During the SBSTA discussions on the technology framework in Bonn in May 2018, Norway requested that headings with “actions” in the informal document SBSTA 48 agenda item 5 “Updated draft of the technology framework under Article 10, paragraph 4, of the Paris Agreement” (most recent version dated 8 May 2018) be changed to “activities” to allegedly reflect the terminology used in the Paris Agreement. What, if any, are the legal implications of using one term instead of the other in this context?

Advice:

1. General rules of interpretation

International agreements are generally interpreted in accordance with Article 31 of the Vienna Convention on the Law of Treaties 1969 (VCLT). Article 31 paragraph 1 states:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

For the purpose of the Paris Agreement “action” or “activity” are given no specific meaning. Looking at the Oxford English Dictionary (third edition, November 2010) to try and establish an “ordinary meaning”, both terms have a number of potential meanings, including the following:

Action: something that is done, or the process or action of doing; and

Activity: something which a person, animal, or group chooses to do; an occupation, a pursuit.

2. Practice under the UN Framework Convention on Climate Change

Looking to the usage of these terms within the PA, both terms are used in a number of places, although the use of “action” is more common.  The typical context in which “action” is used is illustrated in the chapeau, with the PA talking about “actions” to be taken by the parties to address climate change or in order to further the purpose of the PA (emphasis added):

“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 people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,”

Article 10 of the PA on technology transfer uses the term “action” repeatedly in a similar manner. Article 10 provides as follows (emphasis added):

“1. Parties share a long-term vision on the importance of fully realizing technology development and transfer in order to improve resilience to climate change and to reduce greenhouse gas emissions.

2. Parties, noting the importance of technology for the implementation of mitigation and adaptation actions under this Agreement and recognizing existing technology deployment and dissemination efforts, shall strengthen cooperative action on technology development and transfer.

3. The Technology Mechanism established under the Convention shall serve this Agreement.

4. A technology framework is hereby established to provide overarching guidance to the work of the Technology Mechanism in promoting and facilitating enhanced action on technology development and transfer in order to support the implementation of this Agreement, in pursuit of the long-term vision referred to in paragraph 1 of this Article.

5. Accelerating, encouraging and enabling innovation is critical for an effective, longterm global response to climate change and promoting economic growth and sustainable development. Such effort shall be, as appropriate, supported, including by the Technology Mechanism and, 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.

6. Support, including financial support, shall be provided to developing country Parties for the implementation of this Article, including for strengthening cooperative action on technology development and transfer at different stages of the technology cycle, with a view to achieving a balance between support for mitigation and adaptation. The global stocktake referred to in Article 14 shall take into account available information on efforts related to support on technology development and transfer for developing country Parties.”

Each of these references to “action” can be seen as referring to actions under the PA, while not identifying the specific actions to be undertaken.

While Art.10 PA does not use “activity”, the COP decision adopting the PA (CP.1/21) in paragraph 69 states as follows (emphasis added):

“Decides that the Technology Executive Committee and the Climate Technology Centre and Network shall report to the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, through the subsidiary bodies, on their activities to support the implementation of the Agreement;”

The use of the term “activities” is reflected in the conclusions of SBSTA 46 and 47. The former, for example, states (emphasis added):

“34. The SBSTA also noted that the ongoing work of the Technology Executive Committee (TEC) and the Climate Technology Centre and Network (CTCN), including their work with relevant stakeholders, may be relevant for the elaboration of the technology framework and in facilitating enhanced actions on technology development and transfer. In this context, it invited the TEC and the CTCN to provide at SBSTA 47 (November 2017) information on the following:

(a) Activities that have been or are currently being undertaken, which are relevant for the implementation of the Paris Agreement, taking into account the key themes and their relation to the technology cycle;

(b) Additional activities that the TEC and the CTCN, subject to available resources, could undertake within their respective mandates and functions, individually or jointly, to implement the Paris Agreement.” (See: http://unfccc.int/ttclear/misc_/StaticFiles/gnwoerk_static/NEG_key_doc/e758093253994c29bd1d6d522c1056dd/97d79ec92af54a079c31e7f1eb362c35.pdf)

Article 11 paragraphs 2 and 5 of the PA provide a good example of the use under the PA of the term “activities” (emphasis added):

“2. Capacity-building should be country-driven, based on and responsive to national needs, and foster country ownership of Parties, in particular, for developing country Parties, including at the national, subnational and local levels. Capacity-building should be guided by lessons learned, including those from capacity-building activities under the Convention, and should be an effective, iterative process that is participatory, cross-cutting and gender responsive…”

“5. Capacity-building activities shall be enhanced through appropriate institutional arrangements to support the implementation of this Agreement, including the appropriate institutional arrangements established under the Convention that serve this Agreement. The Conference of the Parties serving as the meeting of the Parties to this Agreement shall, at its first session, consider and adopt a decision on the initial institutional arrangements for capacity-building.”

In these paragraphs, use of “activities” could be viewed as indicating a reference to developing specific “capacity building activities”, in furtherance of the more general “actions” to be taken under the PA.

Similar usage of the term “activities” (to implement the “actions”) is given in Article 10(e) of the Kyoto Protocol, which discusses the development of suitable modalities for implementing “activities” through the relevant bodies of the Convention.

However, this meaning is not entirely clear.  While the Kyoto Protocol also favours the use of “action” over “activity” in the main text, as noted for the PA, the distinction between these terms is potentially less clear, for example Article 9 of the Kyoto Protocol refers to “actions” to be taken by the Conference of the Parties.

3. Preliminary findings

The Paris Agreement itself does not use the term “activities” in Article 10. In this respect the reasoning provided by Norway is unclear. Only paragraph 69 of the COP decision adopting the PA makes a reference to “activities” in connection with the reporting obligations of the TEC and CTCN on their activities to support the implementation of the Agreement. In this limited context – the reporting back of TEC and CTCN – the use of “activities” may be arguably more appropriate than “action”.

Otherwise, however, Art.10 specifically refers to “action” and to the extent possible the subsequent negotiations of the parties to implement and operationalize the governing instrument should reflect the correct terminology. The introduction of other language may reflect a certain party position and/or generate a degree of uncertainty.

However, based on the UNFCCC practice in this context, there are no clear legal implications if the technology framework headings are changed from “actions” to “activities”. No clear distinction in the context of the PA and Technology Framework can be drawn based on the ordinary definition of these two words. While it is possible that when translated into other official languages the use of ‘action’ and ‘activity’ have further distinctions, we have not uncovered any evidence of this.

In general “action” appears to refer to something more general, while “activities” are more specific. Based on usage under the UNFCCC and relevant past practice it would be possible to take a view that:

“Action” should be used within the PA in a broader context, of actions that should be taken by the parties to further the PA; and

“Activities” to indicate at a more granular level the specific actions that will be taken as part of the operation of the institutions/modalities of the PA (including under the Technology Framework), in order to further such actions.