The Paris Agreement on Climate Change: A Commentary 1788979184, 9781788979184

Citation preview

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PARIS AGREEMENT ON CLIMATE CHANGE

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00aPrelimsfinal

/Pg. Position: 1 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

ELGAR COMMENTARIES Elgar Commentaries provide essential article-by-article commentary on key regulations, treaties, directives and conventions. Volumes in the series principally take significant International or European instruments as their bases and provide analytical commentary on interpretation, implementation and case law surrounding each article of the respective instrument. Volumes also include valuable contextual information such as: insights into the drafting history of the instrument and analysis of the wider legislative landscape. Occasionally volumes take a thematic approach to important legal topics and encompass multiple associated regulations or directives. Covering a wide range of topics, volumes in the series are consistent in their methodological approach and follow a clearly structured, easy to reference format, making them comprehensive ‘go-to’ resources. Authored, or edited, by leading legal scholars and practitioners the volumes act as insightful points of reference for academic researchers, practising lawyers and policy makers alike. Titles in the series include: European Competition Law A Case Commentary, Second Edition Edited by Weijer VerLoren van Themaat and Berend Reuder Commentary on the Energy Charter Treaty Edited by Rafael Leal-Arcas The ICSID Convention, Regulations and Rules A Practical Commentary Edited by Julien Fouret, Rémy Gerbay and Gloria M. Alvarez Children’s Rights A Commentary on the CRC and its Protocols Wouter Vandenhole, Gamze Erdem Türkelli and Sara Lembrechts A Commentary on the Council of Europe Convention on Action Against Trafficking in Human Beings Edited by Julia Planitzer and Helmut Sax EU Copyright Law A Commentary Second Edition Edited by Irini Stamatoudi and Paul Torremans The Paris Agreement on Climate Change A Commentary Edited by Geert Van Calster and Leonie Reins

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00aPrelimsfinal

/Pg. Position: 2 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PARIS AGREEMENT ON CLIMATE CHANGE A Commentary Edited by

GEERT VAN CALSTER University of Leuven, Belgium and practising member of the Belgian Bar

LEONIE REINS Tilburg Institute for Law, Technology and Society, Tilburg University, the Netherlands

ELGAR COMMENTARIES

Cheltenham, UK

Columns Design XML Ltd

/

+

Northampton, MA, USA

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00aPrelimsfinal

/Pg. Position: 1 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

© Editors and Contributors Severally 2021 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library

Library of Congress Control Number: 2020952359

This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781788979191

ISBN 978 1 78897 918 4 (cased) ISBN 978 1 78897 919 1 (eBook)

02

Typeset by Columns Design XML Ltd, Reading

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00aPrelimsfinal

/Pg. Position: 2 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

CONTENTS

Extended contents List of contributors Table of cases Table of legislation

vii xv xxi xxiii

Introduction –The Paris Agreement on Climate Change Leonie Reins and Geert Van Calster

1

The Preamble Ben Boer

5

Article 1 Scope of obligations: terms and definitions Rowena Cantley-Smith

33

Article 2 Aims, objectives and principles Navraj Singh Ghaleigh

73

Article 3 Aims, objectives and principles Navraj Singh Ghaleigh and Cleo Verkuijl

94

Article 4 Mitigation Benoît Mayer

109

Article 5 Sinks, reservoirs of GHGs and forests Annalisa Savaresi and Lucia Perugini

133

Article 6 Voluntary cooperation/NDCs Matthieu Wemaëre

148

Article 7 Adaptation Cathrine Ramstad Wenger

172

Article 8 Loss and damage Elisa Calliari, Lisa Vanhala, Linnéa Nordlander, Daniel Puig, Fatemeh Bakhtiari, Md Fahad Hossain, Saleemul Huq, and M. Feisal Rahman

200

Article 9 Finance Michael Mehling

218

Article 10 Technology development and transfer Matthew Rimmer

237

Article 11 Capacity-building Gokce Mete

260

Article 12 Education and training Jelena Bäumler and Thomas Schomerus

284

Article 13 Enhanced transparency framework for action and support Harro van Asselt and Kati Kulovesi

302

v

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00bToCfinal

/Pg. Position: 1 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

CONTENTS Article 14 The global stocktake Marjan Peeters

326

Article 15 Compliance mechanism Lisa Benjamin, Rueanna Haynes and Bryce Rudyk

347

Article 16 Institutional provisions Jed Odermatt

364

Article 17 Institutional provisions Jed Odermatt

369

Article 18 Institutional provisions Jed Odermatt

371

Article 19 Institutional provisions Jed Odermatt

373

Article 20 Concluding the Paris Agreement: signature and consent to be bound Rowena Cantley-Smith

375

Article 21 Entry into force and ratification Rowena Cantley-Smith

386

Article 22 Amending the Paris Agreement Rowena Cantley-Smith

390

Article 23 Annexes to the Paris Agreement Rowena Cantley-Smith

395

Article 24 Settlement of disputes under the Paris Agreement Rowena Cantley-Smith

400

Article 25 Voting rights Rowena Cantley-Smith

411

Article 26 Depositary of the Paris Agreement Rowena Cantley-Smith

414

Article 27 Reservations to the Paris Agreement Rowena Cantley-Smith

416

Article 28 Withdrawal from the Paris Agreement Rowena Cantley-Smith

422

Article 29 Authentication and adoption of the Paris Agreement’s text Rowena Cantley-Smith

428

Index

435

vi

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00bToCfinal

/Pg. Position: 2 /

Date: 18/1

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS

List of contributors Table of cases Table of legislation

xv xxi xxiii

Introduction – The Paris Agreement on Climate Change

1

THE PREAMBLE A. B. C. D.

E.

Introduction International treaty law rules and Preambles History of the Paris Preamble The 16 recitals of the Preamble 1. Parties 2. The Durban Platform 3. Objective and principles of the Convention 4. Response to the urgent threat 5. Specific needs and special circumstances of developing country Parties 6. Least-developed countries and technology 7. Recognizing impacts of response measures 8. Intrinsic relationship 9. Fundamental priorities and the adverse impacts of climate change 10. Just transition imperatives 11. Common concern of humankind 12. Conservation and enhancement of sinks and reservoirs 13. Ecosystem integrity and climate justice 14. Education, public participation and access to information 15. Participation of non-State actors 16. Important role of sustainable consumption and production patterns Conclusion

ARTICLE 1 A. B.

C.

D.

E.

F.

P.01 P.02 P.03 P.06 P.06 P.08 P.11 P.16 P.30 P.37 P.40 P.44 P.47 P.50 P.52 P.69 P.71 P.79 P.81 P.86 P.91

SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

Introduction Framing of the Paris Agreement’s final text and operationalisation 1. The Preamble and related instruments 2. International treaty law and the Paris Agreement 3. Drafting and negotiating Article 1: travaux préparatoires Scope and role of Article 1 of the Paris Agreement 1. Scope of Article 1: Relationship with other international climate change treaties 2. Primary role of Article 1 of the Paris Agreement Terms and definitions in Article 1 of the Paris Agreement 1. Article l’s chapeau 2. Article 1(a): ‘Convention’ 3. Article 1(b): ‘Conference of the Parties’ 4. Article 1(c): ‘Party’ Incorporation of terms and definitions from the Convention 1. Additional terms and definitions in Article 1’s chapeau 2. The pivotal role of IPCC research and reports in framing Parties’ treaty obligations Applying the Convention’s terms and definitions in the Paris Agreement 1. Article 1 chapeau (1): ‘Adverse effects of climate change’ 2. Article 1 chapeau (2): ‘Climate change’

1.01 1.04 1.04 1.06 1.12 1.16 1.16 1.18 1.19 1.19 1.22 1.24 1.26 1.45 1.45 1.48 1.50 1.50 1.57

vii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 1 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS

G.

3. Article 1 chapeau (3): ‘Climate system’ 4. Article 1 chapeau (4): ‘Emissions’ 5. Article 1 chapeau (5): ‘Greenhouse gases’ 6. Article 1 chapeau (6): ‘Regional economic integration organization’ 7. Article 1 chapeau (7): ‘Reservoir’ 8. Article 1 chapeau (8): ‘Sink’ 9. Article 1 chapeau (9): ‘Source’ Other terms used in the Paris Agreement

ARTICLE 2 A. B. C.

D. E. F. G.

A. B.

C. D.

D.

E.

AIMS, OBJECTIVES AND PRINCIPLES 3.01 3.02 3.06 3.07 3.09 3.13 3.15 3.18 3.18 3.28 3.28

MITIGATION

Introduction Collective aim The determination of national commitments 1. The obligation to communicate NDCs 2. The invitation to communicate long-term strategies 3. Differentiation 4. The principle of progression 5. Joint NDCs 6. Registry The features of NDCs 1. Time frames 2. Clarity, transparency and understanding 3. Accounting 4. Co-benefits 5. Impacts of response measures 6. On-going and future processes for a better characterization of the features of NDCs Substantive obligations relating to the NDCs 1. The obligation of conduct under Article 4(2), second sentence 2. NDCs as unilateral declarations capable of creating legal obligations

ARTICLE 5 A. B. C.

2.01 2.04 2.13 2.15 2.19 2.20 2.23 2.28 2.36 2.41 2.46

Introduction Pre-history and negotiating context 1. Scope 2. Differentiation 3. Bottom-up vs. top-down 4. Legal bindingness 5. Substance Core provisions 1. Nationally determined contributions Analysis 1. America in Paris: of architecture and exceptionalism

ARTICLE 4 A. B. C.

AIMS, OBJECTIVES AND PRINCIPLES

Introduction Negotiating context Core provisions 1. Temperature target 2. Adaptation 3. Finance 4. Differentiation Credible commitments and climate constitutionalism Challenges for implementation Addendum Second addendum

ARTICLE 3

1.60 1.63 1.65 1.72 1.74 1.77 1.79 1.82

4.01 4.03 4.07 4.08 4.14 4.17 4.21 4.28 4.30 4.31 4.32 4.33 4.37 4.39 4.41 4.43 4.44 4.47 4.54

SINKS, RESERVOIRS OF GHGs AND FORESTS

Introduction Sinks, reservoirs and climate change The UNFCCC and Kyoto Protocol 1. The clean development mechanism and joint implementation

5.01 5.03 5.07 5.11

viii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 2 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS

D. E.

2. REDD+ 3. Agriculture The Paris Agreement 1. Links with Article 6 Conclusion

ARTICLE 6 A. B.

C.

D. E.

VOLUNTARY COOPERATION/NDCs

General introduction Article 6 (2) and 6 (3) 1. Nature of ITMOs including metrics to measure the mitigation outcome 2. Accounting issues 3. Scope of Article 6 (2): activities ‘inside/outside’ NDC? 4. Safeguards and limits 5. A share of proceeds levied on ITMOs transferred? Article 6 (4) 1. Scope 2. Governance 3. Participation requirements 4. Outstanding issues Article 6 (8) and (9): non-market approaches General conclusion

ARTICLE 7 A.

B.

C.

D.

7.01 7.01 7.07 7.12 7.21 7.21 7.50 7.65 7.75 7.80 7.84 7.94 7.116 7.130

LOSS AND DAMAGE

Historical overview of loss and damage milestones in climate negotiations The Paris outcome on loss and damage 1. ‘averting, minimizing and addressing loss and damage’ 2. ‘The Warsaw International Mechanism for Loss and Damage’ and its governance 3. ‘Areas of cooperation and facilitation to enhance understanding, action and support’ on loss and damage 4. ‘The Warsaw International Mechanism shall collaborate with existing bodies and expert groups’ 5. Compensation and liability Loss and damage in the Paris Agreement architecture 1. Finance 2. The transparency framework and the global stocktake Addressing loss and damage beyond the climate regime 1. Customary law 2. Human rights law 3. The Law of the Sea

ARTICLE 9 A. B. C.

6.01 6.06 6.14 6.18 6.23 6.25 6.27 6.31 6.37 6.40 6.45 6.52 6.78 6.84

ADAPTATION

Part I – Adaptation in context 1. A short introduction 2. Adaptation defined 3. The historic backdrop Part II – The legal framework of adaptation 1. The global adaptation goal 2. The dimensions of adaptation 3. The principle that the most vulnerable and least developed countries take priority 4. Other guiding principles for adaptation 5. Finance in the adaptation provision 6. International cooperation on adaptation 7. The planning processes and implementation – the heart and soul of adaptation 8. Adaptation communication 9. Adaptation and the global stocktake (Article 14)

ARTICLE 8 A. B.

5.16 5.23 5.27 5.36 5.42

8.01 8.10 8.11 8.14 8.19 8.25 8.27 8.29 8.30 8.34 8.46 8.47 8.48 8.50

FINANCE

Introduction Historical context Climate finance commitments

9.01 9.06 9.14

ix

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 3 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 8 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS

D.

E.

F. G.

1. Obligation to provide climate finance 2. Commitment to mobilize climate finance Allocation of climate finance 1. Balance of mitigation and adaptation 2. Prioritization of vulnerable countries Transparency of climate finance 1. Ex-ante transparency 2. Global stocktake 3. Ex-post transparency Institutional arrangements Access to climate finance

ARTICLE 10 A.

B.

C.

9.15 9.19 9.23 9.24 9.26 9.28 9.29 9.34 9.36 9.41 9.42

TECHNOLOGY DEVELOPMENT AND TRANSFER

The United Nations Framework Convention on Climate Change 1. ‘Technology Transfer and Development’ 2. ‘Technology Mechanism’ and ‘Technology Framework’ 3. Financial mechanism 4. Intellectual property and the Paris Agreement 2015 Intellectual property, technology transfer, and sustainable development 1. The UN 2030 Agenda on Sustainable Development 2. The World Intellectual Property Organization 3. UNDP Accelerator Labs Trade 1. Intellectual property and technology transfer 2. The World Trade Organization 3. Trade dispute between China and the US 4. Regional trade agreements

ARTICLE 11

10.01 10.01 10.11 10.23 10.36 10.43 10.43 10.44 10.52 10.54 10.54 10.57 10.63 10.69

CAPACITY-BUILDING

A. B. C. D. E. F. G. H. I. J. K. L.

Introduction Timeline for evolution of capacity-building frameworks 2015: Capacity-building in the Paris Agreement Capacity-building initiative on transparency Capacity-building in countries whose economies are in transition and least developed countries The Paris Committee on capacity-building Capacity-building portal Capacities needed to tackle climate change Education system and capacity-building Role of universities Think tanks Other capacity-building initiatives 1. Adaptation fund 2. Green Climate Fund (GFC) 3. Green Development and Climate Change Programme 4. Initiative for Climate Action Transparency (ICAT) 5. The Climate Technology Centre and Network (CTCN) 6. Climate and Development Knowledge Network 7. Asia-Pacific Climate Finance Fund 8. Indonesia Climate Change Trust Fund 9. There are many others … M. Key areas of improvement

ARTICLE 12 A. B. C. D.

11.01 11.02 11.07 11.18 11.19 11.28 11.36 11.37 11.44 11.46 11.48 11.50 11.50 11.51 11.55 11.56 11.57 11.58 11.59 11.60 11.61 11.62

EDUCATION AND TRAINING

Introduction Overview of the content of Article 12 PA Article 12 within the wider legal framework Analysis of the elements of Article 12 1. Parties shall … 2. Cooperate in taking measures, as appropriate, to enhance climate change 3. Education

12.01 12.06 12.12 12.18 12.19 12.26 12.30

x

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 4 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 5 SESS: 8 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS 4. 5. 6. 7. 8.

ARTICLE 13 A. B. C. D. E.

F.

G.

B.

C.

A. B. C.

D.

E. F.

A. B. C.

13.01 13.04 13.11 13.20 13.22 13.25 13.28 13.34 13.37 13.41 13.42 13.44 13.50 13.54

14.01 14.01 14.04 14.05 14.13 14.17 14.19 14.19 14.23 14.33 14.38

COMPLIANCE MECHANISM

Introduction Concepts and definitions: Compliance and implementation The Paris Agreement provisions of Article 15 1. Implications of the provision – implementation 2. Innovative aspects Katowice Implementation Guidelines 1. Overview 2. Purpose, principles, nature, functions and scope 3. Institutional arrangements 4. Initiation and process 5. Measures and outputs 6. Consideration on systemic issues 7. Information Wider legislative landscape on compliance 1. Facilitative elements of compliance regimes Conclusion

ARTICLE 16

12.64

THE GLOBAL STOCKTAKE

A strong collective commitment with many open ends 1. Aim of this collective obligation – backed up with an individual obligation 2. Historical context and learning process 3. Legal qualification and the importance of the Paris Rulebook 4. The complex puzzle 5. The inter-connectedness of the governance provisions Institutional provisions and the rulebook 1. The process towards the adoption of the rulebook 2. Main content of the global stocktake rulebook 3. Reflection on the rule book Conclusion

ARTICLE 15

12.34 12.36 12.41 12.52

ENHANCED TRANSPARENCY FRAMEWORK FOR ACTION AND SUPPORT

‘enhanced transparency framework for action and support’ ‘built in flexibility’ ‘transparency arrangements under the Convention’ ‘to inform the global stocktake’ Reporting 1. ‘national inventory report’ 2. ‘Information necessary to track progress made in implementing and achieving its nationally determined contribution’ 3. ‘information related to climate change impacts and adaptation’ 4. ‘information on financial, technology transfer and capacity-building support provided’ 5. ‘information on financial, technology transfer and capacity-building support needed and received’ Review 1. ‘technical expert review’ 2. ‘facilitative, multilateral consideration of progress’ ‘transparency-related capacity of developing country Parties’

ARTICLE 14 A.

Training Public awareness Public participation Public access to information Recognizing the importance of these steps with respect to enhancing actions under the agreement

15.01 15.03 15.08 15.12 15.14 15.18 15.18 15.19 15.21 15.29 15.35 15.38 15.39 15.40 15.41 15.53

INSTITUTIONAL PROVISIONS

Conference of the Parties ‘may participate as observers’ ‘Bureau of the Conference’

16.01 16.03 16.04

xi

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 13/1

/

Division: 00cExtendedToCfinal

/Pg. Position: 5 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 6 SESS: 9 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS D. E. F. G. H.

‘shall keep under regular review the implementation of this Agreement and shall make, within its mandate, the decisions necessary to promote its effective implementation’ ‘rules of procedure of the Conference of the Parties’ ‘First Session of the Conference of the Parties’ ‘Extraordinary sessions’ ‘The United Nations and its specialized agencies and the International Atomic Energy Agency, as well as any State member thereof or observers thereto not party to the Convention, may be represented at sessions of the Conference of the Parties serving as the meeting of the Parties to this Agreement as observers’

ARTICLE 17 A. B.

A. B.

A.

C.

D.

E.

A. B. C.

D.

18.03

19.01

CONCLUDING THE PARIS AGREEMENT: SIGNATURE AND CONSENT TO BE BOUND 20.01 20.03 20.03 20.05 20.09 20.11 20.11 20.13 20.19 20.19 20.20 20.24

ENTRY INTO FORCE AND RATIFICATION

Introduction Provisional application of the Paris Agreement Requirements for the Paris Agreement’s entry into force 1. Article 21(1): Double-trigger process 2. Article 21(2): Introducing a special meaning term 3. Article 21(3): Ratification post entry into force 4. Article 21(4): REIO’s instrument of ratification

ARTICLE 22

18.01

INSTITUTIONAL PROVISIONS

Introduction Preliminary matters 1. Scope of the Paris Agreement’s final provisions: Articles 20–29 2. International treaty law rules and conclusion of the Paris Agreement 3. Treaties with non-State Parties Article 20(1): Parties to the Paris Agreement 1. Who can be a Party 2. Three-step consent process: Signature, ratification, and deposit of instrument Articles 20(2) and (3): Further obligations of REIOs 1. Parties and Member States 2. Declaration on competences Key consequences of becoming a Party to the Paris Agreement

ARTICLE 21 A. B. C.

INSTITUTIONAL PROVISIONS

‘Subsidiary bodies or other institutional arrangements established by or under the Convention, other than those referred to in this Agreement …’

ARTICLE 20 A. B.

17.01 17.02

Subsidiary body for scientific and technological advice and the subsidiary body for implementation Parties to the Convention that are not parties to this Agreement may participate as observers in the proceedings of any session of the subsidiary bodies

ARTICLE 19

16.10

INSTITUTIONAL PROVISIONS

‘The secretariat’ ‘functions of the secretariat’

ARTICLE 18

16.05 16.06 16.07 16.09

21.01 21.02 21.03 21.03 21.04 21.05 21.06

AMENDING THE PARIS AGREEMENT

Introduction Adopting Convention Provisions into the Paris Agreement 1. Expanded provisions of Article 22 Amending the Paris Agreement under the expanded Article 22 1. Article 22(1): Who may propose an amendment? 2. Article 22(2): Procedures for adopting amendments 3. Article 22(3): Consensus and majority voting 4. Article 22(4): Instruments of acceptance, the Depository, and entry into force 5. Article 22(5): Entry into force of other Parties 6. Article 22(6): Parties present and voting Current status of amendments to the Paris Agreement

22.01 22.03 22.04 22.05 22.06 22.07 22.08 22.09 22.10 22.11 22.12

xii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 6 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 7 SESS: 11 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS ARTICLE 23 A. B. C. D.

E.

ARTICLE 24 A. B. C.

D. E.

C.

C.

A. B.

C.

24.03 24.04 24.05 24.09 24.10 24.11 24.12 24.14 24.15 24.17 24.18 24.20 24.23

25.01 25.02 25.02 25.03 25.04

DEPOSITARY OF THE PARIS AGREEMENT 26.01 26.02 26.02 26.03 26.05

RESERVATIONS TO THE PARIS AGREEMENT

Introduction International treaty rules and contentious matters 1. Legal basis for treaty reservation 2. Reservations, declarations or something else? 3. ICL’s Guide on Practice on Reservations to Treaties Reservations, interpretative declarations, and the Paris Agreement 1. Reservations 2. Interpretative declarations and other statements 3. Declarations regarding Annex I or Annex II Party status

ARTICLE 28

24.01 24.02

VOTING RIGHTS

Introduction The Paris Agreement’s Depositary 1. Article 25: Direct designation of Depositary 2. Role of the Depositary under the Paris Agreement 3. Collection of relevant acts and communication

ARTICLE 27 A. B.

SETTLEMENT OF DISPUTES UNDER THE PARIS AGREEMENT

Introduction Types of voting rights 1. Article 25(1): General voting rights 2. Article 25(2): Restricted voting rights Procedural rules: Decision-making and voting

ARTICLE 26 A. B.

23.01 23.02 23.03 23.05 23.06 23.13 23.14

Introduction Adopting provisions from the Convention into Article 24(2) Resolving disputes between Parties to the Paris Agreement under the Adopted Provisions of Article 24 1. Article 24(1): Overriding obligation for peaceful resolution 2. Article 24(2): Parties’ declarations and dispute resolution fora 3. Article (24)(3) and (4): Declaration’s temporal effectiveness and expiry 4. Article 24(5), (6) and (7): Alternative dispute resolution option 5. Article 24(8): Application to related instruments International climate change and dispute settlement in practice Climate change dispute resolution by other means 1. Inter-State disputes: International Centre for the Settlement of Disputes 2. Human rights and the environment: UN Human Rights Committee 3. UNHRC General Comment No 36 4. Recent UNHRC cases 5. Non-State actors’ challenges to State Parties inaction on climate change

ARTICLE 25 A. B.

ANNEXES TO THE PARIS AGREEMENT

Introduction Existing use of Annexes in International Climate Change Law Extended text of Article 23: Adopting Provisions from the Convention Operationalisation of Expanded Article 23 1. Article 23(1)’s expanded provisions 2. Article 23(2): Legal relationship with Annexes Current status of Annexes to the Paris Agreement

27.01 27.02 27.02 27.04 27.05 27.08 27.08 27.09 27.12

WITHDRAWAL FROM THE PARIS AGREEMENT

Introduction International treaty rules and withdrawal 1. Procedures for withdrawing from a treaty 2. General consequences of withdrawing from a treaty Article 28: Withdrawal from the Paris Agreement 1. Article 28(1): Withdrawal notification requirements 2. Article 28(2): Effective date of withdrawal

28.01 28.02 28.02 28.03 28.04 28.05 28.08

xiii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 2/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 7 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 8 SESS: 8 OUTPUT: Wed Mar 3 13:47:59 2021

EXTENDED CONTENTS

D.

3. Article 28(3): Automatic withdrawal from the Convention 4. Article 28(4): Withdrawal after three years of entry into force Actual withdrawal by a Party: The USA 1. A unilateral approach to withdrawal 2. Depository notification 3. Consequences of withdrawal

ARTICLE 29 A. B.

C.

D.

