1. What is the normative value/legal status and/or strength of parties’ commitment under Art.2 para.1(c) Paris Agreement (making finance flows consistent with a low carbon climate resilient development pathway)?
2. Does it, if read in conjunction with Art.4.19 on low carbon development strategies and the relevant part of decision 1/CP.21, imply a legal obligation to facilitate support in developing, implementing and achieving such a strategy?

Summary:

1. Article 2(1)(c) creates no specific legally binding obligation on Parties to make finance flows consistent with a low carbon climate resilient development pathway.  It is an objectives paragraph, but is relevant to the interpretation of all other Articles in the Agreement.
2. Reading Articles 2(1)(c), 4(5), 4(19) and 9 of the Paris Agreement together, there is a legal obligation on Parties to support developing country Parties in implementing their obligations to strive (i.e. make good faith efforts) to formulate and communicate long-term low GHG emission development strategies.

Advice:

Relevant legal provisions

The relevant provisions are set out below:

Article 2(1)(c) of the Paris Agreement reads as follows:

“ This 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, including by:

…

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.”

UNFCCC, Article 2 sets out the objective of the Convention:

“ The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

Read in conjunction with the Paris Agreement, in order to stabilise greenhouse gas (GHG) concentrations at a level to prevent dangerous anthropogenic interference with the climate system, global average temperatures must be held at “well below 2°C above pre-industrial levels” and efforts to limit the temperature to 1.5°C above pre-industrial levels must be made, since this would “significantly reduce the risks and impacts of climate change.” (PA, Art 2(1)(a)).

Paris Agreement, Article 4

“5. Support shall be provided to developing country Parties for the implementation of this Article, in accordance with Articles 9, 10 and 11, recognizing that enhanced support for developing country Parties will allow for higher ambition in their actions.”

“19. All Parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies, mindful of Article 2 taking into account their common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”

Paris Agreement, Article 4(6), which provides that least developed countries and small island developing States may prepare and communicate strategies reflecting their special circumstances.

Decision 1/CP/21, para. 35: “Invites Parties to communicate, by 2020, to the secretariat mid-century, long-term low greenhouse gas emission development strategies in accordance with Article 4, paragraph 19, of the Agreement, and requests the secretariat to publish on the UNFCCC website Parties’ low greenhouse gas emission development strategies as communicated”.

Analysis

1. Legal status and normative force of Article 2(1)(c)

The first query asked concerns the legal status (or normative force) of parties’ commitments under Article 2(1)(c) of the PA.  It asks:

What is the normative value/legal status and/or strength of parties’ commitment under Art.2 para.1(c) Paris Agreement (making finance flows consistent with a low carbon climate resilient development pathway)?

Article 2 does not create any legally binding obligations on States.  Article 2(1)(c) establishes that one of the ways that the aim or objective of stabilising greenhouse gas concentrations at global average temperatures of well below 2°C can be achieved by making finance flows consistent with a pathway towards low greenhouse gas emissions and climate resilient development.  A number of factors support the conclusion that it is not intended to create any legally binding obligation:

• Article 2 is intended to enhance the objective in article 4 of the UNFCCC, which was a non-binding objective, rather than a legally-binding obligation.
• Article 2 is framed in terms of an “aim” rather than an obligation.
• Obligatory-type language (shall, must, will) is not used. Compare the obligation on nationally determined contributions: “are to undertake”  (Art 3), “shall prepare, communicate and maintain” (Art 4(2)): it is clear that countries must at least maintain NDCs, with the view to achieving the purpose of the Agreement set out in Article 2.
• The list of actions that can be taken to achieve the objectives is left open (by the word “includes”).

This is not to say that Article 2 has no meaning or legal force. Article 2 is highly relevant in interpreting the other treaty obligations as a part of the immediate context, but does not itself create or define legally binding obligations.  (An analogy could be drawn in this regard to Article I of the Treaty of Amity, Economic Relations and Consular Rights of 15 August 1955 between the United States and Iran, see: Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803, pp. 814-815, paras. 28, 31).

As a concrete example, one way that global peaking of greenhouse gases (Art 4(1)) or the achievement of the nationally determined contributions (Art 3, Art 4(2)) will occur is through the redirection of financial flows towards low GHG investments.  The actual redirection of financial flows will mainly be a matter for the private sector, which will in turn respond to guidance and effective Government regulation.

2. Legal obligation under Article 4(19) to facilitate support in developing, implementing, and achieving such a strategy

The next question posed is whether Article 2(1)(c) can be read in conjunction with Art 4(19) on low carbon development strategies and the relevant part of Decision 1/CP.21 so as to imply a legal obligation to facilitate support in developing, implementing and achieving such a strategy.

Article 4 operationalises the objectives in Article 2 of the PA.

“19. All Parties should strive to formulate and communicate long-term low greenhouse gas emission development strategies, mindful of Article 2 taking into account their common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”

Decision 1/CP/21, para. 35: “Invites Parties to communicate, by 2020, to the secretariat mid-century, long-term low greenhouse gas emission development strategies in accordance with Article 4, paragraph 19, of the Agreement, and requests the secretariat to publish on the UNFCCC website Parties’ low greenhouse gas emission development strategies as communicated”.

Again the wording of Article 19(4) may be problematic due to the use of the word should, which waters any obligation down (compare shall or must), and also the use of the word “strive”, which has a negative connotation in English as it suggests putting effort into something that may be difficult to achieve, e.g. the Oxford English Dictionary suggests that a synonym is “struggle”, often against something; another definition is to “endeavour vigorously, use strenuous effort”.  The French “devraient s’employer” (literally should or must employ oneself) similarly connotes working to an end, without requiring that it actually be achieved.  This interpretation is supported by the fact that Decision 1/CP/21 was that Parties were merely “invited” to communicate their long-term low GHG emission development strategies, but were in no way obliged to do so.  It is an obligation of means or an obligation of conduct, not an obligation to an end.

At best, interpreting Article 19(4) in light of Article 2(1)(c), it requires that all Parties make good faith efforts to formulate and communicate such strategies.

What is interesting, as the query highlights, is that the obligation to so strive is not specific to the Party.  Whereas the NDCs are clearly linked to each Party, such that Article 4(2) states that “Each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieves” (emphasis added), Article 4(19) stipulates a general obligation for Parties to make good faith efforts to formulate strategies, plural.  Moreover, Article 4(5) provides that support for the implementation “of this Article”, including paragraph 19, should be provided to developing country Parties.

In addition, Article 9 provides that Developed country Parties shall provide financial resources to assist Developing country Parties with mitigation and adaptation.  It is not a stretch to argue that promulgating development strategies are part of mitigation or adaptation, particularly since the need to align financial flows with low GHG emission and climate-resilient development is one of the key methods set out in Article 2 to achieve the aims of the PA.

In conclusion, reading Articles 2(1)(c), 4(5), 4(19) and 9 of the Paris Agreement together, there is a legal obligation on Parties to support developing country Parties in implementing their obligations to strive (i.e. make good faith efforts) to formulate and communicate long-term low GHG emission development strategies.