Legal and procedural remedies in cases of non-compliance with Paris 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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 01/08/2017

What procedural remedies are available to Parties who assert that another party does not act in line with its commitments under the Paris Agreement?

Advice:

There have been indications that the US might revise its nationally determined contribution (NDC) under the Paris Agreement downwards. Subsequently, the US president announced the country’s withdrawal from the Paris Agreement. For the time being, this has mainly been a political declaration which has not been followed up by any official government action (such as a written notification or state conduct). However, it may lead to further official steps (e.g. proposal of a new agenda item) or the failure to meet commitments (e.g. regarding expected communications or financial contributions) that other parties may perceive as non-compliance with the agreement reached in Paris.

In the following, we have identified and considered a number of procedural responses and potential courses of action for this purpose. The scope and nature of substantive legal obligations imposed by the Paris Agreement or wider public international law are matters outside the scope of this memorandum.

  1. Mechanisms under the Paris Agreement and the UNFCCC

A party which asserts that another party is acting in non-compliance with the Paris Agreement could seek to utilise the dispute settlement provisions in the Paris Agreement itself.

Article 24 of the Paris Agreement states that the dispute settlement clause in Article 14 of the UNFCCC is applicable mutatis mutandis to the Paris Agreement. This means that the options for dispute resolution contained in Article 14 of the UNFCCC are also available for use for disputes under the Paris Agreement, namely: negotiation or any other peaceful means of dispute resolution followed by compulsory conciliation; and recourse to the ICJ or arbitration, provided that both parties to the dispute have made a declaration accepting either of these two methods of resolving a dispute under the UNFCCC.

To date, only the following States have made such declarations under Article 14(2): The Netherlands accepting both ICJ and arbitration; the Solomon Islands accepting arbitration; and Tuvalu accepting arbitration. A further obstacle to the use of this latter dispute settlement mechanism is that the procedural rules for arbitration envisaged in Article 14(2) have yet to be adopted by the COP. A working document on the matter from 1991 exists, which provided for ad hoc arbitration between parties to a dispute. However, it was never adopted by the COP.[1] As a result, there is no method for constituting an arbitral tribunal (or reference to an appointing authority who could facilitate an appointment).

Since very few States have accepted compulsory jurisdiction of the ICJ or compulsory arbitration specifically within the context of the UNFCCC[2] the only practically available dispute settlement option is further negotiations possibly leading to conciliation.

a) Negotiation and Conciliation

Article 14(1) of the UNFCCC, as transposed into the Paris Agreement by Article 24, provides that in the event of a dispute between the parties concerning the interpretation or application of the Paris Agreement, the parties “shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.” In this respect, a party which is in dispute with another party about its compliance under the Paris Agreement could approach the other party to resolve the dispute through negotiation or other peaceful means.

If such negotiation or other peaceful means proves unsuccessful, recourse to compulsory conciliation is provided under Article 14(5) of the UNFCCC. In order to benefit from this conciliation procedure, one party must have first notified the other party that a dispute exists between them. If, after 12 months following the date of this notification, the parties have not been able to resolve their dispute through negotiation or other peaceful means of dispute resolution under Article 14(1), then a party can request for the dispute to be submitted to conciliation.

Conciliation combines fact finding and mediation. A conciliation commission usually acts as a mediator between both sides, proposing solutions that are mutually acceptable to the parties to the dispute. A conciliation commission usually has the power to issue a recommendatory award.  Such an award carries no legal binding weight, but parties can declare unilaterally that they will adopt the recommendation.

Article 14(6) provides that “a conciliation commission shall be created upon the request of one of the parties to the dispute” and that the “commission shall be comprised of an equal number of members appointed by each party and a chairman chosen jointly by the members appointed by each party.” “Shall” in this context indicates that a party to the dispute must appoint a commission member. However, there are no provisions on how to proceed if one of the parties refuses to do so and to further engage with the process.

Article 14(7) of the UNFCCC envisages that additional procedures relating to conciliation shall be adopted by the COP in an annex. However, no such procedures have been adopted to date. In practice this may present a major obstacle to parties seeking to use this mechanism to promote compliance with the Paris Agreement. A party which seeks to submit a dispute to conciliation should, therefore, also push for such conciliation procedures to be adopted by the COP “as soon as practicable”.

