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CCLR 1|2015 1The Legal Form of the Paris Climate Agreement

The Legal Form of the Paris Climate Agreement:a Comprehensive Assessment of Options

Sandrine Maljean-Dubois, Thomas Spencer and Matthieu Wemaere*

For many years, the issue of the legal form of the new climate agreement has hovered overthe 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 climateconference, it is time to open the discussion on the legal form of the final agreement. The is-sue of legal form is often reduced to the negotiation of a ‘binding’ or ‘non-binding’ agree-ment. The bindingness of an international environmental agreement however depends onmultiple parameters. We propose four parameters to be considered: the form of the coreagreement; the ‘anchoring’ of commitments; mechanisms for transparency, accountabilityand facilitation; and mechanisms for compliance. Parties should assess pros and cons ofthese options, and the agreement should be optimised across all four, combining flexibilityand credibility.

I. Introduction

In Durban, Parties to the United Nations FrameworkConvention on Climate Change1 have agreed to ne-gotiate a new climate agreement by the end of 2015.2

Themandate for these negotiations sets out a certainnumber of parameters that the new agreementshould reflect. Firstly, the agreement will be “underthe Convention”, i.e. respecting the principles and ob-jectives of the Convention. This includes in particu-lar the ultimate goal of the Convention as describedin Article 2 and subsequently elaborated in 2010 un-

der Decision 1/CP.16, namely to hold warming to be-low 2 degrees. Achieving this level of mitigation willrequire widespread participation, a robust and cred-ible regime, and a dynamic approach to increasingambition over time. Secondly, the Paris agreementwill be “applicable to all”, i.e. attracting the broadestpossible participation consistent with the global na-ture of climate change, and reflecting the principleof commonbut differentiated responsibilities and re-spective capabilities (CBDR&RC) “under the Conven-tion”. Thirdly, the Paris agreement will be a multilat-eral, rules based regime, grounded in a “protocol, an-other legal instrument or an agreed outcome with le-gal force”.Since Parties have agreed at COP 19 in Warsaw

that their contributions to this instrument would bedetermined at the national level, it is crucial that theinstrument is effective3. Effectiveness can be seen interms of implementation to ensure that Parties deliv-er their contributions, and in terms of adequacy toensure that aggregated individual contributions pro-gressively achieve the long-term global goal. Conse-quently, the agreement should be both dynamic anddurable. Many Parties have expressed the need tohavean instrument that canbestrengthenedprogres-sively over time, without burdensome renegotiation.The instrument to be adopted at COP21 in Parisshould balance the need for flexibility, experimenta-tion and innovation,with the need for credibility and

* Sandrine Maljean-Dubois is the Director of the Centre for interna-tional and European studies and research, Aix-en-Provence(CERIC-DICE UMR7318 CNRS/Aix-Marseille University); ThomasSpencer is Program Director for Energy and Climate Change atthe Institute for Sustainable Development and InternationalRelations (IDDRI); Matthieu Wemaëre is a Senior Lawyer admit-ted at the Paris and Brussels Bar Associations, and a ResearchAssociate at the Centre for international and European studies andresearch, Aix-en-Provence (CERIC-DICE UMR7318 CNRS/Aix-Marseille University).

1 United Nations Framework Convention on Climate Change, NewYork, 9 May 1992, International Legal Materials (1992), 849.

2 See the Decision 1/CP.17 of the Conference of Parties, Establish-ment of an Ad Hoc Working Group on the Durban Platform forEnhanced Action, UN Doc.FCCC/CP/2011/9/Add.1, 15 March2012.

3 See the Decision 1/CP.19 of the Conference of Parties, Furtheradvancing the Durban Platform, UN Doc.FC-CC/CP/2013/10/Add.1, 31 January 2014.

CCLR 1|20152 The Legal Form of the Paris Climate Agreement

ambition of the instrument and nationally deter-mined contributions (NDCs).4

There are still some open questions regarding thelegal nature of the 2015 agreement and of its con-stituent elements. Achieving at the same time the ob-jectives of adequacy, universality and fairness, legalrobustness, dynamism and durability will require acareful and comprehensive approach to legal form,maximizing synergies and balancing any potentialtrade-offs between objectives. The objective of thisarticle is precisely to give an overview of key aspectsof the new agreement’s legal form; the options avail-able; and the potential interactions between them.After setting out the conceptual framework (II), itwill address the form of the agreement (III), discussthe options for the legal form of the core agreement(IV) and for the anchoring of commitments (IV), theissue of transparency and facilitation of action (V)and compliance and enforcement (VI).

II. The Conceptual Framework

1. Clarification of the Terminology froma Legal Point of View

The Durban Platform has launched “a process to de-velopaprotocol, another legal instrumentoranagreedoutcomewith legal force under the Convention applic-able to all Parties (…)”.5 Before discussing the optionson legal form for the instrument to be adopted atCOP21 in Paris, it is necessary to clarify somekey con-cepts upfront.In this way, “legal” is an adjective “qualifying sub-

stantives to indicate that they have a relation to theLaw”.6 From that perspective, a legal norm or stan-dard can be distinguished from a moral, social, ethi-cal or religious norm or standard. However, a legalnorm does not necessarily have a binding characteror legal force.A norm is “legally binding” only when it creates a

legal obligation. In international public law, a legal-ly binding norm provides for a legal link whereby asubject of international law can be bound vis-à-visothers to adopt a determined behaviour.7 This is thecase when a norm finds its origin in a formal sourceof international law (treaty, customary rules, gener-al international law principles, unilateral acts). Apartfrom the formal source of the legal norm, it is impor-tant to examine its content. Very often, legal obliga-

tions laid down by international treaties and agree-ments, although legally binding in form, are so soft-ly worded, contingent or conditional, as to be devoidof real normative force.

“Legally enforceable” means that the legal normis backed by procedural mechanisms that can mobi-lize various “disciplines”8 in order to ensure thatStates comply with their obligations. These mecha-nisms include transparency and facilitation, as wellas compliance and enforcement. Conversely, a legalnormmay be legally binding but not legally enforce-able if there are no suchmechanisms to support andeventually ensure its implementation. This is themost frequent situation found in international law.Such mechanisms may be established for the pur-poses of ensuring the implementation of provisionslaid down by a legally binding instrument (interna-tional treaty or agreement) or by a non-legally bind-ing instrument (for example a resolution adopted byan international organisation) even if the latter tendto be weaker.9 While such mechanisms can con-tribute to strengthening the normative force of a res-olution that is not legally binding, they cannot ontheir own give a legally binding character to suchresolutions.

2.Hard and Soft Law: Three Criteria ofNormativity

In contrast to binary visions opposing law to non-law, or hard-law to soft-law, one has to acknowledgethat the normative force of international environ-mental law operates along a spectrum. For example,even if soft law instruments are non-binding at firstglance, in practice they can however have some le-gal effect. States often take great care when negoti-

4 As there is still disagreement about the exact legal nature of themitigation “contributions”, and other contributions, in the 2015agreement, following current negotiation practice, we thereforeuse the term “nationally determined contributions” withoutprejudice to their eventual legal form.

5 Decision 1/CP.17, supra, note 2, Para. 2.

6 Jean Salmon (ed.), Dictionnaire de droit international (Brussels:Bruylant, 2001) at 629 (our translation).

7 Ibid. at 765.

8 We use the word “discipline” in the sense of an incentive to actin a certain way. These incentives can be reputational or material,and created implicitly or explicitly by the regime.

