policy report

Unilateral Declarations:www.eurocapacity.org

European Capacity Building Initiativeecbi

The Missing Legal Linkin the Bali Action Plan

May 2010

Benito Müller, Wouter Geldhof
and Tom Ruys

The contents of this paper are the authors‟ sole responsibility. They do not necessarily represent
the views of the European Capacity Building Initiative (ecbi) or any of its Members.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, ortransmitted in any form or by any means, electronic, mechanical, photocopying, recording, orotherwise, without prior permission of the ecbi.

Acknowledgment:
Support for this Report, either financial or in kind, was provided by the Legal Response Initiative,(LRI) the German Ministry of Economic Development and Co-operation (BMZ), and the Swedish
International Development Cooperation Agency (Sida)
We would also like to Harald Winkler and Stephen J. Porter for their insightful feed-back.

About the authors:
Dr. Benito Müller (corresponding author) is Director, Energy & Environment, Oxford Institute forEnergy Studies, a Recognised Independent Centre of the University of Oxford. He is also Managing
Director, Oxford Climate Policy, where he directs the European Capacity Building Initiative (ecbi).
benito.mueller@philosophy.ox.ac.uk
Wouter Geldhof is partner at Stibbe Brussels, where he heads the department for energy and climate
law. He is also an affiliated researcher at the Centrum voor Milieu- en Energierecht at the Universityof Ghent as well as a member of the editorial board of the MER, responsible for energy law.
wouter.geldhof@stibbe.com
Dr. Tom Ruys is attorney at law at Stibbe Brussels. He is a senior member of the Leuven Centre for
Global Governance Studies and a substitute lecturer in public international law at the University of
Leuven.
tom.ruys@stibbe.com

Available atwww.EuroCapacity.org
www.OxfordClimatePolicy.org
www.ggs.kuleuven.be
www.ugent.be/re/publiekrecht/nl/instituten/milieu-energierecht

Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

Table of Contents
EXECUTIVE SUMMARY .............................................................................................................. 1
PART I. THE PROPOSAL ............................................................................................................ 3
1. The Problem .................................................................................................................................. 3
2. Unilateral Declarations − The Strategic Arms Limitation Talks ............................................. 5
3. The Missing Legal Link ................................................................................................................ 6
3.1 Plan B ....................................................................................................................................... 7
3.2 Plan B Evaluation .................................................................................................................... 7
3.2.1 BASIC: ............................................................................................................................................. 7
3.2.2. United States .................................................................................................................................... 7
3.2.3. Annex B ........................................................................................................................................... 8

3.3 Plan C ....................................................................................................................................... 8
3.4 Plan C Evaluation .................................................................................................................... 8
3.4.1. US and Annex B .............................................................................................................................. 8
3.4.2. BASIC ............................................................................................................................................. 9

3.5 Conclusion.............................................................................................................................. 10

PART 2. THE LEGAL FRAMEWORK ......................................................................................... 12
4. ‘Legally Binding’?....................................................................................................................... 12
4.1 Main Sources of International Law ...................................................................................... 12
4.1.1 Treaties ........................................................................................................................................... 12
4.1.2 Customary law ................................................................................................................................ 13
4.1.3. General principles of law, judicial decisions, and doctrine ........................................................... 14

4.2 Other Sources of International Law?.................................................................................... 15
4.2.1. Decisions of International Organizations (IOs) ............................................................................. 15
4.2.2. Decisions by Conferences of the Parties ........................................................................................ 15

4.3 Practical Implications – the ‘Compliance Pull’ of international law .................................. 17
4.3.1. International law Enforcement Bodies .......................................................................................... 17
4.3.2. Legally binding – what‟s in a name? ............................................................................................. 18
4.3.3. The compliance pull of the Kyoto Protocol ................................................................................... 20

5 Unilateral Declarations ................................................................................................................ 225.1. The principle recognized by the ICJ..................................................................................... 225.2. Conditions – the Guiding Principles .................................................................................... 23
5.3. Unilateral declarations concerning greenhouse gas emission reductions .......................... 25
Table of Boxes
Box 1. Applying UDs as the Missing Legal Link in the BAP – a schematic blueprint .......................... 2
Box 2. The Bali Road Map LCA-track Compromise ............................................................................. 3
Box 3. Chinese NAMA Notification, 28 January 2010 ........................................................................ 10
Box 4. Joint Statement, Third Meeting of BASIC Ministers Cape Town, 25 April 2010 .................... 10
Box 5. Sources of international law ...................................................................................................... 16

2

Executive Summary
The Bali UN Climate Conference in December 2008 succeeded in resolving a long-standing
disagreement between developing countries and the USA by introducing a special negotiating trackon Long-term Cooperative Action (LCA) under the UN Framework Convention on Climate Change− as separate from the Kyoto Protocol (KP) negotiation track − and by introducing a clear distinction
within the former between the mitigation agenda for developing and for developed countries (inparagraphs 1.b.i and 1.b.iii). However, what the Bali Conference did not achieve, was a consensus on
how the outcome(s) of the two tracks would relate to each other – what the legal form of the
Copenhagen Agreed Outcome (CAO, as it was known) would be.
There was a clear effort in the months leading up to the Copenhagen Climate Conference inDecember 2009 to „fuse‟ the two tracks, i.e. to have a single outcome, preferably in the form of alegally binding international treaty to supplant the Kyoto Protocol (which was meant by some to be
based on the „key elements‟ of the Protocol). However, since Copenhagen, almost everybody hasrealized that this is not going to happen, that we are back on the twin-tracks of the Bali Action Plan
(BAP), and back with the question of what the legal format of a Cancun Agreed Outcome (again
CAO) in December this year could be.
The problem is that if key Parties in the KP-track insist that all major economies take on legallybinding commitments through a global and comprehensive climate treaty, then the negotiations seemto be doomed to have no agreed outcome. The aim of this Report is to suggest a way forward which
could avoid this doomsday scenario.
The solution to the legal format problem proposed here is based on the fact that treaties are notthe only way in which countries can bind themselves internationally. An alternative instrument which
has been used in the past – for example in avoiding the breakdown of the second round of theStrategic Arms Limitation Talks (SALT II) between the US and the then USSR – is that of issuing a
Unilateral Declaration (UD).
The proposal, described in some detail in Part I of this Report, is simply to use such Unilateral
Declarations to provide a legal patch between the simplest outcomes of the two tracks, namely anamendment of the Protocol regarding a post-2012 commitment period for the KP-track, and a set of
COP decisions under the LCA-track. As summarized in Box 1, the idea is that key Parties would
endorse certain aspects of the LCA outcome through Unilateral Declarations, which would hopefully
be sufficient for the Annex B Parties to the Kyoto Protocol to agree on a second commitment period.
The point here is simply that, in principle, it is possible to have a (mitigation) deal which islegally binding for all of the key Parties which, while being compatible with the twin-track approachof the Bali Action Plan, does not rely on a grand-unifying treaty. It is possible to patch the twin-tracksof the Bali Action Plan together through the use of Unilateral Declarations.
This patchwork solution clearly lacks the elegance of the sort of global cap-and-trade deal somemight wish to see. However, it may well work, making it worth considering – before throwing out thebaby with the global trading treaty bathwater and sacrificing it on the altar of a global carbon price!
The Second Part of the Report is devoted to providing some legal background on InternationalLaw, Unilateral Declarations, and what it means to be legally binding. The concept „legally binding‟is, certainly not a binary one (black or white) in international law. It should not be mixed up withi

See Box 2.

Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010„enforceability‟ or „enforcement‟. The compliance pull of the Kyoto Protocol, which is generally
accepted to contain „legally binding‟ emission reduction obligations, might, everything being taken
into account, appear to be less stringent or deterrent than one might suppose. The concept „legallybinding‟ in international law is rather a question of grey scales between the extremes of white andblack.
Unilateral Declarations do not figure amongst the main sources of international law, namely
treaties, customary law, general principles of law, judicial decisions, and the teachings of the mosthighly qualified legal experts. Nevertheless Unilateral Declarations were, for example, used in theStrategic Arms Limitations Talks. The legally binding character of Unilateral Declarations was
confirmed by the International Court of Justice in the Nuclear Test Case. In this case the ICJ defined
the two main conditions for Unilateral Declarations to be legally binding: (1) the acts should be public
or generally known, and (2) should evidence the intention of the State to be bound. These conditions
have recently been codified and refined in the „Guiding Principles applicable to Unilateral
Declarations of States capable of creating legal obligations‟ adopted by the International Law
Commission.
Unilateral Declarations regarding emission reduction obligations, and the monitoring andverification thereof are feasible from an international law point of view and could be used as a way
out of the actual climate negotiation stalemate.

