Towards a ‘legally binding’ agreement?

Towards a ‘legally binding’ agreement?

The daily lunchtime briefings by Yvo de Boer, Executive Secretary of the UNFCCC, provide a great barometer of the mood of the key parties to COP15. After weeks of expectation management, talking down the prospects of agreement, the tone shifted in the pre-conference session and on the opening day.   Pledges from an increasing number of countries are beginning to add up, and Sir Nicholas Stern and the United Nations Environment Programme (UNEP) said that countries ‘may be closer than some observers realize to agreeing the emissions cuts required to give the world a reasonable chance of avoiding global warming of more than 2 degrees’. On Monday, talk in the halls of the Bella Centre was of a ‘legally binding agreement’ by 18 December.
That talk continued at Yvo de Boer’s Tuesday lunchtime briefing. He emphasized the need for the negotiators to use the next six days to arrive at a text that leaves only the highest level political questions to be resolved when Ministers arrive next week, followed two days later by Heads of State.
Asked about the number of drafts reportedly circulating, and how they could be brought together into a cogent whole, Yvo de Boer lamented the fact that the drafts were not available two years ago, commenting that it was not until Barcelona in early November 2009 that the parties focused their attention in a meaningful way on the text.
From a lawyer’s perspective that is a worrying thought, and sparked a question that goes to the root of any agreement intended to be ‘legally binding’. Is it enforceable? If so, is enforcement likely to be effective? Where sovereign states are involved, what is the likelihood of meaningful enforcement if commitments are allowed to slip once the media glare of Copenhagen has died down?
Yvo de Boer’s response was to say that there is no ‘one size fits all’ approach to enforcement. He listed the enforcement measures available under Kyoto, inferring that they are sufficient. 
Under Kyoto, where a Party’s emissions have exceeded its assigned amount, the enforcement branch must:
  • declare that Party in non-compliance
  • require it to make up the difference between its emissions and its assigned amount during the second commitment period, plus an additional 30%
  • require the Party to submit a compliance action plan, and
  • suspend the Party’s eligibility of the Party to make transfers under emissions trading schemes until the Party is reinstated.

Any Party not complying with reporting requirements must develop a compliance action plan. Parties that are found not to meet the criteria for participating in the mechanisms will have their eligibility withdrawn.  In all cases, the enforcement branch must make a public declaration that the Party is in non-compliance and will also make public the consequences to be applied. 

As a general rule, decisions cannot be appealed.  The exception is a decision of the enforcement branch relating to emissions targets.  Even then, a Party can appeal only if it considers it has been denied due process.

The approach is cogent enough. However, the enforcement mechanisms apply only to ‘Parties’, meaning that ratification is required for a country to subject itself to sanctions. Even where ratification has occurred, a Party who defaults on a target may well be disinclined to return to compliance by meeting an increased ‘penalty’ target.

Although enforcement procedures are crucial, and due process the bedrock of the rule of law, any agreement reached at Copenhagen will depend at least as much on political will and ongoing democratic pressure.