If language similar to that proposed by the US is included in the Paris Agreement in connection with Loss & Damage (and assuming the Agreement does not permit any reservations – see Article 24 of the Draft Agreement), could vulnerable countries limit the effect of such provision by making an interpretative declaration stating that acceptance of the Paris Agreement does not affect rights arising under general international law (similar to one made by various island states when the Convention was adopted)?

If so, what sort of language should vulnerable countries use and when should such an interpretative declaration made?

Introduction: The Issues Posed

I am asked to advise on the following issues:

• If a provision in connection with L&D similar to that proposed by the USA were to be included in the Paris Agreement, could vulnerable countries limit its effect by making interpretative declarations stating that acceptance of the Agreement does not affect those States’ rights under general international law?
• If the answer to question (a) is yes, how should such a declaration be worded and when should it be made?

Interpretative Declarations and Their Legal Effects

An interpretative declaration is ‘a unilateral declaration, however phrased or named, made by a State or by an international organization whereby that State or that organization purports to clarify the meaning or scope attributed by the declarant to the treaty or to certain of its provisions.’[1] An interpretative declaration is therefore distinguished from a reservation to a treaty in that the former does not (in distinction from the latter) purport to exclude or to modify the legal effects of any provision of the treaty in its application to the reserving State.[2]   At present it appears that reservations will not be permitted to the Paris Agreement.

Interpretative declarations are not binding (save to the extent that they might found an estoppel against a declarant). They simply state the declarant’s opinion as to what the treaty, or certain of its provisions, means.  This is not to say, however, that interpretative declarations cannot be legally significant in situations where the interpretation of a provision of a treaty a matter of dispute between its parties (or some of them).

It might be argued that if an interpretative declaration made by one or a number of State parties to a treaty is not contested, at the time of its making, by other parties to the treaty, they should be seen as having tacitly accepted it. It will be recalled that  the general rule of treaty interpretation, as set out in Article 31(1) of the Vienna Convention on the Law of Treaties, is that ‘[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’, and that Article 31(2) of the Convention provides that ‘[t]he context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes … b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.’

It is probably going too far, however, to say that silence in this context necessarily means acquiescence. The contrast can be made to reservations, which are legally binding, and which therefore do require State parties expressly to object to them if they are to avoid being seen as having tacitly accepted them.[3]

So interpretative declarations are not a panacea, and they cannot modify the text of a treaty, but they can be taken into account to interpret its provisions. Put simply, they can serve to support parties’ positions as the meaning of a particular treaty provision, through showing that their preferred interpretation is one they have consistently and publically maintained, and to which (it is hoped) other States have not objected.

Whether an Interpretative Declaration is Appropriate in This Case

The question is therefore whether the USA’s proposed text is sufficiently broad as to cover parties (already-existing) rights under general international law. My opinion would be that it does not.  The relevant provision refers to implementation of the Warsaw International Mechanism and should not be read more widely.  The text states that: ‘The Parties commit to continued implementation of the Warsaw International Mechanism under the Convention, in accordance with decisions of the Conference of the Parties and on a cooperative basis that does not involve liability and compensation.’  It is only the ‘continued implementation of the Warsaw International Mechanism … that does not involve liability and compensation’. At the least, the provision is ambiguous.

An interpretative declaration stating that acceptance of the Paris Agreement does not affect rights arising under general international law would therefore be a clarification of the scope of the proposed provision, not a ‘disguised reservation’ attempting surreptitiously to exclude or modify its legal effect.[4] The extent to which the making of such interpretative declarations could serve to ‘limits its effect’ cannot, however, be definitively answered in the abstract.  It would depend on a number of factors, including the Agreement’s legislative history, the number of parties making such declarations and the responses (or lack thereof) of other parties.  But it would at the least buttress the declarants’ position as to what the provision means.  And in addition, were any dispute concerning the legal responsibility for climate change be subject to judicial process, the declaration would be something to taken into account when interpreting the treaty provision.

How Any Interpretative Declaration Should be Worded

The issue of the wording of such an interpretative declaration has already been examined in the Legal Response Initiative’s Briefing Paper 3/15: Possible declarations in connection with the 2015 climate agreement. It will be recalled that on signature of the UNFCC, Fiji stated that:

The Government of Fiji declares its understanding that signature of the Convention shall, in no way, constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change, and that no provisions in the Convention can be interpreted as derogating from the principles of general international law.