Box 1. Applying UDs as the Missing Legal Link in the BAP – a schematic blueprint
Step 1 (treaty law):

Amendment of the Kyoto Protocol and its Annex B

Step 2 (COP/CMP):(1) Adoption of a set of COP decisions providing for an opt-in mechanism,
through which non-KP parties could assume binding commitments by meansof UDs, and; the installation of a verification regime(2) Alternative approach: parallel COP & CMP decisions (a) providing for an
opt-in mechanism, through which non-KP parties could assume binding
commitments by means of UDs (COP), and; (b) opening up the Kyoto
verification regime (itself established through a CMP decision) – andpossibly the Kyoto flexibility instruments ? – to non-KP parties issuing such
UDs (COP & CMP)

Step 3 (UDs):

Issuance of legally binding Unilateral Declarations through which States
would opt-in to unconditional (US?) and/or conditional (BASIC countries?)
commitments, and would signal participation in the COP/CMP-establishedverification regime (possibly also in the flexibility mechanisms?).

Each of the three steps would need to come about more or less simultaneously, as part of a global
package deal. The conditional or unconditional commitments of the US and the BASIC countries wouldin this hypothesis derive their legally binding character directly from the UDs (and not from the COP
decisions).

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Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

Part I. The Proposal
1. The Problem
Ever since the 1997 Byrd-Hagel US Senate Resolution in the US Senate,i it has been clear that themain problem in setting up an international climate change regime is to balance demands for equal ordifferentiated treatment between three key „players‟: the US, the major developing countries (theBASIC Groupii), and the Kyoto Protocol Parties with mitigation commitments (Annex B). ByrdHagel demanded completely equal treatment of the US with the BASIC countries, which, for wellknown reasons, was completely unacceptable to them. The US repudiation of the Protocol in 2001
almost led to its demise, not least because some Annex B countries felt, for a number of reasons −such as competitiveness concerns – that they could not take on legally binding targets in the absenceof the US (or the BASIC Group). As it happens, the Kyoto Protocol did enter into force, but these
tripartite tensions did not disappear, as witnessed in December 2007 at the Bali Climate Conference,
which was to set the agenda for negotiations of the future of the UN climate change regime.

Box 2. The Bali Road Map LCA-track Compromise
The Conference of Parties […] decides to launch a comprehensive process to enable the full, effective andsustained implementation of the Convention through long-term cooperative action, now, up to and beyond
2012, in order to reach an agreed outcome and adopt a decision at its fifteenth session, by addressing,inter alia, […] enhanced national/international action on mitigation of climate change, including, interalia, consideration of:[1.b.i]

Measurable, reportable and verifiable nationally appropriate mitigation commitments or actions,
including quantified emission limitation and reduction objectives, by all developed country
Parties, while ensuring the comparability of efforts among them, taking into account differencesin their national circumstances;[1.b.ii] Nationally appropriate mitigation actions by developing country Parties in the context ofsustainable development, supported and enabled by technology, financing and capacity-building,in a measurable, reportable and verifiable manner;

The main achievement of Bali was that by introducing two distinct negotiating tracks, thetripartite problem was „factored‟ into two distinct issues:(i) the relationship between the US and the BASIC countries, to be dealt with under thenegotiations of the „Ad Hoc Working Group on Long-term Cooperative Action under theConvention‟ (AWG-LCA), andi105th Congress, 1st Session, S.Res. 98, 25 July 1997.

ii

Brazil, China, India, and South Africa.

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Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010(ii) the relationship between the outcome of these negotiations and the outcome of thenegotiations of the „Ad Hoc Working Group on Further Commitments for Annex I Parties
under the Kyoto Protocol‟ (AWG-KP).
The breakthrough of the last night at Bali, in turn, was the agreement between the US and theBASIC countries as to the general format of their relationship under the AWG-LCA, enshrined inparagraph 1.b of the Bali Action Plan (see Box 2). The obvious similarities between 1.b.i and 1.b.ii
enabled the US to claim that their demand for equal treatment was sufficiently respected, while theequally obvious differences (nationally appropriate mitigation actions or „NAMAs‟ versus quantified
Emission Limitation and Reduction Objectives or „QELROs‟) enabled the BASIC countries to claimthat differentiated treatment was sufficiently retained. It was a major compromise on both sides, andsomething that must not be jeopardized in the endgame of the negotiations.
What Bali did not manage to achieve, however, was agreement on the second „factor‟ – therelationship between the outcome(s) of the two negotiating tracks, i.e. on the form of the „Copenhagen
Agreed Outcome‟. Given that the outcome of the AWG-KP – which is after all the AWG on Further
Commitments for Annex I Parties under the KP − is meant to be an amendment of the Kyoto
Protocol, and in particular of its Annex B and, as such, part of a legally binding treaty, the debate has
essentially become focused on whether the outcome of the AWG-LCA would be a set of COP
decisions, or a legally binding treaty (either complementing, replacing, or subsuming the Kyoto
Protocol).
The USA has no intention of ratifying the Kyoto Protocol, and prefers an “Implementing
Agreement”. Through a set of clear decisions under the UNFCCC, this would formalize andstrengthen the existing provisions of the Climate Change Convention for voluntary, non-binding
commitments to reduce GHGs and report on emissions. This kind of “pledge-and-review”
mechanisms would provide an international platform for a country to pledge an economy-wide
emission target, or a policy or set of actions. There would also be transparency mechanisms forreporting and reviewing emissions data, but no sanctions for not meeting the pledge.i
Many of the KP Annex B Parties have insisted from the outset that the US should be underlegally binding obligations. The US, true to Byrd-Hagel, objects that this would only be possible if theBASIC countries were also legally bound. Developing countries, in turn, have insisted that there be no(structural) changes to either the Kyoto Protocol or the Convention, ruling out, in particular, any such
legally binding treaty outcome for the LCA-track. According to them, the only acceptable outcome ofiKristian Tangen, The Odd Couple? The Merits of two Tracks in the International Climate Change
Negotiations, Briefing Paper 59, The Finnish Institute of International Affairs, 30 April 2010: p.3

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Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

the negotiations is an amendment of Annex B for the AWG-KP, and a (set of) COP decisions for the
AWG-LCA. The European Union, for its part, has repeatedly made a binding increase of its emissions
reduction target (from 20 to 30 per cent) conditional on the conclusion „of a global andcomprehensive agreement for the period beyond 2012‟, whereby „other developed countries commit
themselves to comparable emission reductions and developing countries contribute adequately
according to their responsibilities and respective capabilities‟.i
In light of the above, we are thus, de facto, left with two options: either everyone is legallybound, or nobody is. Also, given the situation described in the previous paragraph, one could beforgiven for thinking that we are doomed to the second option: a „regime‟ of „Implementing
Agreements‟ with merely domestic commitments, if any at all. However, this is not necessarily thecase. Indeed, with international attention focused steadily on the need for a new or amended treaty,
the fact that the conclusion of such a treaty is not the only option in international law through whichcountries may assume legally binding obligations is often ignored. In this context, we believe that therecourse to binding Unilateral Declarations, in combination with a set of COP decisions and an
amendment of the Kyoto Protocol, could perhaps offer a way out of the present stalemate.ii

2. Unilateral Declarations − The Strategic Arms Limitation Talksiii
Our proposal on the legal format of the twin-track negotiation outcome is based on a legal
instrument which was used to overcome a similar problem in nuclear arms control negotiations
between the USA and the then Soviet Union in the late 1970s. The first round of Strategic Arms
Limitation Talks (SALT I) between the United States and the then Soviet Union led to a five year
Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Arms („Interim
Agreement‟) which stated that parties intended to replace it as soon as possible with a morecomprehensive agreement. As the 3 October 1977 expiry date of the Interim Agreement drew nearer,
however, it became apparent that the SALT II negotiations on this more comprehensive agreement
would not be concluded until after that date.

i

For example, EU, Council conclusions on Climate Change, follow-up to the Copenhagen Conference, Brussels,
15 March 2010, paragraph 10.
ii

Indeed, it would provide a tool to overcome the strongest argument put forward against the twin-track
approach advocated in Tangen (2010), namely that if there is an alternative framework that is less binding, no
new countries will adopt Annex B commitments and some of the current Annex B countries will refuse to
inscribe post-2012 commitments[p.6f.]
iii

Source: George A. B. Peirce, „Arms control: SALT − unilateral policy declaration by the United States‟,
Harvard International Law journal, Vol.19 (1978), pp: 372-7.