The last sentence of Article 14(6) further provides that the conciliation commission shall render a recommendatory award which the parties are to “consider in good faith.” While it would not be legally binding, such an award could, in theory, clarify the interpretation of the relevant provisions of the Paris Agreement and apply pressure on a party to adjust its conduct. Overall, the efficacy of the conciliation process will be determined to a large extent by the willingness of the allegedly non-compliant party to participate in the process and abide voluntarily by the final outcome.

b) Compliance mechanism under Article 15 of the Paris Agreement

Article 15 of the Paris Agreement envisages a mechanism to facilitate implementation of and promote compliance with the provisions of the Paris Agreement. It provides that this mechanism “shall consist of a committee that is expert-based and facilitative in nature and function.” To date, this committee has not been established and its exact competence and functions have yet to be decided. These will need to be agreed by the COP at its future meetings.

Once the committee is established, Article 15(2) further provides that it will “be non-adversarial and non-punitive”. So it is still unclear if and to what extent the committee will assist States with their own compliance, monitor compliance with the Paris Agreement on the whole, or if complaints could be submitted to it regarding another State’s non-compliance. It could, however, have a role akin to a conciliation commission in breaking deadlock between the parties who disagree over the compliance requirements under the Paris Agreement.

Once this compliance committee is established, further analysis of its competences will be required to assess how it may be used in attempting to clarify parties’ obligations under the Paris Agreement. Given that this mechanism still requires development, it is unlikely to be useful at this early stage.

c) The adoption of annexes or guidelines by the COP to assist in the resolution of a dispute

As discussed above, in order for conciliation, arbitration or the compliance mechanism to be viable mechanisms for the resolution of a dispute over whether or not a party is in compliance with the Paris Agreement, annexes to the Paris Agreement will need to be adopted. Article 23 of the Paris Agreement provides that the provisions of Article 16 of the UNFCCC on the adoption and amendment of annexes shall apply mutatis mutandis to the Paris Agreement.

d) COP decision

Another possible response to an official act or declaration that other parties perceive as not in line with the Paris Agreement would be to raise the issue in the COP serving as the meeting of the Parties to the Paris Agreement and adopt a corresponding decision. The decision could address a specific conduct or omission or provide general guidance on the interpretation and understanding of the Paris Agreement.

Article 4.11 (which provides that parties may adjust their NDCs with a view to enhancing their level of ambition, in accordance with guidance adopted by the COP serving as the meeting of the Parties to the Paris Agreement) is a particularly apposite example of where such guidance could be useful. But to address a controversial issue, decisions could also be adopted in respect of other obligations which are subject to contrasting interpretations by the parties. Such a decision could further recommend measures to resolve the conflict or to engage the “good offices” of a third party (see below).

  1. Mechanisms outside the UNFCCC

The International Court of Justice in The Hague – the “World Court” – has been established to settle a variety of disputes between States. It may potentially offer other means for resolving a dispute as to whether a party is complying with the Paris Agreement, either by way of its contentious jurisdiction or by issuing an advisory opinion:

a) Contentious Jurisdiction of the ICJ

States may unilaterally accept the compulsory jurisdiction of the Court on condition of reciprocity at any time by filing a declaration to that effect with the UN Secretary General.[3] This would allow the Court to exercise jurisdiction over disputes between that State and any other State that has made the same declaration with respect to a legal dispute between those parties concerning treaty interpretation or international law obligations.[4]  To date, 72 States have made such declarations recognising the compulsory jurisdiction of the Court. This does not include the United States.

Many States have included reservations to their acceptance of the ICJ’s jurisdiction.[5] A common reservation is that the declaration does not apply to any dispute in respect of which the parties have agreed recourse to other means of dispute settlement. Thus, the Court would only have jurisdiction over a dispute where both parties have either accepted the jurisdiction of the Court without reservation at all, or at least without reservations that would impede the matter from coming before the Court. There are 19 States which have accepted the ICJ’s jurisdiction without reservation.[6]

Parties to a dispute may also accept the jurisdiction of the Court on an ad hoc basis by means of a special agreement to the effect that the parties to the dispute accept the jurisdiction of the ICJ with respect to that particular dispute.[7]  The agreement would need to be submitted in writing to the Registrar of the ICJ. This would require both parties to the dispute over the Paris Agreement to agree to submit their dispute before the Court.

b) Advisory Jurisdiction

The ICJ can issue advisory opinions on questions of international law. The Court’s advisory jurisdiction derives from Article 96(1) of the UN Charter, under which the UN General Assembly (the “General Assembly”) or Security Council may request the Court to give an advisory opinion on any legal question. Specialised agencies or subsidiary organs of the UN may also request advisory opinions respecting legal questions arising within the scope of their activities if they are authorised to do so by the General Assembly.[8] Advisory proceedings begin with the filing of a written request for an advisory opinion addressed to the Registrar by the United-Nations Secretary-General or the director or secretary-general of the specialised agency or subsidiary organ requesting the opinion.