9 See for example the role of the Commission on SustainableDevelopment in the follow up of Agenda 21.


ating such instruments, and occasionally includemechanisms to ensure the transparency and imple-mentation of their actions under the soft law instru-ment in question. This provides convincing clues ofthe degree of normative force of such instruments.On theotherhand, even inhard lawnumerousnormsare non-binding because they have not been writtenas prescriptive norms, or have been written usingsuch generic terms that they cannot be applied with-out additional precision. This is the case for almostall of the provisions of the Rio Convention on Bio-logical Diversity, which begin with both: “Each con-tracting party shall, as far as possible, and where ap-propriate” or with “Each contracting party shall, inaccordance with its particular conditions and capa-bilities”10.The degrees of normativity and effectiveness of

soft law instruments are in fact variable. The absolutedivide between hard and soft, between binding andnon-binding does not stand up to an in-depth analy-sis.11 Therefore, in order to assess the legal nature ofan instrument, we propose to use the three follow-ing criteria:– A formal criteria: is it embedded in a formal sourceof law or not, i.e. treaty, customary rules, generalinternational law principles, unilateral acts. Howwas the norm adopted? By what organ, with whatauthority? According to what decision-makingprocess? Did some States express reservations? Ifyes, which States?

– A substantive criteria: are the legal norms ex-pressed in precise and prescriptive language? Orare they vague and hortatory?

– A procedural criteria: does the instrument includethe capacity tomobilize relevant ‘disciplines’ in or-der to promote and ensure implementation ofagreed norms? These include a robust transparen-cy, accountability and facilitationmechanism, butthey may also include a compliance and enforce-ment mechanism.

The inclusion of these criteria demonstrates that it isnecessary to assess the instrument as a whole in de-termining its legal nature on the spectrum between

hard and soft law, binding and non-binding. Like-wise, it is necessary to assess the instrument as awhole when considering the above mentioned crite-ria of adequacy, universality and fairness, legality,and dynamism and durability.

III. The Legal Form of the ParisAgreement as the Result of Four KeyParameters

Since the Bali Conference, Parties have decided thatthe legal form should follow substance. However, itis difficult to make progress on substance as long asuncertainty remains on the legal form, in particularon the legally binding character of NDCs and thewaythe instrument may reflect differentiation (legalsymmetry versus differentiated rights and obliga-tions). To generate this comprehensive view, Partiesshould consider the legal form of the instrument tobe adopted at COP21 in Paris in the light a numberof parameters that emerge from the current negoti-ations:– The form of the core agreement and its relationship

to substantive contributions: although there is noconsensus yet on the legal form,negotiations seemto be heading towards a hybrid instrument, witha number of Parties calling for a “core” agreementwhich may be supplemented by other instru-ments.

– The “anchoring” of NDCs: the legal effect of NDCsmay depend on theway they are “anchored” in theParis agreement.

– Amechanism for transparency, accountability andfacilitation: themechanisms toensure transparen-cy of actions undertaken by Parties can help tomobilize reputational incentives, and thus con-tribute to the normative force of the regime; in ad-dition, this mechanism could undertake a facilita-tive role providing technical advice and mobiliz-ing the resources of the regime to assist implemen-tation.

– Amechanismfor complianceandenforcement: par-ties may wish to create a mechanism for compli-ance and enforcement.

These four pillars and their relationship with the is-sue of legal form are summarized in figure 1 below.For each of these four key parameters, Parties can

choose between different options. Indeed there are

10 Convention on Biological Diversity, Rio de Janeiro, 5 June 1992,International Legal Materials (1992), 818.

11 See Dinah Shelton (ed.), Commitment and Compliance. The Roleof Non-binding Norms in the International Legal System (Oxford:OUP, 2000).


trade-offs among the parameters depending on theoption chosen for each of them.

IV. The Legal Form of the CoreAgreement

In Durban, Parties have decided “to launch a processto develop a protocol, another legal instrument or anagreed outcome with legal force under the United Na-tions Framework Convention on Climate Change ap-plicable to all Parties”.12 From a legal perspective,this mandate includes two main options amongwhich Parties have to choose: a “protocol” or “anoth-er legal instrument or an agreed outcome with legalforce”.

1. The Protocol Option

The “core” of the Paris agreement can take the formof a protocol to the Convention, the adoption ofwhich would then be governed Article 17 of the UN-FCCC. Such a protocol would be legally binding forall ratifying Parties according to the customary rulePacta sunt servanda, embodied in the 1969 ViennaConvention on the Law of Treaties in its Article 26.13

The treaty form offers some advantages regarding

12 Decision 1/CP.17, supra, note 2.

13 Convention on the Law of Treaties, Vienna, 23 May 1969,International Legal Materials (1969), 679.

Figure 1: The Pillars of the Legal Form DiscussionSource: Authors


durability and robustness. Commitments enshrinedina treaty arenot easily reversible, even thoughCana-da’s withdrawal from the Kyoto Protocol shows thatit is always possible.14 In order to enter into force, atreaty is subject to ratification, acceptance or ap-proval by States, according to national procedures,often requiring the approbation of national parlia-ments. Once a treaty has been ratified, a state incursimmediate legal obligations in international law. Itmust conform to all the obligations set down in atreaty and cannot generally avoid them without agood excuse (like force majeure) or unless it has for-mally expressed a reservation. Most importantly, rat-ifying an international treaty gives domestic effectto the treaty’s provisions, promoting political owner-ship, stakeholder participation in implementation,andmobilizing the disciplines of domestic law. In thecontext of a collective action challenge, a robusttreaty can help to overcome concerns about free-rid-ing, thus potentially increasing ambition.However, there are also risks and limitations with

this form of legal instrument. Firstly, a protocol maynot incentivize ambition or wide participation, ifcountries are concerned about the potential sover-eignty costs of stringent, enforceable commitments.From that perspective, a protocol could be less ambi-tious, with a lower level of participation, than a non-binding instrument, for example a COP decision. Se-condly, States have to express their consent to bebound by a protocol. A protocol could be ratified bya limited number of Parties only, leading to a two-track system with different regimes for Parties andnon-Parties to the new protocol. However, such riskmay be limited if not completely removed throughthe possibility offered to Parties tomake reservations

or provisions in the protocol to accommodate theirnational circumstances.

2. The Option of “Another LegalInstrument or an Agreed Outcomewith Legal Force”

“Another legal instrument” does notmeanmuch in asfar as the terms “instrument” and “legal” are vagueand generic. Furthermore, legally speaking, it is quitedifficult to distinguish between a “legal instrument”and an “agreed outcome with legal force”, having inmind that a legal instrument is not always legallybinding (but may be in certain circumstances).15

Ultimately, there are two options that can reason-ably be considered: either a revision of the 1992 Con-vention and/or its annexes or a COP decision or a setof COP decisions. From a legal point of view, thesetwo options are different when looking at conditionsfor adoption, entry into force and legal effect.A substantive amendment to the Convention can

be adopted by ¾ majority, if consensus cannot befound.16 An amendment to the Convention has le-gal effect once it has entered into force. To enter in-to force, an amendment to the Convention needs tobe ratified by ¾ of Parties, and then only enters in-to force for those Parties that have ratified theamendment. Ratification could be a lengthy process,with the risk that the amended Convention appliesto a limited number of Parties only while others con-tinue to apply the original UNFCCC. Once it entersinto force, there is no doubt that an amendment tothe UNFCCC would be legally binding, as is the UN-FCCC itself. As noted above, however, formal bind-ingness is not sufficient, unless combined with sub-stantive precision and the existence of robust proce-dures to promote and potentially enforce implemen-tation.A COP decision requires consensus to be adopted,

and can be applied immediately once adopted. How-ever, the legal effect of COP decisions is ambiguousin international public law. What COP decisions addin terms of flexibility and expedience, they thus losein terms of legal security.17 Undoubtedly, they havea practical effect by operationalizing the provisionsof the Convention. In that respect, the UNFCCC pro-vides that “the COP shall take, within the limits of itsmandate, the necessary decisions to ensure the effec-tive application of the Convention”.18

14 See UNFCCC, supra, note 1, Article 27.

15 Sandra Maljean-Dubois and Matthieu Wemaëre, "After Durban,What Legal Form for the Future International Climate Regime?”, 6Carbon Climate Law Review (2012), at 187-196.