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Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

On 23 September 1977, US Secretary of State Cyrus Vance issued a unilateral declaration
indicating the intention of the United States to take no action inconsistent with the provisions of theInterim Agreement during the second round of talks (SALT II), provided that the Soviet Union
exercise similar restraint. The Soviet government issued an analogous declaration on 26 September.
This led to two interrelated debates: on one hand, concerning the legal status of such a
declaration under international law, and, on the other, whether President Carter had the competence,
under US constitutional law, to have such a Unilateral Declaration issued.i
While their binding character is examined in greater detail in Part 2 below, it is sufficient at thispoint to stress that Unilateral Declarations may, under certain conditions, effectively generate legallybinding obligations on the part of the issuing State. The main requirement is that the declarations are
public, and manifest the State‟s will to be bound. Opinions of both the International Court of Justiceand its predecessor, the Permanent Court of International Justice, indeed support the proposition that a
unilateral statement may bind a state when the statement expresses an intention to be bound which
could in good faith be relied on by other states, and the representative issuing the statement has theauthority to do so.ii

3. The Missing Legal Link
Clearly, the failure of START II to produce an agreement in time to prevent a gap in applicableinternational law strikes an unhappy chord with respect to the current climate change negotiations.
However, it may also hold the solution. It seems fair to say that Plan A, namely to replace the Kyoto
Protocol with a treaty with legally binding commitments for all key Parties (US, Annex B, BASIC) as
the outcome of the twin-track negotiations, did not survive Copenhagen.iii In other words, the time forPlan B has come, but what, short of giving up the international effort, could this be?

iRemark: Whether the President had the authority to issue the unilateral declaration in question depended
primarily on whether it contravened Section 33 of the Arms Control and Disarmament Act which prohibits any
such legally binding agreement obligating the US to limit its armaments without authorization by Congress
through legislation or Senate consent to a treaty. While the President enjoys broad constitutional powers in the
conduct of foreign policy, including the authority to conclude executive agreements without congressional
consent, such binding agreements must be consistent with pre-existing legislation enacted by Congress in theexercise of its constitutional authority.
ii

It may moreover be noted that, by virtue of their functions, heads of State, heads of Government and ministers
for foreign affairs are always considered competent under international law to formulate such declarations,regardless of their precise constitutional prerogatives. The implication is that if such a declaration is issued byeither of the aforementioned authorities, the State will be legally bound under international law, even in the
hypothesis that the person making the declaration overstepped his or her constitutional competences. See infra,
Section 5.
iii

For more on this, see Benito Müller, Copenhagen 2009 − Failure or final wake-up call for our leaders?,
Oxford Institute for Energy Studies, EV49, February 2010. Available at www.OxfordClimatePolicy.org

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The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

3.1 PLAN B
During the 2009 ecbi Oxford Seminar, a senior negotiator mentioned the idea of a Unilateral
Declaration as a means of establishing the LCA-KP balance for developed countries, as referred to inparagraph 1.b.i. without having to give up or amend either the Kyoto Protocol, or the Convention. In
other words, the idea was for the LCA outcome to be a COP decision, but with an added Unilateral
Declaration by the US acknowledging the relevant obligations of the decision, which would makethem legally binding in international law.
AWG-KP Outcome: Amendment of Annex B to the Kyoto Protocol
AWG-LCA Outcome: A set of COP decisions, to be endorsed by a Unilateral Declarationfrom the US.
3.2 PLAN B EVALUATION
How might this plan fare with the main protagonists?
3.2.1 BASIC:
It is hard to see how there could be any resistance from the BASIC Group, or indeed from any
developing country, to such an outcome. It corresponds precisely to their preferred outcome, with orwithout US endorsement.
3.2.2. UNITED STATESGiven the obvious difficulties in obtaining the two-thirds Senate majority required to ratify aninternational treaty, this solution might be acceptable to the US administration, provided it does notcreate any strong domestic backlash, particularly with respect to the need to seek the „advice andconsent of the Senate‟.i However, the SALT II case suggestsii that it might be possible to avoid such abacklash if the UD is based on a simple majority Senate resolution, such as the one previously
sponsored by Senators Byrd and Hagel.

i

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur; [US Constitution, Art 2.2].
ii

Some senators remained concerned, however, that the United States declaration was a „diplomatic innovation,
the Parallel Unilateral Policy Declaration (PUPD)‟, by means of which the President could circumvent theconstitutional requirement for advice and consent of the Senate to a treaty. On 3 October 1977, the Senate
considered a concurrent resolution expressing its support for the administration‟s stated intention to continue toabide by the terms of the Interim Agreement. The Chairman of the Senate Foreign Relations Committee
explained that the resolution was not intended to imply that congressional consent to the Executive‟s action was
required or that the United States was bound by the declaration. During debate, however, the resolution was
returned to the Foreign Relations Committee on a point of order and was not re-introduced.

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Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

Having said this, it might also be seen by the US as disrupting the delicate Bali Action Plan
balance between the US and the BASIC countries, by requiring only the former to issue such a
declaration.
3.2.3. ANNEX B
Would a US UD concerning the outcome of the LCA negotiations be sufficient to get Annex B Parties
to agree on a second commitment period of the Kyoto Protocol? Not necessarily. One factor is thatsuch an agreement not only depends on the legal format of the outcome, but also on its substance. In
particular, given paragraph 1.b.i of the Bali Action Plan (see Box 2), it stands to reason that the US
would have to take on mitigation obligations which are not only measurable, reportable, andverifiable, but also comparable in effort to the envisaged second commitment period targets. Given
the debates in Copenhagen, the type of verification envisaged may also be an issue.
However, these substantive issues are quite independent of the legal format, in the sense that they
will have to be resolved in order to achieve the presupposed get the presupposed agreed outcome of
the AWG-LCA track in the first place. In the present context, a more important potential obstacle toPlan B might be for some Annex B Parties to join a potential US objection demanding some form oflegal commitment by the BASIC Group Parties. Given the sensitivity of such a demand, it would be
difficult not to interpret it essentially as a sign of bad faith – for trying to avoid the blame of failing toagree on a second commitment period to which one has no intention of agreeing oneself. However,just in case this is not so, there might just be a Plan C that could conceivably overcome even thisobstacle.
3.3 PLAN C
Plan C is essentially the same as Plan B, with the addition of further UDs by the BASIC countries:
AWG-KP Outcome: Amendment of Annex B to the Kyoto Protocol
AWG-LCA Outcome: A set of COP decisions, to be endorsed by Unilateral Declarations
from the US and the BASIC countries.
3.4 PLAN C EVALUATION
3.4.1. US AND ANNEX B
Being essentially the same as Plan B with respect to the demands on either the US or Annex B Parties,
the relevant points raised in the previous evaluation also apply here. Indeed, both plans sharesomething else that has not yet been mentioned, namely the temptation of Annex B Parties to forgo
the Kyoto Protocol and to opt for the UD-route instead. In the context of Plan C, at least, this would
not be a wise move. While the US might not be too bothered, it would remove any chance that the8Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