28.09 28.10 28.11 28.11 28.13 28.14

AUTHENTICATION AND ADOPTION OF THE PARIS AGREEMENT’S TEXT

Introduction Preliminary matters 1. Duly authorised representative, full powers, and international treaty rules 2. Credentials of Parties’ representative 3. Authentication and adoption by a non-State Party: Treaty rules and procedures Authentication of the Paris Agreement’s text 1. Authentic text: Article 29 2. Final paragraph and the definite text Adoption of the Paris Agreement

Index

29.01 29.02 29.02 29.04 29.07 29.09 29.10 29.11 29.12

435

xiv

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change 1/3

/

Division: 00cExtendedToCfinal

/Pg. Position: 8 /

Date:

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS

Fatemeh Bakhtiari is a senior researcher at the Technical University of Denmark’s UNEP DTU Partnership. She obtained a Ph.D in environmental economics and management through a joint doctoral programme between the universities of Copenhagen (Denmark) and Bangor (United Kingdom). She has ten years of experience in applied research in the areas of valuation of ecosystem services, policy analysis within climate change mitigation, and sustainable natural resource management. She applies market and non-market based valuation methods to develop tools for analysing and prioritizing mitigation actions, preparing methodologies for the development of baselines (using choice experiment modelling), and quantifying and monetising sustainable development co-benefits in the context of monitoring, reporting and verification of greenhouse-gas emission reduction efforts. Jelena Bäumler is a Professor for Public and International Law with a special focus on sustainability at the Leuphana University Lüneburg. She is a fully qualified lawyer in Germany and holds an LL.M. from the University of the Western Cape, South Africa. Her work focuses on International Environmental Law, International Economic Law and the implementation of sustainability concepts into law at the national and international level. Lisa Benjamin is an Assistant Professor at Lewis & Clark Law School. Her research investigates the intersection of corporate, energy and environmental law with a focus on climate change and climate risk. She researches climate change from the perspective of developing countries, with a focus on small island developing states. She is currently a member of the Compliance Committee (Facilitative Branch) of the United Nations Framework Convention on Climate Change and has been an adviser to, and member of, the Bahamian national delegation to the United Nations Framework Convention on Climate Change. Ben Boer is a Professor at the Research Institute of Environmental Law, Wuhan University and Emeritus Professor of Environmental Law, University of Sydney. Between 2006 and 2008, he was the international Co-Director of the IUCN (International Union for the Conservation of Nature) Academy of Environmental Law and Visiting Professor based at the University of Ottawa. He is a founder and a member of the Editorial Board of the Asia Pacific Journal of Environmental Law (Edward Elgar, UK), and a member of the Editorial Boards of the Journal of Environmental Law (Oxford University Press) and the Review of European Comparative and International Environmental Law (Wiley Publishers, UK). He is the co-editor, with Professor Qin Tianbao, of the Chinese Journal of Environmental Law (published by Brill in collaboration with the Research Institute of Environmental Law). Elisa Calliari is Research Fellow at the department of Political Science at University College London (UCL) and a consultant at the Euro-Mediterranean Centre on Climate Change (Italy). Her research focuses on the role of institutions and governance arrangements in supporting disaster risk reduction and climate change adaptation, and in the emerging policy field of loss and damage associated with climate change impacts. Elisa co-authored the Italian Climate Change Adaptation Plan and the 2017 Science for Disaster Risk Management Report of the European Union. She has a background in International Relations and Diplomacy, and holds a Ph.D in Science and Management of Climate Change.

xv

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 1 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS Rowena Cantley-Smith is a Senior Lecturer at Faculty of Law, University of Technology Sydney. Her academic and professional qualifications include: BEc (1989), LL.B (1993) and Grad Cert Legal Teaching (2005)(Monash University); LL.M in Public International Law (Leiden University); Doctorate of Laws (Leuven University); Admitted to practice: Supreme Court of Victoria and High Court of Australia (1995) and the Victorian Bar (1998). She teaches across a wide range of subjects including, Australian and international energy law, contract law, climate change law and private and public international law. Rowena’s research is multidisciplinary and focuses on the interface between law and the energy sector, primarily in the context of sustainable transitions, distributed energy resources and new technologies, and consumer and climate change interests. An important aspect of this is the development of international and national environmental and human rights law. She is an associate-editor, with Professor Ben Boer, of the Chinese Journal of Environmental Law (published by Brill in collaboration with the Research Institute of Environmental Law). Navraj Singh Ghaleigh is Senior Lecturer in Climate Law, Programme Director LLM in Global Environment and Climate Change, and Head of Public Law Subject Area, all at the University of Edinburgh. He is also a board member and Chair of Climate Strategies (climatestrategies.org), and advises NGOs, governments, and major philanthropies on various aspects of climate law and litigation. Rueanna Haynes is an international climate law and governance specialist currently affiliated with Climate Analytics gGmbH as a member of the Climate Diplomacy team and team lead for Climate Analytics support to the Chair of the Alliance of Small Island States (AOSIS). Ms Haynes has a strong background in climate and other multilateral environmental negotiations, having participated in the UNFCCC, the Rio+20 process, Law of the Sea, Financing for Development and the SIDS Sustainable Development process for several years on behalf of Trinidad and Tobago. She has been a lead negotiator for the Caribbean Community (CARICOM), AOSIS and G77 and China in the climate and sustainable development fields. Rueanna holds a Master in International Legal Studies with Distinction from Georgetown University Law Centre, Washington DC, and a Master in International Environmental Policy from Paris School of International Affairs, Sciences Po, Paris. Md Fahad Hossain is a research officer at the International Centre for Climate Change and Development (ICCCAD), where he oversees the implementation of the project “Supporting Least Developed Countries (LDCs) on Loss and Damage”. Also, he works with the LDC Universities Consortium on Climate Change (LUCCC), an official capacity building initiative of LDCs hosted by ICCCAD. His research interests include climate change adaptation and loss and damage, with a focus on public policy. Fahad holds a bachelor’s degree in Economics and a master’s in Climate Change and Development. Saleemul Huq has been the Director of the International Centre for Climate Change and Development (ICCCAD) since 2009. He also holds a Senior Fellow position at the International Institute for Environment and Development (IIED). Saleemul’s recent activities have been focusing on building negotiating capacity and supporting the engagement of the Least Developed Countries (LDCs) in UNFCCC, including negotiator training workshops for LDCs, policy, as well as research into vulnerability and adaptation to climate change in the least developed countries. Dr. Huq has published over 100 journal articles and many book chapters and reports. Kati Kulovesi is Professor of International Law and Director of the Center for Climate Change, Energy and Environmental Law at the University of Eastern Finland. Also affiliated with the Institute for European Studies at the Vrije Universiteit Brussels and the Erik Castren Institute for International Law and Human Rights at the University of Helsinki, Kati has published extensively on climate change and WTO law and holds a Ph.D from the London School of Economics and Political Science. She holds an European Research Council Starting Grant, was member of Finland’s Climate Change Panel in

xvi

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 2 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS 2014–2019 and has followed UN climate negotiations since 2001, including as a Team Leader/Writer for the Earth Negotiations Bulletin in 2004–2018. Benoît Mayer is Associate Professor at the Faculty of Law of the Chinese University of Hong Kong, where he teaches climate, environmental and international law. His research focuses on various aspects of climate law, including the international law obligations on climate change mitigation, the development of environmental assessments as a tool for climate change mitigation and the climate-migration nexus. He is the author of The International Law on Climate Change (Cambridge University Press, 2018) and The Concept of Climate Migration: Advocacy and its Prospects (Edward Elgar, 2016). He is also a member of the UNFCCC roster of experts. Michael Mehling is Deputy Director of the Center for Energy and Environmental Policy Research (CEEPR) at the Massachusetts Institute of Technology (MIT), a research scientist with the MIT Energy Initiative (MITei), and a Visiting Professor at the University of Strathclyde. He brings over a decade of experience working on energy and environmental policy with government agencies, private companies and civil society organizations in North America, Europe, and the developing world. His recent work has focused on carbon pricing and other policies to address environmental impacts of the energy system. In recent years, research interests have included the energy and climate policy of the European Union as well as the effects of the German energy transition, or ‘Energiewende’. Gokce Mete is Evidence Lead, Leadership Group for the Industry Transition Secretariat hosted by the Stockholm Environment Institute, where she is also a Research Fellow. Gokce is a research professional with a decade of regulatory analysis, project development and stakeholder management experience focused on energy and industry transitions. She is also the honorary Head of Research and Academic Engagement of the “Women in Energy, Climate and Sustainability Foundation” and Founding Member of “Women in Green Hydrogen”. Gokce is author of “Energy Transitions and Future of Gas in the EU: Subsidise or decarbonise?”, Energy and Climate Series (Palgrave Macmillan 2020). She holds a PhD from the University of Dundee.. Linnéa Nordlander is a Ph.D fellow at the Faculty of Law at the University of Copenhagen. Her research focuses on the intersection between climate change and human rights in the law, looking particularly into the concept of climate change loss and damage. She teaches on public international law, climate change and the law, and human rights law. Linnéa has a professional and educational background in human rights, holding an LL.M in International Human Rights Law from Lund University and having worked with human rights research and capacity building at the Raoul Wallenberg Institute for Human Rights and Humanitarian Law. Jed Odermatt is a Lecturer at the City Law School, City, University of London, where he is convenor of the International Law and Affairs Group (ILAG) and member of the Institute for the Study of European Law (ISEL). Dr Odermatt’s research interests include public international law, the law of international organizations, and EU external relations law. Marjan Peeters is Professor of Environmental Policy and Law at Maastricht University, and is also connected to the Maastricht Sustainability Institute and to the Research Institute of Environmental Law at Wuhan University. Core research attention goes to legal aspects of climate change, regulatory instruments for emission reduction, and environmental procedural rights. Marjan has co-edited various books in the field of EU environmental and climate law, among which Climate Change Law (co-edited with Daniel A Farber, Edward Elgar 2016), and she has supervised – and is still supervising – several Ph.D projects in this field. She currently acts as expert to the European Economic and Social Committee of the European Union related to its advisory work on EU climate law.

xvii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 3 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS Lucia Perugini is a senior scientific manager at CMCC Foundation (Italy). Her scientific background is in forestry and climate change. Since 2003 she has been involved in the UNFCCC negotiations, as part of the Italian Delegation, dealing with issues related to LULUCF and REDD+. Expert in GHG inventories in the land sector, she is involved in the compilation of the National Inventory Report of Italy (2018, 2019). She is currently active in several national and European research projects related to the carbon cycle in forestry and agriculture ecosystems and relevant links between the scientific and policy communities (e.g., EU FP7 project LUC4C 2013–2017; H2020 project VERIFY 2018–2022). Daniel Puig holds a PhD from the Technical University of Denmark. His thesis touched upon some of the main challenges that parties to the United Nations Framework Convention on Climate Change face in their efforts to implement the Paris Agreement. Since 2011 Daniel has been employed at the UNEP DTU Partnership, a specialised centre within the Technical University of Denmark. Among other issues, he has worked on quantifying the uncertainty around projections of greenhouse-gas emission (baseline) scenarios, has conducted an assessment of the co-benefits of energy efficiency policies in G20 countries, has coordinated the preparation of two editions of the “emissions gap report”, and has contributed to several editions of the “adaptation gap report”. At present, his work is mostly focused on climate change-induced loss and damage. M. Feisal Rahman is an Assistant Professor in the Department of Environmental Science at Independent University, Bangladesh (IUB). He is also ICCCAD’s research coordinator. Feisal’s current work focuses on climate finance, community-based adaptation and political economy of climate change adaptation. He is an Engineer by training and completed his Ph.D in Environmental Engineering from the University of Waterloo, Canada. Matthew Rimmer (BA/LLB ANU, PhD UNSW) is a Professor in intellectual property and innovation law at the Faculty of Law in the Queensland University of Technology (QUT). He is a chief investigator, and co-director of the legal program in the NHMRC Centre of Research Excellence on Achieving the Tobacco Endgame (CREATE) (2020–2025) – a transnational research network. Rimmer is a member of the QUT Centre for the Digital Economy – which is part of the QUT Centre for Future Enterprise; the QUT Digital Media Research Centre (QUT DMRC), the QUT Centre for Behavioural Economics, Society, and Technology (QUT BEST); the QUT Centre for Justice; the QUT Australian Centre for Health Law Research (QUT ACHLR); and the QUT Centre for Clean Energy Technologies and Processes (which is based in the Institute for Future Environments). Rimmer was previously the leader of the QUT Intellectual Property and Innovation Law Research Program from 2015–2020 (QUT IPIL). Bryce Rudyk is Adjunct Professor and Senior Fellow of International Environmental Law and Director of the United Nations Diplomacy Clinic at the New York University School of Law. His teaching and research focuses on global environmental problems and the legal and institutional structures developed to solve them, including though the participation of non-state actors. Since 2013, he has been Legal Advisor to the Alliance of Small Island States in the United Nations negotiations on climate change, sustainable development and oceans. Annalisa Savaresi is Senior Lecturer in Environmental Law at Stirling University, UK. She has several years’ experience researching, teaching and working with environmental law. Her research focuses on climate change, renewable energy, environmental liability, and the interplay between environmental and human rights law. Her work has been published in numerous peer-reviewed outlets and has been widely cited. Annalisa has taught at institutions all over the world, including the University of Edinburgh, the University of Copenhagen and the University of La Sabana, Colombia. She regularly serves as a consultant for international organisations and think-tanks and advises governments and governmental bodies. She is a member of the IUCN World Commission on Environmental Law, Director for Europe

xviii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 4 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 5 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS of the Global Network for the Study of Human Rights and the Environment, and associate editor of the Review of European, Comparative and International Law. Thomas Schomerus is a Professor for Public Law, in particular Environmental and Energy Law, at Leuphana University Lueneburg. He has worked on numerous international and national research projects and has published broadly in the fields of energy and environmental law, with a special interest in the law of renewable energies and energy efficiency, waste law and law of natural resources as well as freedom of information law. In 2014, he was appointed Judge at the Higher Administrative Court of Lower Saxony. Harro van Asselt is Professor of Climate Law and Policy with the University of Eastern Finland Law School, affiliated researcher with the Stockholm Environment Institute, and a Research Fellow with the Copernicus Institute at Utrecht University. He has over 15 years of research experience in international climate change law and governance. He is author of The Fragmentation of Global Climate Governance (Edward Elgar 2014) and has more than 100 publications in academic journals and books. He is the editor of Review of European, Comparative & International Environmental Law (RECIEL). He holds a PhD with distinction from the Vrije Universiteit Amsterdam. Lisa Vanhala is a Professor of Political Science at University College London and PI on the European Research Council-funded project ‘The Politics and Governance of Climate Change Loss and Damage’ (CCLAD). Her recent research on loss and damage has been published in Global Environmental Change, Global Environmental Politics and Law & Policy. Cleo Verkuijl is a Research Fellow in climate governance at the Stockholm Environment Institute in Oxford, UK. Also a team leader and writer for the Earth Negotiations Bulletin, she has expertise across a range of UN sustainable development processes. She was a policy officer with the NGO network Climate Action Network International during the Paris climate negotiations, and has previously worked for the UN Environment Programme in Brussels, and as a Lecturer in Energy, Resources and Environment at Johns Hopkins University’s School of Advanced International Studies. Matthieu Wemaëre is a Senior Lawyer admitted at the Paris and Brussels Bar Associations. He is Managing Partner of the Law Firm Matthieu Wemaëre Association d’Avocats. With 27 years of experience, he specializes in international and EU environment and climate law and policy. Since 1999, he participated in 17 COPs, including 11 COPs as an official delegate and special adviser to the Moroccan Presidency of COP 22. He used to work in the Climate Change Unit of the European Commission between 1999 and 2003 where he was involved in the drafting of the EU ETS Directive. Matthieu Wemaëre is Research Associate at the Institute of International Relations and Sustainable Development (IDDRI). He lectures on climate law and carbon markets at the Law Faculty of Aix en Provence in France. Cathrine Ramstad Wenger is an experienced renewable energy and climate lawyer. She has experience with renewable energy law in a top tier law firm and has been Norway’s lead negotiator for adaptation and loss and damage under the Paris Agreement negotiations. She also led the inter-departmental work in Norway for the ratification of the Paris Agreement. Her experience includes reviewing complaints under the EU ETS and CO2-compensation scheme; ministerial work drafting the Norwegian Climate Change Act; issues related to REDD+ carbon rights and RBP-schemes; and project based legal advice, due diligence work and license applications for renewable energy companies.

xix

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 5 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 6 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

CONTRIBUTORS

EDITORS Leonie Reins is an Assistant Professor in the Tilburg Institute for Law, Technology and Society (‘TILT’) at Tilburg University in the Netherlands. Leonie obtained her PhD from KU Leuven, Belgium. The monograph based on her dissertation is entitled Regulating Shale Gas – The Challenge of Coherent Environmental and Energy Regulation (Edward Elgar, 2017). Leonie obtained private sector experience whilst working for a Brussels-based environmental law consultancy, providing legal and policy services for public-sector clients such as the European Commission and the European Parliament. Leonie’s research focuses on the intersections of energy and environmental law. She is particularly interested in the regulation of new technologies that are capable of mitigating, or providing means of adaptation to, global problems such as climate change and the associated risks and uncertainty that manifest themselves at the local level. Leonie regularly speaks at international conferences and her works have been published in journals such as Energy Research & Social Science, Environmental Liability and Oil, Gas, Energy Law Intelligence (OGEL). Geert Van Calster is full professor (Professor Ordinarius) in the University of Leuven and Head of Leuven Law’s department of European and international law. Geert is also senior fellow at Leuven’s Centre for Global Governance Studies. Geert is on the indicative list of WTO Panelists, and a board member of Academische Stichting Leuven, an academic charity. He is an independent legal practitioner at the Brussels Bar. His practice, teaching and research focus is on conflict of laws (private international law), EU and international regulatory law (especially environment), and international and EU economic law. He is a Visiting Professor and Senior Fellow at Monash University’s Law faculty (Melbourne), Visiting Professor at the China-EU School of Law in Beijing, Visiting Professor at King’s College, London, and Adjunct Professor at the Brussels Campus of American University. He was previously a visiting lecturer at Oxford University. He was called to the Bar in 1999 after having worked as of counsel to a City law firm since 1995.

xx

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00dLoCfinal

/Pg. Position: 6 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 2 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF CASES INTERNATIONAL CASES International Court of Justice Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment (2006) ICJ Reports 6 .............. 4.54, 4.55, 4.60 Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali) (1986) ICJ Reports 573 ......... 4.54, 4.55 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment (1986) ICJ Reports 132 ............................................................................................... 4.54 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment (1961) ICJ 17 ............................................................................................................................... 4.54 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment (2015), ICJ Reports 665 ............................................................................................................................... 4.52 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgment (2008) ICJ Reports 177 ............................................................................................................................................ 1.09 Corfu Channel Case (UK v. Albania) (1949) ICJ Reports 4 ................................................................................ 8.47 Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion (1999) ICJ Reports 62 .......................................................................... 4.53 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment (1998) ICJ Reports 432 ............. 4.55 Gabcˇíkovo-Nagymaros Project (Hungary v. Slovakia) Judgment (1997) ICJ Reports 7 ..................................... P.87 Kasikili/Sedudu Island (Botswana v. Namibia) Judgement (1999) ICJ 1045 ........................................................ 1.09 LaGrand (Germany v. United States of America), Judgment (2001) ICJ Reports 466 ....................................... 4.53 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment (1998) ICJ Reports 293 ............................................................................................ 4.55 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) ICJ Reports 226 ...................... 8.47 Nuclear Tests (Australia v. France) (1974) ICJ Reports 268 .................................. 1.07, 4.27, 4.54, 4.56, 4.59, 4.60 Oil Platforms (Islamic Republic of Iran v. United States of America) Preliminary Objections, Judgment (1996) ICJ Reports (II) 812 .......................................................................................................................... 1.09 Reparation for injuries in the service of the United Nations, Advisory Opinion (1949) ICJ Reports 174 .......... 4.54 Territorial Dispute (Libyan Arab Jamahiriya Chad) Judgement (1994) ICJ Reports 21 ...................................... 1.09

Permanent Court of International Justice Legal Status of Eastern Green/and (Denmark v. Norway), Judgment (1933) PCIJ, Series A/E, No. 53, 71 ..... 4.54

United Nations Human Rights Committee African Commission on Human and Peoples’ Rights, Social and Economic Rights Centre (SERAC) and Centre for Economic and Social Rights (CESR) v. Nigeria (communication No. 155/96), decision of 27 October 2001 ..................................................................................................................................... 24.18 Ioane Teitiota v. New Zealand (CCPR/C/127/D/2728/2016) Adopted 24 October 2019 ...................... P.34, P.35, 24.21, 24.22 Norma Portillo Cáceres and others v. Paraguay (CCPR/C/126/D/2751/2016) Adopted 25 July 2019 ............ 24.20

xxi

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableCases

/Pg. Position: 1 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 2 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF CASES

Court of Justice of the European Union Carvalho v. Parliament and Council, Order of the General Court (CJEU, Case T-330/18) .............................. 4.45 Flachglas Torgau, Judgment of 14.02.2012 – C-204/09 (ECLI:EU:C:2012:71) ............................................... 12.61 Mecklenburg, Judgment of 17.06.1998 – C-321/96, No. 30 (ECLI:EU:C:1998:300) ...................................... 12.61

NATIONAL Australia McVeigh v. Rest, 2 November 2020, unreported .................................................................................................. 2.40

Germany Huaraz ................................................................................................................................................................... 12.49

India Asghar Leghari v. Federation of Pakistan (Lahore High Court, WP No 25501/2015, 18 January 2016) ........ 24.24

New Zealand Sarah Thomson v. Minister for Climate Change Issues, Judgment of Mallon J (High Court of New Zealand, CIV 2015-485-919, [2017] NZHC 733 .............................................................................. 4.45

The Netherlands Gerechtshof Den Haag of 9.10.2018 ........................................................................................................ 12.42, 12.49 Stichting Urgenda v. The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) (Judgement, 24 June 2015) The Hague District Court, Case C/09/456689/HA ZA 13-1396, ECLI:NL:RBDHA:2015:7145 ......................................................................................................... P.23, 24.25 The State of the Netherlands (Ministry of Infrastructure and the Environment) v. Urgenda Foundation, C/09/456689, HA ZA 13-1396 Court of Appeal of the Hague, (9 October 2018) ....................... 4.60, 24.25 The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda (Judgement, 20 December 2019) Supreme Court of the Netherlands Civil Div, Case 19/00135, ECLI:NL:HR:2019:2007 ................................................................................................................ 24.25, 24.26 The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) and Stichting Urgenda ECLI:NL:PHR:2019:1026, Supreme Court of the Netherlands ................................................................ P.23

United Kingdom J. H. Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418 ............................... 2.42 Plan B Earth and Others v. Secretary of State for Transport [2020] EWCA Civ 214 .............................. 2.41, 2.45 Plan B Earth and Others v. Secretary of State for Transport [2019] EWHC 1070 (Admin), March 2019 ...... 2.45 Plan B Earth and Others v. Secretary of State for Transport [2020] UKSC 52 .................................................. 2.46

United States of America Cleveland National Forest Foundation v. San Diego Association of Governments, Supreme Court of California, 3 Cal. 5th 497, 515; 397 P.3d 989 ............................................................................................ 4.45 United States v. Belmont, 301 U.S. 324, 330 (1937) 331 ..................................................................................... 3.35

xxii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableCases

/Pg. Position: 2 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF LEGISLATION

TREATIES Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998 ...... P.80, 12.04, 12.49, 12.58, 12.63, 14.21, 15.02, 15.44–15.46 Art 2(2) ............................................................. 12.55 Art 2(3) ............................................................. 12.53 Art 4(1) .................................................. 12.55, 12.60 Art 5 ................................................................. 12.57 Art 6 ...................................................... 12.43, 12.45 Art 6(2) .................................................... 12.42, 2.43 Art 6(3) ............................................................. 12.43 Art 6(4) .................................................. 12.37, 12.43 Art 6(5) ............................................................. 12.37 Art 7 ................................................................. 14.21 Art 15 ................................................................ 12.60 Basel Convention on the Transboundary Movement of Hazardous Wastes (adopted on 22 March 1989; entered into force 5 May 1992) 1673 UNTS 57 ......................................... 15.31, 27.01 Art 26(1), (2) ......................................... 27.01, 27.09 Cancun Agreement FCCC/CP/2010/7/Add.1, decision 1/CP 16 ..... 3.09, 3.10, 4.42, 7.16, 7.17, 7.18, 7.20, 7.55, 7.59, 7.69, 7.76, 7.86, 7.89, 7.91, 7.97, 8.04, 8.10, 8.13, 8.20, 9.24, 10.13, 11.01, 13.11, 13.16, 13.17, 13.18, 13.42, 14.04 Charter of the United Nations .............................. 1945 Art 2(3), (4) ...................................................... 24.04 Copenhagen Accord UN Doc FCCC/CP/2009/11/Add.1 (30 March 2010) ..... 2.03, 2.04, 2.05, 2.06, 2.19, 3.07, 3.09, 3.10, 9.10, 9.11, 9.19, 9.20, 9.24, 9.26, 10.06 Art 1 ................................................................... 2.15 Doha Amendment to the Kyoto Protocol’, contained in Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP), Decision 1/CMP 8 ........... 1.17, 1.70, 2.10, 3.02, 23.02, 23.07 International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976

Art 19 ................................................................ 12.58 International Covenant on Social, Economic and Cultural Rights Arts 13, 14 ........................................................ 12.30 ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001) Art 1 ................................................................... 8.47 Art 23 ................................................................. 4.51 Arts 34–37 .......................................................... 8.47 Kyoto Protocol to the UN Framework Convention on Climate Change, adopted 11 December 1997, entered into force 16 February 2005 ........... P.04, 1.01, 1.17, 1.23, 1.30, 1.43, 1.49, 1.70, 1.71, 2.01, 2.02, 2.03, 2.04, 2.07, 2.08, 2.19, 2.24, 2.28, 3.09, 3.29, 3.31, 4.08, 4.52, 5.07, 5.10, 5.11, 5.44, 6.35, 6.36, 6.70, 7.15, 7.30, 9.10, 9.41, 10.05, 11.01, 13.01, 15.02, 15.23, 15.26, 15.46–15.52, 16.01, 23.02, 28.15 Preamble ............................................................. P.17 Art 2(3) .............................................................. P.31 Art 3(1) ...................................................... 1.70, 4.52 Art 3(3) ............................................................... 5.07 Art 5 ................................................................. 13.15 Art 6 ................................................................... 5.11 Art 7 ................................................................. 13.15 Art 8 ................................................................. 13.15 Art 9 ................................................................... P.29 Art 10(e) ..................................... 11.02, 12.13, 12.19 Art 11 ................................................................. 9.09 Art 12 ........................................................ 6.75, 9.09 Art 12(2) ............................................................. 5.11 Art 12(3) ............................................................. 5.11 Art 12(5) ............................................................. 6.69 Art 12(8) .................................................... 9.09, 9.26 Art 13(1) ........................................................... 16.02 Art 14 ................................................................ 17.01 Art 15 ................................................................ 18.01 Art 17 ................................................................. 6.25 Art 20 ............................................. 2.05, 3.26, 23.03 Art 20(4) ............................................................. 1.70 Art 21 ........................................................ 2.05, 3.26 Art 21(7) ............................................................. 1.70 Annex A ....................................... 1.70, 23.02, 23.07 Annex B ............................ 2.05, 13.15, 23.02, 23.07

xxiii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 1 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF LEGISLATION Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade-related Aspects of Intellectual Property Rights’ – TRIPS Agreement 1994) ................................................. 10.54, 10.57 Montreal Protocol on Substances that Deplete the Ozone Layer 1522 UNTS 3; 26 ILM 1550 (1987) .............. 15.02, 15.41, 15.42, 15.45, 15.46 Art 18 ................................................................ 27.01 North American Free Trade Agreement 32 ILM 289, 605 (1993) ........................................... 10.71 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted12 December 2015; entered into force 4 November 2016) Preamble ............ P.04, P.15, P.16, P.41, P.50, P.52, P.63, P.77, P.91, 1.04, 1.32, 1.38, 22.06 Recital 1 .................................................... P.06, P.52 Recital 2 .................................................... P.08, P.09 Recital 3 .............................................................. P.11 Recital 4 .................................................... P.09, P.16 Recital 5 ...... P.30, P.36, 1.31, 1.38, 1.39, 1.55, 1.56 Recital 6 ........................................... P.37, 1.31, 1.39 Recital 7 ........................................... P.40, P.42, 1.27 Recital 8 .............................................................. P.44 Recital 9 .............................................................. P.47 Recital 10 ............................................................ P.50 Recital 11 ........... P.13. P.52, P.56, P.60, P.68, P.75 Recital 12 ............................................................ P.69 Recital 13 ............................... P.71, P.75, P.78, P.80 Recital 14 .................................................. P.79, P.80 Recital 15 ........................................ P.80, P.81, P.90 Recital 16 ........................................ P.86, P.88, P.89 Art 1 .................... 1.01, 1.03, 1.04, 1.05, 1.08, 1.11, 1.13, 1.16, 1.18, 1.19, 1.20, 1.45, 20.11, 20.25, 21.04, 22.06 Art 1(a) ............................................ P.07, 1.22, 1.23 Art 1(b) .......................................... 1.24, 1.25, 16.01 Art 1(c) ............................................. P.07, 1.26–1.44 Art 2 .................... P.12, 1.18, 2.02, 2.03, 2.11, 2.12, 2.18, 2.19, 2.21, 2.31, 2.32, 2.37, 2.38, 2.41, 2.42, 2.46, 3.01, 3.18, 4.06, 5.33, 6.03, 6.34, 7.12, 7.23, 7.120, 12.03, 12.64, 14.07, 14.08, 14.09, 14.17 Art 2(1) ....... 1.64, 2.01, 2.14, 2.15, 2.17, 2.20, 2.39, 4.01, 4.03, 4.04, 4.06, 5.01, 5.32, 7.27, 9.05, 9.21, 10.07, 12.53 Art 2(2) ........................................... 2.01, 2.23, 22.06 Art 2(3) .............................................................. P.15 Art 3 .......... P.13, P.14, P.25, P.91, 1.27, 2.03, 2.23, 2.38, 3.01, 3.12, 3.26, 3.27, 3.37, 4.01, 4.08, 4.21, 4.25, 12.14, 13.09, 20.27, 21.04 Art 3(1) ............................................................. 15.47

Art 4 ................... P.28, P.70, P.80, 1.38, 2.03, 3.18, 4.01, 4.02, 4.07, 4.08, 4.34, 6.35, 7.32, 12.14, 14.17, 20.27 Art 4(1) ....... 1.64, 4.03, 4.04, 4.05, 4.06, 5.01, 5.28, 14.08, 22.06 Art 4(2) ...... P.29, 1.41, 3.24, 4.09, 4.20, 4.28, 4.46, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.59, 4.61, 5.28, 6.33, 7.120 Art 4(3) ..... P.15, P.25, P.91, 3.26, 4.17, 4.20, 4.21, 5.25, 21.04 Art 4(4) ....... 2.23, 2.24, 3.24, 4.18, 4.20, 4.21, 6.23, 6.33 Art 4(5) .................................................... 4.19, 12.22 Art 4(6) .......................... P.38, 1.31, 1.38, 1.64, 4.20 Art 4(7) ............................................................... 4.40 Art 4(8) ....... 1.27, 3.24, 4.33, 4.34, 4.35, 4.36, 4.55, 8.02 Art 4(9) ...................... 3.24, 4.10, 4.12, 14.11, 14.17 Art 4(10) .................................................... 3.24, 4.32 Art 4(11) ............... 1.27, 3.24, 4.21, 4.24, 4.26, 4.27 Art 4(12) .................................................... 3.24, 4.30 Art 4(13) ...................... 1.64, 3.24, 4.37, 5.32, 13.29 Art 4(14) ........................................... 1.64, 3.24, 4.37 Art 4(15) ................................. P.42, 1.35, 3.24, 4.41 Art 4(16) ........................................... 3.24, 4.28, 4.29 Art 4(17) ........................................... 3.24, 4.28, 4.29 Art 4(18) ................................. 1.27, 3.24, 4.28, 4.29 Art 4(19) ........................ P.15, 1.27, 4.14, 4.29, 4.44 Art 5 ............ 1.14, 1.38, 4.01, 5.01, 5.02, 5.28, 6.37 Art 5(2) ........................ P.88, 1.14, 1.38, 1.64, 20.27 Art 6 ........... 1.17, 1.41, 1.56, 4.01, 4.37, 5.36, 5.37, 5.38, 5.39, 5.40, 6.01, 6.04, 6.05, 6.14, 6.15, 6.20, 6.85, 6.86, 13.08, 13.28, 13.30, 15.47, 20.26 Art 6(1) ................................... P.72, 6.02, 6.44, 6.57 Art 6(2) ....... P.72, 5.37, 6.01, 6.06–6.13, 6.14, 6.17, 6.18, 6.21, 6.23, 6.24, 6.27, 6.28, 6.30, 6.36, 6.39, 6.43, 6.47, 6.61, 6.63, 6.69 Art 6(3) ................................... 6.01, 6.07, 6.11, 6.17 Art 6(4) ....... 1.27, 1.64, 5.37, 6.01, 6.12, 6.17, 6.19, 6.27, 6.29, 6.31–6.77, 6.84, 9.41 Art 6(5) ............................................ 6.01, 6.48, 6.62 Art 6(6) ................................... 6.01, 6.12, 6.27, 6.66 Art 6(7) ............................................................... 6.01 Art 6(8) ............................................. 6.01, 6.78–6.83 Art 6(9) ............................................. 6.01, 6.78–6.83 Art 7 .................... P.28, P.63, 1.54, 1.56, 1.62, 2.19, 3.27, 4.02, 7.07, 7.08, 7.11, 7.12, 7.20, 7.62, 7.64, 8.20, 12.14, 13.34, 14.08, 20.26 Art 7(1) ............................................................... 7.21 Art 7(2) ..... P.20, 1.56, 7.50, 7.71, 7.76, 7.133, 9.26 Art 7(3) ............................................................. 7.132 Art 7(4) .................................................... 7.32, 14.10 Art 7(5) ............................................ 7.27, 7.56, 7.75 Art 7(6) ........................................... 1.56, 7.71, 12.15 Art 7(7) .................................................... 7.87, 12.15 Art 7(9) ............................... P.88, 7.56, 7.107, 7.135

xxiv

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 2 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 2 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF LEGISLATION Art Art Art Art Art Art Art Art Art Art

Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art Art

Art Art Art Art Art

Art Art

Art Art Art Art Art Art Art Art

7(10) ........................... 3.24, 7.123, 7.133, 13.36 7(11) ................................................ 7.123, 7.133 7(13) ............................................................. 7.82 7(14) ........................................................... 7.133 8 .................... 7.07, 7.10, 8.06, 8.07, 8.10, 8.12, 8.29, 8.47, 13.20, 13.35 8(1) ............................................................... 8.11 8(2) ........................................... 8.17, 8.18, 19.01 8(3) ............................................ 3.24, 8.19, 8.32 8(4) ...................................................... 8.20, 8.31 9 ......... P.39, 1.56, 2.20, 3.27, 4.01, 4.191, 6.82, 8.29, 8.30, 9.01, 9.04, 9.05, 9.13, 9.14, 9.36, 9.38, 9.39, 10.25, 12.14, 13.39, 13.50, 14.08, 14.18, 27.12 9(1) ...... 2.23, 4.19, 8.30, 9.16, 9.18, 9.36, 27.11 9(2) ................................. 4.19, 9.17, 9.29, 13.10 9(3) ........ 3.24, 9.18, 9.19, 9.20, 9.21, 9.22, 9.29 9(4) ....... 1.31, 1.38. 1.56, 3.24, 7.72, 8.30, 9.23, 9.24, 9.26, 9.27, 9.34, 9.42 9(5) ............. 3.24, 9.29, 9.30, 9.31, 13.38, 14.18 9(6) ........... 3.24, 9.34, 9.35, 14.06, 14.09, 14.18 9(7) ................................... 3.24, 9.36, 9.37, 9.38 9(8) ................................. 2.20, 3.24, 9.41, 19.01 9(9) ........................ 1.31, 1.38, 3.24, 9.42, 20.27 10 ..... 3.27, 4.01, 4.19, 7.93, 9.36, 10.07, 10.10, 10.24, 10.36, 12.14, 13.39 10(1) ............................. 1.38, 1.64, 10.07, 20.26 10(2) ........................................................... 10.08 10(3) ..................................... 10.09, 10.11, 19.01 10(4) ............................................... 10.09, 10.11 10(5) ........................... 9.05, 10.09, 10.16, 10.43 10(6) .................................................. 9.05, 10.09 11 ......... 1.31, 1.56, 3.27, 4.01, 4.19, 7.93, 9.36, 11.01, 11.07, 11.12, 11.16, 11.17, 11.37, 11.44, 11.47, 11.48, 11.52, 11.55, 11.65, 12.14, 13.39 11(1) ................................. 1.38, 1.39, 1.56, 9.05 11(2) ...................................... P.63, 11.06, 11.64 11(3) ....................................... 1.27, 11.56, 20.26 11(5) ................................................ 11.65, 19.01 12 ....... 7.129, 11.17, 12.01–12.22, 12.25, 12.30, 12.36, 12.42, 12.49, 12.53, 12.54, 12.56, 12.64, 14.21, 14.30, 15.47, 20.26 12(7) ........................................................... 13.55 13 ......... 1.31, 1.38, 3.27, 4.01, 4.34, 4.37, 6.20, 6.26, 6.63, 6.82, 8.29, 8.34, 8.35, 9.36, 11.01, 11.17, 11.18, 11.56, 11.62, 11.65, 12.14, 13.22, 13.23, 13.29, 13.41, 13.42, 13.43, 13.50, 13.53, 14.12, 14.17, 15.16, 15.17 13(1) ........................... 4.34, 13.02, 13.04, 13.11 13(2) ........................................................... 13.05 13(3) .................... 1.31, 1.38, 9.37, 13.04, 13.11 13(4) ........................................................... 13.11 13(5) ......................................... 4.34, 4.37, 13.20 13(6) ......................................... 9.35, 9.36, 13.20 13(7) ......... 1.64, 3.25, 4.37, 13.25, 13.28, 13.29 13(8) ......................... 7.118, 7.133, 13.34, 13.36

Art 13(9) .................... 2.23, 9.05, 9.36, 13.37, 13.38 Art 13(10) ........................... 9.05, 9.35, 13.37, 13.41 Art 13(11) ................................................ 9.39, 15.17 Art 13(12) ......................................................... 15.12 At 13(13) .......................................................... 13.06 Art 13(14), (15) ................................................ 13.56 Art 14 ..... P.28, 4.01, 4.17, 7.49, 7.130–7.136, 8.29, 8.34, 8.35, 9.31, 9.34, 9.35, 10.09, 11.13, 12.17, 13.02, 13.20, 14.02, 14.06, 14.09, 14.10, 14.12, 14.21, 14.24, 14.38, 15.17 Art 14(1) ....................................... 9.05, 14.05, 22.06 Art 14(2) ....................................... 4.12, 14.05, 14.07 Art 14(3) ........................... 4.12, 14.07, 14.11, 14.32 Art 15 ......... 4.01, 14.12, 14.18, 15.01, 15.02, 15.03, 15.07, 15.08, 15.12, 15.14, 15.15, 15.18, 15.19, 15.21, 15.50, 15.51, 15.52, 15.53, 19.01, 22.04, 24.02 Art 15(1) ........................................................... 15.12 Art 15(2) ..................................... 15.03, 15.12, 15.16 Art 15(3) ........................................................... 15.12 Art 16 .............................. 16.02, 16.06, 18.03, 22.03 Art 16(1) ............................................................. 1.13 Art 16(2) ........................................................... 16.03 Art 16(3) .................................................. 1.27, 16.04 Art 16(4) ........................................................... 16.05 Art 16(5) ..................................... 16.06, 16.11, 29.05 Art 16(6) ........................................................... 16.08 Art 16(7) ........................................................... 16.09 Art 16(8) ........................................................... 16.10 Art 17 ..................... 3.37, 15.47, 17.01, 18.01, 19.01 Art 18 ........................................... 1.05, 18.01, 19.01 Art 18(3) ........................................................... 16.04 Art 19 .................................................... 19.01, 19.02 Art 19(1) ........................................................... 19.03 Art 20 ............. 1.13, 1.28, 4.29, 20.01, 20.02, 20.04, 20.06, 20.12, 20.20, 21.02, 22.06, 28.16, 29.13 Art 20(1) .............. 20.11, 20.13, 20.14, 20.17, 20.18 Art 20(2) ............................. 1.27, 4.29, 20.11, 20.19 Art 20(3) ................................................ 20.21, 20.23 Art 21 ..................... 1.11, 20.01, 20.04, 21.01, 28.06 Art 21(1) ........................... 1.64, 21.03, 21.06, 23.14 Art 21(2) ....................................... 1.64, 21.04, 23.14 Art 21(3) ........................................................... 21.05 Art 21(4) ........................................................... 21.06 Art 22 ......... 1.17, 20.01, 20.04, 22.01, 22.02, 22.03, 22.04, 22.05, 23.05, 23.08, 23.09, 25.07, 26.04 Art 22(1) ........................................................... 22.06 Art 22(2) ........................................................... 22.07 Art 22(3) ................................................ 22.08, 22.09 Art 22(4) ........................................................... 22.09 Art 22(5) ........................................................... 22.10 Art 22(6) ........................................................... 22.11 Art 23 ........... 1.13, 1.17, 20.01, 20.04, 22.01, 22.02, 22.03, 23.01, 23.02, 23.13, 25.07, 26.04 Art 23(1) ... 23.04, 23.06, 23.07, 23.08, 23.11, 23.12 Art 23(2) ........................................................... 23.13

xxv

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 3 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF LEGISLATION Art 24 ......... 1.17, 12.17, 20.01, 20.04, 22.03, 24.01, 24.02, 24.12, 26.04 Art 24(1) ......................... 24.03, 24.04, 24.10, 25.03 Art 24(2) ... 23.07, 24.03, 24.05, 24.06, 24.07, 24.09 Art 24(3) ................................................ 24.03, 24.09 Art 24(4) ................................................ 2.403, 24.09 Art 24(5) ................................................ 24.03, 24.10 Art 24(6) ................................................ 24.03, 24.10 Art 24(7) ................................................ 24.07, 24.03 Art 24(8) ................................................ 24.03, 24.11 Art 25 ......... 1.13, 20.01, 20.04, 20.19, 22.11, 25.01, 25.02, 25.05 Art 25(1) ........................................................... 25.02 Art 25(3) ........................................................... 25.03 Art 26 ........ 20.01, 20.04, 20.18, 24.07, 26.01, 26.03 Art 27 .............................. 20.01, 29.04, 27.01, 27.08 Art 28 ................... 20.01, 20.04, 28.01, 28.04, 28.12 Art 28(1) .................. 1.28, 4.61, 28.05, 28.06, 28.07 Art 28(2) .................................................. 4.61, 28.08 Art 28(3) ........................................................... 28.09 Art 28(4) ........................................................... 28.10 Art 29 .......... 4.48, 20.01, 20.04, 29.04, 29.10, 29.11 Annex I ............................................................. 11.19 Ramsar Convention 1971 ....................................... 3.28 Rio Declaration on Environment and Development 1992 (1992) 31 ILM 874 ......... P.46, P.63, P.72, 1.41, 10.04, 12.41, 12.58 United States-Mexico-Canada Agreement 2018 ............................................................. 10.57 UN Convention on the Law of the Sea (adopted 10 December 1982; entered into force 16 November 1994) 1883 UNTS 3 (UNCLOS) Art 5 ................................................................... 8.50 Art 309 .................................................. 27.01, 27.09 Art 310 .............................................................. 27.09 Universal Declaration of Human Rights, UN 183rd Plenary Meeting, 10 December 1948 Art 19 ................................................................ 12.58 Art 21(1) ........................................................... 12.45 Art 27(1) ........................................................... 12.45 UN Framework Convention on Climate Change, adopted 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 .......... P.04, P.41, 1.01, 1.13, 1.19, 1.23, 1.29, 1.30, 1.31, 1.33, 1.37, 1.46, 1.51, 1.59, 2.01, 2.08, 2.28, 3.03, 3.07, 3.10, 3.35, 4.38, 4.41, 4.60, 5.02, 5.07, 5.27, 5.33, 7.07, 7.13, 7.14, 7.18, 7.54, 7.58, 7.65, 7.112, 7.117, 7.118, 8.01, 8.10, 9.03, 9.06, 11.01, 11.11, 11.55, 12.13, 13.01, 13.15, 18.02, 18.03, 19.01, 20.02, 22.01 Preamble ........................ P.17, P.21, 1.34, 1.54, 7.67 Recital 8 .............................................................. 1.34 Art 1 ........... P.70, 1.16, 1.17, 1.21, 1.45, 1.48, 1.50, 1.56, 1.61, 1.62, 1.63, 1.65 Art 1(2) .............................................................. P.28 Art 2 ............................ P.17, 2.05, 2.15, 7.14, 14.07 Art 3 ................................................. 1.55, 2.19, 6.79

Art Art Art Art Art

3(1) .......................................... P.46, 3.10, 14.05 3(2) ..................................................... P.14, 7.67 3(3) ............................................................... 7.29 3(4) .............................................................. P.46 4 ......... P.64, 2.19, 4.48, 5.07, 7.68, 9.07, 11.02, 12.13, 27.11 Art 4(1) .......................... P.41, 4.60, 7.54, 7.58, 7.85 Art 4(2) ............................................ 1.70, 2.03, 4.60 Art 4(3) ................................. 4.19, 9.06, 9.16, 15.47 Art 4(4) ............................... 7.118, 9.06, 9.26, 15.47 Art 4(5) ............................................................. 15.47 Art 4(6) ............................................................... 1.35 Art 4(8) ..... P.31, P.32, P.41, 1.34, 4.31, 7.14, 7.68, 9.26 Art 4(9) ......................... P.31, P.36, P.38, 7.68, 7.98 Art 4(10) ................................................... P.31, 1.34 Art 5 ...................................................... 11.02, 13.13 Art 6 .......... P.80, 11.02, 11.44, 11.65, 12.01, 12.13, 12.18, 12.20 Art 6(1) .............................................................. P.35 Art 7(1) ............................................................... 1.25 Art 7(2) ...................................................... 1.25, 2.20 Art 7 (3) .................................................. 1.25, 16.12 Art 8 ........................................... 11.02, 17.01, 17.02 Arts 9, 10 .......................................................... 18.01 Art 11 ................................................................. 2.20 Art 11(1) ............................................................. 9.08 Art 12 ......................................... 7.118, 11.02, 13.12 Art 12(3) ........................................................... 7.118 Art 12(5) ............................................................ P.38 Art 14 ................... 23.04, 24.01, 24.02, 24.12, 26.04 Art 15 .................................................... 23.04, 26.04 Art 16 .................................................... 23.03, 26.04 Art 16(8) ............................................................ P.82 Art 17(2) ............................................................. 2.25 Art 18 ................................................................ 25.02 Art 19 ................................................................ 26.02 Art 21(3) ............................................................. 9.08 Art 25 .................................................... 28.05, 28.07 Art 25(3) ........................................................... 28.10 Vienna Convention on the Law of Treaties (adopted 23 May 1969; entered into force 27 January 1980) 1155 UNTS 331 (VCLT) ........ 1.06, 1.09, 2.08, 2.25, 20.02, 20.05 Preamble Recital 3 .............................................. 1.07 Art 2(1) ................ 12.07, 20.05, 20.09, 27.02, 29.02 Art 6 ................................................................. 20.05 Art 7 ........................................... 20.05, 29.02, 29.07 Art 9 ...................................................... 29.03, 29.12 Art 10 .................................................... 29.03, 29.10 Arts 11–15 ........................................................ 20.06 Art 15 ................................................................ 20.17 Art 18 ................................................................ 20.07 Art 20 ................................................................ 21.03 Arts 20–23 .......................................................... 1.07 art 21(a) .............................................................. P.07 Art 24 ...................................................... 1.07, 21.02

xxvi

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 4 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 5 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

TABLE OF LEGISLATION Art 26 ................................................................. 1.07 Art 26 ........................................................ 1.07, 7.48 Art 29 ................................................................ 20.06 Art 30 ................................................................. 1.07 Art 31 .................................. 1.09, 2.13, 20.11, 27.07 Art 31(1) ................................. 1.09, 1.10, 4.27, 8.11 Art 31(2) ............................................................ P.02 Art 31(3) ................................................... P.91, 4.27 Art 31(4) .................................................. 1.10, 21.04 Art 31(2) ............................................................ P.02 Art 31(4) ............................................................. 1.10 Art 32 ........................................... 1.09, 20.11, 27.07 Art 33 ........................................... 1.09, 20.11, 27.07 Art 39 ................................................................ 22.01 Art 40 ................................................................ 22.01 Art 54(a) ........................................................... 28.05 Arts 54–59 ........................................................ 28.02

EUROPEAN UNION Consolidated version of the Treaty on the Functioning of the European Union OJ C 326, 26.10.2012 (TFEU) Art 258 .............................................................. 12.61 Art 260 .............................................................. 12.61 Art 267 .............................................................. 12.61 Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, OJ L 26/1 Art 6(4) ............................................................. 12.50 Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies OJ L 264/13 Art 3 ................................................................. 12.59 Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/2013, PE/3/2018/REV/2 OJ L 156,19.6.2018, 26–42 Art 7 ................................................................... 5.41

NATIONAL Germany Environmental Impact Assessment Act (Gesetz über die Umweltvertr.glichkeitsprüfung) in the version of 24.02.2010 (Federal Law Gazette [BGBl.] part I 94) s 18 .................................................................... 12.50 Umweltinformationsgesetz in der Fassung der Bekanntmachung vom 27. Oktober 2014 (Federal Law Gazette [BGBl.] part I, 1643) ............................................................ 12.59 Umwelt-Rechtsbehelfsgesetz in der Fassung der Bekanntmachung vom 23. August 2017 (Federal Law Gazette [BGBl.]part I, 3290) s 4 ...................................................................... 12.50 Federal Act Governing Access to Information held by the Federal Government of 5 September 2005 (Federal Law Gazette [BGBl.] Part I, 2722) ............................................................ 12.59 Freedom of Information Act, 1966 ...................... 12.59

South Africa Constitution s 24 .................................................................... 12.51

Sweden Freedom of the Press Act, 1766 ........................... 12.59

United Kingdom Environmental Information Regulations 2004, SI 2004 No. 3391 ...................................................... 12.59 Planning Act 2008 .................................................. 2.43 s 5(8) ................................................................... 2.42

United States of America Clean Air Act .......................................................... 3.35 Constitution 1787 .......................................... 3.33, 3.36 Art I(8), (10) ....................................................... 3.33 Art II(2) .............................................................. 3.34 Art VI (2) ........................................................... 3.33

xxvii

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 5 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 6 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: TableLeg

/Pg. Position: 6 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

INTRODUCTION – THE PARIS AGREEMENT ON CLIMATE CHANGE Leonie Reins and Geert van Calster

On 12 December 2015, the Parties to the United Nations Convention on Climate Change (‘UNFCCC’) adopted the Paris Agreement (‘PA’) following several years of failed attempts to reach global agreement.1 Upon its adoption, the PA was lauded as a triumph of multilateral climate diplomacy.2 The Agreement represents the joined understanding of all nations into a common cause to undertake ambitious efforts to mitigate climate change, as well as to adapt to its effects globally. The PA foresees enhanced support for developing countries so as to assist them in meeting these objectives.3 The PA is not divided into chapters or subsections, but is structured in a simple manner with a Preamble, followed by 29 operative articles, which set out the Agreement’s scope and definitions, main objectives, and institutional provisions. This Commentary on the PA provides a comprehensive, article-by-article, analysis of this groundbreaking agreement. The commentary brings together 22 eminent scholars in the field of climate change, environmental, and energy law, for a detailed examination of the implementation of the PA. The broad objective of the Paris Agreement is to ‘strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty’.4 It seeks to achieve that objective by (i) holding the increase in global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels;5 (ii) increasing the ability to adapt to adverse impacts of climate change; and (iii) making finance flows consistent with a pathway towards low greenhouse gas emissions (‘GHG’) and ‘climate-resilient development’.6 Implementation of the PA will take place to ‘reflect equity’ and ‘the principle of common but differentiated responsibilities and respective capabilities’.7 As the commentary of Article 2 notes however, this objective is a ‘collective goal, framed in aspirational language, and as such does not impose binding obligations in State Parties, despite suggestions to the contrary’.8 The question of the bindingness of the Agreement is indeed a topic that is discussed in multiple commentaries to the Agreement’s provisions.9 It has also already surfaced in national courts in various fashion.10 1 2 3 4 5 6 7 8 9 10

For a history of the negotiation process of the Agreement refer to the commentary of Article 2. See also the commentary of Article 7 (07.05). Recitals 3 and 5 of the Preamble, as well as the commentary thereto. See also commentary of Article 2 (02.14). For a discussion on the temperature targets see also the commentaries of Articles 2 (02.15f) and 4 (04.03). Article 2(1). Article 2(2). See commentary of Article 2 (02.18). See, e.g., commentaries of Articles 2, 4, 5, 13 , see also L. Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ (2016) 28 Journal of Environmental Law 337, 352. See for the UK, R (on the application of Plan B Earth) v Secretary of State for Transport et al [2020] EWCA Civ 214.

1

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00eIntrofinal

/Pg. Position: 1 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 4 OUTPUT: Wed Mar 3 13:47:59 2021

INTRODUCTION – THE PARIS AGREEMENT ON CLIMATE CHANGE

To achieve the aforementioned objectives, Parties are required to undertake and communicate so-called Nationally Determined Contributions (‘NDCs’).11 In addition, Parties commit themselves to pursue domestic mitigation measures ‘with the aim of achieving the objectives’ of such NDCs.12 The PA sets out a detailed administration mechanism of the NDCs that are to be submitted by the Parties. There are requirements relating to transparency and clarity of those NDCs, as well as an obligation to communicate these NDCs every five years.13 The Secretariat of the UNFCCC is responsible for administering the NDCs.14 Although the PA does not require States to communicate NDCs, at least 147 Parties representing 86 per cent of GHGs voluntarily communicated their intended NDCs before the Paris Agreement was adopted.15 It is however also worth noting that seven of the largest emitters are not on track to meet their commitments.16 Through the NDCs, ‘the Paris Agreement relies on a “bottom-up approach” whereby each State is to decide the ambit of its contribution’.17 The approach of introducing NDCs ‘to the global response to climate change denotes a new approach to the principle of common but differentiated responsibilities and respective capacities, which has been a point of deep division between States Parties to the UNFCCC’18 for a significant time. As the commentary on Article 3 notes, essentially, the PA imposes an obligation on the Contracting Parties to adopt adequate measures towards the realization of the mitigation targets contained in their respective NDCs. Importantly, this obligation is limited to the climate change mitigation targets themselves, and does not stipulate any specific mitigation measures that some NDCs mention. As a result of this ‘obligation of conduct’, the international responsibility of a Party to the PA would not automatically be engaged based on the finding that the target was not achieved.19 However, international responsibility could arise as a result of a failure to take adequate steps towards achieving that target, regardless of whether the target was ultimately achieved.20 Adaptation to climate change is given, for the first time, equal status to mitigation in the context of the Paris Agreement.21 A global goal on adaptation is set in Article 7 of the agreement, whereby the adaptive capacity is enhanced, resilience is strengthened and vulnerability is reduced.22 Importantly, however, the goal on adaptation is of an aspirational and political nature.23 There is, as such, no legal obligation on Parties to the PA to implement it in their national laws and regulations.24 Nevertheless, the good faith principle requires Parties not

11 12 13 14 15 16 17 18 19 20 21 22 23 24

Article 3. Article 4(2) and the commentary thereto. Article 4(8) and Article 4(9) and the commentary thereto. Article 4(12) and Article 17. See commentary of Article 4 (04.13). See commentary of Article 2 (02.37–02.40). See commentary of Article 4 (04.08). See commentary of Article 2 (02.23). Commentary of Article 4 (04.49 and 4.53). Ibid. See also the commentary of Articles 2 (02.19) and 7. See also the commentary of Article 7 (07.21ff). See also ibid. (07.35 and 07.48f). Ibid.

2

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00eIntrofinal

/Pg. Position: 2 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

INTRODUCTION – THE PARIS AGREEMENT ON CLIMATE CHANGE

to simply disregard the adaptation objective of the PA.25 Adaptation should take place whilst taking into account the ‘urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change’.26 Increasingly, developing country Parties are adopting national adaptation plans (‘NAPs’) through a process whose objective is ‘to reduce vulnerability to the impacts of climate change by building adaptive capacity and resilience’.27 The reference to sustainable development and efforts to eradicate poverty in Article 2 of the Paris Agreement are tied to technology development and transfer.28 The PA urges Parties to ‘work together and develop long-term innovation plans and policies in respect of environmentally sound technologies’.29 In this context, the Technology Mechanism is ‘meant to play a pivotal role in encouraging research, development, and diffusion of clean technologies to address climate change mitigation and adaptation’.30 Article 10 of the PA recognizes that technology transfer should be supported ‘through financial means, by the Financial Mechanism of the Convention, for collaborative approaches to research and development, and facilitating access to technology, in particular for early stages of the technology cycle, to developing country Parties’.31 Article 10(5) specifically highlights the close relationship between innovation, climate action, economic growth and sustainable development. Indeed, it provides that ‘[a]ccelerating, encouraging and enabling innovation is critical for an effective, long-term global response to climate change and promoting economic growth and sustainable development’.32 Emphasizing the close link with issues relating to sustainable development, developed country Parties are encouraged to take ‘the lead by undertaking economy-wide absolute emission targets’.33 Developing countries on the other hand are encouraged to continue their mitigation efforts, and to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.34 For these efforts, additional support in the form of financial resources shall be provided by developed countries to developing countries in the recognition that this ‘will allow for higher ambitions in their actions’.35 Special attention is placed on least developed countries (‘LDCs’) and small island developing States (‘SIDs’), who are only requested to ‘prepare and communicate strategies, plans and actions for low GHG emissions development’.36

25 26 27 28 29 30 31 32 33 34 35 36

See ibid. 7 (07.48). See also ibid. (07.65 and 07.71). See also ibid. (07.94 and 07.100). See also the commentary of Article 10 (10.07). Ibid. Ibid. (10.12). Ibid. (10.24) and Article 10(5) of the PA. Ibid. (10.43) and Article 10(5) of the PA. See commentary of Article 2 (02.24). Ibid. Article 4(5) and Article 9(1) commentary thereto. Article 4(6) and the commentary thereto.

3

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00eIntrofinal

/Pg. Position: 3 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

INTRODUCTION – THE PARIS AGREEMENT ON CLIMATE CHANGE

Voluntary cooperation between the Parties in implementing their respective NDCs is encouraged to allow for a higher level of ambition, as well as to promote sustainable development and environmental integrity.37 Cooperation is also emphasized by the recognition that: adaptation is a global challenge faced by all with local, subnational, national, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems, taking into account the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change.38

Technology development and transfer, as well as capacity-building efforts are also explicitly mentioned by the PA as means to ‘improve resilience to climate change and to reduce GHG emissions’.39 Participation in the Paris Agreement is nearly universal, with the Agreement emphasizing that developed country Parties should ‘continue taking the lead by undertaking economy-wide absolute emission reduction targets’.40 Of the Parties to the UNFCCC 175 signed the PA, and presently 188 of the 197 signatories have ratified it.41 Importantly, the PA foresees that Regional Economic Integration Organisations (‘REIOs’) may become party to it, with Article 20(2) providing that ‘[a]ny regional economic integration organization that becomes a Party to this Agreement without any of its member States being a Party shall be bound by all the obligations under this Agreement’.42 Parties to the Paris Agreement for which the agreement has entered into force may withdraw after the expiration of a period of three years from the date of that entry into force. Withdrawals take place a year after the receipt of the notification of withdrawal by the Depositary, i.e., the Secretary-General of the UN.43 On 4 November 2019, the United States began the process to withdraw from the Paris Agreement by submitting a formal notification of withdrawal to the United Nations.44 The United States’ withdrawal took effect on 4 November 2020, a year after the delivery of the notification.45 However, on 20 January 2021, the Government of the United States of America deposited its instrument of acceptance of the Agreement under the new Biden Administration.46

37 38 39 40 41 42 43 44 45 46

Article 6(1) and commentary thereto. Article 7(2) and the commentary thereto. Article 10(1) and Article 11 commentary thereto. Article 4(4) and commentary thereto. See also the commentary of Article 20 (20.16) as well as the commentary of Article 21 (21.05). Article 20(2). See also commentary of Article 20 (20.10f and 20.19ff). Article 28(2) and Article 26. See C.N.575.2019.TREATIES-XXVII.7.d of 4 November 2019. Article 28 and also the commentary thereof. See C.N.10.2021.TREATIES-XXVII.7.d (Depositary Notification) of 20 January 2021.

4

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00eIntrofinal

/Pg. Position: 4 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE Ben Boer1

Note: For ease of reference, the recitals are numbered from 1 to 16 in this chapter, although they are unnumbered in the Agreement itself. The Parties to this Agreement, 1. 2.

3.

4. 5.

6. 7. 8.

9.

10.

11.

