A Comprehensive Assessment of Options for the Legal Form of the Paris Climate Agreement

IDDRI Sciences Po, No. 15/14, November 2014

20 Pages Posted: 6 Dec 2014

See all articles by Sandrine Maljean-Dubois

Sandrine Maljean-Dubois

University of Angers - French National Center for Scientific Research (CNRS)

Matthieu Wemaere

Aix-Marseille University - CERIC

Thomas A. Spencer

Institute for Sustainable Development and International Relations

Date Written: November 25, 2014

Abstract

For many years, the issue of the legal form of the new climate agreement has hovered over the international negotiations. Countries have insisted on first discussing substance. Indeed, it is here that the main divergences remain. However, one year out from the Paris climate conference, it is time to open the discussion on the legal form of the final agreement. The issue of legal form is often reduced to the negotiation of a ‘binding’ or ‘non-binding’ agreement. The bindingness of an international environmental agreement however depends on multiple parameters. We propose four parameters to be considered: the form of the core agreement; the ‘anchoring’ of commitments; mechanisms for transparency, accountability and facilitation; and mechanisms for compliance. Parties should assess pros and cons of these options, and the agreement be optimised across all four.

Negotiations appear to be heading towards a hybrid agreement. Some provisions would be contained in a core agreement, and some in implementing documents such as decisions or schedules. This structure can help to balance legal certainty with flexibility. The core agreement should contain a binding provision to implement and regularly update a ‘nationally determined contribution’ (NDC). If these NDCs were to be housed outside the agreement, this could give more flexibility on their content, submission and updating. The core agreement should contain strong provisions on transparency, accountability and facilitation, including independent institutional arrangements (a Transparency Committee). At this stage in global cooperation and given inherent weaknesses in international environmental law, a punitive compliance mechanism seems unfeasible. However, the agreement should contain a compliance mechanism regarding procedural obligations, such as submission and updating of NDCs.

Keywords: climate change; international negotiations; international law; UNFCCC; Paris Accord; legal form

Suggested Citation

Maljean-Dubois, Sandrine and Wemaere, Matthieu and Spencer, Thomas A., A Comprehensive Assessment of Options for the Legal Form of the Paris Climate Agreement (November 25, 2014). IDDRI Sciences Po, No. 15/14, November 2014, Available at SSRN: https://ssrn.com/abstract=2533115

Sandrine Maljean-Dubois (Contact Author)

University of Angers - French National Center for Scientific Research (CNRS) ( email )

CERIC Espace Cassin
3 av Robert Schuman
Aix-en-Provence, 13628
France

HOME PAGE: http://www.ceric-aix.univ-cezanne.fr/

Matthieu Wemaere

Aix-Marseille University - CERIC ( email )

Faculté de Droit et de SP., 3 av. Robert Schuman
AIX-EN-PROVENCE, 13628
France

Thomas A. Spencer

Institute for Sustainable Development and International Relations ( email )

27 Rue Saint-Guillaume
Paris, 75337
France

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