BASIC Group members would even contemplate to issue their own UDs. Indeed, the likelihood that
this might happen is one of the key questions in this scenario.
Another key question concerning plan C, which is not intrinsically a „global and comprehensive
agreement for the period beyond 2012‟, is whether it will prove sufficient to move the EU from its
present 20 per cent emission reduction target to the 30 per cent emission reduction target for theperiod beyond 2012. The EU focus on a global and comprehensive agreement was again reflected in
the EU‟s notification to the UNFCCC Secretariat of 28 January 2010: „as part of a global andcomprehensive agreement for the period beyond 2012, the EU reiterates its conditional offer to moveto a 30 per cent reduction by 2020 compared to 1990 levels, provided that other developed countries
commit themselves to comparable emission reductions and developing countries contributeadequately according to their responsibilities and respective capabilities‟.i Will the EU stick to arather formal vision based on this legal format or will an (as to substance) acceptable package deal
suffice to move towards its 30 per cent target? This could lead to a heavy debate within the EU.
However, the Commission communication of 9 March 2010, referred under the heading „negotiations
roadmap‟ to „a legally binding global deal‟. This wording is coming closer to the wording used by, forexample, Australia („global deal … advanced economies take on commitments comparable toAustralia‟s‟) and Japan („fair and effective international framework in which all major economies
participate and on agreement by those economies on ambitious targets‟) in their notifications to the
UNFCCC Secretariat, which are more neutral as to the legal format of the outcome of theinternational climate change negotiations.
3.4.2. BASIC
It is difficult to say whether the BASIC countries would be amenable to this sort of a solution. The
key attraction, as mentioned above, of both plans for the BASIC countries − indeed for developing
countries generally − would be the format of the outcome of the negotiations: the retention of the
Kyoto Protocol, and a (set of) COP decisions for the LCA-track following the guidance of the Bali
Road Map.
The main difficulty, however, would clearly be the long-standing refusal by many developing
countries, including from the BASIC Group, to take on legally binding targets as part of an outcomeof the current negotiations. China, in particular, has been absolutely clear on this: the communication
to the UNFCCC Secretariat regarding the Nationally Appropriate Mitigation Actions (NAMAs) China
is willing to undertake stresses that these are voluntary in nature (see Box 3).

i

Text available at http://unfccc.int/files/meetings/application/pdf/europeanunioncphaccord_app1.pdf

9Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

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May 2010

Box 3. Chinese NAMA Notification, 28 January 2010
China will endeavor to lower its carbon dioxide emissions per unit of GDP by 40-45 per cent by 2020
compared to the 2005 level, increase the share of non-fossil fuels in primary energy consumption toaround 15 per cent by 2020 and increase forest coverage by 40 million hectares and forest stock
volume by 1.3 billion cubic meters by 2020 from the 2005 levels.
Please note that the above-mentioned autonomous domestic mitigation actions are voluntary in nature
and will be implemented in accordance with the principles and provisions of the UNFCCC, in particular
Article 4, paragraph 7.
http://unfccc.int/files/meetings/application/pdf/chinacphaccord_app2.pdf

Having said this, the Chinese communication might actually point to the way in which Plan C
might have a chance of implementation after all. As in the case of the US UD, the key here is thesubstance of the envisaged BASIC UDs. As mentioned above, it seems extremely unlikely that, say,
China would even contemplate turning the submitted autonomous NAMAs figures into internationallybinding obligations. However, what if the subject of the BASIC UDs were the sort of NAMAs
actually referred to in the Bali Action Plan (paragraph 1.b.ii, see Box 2), i.e. actions which aresupported and enabled by technology, financing and capacity-building, in a measurable, reportableand verifiable manner? Indeed, what if they referred to conditional obligations of the form „if we
receive that much support, then we will mitigate this much‟? It would seem that this ought to be lessobjectionable to the Parties in question than the idea of simple (absolute/unconditional) binding
obligations, but it is difficult to judge whether they would be willing to entertain this in exchange fora second commitment period of the Kyoto Protocol. However, this is really an issue of substancewhich goes beyond the remit of this brief.
Moreover, judging from the communiqué of the most recent BASIC meeting (see Box 4), theidea of some form of legally binding outcome of the LCA track seems to be no longer complete
anathema among the group members, and it might just be that the sort of conditional obligations
referred to above could be an acceptable legally binding outcome, if adopted through the use of UDs.

Box 4. Joint Statement, Third Meeting of BASIC Ministers Cape Town, 25 April 2010
3. The Ministers agreed that in accordance with the mandate of the Bali Roadmap, such agreements must
follow two tracks and include an agreement on quantified emission reduction targets under a second
commitment period for Annex I Parties under the Kyoto Protocol, as well as a legally binding
agreement on long-term cooperative action under the Convention. Ministers felt that a legally binding
outcome should be concluded at Cancún, Mexico in 2010, or at the latest in South Africa by 2011.

3.5 CONCLUSION
In principle, it is possible to have a legally binding (mitigation) deal for all the key Parties which,while compatible with the twin-track approach of the Bali Action Plan, does not rely on a grand-

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unifying treaty. It is possible to patch the twin-tracks of the Bali Action Plan together through the useof Unilateral Declarations.i
This patchwork solution clearly lacks the elegance of the sort of global cap-and-trade deal somemight wish to see. However, it may well work, and deserves to be considered – before throwing out
the baby with the global trading treaty bathwater and sacrificing it on the altar of a global carbon
price!

i

The unilateral declaration „tool‟ could also be used under the UNFCCC, in line with the stand-still principle inenvironmental law and/or the precaution principle, in order to bridge a possible normative gap in anticipation of
the achievement of a new treaty or an amendment of the Kyoto Protocol.

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Part 2. The Legal Framework
4. ‘Legally Binding’?
Given the widespread insistence that the ongoing negotiation process should result in a „legallybinding‟ outcome, it is worth having a preliminary look at the precise meaning of that phrase, bothfrom the perspective of legal theory, as well as from a more practical angle. It may be observed at theoutset that there are widely divergent perceptions on the advantages and disadvantages of „legallybinding‟ emission reduction commitments under international law. On one hand, many in thedeveloping world fear an encroachment on their sovereignty, in particular their sovereign entitlement
to economic development. On the other hand however, particularly in the developed world,
sometimes suggest that it is, in any event, useless to agree on such „legally binding‟ commitments,
since international law is ultimately voluntary and incapable of effective enforcement. As always, thetruth is far more nuanced.
4.1 MAIN SOURCES OF INTERNATIONAL LAW
In essence, the main sources of international law (see Box 5) can be found in the Statute of theInternational Court of Justice (hereafter „ICJ‟), annexed to the Charter of the United Nations. i Article
38 of the ICJ Statute identifies four different sources: treaties, customary law, general principles oflaw, and judicial decisions and teachings.
4.1.1 TREATIESFirst and foremost, the provision refers to „international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states‟. It is clear that treaties, whatever their
particular form or designation, are the most common source of international law. This holds true formost branches of international law, including international environmental law, a branch governed byan ever-growing body of framework treaties and implementing protocols/annexes. The conclusion oftreaties, their validity and interpretation is authoritatively regulated by the 1969 Vienna Convention
on the Law of Treaties.ii

iStatute of the International Court of Justice, San Franciso, 26 June 1945, 1 U.N.T.S. xvi.

ii

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331.

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Multilateral treaties, such as the UNFCCC and the Kyoto Protocol, generally come into being
after long periods of negotiations which take place under the auspices of an international conferencei
or the UN General Assembly. When the text does not contain any indications as to how interested
States should express their „consent to be bound‟, the mere signing of the draft treaty will serve bothto confirm the final text as well as to express the signing State‟s participation to the treaty. However,most modern-day multilateral treaties, including the UNFCCC and the Kyoto Protocol, expressly
provide that States, after „signing/adopting‟ the final treaty text, will only become bound once they
have proceeded to „ratification‟. This additional procedural step generally enables States to obtain theapproval of their domestic legislatures before assuming legally binding commitments. States whichwere not amongst the initial signatories of the treaty text will often be able to „accede‟ to it at a laterstage. In addition, many multilateral treaties state that they will only „enter into force‟ once a certain
minimum number of ratifications has been secured.ii
Given that sovereign States are ultimately free to sign up to a treaty or not, most multilateraltreaties also contain procedural instructions to be followed by States if they choose to withdraw fromthem. Thus, Article 27 of the Kyoto Protocol recognizes that KP parties may withdraw from theProtocol „at any time after three years from the date‟ of entry into force „by giving written notification
to the Depositary. Any such withdrawal shall take effect upon expiry of one year from the date ofreceipt (…) of the notification of withdrawal (…)‟. In principle, withdrawal from treaties is not
subject to any form of penalization as such.
4.1.2 CUSTOMARY LAW
A second source – and one which is typical for international law – concerns „customary law‟. This
concept is described in Article 38(1)(b) of the ICJ Statute as „a general practice accepted as law‟.
From this description – and from the ICJ case law on the matteriii – it can be derived that „custom‟
presupposes two distinct elements: first, a practice which is exercised by a considerable part of theinternational community (i.e., state practice, or the material element), and; second, the conviction that
this practice is carried out „as of right‟ (i.e., opinio iuris, or the subjective element). The latter element
serves to distinguish customary norms from mere comity or habit. (Clearly, the fact that Statesi

For example, the UNFCCC came about as a result of the UN Conference on Environment and Development(UNCED), held in Rio de Janeiro in June 1992.
ii

Article 25(1) of the Kyoto Protocol, for example, provided that the Protocol would enter into force 90 days
„after the date on which not less than 55 Parties to the [UNFCCC], incorporating Parties included in Annex I
which accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the Parties
included in Annex I‟ had ratified it.
iii

For example: ICJ, Continental Shelf case (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985,(1985) I.C.J. Rep., p. 13, at paragraph 27.