16 It is worth noting that the UNFCCC provides for a simplifiedprocedure to allow the entry into force of amended annexes (byopting out and not opting in). However, this provision cannot beused because the Convention states that annexes “shall be re-stricted to lists, forms and any other material of a descriptivenature that is of a scientific, technical, procedural or administra-tive character” (Article 16). A schedule of nationally determinedcontributions could form such an annex, but in any event itwould require a modification of the Convention itself, at least tomake a legal link between the new annex and Parties’ commit-ments to implement its content.

17 Pierre-Marie Dupuy and Yann Kerbrat, Droit international public(Paris: Précis Dalloz, 2011), at 425.

18 UNFCCC, supra, note 1, Article 7, our emphasis.


Thus, a COP decision can have political force. But,as a legal tool, it is not automatically legally binding.The extent to which COP decisions can create newlegal obligations, become a source of law or allow achange in the interpretation of the Convention’s pro-visions remains unclear and widely debated amongParties.19 The International Court of Justice ruled onthe legal effect of resolutions of the General Assem-bly of the United Nations, noting that “even if theyare not binding, [they] may sometimes have norma-tive value”.20 The normative force of a COP decision,including its degree of ‘bindingness’, may depend onthree central factors:

The recognition of the capacity of the COP to takebinding decisions: some constitutive treaties grantthe COP the capacity to take binding decisions; orthis capacity could arise as the result of concertedpractice. In this case, a COP decision can give rise tolegal obligations in itself as a “legal instrument”, i.e.a formally binding act from an (almost) internation-al legislative body.21 Such cases are limited, and inany case the UNFCCC does not provide for this ca-pacity to take binding decisions for its COP.

The content of the COP decision: this includes theprecision and prescriptiveness of its provisions, aswell as the existence of mechanisms or proceduresto scrutinize implementationbyParties.Nothingpre-vents scrutiny of Parties’ implementation of non-legally binding instruments at the international lev-el. The assessment of the decision’s legal effect mustbe done on the basis of a case-by-case analysis of thecontent of the COP decision with regard to its objec-tives as well as of the Convention’s objectives.-Unilateral or coordinated acceptance to be bound:

A COP decision can create a legal obligation if this isexpressly accepted by States. Such acceptation canbe made individually; a unilateral act by a State canbe a source of international law. If States commit ona unilateral basis to apply a COP decision in a clear,precise and unconditional manner, they are “bound”to implement it at the international level. It is notnecessary to provide evidence of the acceptance ofthe unilateral act by other subjects of law. States’ ac-ceptancemay also be done jointly, where a treaty pro-vides for it (i.e. the convention).Even if it is not binding, a COP decision creates a

new legal situation. First, a State must examine it ingood faith to the extent it reflects the opinion of amajority of States, which are Parties to a Treaty thatthe State in question has also acceded to. Second,

such a decision may contribute to the recognition ofcustomary rules, and/or may be integrated later inthe content of a treaty (this may be the case in theParis Agreement for some of the body of decisionsadopted since Copenhagen). Thirdly, for the purposeof applying a decision, a State can decide to not ap-ply a conflicting norm that was in force before theadoption of the decision if this does not affect therights of other contracting Parties.In any event, none of the three factors described

above appears to be a sufficiently robust foundationto consider COP decisions as formally binding bythemselves under the UNFCCC.

3. Advantages of a Combined Approach

At this point in the run up to Paris, a majority of Par-ties have stated their preference for the adoption ofa legally binding instrument taking the formof a pro-tocol to the UNFCCC which would be complement-ed by a series of COP decisions. This seems the bestoption to consider in so far as it gives the opportuni-ty to optimize between the pros and cons of each op-tion. The heart of the post 2020 regimewould be laiddown by a core agreement that would take the formof a protocol to the UNFCCC. This would be themostsolemn and clear affirmation by States of their com-mitment to achieve the ultimate objective of the UN-FCCC; as well as providing, within the protocol, fur-ther elaboration of the goals, procedures and institu-tions of the regime. This treaty would be comple-mented a series of COP decisions which would allowa flexible and swift implementation despite the low-er level of legal security that they provide.22With this

19 In the case of Whaling in the Antarctic (Australia v. Japan: NewZealand intervening), the ICJ stated recently, regarding recom-mendations of the International Whaling Commission that “ theserecommendations, which take the form of resolutions, are notbinding. However, when they are adopted by consensus or by aunanimous vote, they may be relevant for the interpretation of theConvention or its Schedule” (Judgment of 31 March 2014,Para. 46).

20 International Court of Justice (ICJ), Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion, 8 July 1996, ICJ Reports(1996), Para. 70, p. 254.

21 Jutta Brunée, “COPing with Consent: Law-Making Under Multilat-eral Environmental Agreements”, 15 Leiden Journal of Internation-al Law (2002), at 1–52.

22 Dupuy and Kerbrat, Droit international public, supra, note 17, at424.


multi-layer structure of the Paris agreement, the coreprovisions can be robust and durable, while the con-tent of the treaty and its ambition can be progressive-ly upgraded over time. A COP decision or a series ofdecisions would be adopted on the basis of the treatyreflecting key and overarching goals principles, fol-lowing a well-known approach in international envi-ronmental law.23

V. Form and anchoring of NationalDetermined Contributions

1. What is a Nationally DeterminedContribution?

The concept of NDC represents a new aspect of theclimate regime, whose implications should be takeninto account when considering the issue of legalform.While presenting common elements, the transi-

tion to a new, low-carbon development model willbe different in different countries depending ontheir circumstances, resources, preferences, and lev-els of development. After the Lima Conference,24 itis likely that NDCs will remain diverse and complex,even if the Paris agreement could specify key ac-counting principles or options, and require Partiesto specify how they apply accounting rules in theirNDC.Theweakness of theLimaoutcome fromthispoint

of view has implications for Parties’ accountabilityfor their NDC. While countries should be account-able for their NDCs, it does not make sense to expect“to-the-ton” accountability. Indeed, the Chinese andUS announcements already indicate this fact: theycontain inevitable elements of ambiguity, a quantita-tive range in the case of the US (26-28% reductionby 2025); ambiguity in timeframe for China (peak-ing around 2030). Granted, the formal announce-ments should contain more precision. Nonetheless,

we would argue that by the nature of the climatechange problem, NDCs are likely to be diverse, mul-tifaceted documents, framed by common but rela-tively loose rules on upfront information and ac-counting methods. In turn, accountability will in-evitably take on a qualitative element: are countriesmaking good faith efforts to implement their NDCs,with demonstrable progress towards its achieve-ment?Thirdly, it is likely that NDCs will be multiform,

as indeed has been indicated already by the Chineseannouncement (aspirational peaking range andnon-fossil fuel share in energy supply, with poten-tially further elements in the final announcement).This underscores the importance of providing spaceto differentiate the normativity of different ele-ments of the NDC. Some elements could form thecore of the NDC; some could be for information pur-poses. Finally, it will be necessary to establish ro-bust, independent procedural arrangements allow-ing for greater transparency of action toward the im-plementationof inherentlydiverse andcomplexND-Cs.There is also the question of timing, i.e. should

