Form & Characteristics of the 2015 agreement

Overview

• Form of agreement

- formal outcomes

- form v. substance

- mixed bags

- new agreement• Built in flexibility & durability

- possible entry points

- content

- design features & techniques

COP Decision 1/CP.17

“2. Also decides to launch a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties, through a subsidiary body under the Convention hereby established and to be known as the Ad Hoc Working Group on the Durban Platform for Enhanced Action.”

COP Decision 1/CP.17 para.2

• a protocol,• another

- legal

- instrument or • an agreed outcome

- with legal force

- under the Convention/• under the Convention• applicable to all Parties

Formal outcome

New international treaty (Protocol, Implementation Agreement, Covenant etc)

Unilaterally binding

declarations

Amendments of Convention

and/or Protocol

Mix bags of

outcomes

Political agreement

(e.g. on national

legislation)

COP decisions

None

Mixed bags of formal outcomes

• Unilateral declarations on mitigation ambition and political agreement on finance

• COP decisions on adaptation, technology transfer etc. and treaty on mitigation targets and/or finance

• Schedules containing binding/non binding country specific outcomes/activities on mitigation, adaptation, finance etc

• ...

International treaty

• “Supports legal certainty and rule of law amongst nations”

• Subject to more thorough negotiation and preparation process = political buy-in resulting in better implementation and compliance

• Accountability to civil society• “The more legal force the better”• No guarantee for success• Form and content

Legally binding• Art. 8 CBD: “Each Contracting Party shall, as far as

possible and as appropriate: (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity.”

• Declarations by the US Secretary of State in 1978: “The United States will not use nuclear weapons against any non-nuclear–weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable internationally binding commitment not to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies...”

• Art.94 para.1 UNCLOS: “Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

Framework v prescriptive

• Principles• Domestic activities• Self determined• Reporting/

Assessment• Meeting of parties• Negotiation,

mediation

“Easy & quick & large”

• Rights & obligations• Specific outcomes• Rules & regulations• Compliance/

Enforcement• Processes & institutions• Binding dispute

resolution

“Tough & slow & small”

Design options

Design features of multilateral treaty that would make it durable but flexible enough to respond to changing circumstances?

New agreement

• Preamble, definitionsPreamble, definitions• Mitigation, AdaptationMitigation, Adaptation• Finance, technology transfer, capacity-buildingFinance, technology transfer, capacity-building• Differentiation amongst partiesDifferentiation amongst parties• Transparency, Transparency, implementation, complianceimplementation, compliance• Institutional and operational frameworkInstitutional and operational framework• Final provisions on adoption, amendment and Final provisions on adoption, amendment and

entry into forceentry into force

SubstanceSubstance

• Principles v. rights and obligationsPrinciples v. rights and obligations• Differentiation depending on GDP v. AnnexesDifferentiation depending on GDP v. Annexes• Outcome v. Activities (prescriptive targets and Outcome v. Activities (prescriptive targets and

goals v. self set goals and facilitating domestic goals v. self set goals and facilitating domestic legislation)legislation)

• Language: “if adequate”, “appropriate”, “in Language: “if adequate”, “appropriate”, “in accordance with national circumstances”accordance with national circumstances”

• Assessment v. compliance• ...

Form & process

• Opt in and out of commitments & arrangements• Amending rules light and easy• Allowing parties to do what they can/want

“bottom up”• Harmonisation of different efforts• Relationship with other legal instruments• Relationship with external parties• Others e.g. no withdrawal

‘Opt in/out’ I

The States Parties to the present Statute may at any time declare that they recognise... , in relation to any other State accepting the same obligation, the jurisdiction of the Court... (Art.36, para.2 ICJ Statute).

‘Opt in/out’ II - reservation

• Allowed reservation - wide/narrow• Any State may, when signing this

Convention..., make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. (Art.57 para.1 ECHR)

‘Opt in/out’ III – instruments

• Additional legal instruments• The Member States of the Council of Europe, signatory

to this Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, ..., Considering that the evolution that has occurred in several member States of the Council of Europe expresses a general tendency in favour of abolition of the death penalty;Have agreed as follows:... (Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty)

Amendment - tacit

• An amendment may enter into force after being, for example, accepted by two thirds of the Parties or adopted by a three-fourth majority. Under the “tacit acceptance” procedure an amendment enters into force at a particular time unless before that date, objections to the amendment are received from a specified number of Parties.

• Under the 1974 International Convention for the Safety of Life at Sea (SOLAS): an amendment to most of the Annexes is “deemed to have been accepted at the end of two years from the date on which it is communicated to Contracting Governments...” unless the amendment is objected to by more than one third of Contracting Governments, or Contracting Governments owning not less than 50 per cent of the world's gross merchant tonnage.

