The Durban Decision (1/CP.17), which launched the Durban Platform for Enhanced Action, calls for parties to adopt “a protocol, another legal instrument or an agreed outcome with legal force” at the COP21 to be held in Paris later this year. Various technical and legal questions have been raised about the meaning of these terms. Whereas the United Nations Framework Convention on Climate Change (UNFCCC) has direct provisions for the adoption of future protocols under its framework, there is no clarity about “another legal instrument” and an “agreed outcome with legal force”. There are various legal options for the form of the final outcome in Paris that comes under the three broad options listed in the Durban Decision. While any outcome in Paris can be potentially called ‘Paris Agreement’, it must be noted that in international law, an agreement may or may not refer to a legally binding arrangement ; the legally binding nature will depend upon its terms for commitments, compliance and enforcement. This presentation was made by IIED's Achala Abeysinghe and Caroline Prolo for "Climate change negotiation skills: training for LDC negotiators" on 29-31 July 2015 in Bangkok, Thailand.

1. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
1Options for the Legal Form of the Paris Outcome
Author name
Date
Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
Achala Abeysinghe and Caroline Prolo
Contact:
Dr. Achala Abeysinghe
Achala.Abeysinghe@iied.org
Options for the Legal Form
of the Paris Outcome
Climate Change Negotiation Skills: Training for LDC
Negotiators
29-31 July 2015

2. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
2Options for the Legal Form of the Paris Outcome
The Durban Decision
“a protocol, another legal instrument or
an agreed outcome with legal force
under the Convention applicable to all
Parties.”

3. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
3Options for the Legal Form of the Paris Outcome
Options are...
1. “a protocol”...
2. “another legal instrument”
3. “an agreed outcome with legal force”

4. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
4Options for the Legal Form of the Paris Outcome
Option 1: “A Protocol”
• A protocol is a treaty
• In MEAs, they usually
assume the form of a new
“treaty within the treaty”
• Autonomous legal
instruments, though aimed
at furthering into detail the
implementation of the
Mother Convention
• A protocol is usually legally
binding

5. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
5Options for the Legal Form of the Paris Outcome
Key provisions of a Protocol
• Preamble
• Objectives: “In pursuit of the ultimate
objective of the Convention as stated in its
Article 2…” (KP)
• Core Commitments
• Institutional arrangements
• Decision-making bodies and process
• Compliance
• Procedural provisions: entry into force,
withdrawal, reservations, etc

6. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
6Options for the Legal Form of the Paris Outcome
Protocols in the UNFCCC
Article 17:
“1. The Conference of the Parties may, at any ordinary session,
adopt protocols to the Convention.
2. The text of any proposed protocol shall be communicated to the
Parties by the secretariat at least six months before such a
session.
3. The requirements for the entry into force of any protocol shall
be established by that instrument.
4. Only Parties to the Convention may be Parties to a protocol.
5. Decisions under any protocol shall be taken only by the Parties
to the protocol concerned.”

7. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
7Options for the Legal Form of the Paris Outcome
Option 2: “Another Legal
Instrument”
•“another”: another legally binding
instrument other than a Protocol
•Other legal instruments provided in the
UNFCCC: amendment and annex to the
Convention

8. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
8Options for the Legal Form of the Paris Outcome
An Annex
• Article 16 UNFCCC
• An integral part of the
Convention
• Limited to “lists, forms and any
other material of a descriptive nature
that is of a scientific, technical,
procedural or administrative character”
• Annex I and Annex II to the
Convention
• Six-month rule
• ¾ majority adoption and
ratification

9. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
9Options for the Legal Form of the Paris Outcome
An Amendment
• Article 15 UNFCCC
• Legally binding
• Can introduce new obligations,
principles and objectives to the FCCC
• Six-month rule
• ¾ majority for adoption and ratification

10. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
10Options for the Legal Form of the Paris Outcome
Option 3: “An agreed outcome
with legal force”
• Compromised in Durban
• Not necessarily a legally binding
outcome
• Legally binding at the domestic level

11. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
11Options for the Legal Form of the Paris Outcome
A set of COP decisions
• Art. 7 of the UNFCCC
• Legally binding?
• The “necessary to
promote the effective
implementation of the
Convention”
• COP can’t create new
obligations, such as in
finance
• Decisions taken by
consensus

12. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
12Options for the Legal Form of the Paris Outcome
A political agreement
• Lacks legal
enforceability
• Non-prescriptive soft-
worded provisions
• Measures are
voluntary but may be
ambitious
• The Copenhagen
Accord

13. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
13Options for the Legal Form of the Paris Outcome
Option 4: An implementing
agreement
• Aimed exclusively at implementing the
Convention (a protocol can create new
obligations)
• Reinstatement of the Convention
• Can be legally binding

14. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
14Options for the Legal Form of the Paris Outcome
Option 5: A mixed
outcome
• A combination of legally binding and
non-legally binding instruments
• Protocol (on mitigation and adaptation)
+ set of COP decisions (means of
implementation) + Annex for INDCs

15. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
15Options for the Legal Form of the Paris Outcome
Options on the legal
form
1. Protocol
2. Annex
3. Amendment
4. Set of COP decisions
5. Political Agreement
6. Implementing
Agreement
7. Mix outcome

16. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
16Options for the Legal Form of the Paris Outcome
Key References
• UNFCCC English
http://unfccc.int/files/essential_background/background_publications_htmlpdf/applicati
on/pdf/conveng.pdf
French:
http://unfccc.int/files/cooperation_and_support/cooperation_with_international_organi
zations/application/pdf/convfr.pdf
• Kyoto Protocol English:
http://unfccc.int/resource/docs/convkp/kpeng.pdf
French: http://unfccc.int/resource/docs/convkp/kpfrench.pdf
• Durban decision English
http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf
French
http://unfccc.int/resource/docs/2011/cop17/fre/09a01f.pdf#page
• Paris Agreement- Formal negotiating text English:
http://unfccc.int/resource/docs/2015/adp2/eng/01.pdf
French:
http://unfccc.int/resource/docs/2015/adp2/fre/01f.pdf
• Vienna Convention on the Law of Treaties
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-
English.pdf

17. Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
17Options for the Legal Form of the Paris Outcome
Author name
Date
Achala Abeysinghe
and Caroline Prolo
29-31 July 2015
Thank you!
Dr. Achala Abeysinghe
Principal Researcher/ Team Leader
Global Climate Law, Policy and Governance
International Institute for Environment and Development
Achala.abeysinghe@iied.org