NDCs be ready for anchoring in Paris or only after-wards? The Lima conference did not succeed in set-ting up a formal ex ante assessment of NDCs. But theSecretariat is asked to prepare by 1 November 2015a synthesis report on the aggregate effect of the ND-Cs communicated by Parties by 1 October 2015.25Un-der this time schedule, Partiesmaynot have theirND-Cs in final or nearly final form ready in Paris, andcould need more time to finalize them. If some ad-justments need to be made subsequent to Paris, theAgreement should contain a provision that thisshould be done by 2016.A final question relates to ambition in the dynam-

ic context. Many have argued that the legal anchor-ing of NDCs needs to allow for easy updating. Thisis indeed valid. However, in a collective action prob-lem like climate change, countries are very unlikelyto do so unilaterally. Moreover, governments do noteasily reverse decisions once taken. This highlightsthe importance of having a legally robust, collectivecommitment in the core agreement to regular rounds(every 5 years) of collective action. Parties should al-so commit individually to providing new or updatedNDCs in line with this cycle. This should form a keypart of their legal obligation under the core agree-ment.

23 Like the Bonn-Marrakech agreements, a set of COP decisionsproposed for adoption to the first COP-MOP, which contributedto operationalize the Protocol.

24 See Decision 1/CP.20, Lima Call for Climate Action, UN Doc.FCCC/CP/2014/10/Add.1, 2 February 2015, Para. 14. Informationsto be provided by Parties communicating their intended national-ly determined contributions, are only indicative.

25 See 1/CP.20, supra, note 24, Para. 16.


2. Five Options for the Inscription ofNDCs

If the Paris accord takes the form of a new protocolto the 1992 Convention, there are five legal optionsfor the inscription of NDCs (see Figure 2 below).Those five options imply different consequences interms of timing, legal force, transparency, account-ability and non-compliance.

a. An Annex or Annexes to the Protocol

With this option, NDCs would be inscribed in one orseveral annexes of the Protocol. It could be a singleannex bringing together all NDCs, on the model ofthe Kyoto Protocol. However, as noted above, NDCswill be diverse in terms of content. Therefore, the on-ly possible option would seem to be an annex foreach Party. From a practical point of view, a set of an-

nexes has the disadvantage of resulting in an exten-sive text; however, nothing prevents it from a legalpoint of view.With thisoption, theannexorannexeswould form

an integral part of the Protocol and would have thesame legal force as a legally binding treaty. Whetheror not the NDCs are indeed legally enforceable de-pends subsequentlyon the substantive andprocedur-al provisions of the treaty. Are the NDCs relativelyprecise and couched in prescriptive terms? Are theybacked by robust mechanisms to ensure transparen-cy, accountability and facilitation, or indeed to even-tually enforce compliance?This option has several advantages. Forming part

of a treaty, NDCs would be legally binding national-ly for Parties to the agreement as well as internation-ally. The annex or annexes would be negotiated andadopted at the same time as the Protocol, followinga minimum of coordination among Parties before or

Figure 2: Five Options for the Inscription of NDCsSource: Authors


during the Paris conference. Indeed, the annex or an-nexes being part of the protocol, they would need togain consensus within the COP to be adopted offi-cially in a COP Decision.26 However, it is possible tointroduce a simplified procedure to amend the an-nexes for the next round of contributions, in orderto make the Paris accord a dynamic instrument. Thisoptionhas the added advantage of providing a robustlegal basis to ensure transparency and accountabili-ty, and to facilitate and eventually enforce compli-ance. Such provisions may bemore difficult to intro-duce if NDCs are not binding internationally.This option has also three disadvantages. First, it

requires that all Parties’ contributions are ready be-fore the Paris Conference, in order to inscribe theminto the annex(es) to the protocol for their adoption.Furthermore, once the treaty is adopted, the ap-

proach is by definition rather rigid and not very flex-ible over time, unless a simplified revision procedureis developed. The approachusedby theMontreal Pro-tocol to review the annex(es) through a simplifiedprocedure is exemplary. Such a procedurewas adopt-ed to adjust Parties’ commitments under the secondperiod of the Kyoto Protocol: the adjustment “shallbe considered adopted by the Conference of the Par-ties serving as the meeting of the Parties to this Pro-tocol unless more than three-fourths of the Partiespresent and voting object to its adoption”. Moreover,its entry into force is automatic. It does not needStates’ ratification, a process inherently long and un-certain.27

Thirdly, coordinated, internationally bindingobligations may be difficult for some Parties to ac-cept, reducing participation and hence effectiveness.For some, domestic ratification of internationallybinding obligations may be a challenge. Others mayconsider this option to contain either too little or toomuch legal differentiation or legal symmetry. Con-tinued disagreement on this question of legal differ-entiation/legal symmetrymay result in a lowest com-mon denominator, unless a more intermediate solu-tion than this option is found.

b. A National Schedule Integrated in the Protocol

NDCs could be determined at the national level andinscribed into National Schedules, which the Proto-col could integrate after adoption by a specific pro-vision to the effect that they form an integral part ofthe Protocol. National contributions could be de-signed and notified to the secretariat according to acommon format and a uniform terminology, andbased on common metrics, while allowing Parties toself-differentiate their commitments by type (quan-titative targets, expressed in absolute or relativeterms, etc.) and scope of commitments (economy-wide, sectoral, policies and measures, project activi-ties, covering all or part of GHG emissions). Nation-al schedules could also indicate restrictions, exemp-tions or even conditions for the implementation ofthe NDC.Drawing on themodel of national schedules in the

General Agreement onTrade in Services (GATS), thisoption is different from the previous one in that na-tional contributions are not part of the Protocol atthe time of its adoption.28NDCs could be notified af-ter the Paris Conference in order to reflect the prin-ciples and rules of the Paris Accord and be automat-ically integrated into the protocol, without being sub-ject to other Parties’ acceptance.Less constraining in terms of timing, this option

offers more flexibility while providing for the samebinding legal force to NDCs than if they were intro-duced in an annex at the time of adoption. Once no-tified and forming part of the treaty, contributionswouldbe implemented according to the treaty, in par-ticular to its provisions on transparency, accountabil-ityandcompliance.NationalSchedules couldbevalidfor one cycle of collective action, as provided for inthe Protocol. In this case, Parties would have to de-cide if and under what conditions States could mod-ify their contributions. A complete freedom, even toreview downward the ambition of their NDCs, is the-oretically possible. But this could be prevented by in-troducing the “no backsliding” principle.

c. NDCs Outside the Protocol but Binding due toa Provision in the Protocol

NDCs could also exist outside the Protocol, for exam-ple in a registry kept by the secretariat on the modelof the INF document in which the UNFCCC secre-tariat compiles Parties’ “pledges” communicated af-

26 UNFCC, supra, note 1, Art. 17 Para. 1.

27 See Art. 3 Para.1 quater of the Kyoto Protocol as amended inDoha in 2012, 1/CMP.8Amendmentto the Kyoto Protocol pur-suant to its Article 3, paragraph 9 the Doha Amendment), UN.doc FCCC/KP/CMP/2012/13/Add.1, 28 February 2013.

