Addressing international aviation and maritime transport in new climate agreement

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 14/09/2015

1. What will happen to Article 2.2 of the Kyoto Protocol, post-Paris?

2. Assuming the Paris Agreement does contain a provision on international transport, how will the Agreement interact with other legal treaties, such as the Chicago Convention, which guarantees equal treatment?

Advice:

1. Status of Article 2.2 KP post-Paris

Although what will happen to article 2.2, Kyoto Protocol is difficult to predict, certain general points can be made.

Whether there is an explicit linkage to / obligations on aviation and maritime transport will depend on the final wording of the new agreement.

Article 2.2 Kyoto Protocol will lapse as a matter of treaty law when/if the Kyoto Protocol is terminated (which itself raises questions as to how and whether the parties will deal with this issue – rather than simply putting a new agreement in place, without recognising the ongoing existence of the Protocol (this seems to me unlikely)).

Termination may occur:

  • in accordance with the terms of the treaty in question (article 54(a) Vienna Convention on the Law of Treaties) In this case, the Kyoto Protocol has no express provision on termination, and its rules on party withdrawal would not apply for the termination of the treaty itself;
  • through subsequent consent of all the parties (article 54(b) VCLT). I do not think the parties will rely on this ground, though this arguably could be expressed through a COP decision or other instrument;
  • through termination or suspension of the operation of a treaty implied by conclusion of a later treaty (article 59 VCLT). This seems to me most likely and thus I set out the provision below:

Article 59: Termination or suspension of the operation of a treaty implied by conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and:

(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.

2. The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Even if the Protocol does formally lapse, the parties may (most likely through COP decisions) provide for certain transitional arrangements between the present Kyoto rules and whatever regime will replace it (recognising that non-parties to the Protocol, ie United States, will be reluctant to want to see wholesale linkage).

Of course, Article 2.2 encouraged the parties to work respectively through the IMO and ICAO, which through their own mandate and work programme are likely to keep climate change on their agendas (even if progress has been slow, and thus article 2.2 arguably imposed rather limited “best effort” obligations on parties).

In summary, there seems to be a disjunction here between the inchoate objective in Article 2.2 (to work towards reduction commitments in these areas) and Article 2.2 itself (which had limited direct effect). Loss of Article 2.2 itself would not be unduly problematic IF it was replaced with a clearer – and perhaps stronger – commitment on tackling aviation and bunker fuels. It is also worth noting that much has happened unilaterally on aviation, especially in Europe, since the negotiation of the Kyoto Protocol, and any new provision would have to recognise the problems of unilateral approaches, for instance.

2. Assuming the Paris Agreement does contain a provision on international transport, how will the Agreement interact with other legal treaties, such as the Chicago Convention, which guarantees equal treatment?

As regards the issue of hierarchy, I would suggest that the previous LRI brief on Bunkers – hierarchy of UNFCCC, IMO and ICAO – provides a good overview of the issues – with certain updates:

  • the general rules on hierarchy and relationship between regimes will remain broadly similar, though if the final agreement is something less than a treaty (i.e., a series of COP decisions for instance), this would significantly weaken the argument about parity of different treaty rules (other than norms of jus cogens). In this instance, the brief’s discussion on article 30 of the Vienna Convention on the Law of Treaties would not as clearly apply as if it was a treaty that had been negotiated.
  • the present negotiations on trade and investment which are occurring outside the World Trade Organisation but regionally (the TTIP for instance) may have important consequences for future negotiation on these issues (as the question rightfully highlights equal treatment) – but as these negotiations are taking place regionally, there is a clear risk of increased fragmentation in legal rules.