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Q & A: The Legal Aspects of the Durban Platform Text

At the 17th session of the Conference of the Parties to the UN Convention on Climate Change (COP-17) in Durban – “the longest COP ever” -- Parties agreed to establish an Ad Hoc Working Group on a Durban Platform for Enhanced Action (AWG-DP). The AWG-DP has the mandate to develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.”

The AWG-DP will start its work “as a matter of urgency” in the first half of 2012. It will complete it no later than 2015, with the outcome to be adopted at COP-21 and to come into effect and be implemented from 2020. The content of AGDP’s workplan will focus in particular on “enhancing mitigation ambition to identify and to explore options for a range of actions that can close the ambition gap with a view to ensuring the highest possible mitigation efforts by all Parties.”

What are the legal implications of the Durban Platform text, and what could the different legal options mean for the UNFCCC? Below we go through some questions and answers: Q: Many Parties went to Durban concerned primarily about the expiration of the first commitment of the Kyoto Protocol, and the need to develop a new legally binding agreement, containing legally binding commitments for all major emitters of greenhouse gases into the future. Does the mandate of the Durban Platform ensure this outcome? Let’s start with the legal form of the agreement.

A: The AWG-DP will complete its mandate if it is able to produce one of three outcomes: 1) a legally binding protocol (under Article 17 of the Convention); 2) another legal instrument (most likely an amendment of the Convention under Article 15, or a new or amended annex to the Convention, under Article 16); or 3) another “agreed outcome with legal force”. All three options must be agreed “under the Convention”.

While the Durban Platform text contains a number of ambiguities, it has moved the process enough towards a new, comprehensive and legally binding agreement to have secured the agreement of the European Union (EU) to enter into a second commitment period under the Kyoto Protocol.

Q: What is an “agreed outcome with legal force”?

A: The final deal was struck with the addition of this third option and as a result of a compromise between the European Union (which was keen to see the form of a legally binding agreement as parallel in form as possible to the Kyoto Protocol) and India (which has consistently resisted calls for a new legally binding agreement). Following a sharp-elbowed “huddle” during a break in the formal negotiations, the language was endorsed from the floor by India and the EU as a third option.

It’s the least clear of the three options, as it uses language that doesn’t appear in the Convention. But this option seems to be designed to allow room for the negotiations to end with an outcome that doesn’t take the form of the legal instruments expressly contemplated in the Convention (a protocol, an amendment and or an annex to the Convention), and yet is still “under the Convention”.

Those countries that have resisted calls for a new legally binding agreement may promote the use of this third option to lead to an outcome that is not conventionally viewed as legally binding, such as a COP decision. To succeed they will have to convince the majority of UNFCCC parties that support the adoption of a new protocol or an amendment.

Q: How does an outcome with “legal force” differ from an outcome that is “legally binding”?

A: Under international law, a binding agreement or commitment represents a country’s or countries’ express consent to be bound, and its willingness to be held accountable by other parties for its compliance with its obligations. Most often through the additional step of “ratification” these agreements become binding under the domestic law of each country as well. We have discussed the merits of legally binding agreements and commitments elsewhere; see our summaries after COP-15 Copenhagen, COP-16 Cancun, and before COP-17 Durban.

Out of context, many would likely interpret “legal force” as being the equivalent to “legally binding”. For example, the Convention speaks of legally binding instruments such as protocols and amendments as “entering into force” when they become binding on Parties.

In the context of the Durban Platform negotiations, this choice of words seems to signal something different, and softer, than a legal instrument requiring ratification. The EU, at a press conference immediately following COP-17, expressed its view that the third option is the weakest and therefore the least desirable. It will be up to those countries supportive of this third option to convince others what an “outcome with legal force” might mean under this Convention.

Q: Why did some countries resist the idea of concluding the AWG-DP process with a legally binding agreement?

A: India, alongside other countries, has made the point that the form of the agreement should be decided only after its content has been agreed. Many share India’s concern that it would be unfair if developing countries with rising aggregate emissions but very low per capita emissions were to find themselves trapped under legal obligations similar to those being taking on by far richer, and historically more culpable, industrialized countries.

India has also stated that it feels that COP/MOP decisions, such as the so-called “Marrakech Accords” that operationalized the Kyoto Protocol’s market mechanisms, have in practice had all the force of law, even if many consider them to be non-binding. As has been discussed previously, many lawyers and Parties to the UNFCCC have expressed the view that the UNFCCC COP does not have the authority to adopt legally binding decisions.

Among industrialized countries, the United States (which signed but failed to ratify the Kyoto Protocol) has been the most resistant to commit in advance to a process leading to a legally binding instrument or protocol. The US delegation has frequently expressed the view that the process of generating the Cancun pledges was successful in securing the participation of more than 90 countries, in part because these pledges are non-binding. Also, the US Congress is notoriously reluctant to ratify international treaties.

Q: How does this negotiating mandate differ from previous goals the process has set for itself, in terms of the form of the desired outcome?