28 See also Art. 10 Para. 1 of the Convention for the Protection of theOzone Layer, Vienna, 22 March 1985, International Legal Materi-als (1987), 1529.


ter Copenhagen. But the protocol would contain thelegal obligation for all Parties to submit a nationalcontribution and to implement it. States could havean obligation of result (to achieve the pre-determinedresult) or, more reasonably, an obligation of means(to use their best endeavours to achieve the result).This, in a nutshell, is the spirit of recent AILAC sub-mission29, a proposal that merits serious considera-tion by Parties. As Parties would be internationallybound by an obligation to implement their nationalcontribution, it would help balance legal security atthe international level and national sovereignty todetermine NDCs. It could also create the legal basisfor a more robust regime for transparency, account-ability and facilitation, based on this international le-gal obligation for each Party to implement its NDC.As with the option of National Schedules, this op-

tion would allow flexible timing for some adjust-ments post-Paris. It would also allow the simple up-dating of NDCs during each subsequent round of col-lective action (or unilaterally if Parties so wish).

d. Inscription in a COP Decision

The Protocol can provide that initial NDCs, as wellas any revised or new NDCs, are to be adopted byCOP/MOP decisions. In comparison to option iii)above, the Protocol would not contain a provision re-quiring Parties to implement their NDC (obligationof means). In order to operationalize this approachandmake it effective by 2020, the COP to the UNFC-CC could prepare this decision to be endorsed atCOP/MOP1 (on the model of the Bonn and Mar-rakeshAccords adopted in2001 toprovide formodal-ities to implement the Kyoto Protocol, which wereformally adopted in Montreal in 2005 through a se-ries of COP/MOP decisions applyingmutatis mutan-dis).As discussed above in this paper, COP and

COP/MOP decisions are legal instruments, but notnecessarily legally binding by themselves. They canhave some legal effects: even though theydonothavethe same legal force as a treaty. For instance, theywould be based on the framework of the UNFCCCand the “Parisprotocol” forming the “core” agreementof the Paris Accord. Parties should apply COP andCOP/MOP decisions in good faith as implementingmeasures of the international treaty theyhave agreedto approve. A judge or an arbitrator could refer tosuch decisions in order to interpret the provisions of

the protocol itself. In addition, NDCs inscribed inCOP/MOP decisions could be subject to both an ex-ante assessment on the basis of upfront informationand an ex-post assessment of progress made by Par-ties in their implementation, if the protocol providesfor this.However, with this option, a State cannot be held

liable for non-compliance if it does not meet its con-tribution; it could however benefit from incentivesor facilitative measures provided by the protocol todo so. Less robust from a legal point of view, this op-tionhas themaindisadvantage to not be very dynam-ic: because a COP or COP/MOP decision can only beamended by another COP or COP/MOP decision, aconsensus would be required for the adoption of re-viewed or new contributions. In addition, Partieswould not be allowed to review unilaterally their na-tional contributions to increase their level of ambi-tion and obtain recognition without a COP/MOP de-cision to endorse it (although unilateral revisionseems unlikely anyway in the context of a collectiveaction challenge).

e. Inscription in an INF document

With this last option, contributions would be com-piled in an “INF” document and/or in a registrymain-tained by the Secretariat, on the model of the compi-lation of pledges made by Parties after Copenhagen-Cancun.30 In comparison to option iii) above, the Pro-tocol would not contain a provision requiring Partiesto implement their NDC (obligation of means). TheProtocol could refer to NDCs while encouraging allParties to takemeasures to implement them and con-tribute to the achievement of a long-term collectivegoal. In that case, such contributions would have no

29 Independent Association of Latin America and the CaribbeanAILAC Ad-Hoc Working Group on the Durban Platform forEnhanced Action (ADP), Submission on the legal architecture andstructure of the elements of the 2015 Agreement, available on theInternet at: <http://www4.unfccc.int/submissions/Lists/OSPSub-missionU-pload/106_99_130574193142313924-140918%20AILAC%20Submission%20ADP%202-6%20Legal%20Architecture,%20vf.pdf>(last accessed on 28 October 2014).

30 One could think for example to the Register/compendium ofvoluntary commitments in the follow-up of Rio + 20, see on theInternet: <www.uncsd2012.org/commit> (last accessed on 26December 2014)). Option supported by the United States in U.S.Submission-September 2014, available on the Internet at:<http://unfccc.int/files/bodies/awg/application/pdf/us_submis-sion_fall_2014_final.pdf>, at 10 (last accessed on 26 December2014).


legal force at international level. In the absence of aninternational obligation to implement theNDC, it be-comes difficult to envisage strong mechanisms fortransparency and accountability, and for facilitatingor indeed enforcing compliance. Implicit namingand shaming would therefore be the only interna-tional discipline to support Parties’ implementationof the protocol.

VI. Transparency, Accountability andFacilitation

1. The Role of Transparency in LegalForm

With contributions determined at national level,transparency, accountability and facilitation becomea cornerstone of the post 2020 regime. Transparen-cy and accountability are key to reciprocity and trust,and therefore to making the Paris agreement an ad-equate, durable anddynamic instrument to tackle cli-mate change.As noted above, transparency and accountability

are an important aspect of legal form, relating to thesubstantive and procedural criteria that can be usedto judge the legal force of an instrument. The preci-sion of NDCs, achieved through agreed ex ante infor-mation standards and accounting principles andrules, will be a key aspect of their substantive force.In this regard, Lima adopted relatively loose rules toensure the precision of NDCs. Thus, as NDCs will re-main diverse and complex, processes to track and fa-cilitate implementation become all the more impor-tant. The presence of mechanisms to promote andensure their implementation relates to the procedur-al force of the new agreement.Transparency and accountability are not a substi-

tute for the formal legalbindingnessof thecoreagree-ment or NDCs. Indeed a central argument of this pa-per is that the absence of formal legal bindingnesswould make developing a strong regime for trans-parency and accountability more difficult (if statesdo not consent to be bound to implement their ND-Cs, why develop a robust regime for promoting andensuring that they do?). However, transparency andaccountability are crucial pillars of the overall legalform and legal effect of the Paris agreement, and tothis extent warrant greater attention in the negotia-tions than has hitherto been the case.

Here we set out some key concepts and theoreti-cal frameworks that inform the subsequent discus-sion of transparency and accountability in the Parisagreement.– Transparency of emissions: this relates to the mea-surement, reporting and verification (MRV) of ac-curate and timely emissions inventories.

– Transparency ofNDCs: this relates to the provisionof sufficient upfront informationwith the submis-sion of NDCs, in order to ensure that these are astransparent as possible in terms of expected emis-sions outcomes. It includes the development andapplication of agreed accounting principles andrules, in particular on land use and markets. Wecan includeunder thispointboth substantive rules(on upfront information, for example) as well asprocedures intended to increase the transparencyof targets (through transparency procedures withamandate to clarifyNDCs, and track their achieve-ment, for example). Transparency of targets canalso facilitate the assessment of the adequacy ofaggregated mitigation efforts towards achievingthe 2 degrees target, as well as the equity of indi-vidual NDCs.

– Transparency of implementation: this relates to theprovision of information on and assessment ofdemonstrable progress towards the achievementof NDCs, and the multilateral determination ofachievement subsequent to the end of the period.