A State seeking an advisory opinion on the correct interpretation of the provisions of the Paris Agreement it alleges are being breached by another party would need to submit a proposal to the Security Council, General Assembly or other authorised specialised agency or subsidiary organ of the UN. This body would then need to agree to submit the request in accordance with their own internal decision making process. While ICJ advisory opinions are non-binding, they carry significant moral and legal weight.

Requests from the General Assembly for advisory opinions are relatively rare, with only 15 recorded instances on the UN website.[9] Requests from the UN Security Council are even rarer, with only one request recorded on the UN website.[10]

In terms of specialised agencies or subsidiary organs of the UN that are permitted to request advisory opinions, the specialised agencies which are currently authorised do not obviously include environmental issues in their remit.[11] The activities of some, however, such as the World Health Organisation and the International Maritime Organisation (“IMO”) arguably are concerned with some of the impacts of climate change. In fact, the IMO recently announced it was moving ahead with a climate change agenda in order to help it “fulfil its mandate to protect oceans and human health and to mitigate climate change.”[12] States could seek to prevail upon international organisations such as these to make a request to the ICJ.

In summary, an advisory opinion could provide a persuasive, albeit not legally binding, means of resolving a dispute. It would, however, require persuading the relevant UN organs or authorised agencies to request such an opinion from the ICJ, which could be a difficult and lengthy process.

c) “Good offices” of the UN Secretary-General

Article 98 of the UN Charter provides that the Secretary-General, in addition to acting in the capacity of Secretary General in all meetings of the General Assembly, Security Council, Economic and Social Council and Trusteeship Council, shall perform such other functions as are entrusted to him by these organs. Such functions often involve the prevention and the peaceful settlement of disputes and are carried out under the “good offices” of the Secretary- General.

In theory, parties involved in a dispute regarding the Paris Agreement could call upon the UN Secretary-General to provide its “good offices” to mediate and facilitate dialogue between the opposing sides. This can be set in motion at the Secretary-General’s own initiative, in response to a request from one or more of the parties to a dispute, or as a result of a request from the Security Council or General Assembly. The Secretary-General’s good offices have proven to be a successful method of dispute resolution in a number of inter-State disputes and civil conflicts, for example in Cambodia, Mozambique, Nicaragua and El Salvador.[13]  However, the procedure appears more suited to bilateral disputes as opposed to disputes that have the potential to affect numerous States, such as a dispute in relation to the Paris Agreement. Moreover, given the existence of the UNFCCC, it is likely that the Secretary-General would consider that any dispute in relation to the Paris Agreement should be dealt with within that specific framework rather than by means of an ad hoc procedure.

d) UNEP

Parties could also seek to call on the United Nations Environment Programme (“UNEP”) to assist in the resolution of a dispute over their obligations under the Paris Agreement. UNEP is an agency of the United Nations headed by an executive office and made up of various subdivisions specialising in, for example, ecosystems and policy.  The UNEP’s purpose is to “promote cooperation and coordination among nations, recommend environmental policies and provide general policy guidelines in the international environmental arena for all nations.”[14]

UNEP’s mandate does not include dispute resolution. Instead it studies, recommends, and adopts non-binding resolutions and charters. However, UNEP also lists environmental diplomacy and mediation as part of its activities. Upon request, UNEP can act as an “impartial expert and trusted third party in the mediation of resource conflicts by drawing on its neutrality, technical orientation, and expertise in environmental cooperation.” In addition, UNEP’s expertise is available to other international mediation processes.[15] While the services listed on the UNEP website apply to resource disputes[16], it is arguable that, given the subject matter of the Paris Agreement, UNEP could offer similar services in relation to a dispute over the parties’ obligations under the Paris Agreement, particularly if all parties concerned consent to UNEP doing so.