1

Being Parties to the United Nations Framework Convention on Climate Change, hereinafter referred to as ‘the Convention’, Pursuant to the Durban Platform for Enhanced Action established by decision 1/CP.17 of the Conference of the Parties to the Convention at its seventeenth session, In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances, Recognizing the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge, Also recognizing the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, as provided for in the Convention, Taking full account of the specific needs and special situations of the least developed countries with regard to funding and transfer of technology, Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it, Emphasizing the intrinsic relationship that climate change actions, responses and impacts have with equitable access to sustainable development and eradication of poverty, Recognizing the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change, Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities, Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and

I am indebted to Dr. Rowena Cantley-Smith, University of Technology, Sydney for her assistance in the preparation of this chapter.

5

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 1 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 9 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

12. 13.

14.

15.

16.

people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity, Recognizing the importance of the conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases referred to in the Convention, Noting the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of ‘climate justice’, when taking action to address climate change, Affirming the importance of education, training, public awareness, public participation, public access to information and cooperation at all levels on the matters addressed in this Agreement, Recognizing the importance of the engagements of all levels of government and various actors, in accordance with respective national legislations of Parties, in addressing climate change, Also recognizing that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change,

Have agreed as follows: A. INTRODUCTION

P.01

B. INTERNATIONAL TREATY LAW RULES AND PREAMBLES

P.02

C. HISTORY OF THE PARIS PREAMBLE

P.03

D. THE 16 RECITALS OF THE PREAMBLE 1. Parties 2. The Durban Platform 3. Objective and principles of the Convention a. Equity b. In the light of different national circumstances 4. Response to the urgent threat a. Effective and progressive response b. The best available scientific knowledge 5. Specific needs and special circumstances of developing country Parties a. Particularly vulnerable b. Specific needs 6. Least developed countries and technology a. Funding 7. Recognizing impacts of response measures

P.06 P.06 P.08

8. Intrinsic relationship 9. Fundamental priorities and the adverse impacts of climate change a. Safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems 10. Just transition imperatives 11. Common concern of humankind a. Gender equality and empowerment of women b. … the right to health c. … People in vulnerable situations d. … Children 12. Conservation and enhancement of sinks and reservoirs a. … sinks and reservoirs 13. Ecosystem integrity and climate justice a. Climate Justice 14. Education, public participation and access to information 15. Participation of non-State actors 16. Important role of sustainable consumption and production patterns

P.11 P.13 P.15 P.16 P.24 P.26 P.30 P.32 P.36 P.37 P.39

E. CONCLUSION

P.44 P.47

P.48 P.50 P.52 P.63 P.64 P.65 P.66 P.69 P.70 P.71 P.78 P.79 P.81 P.86 P.91

P.40

6

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 2 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

B. INTERNATIONAL TREATY LAW RULES AND PREAMBLES

COMMENTARY A. INTRODUCTION This chapter provides a commentary on each recital of the Preamble of the Paris Agreement.2 P.01 It explores the legal and conceptual themes that frame and inform the context that the Preamble provides in underpinning the Agreement’s objective and purpose. The Preamble also reflects the closely entwined relationship with pre-existing treaty law and related State Party decisions.

B. INTERNATIONAL TREATY LAW RULES AND PREAMBLES Article 31(2) of the Vienna Convention on the Law of Treaties, which focuses on the general P.02 rule of interpretation, states: ‘The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes …’.3 Preambles play a variety of roles, from explaining the purpose of the treaty to providing the context for the interpretation of the operative or substantive provisions of the treaty to being an integral part of the text.4 As Gardiner comments: It should not … be assumed that all preambles are of equal value. Some are very carefully negotiated, others cobbled together more or less as an afterthought. In the case of major modern multilateral treaties, where there are usually good records of the negotiating history, the preparatory work will reveal whether there has been thorough attention to the content of the preamble.5

In the case of the Paris Agreement, the Preamble was the subject of lengthy negotiations, as indicated below. Its status and legal effect are particularly important as the subject matter of a number of preambular recitals is not specifically reflected in the subsequent articles of the Agreement.

2 3

4

Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015; entered into force 4 November 2016) (Paris Agreement). Mark E Villiger has commented: ‘The entire text of the treaty is to be taken into account as “context”, including title, preamble and annexes; Commentary on the 1969 Vienna Convention on the Law of Treaties, (Martinus Nijhoff, Leiden/Boston 2009) 272, 427. For observations on the status of Preambles, see Jan Klabbers, ‘Treaties and Their Preambles’ in Michael Bowman and Dino Kritsiotis Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge 2018) 172. Dörr and Schmalenbach argue: The preamble to a treaty, usually consisting of a set of recitals, may assist in determining the object and purpose of the treaty, for it is the normal place where the parties would embody an explicit statement to that effect. By stating the aims and objectives of a treaty, a preamble can thus be of both contextual and teleological significance. There are many examples in international jurisprudence of reference being made to the preamble of a treaty in order to elucidate the meaning of a particular provision.

5

Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties, (Springer-Verlag Berlin Heidelberg 2012) 544. See further, Max M Hulme, ‘Preambles in Treaty Interpretation’ (April 2016) 164(5) University of Pennsylvania Law Review 1281–343, 1289. Richard Gardiner, Treaty Interpretation (2nd ed Oxford 2015) 206.

7

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 3 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 7 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

C. HISTORY OF THE PARIS PREAMBLE P.03 In considering the history of the negotiations of the Paris Agreement, it is notable that the Geneva Climate Change Conference in February 2015 included over 40 proposed paragraphs for the Preamble, with a variety of options for several of them.6 In October 2015, the Bonn negotiations leading up to the Paris Agreement saw a number of proposed preambular provisions being discussed, some of which were eventually included in the Agreement. Reports of ‘spin-off groups’7 give some indication of the contingent nature of the negotiations. P.04 From perusing the records of the negotiations, it is obvious that there the influence of a wide range of stakeholders was in play, with long debates as to what should be included, and what should be left out.8 As Carazo observes, many of the preambular recitals have parallel provisions in their operative parts of the Agreement.9 However, there are some significant exceptions to this parallelism, particularly the mention of human rights, the rights of specific groups, and gender issues. No doubt there was a determination to ensure that many bases should be covered to satisfy the various Party and non-Party stakeholders, even if some issues did not make it into the operative provisions. The fact that they were included in the Preamble was nevertheless important in terms of ensuring that there was broad agreement in coming to the final text. But, as Sands and Peel note, ‘like the 1992 Convention, many of [the Agreement’s] provisions use ambiguous or permissive language that create any soft obligations, to accommodate the interests of particular Parties, such as the United States, allowing for participation by executive action’.10 The final version of the Preamble was described by the facilitator of those negotiations, perhaps with some hyperbole, as an ‘immensely revolutionary Preamble’.11 Ultimately, the Preamble to the Paris Agreement was reduced to 16 detailed recitals that reflect the history of the development of the Convention and the Kyoto Protocol, as well as including substantive statements and commitments that relate both to the implementation of the Convention and to the Agreement. By way of comparison, the Preamble to the Convention contains ten substantive recitals that set out in some detail the fundamental purposes of the instrument. In contrast, the Preamble to the Kyoto Protocol comprises six short and non-substantive recitals. P.05 The context of the development of the Paris Agreement includes the parallel negotiations which were taking place concerning the Sustainable Development Goals (SDGs). It was therefore logical that there is considerable correspondence between the Agreement and the SDGs. This link is specifically recognized in the document Transforming our World,12 which contains the SDGs and its associated Targets: ‘We acknowledge that the United Nations 6 7 8 9

10 11 12

Work of the Contact Group on Item 3, Negotiating text Advance unedited version 12 February 2015, 1–4, https://unfccc.int/files/bodies/awg/application/pdf/[email protected] accessed 3 March 2020. See ‘Summary of the Bonn Climate Change Conference: 19–23 October 2015’ Earth Negotiations Bulletin Vol. 12 No. 651, 22 October 2015. Earth Negotiations Bulletin Vol. 12 No. 651, 22 October 2015, 4; http://www.iisd.ca/climate/unfccc/adp2-11/, accessed 2 March 2020. María Pía Carazo ‘Contextual Provisions (Preamble and Article 1)’, in: Daniel Klein, María Pía Carazo, Meinhard Doelle, Jane Bulmer and Andrew Higham (eds), The Paris Agreement on Climate Change: Analysis and Commentary, (Oxford 2017) 109. Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (4th ed, Cambridge 2018) 319. As quoted in Carazo (n 9) 109. Transforming our World: The 2030 Agenda for Sustainable Development A/RES/70/1 (2015).

8

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 4 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 5 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

Framework Convention on Climate Change is the primary international, intergovernmental forum for negotiating the global response to climate change. We are determined to address decisively the threat posed by climate change and environmental degradation’.13

D. THE 16 RECITALS OF THE PREAMBLE 1. Parties Recital 1: ‘Being Parties to the United Nations Framework Convention on Climate Change, P.06 hereinafter referred to as “the Convention”.’ This recital follows the heading ‘Parties to this Agreement’; it simply indicates that Parties to P.07 the Paris Agreement are also Parties to the Climate Change Convention, as recorded in Paris Agreement Article 1(a) and (c); the question of Parties is discussed in Chapter 1 on Article 1. The association of the Agreement to the UNFCC immediately points to the fact that it must be characterized as an international law treaty, pursuant to the Vienna Convention on the Law of Treaties,14 although the legal form of the instrument was debated over the four years of negotiation.15 Recital 1 indicates that all Parties to the Agreement are also Parties to the Convention; however, the converse is not true: not all Parties to the Convention are Parties to the Agreement. Nine states are not yet Parties.16 The European Union is a Party in its own right, pursuant to Convention Articles 20 and 22, which recognizes the capacity of ‘economic integration organizations’ to sign and ratify the Convention. The United States signalled withdrawal as a Party in 2017.17 2. The Durban Platform Recital 2: ‘Pursuant to the Durban Platform for Enhanced Action established by decision P.08 1/CP.17 of the Conference of the Parties to the Convention at its seventeenth session.’ This recital focuses on the crucial 17th Conference of the Parties in Durban (COP17). COP17 P.09 was seen as a turning point in the long years of climate change negotiations: ‘In Durban, governments clearly recognized the need to draw up the blueprint for a fresh universal, legal agreement to deal with climate change beyond 2020, where all will play their part to the best of

13 14

15

16 17

Ibid., para. 31; see further below with respect to urgent responses. Vienna Convention on the Law of Treaties 1969 1155 UNTS 131 Article 21(a): ‘“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ See Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani International Climate Law (Oxford University Press 2019) 210–14; also, Daniel Bodansky, ‘The Legal Character of the Paris Agreement’, (2016) 25(2) Review of Comparative and International Environmental Law 142; Sands and Peel, (n 10) 319. The following states have signed but not yet ratified the Agreement: Angola, Eritrea, Iran, Iraq, Libya, South Sudan, Turkey and Yemen. The intended effective date of withdrawal is November 4, 2020, the day after the result of the US 2020 presidential election is known.

9

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 5 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 6 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

their ability and all will be able to reap the benefits of success together.’18 An increasing sense of urgency was felt to promote action on climate change at COP17, which is seen to some degree in the Paris Agreement four years later, and is reflected in Recital 4, below. A ‘need for greater ambition’ was identified, with a recognition that it was important for ‘bigger and bolder action that is required to keep the world on the right track to reduce emissions, to deal with existing climate change and to help smooth the way for an effective new global climate change agreement in 2015’.19 P.10 The Paris Agreement was initiated by the Ad Hoc Working Group on the Durban Platform for Enhanced Action20 (known as the ADP). The ADP is a subsidiary body established by COP17.21 The mandate of the ADP was ‘to develop a protocol, another legal instrument or an agreed outcome with legal force’ that was to be universally applicable. In other words, there was no necessarily pre-conceived form that such an instrument would take. 3. Objective and principles of the Convention P.11 Recital 3: ‘In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.’ P.12 It is of course logical for the Paris Agreement to pursue the objective of the Convention and to be guided by its principles. The recital mentions both the equity principle and the principle of common but differentiated responsibilities and respective capabilities, making it clear that these two principles are fundamental to both the Convention and the Agreement.22 These principles are referred to by Voigt and Ferreira as the ‘normative legacy of the UNFCCC’.23 The recital should also be read in conjunction with Article 2 of the Agreement, which provides that the Agreement, ‘in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty …’.24 a. Equity P.13 Equity is mentioned three times in the Preamble. In this recital, it is simply referred to as the ‘principle of equity’. In Recital 11, it relates more specifically to gender equity and to intergenerational equity (see Recital 11, below). In Article 3 of the Convention, the principle is 18 19 20 21 22

23 24

‘Turning point in the negotiations’ https://unfccc.int/process/conferences/the-big-picture/milestones/outcomes-of-thedurban-conference accessed 23 February 2020. ‘Turning point in the negotiations’, ibid. ADP bodies page https://unfccc.int/adp-bodies-page accessed 23 February 2020. See Report of the Conference of the Parties on its 17th session, 28 November to 11 December 2011, FCCC/CP/2011/ 9/Add.1, Decision 1/CP.17, accessed 23 February 2020. The other principles included in Article 3 of the Convention in summary are: to give full consideration to specific needs and special circumstances of developing country Parties; the precautionary principle; sustainable development: and the principle of cooperation. Christina Voigt and Felipe Ferreira, ‘“Dynamic Differentiation”: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement’ (2016) 5 Transnational Environmental Law 285–303, 293. See further, Anna Huggins and Rowena Maguire, ‘The Implementation of the Principle of Common but Differentiated Responsibilities within the Paris Agreement A Governance Values Analysis’ in Vesselin Popovski The Implementation of the Paris Agreement on Climate Change (Routledge 2019).

10

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 6 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 7 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

depicted as including both intra-generational and intergenerational aspects: ‘The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity … .’25 The second part of the recital is specifically associated with the principle of equity by the P.14 conjunctive ‘and’, involving a judgment as to what obligations are placed on particular Parties with respect to their ‘common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’. With regard to ‘common but differentiated responsibilities’ in this recital, the phrase is not only qualified by ‘respective capabilities’, as found in Article 3 of the Convention, but by the additional phrase ‘in the light of different national circumstances’. The seeds of this addition were already evident in the Article 3(2) of the Convention, which makes it clear that the specific needs and special circumstances of developing country Parties, which would ‘have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration’. Taking the two parts of the recital together they question how an equitable balance can be achieved between particular Parties with respect to their obligations, given the differing economic, political, social and cultural circumstances of developed and developing nations.26 b. In the light of different national circumstances This phrase relates to the negotiation of a bilateral agreement27 between the US and China, P.15 negotiated between President Obama and President Xi of China, which recognized that the two countries ‘have a critical role to play in combating global climate change, one of the greatest threats facing humanity. … They are committed to reaching an ambitious 2015 agreement that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances’ (emphasis added). In addition to the Preamble, the phrase appears in Article 2 paragraph 3, and Article 4(3)(4) and (19), always following the phrase ‘common but differentiated responsibilities and respective capabilities’. As Carazo comments, ‘this brings a new dimension to the CBDRRC principle. … [It] is one result of the hard-fought compromise reached by the parties regarding differentiation’.28 4. Response to the urgent threat Recital 4: ‘Recognizing the need for an effective and progressive response to the urgent threat P.16 of climate change on the basis of the best available scientific knowledge.’ It is significant to note that the Agreement’s Preamble carries a heightened sense of urgency P.17 compared with the Preambles of the Convention and the Kyoto Protocol. The Convention’s Preamble acknowledges that ‘change in the Earth’s climate and its adverse effects are a

25 26 27 28

See further, Hugh Breakey, ‘Five Short Words and a Moral Reckoning: The Paris Regime’s CMA- APA Equity Stocktake Process’ in Popovski, ibid., 104–25. See Z. Mi, H. Liao, D. Coffman et al, ‘Assessment of Equity Principles for International Climate Policy Based on an Integrated Assessment Model’ Nat Hazards 95, 309–23. ‘U.S.-China Joint Announcement on Climate Change’ https://obamawhitehouse.archives.gov/the-press-office/2014/ 11/11/us-china-joint-announcement-climate-change accessed 4 March 2020. Carazo (n 9) 111.

11

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 7 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 8 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

common concern of humankind’. It stated that the Parties to the Convention were ‘[c]oncerned that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases’ and that ‘these increases enhance the natural greenhouse effect’, which in turn ‘will result on average in an additional warming of the Earth’s surface and atmosphere’ that ‘may adversely affect natural ecosystems and humankind (emphasis added). The only real indication of urgency is found in Article 2 of the Convention, which mentions prevention of ‘dangerous anthropogenic interference with the climate system’ (emphasis added). After over three decades of scientific analysis and debate from the date of the first IPCC report in 1988, the Paris Agreement recognized ‘the urgent need for an effective and progressive response to the urgent threat of climate change …’ (emphasis added). P.18 In 2015, the introductory paragraphs in Transforming our World recognized the need to take ‘urgent action on climate change, so that it can support the needs of the present and future generations’,29 and this is in turn reflected in Sustainable Development Goal 13: ‘Take urgent action to combat climate change and its impacts.’ However, this goal came with an asterisked proviso recognizing the UNFCCCs primary role in issues of climate change in the context of the SDGs.30 P.19 Since the Convention’s conclusion and adoption in 1992, both scientific data and lived experience have increased the International Community’s awareness and knowledge of the harmful environmental, economic, and social ramifications of climate change. As succinctly stated at the outset of the 2006 Stern Report: ‘The scientific evidence is now overwhelming: climate change presents very serious global risks, and it demands an urgent global response’;31 ‘Climate change threatens the basic elements of life for people around the world – access to water, food production, health, and use of land and the environment’.32 P.20 One question is, what constitutes a threat, and what level of urgency is contemplated? Further, how serious need it be before action is taken? A clue is found in Article 7(2) of the Paris Agreement, where the Parties recognize that adaptation at all levels ‘is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems, taking into account the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change’. That provision, notably, mentions urgent need in the context of developing countries that are particularly vulnerable; whilst it does not exclude other countries, the implication seems clear that the idea of urgency should be especially taken into account with respect to the specified countries. Further, urgent need is of course different from urgent threat, although it could be argued that an identified urgent need contemplates a threat, or is as a result of a particular threat.

29 30

31 32

Preamble to Transforming our World (n 12). ‘… [T]hroughout the negotiations on the SDGs, some delegates proposed integrating climate change issues into the other SDGs, rather than having a “stand-alone goal.” Ultimately, those who argued that an agenda for the 21st Century must feature climate action as a central focus prevailed, but the asterisk deferred to the UNFCCC role in driving change’: SDG 13 Update: Joining Up NDC and SDG Planning http://sdg.iisd.org/commentary/policy-briefs/sdg-13update-joining-up-ndc-and-sdg-planning/ accessed 18 March 2020. N Stern, The Stern Review: The Economics of Climate Change (Cambridge University Press 2006) Executive Summary, 1. Ibid., 6.

12

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 8 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 9 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

The Convention’s Preamble made it clear that there was a great deal of uncertainty in P.21 ‘predictions of climate change’ and that global warming ‘may adversely affect natural ecosystems and humankind’; in the 2015 Paris Agreement, the position was expressed in a way that leaves no room for any such uncertainty. The clear recognition of the urgency associated with responding effectively to the threat of climate change is also reflected in the preambular paragraphs of Decision 1/CP.21 (Adoption of the Paris Agreement),33 where the Parties recognize ‘that climate change represents an urgent and potentially irreversible threat to human societies and the planet’. However, in the five years since the Agreement was negotiated, many analysts around the P.22 world have become much more vocal concerning the existential crisis represented by the effects of climate change as well as increasingly rapid biodiversity loss. In the light of reports since 2015, ‘urgent threat’ may now not be a sufficiently robust phrase, and perhaps that the descriptor ‘existential threat’ is more appropriate, although the majority of Parties would be likely to eschew such description for political reasons. But for some countries, especially low-lying atoll countries,34 the very continuation of their existence is indeed in doubt, with their populations no longer able to live in their territories, and subject to involuntary or forced migration.35 Would a much higher level of urgency have been incorporated in the preamble given the state of knowledge in 2020 in the light of the IPCC’s reports since 2015? If the Paris Agreement were to be drafted today, in the light of the increasing alarm on the part of scientists, economists, policymakers and others, and the widespread declarations of climate emergency by governments, universities and NGOs, that sense of urgency might possibly be heightened, with much stronger language employed. Finally, to bolster such arguments, the principle of contemporaneity36 might well be invoked, P.23 especially where national obligations are being tested in the courts with respect to the interpretation of the level of urgency required to achieve drastic reductions in greenhouse gases. Under this principle it could be argued that as time passes, much more drastic measures could be expected by governments and where necessary, ordered by the courts, as occurred in the Urgenda Case in the Netherlands.37

33 34

35

36 37

FCCC/CP/2015/10/Add.1, 29 January 2016. ‘From an AOSIS perspective, climate change poses an existential threat associated with the loss and damage they are likely to suffer’; see Timothée Ourbak and Alexandre K. Magnan ‘The Paris Agreement and Climate Change Negotiations: Small Islands, Big Players’ (2018) 18 Regional Environmental Change 2201–7, 2204; also, ‘An Existential Threat: How Climate Change is Impacting the Atoll Countries’ Asian Development Bank 9 December 2019 (video) https://www.adb.org/news/videos/existential-threat-how-climate-change-impacting-atoll-countries, accessed 23 February 2020. See e.g., Oli Brown Migration and Climate Change, International Organization for Migration, 2008; Guy J. Abel, Michael Brottrager, Jesus Crespo Cuaresma, Raya Muttarak, ‘Climate, Conflict and Forced Migration’ (January 2019) 54 Global Environmental Change 239–49. P. Weeramantry, International Court of Justice, Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) case https://www.icjcij.org/en/case/92, 113–15, accessed 29 February 2020; and see Sands and Peel (n 10) 109. Urgenda Foundation v The State of the Netherlands, (2015) HA ZA 13-1396) C/09/456689, District Court, The Hague; and The State of the Netherlands (Ministry of Economic Affairs and Climate Policy) and Stichting Urgenda ECLI:NL:PHR:2019:1026, Supreme Court of the Netherlands.

13

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 9 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 10 SESS: 7 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

a. Effective and progressive response P.24 The question of what constitutes an effective and progressive response to the urgent threat of climate change has several parts. An ‘effective’ response conjures up practical actions that address the climate change threat expeditiously and comprehensively. How effectiveness might be judged would depend on the particular circumstances: with respect to mitigation, one might obviously expect drastic cuts to greenhouse gas emissions, while with respect to adaptation, actions which address the physical, economic, social and cultural effects of sea-level rise and the warming of the atmosphere and the oceans. Clearly, an effective response to any urgent threat is necessary, especially when the threat is now recognized as existential. P.25 A ‘progressive’ response can also be related to the emerging principle of progression as depicted in Article 3 of the Paris Agreement.38 It is also associated with the concept of highest possible ambition in Article 4 (3): ‘Each Party’s successive nationally determined contribution will represent a progression beyond the Party’s then current nationally determined contribution and reflect its highest possible ambition …’.39 b. The best available scientific knowledge P.26 As an initial point, the successive reports of the broadly-based Intergovernmental Panel on Climate Change (IPCC) might be said to represent the ‘best available science’ with regard to the wide range of issues raised by climate change and its effects. An indication of the process of using the best available science, is the IPCC refinements to the guidelines for assessing national greenhouse gas inventories.40 While there may be political concerns with regard to the manner in which IPCC reports and particular issues are characterised and portrayed, the most fundamental IPCC finding that scientific evidence for warming of the climate system is unequivocal is virtually impossible to refute.41 P.27 Some analysts, however, attempt to undermine the findings of the IPCC and other scientific bodies. For example, Hanekamp and Bergkamp take a negative view of the idea of ‘best available science’ in the Paris Agreement. They comment: [a]lthough the Paris Agreement entertains the concept of science-based policy-making, its ability to ensure that policies are accurately informed by science is severely hampered. The Agreement’s unspecified concept of ‘best available science’ allows policy-makers to pursue politically expedient policies supported by climate model projections to their liking.42

38 39 40

41

42

Voigt and Ferreira, (n 23) 285–303. Ibid.; see Articles 3 and 4 and the commentary thereto. AP5 (2014), Global Warming of 1.5°C (2018), 2019 Refinement to the 2006 IPCC Guidelines for National Greenhouse Gas Inventories. https://www.ipcc.ch/report/2019-refinement-to-the-2006-ipcc-guidelines-for-national-greenhousegas-inventories/ accessed 29 February 2020. J. Cook et al, ‘Consensus on consensus: a synthesis of consensus estimates on human-caused global warming,’ Environmental Research Letters Vol. 11 No. 4, (13 April 2016); see also National Aeronautics and Space Administration ‘Scientific Consensus: Earth’s Climate is Warming’ https://climate.nasa.gov/scientific-consensus/ accessed 29 February 2020. Jaap C. Hanekamp and Lucas Bergkamp, ‘The “Best Available Science” and the Paris Agreement on Climate Change’ (2016) 7(1) European Journal of Risk Regulation 42–8; a further sceptical view is put by Lucas Bergkamp in ‘Adjudicating Scientific Disputes in Climate Science: The Limits of Judicial Competence and the Risks of Taking Sides’ (2015) 3 Environmental Liability 80–102; he argues:

14

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 10 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 11 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

However, as Klein at al indicate, policy-making is of course left to the parties. Since its inception, the IPCC assessments have refrained from policy prescription. All IPCC reports are prepared instead to serve as a scientific basis – yet a maximally robust one – for policy-making. They strive for utmost policy relevance while avoiding the recommendation of particular policies. The result is a clear division of labour between the IPCC and UNFCCC, leaving actual policy choices to the UNFCCC.43 References to using ‘best available scientific knowledge’ or ‘best available science’ are found in P.28 several places in the Agreement, coupled with other aims. For example, Article 4 states: ‘In order to achieve the long-term temperature goal … to undertake rapid reductions thereafter in accordance with best available science’; Article 7 provides: ‘adaptation action … should be based on and guided by the best available science’, and Article 14 calls for: taking stock of progress ‘in the light of equity and the best available science’. This reflects the same concern as found in the Convention, where Article 1(2)(d) requires that the adequacy of: national policies and corresponding measures on the mitigation of climate change and progress to those ends must be reviewed ‘in the light of the best available scientific information and assessment on climate change and its impacts, as well as relevant technical, social and economic information … .

Article 4(2)(c) of the Agreement similarly specifies that when calculating emissions by sources P.29 and removals by sinks of greenhouse gases the ‘best available scientific knowledge’ should be taken into account. This was already recognized in the Kyoto Protocol. Article 9 requires the ‘Conference of the Parties to periodically review this Protocol in the light of the best available scientific information and assessments on climate change and its impacts, as well as relevant technical, social and economic information’. 5. Specific needs and special circumstances of developing country Parties Recital 5: Also, ‘recognizing the specific needs and special circumstances of developing P.30 country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, as provided for in the Convention’. The specific needs and special circumstances of people in developing countries have been P.31 recognised from the earliest reports of the IPCC, as well as being recognized in the 1992 Convention (Article 4(8), (9) and (10), and the Kyoto Protocol of 1997, Article 2(3)). They have also been the subject of comprehensive analyses by academic researchers as well as institutions44 and international organizations.45 Many of these concerns are related to the practical implications of sea-level rise, increases in atmospheric temperature and knock-on

An assumption that any statement in an IPCC report, in particular the ‘Summary for Policy-makers’, represents consensus science is unwarranted; a statement may be political, rather than scientific, it may reflect a value judgment, or it may be supported by no more than a minority of scientists. Hence, caution is required. Courts should also be aware that consensus science, which is invoked by policy advocates only if it supports their cause, is not a reliable guide, because it may reflect science power politics, ‘group think,’ political pressure, or be biased for other reasons. 43 44

Andreas Fischlin, ‘Scientific and Political Drivers for the Paris Agreement’, in Klein et al (n 9) 4. For Asia and the Pacific island region see Asian Development bank, A Region at Risk: The Human Dimensions of Climate Change in Asia and the Pacific, 2017 https://www.adb.org/publications/region-at-risk-climate-change accessed 29 February 2020.

