Download Environmental Justice - Legal Response Initiative

Legal aspects - Overview
• Ad hoc Working Group on the Durban
Platform (ADP)
• New agreement:
- form
- substance
• Design features & legal techniques
UNFCCC outputs
• Treaty, protocol, pact, other legal
instruments
• Amendments to agreed instruments
• Decisions (on basis of treaty of treaty
provisions)
• Conclusions (write up of meeting outcomes),
Workshop reports, technical papers etc.
• Unilateral declarations, political agreements and
mixed outcomes
Work stream I 2015 Legal
Agreement
Scope, Structure
and Design of
Agreement
• Informed by Science
• Based on Equity
• Flexible
• Effective
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 outcomes
New
international
treaty (Protocol,
Implementation
Agreement,
Covenant etc)
incl Annex or
Schedules
Unilaterally
binding
declarations
Amendments of
Convention
and/or Protocol
incl Annex
Mix bags
of
outcomes
Political
agreement
(e.g. on
national
legislation)
COP
None
decisions
Pro & cons
Legal instrument
• States
• More thorough
negotiations and wider
preparation process =
political buy-in resulting in
better implementation and
compliance
• Accountability
• “Small and slow”
COP decisions
• Parties
• Flexible and quick with
limited outside
interference = more
ambitious & aspirational
• Not binding
• “Big and easy”
Mixed bags
• Accord on mitigation, political agreement on finance,
COP decisions on adaptation, tech transfer and capacity
building
• Protocol on mitigation, with general provisions on
adaptation and finance, further COP decisions on
finance and adaptation, technology and capacity building
• Coupled with COP decisions in other areas (response
measure, REDD) and
• COP decisions on the implementation of the 2015
agreement (programme, reports, working group?)
• Content and language crucial
Substantive components
Mitigation
Adaptation
Finance
Technology
Development
and Transfer
Capacity
Building
Transparency
of Support
and Actions
2015 Climate Agreement
•
•
•
•
•
•
Preamble (A), definitions (B)
General/objective (C)
Mitigation (D)
Adaptation and loss and damage (E)
Finance (F), technology (G), capacity building (H)
Transparency (I), timeframes for implementation (J),
facilitating implementation and compliance (K)
• Procedural and institutional provisions (L) including
• Final clauses
• Annexes and attachments
Design options
• Rights & obligations v. principles & enabling
provisions
• Outcomes v. process
• Reporting v. compliance
• Differentiation between parties
• Integration, nature and scope of INDCs
• Final clauses
• Specific issues: objective, human rights,
financial commitments, loss and damage 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.”
Drafting exercise
• Developed country Parties and other parties included in
Annex II to the Convention shall provide new, additional
and predictable financial resources to enable climate
vulnerable developing countries to fully adapt to the
adverse effects of climate change in accordance with…
•
•
•
•
Adaptation Committee decides on “how”
Protect food production
Consultation and participation
Naming and shaming to encourage compliance and
accountability
Drafting I
The Adaptation Committee shall… allocate the necessary
financial resources to develop and implement strategies,
programs and projects for the adaptation to climate change
in developing countries, particularly least developed
countries, in accordance with the needs clearly identified in
national adaptation plans and other communications;
The Adaptation Committee shall be guided by the following
priorities:
(a) food security;
(b) the protection of human life and health;
(c) enabling people to cope with environmental change;
and…
Drafting II
The Green Climate Fund shall annually publish a list of
contributions received by developed country Parties and
other Parties to support adaption efforts in developing
countries. The Secretariat shall annually publish a list of
financial contributions due to the Green Climate Fund.
The Adaptation Committee shall develop objective and
equitable rules and regulations with the participation of
concerned stakeholders to carry out the assigned tasks to
be adopted by the Meeting of Parties to this Protocol.