Negotiating the 2015 Climate Agreement: Issues relating to Legal Form and Nature
The on-going UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which the effectiveness of this agreement will hinge. First, they have yet to resolve the precise legal form this agreement will take. Parties agreed in Durban, 2011 to launch work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’ to be adopted in Paris in December, 2015. This formulation, reflective of divergences among Parties, leaves scope for a range of possibilities on legal form, some of which are binding and others are not. Second, Parties have yet to determine, the legal nature of the ‘nationally determined contributions’ Parties are expected to submit in the context of the 2015 agreement. This article seeks to address these two critical legal issues in the 2015 climate negotiations. In addressing the issue of ‘legal form’, it identifies the instruments that will likely form part of the Paris package and explores the characteristic features of each with a particular focus on their legal status, significance and influence. In addressing the issue of the ‘legal nature’ of nationally determined contributions submitted by Parties, the paper considers the nature and scope of contributions, the range of options for ‘housing’ them, as well as their relationship to the core 2015 agreement. It will also consider the extent to which the legal nature of contributions may be differentiated across types of contributions (such as on mitigation, adaptation, finance or technology) and/or groups of Parties (such as developed and developing).