A: The importance of the Durban Platform text, which helps explain how long it took to negotiate, is revealed most clearly by contrasting it with the 1995 “Berlin Mandate” that guided the design of the Kyoto Protocol, and with the 2007 Bali Roadmap, the Parties’ most recent attempt to set a goal for negotiating a regime of post-2012 commitments.

The Berlin Mandate limited the potential legal form of the outcome to 1) a protocol or 2) another legal instrument. More significantly, it limited the content of any outcome of the negotiation to the strengthening of developed country emission reduction commitments, and expressly excluded the introduction of any new commitments for developing countries.

When adopting the Bali Roadmap, Parties were only able to set their sights on an “agreed outcome.”

Durban thus represents the turning of a corner for the climate regime, in that it directs the negotiators towards a binding legally agreement (and/or one with legal force) that is applicable to the mitigation efforts of all Parties.

Q: What about the content of any future legal protocol, instrument or outcome? Will the Durban Platform necessarily lead to legally binding commitments?

A: The legal character of any new agreement emerging from the AWG-DP will have four dimensions: the legal form of the agreement, which we have just discussed; the legal form of commitments within that agreement; the prescriptive nature and content of these commitments; and the procedures and institutions set up under the agreement to hold its parties accountable for complying with their commitments.

The AWG-DP’s mandate does not refer to the legal character of any commitments that it may contain. If the outcome itself isn’t legally binding then any commitments within it will not be legally binding. But it is also possible for a legally binding agreement to contain provisions that are softly worded, or that are so imprecise as to be, in effect, non-binding.

The AWG-DP mandate does not mention commitments, but rather a “range of actions”, “efforts”, and “options and ways” that the negotiations will consider when addressing a long list of climate-related challenges, including “enhancing mitigation ambition” (emissions reduction), adaptation, finance, capacity building and technology transfer. It mentions the need for this content to be “ambitious.” It recognizes “that fulfilling the ultimate objective of the Convention will require strengthening the multilateral, rules-based regime under the Convention,” thus signaling the importance of transitioning away from the unilateral, unharmonized “pledge and review” approach of the Cancun Agreements.

But the AWG-DP mandate does not reflect an explicit agreement that “actions” set out in the agreement will be legally binding. It is clear, however, from the context of the Durban negotiations that the bulk of the Convention Parties will be seeking to ensure that this next round of negotiations lead to new, legally binding commitments to reduce emissions, and that a powerful minority of Parties may continue to resist this outcome. While this will no doubt continue to be debated hotly, there seems little point in launching yet another ad hoc working group if it is to lead to the kind of unilateral pledges that Parties produced for Cancun.

Finally, the AWG-DP mandate says very little about the nature of the institutions and procedures that will hold the Parties to the new regime accountable for implementing their commitments. The text refers to the workplan including “transparency of action” but much more will need to be done to ensure the post-2020 climate regime benefits from the lessons learned about the importance of compliance procedures to the effective operation of multilateral, rule-based agreements.

Q: What about equity? What room does the Durban Platform allow for a legally binding agreement containing commitments that are highly differentiated between developed and developing countries?

A: Any new climate change agreement will need, in its legal form, to address the principle of common but differentiated responsibility and respective capabilities. As we have discussed elsewhere it is possible to bring all countries into a common legally binding platform while assigning to them highly differentiated commitments.

Both the US and the EU have insisted that any new legally binding agreement would need to contain legally binding commitments for major emerging economies, while it could allow for differentiated responsibilities with regard to the content of those commitments.

The AWG-DP mandate calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, that the outcome of the negotiations will be applicable to all Parties, with “a view to ensuring the highest possible mitigation efforts by all Parties.” (emphasis added).

Somewhat surprisingly, the mandate does not mention the principle of common but differentiated responsibilities and respective capabilities, the concept of historical responsibility, equity, or other principles frequently invoked by developing countries to ensure that the industrialized countries take the lead in the global effort to combat climate change. This leaves it largely to the AWG-DP to determine how differentiation will emerge.

Q: What is the relationship between any future commitments agreed on the basis of the Durban Platform and the legally binding commitments under a Kyoto Protocol second commitment period, as well as between these future commitments and the Cancun Agreement pledges?

A: The AWG-DP mandate will develop a regime that will come into effect after 2020. While the Kyoto Protocol outcome from Durban is also ambiguous, it appears the agreement for a second commitment period, which will last either five (2013-2017) or eight (2013-2020) years, will be in the form of a legally binding amendment to the Protocol.

There are signs however, that the European Union and its member states will be reluctant to ratify (legally bind themselves to) this amendment until they see significant progress in the implementation of the Cancun pledges, and progress being made under the Durban Mandate.

Most of the Cancun pledges run from 2012 to 2020 and the experience of reviewing the adequacy and implementation of these pledges in the coming years will undoubtedly have an influence on the design and ambition of what emerges from the Durban Platform.

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