What will be the outcome of the Paris climate negotiations -- an agreement? A package? A treaty? As delegates make progress crafting the negotiating text at COP 21, there has been intense discussion about its legal form. Below are seven questions and answers to help understand this important issue as we head towards the final week of the climate talks:
1) What will be the legal form of the Paris outcome?
There is general consensus that COP21 will result in a package consisting of a variety of instruments of different legal forms: a core legal agreement, decisions of the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC) and potentially political declarations. Deciding which provisions and issues are included in a particular instrument, and the final combination of instruments, are key aspects of what will be negotiated. The outcome must therefore be judged on the entire “package,” not just by the core agreement.
2) Must all or key provisions in an agreement be legally binding?
Quick answer: no. A common feature of international agreements is that they contain a mix of binding and non-binding provisions. For instance, the UNFCCC itself has general provisions that do not create legal rights and obligations for countries. However, the agreement as a whole can still be considered to be a legal agreement.
3) So what will determine the legal force of the Paris agreement?
Content is key, not the name. Whether it is called a treaty, protocol, convention, accord or agreement will not determine its legal force. For many parties to the negotiations, its name is key for political reasons, which can be equally important to ensure participation and political signals, but don’t confuse political importance with legal importance. Content within the Paris agreement will determine its actual legal force, such as precise, prescriptive language, specifying expected activities and outcomes from countries. This could include obligations (i.e. for countries to design policies and measures), obligation of results (i.e. for countries to achieve emission reduction targets) or include procedural obligations (i.e. for countries to report their actions, emissions or other information).
4) Does where the INDCs are housed affect their legal force?
No, housing the INDCs in an annex to the agreement or a separate publicly available registry does not affect whether or not they are legally binding. Again, the content of the agreement determines its legal force and what obligations parties to the agreement have.
5) Does the Durban Mandate require the legal agreement to be called a protocol?
No. The Durban Mandate refers to a “protocol, another legal instrument, or an agreed outcome with legal force under the Convention.” The name of the agreement will not determine whether the Durban Mandate is satisfied.
6) Can we call the Paris package a treaty? Is a treaty always a treaty?
Under international law, a treaty is broadly defined as a binding agreement between countries. There is broad consensus that this is what parties are currently negotiating. For the purposes of U.S. domestic law, a treaty is defined more strictly as one subtype of internationally binding agreements that require the “advice and consent” of the U.S. Senate prior to the United States being able to become a party to the treaty. Importantly, whether or not the U.S. domestically refers to the agreement as a treaty has no impact on whether it is considered a treaty under international law.
7) So will the Paris agreement be ratified?
Each party will comply with its own domestic process in order to join the agreement. Internationally, countries will confirm that this process has occurred by depositing what is called as an “instrument of ratification, acceptance or approval.” This occurs once a party has signed the agreement, and means the country has formally become a party to the agreement. What domestic process each country follows is left to each individual nation and their unique legal system.