– Accountability: we group what is often termed‘compliance’ under the broader term ‘accountabil-ity’. A regime has multiple ‘disciplines’ that can bemobilized, implicitly or explicitly, to help promoteand ensure implementation of NDCs. These in-clude reputational and material incentives, to en-forcementmechanisms such as sanctions. In orderfor such disciplines to be explicitly mobilized, Par-ties need to be explicitly accountable for the im-plementation of theNDCs (formal and substantivebindingness), and the regime needs to have the ca-pacity for the explicit determinationof demonstra-ble progress or successful implementation.

Despite the fact that the transparency framework hasbeen significantly improved since the adoption ofthe Cancun Agreements, there is still room forstrengthening this framework in several importantrespects, as a key aspect of the overall legal force ofthe Paris agreement. This section discusses why andhow this could be done. It takes into account the con-


text of the overall regime, given hownegotiations areshaping up so far and the four key parameters thatthe Paris Accord should reflect. It also takes into ac-count the existing framework, i.e. how the trans-parency framework in the Paris agreement couldbuild upon the Cancun Agreements. Because it looksforward to the post 2020 regime, this paper does notaddress the question of whether and howNDCsmaybe assessed in the light of upfront information pro-vided by Parties in the run up to Paris.

2. Objectives of the TransparencyFramework

The primary objective of the transparency frame-work is to build trust, reciprocity, and reputationalincentives to implement Parties' commitments.These reputational incentives can be implicit or ex-plicit, depending on the extent to which the trans-parency framework allows for a technical determina-tion on implementation.The second objective is to put in place positive in-

centives and to facilitate implementation. The trans-parency framework should helpmobilize positive in-centives, whichmay be reputational (i.e. the creationof a ‘race to the top’ to showcase action, etc.), or ma-terial, for example the mobilization of resources orexpertise for countries having good faith difficultieswith implementation.The third objective is to develop policy learning

and alignment of expectations: the transparencyregime can reveal and share best practice and helpto align expectations about policies, enabling themore effective and rapid diffusion of policy exper-tise and confidence, including to the private sector.From that perspective, the transparency frameworkcanalsohelpoperationalize the “nobacksliding” prin-ciple according to which theremust be a progressionon ambition and scope over time in both individualcontributions and aggregated collective action fromone commitment cycle to the next one.The fourth objective is to provide an input to col-

lective action into any subsequent cycle of commit-ments. By revealing information on implementationand facilitating policy learning, the transparencyregime can support subsequent rounds of collectiveaction, as well as potentially identify and help solveproblems with implementation or the developmentof subsequent contributions.

Finally, a fifth objective could be, after a commit-ment cycle, to provide factual inputs to a complianceregime if Parties chose to introduce one in the ParisAccord.These objectives could be translated into general

principles of transparency into the Paris agreementitself, to pave the way for the adoption of modalitiesand procedures, including institutional arrange-ments to be adopted before the latter becomes effec-tive by 2020.

3. Nature, Scope and Timing of theTransparency Framework

The transparency framework should be technical innature, bymonitoringprogress towards achievementof Parties’ contributions. It should be informed byscience and available data, be non-confrontational,non-punitive, non-intrusive and respectful of Parties’national sovereignty. Transparency of implementa-tion should be based on information provided byPar-ties, while taking into account upfront informationthe latter have provided to define and support theirNDC, include the description of relevant national cir-cumstances.To this end, existing reporting requirements

should be improved and streamlined, in particular toinclude long termprojectionsof emissionspathways,more detailed information on policy design, priori-ties and national circumstances, as well as further in-dicators of progress of implementation. It is impor-tant to underscore the reporting implications for acomplex, long-termproblem like climate change. Un-derstanding progress on implementation, as well astaking into account the evolution of national circum-stances relevant for implementation, requires report-ing and assessment that goes beyond looking mere-ly at GHG outcomes. The reporting regime should beextended to include further data on policy inputs andintermediate outcomes such as investments, R&Dand progress on sectoral indicators of decarbonisa-tion.The Paris agreement would reflect the core prin-

ciples, institutions and modalities of the transparen-cy framework. Detailed improvement of existingtransparency arrangements can start at COP22, re-flecting the core principles defined in the Paris agree-ment. They should be finalized by 2018 in order toapply to the last biannual reports due before 2020.


When looking at existing requirements for theelaboration and submission of biennial reports (BR)by developed country Parties and biennial updatedreports (BUR) by developing country Parties, thereis some room for improvement to increase trans-parency of Parties’ mitigation actions and their ef-fects.The transparency framework should apply to all

the same way in terms of frequency and intensity,while taking into account the self-differentiationmade by Parties when determining their NDCs, no-tably by type of commitment and the description ofrelevant national circumstances. Some flexibilityshould be given to developing country Parties interms of accuracy of emissions measurement (tiers 1to 3, use of default emission factors) if they do nothave the capacity or the data to apply the more strin-gent requirements. Additional flexibility may be giv-en to developing country Parties in terms of conse-quences further to the determination of problems ofimplementation.In order to deliver the various objectives proposed

above, the transparency framework should be con-ducted on a regular timeline, to feed thedevelopmentof NDCs for the next cycle and the assessment of col-lective action. The frequency of existing reporting re-quirements through biannual reports31 fits with alength of 10 year cycle with mid-period review, orwith a 5 year cycle.

4. Possible Institutional Arrangements

Several institutional arrangements can be envisagedto establish such a transparency framework. Theprocess to ensure transparency of implementationshould be separate from the process whereby collec-tive action can be assessed for the next commitmentcycle. In addition, it should be separate from theprocess related to ex post determination of compli-ance after the given commitment period: the objec-tive of the transparency mechanism is to be forwardlooking and to independently assess progress to-wards the achievement of NDCs.Finance and adaptation have their own dedicated

institutional arrangements: the StandingCommittee

on Finance and the Adaptation Committee. Dedicat-ed new institutional arrangements are required toensure transparency on the implementation of miti-gation NDCs. It must have a high technical capacity,independence from day-to-day negotiations, and theinstitutional capacity to undertake detailed interac-tions with Parties in order to understand theirprogress towards their NDC. There is a need for a per-manent institution to become a core aspect of thepost 2020 regime. Its functions would be as follows:– provide technical support and guidance to partieson mitigation (the institutional arrangements forfinance, adaptationand technologycanhaveasim-ilar function in their respective domains);

– share relevant information, knowledge, experi-ence and good practices on transparency;

– determine on progress towards the implementa-tion of NDCs and signal potential problems of im-plementation.

Therefore, the Paris agreement should establish anew body: a Committee for the Transparency andRecognition of Mitigation Action. This should workon the basis of special arrangements regarding its re-lationships with the COP (or the COP/MOP if theParis Accord is a protocol) and other institutions un-der the Convention, like the Green Climate Fund.The Transparency Committee could have two sep-

arate branches (or panels), each being governed byits own mandate and processes:- A branch/panel working on transparency of in-

dividual implementation. Its composition and exper-tise should build upon the existing arrangements(roster of experts, Expert Review Teams, TechnicalTeam of Experts, Consultative Group of Experts). Itsmandate should allow technical experts to assess theperformance of implementing measures in the lightof their effects on the basis of improved reporting re-quirements and processes as discussed above. A keyweakness of the current system is that there is no in-dependent, explicit determinationof problemsof im-plementation. In this regard, there are different op-tions to consider as how to follow up the technicalassessment made by this transparency panel:• The panel submits the report on individual imple-mentation to all Parties via the Secretariat, or

• The panel submits a synthesis report via the Sec-retariat covering all Parties but highlighting ques-tions of implementation encountered by individ-ual Parties

31 Parties shall submit BRs and BURs every two years, with the firstBR due on 1 January 2014, and the first BUR by December 2014.