15

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 11 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 12 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

effect in terms of food and water security, the loss of livelihoods and the loss or degradation of human settlements, involuntary displacement, all of which inevitably raise human rights dimensions. a. Particularly vulnerable P.32 The countries recognized as particularly vulnerable to the adverse effects of climate change, according to Article 4(8) of the Convention are: those that include small islands or are small islands countries; those with low-lying coastal areas; with arid and semi-arid areas, forested areas and areas liable to forest decay; those with areas prone to natural disasters; or with areas liable to drought and desertification; those with areas of high urban atmospheric pollution; those with fragile ecosystems, including mountainous ecosystems; those whose economies are highly dependent on income generated from the production, processing and export, and/or on consumption of fossil fuels and associated energy-intensive products; and land-locked and transit countries.46 P.33 While examples can be drawn from all areas of the world, perhaps the most graphic illustrations of the effect of sea-level rise as a result of climate change is demonstrated by small, low-lying island countries, particularly atoll countries, such as those in the Pacific region. As stated by the Secretariat of the Pacific Community: in respect to sea level rise what we are seeing today in terms of marine hazards and flooding is absolutely consistent with the sea level rise science of projected impacts, and projections out to 2100 look disastrous for inhabited atoll islands even at the very lowest end of the models. It is an increasingly inconvenient truth that affords atoll nations little time to act.47

P.34 The impacts of sea-level rise and storm surges has been the basis for several attempts by individuals to bring legal actions with respect to migration to other countries. The case of Teitiota v Chief Executive Ministry of Business, Innovation and Employment,48 provides an example of some of the legal difficulties faced by those impacted by climate change. Mr. Teitiota, who was a national of the Pacific atoll State of Kiribati, had come to New Zealand with his wife on a temporary permit. He applied to stay permanently in New Zealand, but was rejected. He then applied for refugee and/or protected person status to a Refugee and Protection Officer under New Zealand immigration, but was unsuccessful. His eventual appeal to the Court of Appeal was based on a claim of ‘entitlement to be recognized as a refugee on the basis of changes to his environment in Kiribati caused by sea-level-rise associated with climate change’ under the 1951 Refugee Convention or New Zealand’s protected person jurisdiction’, but that also failed.49

45

46 47

48 49

International Bar Association, Presidential Task Force on Climate Change Justice and Human Rights, Achieving Justice and Human Rights in an Era of Climate Change Disruption, Climate Change Justice and Human Rights Task Force Report, 2014. See further discussion on Article 1. Secretariat of the Pacific Community ‘Atoll nations unite against the exceptional and existential threat caused by climate change’ 15 May 2019 https://www.spc.int/updates/blog/2019/05/atoll-nations-unite-against-the-exceptional-andexistential-threat-caused-by accessed 4 March 2020. New Zealand Court of Appeal NZCA 173. The Court recognized however:

16

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 12 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 13 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

Mr. Tietiota then applied to the UN Human Rights Committee50 under the 1966 Covenant P.35 on Civil and Political Rights, claiming that New Zealand had ‘violated his right to life under the Covenant, by removing him to Kiribati in September 2015’. The Committee determined that although Mr. Tietiota’s right to life was not violated under Article 6(1) of the Covenant, it nevertheless accepted ‘the author’s claim that sea level rise is likely to render the Republic of Kiribati uninhabitable’. It also stated that: without robust national and international efforts, the effects of climate change in receiving states may expose individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby triggering the non-refoulement obligations of sending states. Furthermore, given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized.51

b. Specific needs ‘Specific needs’ under Recital 5 can further be taken to include taking full account of P.36 the ‘specific needs and special situations of the least developed countries in their actions with regard to funding and transfer of technology’ pursuant to Article 4(9) of the Convention. 6. Least-developed countries and technology Recital 6: ‘Taking full account of the specific needs and special situations of the least P.37 developed countries with regard to funding and transfer of technology.’ This Recital replicates the exact words of Article 4(9) of the Convention. The Convention and P.38 the Agreement place least-developed countries in an even more special position than the developing counties referred to in Recital 5. Thus, while all least-developed countries are all developing countries, they attract various considerations that set them apart. For example, under the Convention these considerations include being able to make their initial communications with regard to the nationally determined commitments at their discretion (Article 12(5)). Under Paris Agreement Article 4(6), least-developed countries, together with small island developing States (with which they are often linked in the Agreement) ‘may prepare and communicate strategies, plans and actions for low greenhouse gas emissions development reflecting their special circumstances’ (emphasis added).

No-one should read this judgment as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgment makes is that climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention.

50

51

New Zealand Court of Appeal, NZCA 173 [14]; see also Dimitra Manou, Andrew Baldwin, Dug Cubie, Anja Mihr, Teresa Thorp Climate Change, Migration and Human Rights: Law and Policy Perspectives, (Routledge 2017) 66 and Ben Boer, ‘Climate Change and Human Rights in the Asia-Pacific: A Fragmented Approach’ in Ottavio Querico and Mouloud Boumghar, Climate Change and Human Rights: An International and Comparative Law Perspective (Routledge 2016). The OHCHR noted: ‘The ruling marks the first decision by a UN human rights treaty body on a complaint by an individual seeking asylum protection from the effects of climate change’ Historic UN Human Rights case opens door to climate change asylum claims https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25482& LangID=E accessed 6 March 2020; ‘Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2728/2016’ CCPR/C/127/D/2728/2016. ‘Views adopted by the Committee’ (n 43) para 9.11.

17

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 13 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 14 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

a. Funding P.39 With regard to finance, Article 9 of the Agreement provides that scaled-up financial resources should aim to achieve a balance between adaptation and mitigation, taking into account country-driven strategies, and the priorities and needs of developing country Parties. These especially include those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least-developed countries and small island developing States, considering the need for public and grant-based resources for adaptation. 7. Recognizing impacts of response measures P.40 Recital 7: ‘Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it.’ P.41 An awareness of the issue of responses to climate change is found in the Convention itself, with its Preamble stressing the need for comprehensive response strategies that should be coordinated with social and economic development in an integrated way to avoiding adverse impacts on that development, bearing in mind the needs of developing countries concerning economic growth and poverty eradication.52 P.42 With respect to Recital 7, Bodansky et al observe that while trade issues are not addressed in the Paris Agreement, this recital provides a ‘toehold’ for a discussion on climate policies and trade, pointing to Article 4.15 of the Agreement, where the parties ‘shall take into consideration …the concerns of parties with economies most affected by the impacts of response measures, especially developing country parties’.53 P.43 In their work on the impacts of response measures, Marcu and Stoefs indicate that the ‘impacts of the implementation of response measures’ is understood as ‘the unintended, negative cross-border effects of any climate change policy …’. Those impacts ‘can be social, economic or environmental, and this brings a strong connection to sustainable development’.54 They point out that response measures were seen as an essential factor in coming to a new agreement and that the measures should take the interests of both developing and developed countries into account.55 8. Intrinsic relationship P.44 Recital 8: ‘Emphasizing the intrinsic relationship that climate change actions, responses and impacts have with equitable access to sustainable development and eradication of poverty.’

52 53 54 55

Preamble to the Convention; see also Article 4(1)(g) and (h) and Article 4(8) with respect to commitments of developed countries. Bodansky et al (n 15) 348. Andrei Marcu and Wijnand Stoefs, The Role of Response Measures in Ensuring the Sustainable Transition to a Low-GHG Economy, International Centre for Trade and Sustainable Development 2017, 5. Ibid., 6.

18

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 14 /

Date: 19/1

JOBNAME: Law Prac - Van Calst PAGE: 15 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

This recital concerns the inherent links between climate change, sustainable development and P.45 poverty. These links were recognized in the IPCC’s Fifth Assessment Report in 2014, where it stated that, based on scientific research, ‘changes in climate have caused impacts on natural and human systems on all continents and across the oceans’.56 It provided the following explanation: Impacts generally refer to effects on lives, livelihoods, health, ecosystems, economies, societies, cultures, services, and infrastructure due to the interaction of climate changes or hazardous climate events occurring within a specific time period and the vulnerability of an exposed society or system. Impacts are also referred to as consequences and outcomes. The impacts of climate change on geophysical systems, including floods, droughts, and sea level rise, are a subset of impacts called physical impacts.57

The concept of sustainable development resonates throughout the climate change regime, from P.46 the 1990s onwards. This was consistent with the concentration of sustainable development thinking and analysis arising from the 1987 Brundtland Report, Our Common Future58 and two of the other outcome documents of the 1992 Rio Conference on Environment and Development,59 namely Agenda 21,60 and the 1992 Rio Declaration on Environment and Development.61 The Convention’s provisions refer to it a number of times, the most pertinent mention in this context being Article 3(4): ‘The Parties have a right to, and should, promote sustainable development …’. Although it was not then qualified by ‘equitable’, that was arguably inherent in it by reference to Article 3(1): ‘The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity’. The specific idea of ‘equitable access to sustainable development’ appears from the deliberations at the 2010 Cancun COP onwards.62 9. Fundamental priorities and the adverse impacts of climate change Recital 9: ‘Recognizing the fundamental priority of safeguarding food security and ending P.47 hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change.’

56

57 58 59 60 61 62

IPCC, ‘Summary for Policymakers’ in Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, CB Field, VR Barros, DJ Dokken, KJ Mach, MD Mastrandrea, TE Bilir, M Chatterjee, KL Ebi, YO Estrada, RC Genova, B Girma, ES Kissel, AN Levy, S MacCracken, PR Mastrandrea, and LL White, eds, Cambridge University Press, 2014) (AR5 Synthesis Report) 4, https://www.ipcc.ch/report/ar5/wg2/ accessed 21 March 2020. Ibid., 5. Our Common Future (United Nations and Oxford University Press 1987). United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit https://sustainabledevelopment.un.org/milestones/unced accessed 4 March 2020. Agenda 21, United Nations 1992. Rio Declaration on Environment and Development, 31 ILM 874. See Carazo (n 9) 112 and her note 36.

19

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 15 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 16 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

a. Safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems P.48 The question of food security has become significantly more important in recent years, particularly because of the work of the United Nations Secretariat on the Convention to Combat Desertification.63 The Global Land Outlook notes as one of its key messages: Biodiversity loss and climate change further jeopardize the health and productivity of land: higher carbon emissions and temperatures, changing rainfall patterns, soil erosion, species loss and increased water scarcity will likely alter the suitability of vast regions for food production and human habitation.64

P.49 The reports of the Special Rapporteur on the Right to Food have also underlined the links between food production and climate change, noting: (1)

(2)

Climate change, sustainable resource management and food security are now widely considered to be among the most complex, interdependent and urgent global policy challenges. The world’s scientific community predicts that average temperatures will rise by 2° to 4°C by the end of the century, posing multiple threats to agricultural production. Climate change is already having a significant impact on approximately one billion of the world’s poor. The most recent figures of the Food and Agriculture Organization of the United Nations (FAO) suggest that some 795 million people are hungry; without the implementation of serious measures to combat climate change, this figure could rise some 20 per cent by 2050.65

10. Just transition imperatives P.50 Recital 10: ‘Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities.’ P.51 An important social aspect of development addressed by the Preamble is the need of ‘ensuring a just transition of the workforce and the creation of decent work and quality jobs’. While the Convention was silent in this regard, as Carazo comments: the concept of ‘just transition’ had been advocated in the negotiations under the Bali Action Plan and a clause of the same wording had been included in the 2010 Cancún Agreements. It confirms the recognition of the parties that the transition towards a low-emission, climate-resilient development will involve a radical departure from the economic model of today. Parties are aware of the implications and of the potential conflict with international and national legal labour provisions.66

63

64 65 66

See Global Land Outlook Global Land Outlook (2017) Secretariat of the United Nations Convention to Combat Desertification see also. Climate change and food security. A report by the High Level Panel of Experts on Food Security and Nutrition of the Committee on World Food Security (FAO Rome, 2012). Global Land Outlook, ibid., 8. Special Rapporteur on the Right to Food, Report to the General Assembly (2015), Impact of climate change on the right to food A/70/287. Carazo (n 9) 113–14.

20

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 16 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 17 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

The same recognition of the need for changes in economic behaviour underpins preambular paragraph 16 on the importance of sustainable lifestyles and sustainable patterns of consumption and production. This is also one of the paragraphs in the Agreement that calls for the leadership by developed country parties. 11. Common concern of humankind Recital 11: ‘Acknowledging that climate change is a common concern of humankind, Parties P.52 should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.’ This recital is the most comprehensive of the whole Preamble. Reiterating the acknowledge- P.53 ment in Recital 1 of the Preamble to the Convention, that climate change is a common concern of humankind, the recital makes clear that the parties respective obligations extend to a range of rights. As Carazo points out, the Paris Agreement is unique because it goes beyond the realms of international climate and environmental law, particularly because it refers to human rights, rights of particular groups, gender equality and intergenerational equity.67 The use of the word ‘should’, as Carazo points out, indicates a ‘soft’ obligation not usually P.54 found in a treaty Preamble, and is ‘out of the ordinary’: ‘[P]reambular paragraph 11 embodies the will of the negotiating parties that it be used as a guide for the implementation of the Agreement and, as such, breaks new ground.’68 While ‘human rights’ are specified as a general category, the list of rights concerning health, P.55 indigenous peoples, local communities’ migrants, children, persons with disabilities and people in vulnerable situations also refer, by their nature, to specific dimensions of human rights. It is worth noting that an earlier form of Recital 1169 was framed rather differently than the P.56 finally agreed version (main differing passages in italics): Emphasizing the importance of promoting, protecting and respecting all human rights, including [to promote sustainable development, and] the rights of indigenous peoples, migrants, children, persons with disabilities and people in vulnerable situations and under occupation, as well as promoting health, gender equality and the empowerment of women, while taking into account the needs of local communities, intergenerational equity concerns, and the integrity of Mother Earth, when taking action to address climate change.

In the above quotation, the phrase ‘promoting, protecting and respecting all human rights’ is P.57 somewhat more robust than ‘respect, promote and consider their respective obligations on human rights’ found in the final preambular text. Further, omitting persons ‘under occupation’

67 68 69

Ibid. Ibid., 115–16. Earth Negotiations Bulletin. 2015. Geneva and Bonn meetings.

21

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 17 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 18 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

summarily ignores the plight of those who may be further disadvantaged because they are in territories occupied, legally or illegally, by foreign powers. P.58 As noted by a report of the Special Rapporteur on the Right to Environment: ‘[T]he Paris Agreement represents a breakthrough, in that it explicitly links human rights and climate change’70 but notes that climate change ‘is already harming billions of people, violating human rights, exacerbating inequality and perpetuating injustice’.71 It concludes: ‘[I]n today’s global climate emergency, meeting the obligations to respect, protect and fulfil human rights could help to spur the transformative changes that are so urgently required’.72 P.59 Popovski optimistically notes, in relation to the human rights aspects, that the Preamble ‘contains examples of the best-ever human rights language in international environmental law … No other treaty has ever listed in such detail the human rights of all vulnerable groups’.73 However, Doelle74 identifies potential limitations of the Paris Agreement, pointing to the fact that ‘gender equity, human rights, intergenerational equity and climate justice are largely limited to the preamble of the Paris Agreement, making their full integration into the implementation of the regime less certain’. P.60 Certainly, a close reading of Recital 11 reveals that, although the very mention of the question of human rights in the context of climate change is to be applauded, the provision is ultimately a weak and disappointing one. This point is underlined by Bodansky et al75 who sanguinely offer three comments on the wording of Recital 11. First, they argue that the recital ‘carefully circumscribes the impact of the reference to human rights’. They note that the Preamble ‘addresses the human rights aspects only of response measures (“when taking action”), not of climate change itself.’76 This is a central point, which they underline by reference to the advocacy of the office of the High Commissioner of Human Rights concerning obligations ‘to take affirmative measures to prevent human rights harms caused by climate change, including foreseeable long-term harms’.77 Further, Bodansky et al argue that ‘parties “respect, promote and consider” their human rights obligations, not “respect, protect, promote and fulfil” their obligations, as the OHCHR had urged states to do’.78 Thus rather than finding a positive set of human rights obligations which actually require actions in the recital, we see a disappointingly anodyne formulation which requires parties only to give some consideration to this

70

71 72 73 74

75 76 77 78

‘Safe Climate: Report of the Special Rapporteur on Human Rights and the Environment’ (A/74/161) 26, https:// reliefweb.int/report/world/safe-climate-report-special-rapporteur-human-rights-and-environment-a74161 accessed 2 March 2020. Ibid., 34. Ibid., 44. Popovski, (n 24) 24. Meinhard Doelle, ‘The Paris Agreement: Historic Breakthrough or High Stakes Experiment?’ (2015) 6(1–2) Climate Law, quoted by Trudy Fraser, ‘A Comparative Architectural Analysis of the 1997 Kyoto Protocol and the 2015 Paris Agreement and Other Ways to Counter Environmental “Ratification Fatigue”’ in Popovski, ibid., 48. Bodansky et al (n 15) 227. Ibid., 228. Ibid., 227–8, also referring to the Office of the High Commissioner of Human Rights, ‘Understanding of human rights and climate change: submission to COP 21’ 2015. Bodansky et al, ibid., emphasis in original.

22

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 18 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 19 SESS: 8 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

aspect. Finally, Bodansky et al point out that the ‘respective obligations’ of the parties refers to existing obligations, ‘and is not intended to imply any new ones’.79 Given the increasing recognition of the links between human rights and the environment, the P.61 question may be legitimately asked as to why these particular human rights were included, while others were not. The most fundamental right, the right to life, is notably absent, but is of course of poignant relevance given the existential threat that the effects of rapid climate change represents, not only to millions of people around the world, but also of other life forms. Along the same lines, although the right to health is included in the recital, rights concerning food80 and water security81 are missing. With the known the effects of climate change on ecosystems, the specific areas of agriculture and grazing might also have been expected to be mentioned within the Preamble. The list can conceivably be extended, for example to the effects of climate change on cultural P.62 heritage, both intangible and tangible. In linking human rights, intangible cultural heritage and climate change, Quirico makes the valuable point that ‘climate change has an impact on intangible cultural heritage, at least with regard to the rights of people is to practice and continue shared traditions’.82 a. Gender equality and empowerment of women The inclusion of gender equality and empowerment of women in environmental debates can be P.63 traced back at least to 1992 with the development of Agenda 21 which aimed to ‘ensure that gender considerations are fully integrated into all the policies, programmes and activities’83 and the Rio Declaration,84 where Principle 20 stated: ‘Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.’ These issues were not, however, reflected in the Convention itself, or in the Kyoto Protocol.85 The debates on these issues were given emphasis only from 2014 onwards, when the Lima Work Programme on Gender established a ‘two-year programme for promoting gender balance and achieving gender-responsive climate policy by promoting gender mainstreaming and women’s participation in the climate negotiations’.86 Although the 79

80 81

82

83 84 85

86

Ibid., indicate that, during the negotiations, states had differing views concerning the application of human rights in the context of climate change, and therefore it was considered desirable to restrict these rights to those parties that had already undertaken obligations concerning those rights. See UN Special Rapporteur on the Right to Food, Report to the General assembly on the impact of climate change on the right to food, A/70/287 (2015). See Mandate of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, United Nations, Climate Change and the Human Rights to Water and Sanitation (date 2008 check) Climate Change and Water UN-Water Policy Brief, 2019. Ottavio Querico, ‘A Human Rights-based Approach to Climate Change? Insights from the Regulation of Intangible Cultural Heritage’ in Federico Lenzerini and Ana Vrdoljak, International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Oxford and Portland Oregon 2014) 383. Agenda 21 (n 61) Chapter 24.11. Rio Declaration on Environment and Development 1992 (1992) 31 International Legal Materials 874. History of the recognition and acceptance of the need for participation in all issues concerning climate change of women is canvassed in Gender CC: Women for Climate Justice, https://gendercc.net/genderunfccc.html accessed 4 March 2020; see also ‘Work generating the results of COP21 and the inclusion of gender equality in the Paris Agreement’ in Guide to the Negotiations United Nations Framework Convention on Climate Change Twenty-third Conference of the Parties (COP23) 6 to 17 November 2017 (IFDD 2017) 169–75. Decision 18/CP.20 FCCC/CP/2014/10/Add.3, 35.

23

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 19 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 20 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

Preamble contains a reasonably robust recognition of these matters, the operative pasts of the Agreement only include passing mention. For example, Article 7 provides: ‘Parties acknowledge that adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach … (emphasis added) and Article 11(2) where capacity building under the Agreement ‘should be an effective, iterative process that is participatory, crosscutting and gender-responsive’. b.

… the right to health

P.64 The impacts of climate change on the enjoyment of the right to health were recognized in the Convention itself. Article 4(f) calls for actions and the use of methods to minimize adverse effects on the economy, on public health and on the quality of the environment. The issue has long been analysed, especially through the reports of the UN High Commission on Human Rights. The UNHCR recognizes that ‘[I]nclusion of this language in the Paris Agreement reflects growing recognition of the connections between climate change and the enjoyment of human rights, including specifically the human right to health.’87 c.

… People in vulnerable situations

P.65 This phrase can of course subsume the preceding categories mentioned in this recital, namely indigenous peoples, local communities, migrants, children, persons with disabilities, as well as women, as mentioned in the last phrase of the recital, but the drafters no doubt had more particular ‘situations’ in mind. d.

… Children

P.66 This recital’s mention of children is not repeated in other parts of the Paris Agreement. However, the issue of children and climate change relates to a range of the matters raised in the Preamble. UNICEF, the United Nations Children’s Fund states in a 2019 report: ‘The conditions of life on our planet have changed. The crisis of climate change, the loss of biodiversity, and the damage done to water, air and soil, now raise concerns over whether we can feed this generation of children sustainably, never mind the generations to come.’88 P.67 However, it is noteworthy that a number of governments at COP 25 in 2019 signed the Intergovernmental Declaration on Children, Youth and Climate Action.89 The Declaration recognizes that children face heightened and specific risks due to climate change, acknowledges ‘the global leadership and calls of children and young people for urgent and immediate climate action, as well as their critical role as agents of change’.90 P.68 The mention of ‘intergenerational equity’ in the final part of Recital 11 reinforces, by its nature, the concern of the Agreement of the human rights of children, and also, reflects the preamble to the Convention, which recognizes that the Parties ‘should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity’.

87 88 89 90

OHCHR ‘The impacts of climate change on enjoyment of the right to health’ https://www.ohchr.org/EN/Issues/ HRAndClimateChange/Pages/RightHealth.aspx accessed 4 March 2020. UNICEF – The State of the World’s Children 2019, 16. Voices of Youth, https://www.voicesofyouth.org/campaign/cop25-join-declaration-children-youth-and-climate-action accessed 4 March 2020. Ibid., Declaration Preamble.

24

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 20 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 21 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

12. Conservation and enhancement of sinks and reservoirs Recital 12: ‘Recognizing the importance of the conservation and enhancement, as appropriate, P.69 of sinks and reservoirs of the greenhouse gases referred to in the Convention.’ a.

… sinks and reservoirs

This recital relates to a basic set of requirements in the Convention with regard to the use of P.70 sinks and reservoirs as defined by Article 1 of the Convention, with a view, as expressed in Article 4 of the Agreement, to achieving ‘a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’. The recital is closely related to the capacity of terrestrial and oceanic ecosystems, as referred to in Recital 13, to absorb and store carbon gases. 13. Ecosystem integrity and climate justice Recital 13: ‘Noting the importance of ensuring the integrity of all ecosystems, including P.71 oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of “climate justice”, when taking action to address climate change.’ The term ‘environmental integrity’ is used several times in the Agreement, but is not P.72 specifically defined. In Article 6(1) it is coupled with the promotion of sustainable development. In Article 6(2) it is linked both with the promotion of sustainable development and the apparently unrelated notions of transparency and governance. The notion of ecosystem integrity is found in the first sentence of Principle 7 of the 1992 Rio Declaration: ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem.’ It can be seen as the opposite of environmental degradation, mentioned in the second sentence of Principle 7: ‘In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities.’ ‘Environmental integrity’ has been defined as ‘a complex set of concepts that describe a healthy P.73 natural system that can support essential processes’.91 Principle 4 of the IUCN World Declaration on the Environmental Rule of Law92 deals with P.74 the similar concept of ecosystem integrity under the heading of ‘Ecological Sustainability and Resilience’. The Principle states: Legal and other measures shall be taken to protect and restore ecosystem integrity and to sustain and enhance the resilience of social-ecological systems. In the drafting of policies and legislation, and in decision-making, the maintenance of a healthy biosphere for nature and humanity should be a primary consideration.

91

92

Cymie Payne, ‘Defining the Environment’ Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices, Oxford Scholarship Online 2017, https://www.oxfordscholarship.com/view/10.1093/ oso/9780198784630.001.0001/oso-9780198784630-chapter-3 accessed 25 February 2020. https://www.iucn.org/commissions/world-commission-environmental-law/wcel-resources/environmental-rule-law accessed 4 March 2020.

25

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 21 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 22 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

The concept of ecosystem integrity is not restricted to the terrestrial environment, but of course also covers the marine environment. The reference to oceans in Recital 13 is a vital one, both in terms of the maintenance of marine biodiversity as well as the role of oceans in the sequestering of carbon in the context of climate change.93 P.75 It is intriguing that the reference to Mother Earth, as noted above, was moved from Recital 11 to Recital 13. That is, from a recital focused on human rights to a recital focused on integrity of ecosystems and protection of biodiversity, with the apparent effect of ‘dehumanizing’ Mother Earth, removing her from a rights framework to the natural context.94 The concept of Mother Earth is largely derived from the intrinsic and integral relationship recognized by many Indigenous peoples around the world between humans and nature, or that people and nature are one; that relationship also involves obligations to care for the natural environment as part of their culture. The concept and these obligations are recognized, for example, in the Preamble to the 2008 Ecuadorian Constitution: ‘Celebrating nature, the Pacha Mama (Mother Earth), of which we are a part and which is vital to our existence’. It is also incorporated in its substantive provisions, namely in Article 71 entitled ‘Rights of Nature’.95 P.76 Ecosystem integrity concerning the terrestrial environment is clearly an important factor with regard to climate change. Forests and other broad scale vegetation are vital in the process of sequestration of carbon gases, as long recognized in global policy documents such as Agenda 21, which included a comprehensive chapter on forests, but little recognition of the relationship between forests and climate change96 and international instruments such as the 2007 Nonlegally Binding Instrument on All Types of Forests,97 its 2002 predecessor, and the 2015 renaming of the document as the ‘United Nations Forest Instrument, which recognized ‘the impact of climate change on forests and sustainable forest management, as well as the contribution of forests to addressing climate change’ (Preamble). From those desultory efforts in the 1990s and early 2000s, forests and forest management have become a central aspect of climate change debates, both in terms of their function as climate sinks as well as with respect to the level of greenhouse gas emissions through processes of deforestation.98 Equally, from a

93

94 95

96

97 98

See K Isensee, D Herr, J Howard and S Aricò, Blue carbon: Science developments of relevance to the UNFCCC https://unfccc.int/sites/default/files/resource/4.4BlueCarbon_IOC.pdf accessed 2 March 2020, and Mitigating Climate Change Through Coastal Ecosystem Management https://www.thebluecarboninitiative.org/ accessed 2 March 2020; further, see COP23 - Progressing Faster Climate Action on Oceans - https://unfccc.int/news/progressing-fasterclimate-action-on-oceans accessed 2 March 2020, COP24 - Marrakech Partnership at COP24 https://unfccc.int/sites/ default/files/resource/MPGCA%20Action%20Event%20outcome%20document%20Oceans.pdf accessed 2 March 2020, COP25 - Climate Conference to Spur Action on the Ocean - https://unfccc.int/news/climate-conference-tospur-action-on-the-ocean accessed 2 March 2020; see also IPCC’s Special Report in 2019, The Ocean and Cryosphere in a Changing Climate - https://www.ipcc.ch/srocc/home/ accessed 25 February 2020. Carazo (n 9) 118 makes a similar point. Article 71: ‘Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes’. In the Preamble to the Bolivian Constitution the concept of Pacha Mama is similarly recognized. Agenda 21 (n 61), ‘Combating Deforestation’. Chapter 11.14c contains a brief mention: ‘assessing the potential impact on forests of climatic change, as well as effects of forests on climate, and initiating in-depth studies on the carbon cycle relating to different ‘forest types to provide scientific advice and technical support’. A/RES/70/199. UN, Department of Economic and Social Affairs: Forests ‘At COP25, UN agencies commit to turn the tide on deforestation’, https://www.un.org/esa/forests/news/2019/12/at-cop25-un-agencies-commit-to-turn-the-tide-ondeforestation/index.html accessed 4 March 2020.

26

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 22 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 23 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE

low base of awareness,99 the importance of land and soil with respect to climate change has been recognised in recent years. The 2017 Global Land Outlook states: Land degradation contributes to climate change and increases the vulnerability of millions of people, especially the poor, women, and children. Current management practices in the land-use sector are responsible for about 25 per cent of the world’s greenhouse gases, while land degradation is both a cause and a result of poverty. Over 1.3 billion people, mostly in the developing countries, are trapped on degrading agricultural land, exposed to climate stress, and therefore excluded from wider infrastructure and economic development.100

Further, this part of the Preamble reflects ‘a growing awareness of the need to address P.77 environmental conservation as well as the cultural and practical concerns of Indigenous and local communities in the face of the threats and effects of climate change’.101 a. Climate justice The wording of this part Recital 13 appears to indicate that not all negotiating parties agreed P.78 with the idea of concept of climate justice: ‘noting the importance for some of the concept of “climate justice”’ (emphasis added). But this concept has in fact become increasingly significant in many jurisdictions, and is now more clearly relevant not just to ‘some’ but to a very wide range of people, governments and corporate entities, especially with the increasing incidence of litigation concerning climate change.102 A particular focus of the litigation is on the rights of future generations,103 and especially the rights of children.104 Mayer helpfully explores four aspects of climate justice: corrective justice (focusing on the possibility of repairing harm caused by wrongful conduct); distributive justice (concerned with redistributing global ‘goods’ to ensure that all enjoy fundamental rights that human dignity is ‘duly respected’); intergenerational justice (regarding duties of the present generations to future generations); and environmental justice (involving protection of environment for its own sake).105 14. Education, public participation and access to information Recital 14: ‘Affirming the importance of education, training, public awareness, public P.79 participation, public access to information and cooperation at all levels on the matters addressed in this Agreement.’