Amendment - simplified• Choice between normal and simplified process• Article 313 UNCLOS - Amendment by simplified procedure

1. A State Party may, by written communication addressed to the Secretary-General of the United Nations, propose an amendment to this Convention, ..., to be adopted by the simplified procedure set forth in this article without convening a conference. The Secretary General shall circulate the communication to all States Parties.2. If, within a period of 12 months from the date of the circulation of the communication, a State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure, the amendment shall be considered rejected. The Secretary-General shall immediately notify all States Parties accordingly.3. If, 12 months from the date of the circulation of the communication no State Party has objected to the proposed amendment or to the proposal for its adoption by the simplified procedure, the proposed amendment shall be considered adopted. ....

Amendment - adjustment

• Allowing for minor changes to technical information, usually contained in an annexes

• Article 3, paragraph 1 quater Kyoto ProtocolAn adjustment proposed by a Party included in Annex I to increase the ambition of its quantified emission limitation and reduction commitment in accordance with Article 3, paragraph 1 ter, above shall be considered adopted... unless more than three-fourths of the Parties present and voting object to its adoption.

“Bottom up”

• “Legalisation” of pledge and review (Cancun Agreements)

• Country driven or CSR?• WTO schedules on market access

- Goods: binding commitments on tariffs- Agriculture: combinations of tariffs and quotas, export subsidies and domestic support- Services: commitments on access of foreign service providers in specific sectors

Schedule of commitment

1972 UNESCO World Heritage Convention

Article 3It is for each State Party to this Convention to identify and delineate the different properties situated on its territory mentioned in Articles 1 and 2 above [cultural and natural heritage].

Article 5To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country:(a) to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes;...

1966 International Conventionon Load Lines

Article 3 - General Provisions(1) No ship to which the present Convention applies shall proceed to sea on an international voyage

after the date on which the present Convention comes into force unless it has been surveyed, marked and provided with an International Load Line Certificate or, where appropriate, an International Load Line Exemption Certificate....

Article 4 - Application...(3) The Regulations contained in Annex I are specifically applicable to new ships.(4) Existing ships which do not fully comply with the requirements of the Regulations contained in

Annex I or any part thereof shall meet at least such lesser related requirements as the Administration applied to ships on international voyages prior to the coming into force of the present Convention; ...

Article 26 - Communication of Information(1) The Contracting Governments undertake to communicate to and deposit with the Organization:

(a) a sufficient number of specimens of their certificates issued under the provisions of the present Convention for circulation to the Contracting Governments;(b) the text of the laws, decrees, orders, regulations and other instruments which shall have been promulgated on the various matters within the scope of the present Convention; and....

Harmonisation

• Harmonisation (active pursuit) v natural convergence through practice

• Creating new and/or amending existing legal instruments (system of survey and certification under IMO SOLAS, Load Lines and MARPOL 73/78)

• Minimum standards (for new aircrafts, vessels etc)• Soft law: guidance, models, blueprints, best practice etc• Soft to hard law (human rights, corporate governance)• International coordination: institutions, bodies, standing negotiations• Participation in rule development• Improving and establishing consistent conditions for the operation of

rules and regulations: institution building to enabling environments

Relationship with other instruments

• Lex posterior derogat priori - a later rule repeals an earlier one – and a specialized rule takes precedence over a general rule (lex specialis)

• Art.103 UN Charter: In the event of a conflict between the obligation of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter prevail.

• Art. 22 CBD (Relationship with other international conventions)1. The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.2. Contracting Parties shall implement this convention with respect to the marine environment consistently with the rights and obligations of States under the Law of the sea.

Third party provisions

• Need for third party to accept obligations or rights• 2009 Agreement on Port State Measures to Prevent,

Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Article 23: Non Parties to this Agreement1. Parties shall encourage non-Parties to this Agreement to become Parties thereto and/or to adopt laws and regulations and implement measures consistent with its provisions. 2. Parties shall take fair, non-discriminatory and transparent measures consistent with this Agreement and other applicable international law to deter the activities of non- Parties which undermine the effective implementation of this Agreement.

Minimata Convention on Mercury

Article 3Each Party shall not allow the export of mercury except:... (b) To a non-Party that has provided the exporting Party with its written consent, including certification demonstrating that:(i) The non-Party has measures in place to ensure the protection of human health and the environment and to ensure its compliance with the provisions of Articles 10 and 11; and(ii) Such mercury will be used only for a use allowed to a Party under this Convention or for environmentally sound interim storage as set out in Article 10.