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consistently use white paper for diplomatic correspondence does not imply that they consider this toresult from any legal obligation whatsoever. By contrast, if coastal States consistently proclaim a 200mile exclusive economic zone off their coast, an argument can gradually be made that they do this „asof right‟.)
In principle, customary and treaty law carry the same authority in the hierarchy of sources.i
Moreover, contrary to multilateral treaties, States cannot simply withdraw from existing norms ofgeneral customary law.ii On the other hand, custom is admittedly more „difficult‟ to identify andassess.iii Indeed, given the fact that it is in principle an unwritten source of law and that it evolves
gradually, it is often far more difficult to determine the precise content of customary rules, and to
identify at what moment in time they become binding on states. In any event, since state practicerequires a certain lapse of time in order to ripen into international custom, and since international
environmental law is a relatively young branch of law, the role of custom is rather limited in this field.
It is obvious, in this context, that custom cannot in any way be used to force binding emission
reduction obligations on States unwilling to sign up to a new or amended treaty.
4.1.3. GENERAL PRINCIPLES OF LAW, JUDICIAL DECISIONS, AND DOCTRINE
Two sources of lesser importance are also listed in Article 38(1) ICJ Statute. Thus, paragraph c refersto „general principles of law recognized by civilized nations‟. This is a somewhat archaic phrase
which points to the residuary role of legal principles that surface in virtually all domestic legal
systems, such as the „estoppel‟ principle or the rule that no one can be judge and party in the samecase. Finally, paragraph d acknowledges that „judicial decisions and the teachings of the most highly
qualified publicists‟ qualify as a subsidiary means for the determination of rules of law.

i

Conflicts between customary and treaty norms are in principle settled along the lex posterior and lex specialis
axioms. Put differently, in case of conflict (1) the later norm takes precedence over the older norm, and (2) the
more specific rule takes precedence over the more general one.
ii

Remark: It should be kept in mind that while customary norms may cover rights and obligations that are nototherwise reflected in any treaty instrument, the two sources may also overlap. Thus, many multilateral treaties
contain rights and obligations which are also considered to be part of general customary international law (think,for example, of certain norms dealing with the conduct of hostilities, enshrined in the 1977 First Additional
Protocol to the Geneva Conventions). The implication, in the latter scenario, is that these rights and obligations
will apply to States, regardless of their having ratified the relevant treaty.
iii

An ICJ judgment „finding‟ the existence of a customary norm may be particularly helpful. At the same time, it
must be stressed that such judgment will not be the actual „source‟ of the norm under consideration (this will be
the combination of State practice and opinio iuris).

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4.2 OTHER SOURCES OF INTERNATIONAL LAW?
4.2.1. DECISIONS OF INTERNATIONAL ORGANIZATIONS (IOS)
While Article 38 of the ICJ Statute neatly sums up the main sources of international law, the list is not
exhaustive. Indeed, even if no mention thereof is made in the aforementioned provision, it is acceptedthat decisions of international organizations (IOs) may also give rise to international rights andobligations, at least insofar as the IO is acting in a supranational capacity. Thus, when the UN
Security Council adopts a decision under the famous Chapter VII of the United Nations Charter, it isin fact establishing legally binding obligations. In similar vein, when the Council of the European
Union adopts a Regulation on a trade-related matter, it is in a sense creating (regional) internationallaw.
Caution is needed, however. Indeed, as States are rather fond of their sovereign prerogatives, it ishighly exceptional for an IO to be endowed with supranational competences. Most internationalorganizations – including the UN General Assembly – have no authority to take binding decisions visà-vis States. Insofar as such bodies do adopt declarations of a general normative character, theresulting instruments will merely constitute examples of so-called „soft law‟. Contrary to what thelabel might suggest, „soft law‟i is of a „political‟ or „recommendatory‟, rather than „legally binding‟,
nature, although it may gradually pave the way for formal legislation, or may inspire evolutions incustomary international law. Otherwise, international organizations‟ „binding‟ power is generally
limited to their internal organization and functioning. IOs may indeed use their competences toimplement the tasks entrusted to them in their founding treaties, without, however, creating
autonomous rights or obligations for States Parties.
4.2.2. DECISIONS BY CONFERENCES OF THE PARTIESThe same is true, mutatis mutandis, for decisions of Conferences of the Parties, established undercertain multilateral treaties. On one hand, in the case that a treaty grants a COP far-reaching powers to
adopt binding decisions – whether by consensus or by (simple or qualified) majority – affecting therights and obligations of the States Parties, the resulting COP decisions will indeed give rise to„international law‟. An interesting case at hand is the Montreal Protocol to the Vienna Convention for
the Protection of the Ozone Layer. Article 2.9 of this Protocol unequivocally grants the COP theauthority to make significant changes to the obligations of the Parties to reduce consumption andi„Soft law‟ instruments are fairly common in the international environmental domain. One of the oldest
examples is the 1972 Stockholm Declaration adopted at the UN Conference on the Human Environment.

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production of controlled substances, by way of simple COP decisions.i On the other hand however, aswith IOs, such situations are very much the exception. Most „COPs‟ are indeed construed as „mere‟
implementing bodies, tasked with the accomplishment of the international rights and obligations
incorporated in the original treaty text, or, in other words, with secondary decision-making. The sameis true for the UNFCCC COP. Article 7(2) UNFCCC, for example, provides that the COP „shallmake, within its mandate, the decisions necessary to promote the effective implementation of theConvention‟ and shall make „recommendations on any matters necessary for the implementation of
the Convention.‟Box 5. Sources of international law
Main sources of international law (Article 38 ICJ Statute) result from diplomatic negotiations
 consent to be bound is normally expressed through signing, ratifying,…
- Custom requires (1) State practice that is sufficiently uniform, constant, and general,
and which demonstrates (2) an „acceptance or recognition of this practice as law‟
- General principles
 supplementary/residuary role
- Case law & legal doctrine subsidiary role
- Treaties

Other sources of international law-

Decisions of IOs  mostly limited to implementation and secondary decision-making
 ability to create legal rights and obligations depends on founding treaty
COP decisions  idem
Unilateral statements & acts can be legally binding if (1) the acts are public or generally known, and(2) reflect the intention of the State to be bound

It should be added that when the original treaty provides for an implicit (rather than explicit)
grant of authority to the Conference of the Parties – as is often the case – a reserved approach isneeded. COP decisions that are based on an implicit grant of authority, and that contain allegedly
binding obligations on States parties, indeed rest on shaky legal grounds. When a COP decision has
been adopted by consensus, no problems may arise as long as the political consensus underlying it
holds. However, once the underlying consensus unravels and/or a Party fails to abide by its
obligations, the weak basis of the decision is bound to create legal problems. ii Thus, even if Article
9(1) of the Kyoto Protocol suggests that the CMPiii may take „appropriate action‟ in relation to theiSee: CAN International, „COP decisions: binding or not?‟, 8 June 2009, available at
http://www.climatenetwork.org/climate-change-basics/by-meeting-and-date/bonn-ii-june2009/COP%20Decisions_CAN_legal_group_June%208_09.pdf, at 3.
ii

See ibid., at 2 (referring to two precedents where, following political and legal criticism, far-reaching COP
decisions were eventually replaced by formal amendments of the relevant treaties). See also below, Section 4.3.,
on the creation of the Kyoto compliance regime through a CMP decision.
iii„Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol‟