- A branch/panel working on adequacy of collectiveaction with a long term goal: the panel would pre-pare every four years a report based on the compila-tion of proposed future contributions that would besubmitted to all Parties via the Secretariat, whichwould organize a consultative process to discuss thelevel of collective ambition. The 2013 - 2015 reviewprocess could inspire Parties to establish such a con-sultative procedure in a more institutionalized way.

VII. Consequences of non-compliance

1. Non-Compliance in the Existing Regime

Before addressing the potential consequences of anon-compliance with the Paris agreement, it is im-portant to recall the current consequences in casesof non-compliance with the UNFCCC, the Kyoto Pro-tocol, and the Cancun agreements.

a. Consequences of Non-Compliance with theUNFCCC

“In the event of a dispute between any two or moreParties concerning the interpretation or applicationof the Convention” the Convention contains a disputesettlement clause in its Article 14. According to thisprovision, “the Parties concerned shall seek a settle-ment of the dispute through negotiation or any otherpeaceful means of their own choice”. There is an op-tional clause for compulsory jurisdiction of the Inter-national Court of Justice or arbitration (under condi-tions of reciprocity) and, by default, a conciliationcommission which “shall render a recommendatoryaward, which the parties shall consider in good faith”.However such a provision has never been used.

For several reasons, the Parties are very reluctant toaccept a compulsory jurisdiction: only the Nether-lands has done so for both the ICJ and arbitration,and the Solomon Islands for arbitration. Because ofthe requirement of reciprocity, only a dispute be-tween the Netherlands and the Solomon Islandscould lead to a settlement under Article 14, taking theform of arbitration. Of course the Parties to a disputecan still agree to bring the matter before the ICJ oran arbitration tribunal after the dispute has arisenand only for this dispute. But this remains exception-al, in particular for a multilateral dispute, even if in-ternational law permits it.32

In addition to Article 14, the Convention providesfor a Multilateral Consultative Process (MCP) underArticle 13. TheMCP has been established by the COPin the form of a set of procedures.33 Its objective wasto resolve questions regarding the implementationof the Convention, by providing advice and assis-tance to Parties to overcome difficulties encounteredin their implementation of the Convention, promot-ing understanding of the Convention and prevent-ingdisputes. Theprocesswasdesigned tobe conduct-ed in a facilitative, cooperative, non-confrontational,transparent and timely manner, and be non-judicial,separate from, and without prejudice to, the provi-sions of Article 14 of the Convention (Settlement ofDisputes). In the Annex to the above mentioned De-cision 10/CP.4, the terms of reference given for suchprocess provide that questions regarding the imple-mentation may be raised, with supporting informa-tion, by either a Party with respect to its own imple-mentation, or a group of Parties with respect to theirown implementation, or a Party or a group of Partieswith respect to the implementation by another Par-ty or group of Parties.However, because Parties couldnot reach consensus on the composition of the des-ignated Committee in charge of conducting the pro-cedures, the MCP has never been operational.

b. Consequences of Non-Compliance with theKyoto Protocol

TheKyotoProtocol gavebirth toaveryelaborate com-pliancemechanismaiming “to facilitate, promoteandenforce compliance with the commitments under theProtocol”. It is a non-contentious procedure of con-trol of compliance and reaction to non-compliance.34

32 See the ILC Articles on State Responsibility, 2001 (art. 48), and thecommentaries of the ILC (Draft articles on Responsibility of Statesfor Internationally Wrongful Acts, with commentaries, 2001, at126). See also the 2011 advisory opinion of the Seabed DisputesChamber of the ITLOS which elaborates on the work of the ILCstating that “Each State Party may also be entitled to claim com-pensation in light of the erga omnes character of the obligationsrelating to preservation of the environment of the high seas and inthe Area” (about the Montego Bay Convention). ITLOS, AdvisoryOpinion of February 1 2011, Case N°17, Responsibilities andObligations of States Sponsoring Persons and Entities with Respectto Activities in the Area, Para. 180, available on the Internet at:<http://www.itlos.org/index.php?id=109&L=1%25252f> (last ac-cessed on 26 December 2014).

33 Decision 10/CP.4, Multilateral Consultative Process, UN Doc.FCCC/CP/1998/16/Add.1, 25 January 1999.

34 See Decision 27/CMP.1, Procedures and Mechanisms Relating toCompliance under the Kyoto Protocol, UN Doc. FC-CC/KP/CMP/2005/8/Add.3, 30 March 2006.


This procedure operates without prejudice to themore classical dispute resolution clause of the abovementioned Article 14 of the Convention which ap-plies mutatis mutandis to the Protocol.35

The first non-complianceprocedure of an environ-mental treaty was drawn up in 1990 in the frame-work of theMontreal Protocol on substances that de-plete the ozone layer.36 This pioneering procedurehas already been taken up and adapted by a dozenother environmental conventions, becoming little bylittle a standard practice. Although inspired by thesame model, all these procedures have peculiaritiesof their own. Among them, the Kyoto Protocol hasgiven rise to the most comprehensive non-compli-ance procedure to date. The importance of the envi-ronmental issues at stake and the specificity of theProtocol, which uses market mechanisms, explainthe rigour of the compliance mechanism under theKyoto Protocol. The monitoring and control proce-dure is very robust and precise. Divided into twobranches, a facilitative branch and an enforcementbranch, the Compliance Committee is quasi-judicial.Potential sanctions are essentially intended to be dis-suasive. But the “consequences” arenot punitive; theyaim at “the restoration of compliance to ensure envi-ronmental integrity, and shall provide for an incentiveto comply”. Appeal to the COP-MOP is providedagainst a decision of the enforcement branch.Although very sophisticated, the system is not

fool-proof and Canada’s withdrawal has recentlyshown how the Committee is powerless to cope withnon-compliance.37 This highlights the inherentweakness of international environmental law to pro-vide for the enforcement of state obligations againsttheir will. Perhaps more importantly, the inability ofthe compliance mechanism to alert to the evidentproblems of implementation being experienced by

Canada before its withdrawal highlights anotherweakness; this nullified eventual reputational incen-tives. This weakness should be fixed in futurearrangements.

c. Consequences of Non-Compliance with theCancún Agreements

The Cancun agreements consist of a set of COP deci-sions adopted in Cancun (2010), and completed inDurban (2011), Doha (2012), and Warsaw (2013), inthe wake of the Copenhagen accord. Their scope isextended, covering adaptation, mitigation, financeand technology. By themselves, the Cancun agree-ments do not create new international obligations (atmost they specify obligations under theConvention).Thus, regardingmitigation, pledgesmade by the Par-ties are not internationallymandatory; they are com-piled in a simple INF document.However, their implementation is subject to a

transparency regime. But in case of non-compliance,there are no consequences, except a shaming if theassessment process implicitly reveals problems ofimplementation. Furthermore, there is no compli-ance committee. A sanction would not be consistentwith the non-binding character of Cancun pledges.The system puts the stress rather on implicit reputa-tional incentives, and to a lesser degree on technicaland financial assistance, topromote implementation.

