Degrees of binding; and bound by degrees
In the public debate around the UNFCCC’s COP21/CMP11 in Paris, the words “legally binding” are spoken often, yet not always well understood.
The ESD.S30 seminar at MIT opened with an exploration of the concept of “legally bound” in international law. Individual countries’ citizens are bound by national and local laws — often through the simple act of being born in a particular country. Punishments and consequences are prescribed for individuals who violate these laws.
In contrast, parties to each international agreement (such as the UNFCCC, or sub-agreements like the Kyoto protocol) voluntarily consent to be bound by its terms. Non-parties — countries which do not participate in a convention, protocol, or other agreement — do not give any consent, and consider themselves unbound.
The form of the terms is critical. The Paris outcome will include country actions in the by-now-familiar categories of mitigation, adaptation, finance, technology transfer, capacity-building, and disclosure and reporting of information. Each of these, individually, can be binding — or not. For instance, the Paris text may legally bind countries to state their plans mitigation — yet not bind them to actually carry out those plans. Often this distinction is encoded in the choice of single words: “shall” versus “should,” or “may.”
In the flurry of news surrounding the evolving Paris text and the public statements of nations, blocs and civil society groups, these distinctions are difficult to communicate and discuss. The interested COP follower should therefore look closely at any call, or statement of support, for a “binding agreement.” Who is speaking, and which parts of the agreement do they mean should be binding — in what way?
Can non-binding agreements be effective?
Consider the following agreements between a group of roommates:
- Alice, Bob and Charlie should wash their dishes each week.
- Alice, Bob and Charlie shall wash their dishes each week.
- Alice, Bob and Charlie shall wash their dishes each week. If anyone does not, (s)he should pay the others.
- Alice, Bob and Charlie shall wash their dishes each week. If anyone does not, (s)he shall pay the others $1 each.
The terms of an agreement may also include the consequences for a party which violates its obligation — like examples 3 and 4. Yet it is possible for an agreement to entirely omit specific consequences (example 2), for the consequences to be stated vaguely (example 3), or for the agreement to be non-binding (example 1).
Are such agreements ineffectual? Not necessarily.
Foreign ministries frequently and consciously use carrots or sticks in one area to influence responses in others which may seem conceptually unrelated. For instance, humanitarian aid may be tied to willingness to reduce trade barriers.
Countries which do not exhibit goodwill in one area of international relations may worry about the reaction of their multi- or bi-lateral partners in other areas. Although informal, opaque, complex and hard to decipher, these cross-topic ties are visible everywhere in international affairs, and motivate compliance even with voluntary agreements.
Half-degrees, transparency, review and ratchets
During the COP, some parties have raised the idea of shifting the longstanding target of limiting climate change to a 2°C rise from pre-industrial levels, to a more aggressive 1.5°C. At the same time, analyses of countries’ INDCs estimated their aggregate effect as limiting warming to 2.7–3.5°C, depending on assumptions.
It is unlikely that the final days of the COP will yield additional mitigation commitments adding up to that additional 0.7–2°C of avoided warming, or language (including consequences) that binds countries to carrying out those actions.
However, there are other strong legal requirements that could make Paris a significant step on the road to 2°C or 1.5°C. In particular, these concern transparency — the reporting of actions on mitigation and finance. Countries already report their emissions in varying degrees of detail. A new, binding requirement for frequent (up to annual) reporting of actions would provide the basis for RINGOs, academics and other technical organizations to evaluate progress before the 2020–2025 Paris commitment period, well in advance of the 2023 “global stocktake” proposed in Article 10 of the draft agreement.
Although such analyses would differ in their assumptions, they would provide detailed information to all countries as they seek to influence their partners into implementing their INDCs. Frequent and increasingly-detailed disclosure would also help countries encourage one another to iterate on their commitments more frequently than every five years, ratcheting up the level of effort and continuing to bend the curve of total emissions between major multilateral efforts like Paris.