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periodical review of the Protocol, this provision does not give the CMP „carte blanche‟ to impose newbinding obligations.i In this context, there can be no doubt that the adoption of new binding emission
reduction targets post 2012 must take the form of a formal amendment to the Kyoto Protocol inaccordance with Articles 20 and 21 (or of a new treaty altogether), rather than a mere CMP decision.
Finally, having regard to the provisions of the UNFCCC and the Kyoto Protocol, a set of COP
and/or CMP decisions would appear to provide an insufficient legal basis on which to impose
adequately binding commitments with respect to quantified emission reduction commitments, or
financial obligations for developed countries. The respective handicaps of a COP and/or CMP
decision could, however, be tackled by having recourse to a supplementary tool, namely „Unilateral
Declarations‟. Indeed, in order to complete our overview of sources of international law, reference
must be made to „unilateral statements and acts‟. Within certain confines, legal doctrine asserts thatsuch acts may generate legally binding obligations on the part of the State concerned. Their (possible)
legal nature is examined in greater detail in Section 5 below.
4.3 PRACTICAL IMPLICATIONS – THE ‘COMPLIANCE PULL’ OF INTERNATIONAL LAW
4.3.1. INTERNATIONAL LAW ENFORCEMENT BODIES
Having identified the various sources of international law, the question which arises next is whatpractical value can be attached to their „legally binding‟ character. In this context, it is sometimes
argued that the whole construction of international law is a chimera, since, in contrast to the domestic
legal order, there is no guarantee that the law is enforced and perpetrators sanctioned.ii This criticism
is certainly understandable insofar as there exists no „central enforcer‟ to ensure state compliance withinternational rules, and adjudication of inter-State disputes ultimately rests on the voluntary consent ofStates to submit their dispute to an international tribunal or to arbitration.iii Thus, even if a state makes
a declaration accepting the compulsory jurisdiction of the International Court of Justice under Articlei

The Kyoto Protocol does, however, contain various provisions that enable the CMP to take specific action withrespect to rule-making. Article 3(4), for instance, states that the CMP „shall decide rules as to which (…)
additional human induced activities and land use change and forestry categories (…) shall be added to theassigned amounts for Annex 1 Parties‟. See also Articles 5(1), 6(2), 7(4), 8(4), 12(7), 16, 17, 18.
ii

See: J. Austin, „The Province of Jurisprudence Determined‟, in C. Morris (ed.), The Great Legal Philosophers,
University of Pennsylvania Press, Philadelphia, 1971, p. 352.
iii

The UN Security Council cannot be considered as a central judicial enforcer. On one hand, the Council cannot
take binding action in relation to each and every dispute concerning the application of international law; its
coercive powers are confined to situations where there exists a „threat to the peace, a breach of the peace or an
act of aggression‟ (Article 39 UN Charter). In addition, it is obvious that the Security Council is an inherently
political body, rather than an impartial judicial organ. It is tasked with the preservation of international peaceand security, not with upholding international law. It may be recalled, for instance, that the permanent members
are in any event shielded from any form of coercive action as a result of their veto power.

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36 ICJ of the Statute, it remains free to revoke this declaration under certain conditions – as bothFrance and the USA did following adverse rulings from the Court in 1974 and 1984 respectively.i
4.3.2. LEGALLY BINDING – WHAT‟S IN A NAME?
At the same time, a number of reservations are relevant. First, the analogy with the domestic legal
order is not entirely correct.ii Many violations of domestic law, such as traffic offences or tax fraud,
undeniably go unpunished. However, no one will therefore state that traffic rules or tax law are not„legally binding‟. In addition, when the state authorities are condemned by a national court of law,
there is again no external force to guarantee the implementation of this adverse judgment. If thejudgment is carried out, this is usually because the executive branch itself chooses to do so.iii
Second, while enforcement mechanisms are clearly less developed in international law, this does
not mean that they are wholly absent. The UN Convention on the Law of the Sea (UNCLOS 1982)
and the WTO dispute settlement understanding, for instance, provide for ambitious frameworks of(quasi-) judicial dispute settlement. It should moreover be observed that when a state is affected by
non-compliant behaviour of another state, it may under certain conditions engage in proportionate
unilateral countermeasures (these are deliberate breaches of international legal obligations owed to theperpetrator state, and which are aimed at halting abusive behaviour on the part of the latter).iv
Third, it may be noted that law is not „law‟ because it is enforced, it is enforced because it is„law‟; and enforcement would otherwise be illegal.v In other words, the preferred view seems to bethat sanctioning, while desirable for reasons of efficiency and justice/equity,vi is not a precondition fora rule to be „law‟, but rather a consequence. Indeed, international legal norms can be considered „law‟i

The USA withdrew after the ICJ asserted jurisdiction vis-à-vis a claim lodged by Nicaragua concerning US
assistance to the contras. France revoked its declaration accepting compulsory jurisdiction in light of the
Nuclear Test case (concerning French nuclear tests in the Pacific Ocean). It should be stressed, however, that a
withdrawal from compulsory jurisdiction under Article 36 ICJ Statute will only produce results for the future(and not for claims already filed with the ICJ).
ii

For an interesting critique, see: A. D‟Amato, „Is International Law Really “Law”?‟, (1984–5), 79
Northwestern U.L. Rev., pp. 1293–1314.
iii

Abstracting from rules of constitutional and/or procedural law in States allowed to enforce judgments
condemning State(s) (authorities) to pay damages or penalties by e.g. sequestrating State property.
iv

See on this Articles 47–50, International Law Commission, Commentary on the Draft Articles on the
Responsibility of States for Internationally Wrongful Acts, (2001-II) Y.B.I.L.C. Vol. 2, 31.
v

G. Fitzmaurice, „The general principles of international law considered from the standpoint of the rule of law‟,(1957) 92-II R.d.C., pp. 1–227, at 45.
vi

cf. „Justice must not only be done, but must also be seen to be done.‟18

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because states consider them obligatory and because they believe that a sanction, while perhaps notforthcoming, would be an appropriate response to their violation.i
In the end, it is remarkable that, in spite of the relatively underdeveloped enforcement ofinternational legal norms, scholars (both legal scholars and international relations adepts) widelyagree with Louis Henkin‟s famous observation that „almost all nations observe almost all principles
of international law and almost all of their obligations almost all of the time‟.ii This illustrates that
judicial enforcement is only one of several factors inducing compliance with international law.
Another important aspect of the „compliance pull‟ of international legal norms flows from the factthat they generally serve a state‟s interests, and tend to become an integral part thereof. For thisreason, states will often comply with an institution‟s set of rules, even if their short-term interest
would dictate otherwise. For example, a state on the losing end of a World Trade Organization
arbitration would comply with that arbitration award because it could expect to win any subsequentdispute, and would then justifiably expect the losing party to comply, in deference to the ongoingpractice of compliance.iii The long-term interest in a „managed anarchy‟ generally prevails over the
short-term profit gained from „free-riding‟. Furthermore, compliance with international law cannot
simply be reduced to a rational calculation of costs and benefits. It is indeed an inherent feature ofinternational relations that states‟ conduct is subject to community judgment, and that statesconsequently feel the need to explain, defend, and justify their actions, and to persuade others in
relation to its permissibility.iv This generates pressure to comply, on one hand, out of a common senseof being part of a community – states desire to be perceived as a member of the international
community in good standing, and will behave in a certain way because they see it as „the right thing todo‟. Hence, „peer review‟ and/or „naming and shaming‟ may exercise an important influence,
especially in relation to those branches of international law which are of interest to the international
community as a whole, such as international criminal law, human rights law, and also international
environmental law. On the other hand, repeated application of certain international norms, such as theiA.C. Arend, „Toward an Understanding of International Legal Rules‟, in R.J. Beck, A.C. Arend and R.D.
Vander Lugt, International Rules: approaches from International Law and International Relations, OUP,
Oxford,:1996, pp. 289–309, at 291; G. Fitzmaurice, „The Foundations of the Authority of International Law and
the Problem of Enforcement‟, (1956) 19 Modern L. Rev., pp. 1–13, at 8. See also: R. Kolb, Réflexions dephilosophie du droit international, Bruylant, Brussels, 2003, pp. 414–24.
ii

L. Henkin, How Nations Behave. Law and Foreign Policy, Columbia University Press, New York, 1979, (2nded.), at 47.
iii

T.M. Franck, „The power of legitimacy and the legitimacy of power: international law in an age of power
disequilibrium‟, (2006) 100 A.J.I.L., pp. 88–106, at 92.
iv

See e.g., I. Johnstone, „Security Council Deliberations: The Power of the Better Argument‟, (2003) 14 E.J.I.L.,
pp. 437–80.

