On December 9th, 2015, the Commité de Paris released a new draft of the negotiating text which further streamlines it, but the updated version still does not clarify what the legal form of the agreement will be. The Durban Mandate, indeed, did not provide clear indications on the issue, simply stating that the future text can take the form of “a protocol, another legal instrument or an agreed outcome with legal force”.
The legal status of the agreement has been the object of a lively debate in recent months, particularly relating to the form and structure. As host of the COP, France is deeply committed to reach a legally binding agreement, backed by EU institutions. In November, French President Francois Hollande declared that if a Paris agreement “is not legally binding, there is no agreement”, and has stressed the concept again at the opening of the COP.
On Tuesday (Dec. 8) the European Union and the 79 African, Caribbean and Pacific countries officially declared “their shared commitment for an ambitious and binding global climate deal to be agreed in Paris”. The group, named “high ambition coalition” by Todd Stern, the US special envoy for climate change, asks for a “binding, inclusive, fair, ambitious, durable and dynamic” agreement, which must set out a clear long-term goal, establish a review mechanism every five years and include a transparency and accountability system. China and India have not joined the group so far and neither did Russia, even if at the opening of COP President Putin declared that the agreement must be legally binding, comprehensive and equal for every participants.
During a press briefing on Monday (Dec. 7) Stern clarified that the US is certainly among the countries who push for a “strong” agreement, as they committed to take “tough decisions”. Significantly, the US special envoy did not mention the word “binding” or “treaty”.
The bindingness of the agreement represents indeed a delicate matter for the US, remembering the failure to ratify the Kyoto Protocol after signing it in 1997. According to the US Constitution (art. 2), international treaties must receive the consent of a two-third majority of the Senate in order to enter into force. The Constitution also entitles the President to ratify a treaty in the form of “executive agreement”, acting unilaterally or with the approval of the simple majority of both chambers.
As the GOP-lead Congress and Senate counter Obama’s policy on climate change, it is unlikely that the Paris agreement will obtain the majority needed to enter into force as a “treaty”.
In November 2015, US Secretary of State John Kerry told the Financial Times that the agreement was “definitively not going to be a treaty”, insisting that it will not contain any binding emission reduction objectives. During the first week of negotiation in Paris, President Obama declared that parts of the global warming deal being negotiated in Paris should be legally binding.
As highlighted by Stern in November, the US has adopted an “hybrid” approach originally proposed by New Zealand. This means the US, backed by Canada, pushes for an agreement that is binding relating to transparency and accountability, but does not set out binding targets of emission reductions. The approach is gaining consensus among Parties, and the research community projects a hybrid structure will be adopted as the basis of the agreement. In the light of the negotiating positions of the main countries, indeed, analysts say the agreement would probably take the form of a core text, such as a Protocol to the Convention, complemented by a series of COP decisions to detail procedures and update the goals every five years.
Analysts also state that the Paris Agreement is likely to take a bottom-up approach, based on the intended nationally determined contributions (INDCs) rather than on a top-down scheme with precisely quantified emissions reductions, as Kyoto. This seems to be confirmed by the draft text, which asks the Parties to communicate and update their national contributions every five year. In other terms, the emissions targets are likely to be made binding only through national legislation, but not enforced by the international community.
Scholars warn that there is a need of clarity on the legal form of the agreement, particularly as regards the link of the INDCs to the core text and the mechanisms for transparency, accountability and compliance.
[Image: Obama speaking at COP21. Photo Credit: ConexiónCOP Agencia de noticias on Flickr]