99 100 101 102

103 104

105

See Ben Boer and Ian Hannam, ‘Land Degradation’ in Emma Lees and Jorge E. Viñuales (eds) The Oxford Handbook of Comparative Environmental Law (Oxford 2019). Global Land Outlook (2017, Secretariat of the United Nations Convention to Combat Desertification). Ben Boer, ‘The Environment and Cultural Heritage’ in Francesco Francioni and Ana Filipa Vrdoljak (eds) The Oxford Handbook of International Cultural Heritage Law, (Oxford University Press, 2020) 342. The Status of Climate Change Litigation: A Global Review, United Nations Environment Programme; Columbia University, Sabin Center for Climate Change Law https://wedocs.unep.org/handle/20.500.11822/20767U accessed 2 March 2020. Peter Lawrence, Justice for Future Generations: Climate Change and International Law (Edward Elgar 2015). In the United States, the Children’s Trust cases have drawn wide attention, with litigation occurring at federal level as well as in every state. The longest running of these cases is the Juliana v US, see https://www.ourchildrenstrust.org/ juliana-v-us accessed 26 February 2020. Benoit Mayer, The International Law of Climate Change (Cambridge 2018) 27–31.

27

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 23 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 24 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

P.80 This recital harks back to Article 6 of the Convention, which is concerned with processes of education, training and public awareness that assist parties in carrying out the wide-ranging commitments set out in Article 4. It is closely linked to Recital 15 of the Agreement with regard to the participation of non-state actors. By the early 1990s, questions of public participation had become an important part of the environmental debate, but demands for access to information and access to justice became more prominent later in that decade, particularly in Europe, resulting in the 1997 Aarhus Convention.106 Given the concerns of the Aarhus Convention it is thus curious that while the Paris Agreement mentions ‘climate justice’ in Recital 13, there is no mention in Recital 14 of its achievement in the context of public participation and access to information. Notwithstanding the lack of encouragement with respect to access to justice in the Agreement, non-state actors have needed no prompting in bringing a wide variety of legal actions relevant to achieving ‘corrective justice’ against both states and private entities concerning the burning of fossil fuels and the effects thereof.107 15. Participation of non-State actors P.81 Recital 15: ‘Recognizing the importance of the engagements of all levels of government and various actors, in accordance with respective national legislations of Parties, in addressing climate change.’ P.82 This recital is consistent with the ‘bottom up’ approach which is a characteristic of the Paris Agreement.108 It also underlines the increasing importance of non-State actor participation in the negotiation and drafting on MEAs.109 The recital also relates to Article 16(8) of the Convention, which is focused on the admission of observers to the Conference of the Parties serving as the meeting of the Parties to the Agreement. That article recognises that any body or agency, whether national or international, governmental or non-governmental, qualified in matters covered by the Agreement, having informed the secretariat of its wish to be represented ‘may be so admitted unless at least one third of the Parties present object’, subject only to the relevant rules of procedure. P.83 Non-Party stakeholders are not defined in the Agreement itself. However, Decision 1/CP.21,110 adopting the Agreement, includes the following in its Preamble: Agreeing to uphold and promote regional and international cooperation in order to mobilize stronger and more ambitious climate action by all Parties and non-Party stakeholders, including civil society, the

106

107 108 109

110

UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 2161 UNTS 447 (1998); see also Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, 2018 (not yet in force). The Status of Climate Change Litigation (n 102); Children’s Trust cases (n 103). Yann Robiou du Pont and Malte Meinshausen ‘Warming Assessment of the Bottom-up Paris Agreement Emissions Pledges’ (2018) 9(4) Nature Communications 1. See Mark Drumbl, ‘Actors and Law-Making in International Environmental Law’ in Malgosia Fitzmaurice, David Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar 2010); also Ben Boer, ‘International Law-Making’ in Research Handbook on International Law and Natural Resources, E. Morgera, K. Kulavesi, eds, (Edward Elgar 2016). Report of the Conference of the Parties on its 21st session, held in Paris from 30 November to 13 December 2015. Addendum, Part two: Action taken by the Conference of the Parties at its 21st session FCCC/CP/2015/10/Add.1 29 January 2016.

28

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 24 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 25 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

D. THE 16 RECITALS OF THE PREAMBLE private sector, financial institutions, cities and other subnational authorities, local communities and indigenous peoples (emphasis added).

This represents a very broad formulation of who can be involved as non-Party stakeholders. It P.84 is reinforced by paragraphs 134–138 in Decision1/CP.21, where the efforts of non-Party stakeholders are welcomed to address and respond to climate change, including those of civil society, the private sector, financial institutions, cities and other subnational authorities. They are invited ‘to scale up their efforts and support actions to reduce emissions and/or to build resilience and decrease vulnerability to the adverse effects of climate change and demonstrate these efforts via the Non-State Actor Zone for Climate Action platform referred to in paragraph 118’.111 The positions of different States and groups of Parties on this issue were quite varied, from P.85 restrained to more expansive. For instance, in its submission to the ADP’s work on the draft agreement, Canada proposed that the Preamble’s recital be stated in terms that expressly recognized the role of subnational and local authorities in addressing climate change at the domestic level.112 By contrast, the Least Developed Countries Group’s proposed a holistic expansion of the preambular recital to emphasise the ‘need for universal and sustained action by all to respond to the urgent threat of climate change’.113 In a similar vein, the Arab Group proposed an addition to the Preamble that sought to capture both international and domestic actors.114 Indonesia also recognised the need for ‘universal and sustained ambitious action by all’, but suggested further that any such response be ‘based on the best available scientific knowledge’.115

111

It is not just para. 118 of Dec 1/CP.21 that is interesting in this respect, see also paras 119–20: 119. Encourages Parties to work closely with non-Party stakeholders to catalyse efforts to strengthen mitigation and adaptation action; 120. Also encourages non-Party stakeholders to increase their engagement in the processes referred to in paragraph 110 above and paragraph 125 below.

112 113

114

115

Canada ADP Submission, 6 June 2014, 4, https://unfccc.int/process-and-meetings/parties-non-party-stakeholders/ parties/archive-of-party-submissions#c accessed 3 December 2020. Submission by Angola on behalf of the Least Developed Countries Group – ‘surgical insertions’ to co‐chairs’ non-paper (v5 October 2015) Preamble accessed 2 March 2020; AOSIS, AOSIS ADP Contact Group – 19 October 2015, Textual Insertions https://unfccc.int/sites/ default/files/aosis_ws1_revised.pdf. accessed 29 February 2020. ‘Resolving to uphold and promote international cooperation, to enhance the implementation of the Convention and to mobilize stronger more ambitious climate action by all actors, and to mobilize stronger climate action by all’: Insertion of language proposed by Kuwait on behalf of the Arab Group https://unfccc.int/sites/default/files/arab_group_ws2.pdf accessed 29 February 2020. Indonesia: Insertion For Elements On Agreement (Doc ADP.2015.8.InformalNote) https://unfccc.int/sites/default/ files/indonesia_-_insertion_adp2.11_agreement.pdf accessed 29 February 2020; for suggestions on how to encourage participation by these groups see Freedom-Kai Phillips ‘Participation of Non-party Stakeholders under the UNFCCC: Options for Future Engagement’ CIGI Papers No. 205, December 2018, https://www.cigionline.org/publications/ participation-non-party-stakeholders-under-unfccc-options-future-engagement accessed 3 March 2020; see also See also Tim Cadman and Tek Maraseni ‘Stakeholder Perceptions of the Implementation Capacity of the Climate Change Regime’ in Popovski (n 24) 138–50.

29

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 25 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 26 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

16. Important role of sustainable consumption and production patterns P.86 Recital 16: ‘Also, recognizing that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change.’ P.87 The concept of sustainable development and associated terminology such as sustainability, have a long history. That history was traced back to the early 1970s by Vice President Weeramantry in his separate opinion in the Danube Dam Case in the International Court of Justice116 where he stated that what he characterized as the principle117 of sustainable development ‘must hold the balance even between the environmental considerations and the developmental considerations raised’.118 It was first introduced into the global environmental debate by the 1980 World Conservation Strategy. It was popularized by the Brundtland Report,119 which defined it as: Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Since that time, sustainable development has appeared in myriad policy documents and a wide range of multilateral environmental agreements, including the Climate Change Convention and the Biodiversity Convention,120 and was the central guiding concept in Agenda 21.121 It forms the basis for the major initiative of the Sustainable Development Goals of 2015,122 and is mentioned in various formulations in the Agreement. Azizi, Biermann and Kim note it is mentioned 12 times in the Agreement,123 stating that the ‘politically more sensitive economic dimension of sustainable development features less prominently than the social dimension, but it does include wording similar to the Sustainable Development Goal on sustainable consumption and production’.124 They go on to argue that ‘“economic growth” as such is not associated with the cause of climate change, but remains an ultimate goal to be promoted along with “long-term global response to climate change” and “sustainable development”.’125 P.88 When ‘sustainable’ is combined with other words in the Agreement, such as ‘sustainable lifestyles’ ‘sustainable patterns of consumption and production’, in Recital 16, ‘sustainable management of forests’ (Article 5, para 2), ‘sustainable management of natural resources’ (Article 7, para 9(e)), their point is reinforced, underlining just how broadly the sustainable development paradigm has penetrated the climate change debate.

116 117 118

119 120 121 122 123

124 125

International Court of Justice, Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) case https://www.icj-cij.org/en/case/92, 88–116, accessed 29 February 2020. Other judges in the Court referred to it as a concept. Weeramantry (n 36) 88; see also sustainable development, Justice Mensah and Sandra Ricart Casadevall, ‘Sustainable Development: Meaning, History, Principles, Pillars, and Implications for Human Action: Literature review’ (2019) 5(1) Cogent Social Sciences 1653531. Report of World Commission on Environment and Development (Oxford University Press 1987). Convention on Biological Diversity 1992 (1760 U.N.T.S. 69). Agenda 21 (n 60). Sustainable Development Goals https://sustainabledevelopment.un.org/?menu=1300 accessed 29 February 2020. Dona Azizi, Frank Biermann and Rakhyun E. Kim ‘Policy Integration for Sustainable Development through Multilateral Environmental Agreements: An Empirical Analysis, 2007–2016’ (2019) 25 Global Governance 445–75, 454, (footnotes omitted). Ibid. Ibid.

30

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 26 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 27 SESS: 6 OUTPUT: Wed Mar 3 13:47:59 2021

E. CONCLUSION

‘Sustainable lifestyles and sustainable patterns of consumption and production’ in Recital 16 P.89 are meant to ‘play an important role in addressing climate change’. The question is how much change in lifestyle and consumption and production patterns is required at an individual, community and national level to make a difference? No specific guidance is given in this respect in the Agreement, the Kyoto Protocol or in the Convention itself. However, the IPCC is unequivocal in stating that ‘[L]ow energy demand and low demand for land- and GHG-intensive consumption goods facilitate limiting warming to as close as possible to 1.5°C.’126 It states with ‘high confidence’ that ‘[L]ifestyle choices lowering energy demand and the land- and GHG-intensity of food consumption can further support achievement of 1.5°C pathways’.127 However, Welch and Southerton128 consider that ‘nothing short of fundamental transformations of the production-consumption systems that drive emissions, and profound change in the socioeconomic system that underpins them, will be sufficient if we are to achieve anything near such targets’ [of emission reduction].129 They argue that ‘“[a]bsolute decoupling” – in which economic growth continues but environmental impact decreases – is nowhere in sight’130 and that it ‘is therefore imperative that the urgent transformation of whole systems of consumption and production is placed on the global climate change-policy agenda’.131 Despite the implications of Recital 15, in the light of the IPCC’s reports, the work of P.90 governments at every level and the endeavours of global and national non-government environmental organisations, the impetus for large-scale, internationally coordinated changes in terms of lifestyles and consumption and production patterns has not reached the level where all of these efforts can make a substantive and meaningful difference.

E. CONCLUSION As should be clear from this chapter, the subject matter of many of the recitals of the Preamble P.91 to the Paris Agreement continue to be or will become significant drivers and points of reference in the climate change debate. It is clear that the Preamble frames the context of how the PA can be understood, but does not limit it. The ‘living tree’ principle of Article 31(3) of the Vienna Convention on the Law of Treaties may be particularly apt, whereby we can conceive of the Paris Agreement as a living instrument capable of an evolutive interpretation, or ‘to be interpreted in the light present-day conditions’,132 perhaps manifested most particularly by the principle of progression inherent in Article 3 and Article 4(3) of the Agreement.

126

127 128 129 130 131 132

Intergovernmental Panel on Climate Change (IPCC). 2018. “Chapter 2: Mitigation pathways compatible with 1.5 C in the context of sustainable development.” The Intergovernmental Panel on Climate Change Special Report on Global Warming of 1.5 _C, 93–174. Geneva: IPCC https://www.ipcc.ch/sr15/ 95, accessed 29 February 2020. Ibid., 97. Daniel Welch and Dale Southerton, ‘After Paris: Transitions for Sustainable Consumption’ (2019) 15(1) Sustainability: Science, Practice and Policy 31–44. Ibid., 32. Ibid. Ibid. Weeramantry P. (n 36) 115, citing Tyrer v. The United Kingdom, ECHR 25 April 1978, § 31, Series A no. 26; see also Panos Merkouris, Article 31(3)(c) VCLT and the Principle of Systemic Integration: Normative Shadows in Plato’s Cave (Brill Nijhoff 2015) 144.

31

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 27 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 28 SESS: 3 OUTPUT: Wed Mar 3 13:47:59 2021

THE PREAMBLE

P.92 Although not all the elements of the Preamble are reflected in the operative provisions of the Agreement, they nevertheless record the hopes and aspirations of the wide range of interests of Party and non-Party stakeholders. The elements may act as ambit claims for future negotiations, in line with the recently minted principle of progression. In the coming years, further refinements will be made to the interpretation of the Paris Agreement through decisions of Conferences and Meetings of the Parties, and in due course a further binding agreement with vastly increased ambitions can and should be expected.

32

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 00fPreamblefinal

/Pg. Position: 28 /

Date: 13/1

JOBNAME: Law Prac - Van Calst PAGE: 1 SESS: 13 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS Rowena Cantley-Smith*

For the purpose of this Paris Agreement, the definitions contained in Article 1 of the Convention shall apply. In addition: (a) (b) (c)

“Convention” means the United Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992; “Conference of the Parties” means the Conference of the Parties to the Convention. “Party” means a Party to this Paris Agreement.

A. INTRODUCTION B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION 1. The Preamble and related instruments 2. International treaty law and the Paris Agreement a. General treaty law and the Paris Agreement b. Specific treaty interpretation rules and the Paris Agreement c. ‘Special meanings’ and the Paris Agreement’s terms and definitions 3. Drafting and negotiating Article 1: travaux préparatoires

2. Article 1(a): ‘Convention’ 3. Article 1(b): ‘Conference of the Parties’ 4. Article 1(c): ‘Party’ a. Who can be a Party to the Paris Agreement? b. Key Party groupings c. Range of developing country Parties d. Annex I and II Parties e. The role of Party groupings in climate change negotiations and future operationalisation of the Paris Agreement

1.01

1.04 1.04 1.06 1.07 1.09

*

1.28 1.29 1.33 1.36

1.42

1.10 E. INCORPORATION OF TERMS AND DEFINITIONS FROM THE CONVENTION 1. Additional terms and definitions in Article 1’s chapeau 2. The pivotal role of IPCC research and reports in framing Parties’ treaty obligations

1.12

C. SCOPE AND ROLE OF ARTICLE 1 OF THE PARIS AGREEMENT 1.16 1. Scope of Article 1: Relationship with other international climate change treaties 1.16 2. Primary role of Article 1 of the Paris Agreement 1.18 D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT 1. Article l’s chapeau a. ‘For the purpose of this Paris Agreement’ b. Terms and definitions from the Convention

1.22 1.24 1.26

F. APPLYING THE CONVENTION’S TERMS AND DEFINITIONS IN THE PARIS AGREEMENT 1. Article 1 chapeau (1): ‘Adverse effects of climate change’ a. Physical changes and significant deleterious effects b. Ecosystems, socio-economics system, and humans

1.19 1.19 1.19

1.45 1.45

1.48

1.50 1.50 1.51 1.54

1.21

All websites in the chapter were live as at 17 July 2020.

33

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 1 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 2 SESS: 13 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

2. 3. 4. 5.

c. Other related provisions of the Paris Agreement and the Convention Article 1 chapeau (2): ‘Climate change’ Article 1 chapeau (3): ‘Climate system’ Article 1 chapeau (4): ‘Emissions’ Article 1 chapeau (5): ‘Greenhouse gases’ a. Gaseous constituents of the atmosphere and the greenhouse effect b. Natural and anthropogenic gases

6. Article 1 chapeau (6): ‘Regional economic integration organization’ 7. Article 1 chapeau (7): ‘Reservoir’ 8. Article 1 chapeau (8): ‘Sink’ 9. Article 1 chapeau (9): ‘Source’

1.55 1.57 1.60 1.63 1.65

G. OTHER TERMS USED IN THE PARIS AGREEMENT

1.72 1.74 1.77 1.79

1.82

1.66 1.70

COMMENTARY A. INTRODUCTION 1.01 The Paris Agreement constitutes a welcomed addition to the existing body of international climate change law.1 This 2015 international treaty is notably different from its related predecessors – the 1992 United Nations Framework Convention on Climate Change (Convention)2 and 1997 Kyoto Protocol to the Convention (Kyoto Protocol)3 – in several significant ways. Many of these are advancements discussed in the following chapters of this Commentary. Even so, the Paris Agreement mirrors the Convention to the extent that it sets out an agreed framework for advancing global responses to climate change. Indeed, the Paris Agreement’s closely entwined relationship with pre-existing treaty law and related decisions of Parties is clearly enunciated from the outset, in both the Preamble and Article 1. Together, these provisions provide the requisite framework against which the Paris Agreement’s substantive provisions, and their expansion through the establishment of the Paris Rulebook.4

1

Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015; entered into force 4 November 2016) (Paris Agreement). United Nations Framework Convention on Climate Change (adopted 9 May 1992; entered into force 21 March 1994) 1771 UNTS 107 (Convention). Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997; entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol). See e.g., APA-SBSTA-SBI, Paris Agreement Work Programme (PAWP) and Katowice Climate Package: ‘Joint reflections note by the presiding officers of the Ad Hoc Working Group on the Paris Agreement, the Subsidiary Body for Scientific and Technological Advice and the Subsidiary Body for Implementation’ (15 October 2018) APA-SBSTASBI.2018.Infomral.2 ; Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA), ‘Katowice Climate Package’ (COP24, Katowice, 2018) which includes Dec 1/CP.24 (n11) and CMA, ‘Decisions 3/CMA.1 to 20/CMA.1’ in Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the third part of its first session, held in Katowice from 2 to 15 December 2018. Addendums 1 and 2 (19 March 2019) FCCC/PA/ CMA/2018/3/Add.1 and FCCC/PA/CMA/2018/3/Add.2 respectively. Note: Significant parts of the Rulebook are still under discussion, notably Paris Agreement, Article 6. See further CMA, ‘Matters relating to Article 6 of the Paris Agreement’ (Advance unedited version, COP25) in which the CMA requests the SBSTA to ‘continue consideration of the draft texts of Article 6 of the Agreement at its 52nd session (June 2020), ‘with a view to recommending draft decisions for consideration and adoption’ by the CMA at its 53rd session in November 2020.

2 3 4

34

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 2 /

Date: 1/3

JOBNAME: Law Prac - Van Calst PAGE: 3 SESS: 7 OUTPUT: Wed Mar 3 13:47:59 2021

B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION

By way of framing this chapter’s discussion, the pivotal role of related instruments and 1.02 international law of treaties are précised at the outset. In addition to considering the relationship between the key international climate change law treaties and the expansion of the Paris Agreement through related instruments, this initial discussion draws on apposite treaty rules that guide the understanding and interpretation of Parties’ climate change obligations under the Paris Agreement. As part of further background, the proposed draft text of Article 1 (see Table 1.2 below) is also 1.03 examined, albeit briefly. Set out in the informal note of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), the final draft of Article 1 formed the basis of negotiations and finalisation of the Paris Agreement at COP21.5 Comparing this aspect of the Paris Agreement’s preparatory work – travaux préparatoires – to the final text is instructive in several ways. In addition to understanding the Parties’ negotiated positions on the nature and scope of final treaty obligations and rights, it is interesting to note what was omitted, as well as what was retained, in order to secure the adoption of the final Paris Agreement in 2015. The individual paragraphs of Article 1 are then examined in more detail. This necessarily includes the additional nine terms defined in the Convention. In addition to these formally recognised terms, several other terms are specifically defined and/or used throughout the Paris Agreement. While these terms form an inherent part of the discussions in subsequent chapters, attention is drawn to several key examples to complete this chapter’s signposting discussion on the nature and scope of Parties’ treaty obligations.

B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION 1. The Preamble and related instruments As discussed in the previous chapter, the Preamble maps out the broader international legal 1.04 and scientific context in which the Paris Agreement operates. In so doing, the Preamble provides important recognition of the inter-relationship between the international climate change law treaties, including the Durban Platform for Enhanced Action, the Convention’s objective, and the well-recognised international law principle of ‘equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’, as well as highlighting the explicit recognition of climate change and human rights, just transitions, and the growing sense of urgency associated with combating this global problem.6 This earlier contextual discussion provides important background and framing for the terms and definitions expressly stated in, or incorporated by, Article 1 of the Paris Agreement. For instance, the recognised need to have recourse to ‘the best available scientific knowledge’ is directly related to the nature and scope of terms recognised in Article 1, e.g., climate change, greenhouse gases.

5

6

Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Draft agreement and draft decision on work streams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action – Work of the ADP contact group (edited version of 6 November 2015; re-issued 10 November 2015) UN Doc ADP.2015.11.Informal Note. See further Paris Agreement (n 1) Preamble, esp Recs 2 and 3; See also Preamble.

35

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 3 /

Date: 15/1

JOBNAME: Law Prac - Van Calst PAGE: 4 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

1.05 Furthermore, like the Convention, the Paris Agreement is a framework treaty. It provides little or no details on the means and methods for giving effect to the treaty’s framework provisions. Rather, many aspects of the Paris Agreement’s practical implementation are contained in related instruments. The latter includes Decision 1/CP.217 and subsequent decisions of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA).8 It also includes the work of the Subsidiary Body for Scientific and Technological Advice (SBSTA),9 the Subsidiary Body for Implementation (SBI),10 and specially constituted bodies, such as the Ad Hoc Working Group on the Paris Agreement (APA),11 the Paris Committee on Capacity-building,12 and the Forum on the Impact of the Implementation of Response Measures.13 As the primary bodies responsible for the Paris Agreement Work Programme (PAWP),14 throughout the last four years the SBSTA, SBI, and APA have advanced the implementation guidelines – more commonly referred to as the Paris Rulebook – underpinning the operationalisation of the Paris Agreement.15 To date, this work has enabled the Parties’ negotiated agreement on the content of the Rulebook – the Katowice Climate Package16 – and advanced the Paris Agreement’s operationalisation from 2020 onwards. As and where relevant, aspects of the Paris Agreement’s operationalisation, based on the Parties’ post-2015 decisions noted above, are incorporated into this chapter’s discussion from two perspectives: (i) broadening of

7

8 9 10 11

12 13 14 15

16

Conference of Parties (COP), ‘Decision 1/CP.21: Adoption of the Paris Agreement’ in Report of the Conference of the Parties on its 21st session, Paris 2015 (29 January 2016) UN FCCC/CP/2015/10/Add.1 (Dec 1/CP.21). See e.g., COP, Dec 1/CP.21 ibid., para 9, which states that the COP decided to retain an oversight role in respect of the implementation of the work programme. Paris Agreement (n 1) Article 18; COP, Dec 1/CP.21, ibid.; See further Article 18. Paris Agreement, ibid., which sets out the responsibilities of the SBSTA and SBI under the Agreement. See further, COP, Dec 1/CP.21, ibid.; See further Article 18. Established through COP, Dec 1/CP.21, ibid., para 7, the APA held its sessions with the SBSTA and SBI and prepared draft decisions that were recommended to the CMA for ‘consideration and adoption’ (para 11).The APA completed its work with its 7th session at the COP24 in Katowice, 2018 . This was formally recognised in COP, ‘Decision 1/CP.24 – Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’ (Dec 1/CP.24) in COP, Report of the Conference of the Parties on its twenty-fourth session, held in Katowice from 2 to 15 December 2018 (19 March 2019) FCCC/CP/2018/10/Add.1, para 5 . COP, Dec 1/CP.21 (n7) para 72. See further Article 11. Ibid., para 33. See also on-going negotiations of the SBI and SBSTA, and recent outcomes of the COP25 in Madrid. See e.g., ‘Joint reflections note by the presiding officers of the Ad Hoc Working Group on the Paris Agreement, the Subsidiary Body for Scientific and Technological Advice and the Subsidiary Body for Implementation’ (15 October 2018) APA-SBSTA-SBI.2018.Infomral.2 ; Katowice Climate Package (COP24, Katowice, 2018) which includes Dec 1/CP.24 (n11) and CMA, ‘Decisions 3/CMA.1 to 20/CMA.1’ in Report of the Conference of the Parties serving as the meeting of the Parties Report of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the third part of its first session, held in Katowice from 2 to 15 December 2018. Addendums 1 and 2 (19 March 2019) FCCC/PA/CMA/2018/ 3/Add.1 and FCCC/PA/CMA/2018/3/Add.2 respectively. Note: Parts of the Rulebook are still under discussion, notably Article 6 of the Agreement. See further CMA, ‘Matters relating to Article 6 of the Paris Agreement’ (Advance unedited version, COP25) in which the CMA requests the SBSTA to ‘continue consideration of the draft texts of Article 6 of the Agreement at its 52nd session (June 2020), ‘with a view to recommending draft decisions for consideration and adoption’ by the CMA at its 53rd session (November 2020)’. See further Article 6. See CMA, Katowice Climate Package ibid., which sets out the relevant decisions and documents.

36

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 4 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 5 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION

the nature and scope of existing terms and definitions; and/or (ii) the introduction of new terms and/or definitions over and above those expressly recognised in Article 1. Before turning to these discussions, relevant international treaty law rules are précised next. 2. International treaty law and the Paris Agreement As with all international treaties of the past 40 years, the Vienna Convention on the Law of 1.06 Treaties (VCLT)17 provides a starting point for understanding Parties’ treaty rights and obligations under the Paris Agreement.18 In recent years, there has been, as Bowman and Kritsiotis observe, ‘a dramatic proliferation of scholarly activity and attention’ in respect of the ‘deep and pervasive’ significance of treaty law ‘across the international legal order as whole’.19 This extensive body of literature on the law of treaties is dealt with elsewhere and need not be examined in depth here.20 For the purposes of the discussion in this and later chapters, relevant rules provided for in the VCLT include those pertaining to the Paris Agreement’s conclusion and entry into force, observance, application, and interpretation of its provisions, the legal relationship between treaties on the same topic, and a Party’s subsequent withdrawal.21 More specifically, for the purposes of this chapter, general and specific international treaty interpretation rules that guide the exercise of Parties’ international climate change obligations under the Paris Agreement are précised below. a. General treaty law and the Paris Agreement In general terms, treaty parties’ general obligations include pacta sunt servanda and the 1.07 principle of good faith (bona fides).22 Together, these general obligations guide the Parties’ execution and performance obligations under the Paris Agreement. For instance, the pacta sunt servanda obligation, set out in Article 26 of the VCLT, provides that Parties to the Paris Agreement are not just bound by their treaty obligations; they must also perform them in good

17

18

19 20

21 22

Vienna Convention on the Law of Treaties (adopted 23 May 1969; entered into force 27 January 1980) 1155 UNTS 331 (VCLT). See also Oliver Dörr and Kirsten Schmalenbach eds Vienna Convention on the Law of Treaties: A Commentary (2nd ed, Springer-Verlag Berlin and Heidelberg GmbH and Co. KG, 2018). Note: Although the VCLT only applies to those international treaties concluded after its entry into force, many of the provisions codify traditional customary international laws concerning treaties, in particular, those relating to treaty interpretation. Additionally, through its application by States in the past four decades, many of the VCLT’s provisions have now themselves become part of contemporary international customary law. See e.g., further discussion, Michael J Bowman and Dino Kritsiotis, ‘The Interplay of Concept, Context and Content’ in Modern Law of Treaties’ in Conceptual and Contextual Perspectives on the Modern Law of Treaties in Michael J Bowman and Dino Kritsiotis eds (Cambridge University Press, 2018) 3; Duncan B Hollis, ‘Introduction’ in: Duncan B Hollis ed The Oxford Guide to Treaties (Oxford University Press, 2012) 3. As Gardiner points out, while ‘the same rules of treaty interpretation apply to all types of treaty’ in international contexts, national legal systems may result in modification of such rules within domestic application of a State’s obligations. See Richard K Gardiner, Treaty Interpretation (2nd ed, Oxford University Press, 2015) 21–2. Bowman and Kritsiotis (n 17) 3. Ibid. See also, Gardiner, Treaty Interpretation (n18); The Oxford Guide to Treaties (Hollis ed) (n17) including the extensive bibliographies – ‘Recommended Reading’ – at the end of each chapter; Vienna Convention on the law of treaties: A commentary (n17); Shabtai Rosenne, Developments in the Law of Treaties 1945-86 (Cambridge University Press, 1989); Lord McNair, The Law of Treaties (Clarendon Press, 1961). Procedural requirements concerning such matters are discussed later, see e.g., Article 20. See eg, VCLT (n17) Article 24 Entry into force; Article 26 Pacta sunt servanda; Article 27 Internal law and observance of treaties; Article 30 Application of successive treaties relating to the same subject matter. Note also, Preamble, Rec 3, which points out that ‘the principles of free consent and of good faith and the pacta sunt servanda rule are universally recognised’.