2. Consequences of non-compliance withthe Paris agreement: options and issues

These three examples showhowthe legal formwhichwill be chosen for the Paris agreement and for NDCswill shape the compliance procedures that can beused. If the core agreement is a Protocol, two mainoptions are opened regarding compliance.

a. Mandatory Substantive Obligations: if NDCsare Inscribed in a Protocol or Recognized asMandatory by the Protocol

This option allows the design of a non-compliancemechanism, potentially largely based on the multi-lateral determination of compliance and facilitativeand reputational incentives.38 Amore flexible proce-dure, mainly based on facilitation and incentives,such as that of the Montreal Protocol, would proba-

35 See Art. 19 of the Protocol.

36 Protocol on Substances that Deplete the Ozone Layer, Montreal,16 September 1987, International Legal Materials 1550 (1987).

37 See Compliance Committee, CC/EB/25/2014/2, 20 August 2014,Canada’s withdrawal from the Kyoto Protocol and its effects onCanada’s reporting obligations under the Protocol, Note by theSecretariat.

38 Few Parties to defend the maintenance of the Kyoto compliancecommittee in its two branches. See however Submission by Nepalon behalf of the Least Developed Countries Group on the ADPCo-Chairs’ Non Paper of 7 July 2014 on Parties Views and Propos-al on the Elements for a Draft Negotiating Text, at 8, available onthe Internet at: <https://ldcclimate.files.word-press.com/2014/10/submission-by-nepal-adp_21-oct-2014.pdf>(last accessed on 26 December 2014).


bly be more adapted to the current views of Parties.However sanctions could be envisaged as a last re-sort, or to be developed in a subsequent iteration ofthe regime.The scope of the procedure would have to be de-

termined: would it go beyond mitigation, includingfor example finance? Adaptation measures? MostParties take the opposite view.39 Furthermore, woulddeveloped and developing Parties be subject to thesame legal obligation from this point of view? In ad-dition, the Parties have to think about the practicaland institutional articulation between the work ofthe Compliance Committee and the TransparencyMechanism (see below). Finally, they have to fix thedecision-making power.Who is going to decide? TheCOP-MOP? The Committee? An ad hoc panel as inthe WTO model?

b. Non-Mandatory Substantive Obligations: ifNDCs are compiled in a COP-MOP decisionor an INF document

In the event of a short Protocol, laying down the ba-sic principles, and referring to a COP-MOP decisionsor an INF document for the rest (and in particularfor NDCs), it appears quite difficult if not useless todesign a robust compliance mechanism. Why elabo-rate a hard mechanism to control the implementa-tion of a soft law instrument?One option is that suchamechanismbedesigned to control compliancewithother provisions of the Protocol (procedural MRVprovisions…), in order to solidify a somewhat veryfragile system.In any event, regarding contributions to mitiga-

tion, the COP-MOP could monitor and review theirimplementation anddecide to dealwithpotential dif-ficulties. It could elaborate on the works of a com-mittee or, a minima, on a report prepared by the sec-retariatbasedonverification.Still thisposes theques-tion of the differentiation, and the question of the ar-ticulation with a transparency mechanism. But nosanction is possible, not even explicit shaming by theCOP-MOP. Assistance to States in difficulty remainspossible. It would require a procedure and an insti-tution like a compliance committee, which could benamed differently (for example an implementationcommittee).It is the same for an INF document, but the COP-

MOP has even less legitimacy in intervening in theimplementation, and in attempting to shame. This

risks withdrawal or a downward revision of NDCs.This is exactly the configuration of the Cancun agree-ments.

c. Compliance with Procedural Obligations

It should be noted that the question of compliancegoes beyond NDCs. The protocol may contain large-ly procedural obligations to implement an NDC. Ata lower level of legal force, it may merely contain aprocedural obligation to have an NDC and to respectthe relevant reporting and transparency rules. Itmayalso contain an obligation to update the NDC everynegotiation cycle (every 5 years). Themore the oblig-ations of the protocol are reduced to procedural ones,the more compliance with these procedural obliga-tions becomes important. This would particularly bethe case to operationalize the idea of a five year ne-gotiation cycle and the no backsliding principle.There should be a stringent compliance mechanismwith enforceable consequences (suspension of par-ticipation in the regime) fornon-compliancewithkeyprocedural requirements.

VIII. Conclusions

Several key messages can be distilled from the dis-cussion on the issues and options for the legal formof the new climate agreement to be adopted in Paris2015. There is a need for early clarity on the issue oflegal form and a comprehensive approach to the is-sue of legal form, based around the four pillars as-sessed here: the form of the core agreement and thelegal link with NDCs; the inscription of NDCs; themechanism for transparency, accountability and fa-cilitation and the mechanism for compliance. Con-sensus appears to be emerging around the use of ahybrid structure, with some elements in the coreagreement and some in associated implementing de-

39 See for example Independent Association of Latin America andthe Caribbean AILAC Ad-Hoc Working Group on the DurbanPlatform for Enhanced Action (ADP), Submission on the legalarchitecture and structure of the elements of the 2015 Agreement,available on the Internet at: <http://www4.unfccc.int/submis-sions/Lists/OSPSubmissionU-pload/106_99_130574193142313924-140918%20AILAC%20Submission%20ADP%202-6%20Legal%20Architec-ture,%20vf.pdf>, “Committed contributions on adaptation wouldnot be subject to the Compliance Mechanism”, at Para. 78 (lastaccessed on 26 December 2014).


cisions. This can be a useful structure to balance cred-ibility and durability with flexibility and dynamism.As a minimum the core agreement should contain alegal obligation to implement an NDC, and to updateit every five years in line with the agreed cycle of ne-gotiations. NDCs are obviously a new element of theclimate regime, the consequences of which need tobe taken into account. Their inherent diversity en-tails as a consequence even greater need for a robustmechanism for transparency, accountability and fa-cilitation. Thismechanismneeds to be the core of theParis agreement. It should have independent institu-tional capacity and a technical mandate to trackprogress, identifyproblems, andprovide support andguidance both to the implementation of NDCs andthe preparation of NDCs for subsequent rounds. Itshould be able to signal individual problems of im-plementation ahead of time (early warning system).It should have a separate branch for the assessmentof collective adequacy prior to the commencementof each commitment period.Parties may wish to include a compliance mecha-

nism in the new agreement. This should be separatefrom the mechanism on transparency, accountabili-

tyandfacilitation,both in termsof institutional struc-ture and mandate. Given the current stage of globalcooperation, it seems unlikely (and potentially unde-sirable) that countries will agree to a punitive com-pliancemechanism. However, a political mechanismcould be put in place to discuss egregious cases ofnon-compliance after the end of the commitment pe-riod. There shouldbe, however, a robust enforcementmechanism for core procedural obligations relatingto the submission, updating and reporting regardingNDCs. This is a crucial element to operationalize theconcept of a dynamic and durable agreement oper-ating on regular predictable cycles of strengthenedaction. This in turn is key to the political and legalsignal of credibility that Paris must send. From theseperspectives, one relevant option to consider wouldbe the reactivation and improvement of theMultilat-eral Consultative Process as a way of activating a sep-arate facilitative compliance mechanism under theUNFCCC40. The Paris core agreement could includea mandate to work this out before 2020 and provideguidance, in particular to arrange a link between theTransparency Mechanism and the facilitative com-pliance approach allowing the branch on implemen-tation of the Transparency Committee, as much asParties, to trigger the procedure on the basis of tech-nical assessments of implementation problems anddiscuss about possible remediation measures.

40 Sebastian Oberthür, "Options for a Compliance Mechanism in a2015 Climate Agreement", 4 Climate law (2014), at 30-49.

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