During a lecture given on Monday 9 November at the Collège de France, the President of the Republic, François Hollande, launched an idea that curiously went almost unnoticed. That of creating an Environmental Security Council within the UN. The idea? To have a body to make decisions taken in favour of the climate binding.
Aa COP21 is approaching. It is the great appointment that we must not miss for the States responsible for the future of our survival on this planet. Good will is being expressed every day and there is a strong current of change in mentalities in favour of measures to protect our climate. However, there is one major unknown: what is the legal nature of the agreement that will hopefully be concluded in Paris? Is it a treaty or simply an informal agreement between states? Are the commitments that the parties will make binding? Who will ensure that they will be respected?
There's a big blur here.
As proof, a beginning of polemic has been born these last few hours, triggered by the words of John Kerry, the American Secretary of State. He said to the Financial Times Wednesday that the decisions taken at COP 21 are not legally binding. He justifies this position by arguing that the agreement will not be a Treaty and therefore will not have the same legal value.
Our Minister of Foreign Affairs and future President of COP21, Laurent Fabius, reacted immediately by declaring to the press in Malta, on the margins of the European Union-Africa Summit: " I had my friend Kerry call me yesterday...« said Laurent Fabius." We need to be very clear; we can discuss, and lawyers will do so, the legal nature of the agreement: does it have to be a treaty, an international agreement, etc.?"
" On the other hand, the fact that a number of provisions must have a practical effect, be legally binding, is self-evident.« he added.
" Let's not confuse-perhaps Mr. Kerry did-that it's the legal nature of the agreement and then the fact that obviously the provisions we're going to agree on have to be translated into reality. This is not a political discussion in the air, this is a real agreement that we are talking about."
So, binding or not? When François Hollande returned from his trip to China, he said that the Chinese had accepted the idea of a "binding" agreement. So the Chinese would agree and not the Americans? And what do the other countries say?
What is clear is that a few days before COP21, many questions remain about the legal form of the agreement to be concluded. The Parties seem ready today to commit themselves to a set of texts constituting a Paris Agreement in the broad sense, consisting of a "core" agreement to which would be added decisions adopted by the Conference of the Parties (COP). Does this "core" agreement have legal value?
Marion Lemoine, CNRS researcher explained that international law distinguishes between two main types of agreements: " on the one hand, the classic international treaty, whatever its name (e.g. agreement, protocol, amendment to the convention), which requires signature and ratification. The treaty is then signed at the level of Heads of State. On the other hand, agreements in simplified form, signed at governmental level, for which the signature stage alone is sufficient. The latter may be of interest to countries such as the United States which seek to avoid submitting a climate agreement to their parliament, but they are rarely used because they are less legitimate. As for the former, there is a risk that they will remain unenforceable because they do not reach the necessary ratification threshold or will not be followed up if the threshold is set too low. ".
The challenge of the conference is to come up with a legal framework that is strong enough to meet the 2°C objective but flexible enough for the maximum number of States to agree to commit to it. This wide gap between environmental ambition, the inclusion of all States on a planetary scale and the transparency of the decision-making process is difficult to achieve. It is conceivable that a binding agreement could be signed containing only the main principles and the 2°C objective.
It is easier to understand why François Hollande dropped the idea of an Environmental Safety Council. He understood what was at stake: " The Paris Agreement will, I hope, result in binding provisions. But who will check the constraint? Who will be the judge of the correct application? "
The President of the Republic is therefore playing "the next move" here. He says in fact: "The next step is to have an organization, with some form of environmental safety council, to say at some point it's not acceptable, your behavior is dangerous, we have to stop it. ». He goes on to say: « If the climate is such a danger for humanity, a risk for the planet, a concern for development, an issue for immigration, then there must be an international body to decide on it. ".
" This also means what sanctions we apply when a country or a group, industrial or otherwise, behaves in a way that disrupts what we ourselves have decided. The next step, therefore, is a step of organization of law", with "rights and duties that must be laid down". ", he said again.
There is no doubt that the post-COP 21 period is likely to be a sporting one for international diplomacy.
See the video of the passage from the intervention of François Hollande.