37

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 5 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 6 SESS: 9 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

faith.23 Moreover, in addition to being ‘one of the basic principles governing the creation and performance of legal obligations’,24 the articulation of the principle of good faith in both Articles 31 and 26 of the VCLT establishes the essential connection ‘between the interpretation of a treaty and its performance’.25 This requires a term to be considered in its context, as well as the Paris Agreement’s object and purpose.26 Further to preventing ‘an excessively literal interpretation of a term’, the principle of good faith also ‘assists in determining recourse to the supplementary means of interpretation in Article 32’.27 1.08 As evidenced in the later chapters on the Paris Agreement’s final provisions, these general obligations are particularly important in guiding Parties’ conduct in the period between signature and ratification, and any later approved amendments and/or annexes.28 In respect of this immediate discussion, the terms and definitions set out in Article 1 underpin Parties’ obligations under the Paris Agreement, providing the definitional scope to Parties’ legal commitments. Consistency in interpretation and application of Parties’ legal obligations are, therefore, important features of this first Article of the Paris Agreement. Parties’ general obligations – pacta sunt servanda and the principle of good faith – and the following treaty interpretation rules are critical to the establishment and operationalisation of the Paris Agreement. b. Specific treaty interpretation rules and the Paris Agreement 1.09 Being mindful of Lord McNair’s oft-cited comment, that there ‘is no part of the law of treaties which the text-writer approaches with more trepidation than the question of interpretation’,29 it is fair to say that nowadays the VCLT interpretation rules lay out the procedural framework by which the ‘true meaning of a treaty’ can be established.30 Nevertheless, as Gardiner posits, a treaty and its terms must be distinguished: ‘It is the treaty which is to be interpreted; it is the terms whose ordinary meaning is to be the starting point, their context moderating selection of that meaning, and the process being further illuminated by the treaty’s object and purpose’.31 Thus, over and above the general principles that guide parties in the creation and exercise of their treaty obligations, Articles 31–33 of the VCLT provide instructive guidance on the interpretation of international treaties.32 Relevantly, Article 31 of the VCLT, which the ICJ regards as a codification of customary law, provides the key rules on treaty interpretation.33 As

23 24 25 26 27 28 29 30

31 32 33

VCLT, ibid., Article 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ Nuclear Tests (Australia v. France) (1974) ICJ Reports 268, [46]; Mark E Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill, 2009) 425–6. Villiger, ibid. Ibid. Ibid. See further Articles 20, 21, 22 and 23. McNair (n 20) 364. Ibid. See further, Panos Merkouris, ‘Introduction: Interpretation is a Science, is an Art, is a Science’ in: Malgosia Fitzmaurice, Olufemi Elias, Panos Merkouris eds Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On (Brill, 2010) 1–13. Gardiner (n 18) 164. VCLT (n 17) Part III, Section 3 Interpretation of Treaties, Articles 31–33. Note: these provisions apply to those treaties that have been concluded after the VCLT’s entry into force in early 1980. See e.g., Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgment (2008) ICJ Reports 177 [112]; Kasikili/Sedudu Island (Botswana/Namibia) Judgement (1999) ICJ 1045 [18]; Oil Platforms (Islamic Republic of

38

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 6 /

Date: 19/1

JOBNAME: Law Prac - Van Calst PAGE: 7 SESS: 11 OUTPUT: Wed Mar 3 13:47:59 2021

B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION

with the general body of international treaty law, much has been written on these treaty interpretation provisions and this extensive body of literature need not be repeated here,34 save for several key comments. First, in laying down the general and supplementary rules of treaty interpretation, Article 31 is widely regarded as drawing together various existing approaches to impose several inter-related obligations upon State parties to a treaty.35 Secondly, in terms of treaty interpretation, the starting point is the requirements laid down in Article 31(1). Constituting ‘integral parts’ of the general rule that ‘have to be applied in a single combined operation’,36 these elements oblige State Parties to: (i) interpret the treaty in good faith; and (ii) apply the ordinary meaning to treaty terms: (a) vis-à-vis their context, e.g., customary, regular usage; and (b) in consideration of the treaty’s object and purpose.37 In other words, the terms of the Paris Agreement must be interpreted by the Parties in good faith, according to their ordinary meaning, as understood from their context and in light of the treaty’s object and purpose.38 Thirdly, when interpreting the current treaty, ‘context’ can include the Paris Agreement’s text, Preamble, Annexes, Decision 1/CP.21,39 as well as subsequent decisions of the CMA and relevant bodies responsible for progressing the content of the Rulebook.40 Accordingly, the terms defined in Article 1 can be understood in light of the Paris Agreement’s object and purpose set out in Article 2, as well as the Preamble, other relevant provisions of the Paris Agreement, the Rulebook, and other related decisions of the Parties and/or special bodies.41 As mentioned previously, the reason for this is that the Paris Agreement’s framework nature means that the treaty text itself does not comprehensively articulate the content and scope of Parties’ obligations and rights. c. ‘Special meanings’ and the Paris Agreement’s terms and definitions Article 31(4) of the VCLT provides: ‘A special meaning shall be given to a term if it is 1.10 established that the parties so intended.’ This paragraph introduces the exception to the rule set out in Article 31(1), by providing for ‘cases where the parties have agreed, even implicitly, to replace the ordinary meaning of a term contained in a treaty provision by a special

34

35

36 37

38 39

40

41

Iran v. United States of America) Preliminary Objections, Judgment (1996) ICJ Reports (II) 812 [23]; Territorial Dispute (Libyan Arab Jamahiriya Chad) Judgement (1994) ICJ Reports 21 [41]. See e.g., Gardiner, Treaty Interpretation (n18) Part II; Dörr, ‘Article 31. General Rule of Interpretation’ in Dörr and Schmalenbach (n 17); Villiger (n 25); Ian Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 1984); McNair (n 20). See e.g., Villiger (n 24) 420–21, where the author provides a succinct overview of the various treaty interpretation approaches endorsed over the years as including the following methods: subjective or historical, textual or grammatical, the contextual or systematic, the teleological or functional, and the logical. Ibid., 436. VCLT (n 17) Article 31(1). See e.g., Dörr (n34); Villiger (n24) 415–62; Isabelle Van Damme, Treaty Interpretation (Oxford Bibliographies, 2016) for a general overview on the ‘authoritative general commentaries on the law governing treaty interpretation’. VCLT (n 17) Article 31(1). See e.g., Articles 2 and 3 for further elaboration on the Agreement’s objective and purpose. COP, Dec 1/CP.21 (n 7), to which the Paris Agreement is annexed, was agreed to by the COP21. Thus, pursuant to VCLT, Article 31(2), as an agreement or instrument relating to the Paris Agreement, made between some of all of the parties, in connection with the conclusion of the Agreement, Dec 1/CP.21 provides essential content on the Paris Agreement’s meaning and operationalisation. VCLT (n 17) Article 3(2) and (3), which provide that these include the treaty’s text, Preamble, Annexes, associated agreements and instruments between the parties relating to the treaty’s conclusion, subsequent agreements or State practice regarding the treaty’s application and/or interpretation, as well as any pertinent rules of international law that characterise the relationships between State Parties to the treaty. See e.g., COP, Dec 1/CP.21 (n 7); CMA, Katowice Climate Package (n 15).

39

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 7 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 8 SESS: 9 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

meaning’.42 Thus, where Parties decide that certain terms are to have special meanings, then such definitions must be used.43 Even in such cases, it can be necessary to distinguish between two different kinds of ‘special meaning’ terms. As Gardiner explains, one meaning of a term is that which it has ‘in a particular area of human endeavour’. Such a term’s definition is ‘essentially an ordinary meaning in the particular context. It may be a term of art, but the context leaves no room for doubt once the term is recognised as such’.44 Similarly, Dörr suggests that the first category of special meaning terms of a treaty may be those which ‘have a technical or “special meaning” due to the particular field the treaty covers’; that ‘the particular meaning may already appear from the context and object and purpose of the treaty, it is essentially the ordinary meaning in the particular context’.45 The second type of special meaning term is one where, according to Gardiner, ‘a particular meaning’ is given that ‘differs from the more common meaning or meanings’; a term that requires ‘some indication from the user that their meaning differs from the expected one’.46 As Dörr points out: In the second case, the meaning of terms of a treaty is ‘special’ because the parties are using it in a way different from the more common meaning. It is this category which para 4 [of article 31] is especially aiming at, and in this understanding, the provision entails the only element in the process of treaty interpretation which explicitly looks to the intention of the parties, rather than to its emanation in the text, in order to establish their very own understanding of a term which they used.47

1.11 Given the decades old discussion of climate change, including more than 25 years of literature on the Convention and its operationalisation through the Protocol and other instruments, the commonly used climate change lexicon arguably now includes key terms such as climate change, greenhouse gases, emissions, and so on. Be that as it may, certain terms still retain a particular usage that may differ from its ordinary meaning or common usage. For example, as discussed subsequently, the definition of climate change recognised in the Paris Agreement and Convention is narrower than that of the International Panel on Climate Change (IPCC). Furthermore, the inclusion of a specific provision, and the language used, in Article 1 of the Paris Agreement, clearly suggest that the Parties intended the defined terms set out in this provision to apply for the interpretative and operative purposes of this treaty. The Paris Agreement also attaches a special meaning to particular words or expressions in certain circumstances. For instance, Article 21 of the Paris Agreement identifies the Parties’ explicit intention for a special meaning given to the phrase ‘total global greenhouse gas emissions’, and further, restricts the application of this definition to meeting the purposes of Article 21.48

42 43 44 45 46 47 48

Dörr (n 34) 568. VCLT (n 17) Article 31(4). Gardiner (n 18) 334. Dörr (n 34) 568. Gardiner (n 18). Dörr (n 34) 568–9. See further Article 21.

40

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 8 /

Date: 19/1

JOBNAME: Law Prac - Van Calst PAGE: 9 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

B. FRAMING OF THE PARIS AGREEMENT’S FINAL TEXT AND OPERATIONALISATION

3. Drafting and negotiating Article 1: travaux préparatoires Responsibility for drafting the Paris Agreement rested with the ADP. The first full draft of the 1.12 Paris Agreement was presented in October 2015.49 As part of the COP21 negotiating procedures, the ADP provided the COP with a draft text, which formed the basis of negotiations and finalisation of the Paris Agreement at this time.50 The ADP’s final comprehensive version was presented by the COP to the Convention, meeting in Paris, in early December 2015.51 After further consideration and amendments, the Parties to the Convention adopted the final version of the Paris Agreement, and Decision 1/CP.21 to which it was annexed.52 At various stages in the negotiations, the content of Article 1 varied from one sentence through to 14 definitions.53 Following the submission of the final outcome of ADP’s work for consideration by the COP – 1.13 at a plenary meeting – the final iteration of Article 1 incorporated the Convention’s definitions and set out 14 additional paragraphs, as noted in Table 1.1 at the end of this chapter. Even though the draft proposal provided for the possibility of adding more definitions ‘at a later stage in the negotiating process’, Article 1’s final content was in fact considerably reduced. Only the four sets of terms and definitions – reproduced at the start of this chapter – were retained in the final version of Article 1. On the one hand, several of the proposed definitions were excluded from the final rendition of Article 1 on the basis that, ‘as the substantive articles of the [Paris Agreement] evolved, the terms were no longer used’,54 e.g., ‘CMA’, ‘REDDPlus’, ‘JMA’.55 On the other hand, several proposed clauses in the final draft version of Article 1 were transferred to other provisions in the Paris Agreement. For instance, Article 16(1) advises: ‘The Conference of the Parties, the supreme body of the Convention, shall serve as the meeting of the Parties to this Paris Agreement.’56 The abridged term – CMA – is not defined in the final version of the Paris Agreement. Even so, this term has acquired common usage 49

50

51 52 53

54 55 56

ADP, ‘Draft Agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (23 Oct 15@23:30) . Very few of the parties’ submissions address Article 1: see e.g., the Coalition for Rainforest Nations’ marked up version of the Co-Chairs informal note (ADP.2015.8.InformalNote), which proposes them terms defining ‘emissions reductions’ and ‘REDD-plus’ ; Ukraine . Ad Hoc Working Group on the Durban Platform for Enhanced Action, ‘Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action – Informal Note’ (Work of the ADP contact group, edited version of 6 November 2015; re-issued 10 November 2015) ADP.2015.11. For the full set of documents relating to the two work streams of the ADP on the draft agreement see UNFCCC, ADP 2-12 – Documents . ADP, ‘Draft Paris Outcome: Revised draft conclusions proposed by the Co-Chairs’ (5 December 2015) UN Doc FCCC/ADP/2015/L.6/Rev.1 . COP, ‘Adoption of the Paris Agreement’ (12 December 2015) FCCC/CP/2015/L.9/Rev.1 . ADP, ‘Draft Paris Outcome: Revised draft conclusions proposed by the Co-Chairs’ (5 December 2015) FCCC/ADP/ 2015/L.6/Rev.1 ; cf ADP, ‘Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (23 October 2015) . Daniel Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18(2) Yale Journal of International Law 453. See further Article 5. See further Article 16.

41

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 9 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 10 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

status in international climate change negotiations.57 Similarly, the voting rights of Parties to the Paris Agreement and recognition of the continuance of amendments to the Convention’s Annexes are now dealt with in Articles 23 and 25 respectively.58 1.14 By contrast, the terms REDD-Plus,59 or REDD+ as it is often written, do not figure at all in the Paris Agreement.60 Reference is made to ‘joint mitigation and adaptation’ in the context of ‘alternative policy approaches … for the integral and sustainable management of forests’ in Article 5(2); otherwise the Paris Agreement is silent on REDD+.61 Many such issues have since been incorporated into the Paris Agreement’s climate change regime through the Rulebook. Other terms are used throughout the Paris Agreement in such ‘a general manner as not to require definition’, or are ‘defined operationally elsewhere’,62 e.g., ‘Developed country Party’, ‘Developing country Party’, and ‘Party included in Annex I’.63 In the case of ‘countries in need’, a range of terms are used throughout the Paris Agreement. These are, for the most part, economic and/or circumstantially based, e.g., least developed, low lying island states, small island developing states, or those that are particularly vulnerable to the adverse effects of climate change. 1.15 Finally, although most of the terms in draft Article 1 have found a home somewhere in the Paris Agreement, one somewhat controversial term, ‘climate forcers’, has not.64 Before and after the COP21, there has been widespread discussion on the hazardous effects of short-lived climate pollutants, and the important role the mitigation of these gases in the immediate to short-term future.65 Notably, at COP24 in Katowice, the IPCC’s release of its report – Global

57 58 59 60

61 62 63 64

65

See e.g., at COP21, the term CMA1 was used to describe the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement; See further Article 16. See further Article 20. The seven decisions set out in the Warsaw Framework for REDD+ were adopted by the COP at its 19th meeting, held in Warsaw in 2013. See further Article 8. See Coalition for Rainforest Nations’ submission to the ADP’s work on drafting the agreement in which it proposed the inclusion of a reference to REDD+ in the Preamble ; cf, Norway’s more generalised proposal on ‘land use, including forests’ ; Coalition for Rainforest Nations, Japan and some of UG member countries’ proposal ; Bolivia’s submissions on REDD+ and JMA mechanism . See further Article 5. Ibid. See further Article 20. See ADP’s final draft, para 5, set out in Table 1.1. at the end of this chapter. See also Parties’ submissions to ADP Bonn Oct 2015, e.g., Mexico’s addition to the Definitions: ‘4. Climate forcers: compounds or group of compounds that contribute to climate change. This contribution can be measured through their radiative forcing (W/m2). They are well-mixed and near-term greenhouse gases, aerosols, or particles.’ . See e.g., the Lima-Paris Action Agenda (LPAA), established at the COP20 – and the call for greater climate action by non-Party stakeholders and climate action coalitions across 12 key areas, one of which is focused on combating the adverse effects of SLCPs – hydrofluorocarbons (HFCs), methane, black carbon, and tropospheric ozone – on both the international climate system and human health. See further, IPCC, ‘Short-Lived Climate Forcers: Proposal for an IPCC Expert Meeting on Emission Estimation of Short-Lived Climate Forcers’ (4 August 2017) IPCC-XLVI/Doc 7, in which it is noted that issue will also be addressed in the forthcoming IPCC AR6 (planned 2022); IPCC, Global Warming of 1.5°C. An IPCC Special Report on the impacts

42

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 10 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 11 SESS: 7 OUTPUT: Wed Mar 3 13:47:59 2021

C. SCOPE AND ROLE OF ARTICLE 1 OF THE PARIS AGREEMENT

warming of 1.5°C – contained a discussion of this topic.66 The Report’s findings overall provoked strong reaction from some quarters, leading the COP to ultimately recognise the IPCC’s role ‘in providing scientific input to inform Parties in strengthening the global response to the threat of climate change’, express ‘its appreciation and gratitude’ for providing the report, which reflects ‘the best available science’, and invite Parties ‘to make use of the information’ contained in it.67 Otherwise, the Global warming of 1.5°C report was only noted, rather than adopted and endorsed at COP24.68

C. SCOPE AND ROLE OF ARTICLE 1 OF THE PARIS AGREEMENT 1. Scope of Article 1: Relationship with other international climate change treaties Article 1 of the Paris Agreement contains three expressly defined terms: ‘Convention’, 1.16 ‘Conference of the Parties’, and ‘Party’. Article 1 also expressly incorporates the definitions provided in Article 1 of the Convention. Incorporating Article 1 of the Convention into the first provision of the Paris Agreement exemplifies the close relationship between these international climate change treaties. Thus, the Paris Agreement is a distinct international treaty; it cannot, however, be understood or applied as being entirely separate from its predecessors. It necessarily, forms an integral part of the international law framework regulating climate change at the global level. Even so, with the Paris Agreement’s shift in international focus away from specific individual- 1.17 ised mitigation targets, there is no equivalent express recognition of the relationship between the Paris Agreement and the Protocol.69 Likewise, there are no Annexes to the Paris Agreement that identify developed and non-developed Parties.70 Nevertheless, several aspects of the Kyoto Protocol advise on the scope of certain terms and obligations under the Paris Agreement. As discussed subsequently, one such example is the list of greenhouse gases set out in Annex A.71 The Paris Agreement also incorporates other provisions of the Convention.

66 67

68

69 70 71

of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC, 2018) . IPCC, Global warming of 1.5°C ibid. COP, ‘Decision 1/CP.24, Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’ in COP, Report of the Conference of the Parties on its twenty-fourth session, held in Katowice from 2 to 15 December 2018, Addendum, Part two: Action taken by the Conference of the Parties at its twenty fourth session, (19 March 2019) FCCC/CP/2018/10/Add.1, Part IV Special Report of the Intergovernmental Panel on Climate Change, paras 24–29. COP, ‘Decision 10/CP.24, Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts’ in COP, Report of the Conference of the Parties on its twenty-fourth session, held in Katowice from 2 to 15 December 2018, ibid., Rec 5. See further Article 6. See further Article 23. Kyoto Protocol (n 3), Annex A; ‘Doha amendment to the Kyoto Protocol’, contained in Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP), Decision 1/CMP.8, Amendment to the Kyoto Protocol pursuant to its Article 3, para 9 (the Doha Amendment) (28 February 2013) FCCC/KP/CMP/2012/13/ Add.1, Annex I , in which an additional gas was recognised for the purposes of the 2nd commitment period - Nitrogen trifluoride (NF3)1.

43

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 11 /

Date: 15/1

JOBNAME: Law Prac - Van Calst PAGE: 12 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

This includes application – mutatis mutandis – of the provisions related to amendments to the treaty and annexes, and the Paris Agreement’s dispute settle mechanism.72 2. Primary role of Article 1 of the Paris Agreement 1.18 In a practical sense, the definitions provided for in Article 1 ‘assist the reader of the [Paris Agreement] when interpreting its terms and, not least, to ensure that the [Paris Agreement’s] articles are read as a combined whole’.73 Even so, this does not provide the entire picture. As discussed in the last part of this chapter, additional terms can be found in other parts of the Paris Agreement. Sometimes these manifest as ‘variations’ of the expressly recognised definitions; at other times, the Paris Agreement introduces entirely new terms into the international climate change law lexicon. Of course, just like the interpretation of any other part of the Paris Agreement, Article 1’s provisions can also be understood in light of the Paris Agreement’s objective and purpose. While ascertaining the Paris Agreement’s overarching “purpose” requires consideration, primarily, of Article 2,74 the preceding chapter’s discussion of the Preamble also contributes to a comprehensive understanding of the Paris Agreement’s purpose and context. By way of overview, specific details on rate and context of usage of the terms and definitions recognised in Article 1 of Paris Agreement are set out in Tables 1.3 and 1.4 at the end of this chapter.

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT 1. Article l’s chapeau a. ‘For the purpose of this Paris Agreement’ 1.19 Like the Convention, Article 1’s chapeau advises that the terms and definitions are ‘[f]or the purpose of this Paris Agreement’. 1.20 Thus, Article 1 delimits its operative scope at the outset, providing that recourse to its terms and definitions – including those of the Convention – shall only apply in respect of the Paris Agreement. Moreover, many of the terms set down in Article 1 of both the Paris Agreement and the Convention are capable of having more than one meaning within the climate change context and outside it. In this regard, Article 1’s chapeau assists the reader by indicating clearly that the terms recognised by Article 1 are assigned these particular meanings when such words and expressions are used throughout the Paris Agreement. As such, the terms recognised and defined in Article 1 are critical to interpreting Parties’ obligations and rights under the Paris Agreement, providing a uniformity of definition and understanding throughout the agreement and between the Parties to it. b. Terms and definitions from the Convention 1.21 Article 1’s chapeau expressly incorporates nine additional terms, defined in Article 1 of the Convention, into the Paris Agreement. These are considered subsequently. 72 73 74

See further Articles 22, 23, and 24. Villiger (n 24) 73. See further Article 2.

44

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 12 /

Date: 14/1

JOBNAME: Law Prac - Van Calst PAGE: 13 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT

2. Article 1(a): ‘Convention’ Article 1(a) (see Table 1.3 below) provides that the term ‘Convention’ specifically refers to the 1.22 United Nations Framework Convention on Climate Change.75 Adopted at the ‘Rio Earth Summit’ in 1992, the Convention entered into force in March 1.23 1994.76 With 197 Parties, including the European Union, the Convention currently enjoys almost universal membership by the International Community.77 The term ‘Convention’ is used throughout the Paris Agreement, with many cross-references made to both the Convention generally, and at times with regard to specific provisions.78 In this way, like the Kyoto Protocol before it, the Paris Agreement forms an integral part of the international climate change treaty regime and as such, cannot be read completely in isolation from the preceding climate change treaties. 3. Article 1(b): ‘Conference of the Parties’ Article 1(b) clearly defines the term ‘Conference of the Parties’ to be the Conference of the 1.24 Parties to the Convention referred to in Article 1(a) above (see Table 1.3 below).79 Established under Article 7(1) of the Convention, the Conference of the Parties – usually 1.25 abbreviate to COP – is denoted as the ‘the supreme body of this Convention’.80 In its role as the supreme decision-making body, Article 7(2) obliges the COP to ‘keep under regular review the implementation of the Convention and any related legal instruments that the [COP] may adopt, and shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention’. To meet these overarching obligations, the COP is required to engage in a range of actions, including periodic examination of Parties’ obligations under the Convention, the promotion and facilitation of ‘the exchange of information on measures adopted by the Parties to address climate change and its effects’, and review reports of its subsidiary bodies – the SBSTA and SBI.81 The COP must also convene the annual meeting of Parties to the Convention,82 the most recent of which took place in late 2019, in Madrid – the COP25.83 At this meeting, the CMA met for the first part of its second session. Through such regular meetings and ongoing negotiations, the scope of the initial framework obligations of Parties laid down in the Paris Agreement have continued to be shaped and developed through outcomes mandated by CMA and COP decisions. These are considered in more detail, as and where relevant, throughout the ensuing chapters of this Commentary. 75 76 77

78 79 80 81 82 83

Convention (n 2); See also ADP’s submission proposed by China (Oct 2105) https://unfccc.int/sites/default/files/adp211_art1_definitions_china_21oct2015.pdf. Ibid. For ratification status see, UN Treaty Collection, 7 d) Paris Agreement (Depository – Status of Treaties, Chapter XXVII: Environment, January 2020) . See e.g., discussion of Articles 22–24 under Article 20. See ADP’s submissions – Oct 2105 – proposed by China . Convention (n 2) Article 7(2). Ibid., Article 7(2)(a)–(m). Ibid., Article 7(3). For all relevant documentation arising out of the 2019 COP25, see UNFCCC .

45

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 13 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 14 SESS: 7 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

4. Article 1(c): ‘Party’ 1.26 The term ‘Party’ is restricted by Article 1(c) (see Table 1.3 below) to those entities that are ‘Party to the Paris Agreement’. 1.27 The collective term ‘Parties’ is employed throughout the Agreement. On occasion, the Agreement adopts variations on this terminology, which include ‘a Party’,84 ‘all Parties’85 or ‘Parties acting jointly’.86 For example, Recital 7 in the Preamble recognises that all Parties to the Agreement ‘may be affected not only by climate change, but also by the impacts of the measures taken in response to it’. The main consequence of using the term ‘Parties’ in these various ways is reflected in the scope and nature of obligations imposed by the Agreement. a. Who can be a Party to the Paris Agreement? 1.28 This provision needs to be read in conjunction with Article 20, which recognises that two types of international entities are capable of being official Parties to the Paris Agreement: (i) States; and (ii) Regional economic integration organisations.87 Accordingly, 188 States and one regional economic integration organisation – the European Union – have signed and ratified the Paris Agreement.88 In other words, there are 189 officially recognised Parties to the Paris Agreement, within the meaning of Article 1(c). With the USA’s intended withdrawal in late 2020, the number of State Parties to the Paris Agreement will obviously be reduced by one.89 Even so, the Paris Agreement has received almost attained the same level of universal endorsement as its predecessors.90 b. Key Party groupings 1.29 As pointed out earlier in this chapter, the draft of Article 1 submitted to the COP in 2015 contained terms that distinguished between three key groups of Party: developed country Parties, developing country Parties, and Annex I Parties.91 None of these appear in the Agreement’s final version of Article 1, or anywhere else in the instrument. Otherwise, like the

84 85 86 87 88

89 90

91

See e.g., Paris Agreement (n 1) Articles 1(c), 4(11) and (18), 6(4)(b), 16(3), 20(2), 28(1); See further Articles 1, 4, 6, 16, 20, and 28. See e.g., ibid., Articles 3, 4(8) and (19), 11(3) and (4); See further Articles 3, 4, and 11. See e.g., ibid., Article 4(18); See further Article 4. See further Article 20. UN Treaty Collection, 7 d) Paris Agreement (Depository, Status of Treaties, Chapter XXVII: Environment) . See further Article 20. See further Article 28. See UN Treaty Collection, 7 United Nations Framework Convention on Climate Change, above n 78; UN Treaty Collection, 7 a) Kyoto Protocol to the United Nations Framework Convention on Climate Change (Depository, Status of Treaties, Chapter XXVII: Environment, January 2020) . See the UN, ‘Country classification’ in World Economic Situation and Prospects 2019 (United Nations, 2019) 167 where Country classifications are explained, for the purposes of this annual report, as follows: For analytical purposes, WESP classifies all countries of the world into one of three broad categories: developed economies, economies in transition and developing economies. The composition of these groupings, … is intended to reflect basic economic country conditions. In passing, it is interesting to note that in this annual report, the UN points out that ‘several countries (in particular the economies in transition) have characteristics that could place them in more than one category.

