The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations
| Author | Lavanya Rajamani |
| DOI | http://doi.org/10.1111/1468-2230.12145 |
| Published date | 01 September 2015 |
| Date | 01 September 2015 |
LEGISLATION
The Devilish Details: Key Legal Issues in the 2015
Climate Negotiations
Lavanya Rajamani*
The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental
legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement
will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed
outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a
range of possible legal forms, only some of which are legally binding. Second, they have yet to
determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This
article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could
form part of the Paris package, focussing on their legal status, significance and influence; and on
the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the
range of options for ‘housing’ these contributions as well as their relationship to the core 2015
agreement.
INTRODUCTION
The international climate regime is comprised principally of the 1992 United
Nations Framework Convention on Climate Change1(the Convention), the
1997 Kyoto Protocol2and the decisions of Parties under these instruments. It is
widely known that the goal of this regime is to reduce greenhouse gas emissions
and thereby limit increases in global temperature. Although these instruments are
important first steps towards addressing climate change and its impacts, they are
widely regarded as inadequate and inadequately implemented. At the Durban
Conference in 2011, Parties launched a process to negotiate a climate agreement
that will come into effect and be implemented from 2020.3This process,
*Research Professor, Centre for Policy Research, New Delhi. I am grateful to Daniel Bodansky,
Andrew Higham, Daniel Klein, Jürgen Lefevere, Catherine Redgwell, Jacob Werksman, Harald
Winkler and the anonymous reviewers for their thoughtful and constructive comments on earlier
versions of this article. I am also grateful to Shibani Ghosh, Senior Research Associate, Centre for
Policy Research for her excellent assistance with this article.
1 United Nations Framework Convention on Climate Change, 29 May 1992, reprinted in 31 ILM
849 (1992) (FCCC).
ber 1997, reprinted in 37 ILM 22 (1998) (Kyoto Protocol).
3 Decision 1/CP.17, ‘Establishment of an Ad Hoc Working Group on a Durban Platform for
Enhanced Action, 2011’ FCCC/CP/2011/9/Add.1 (15 March 2012) (Durban Platform). For a
detailed discussion of this decision, see L. Rajamani, ‘The Durban Platform for Enhanced Action
and the Future of the Climate Regime’ (2012) 61 ICLQ 501; and see also, D. Bodansky, ‘The
Durban Platform Negotiations: Goals and Options’ Harvard Project on Climate Agreements July
2012, 3.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(5) MLR 826–853
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
christened the Ad-Hoc Working Group on the Durban Platform for Enhanced
Action (ADP), is intended to craft the agreement that will govern, regulate and
incentivise the next generation of climate actions. For the reader’s convenience
a chronological table of processes and instruments is provided at the end of this
article. The ADP process is expected to conclude its work at a conference of
Parties scheduled for Paris at the end of 2015, which should result in a new
agreement.4
The Durban decision that launched these negotiations left the legal form of
the 2015 climate agreement undetermined. Parties agreed to launch work
towards a ‘protocol, another legal instrument or an agreed outcome with legal
force under the Convention applicable to all Parties’.5Parties chose not to
address the legal form of the 2015 agreement at subsequent conferences. In 2013,
the Warsaw conference invited Parties to submit ‘intended nationally deter-
mined contributions’ in the context of the 2015 agreement, but left the legal
form of the 2015 agreement and, explicitly, the legal nature of nationally
determined contributions unresolved.6The Lima conference in 2014, that
arrived at an ‘Elements text’7for the 2015 agreement, and the ‘Geneva Nego-
tiating Text’8that emerged a few months later, also contained footnoted dis-
claimers as to legal form and nature. Parties must of necessity resolve these key
legal issues before an agreement can be reached in Paris. Parties must determine
what legal form the core 2015 agreement will take, as well as resolve the legal
nature of nationally determined contributions that are expected to form part of
the Paris package.
This article first identifies the instruments that will likely form part of the Paris
package, and then explores the characteristic features of each of these instruments
with a particular focus on their legal status and significance. In doing so, it will
address the issue of the ‘legal form’ of the core 2015 agreement. The Paris
package is likely to consist of one or more of the following: a core 2015
agreement, Conference of Parties (COP) decisions, supplementary instruments
and political declarations. The core 2015 agreement could take the form of a
protocol, amendments to the Convention, another legal instrument or agreed
outcome with legal force. The Convention provides a six-month notice period
for adopting protocols and amendments, although it is unclear how mature the
text to be notified in accordance with the six-month rule has to be. Further,
there is a range of options for entry into force of protocols and amendments in
order to ensure environmental integrity and effectiveness.
4 Durban Platform, ibid, para 4.
5ibid, para 2.
6 Decision 1/CP.19, ‘Further Advancing the Durban Platform’ FCCC/CP/2013/10/Add.1 (31
January 2014) (Warsaw ADP Decision) para 2(b) and (c).
7 Decision 1/CP.20, ‘Lima Call for Climate Action’ FCCC/CP/2014/10/Add.1 (2 February 2015)
(Lima Call for Climate Action) Annex: ‘Elements for a draft negotiating text’.
8 Ad Hoc Working Group on the Durban Platform for Enhanced Action, Second session, part
eight, Geneva (8–13 February 2015) Agenda item 3: Implementation of all the elements of
decision 1/CP.17 Negotiating text, FCCC/ADP/2015/1 (25 February 2015) (Geneva Negoti-
ating Text).
Lavanya Rajamani
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 827(2015) 78(5) MLR 826–853
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