News, 3 December 2015

A legally binding agreement in Paris? Points to watch

Achala Abeysinghe sets out the key requirements for a legally binding agreement on combatting climate change at the Paris summit.

Representatives of more than 190 countries are gathering in Paris to negotiate an agreement on how to combat global climate change. A key issue is whether the talks will result in an agreement that is legally binding. 

Last month there was consternation when US Secretary of State John Kerry said that the Paris summit would not result in a legally binding treaty. European Union climate negotiators responded by saying that an agreement at the 21st Conference of Parties (COP21) in Paris would have to contain legally binding elements.

Abeysinghe is currently legal and technical adviser to the chair of the Least Developed Countries (LDC) Group for the UNFCCC. In this role she has been closely involved with the climate talks, and she is in Paris for the talks.

In a new video she sets out the key elements to watch for in relation to the results of the Paris talks. She says that the Durban Mandate (PDF), which was agreed by the 2011 COP, asks parties to negotiate an agreement which legal in nature, and which is applicable to all parties and which covers all thematic areas of the climate change regime. 

What does 'legally binding' mean?

Abeysinghe says that under international law, a legally binding agreement implies an agreement adopted under the Vienna Convention of Law of Treaties (PDF). The document can be a treaty, a protocol or just an agreement.

Abeysinghe says: "What is most important is when you look at the agreement [and] whether it is legally binding or not, is the obligations within it and the provisions to actually enforce those obligations."

She says that for the Paris agreement to be most effective, it will need to contain obligations for conduct as well as obligations for results.

"Obligations for conduct means parties will have obligations to communicate a pledge on mitigation, on finance and even on adaptation, and maintain that pledge over time to realise their mission."

She says another key element will be rules around transparency of action, as well as rules around accountability.

The final point to look for is a section on compliance. She says: "What happens if I don't keep to my obligations? That means you have to have some kind of provisions to ensure enforcement, or ensure compliance under the agreement." 

She says some parties do not want the strictest enforcement mechanisms. She says: "They want to have non-punitive, non-judicial, non-intrusive, facilitative mechanisms to ensure compliance. So we don't know how the agreement is going to look like in Paris."

Abeysinghe recently set out nine key reasons why the Paris climate agreement must be legally binding

Dr Abeysinghe was last month named as one of the world's top women climate champions. Professor Maria Ivanova, a member of the Scientific Advisory Board of the UN Secretary-General, noimated Abeysinghe and commended her for her work in supporting the voices of the most vulnerable countries.

IIED will be at the Paris climate conference and has produced a series of video interviews with experts discussing key aspects of the UNFCCC process.