46

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 14 /

Date: 15/1

JOBNAME: Law Prac - Van Calst PAGE: 15 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT

Convention, the commonly observed Party groupings used throughout the Agreement are the well-versed pair of ‘developed’ and ‘developing’ country Parties. Like the Convention, these terms are also not defined in the Agreement. At first blush, it appears that the implicit suggestion is that practice to date makes it clear what parties are encompassed by these and other groupings. However, at the time of the Convention’s adoption in 1992, ‘developed countries’ were the recognised as comprising the industrialised Member States of the OECD. These States, together with several States defined as having ‘economies in transition’ (EITs) – namely Russia, the Baltic States, and several Central and Eastern European States – were all grouped as Annex I Parties. Annex II comprised just the OECD Member States – the ‘Developed country Parties’.92 The remaining States were grouped as non-Annex I parties – ‘Developing country parties’ or as ‘least developed countries’ (LDCs) as recognised by the UN.93 A notable point of distinction between the Agreement and the Convention and the Kyoto 1.30 Protocol,94 is that the Agreement contains no reference to the lists of Annex I and II Parties. In the Convention, the lists of States in Annex I and II established the key Party groupings and the attribution of the various commitments laid down in the Convention, e.g., mandatory treaty obligations concerning greenhouse gas sources and sinks only apply to the States listed in Annex I (OECD Member States and countries with EITs).95 All other countries not listed in Annex I or II of the Convention are considered to be developing country Parties. At best, it can be assumed that the Agreement implicitly follows the ‘list approach’ adopted in the Convention, as and where relevant. On occasion, in line with the Convention, the Agreement further divides the ‘developing’ 1.31 countries group into LDCs and ‘small island developing States’ (SIDS).96 Again, following on from its parent predecessor, the Convention, the Agreement provides no definition to explain which Parties fall into which category. Nevertheless the developing country grouping is, on occasion, defined more specifically by reference to those Parties that have particular vulnerabilities to the adverse effects of climate change and/or the impact of the implementation of response measures, in particular, least developed countries, small island developing States, and countries with the least capacity.97 To this extent, the Agreement is consistent with similar terminology used in the Convention. Even so, the Convention provides no definition or list of the LDCs grouping. This term is most plausibly to be interpreted by reference to the list of LDCs recognised by the United Nations’ General Assembly.98 In the absence of expressly articulated definitions of the key State Party groupings in the 1.32 Agreement’s formal negotiating documents and final text, several observations and comments 92 93 94 95 96 97 98

UNFCCC. UN Committee for Development Policy, List of Least Developed Countries (as of December 2018) . Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997; entered into force 16 February 2005) 2303 UNTS 162. Bodansky (n 54) 507. See e.g., Paris Agreement (n 1) Preamble, Recs 5 and 6; Articles 4(6), 9(4) and (9), 11(1), 13(3). See further Preamble and Articles 4, 9, 11 and 13. See e.g., ibid., Preamble, Recs 5 and 6, Articles 4(6), 9(4) and (9), 11(1), and 13(3). See further Preamble and Articles 4, 9, 11, and 13. Bodansky (n 54) 506.

47

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 15 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 16 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

can nevertheless be made regarding: (i) the range of developing country parties recognised by the Agreement; (ii) the continuing role of the Convention’s Annex I and Annex II in distinguishing between Parties; and (iii) the key consequences of becoming a party to the Agreement. These matters are considered in the next sections of this part. c. Range of developing country Parties 1.33 Over and above the general groupings, when compared to the Convention, the Agreement’s recognition of other more specific developing parties’ groupings is limited. The earlier Convention cast a much wider net, laying down a ‘more complex and multivariate differentiation’ of potential developing country parties that focuses on the ‘special vulnerability to climate change’.99 These differences between the two climate change treaties are illustrated in Table 1.1 below. Table 1.1 Range of developing country Parties Key Vulnerability/Characteristic

Convention Agreement

Adverse effects of climate change1

✓

Areas prone to natural disasters2

✓

Areas with fragile ecosystems, including mountainous ecosystems3

✓

Arid and semi-arid areas, forested areas and areas liable to forest decay4

✓

Areas of high urban atmospheric pollution5

✓

6

Landlocked and transit countries

✓

✓

LDCs7

✓ 8

Liable to drought and desertification

✓

✓

Low-lying coastal areas9

✓ 10

✓

12

✓ ✓

Low-lying and other small island countries 11

Small island countries /developing States Impact of the implementation of response measures13 Least capacity14

✓ ✓ ✓

15

Economies most affected by the impacts of response measures 16

Transitioning to a market economy

✓ ✓

Notes: 1 See e.g., Convention, Preamble, Rec 19, Articles 1(1), 3(2), 4(4) and (8); Paris Agreement, Preamble, Rec 5, Articles 6(6), 7(2) & (6), 8(1) & (3), 9(4), 11(1). 2 See, Convention, Article 4(8)(d). 3 See, ibid., Article 4(8)(g). 4 See, ibid., Article 4(8)(c). 5 See, ibid., Article 4(8)(f). 6 See, ibid., Article 4(8)(i). 7 See, ibid., Article 4(8); Paris Agreement, Preamble, Rec 6, Articles 4(6), 9(4) and (9), 11(1), 13(3). 8 See, ibid., Article 4(8)(e).

99

Ibid.

48

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 16 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 17 SESS: 9 OUTPUT: Wed Mar 3 13:47:59 2021

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT 9 10 11 12 13 14

15 16

See, ibid., Article 4(8)(b). See, ibid., Preamble, Rec 19. See, ibid., Article 4(8)(a). Paris Agreement, Articles 4(5), 9(4) and (9), 11(1), 13(3). See, Convention, Articles 4(8), 12(7); Paris Agreement, Preamble, Rec 7. See, Paris Agreement, Article 11(1), which states that these include ‘least developed countries, and those that are particularly vulnerable to the adverse effects of climate change, such as small island developing States’. See ibid., Article 4(15). See further Article 4. Convention, Article 4(6), Annex I.

In addition to the variations highlighted in Table 1.1, another point of difference between the 1.34 Agreement and the Convention is the former’s silence on the special difficulties and/or vulnerabilities of Parties with fossil fuel dependent economies and the exploitation of natural resources. By contrast, the Convention explicitly recognises that States have the ‘sovereign right to exploit their own resources’, albeit subject to the no-harm principle.100 The Convention also recognises that countries whose economies are, inter alia, ‘dependent on fossil fuel production, use and exportation’, and/or ‘on consumption of fossil fuels and associated energy-intensive products’, are particularly ‘vulnerable to the adverse effects of the implementation of measures to respond to climate change’, e.g., greenhouse gas emissions’ mitigation activities.101 The absence of such recognition in the Agreement is perhaps not altogether surprising, especially given the escalation in global energy supply and consumption in the past decades, and the accompanying rise in global greenhouse gas emissions. A further group of Parties recognised by Article 4(15) of the Agreement, are those ‘with 1.35 economies most affected by the impacts of response measures’.102 Even though developing countries are expressly recognised as facing particular concerns in this regard, this provision has application to all Parties. As considered next, this is markedly different to the Convention, with no express recognition of Parties with “economies in transition” (EITs) being observed in the Agreement.103 d. Annex I and II Parties As mentioned above, the Convention’s Annexes served to assist with distinguishing between 1.36 developed countries Parties and all other Parties. The Agreement’s continuing absence of definitions for the key grouping of State Parties raises several matters. On the one hand, given the widespread, customary usage of the first two terms pertaining to developed and developing countries, including such terms and definitions may well be considered superfluous, at best. On the other hand, given the on-going tensions concerning the continuing characterisation of some States as ‘developing countries’, and Agreement’s shift away from the Protocol’s specific targets for Annex II countries towards to individualised ‘soft’ targets – in the form of nationally determined contributions (NDCs) – it is not altogether surprising that there is no reference to Annex I and II Parties in the Agreement. Even so, it is worth noting that while the proposal to

100 101 102 103

Convention, Preamble, Rec 8. Ibid., Rec 20, Articles 4(8)(h) and (10). As pointed out in Article 4(10), these Parties that have serious difficulties in switching their use of fossil fuels to alternatives. Paris Agreement (n 1) Article 4(15). See further Article 4. Convention, Article 4(6), Annnex 1.

49

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 17 /

Date: 19/1

JOBNAME: Law Prac - Van Calst PAGE: 18 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

include the express reference to Annex 1 Parties came from China,104 in its absence, a number of Annex I State Parties have made declaratory statements at the time of ratifying the Agreement. These clearly announced that those States considered themselves to still be in the Convention’s Annex 1 group of States for the purposes of the Agreement.105 Further discussion of these declarations is set out in Article 27 of this Commentary. 1.37 Since the Convention’s adoption in 1992 and entry into force in 1994, there have been several amendments to the lists set out in Annex I and II. Several countries were formally added to Annex 1 in 1998: Croatia, the Czech Republic, Liechtenstein, Monaco, Slovakia, and Slovenia.106 Conversely, Turkey was been removed from Annex II in 2002.107 Apart from these officially recognised changes, during the last three decades, several non-Annex I ‘developing’ States have achieved considerable economic advancement, most notably, Brazil, China, India, and South Africa.108 Nevertheless, these ‘emerging super economies’ and other similar State parties have resisted attempts to recharacterise their status, and currently retain their ‘developing county Party’ designation and/or increase the level of their obligations, at least for the purposes of the international climate change regime.109 This raises considerations regarding the appropriate level of ‘obligations’ for those States whose relative economic and development status has improved markedly since the early 1990s. Indeed, several Parties with economies in transition (EITs) listed in Annex I parties are now – almost three decades later – recognised as developed countries.110 Even so, as discussed in Chapter 27, several Annex I States have submitted declarations with their ratifications, through which they seek to extend their ‘developing’ status under the international climate change law regime.111

104 105 106

107

108

109 110 111

See submission to ADP – Oct 2015 sessions . See further Article 27. COP, Decision 4/CP.3 Amendments to the list in Annex I to the Convention under Article 4.2(f) of the Convention (25 March 1998) FCCC/CP/1997/7/Add.1. Adopted by the COP at its 3nd session, held in Kyoto (1-11 December 1997), and subject to the procedures set out in Article 16(3) of the Convention, this amendment came into force on 13 August 1998 COP, Decision 26/CP.7 Decision 26/CP.7 Amendment to the list in Annex II to the Convention (21 January 2002) FCCC/CP/2001/13/Add.4. Adopted by the COP at its 7th session, and subject to the procedures set out in Article 16(3) of the Convention, held in Marrakesh (29 October to 9 November 2001), this amendment entered into force on 28 June 2002. See e.g., World Bank, ‘Middle-income countries’ share of the global economy has accelerated in new millennium’ (Feb 22, 2019) ; United Nations, World Economic Situation and Prospects 2019 (United Nations, 2019) ; OECD OECD Economic Surveys: China 2017(OECD Publishing) . See relevant submissions of parties to the ADP’s drafting of the Agreement, e.g., South Africa https://unfccc.int/sites/ default/files/south_africa_ws1.pdf. United Nations, World Economic Situation and Prospects 2019 (United Nations, 2019) . See further Article 27.

50

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 18 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 19 SESS: 11 OUTPUT: Wed Mar 3 13:47:59 2021

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT

For example, on occasion, all developing Parties are referred to in a particular provision.112 In 1.38 other articles, additional groupings within the developing parties grouping are given additional recognition. Two groups of developing states – SIDs and LDCs – are often mentioned together,113 with additional reference to their specific needs and/or circumstances,114 particular vulnerability to the adverse effects of climate change,115 ‘significant capacity constraints’,116 or as ‘countries with the least capacity’.117 On occasion, reference is made only to one of them, e.g., LDCs being those with specific 1.39 financial and technology needs and situations,118 or having the ‘least capacity’.119 On occasion the descriptor ‘particularly vulnerable to the adverse effects of climate change’ is used in a general sense to refer to an unidentified group of developing States.120 At other times, it is used directly in reference to SIDs.121 A further example is that of ‘host party’, which is referred to in Article 6(5), and the avoidance of double counting of emissions reductions in NDCs, where such are achieved pursuant to Article 6(4)’s market mechanisms involving two or more Parties.122 The various terms used to describe and distinguish between the Parties to the Paris Agreement 1.40 mentioned above are used throughout the instrument. For the most part, when read according to their ordinary, customary usages and in the context of the provision in which the various terms appear, it is clear that such terminology assists in identifying the attribution of general and specific obligations to, and the vesting of rights in, particular Parties to the Paris Agreement. Thus, the primary consequence of the grouping was, and continues to be, the imposition of different commitments – both in scope and nature. Not surprisingly ‘developed country Parties’ have always assumed more rigorous climate 1.41 change obligations under the Convention, Protocol, and more recently the Paris Agreement. The most notable difference is the shift away from the Protocol’s imposition of mandatory emissions reduction targets on developing country Parties, to the Paris Agreement’s mitigation requirement that all Parties have binding ‘soft targets’ in the sense of being required to ‘prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’ and ‘pursue domestic mitigation measures’ to meet its mitigation contribution accordingly.123 All Parties are now required to provide successive – and progressively more ambitious – NDCs that reflect their individual ‘highest possible mitigation ambition’.124 112

113 114 115 116 117 118 119 120 121 122 123 124

See e.g., Paris Agreement (n 1) Article 5(2)’s general reference: ‘policy approaches and positive incentives for activities relating to reducing emissions from deforestation and forest degradation, and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries’; See further Article 5. See e.g., ibid., Article 9(9); See further Article 9. Ibid., Preamble Rec 5, Articles 4(6), 13(3); See further Preamble and Articles 4 and 13. See ibid., Article 10(1); See further Article 10. See ibid., Articles 4(6), 10(1); See further Articles 4 and 10. Ibid., Articles 9(4) and (9), and 13(3); See further Articles 9 and 13. Ibid., Preamble, Rec 6; See further Preamble. Ibid., Article 11(1); See further Article 11. Ibid., Preamble rec 5; See further Preamble. Ibid., Article 11(1). See further Article 11. See further Article 6. Paris Agreement (n 1) Article 4(2). See further Article 4. Ibid., Article 6. See further Article 6.

51

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 19 /

Date: 17/2

JOBNAME: Law Prac - Van Calst PAGE: 20 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

e. The role of Party groupings in climate change negotiations and future operationalisation of the Paris Agreement 1.42 The international climate change law regime clearly recognises several groups or classes of Parties that regularly act in unison at the annual climate change meetings of the Parties.125 As Bodansky, Brunnée, and Rajamani explain, ‘negotiating groups play a key role’ in the ‘process of gradually streamlining the text and delivering Paris Agreement’: These groups allow individual states to reinforce and leverage their negotiating positions through alliances. At the same time, they help ‘bundle’ parties’ priorities and gradually reduce the range of positions that the negotiating process must manage. Some countries negotiate primarily through one or more of these groups, others such as the US, China, and India negotiate both through these groups as well as independently.126

1.43 What is more, ‘over the last two decades, the number of negotiating groups has proliferated’, often with ‘overlapping membership between the various groups’. These include the five regional groups recognised by the UN: (i) African States; (ii) Asian States (incl Japan); (iii) Eastern European States; (iv) Latin American and the Caribbean States; and (v) Western European and Other States.127 Other groups include the G77 group of Developing country Parties,128 the African Group of Negotiators,129 the Arab States,130 the Environmental

125 126 127

128

See UNFCCC, ‘Parties and Non-Party Stakeholders’ . Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford University Press 2017) 81. Other States include Australia, Canada, Iceland, New Zealand, Norway, Switzerland and the United States of America. As noted by the UNFCCC, these five regional groups ‘are not usually used to present the substantive interests of Parties and several other groupings are more important for climate negotiations’. See UNFCCC, ‘Party Groupings’ https:// unfccc.int/process-and-meetings/parties-non-party-stakeholders/parties/party-groupings. See e.g., UNFCCC ibid., where it is pointed out that the G77 was: founded in 1964 in the context of the UN Conference on Trade and Development (UNCTAD) and now functions throughout the UN system. As at May 2014, there are 133 members in the Group. The Party holding the Chair of the G-77 in New York (which rotates every year) often speaks for the G-77 and China as a whole. However, because the G-77 and China is a diverse group with differing interests on climate change issues, individual developing country Parties also intervene in debates, as do groups within the G-77, such as the African Group, the Small Island Developing States and the group of Least Developed Countries.

129

130

UNFCCC, ‘Party Groupings’ (n 127) where it is noted that the African Group of Negotiators (African Group) was established at COP1 in Berlin, Germany in 1995 as an alliance of African member states that represents the interests of the region in the international climate change negotiations, with a common and unified voice. The Group comprises 54 Parties. The African Group is active in and supportive to all aspects of the climate change negotiating process, for instance regarding vulnerability, mitigation and adaptation to climate change. UNFCCC, ibid., where it is noted that the Arab States is comprised of 22 member states namely Algeria, Bahrain, Comoros, Djibouti, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Mauritania, Oman, Palestine, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen.

52

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 20 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 21 SESS: 5 OUTPUT: Wed Mar 3 13:47:59 2021

D. TERMS AND DEFINITIONS IN ARTICLE 1 OF THE PARIS AGREEMENT

Integrity Group (EIG),131 the European Union,132 the LDCs,133 the Alliance of Small island States (AOSIS), which includes the group of SIDS,134 and the Umbrella Group.135 Given the protracted, arduous nature of negotiating treaties on complex matters such as 1.44 climate change, these and other groups played a vital role in progressing the development and ultimate conclusion of the Paris Agreement, and continue to do so in respect of its operationalisation. Indeed, as Bodansky, Brunnée, and Rajamani point out: The relationships fostered in these groups, both at the negotiator and ministerial level, can prove critical at key moments in the negotiations. For example, the ‘high ambition coalition’, a ministerial coalition that emerged organically from the Cartagena Dialogue in the lead-up to the Paris conference, strengthened the hand of the French Presidency in delivering the Paris Agreement, in particular the reference to the ‘1.5° C’ aspirational long-term temperature goal. Likewise, ‘[i]nter-sessional discussions between particular countries and groups of countries can also play a crucial role in advancing the climate negotiations, especially given the cumbersome nature of the consensus process. For example, … the bilateral, off-line discussions between China and the US, leading to their November 2014 Joint Announcement on Climate Change, illustrate the momentum that can be provided when key parties find common ground.136

131 132

133

134

135

136

UNFCCC, ibid., where it is noted that the Environmental Integrity Group (EIG), formed in 2000, comprises Mexico, Liechtenstein, Monaco, the Republic of Korea, Switzerland and Georgia. UNFCCC, ibid., where it is noted that the 28 members of the European Union meet in private to agree on common negotiating positions. The Party that holds the EU Presidency – a position that rotates every six months – then speaks for the European Union and its 28 Member States. As a regional economic integration organization, the European Union itself can be, and is, a Party to the Convention. However, it does not have a separate vote from its members. Croatia is the latest country to join the European Union in 2013. As of the end of January 2020, the UK will be the first country to leave the EU. UNFCCC, ibid., where it is noted that the 48 Parties defined as LDCs by the UN regularly work together in the wider UN system. They have become increasingly active in the climate change process, often working together to defend their particular interests, for example with regard to vulnerability and adaptation to climate change. Previously there were 49 Parties in the LDCs Group. However, in 2014 Samoa graduated from the LDCs. UNFCCC, ibid., it is noted that the SIDS is a coalition of some 40 low-lying islands, most of which are members of the G-77 that are particularly vulnerable to sea-level rise. SIDS Parties are united by the threat that climate change poses to their survival and frequently adopt a common stance in negotiations. They were the first to propose a draft text during the Kyoto Protocol negotiations calling for cuts in carbon dioxide emissions of 20 per cent from 1990 levels by 2005. UNFCCC, ibid., where it is noted that the Umbrella Group is a coalition of Parties which formed following the adoption of the Kyoto Protocol. The Group is made up of Australia, Belarus, Canada, Iceland, Israel, Japan, New Zealand, Kazakhstan, Norway, the Russian Federation, Ukraine and the United States. Several other groups also work together in the climate change process, including countries from the Organization of Petroleum Exporting Countries (OPEC), a group of countries of Central Asia, Caucasus, Albania and Moldova (CACAM), the Cartagena Dialogue, the Independent Alliance of Latin America and the Caribbean (AILAC), the BASIC Group (Brazil, South Africa, China India), the Like Minded Group, the Coalition for Rainforest Nations and the Bolivarian Alliance for the Peoples of our America (ALBA in Spanish). Bodansky et al (n 54) 82.

53

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 21 /

Date: 14/1

JOBNAME: Law Prac - Van Calst PAGE: 22 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

E. INCORPORATION OF TERMS AND DEFINITIONS FROM THE CONVENTION 1. Additional terms and definitions in Article 1’s chapeau 1.45 Further to the preceding discussion, the chapeau of Article 1 of the Paris Agreement expressly incorporates all of the nine terms and definitions contained in Article 1 of the Convention. 1.46 With reference to the Paris Agreement (see Table 1.4 below), noted by the addition of ‘Article 1 Chapeau’ to the numbered paragraphs of the original provision from the Convention, these terms and definitions are expressed as follows: Article 1 Chapeau (1) ‘Adverse effects of climate change’ means changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare. Article 1 Chapeau (2) ‘Climate change’ means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods. Article 1 Chapeau (3) ‘Climate system’ means the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions. Article 1 Chapeau (4) ‘Emissions’ means the release of greenhouse gases and/or their precursors into the atmosphere over a specified area and period of time. Article 1 Chapeau (5) ‘Greenhouse gases’ means those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation. Article 1 Chapeau (6) ‘Regional economic integration organization’ means an organisation constituted by sovereign States of a given region which has competence in respect of matters governed by this Convention or its protocols and has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to the instruments concerned. Article 1 Chapeau (7) ‘Reservoir’ means a component or components of the climate system where a greenhouse gas or a precursor of a greenhouse gas is stored. Article 1 Chapeau (8) ‘Sink’ means any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere. Article 1 Chapeau (9) ‘Source’ means any process or activity which releases a greenhouse gas, an aerosol or a precursor of a greenhouse gas into the atmosphere. 1.47 Given their practical utility in interpreting and implementing Parties’ climate change obligations, these additional terms and definitions help scope the substantive and operative effect of the Paris Agreement. As such, the ensuing rights and obligations of Parties to the Paris Agreement must be read in light of all such extra terms and definitions. Moreover, the majority of these terms and definitions are grounded in science. Consequently, the pivotal role of the IPCC in providing the requisite scientific data that underpins the international climate change law regime is briefly reviewed next. The discussion then turns to consider these additional terms and definitions in greater detail. 54

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 22 /

Date: 16/2

JOBNAME: Law Prac - Van Calst PAGE: 23 SESS: 8 OUTPUT: Wed Mar 3 13:47:59 2021

E. INCORPORATION OF TERMS AND DEFINITIONS FROM THE CONVENTION

2. The pivotal role of IPCC research and reports in framing Parties’ treaty obligations As illustrated in the ensuing discussions, many of the terms ‘defined’ in Article 1 of the 1.48 Convention are, on a literal reading of the words, vague and imprecise. Many of them contain further terms and wordings that require the reader to draw on extraneous materials. With respect to the special meanings articulated in the accompanying definitions, some terms applied in the Paris Agreement have specific scientific or technical meanings. Several such terms may be understood more by reference to the Paris Agreement’s context, object and purpose. Others are more akin to the second type of special meaning terms mentioned above. In most cases, the definitional content of the various terms is buttressed by the continually updated scientific reporting of the IPCC. This accords with the Paris Agreement’s Preambular recognition of the necessity for effective, progressive responses to the ‘urgent threat of climate change’ to be based on the ‘best available scientific knowledge’.137 Since its establishment in 1988,138 the IPCC has been an integral source of vital information to 1.49 inform and assist the International Community’s response to climate change. The IPCC’s on-going research has expanded and increased international understanding of the global climate system, as well as the sources of human activities that are adversely impacting all parts of it in one way or another. The importance of this unceasing work is clearly enunciated in the Stern Review: The scientific evidence on the causes and future paths of climate change is strengthening all the time. In particular, scientists are now able to attach probabilities to the temperature outcomes and impacts on the natural environment associated with different levels of stabilisation of greenhouse gases in the atmosphere. Scientists also now understand much more about the potential for dynamic feedbacks that have, in previous times of climate change, strongly amplified the underlying physical processes.139

Since its first report, the 1990 First IPCC Assessment Report, the IPCC’s research and regular reports have played an important role in helping to frame international climate change negotiations.140 The FAR ‘played a decisive role’ in the Convention’s creation. Similarly, the content of the 1995 Second Assessment Report in 1995 ‘provided important material for governments to draw from in the run-up to adoption of the Kyoto Protocol in 1997’.141 Furthermore, while the 2001 Third Assessment Report ‘focused attention on the impacts of climate change and the need for adaptation’,142 the Fourth Assessment Report in 2007 ‘laid the

137 138

139 140 141 142

Paris Agreement (n 1) Preamble, Rec 4. See further Preamble. The IPCC was jointly established by UNEP and the WMO in a 1988 Memorandum of Understanding and endorsed by the UN General Assembly, Resolution 43/53, Protection of global climate for present and future generations of mankind (6 December 1988) UN Doc A/RES/43/53. N Stern, The Stern Review: The Economics of Climate Change (Cambridge University Press 2007) Executive Summary, 3. IPCC, First Assessment Report Overview and Policymaker Summaries and 1992 IPCC Supplement (1990) . IPCC, Climate Change 1995: IPCC Second Assessment Report . IPCC, Climate Change 2001: Synthesis Report. A Contribution of Working Groups I, II, and III to the Third Assessment Report of the Intergovernmental Panel on Climate Change .

55

Columns Design XML Ltd

/

Job: VanCalster-The_Paris_Agreement_on_Climate_Change

/

Division: 01-Art1final

/Pg. Position: 23 /

Date: 18/1

JOBNAME: Law Prac - Van Calst PAGE: 24 SESS: 10 OUTPUT: Wed Mar 3 13:47:59 2021

ARTICLE 1 SCOPE OF OBLIGATIONS: TERMS AND DEFINITIONS

groundwork for a post-Kyoto agreement, focusing on limiting warming to 2°C’.143 Finalisation of the Fifth Assessment Report (AR5 Synthesis Report) in 2014 facilitated the necessary ‘scientific input into the Paris Agreement’.144 Currently, the IPCC is engaged in its Sixth Assessment cycle, which is expected to be completed in 2022 with the Sixth Assessment Report (AR6 Synthesis Report). This will align the IPCC’s reporting with the first global stocktake under the Paris Agreement. As part of this assessment cycle, the IPCC has already published several special reports: (i) Global Warming of 1.5°C;145 (ii) 2019 Refinement – an update to the 2006 IPCC Guidelines on National Greenhouse Gas Inventories;146 (iii) Special Report on Climate Change and Land;147 and (iv) Special Report on the Ocean and Cryosphere in a Changing Climate.148 As relevant, various reports of the IPCC are drawn on in the following sections to provide contemporary interpretations of the terms set out in the Convention and illustrate the continual relevance of scientific research and reports on the advancement of the international climate change regime.

F. APPLYING THE CONVENTION’S TERMS AND DEFINITIONS IN THE PARIS AGREEMENT 1. Article 1 chapeau (1): ‘Adverse effects of climate change’ 1.50 The first paragraph from Article 1 of the Convention defines the term ‘adverse effects of climate change’ by reference to physical changes that have ‘significant deleterious effects’ on ecosystems, socio-economic systems, and/or humans well-being. a. Physical changes and significant deleterious effects 1.51 Since the Convention’s conclusion and adoption in 1992, both scientific data and experience have increased the International Community’s awareness and knowledge of the harmful environmental, economic, and harmful ramifications of climate change. As succinctly stated at the outset of the 2006 Stern Report: ‘The scientific evidence is now overwhelming: climate change presents very serious global risks, and it demands an urgent global response’;149 ‘Climate change threatens the basic elements of life for people around the world – access to water, food production, health, and use of land and the environment’.150 More recently, in the AR5 Synthesis Report, the IPCC stated clearly that based on scientific research, ‘changes in

143 144 145 146

147 148 149 150

IPCC, Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change . IPCC, Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2014) . IPCC, Global Warming of 1.5°C (n 65). IPCC, 2019 Refinement to the 2006 IPCC Guidelines for National Greenhouse Gas Inventories, adopted and accepted during the IPCC’s 49th session (May 2019) Decision – IPCC-XLIX-9 – Adoption and Acceptance of 2019 refinement . IPCC, Climate Change and Land: an IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems (IPCC 2020) . IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate (IPCC, 2019)