Jacob Werksman, director of WRI’s Institutions and Governance Program, answers questions on some of the most important legal issues surrounding the Cancun Agreements.
Q: The Cancun Agreements have helped restore confidence in the UNFCCC and a multilateral approach to addressing climate change. But on the crucial issue of binding commitments, how did Cancun change the legal character of what emerged from Copenhagen?
Unlike the Copenhagen Accord, the Cancun Agreements are decisions of the Conference of the Parties (COP) under the UNFCCC and of the Parties to the Kyoto Protocol (CMP). Indeed, the Cancun Agreements were adopted by acclamation (that is, thunderous applause), appear to enjoy the support of most Parties (with the exception of Bolivia – more on this in a moment), and will now become an official part of the UN climate regime. However, as COP decisions, the Cancun Agreements –- in contrast to a new Protocol or an amendment to the UNFCCC or the Kyoto Protocol -- are not legally binding.
Q: What about the Copenhagen pledges? Has the COP adopted them?
Rather than adopting the Copenhagen pledges as part of a decision, the COP and the CMP chose to “take note” of two “INF” documents. Documents that are designated with the “INF” symbol are usually used for the limited purpose of conveying information, but here have been given an extremely important role. One of these INF documents, following the wording of the Copenhagen Accord, is to contain “quantified economy-wide emissions reduction targets” for developed countries. The other will contain “nationally appropriate mitigation actions” for developing countries. It is presumed that each of these INF documents, which have not yet been issued by the Secretariat, will contain the pledges notified to the secretariat at and since Copenhagen, but this remains to be seen.
Q: Has Cancun strengthened the character of the Copenhagen pledges?
As we have discussed elsewhere, the character of a commitment can be strengthened by the backing of institutions and procedures that hold a Party accountable for that commitment. Under the Cancun Agreements, Parties have agreed to subject the developed country targets which will be contained in the INF document to a “rigorous, robust, transparent” process of international assessment and review that builds upon existing review procedures under the Convention. Developing countries’ nationally appropriate mitigation actions, contained in the INF document, will be subject to a process of “international consultation and analysis.” The details for each of these procedures will have to be worked out through further negotiations. But they represent a common but differentiated framework for commitments, and a system for transparency and accountability around those commitments, that for the first time includes all the world’s major economies. The Cancun Agreements fall well-short of providing the kind of review, compliance and enforcement procedures that currently bind the developed country Parties to the Kyoto Protocol.
Q: So did Cancun resolve the issue of whether the negotiations are moving towards legally binding commitments?
Parties once again side-stepped the issue of the future legal form of commitments, by signaling that work will continue under both the Convention and the Kyoto Protocol negotiating tracks. Under the Convention track, the COP agreed to continue to discuss “legal options” for an outcome, and that nothing in the Cancun Agreements “shall prejudge prospects for, or the content of, a legally-binding outcome in the future.” The CMP was also circumspect on the fate of binding targets under the Kyoto Protocol by agreeing to complete its work “as early as possible and in time to ensure that there is no gap between the first and second commitment periods.”
Q: What about Bolivia? The Bolivian delegation formally and persistently objected to the adoption of the outcomes of both the UNFCCC and the Kyoto Protocol decisions. How does that affect the legality and legitimacy of those outcomes?
The COP and the CMP have never adopted rules of procedure that would allow them to take decisions by vote. As a result they always take decisions by consensus. In international practice, consensus is usually obtained, when, in the view of the Chair, there is no Party present that formally objects to the adoption of a decision. In overruling Bolivia’s objections, Patricia Espinosa, the Mexican COP President, agreed with delegations that expressed the view that that consensus should not be interpreted to allow a single Party to veto an otherwise unanimous decision.
There have been occasions within the climate negotiations as well as other international processes where consensus has been reached with one or more Parties seeking to gain the floor, presumably to object to a decision. On other occasions (such as in Copenhagen), texts that have proposed as decisions, but have been objected to by more than one Party, have been noted by the COP, but not adopted as decisions. But never before in the climate negotiations has a single Party objected in such a formal and persistent manner as Bolivia did in the final moments of the Cancun process -- and without the support of any other Party. In terms of the legal effect of its objection, at the very least, it seems unlikely that Bolivia would be considered to be subject to the Cancun Agreements. It seems likely that the official process will treat the Cancun Agreements as COP and CMP decisions. And it seems likely that Bolivia’s objections will have no practical effect on the implementation of the Cancun Agreements.
Q: There have been media reports indicating that Bolivia might bring a suit to the International Court of Justice (ICJ), challenging the Cancun decision. How could that work?
Bolivian's legal theory is unclear: who they intend to sue, on what grounds and in which court. The ICJ only hears contentious disputes between states (and not between states and COPs), and can only hear cases against those states that have subjected themselves to the Court's jurisdiction -- either generally, in limited circumstances (such as in the context of a specific treaty or issue area), or in the context of a specific dispute.
66 states have made declarations subjecting themselves to the Court's jurisdiction under different conditions. These do not include Mexico, the U.S., or for that matter, Bolivia. They do include, for example, Australia. But Australia, as is typical, subjects itself to the Court's jurisdiction only "in relation to any other State accepting the same obligation." Again, Bolivia has accepted no such obligation.
The UNFCCC also provides that the ICJ can be selected by parties either in advance or in the context of a particular dispute, to resolve that dispute. No Parties have done so in advance.
In sum, Bolivia could only sue at the ICJ another state that agreed to subject itself to the court's jurisdiction over that dispute.
The ICJ can also provide an advisory opinion in response to a request from an international organization, but only a limited number of organizations (such as the UN General Assembly) are authorized to request such an opinion so Bolivia would have to convince other Member States of these organizations to authorize such a request.