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rules pertaining to diplomatic and consular law, may also lead to a form of obedience to the rules as amatter of habit or of bureaucratic routine.
Without engaging in an in-depth study of the „compliance pull‟ of international law, it is clearthat the latter notion should not be narrowed down to the threat of sanctions sensu stricto.i Several
authors have even stressed that when compliance is based on various coercive devices – such as
economic sanctions or exclusion (the enforcement model) – treaty regimes are usually less efficientthan when compliance is based on instruments of active management – such as reporting and datacollection, verification and monitoring, capacity-building, and strategic review.ii In sum, it must be
kept in mind that while different (treaty, customary, or other) international rules may be equally„binding‟ on states from a legal perspective, their practical „compliance pull‟ may vary considerably.
The obvious starting point is to verify whether the rules under consideration can be invoked before anational or international court of law, yet, this should not be our exclusive focus. Other relevant
factors include, among others, the extent to which the norms serve states‟ long-term interests; theexistence of reporting and monitoring procedures; the nature of the rules (technical or normative); andtheir degree of precision (vague norms are more easy to circumvent than more determinate ones).
4.3.3. THE COMPLIANCE PULL OF THE KYOTO PROTOCOL
If we now turn to the possible ‘compliance pull’ of the binding emission reduction targets under the
existing Kyoto Protocol, it must be observed at the outset that there appears to be virtually no scopefor judicial enforcement in case of non-compliance. Contrary to, for instance, either the UN
Convention on the Law of the Sea or the WTO Dispute Settlement Understanding, the Kyoto Protocol
does not provide for any form of judicial or quasi-judicial sanctioning. Furthermore, given that the
obligations concerned are not directly owed to other States, it appears highly questionable whether aState would have the required interest or locus standi to bring a claim of non-compliance before theInternational Court of Justice.iii

i

For a brief overview, see e.g., T. Ruys, „When law meets power: public international law and the recourse to
military force‟, in W. Devroe, E. Claes & B. Keirsbilck (eds.), Facing the Limits of the Law, Springer, 2008, pp.
253–72, at 253–61.
ii

See in particular: A. Chayes and A.H. Chayes, The new sovereignty: compliance with international regulatory
agreements, Harvard University Press, Cambridge, 1995, at 25, 271–85.
iii

In principle, a State‟s breach of international law can only be invoked before an international court or tribunal(such as the ICJ) by an injured State. For instance, Article 42 of the ILC Draft Articles on State responsibility
suggests that:„A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is
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On the other hand, it is true that the CMP has worked out an internal sanction regime,i according
to which an Annex I party exceeding its assigned amount (i) loses its eligibility under the internationalemission trading regime, (ii) has to submit a compliance action plan, and (iii) has to make up the
difference in the following period, plus an additional 30 per cent of the excess emissions. In addition,
non-compliance by an Annex I party with its monitoring and reporting obligations of articles 5 and 7of the Protocol is sanctioned by the suspension of eligibility to the flexible mechanisms.ii
The CMP decision establishing the aforementioned compliance regime was adopted in Montreal
at the first Meeting of the Parties and was based on Article 18 of the Kyoto Protocol, which states
that:„The Conference of the Parties serving as the meeting of the Parties to this Protocol [CMP] shall,at its first session, approve appropriate and effective procedures and mechanisms to determine and toaddress cases of non-compliance with the provisions of this Protocol, including through thedevelopment of an indicative list of consequences, taking into account the cause, type, degree andfrequency of non-compliance. Any procedures and mechanisms under this Article entailing binding
consequences shall be adopted by means of an amendment to this Protocol.‟It may be observed, however, that the CMP decision concerned not only installed „procedures
and mechanisms to address cases of non-compliance‟ – in the sense of Article 18 KP – but also
provided for binding consequences in cases of non-compliance. In other words, the decision could be
regarded as an example of a COP decision going beyond the explicit grant of authority incorporated in
the founding treaty (cf. supra). As a result, it might be expected that the effect of the absence of anunequivocal legal basis of the Kyoto compliance regime – more particularly the absence of a formal(b) a group of States including that State, or the international community as a whole, and the breach of
the obligations:i.) specially affects that State; orii.) is of such character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.‟
In light of the reference to „specially affected‟ States in Article 42(b)(i), the question could nonetheless be raised
whether the ICJ would be willing to accept jurisdiction if a claim were to be brought by an island State such as
Tuvalu, or by one of the least developed countries threatened with advancing desertification, against an Annex
B State that would appear to be in manifest breach of its obligations under the Kyoto Protocol and that has
issued a declaration accepting the compulsory jurisdiction of the Court (under Article 36 of the ICJ Statute).
i

See „Procedures and Mechanisms relating to compliance under the Kyoto Protocol‟ (Decision 24/CP.7).

ii

See e.g. the decision of the Enforcement Branch of the Compliance Committee CC-2009-1-8/Croatia/EB of 26
November 2009 which suspended Croatia‟s eligibility to participate in the mechanisms under 6 (JI), 12 (CDM)
and 17 (emission trading).

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amendment as prescribed by Article 18 KP – will arise when an enforcement decision would entail
harsh consequences for a non-compliant Member State.i
As a result of the aforementioned „amendment issue‟ and because the sanction of making up the
difference plus 30 per cent of the excess emissions in the following commitment period has little
meaning as long as there is no second commitment period, the compliance regime of the Kyoto
Protocol would appear less severe than one might conclude at first sight.ii
Still, this does not detract from the fact that the Kyoto Protocol is a legally binding instrument. iii
Nor does it imply that the Kyoto regime does not exert any „compliance pull‟ whatsoever. However, itappears that the Protocol derives its „compliance pull‟ mainly from factors other than the existence ofan actual sanction regime. Indeed, the Protocol seems to be built along what the Chayeses havedescribed as a „management model‟, based on reporting and data collecting obligations, periodical
review etc., rather than an „enforcement model‟.iv In addition, it is clear that for a high-profile
multilateral treaty, which the Kyoto Protocol undoubtedly is, „peer pressure‟ and „naming andshaming‟ are forces to be reckoned with.

5 Unilateral Declarations
5.1. THE PRINCIPLE RECOGNIZED BY THE ICJ
Earlier, we attested that, in addition to the more „traditional‟ sources of international law, such astreaties and custom, „unilateral acts and statements‟ may also give rise to legal rights and obligations
under international law. By way of illustration, reference was made to the US and Soviet declarations
in relation to the Strategic Arms Limitation Talks (Section 2). Another prominent example is thedeclaration issued in 1957 by the Egyptian government concerning the use of the Suez Canal, in
which certain international obligations were accepted. The declaration was communicated to the UN

i

M. Montini, „The compliance regime of the Kyoto Protocol‟ in W.Th. Douma, L. Massai and M. Montini(eds.), The Kyoto Protocol and Beyond. Legal policy challenges of climate change, Asser, The Hague, 2007, pp.
102 and 104–5.
ii

Remark: in the event that the Kyoto Protocol were to be amended to address a second commitment period, itwould appear desirable to simultaneously rectify the imperfect legal basis of the existing compliance regime.
iii

For example, P. Cameron, „History of climate change law and policy‟ in P.Q. Watchman (ed.), Climate
Change: A Guide to Carbon Law and Practice, Globe Business Publishing, London, 2008, p 31; Y.
Slingenberg, „The international climate policy developments of the 1990s‟ in J. Delbeke et al (eds.), EU Energy
Law. Volume IV. EU Environmental Law. The Greenhouse Gas Emission Trading Scheme, Claeys & Casteels,
2006.
iv

See in particular: A. Chayes and A.H. Chayes, The new sovereignty: compliance with international regulatory
agreements, Harvard University Press, Cambridge, 1995, at 25, 271–85.

