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 decisions None

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 MitigationAdaptationFinance Technology Development and Transfer Capacity Building Transparenc y 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.