Declarations in similar terms were made, either on signature or ratification, by Kiribati, Nauru and Papua New Guinea.  This wording would seem apt for any interpretative declaration made in relation to the Paris Agreement, although for avoidance of doubt it would be preferable to  use the word ‘rules’ or the phrase ‘rules and principles’ rather than the term ‘principles’.  And there is something to be said maintaining a consistent position on the issue.

The ‘soft’ wording put forward in Briefing Paper 3/15 to safeguard interests related to loss and damage from the adverse impacts of climate change is similarly-worded, stating that:

The Government of XY declares that no provisions of the Paris Agreement shall be interpreted as derogating from the principles of general international law, including but not limited to, the rights and obligations concerning state responsibility for the adverse effects of climate change.

The more-strongly-worded draft states that:

The Government of XY declares its understanding that the general rules of international law shall continue to apply between the Parties to the Agreement; and that Parties which have failed to control and reduce greenhouse gas emissions under their jurisdiction or control with due diligence shall remain responsible for the damage causes by climate change as a result of these emissions.

Again, either draft seems satisfactory, although the softly-worded version might profitably be amended to state that: ‘The Government of XY declares its understanding that …’[5]  This would help to avoid criticism that such an interpretative declaration was, in fact, a disguised declaration.  In addition, the words ‘shall be interpreted as derogating’ seem largely superfluous.  It might be better simply to say ‘derogate’.  And again, the term ‘principles’ might usefully be changed to ‘rules’ or (better) ‘rules and principles’. [6]  As for the more-strongly-worded version, the phrase ‘the general rules of international law’ might profitably be changed to ‘the rules [and principles] of general international law’. [7]

When Any Interpretative Declaration Should be Made

As for the timing of any interpretative declarations, there are three main options: on adoption of the text of the treaty, upon signature (if at a different time) and upon ratification. Although interpretative declarations may be made any time, however, best practice suggests that they should be made at the same times as are reservations, that is, upon signature or ratification.[8]  Such an approach should also serve to minimize accusations of inconsistency and special pleading.  Whether, as with reservations,[9] interpretative declarations made upon signature need to be confirmed on ratification is less clear and practice suggests not.  As regards the UNFCCC, Fiji, Kiribati and Nauru made their declarations upon signature, whilst Papua New Guinea made its upon ratification of the treaty.

Conclusions and Summary of Advice

The following points can thus be made.

• If a provision in connection with L&D similar to that proposed by the USA were to be included in the Paris Agreement, vulnerable countries could seek to limit its effect by making interpretative declarations stating that acceptance of the Agreement does not affect those States’ rights under general international law.
• Although the legal effects of any particular interpretative declaration are difficult to determine in advance, the least that can be said is that such declarations do no harm. And they should serve to buttress the declarants’ postion, as they demonstrate consistency and resolve.
• Although minor amendments can be proposed, either the original declarations made by Fiji et al with regard to the UNFCCC or the two options proposed by the LRI in its Briefing Paper 3/15 are apt to make the points which vulnerable countries seek to make concerning the preservation of their rights under general international law.
• The appropriate time for such States to make such declarations would be upon signature and/or ratification of the Paris Agreement.

[1] International Law Commission, Third report on reservations to treaties by Mr. Alain Pellet, Special Rapporteur, UN Doc. A/CN.4/491/Add.4, para. 361.

[2] See Article 2(1)(d), Vienna Convention on the Law of Treaties, 1155 UNTS 331 (1969).

[3] See Article 20, ibid.

[4] Article 2(1)(d) VCLT makes it clear that it is not what a statement is called but its purported effect that determines whether it is a reservation or not: a reservation is a ‘unilateral statement, however phrased or named … [which] purports to exclude or to modify the legal effect of certain provisions of the treaty’ (emphasis added).

[5] Additions underlined.

[6] The revised provision would thus state that: ‘The Government of XY declares its understanding that no provisions of the Paris Agreement derogate from the rules and principles of general international law, including but not limited to, the rights and obligations concerning state responsibility for the adverse effects of climate change.’

[7] So that the provision would state that: ‘The Government of XY declares its understanding that the rules and principles of general international law shall continue to apply between the Parties to the Agreement; and that Parties which have failed to control and reduce greenhouse gas emissions under their jurisdiction or control with due diligence shall remain responsible for the damage caused by climate change as a result of these emissions.

[8] Article 19 VCLT provides that:’ A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless …’ Article 23(2) states, inter alia, that: ‘If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty.’

[9] See Article 23(2) VCLT, ibid.