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The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

Secretary-General, together with a letter explaining that it was to be considered as an „international
instrument‟ and registered as such by the UN Secretariat.i
The legally binding character of certain unilateral acts and statements was explicitly confirmedby the International Court of Justice in the 1974 Nuclear Test cases. In this case, Australia and New
Zealand submitted a claim before the ICJ in relation to French nuclear tests.ii Interestingly, the Court
concluded that France was legally bound by repeated public statements, made by French officials inpreceding years, attesting that France would no longer conduct atmospheric nuclear testing in the
Pacific Ocean. The Court explained that for unilateral acts to have legal consequences, (1) the actsshould be public or generally known, and (2) should show the intention of the State to be bound. Aslong as the act was explicit and unambiguous, the form was deemed irrelevant. There was moreoverno requirement of a quid pro quo or of any subsequent acceptance or response by other States.iii
In the Frontier Dispute case, the ICJ moreover recognized that in order to be „legally binding‟,
unilateral acts and statements must not necessarily be directed specifically to one or more individualState.iv The implication is that, when a State unilaterally assumes obligations, such as emission
reduction targets, which are not „owed‟ to any State in particular but which affect the international
community as a whole, they may equally be regarded as sources of international law. At the sametime, the Court warned that one should be cautious in deriving legally binding obligations fromunilateral conduct, especially „when it is a question of unilateral conduct not directed to any particular
recipient‟.v In other words, in the latter case, the threshold of proof as to the existence of an intent tobe bound should be applied particularly strictly.
5.2. CONDITIONS – THE GUIDING PRINCIPLES
Authoritative guidance on the preconditions and binding impact of Unilateral Declarations can befound in the ‘Guiding Principles applicable to unilateral declarations of States capable of creatingi

See I. Brownlie, International Law, OUP, Oxford, 7th ed., 2008, at 641.

ii

ICJ, Nuclear Test Case (New Zealand & Australia v. France), Judgment of 20 December 1974, paragraphs 43
et seq. Consider also: PCIJ, Legal Status of Eastern Greenland, Judgment of 5 April 1933, Series A/B53.
iii

I. Brownlie, International Law, OUP, Oxford, 7th ed., 2008, at 641.

iv

ICJ, Frontier Dispute Case (Burkina Faso v. Mali), Judgment of 22 December 1986, paragraphs 39–40.

v

Ibid. The Court moreover emphasized that, in the context of the Nuclear Test cases, the French government
could not have expressed an intention to be bound „otherwise than by unilateral declarations‟. Also urging acautious approach: ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark & theNetherlands), Judgement of 20 February 1969, paragraphs 27–8.

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The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

legal obligations’ adopted by the International Law Commission (ILC) in 2006.i The first principle
unequivocally confirms that „[d]eclarations publicly made and manifesting the will to be bound may
have the effect of creating legal obligations. When the conditions for this are met, the binding
character of such declarations is based on good faith; States concerned may then take them into
consideration and rely on them; such States are entitled to require that such obligations be respected.‟
Principle 1 thus essentially reiterates the two requirements spelled out by the ICJ in the Nuclear
Test cases. The fourth Guiding Principle adds a supplementary requirement: „A unilateral declaration
binds the State internationally only if it is made by an authority vested with the power to do so.‟ At thesame time, in accordance with the law of treaties,ii the provision affirms that „[b]y virtue of theirfunctions, heads of State, heads of Government and ministers for foreign affairs are competent toformulate such declarations.‟iii Hence, if either of the aforementioned authorities would issue a
Unilateral Declaration, stating that his or her country will assume binding emission reduction targets,
the State concerned would be legally bound at the international level, regardless of the precise
parameters of the person‟s constitutional prerogatives.iv
Principles 3,v 5vi and 7vii elaborate on the idea that, while the precise form of a Unilateral
Declaration (written or oral) is immaterial, it will only entail obligations for the formulating State if itis stated „in clear and specific terms‟, taking account of the circumstances at hand.
In accordance with the ICJ‟s Frontier Dispute judgment, Principle 6 recognizes that Unilateral
Declarations „may be addressed to the international community as a whole, to one or several States ori

ILC, „Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations,with commentaries thereto‟, 2006, available at
http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf.
ii

Cf. Article 7(2), 46 Vienna Convention on the Law of Treaties; Article 3 of the ILC Draft Articles on State
responsibility.
iii

ILC, „Guiding Principles‟, Principle 4: „(…) Other persons representing the State in specified areas may be
authorized to bind it, through their declarations, in areas falling within their competence.‟iv

Thus, the Commentary to „Principle 4‟ observes that in the case of a declaration by the Colombian Foreign
Minister about Venezuelan sovereignty over the Los Monjes archipelago, „the note itself was set aside indomestic law because its author had no authority to make such a commitment, yet the Colombian authorities did
not challenge the validity of the commitment at the international level.‟ Ibid.
v„To determine the Legal effects of such declarations, it is necessary to take account of their content, of all thefactual circumstances in which they were made, and of the reactions to which they gave rise.‟vi„Unilateral declarations may be formulated orally or in writing.‟vii„A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specificterms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations
must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given
first and foremost to the text of the declaration, together with the context and the circumstances in which it wasformulated.‟24

Unilateral Declarations
The Missing Legal Link in the Bali Action Plan

Müller, Geldhof, and Ruys
May 2010

to other entities‟. Last but not least, Principle 10 stresses that a Unilateral Declaration that has createdlegal obligations for the State making the declarationi cannot be revoked arbitrarily: „In assessing
whether a revocation would be arbitrary, consideration should be given to: (a) any specific terms ofthe declaration relating to revocation; (b) the extent to which those to whom the obligations are owed
have relied on such obligations; (c) the extent to which there has been a fundamental change in thecircumstances.‟
Interestingly, the ILC‟s Commentary on the „Guiding Principles‟ contains an extensive analysisof the ICJ‟s case law on the topic, and makes reference to a variety of relevant precedents. Apart fromthe aforementioned declaration by Egypt on the Suez Canal and French statements on nuclear testing,examples include among others: Jordan‟s waiver of claims to the West Bank territories; the „Ihlen
Declaration‟ by the Norwegian Foreign Minister on the topic of Denmark‟s sovereignty overGreenland; Swiss statements concerning the privileges and immunities of United Nations staff; adeclaration by the Colombian Foreign Minister about Venezuelan sovereignty over the Los Monjes
archipelago; a declaration by the Cuban Foreign Minister concerning the supply of vaccines to
Uruguay, etc.ii
5.3. UNILATERAL DECLARATIONS CONCERNING GREENHOUSE GAS EMISSION REDUCTIONS
It is therefore perfectly possible for Unilateral Declarations to entail legally binding obligations for
the State concerned, including obligations pertaining to emission reduction targets and the like. The
essential conditions are that the declarations are public and/or generally known, and that they clearlyreflect an intention to be bound. In the case of a formal, written statement – possibly deposited with
the UN Secretariat or the UNFCCC Secretariat – everything would hinge upon the actual text of thestatement and the surrounding context. If the statement were to be cast in terms of being voluntary, or
as a political commitment of some sort, it should not be regarded as a source of international law. In
contrast, if the statement were to unequivocally proclaim that the State concerned considers itself
bound by the – conditional or unconditional – obligations mentioned therein, there would be no doubt
as to its legally binding character. Furthermore, it must be recalled that the official issuing thedeclaration should be competent to do so, albeit with the notable qualification that heads of State,heads of Government or Foreign Ministers are in any event considered competent to bind theiriRemark: as recognized in Principle 9, unilateral declarations cannot result in obligations for other States. By
analogy: Articles 34–5 Vienna Convention on the Law of Treaties (on the (im)possibility for treaties to entail
obligations for third parties).
ii

ILC, „Guiding Principles‟. For an extensive analysis, see: „ILC, Eighth Report on unilateral acts of States:consideration of certain acts‟, 26 May 2005, Doc. A/CN.4/557, available at
http://untreaty.un.org/ilc/guide/9_9.htm.

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The Missing Legal Link in the Bali Action Plan

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May 2010

country internationally. In other words, if the US President were to issue a Unilateral Declaration
setting out binding emission reduction targets, it would be immaterial from an international legal
perspective whether or not he or she was acting within the boundaries of his or her constitutional
powers.
Within the confines spelled out above, the obligations laid down in a „Unilateral Declaration‟
could be as „legally binding‟ as comparable obligations enshrined in a treaty or originating incustomary law. What then about their „compliance pull‟? Admittedly, the prospect for judicial
enforcement would be as slim as for the existing commitments under the Kyoto Protocol (cf. supra).
Conversely, „peer pressure‟ and „naming and shaming‟ could also act as forceful factors inducing
compliance vis-à-vis unilateral emission reduction commitments. Admittedly, by contrast, thecompliance pull of the Unilateral Declarations would be less strong than that of the Kyoto
commitments, insofar as the mechanisms of „active management‟ – i.e. reporting and data collection,verification, monitoring, capacity-building, etc. – would not ipso facto apply to the former. As
mentioned in Part 1, this handicap could be redressed by means of a set of COP (or COP and CMP)
decisions, such as the envisaged AWG-LCA outcome, providing for the possibility of States „optingin‟ to such implementation mechanisms (either those existing under the Kyoto Protocol or new ones)
by expressly subscribing thereto in their Unilateral Declarations.

26