While there is no precedent for UNEP taking action in relation to a dispute over parties’ obligations under an international climate change agreement, UNEP is arguably an appropriate mediator for a dispute over parties’ obligations under the Paris Agreement. It could also assist any other mediator of the dispute by providing technical expertise regarding the issues in question. While mediation through UNEP would not produce a legally binding solution, it could bring the sides together in discussions and help to identify ways to reach agreement on the scope of parties’ obligations under the Paris Agreement.

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[1] Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, ‘Consolidated Working Document’ (19 December 1991, Geneva), available here: http://unfccc.int/resource/docs/1991/a/eng/misc17a08.pdf.

[2] We discuss separately below the potential relevance of State declarations of consent to ICJ jurisdiction outside the specific context of the UNFCCC.

[3]See, United Nations, Statute of the International Court of Justice, 18 April 1946 (the “ICJ Statute”), Articles 36 (2) and 36(4), for parties to the ICJ Statute available here: http://www.refworld.org/docid/3deb4b9c0.html. States that are not parties to the ICJ Statute may also file declarations accepting the compulsory  jurisdiction of the ICJ pursuant to Article 35(2) and Security Council Resolution 9.

[4] See, United Nations, Statute of the International Court of Justice, 18 April 1946, Article 36 (2) (a) – (d), available here: http://www.refworld.org/docid/3deb4b9c0.html.

[5] List of States that have deposited declarations recognising the Jurisdiction of the Court as compulsory available at: http://www.icj-cij.org/en/declarations

[6] These are Cameroon, Costa Rica, Democratic Republic of the Congo, Denmark, Dominica, Dominican Republic, Finland, Georgia, Guinea-Bissau, Haiti, Liechtenstein, Panama, Paraguay, Sweden, Switzerland, Timor-Leste, Togo, Uganda and Uruguay.

[7] Ibid.

[8] Article 96(2) of the UN Charter, available here: https://treaties.un.org/doc/publication/ctc/uncharter.pdf.

[9] ICJ, ‘Organs and agencies authorized to request advisory opinions’, available here: http://www.icj-cij.org/en/organs-agencies-authorized.

[10] Ibid.

[11] ICJ, ‘Organs and agencies authorized to request advisory opinions’, available here: http://www.icj-cij.org/en/organs-agencies-authorized.

[12] International Maritime Organization, ‘International Maritime Organization moves ahead with oceans and climate change agenda’ (11 July 2017), available here: http://www.imo.org/en/MediaCentre/PressBriefings/Pages/17-MEPC-71.aspx.

[13] See, Franck, ‘The Secretary General’s Role in Conflict Resolution: Past, Present and Pure Conjecture’ 6 EJIL (1995), at pages 361-362, noting that good offices have been more successful since the expansion of the Secretary General’s functions in the early 1990s and the Security Council’s explicit invitation that more governments use this method of dispute resolution. See also, Ruth Lapidoth, ‘Good Offices in Max Planck Encyclopedia of Public International Law’ (2006), at ¶ 6; Franck, ‘The Secretary General’s Role in Conflict Resolution: Past, Present and Pure Conjecture’ 6 EJIL (1995), at p. 367.

[14] Watson Samaan, “Enforcement if International Environmental Treaties: An Analysis” (1993) Fordham Environmental Law Review, Volume 5, Number 1 (2011). Pp. 261-283, at p.263.

[15]UNEP, ‘Environmental diplomacy and mediation’, available here: http://www.unep.org/disastersandconflicts/what-we-do/recovery/environmental-cooperation-peacebuilding/what-we-do/environmental-diplomacy-and.

[16] For example, in the past, UNEP has provided support to the governments of Haiti and the Dominican Republic in relation to tensions between the two countries, concerning the depletion of natural resources along their border. Its work comprised a study resulted in recommendations on opportunities for cooperation. UNEP also helped the governments of Iran and Afghanistan produce a joint project proposal on how they will deal with their dispute over a transboundary water. For further details and case studies on UNEP’s inter-state diplomacy, see UNEP, ‘Natural Resources and Conflict – A Guide for Mediation Practitioners’ (2015), available here: http://postconflict.unep.ch/publications/UNDPA_UNEP_NRC_Mediation_full.pdf. See also, UNEP, ‘Haiti-Dominican Republic: Environmental challenges in the border zone’ (2013), available here:http://postconflict.unep.ch/publications/UNEP_Haiti-DomRep_border_zone_EN.pdf.