that countries will deliver what they have committed to, nor will we be able to track collective progress towards our goals…The European Union also strongly favours targets that will be internationally legally binding.

In a similar vein, South Africa’s de Wet said in June:

For us, the heart of mitigation obligations is you have to commit to implement the measures that will bring you to honour your commitment.

However, a US source says the EU’s position is “unhelpful”. The source says:

We’re not going to be able to sign an internationally legally binding commitment to reduce emissions…It’s not that the entire agreement is legally binding or not…What aspects are legally binding?..I think there is a deal space around transparency and accountability provisions, but no legally binding mitigation.

The US prefers language that would require countries to have climate plans, to report on progress and to update pledges on a regular basis under a “ratchet” mechanism. It also wants binding rules on the structure and content of the contributions. These rules are currently non-binding.

The US language would amount to an obligation to do certain things — an obligation of conduct or procedure — without any requirement to achieve particular results. Oberthür tells Carbon Brief, however, that “specific results have rarely been achieved by obligations of conduct only”.

Farhana Yamin, a legal expert and veteran of the UN climate process, tells Carbon Brief the word “implement” is “really problematic” for the US and China, though most countries think it is needed. Morgan says the US should find a way to overcome domestic political constraints on this point.

As esoteric as it might sound, the presence of the word “implement” is seen by some as a key test of the agreement’s strength. Yamin says Carbon Brief that dropping “shall…implement” would be a backwards step from the UN climate convention, where it applies to all parties.

Whether or not the Paris agreement requires countries to implement their NDCs, it is domestic policies and politics that will ultimately drive them to live up to their climate pledges, Morgan says.

Applicable to all

For some, these legal compromises will leave the Paris deal looking weak. Yet excluding those unwilling to accept a stronger agreement carries risks, too.

Speaking at climate talks in Bonn in June, Professor Daniel Bodansky of Arizona State University’s Sandra Day O’Connor College of Law said:

The issue, ultimately, is how can the agreement be most effective in reducing emissions…[That’s] a function of how ambitious the agreement is, how many and which countries participate and a function of compliance…If there’s greater compliance at the cost of lower participation or lower ambition then we might not have gained anything, so I think it’s a trade off.

It is hard to see a credible deal from Paris emerging without US support. The US Senate would not ratify a treaty, but the US can still sign up to Paris under an “executive agreement” with the sole authority of the president. In terms of international law, this is equivalent to US ratification.

George Washington signed the first such agreement in 1789, and thousands have been signed since, including several international environmental treaties.

C2ES says Obama would be on “relatively firm legal ground” if he signs a legally-binding Paris deal without Congressional approval. That’s as long as the agreement could be implemented under, and was consistent with, his existing legislative authority, such as the Clean Air Act.

The scope of Obama’s powers to sign an international agreement is unclear, however, since it derives from legal precedent rather than written statute. That’s why there is argument around whether the US can accept legally-binding targets, or an obligation to implement its pledge.

Why legal form doesn’t matter

It’s easy to get lost in the details of the legal form of the Paris agreement. However, it’s important to keep the ultimate aim of the negotiations in sight, which is to avoid dangerous climate change.

Even the EU — one of the most vocal supporters of a strong, legally-binding agreement — acknowledges that the legal character of the deal is not everything.

In his August speech, EU climate commissioner Arias Cañete said:

Perhaps most importantly, Paris needs to send a credible signal to the world that governments are serious about fighting climate change.

Speaking to journalists at the end of October, UN climate chief Christiana Figueres said:

History shows that international legally binding compliance mechanisms [like under the Kyoto Protocol] are not necessarily a guarantee of compliance…I would warn us against simplistic thinking that internationally legally binding means a guarantee.

The Paris framework, she argues, could “paradoxically” be more effective, with nationally-determined contributions more likely to be implemented than top-down targets.

Yamin says:

In a way I’ve let go of my puritan ideals as a lawyer as to what a good agreement means…Are public perceptions around the inevitability of climate action more important than the legal form of the deal? Yes.

Main image: Love locks on a bridge in Paris. © Gonzales Photo/Michael Hornbogen/Corbis.
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