Loss and Damage in Paris and State Responsibility

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Date produced: 12/04/2016

If and to what extent does Art.8 of the Paris Agreement in conjunction with accompanying COP decision 1/CP.21, paragraph 51, exclude the application of the general rules of public international law, in particular on state responsibility?

Advice:

The relevant loss and damage provisions adopted at the Paris Conference are contained in both the Paris Agreement and the CoP Decision which adopted the Paris Agreement (COP Decision 1/CP.21).

These provisions also make reference to previous CoP decisions, notably those that established and make operational the Warsaw International Mechanism for Loss and Damage, and to that extent such previous decisions (as amended) are thereby endorsed.

In fact, by making reference to the Warsaw Mechanism in the text of the Paris Agreement itself, it is arguable that the Mechanism has been placed on a firmer treaty setting than it was previously the case.

While there is (intended to be) a difference in the binding nature of the obligations on States between those contained in the Paris Agreement and those in the CoP Decision, for the purposes of treaty law, it is invariably the case that the CoP Decision is part of the context under article 31 of the 1969 Vienna Convention on the Law of Treaties for the purposes of treaty interpretation.

Reflective as article 31 is of customary international law, it is therefore important to read article 8 of the Paris Agreement in the light of the relevant aspects of CoP Decision 1/CP.21.

Nevertheless, the CoP Decision is authoritative only to the extent of treaty interpretation, and is not per se a binding obligation on States (unless one takes the view that CoP Decisions are binding, which is generally not accepted by States or commentators).

Thus, paragraph 51 of the CoP Decision (which reads ‘Article 8 of the Agreement does not involve or provide a basis for any liability or compensation’) must be considered compulsory context for the purposes of the interpretation of article 8 of the Paris Agreement.

Moreover, it is also notable that paragraph 51 begins with the word “Agrees” – this is significant. This underlines the Parties’ intention for paragraph 51 to be an authoritative interpretation of Article 8.

As article 31.2(a) of the Vienna Convention notes ‘The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’.

While it could be argued that “agreement” in this provision only relates to a binding agreement, I do not believe that States construe the provision so strictly.

Thus, the reference to “Agrees” in paragraph 51 is significant as it makes a clear link to article 31.2(a) and therefore the Parties are seeking to highlight that this paragraph in particular structures and demarcates the interpretation of article 8.

To the extent that this is the case, Article 8 must thus be read in light of the provision that it ‘does not involve or provide a basis for any liability or compensation’.

The wording of paragraph 51 is however not without ambiguity. There is, for instance, no express reference to, or exclusion of, general international law. Nor is there mention of State responsibility (reflected for these purposes in the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)) which is generally accepted to be reflective of customary international law.

The phrase ‘liability or compensation’ is not a phrase, for instance, to be found in the 2001 ARSIWA. To the extent that it is a “catch-all” phrase, it is too ambivalent to be legally precise.

For instance, despite different language uses of the word “liability” in international law, this is not a word to be found in the English translation of ARSIWA where “responsibility” is the chosen term.

Nor is compensation the only form of reparation in international law, if indeed the Parties sought to differentiate between different forms of reparation.

It is at least arguable that on the wording of paragraph 51, it relates to no more than liability or compensation within the context of the treaty-based regime.

Moreover, paragraph 51 specifically seeks to exclude liability or compensation only relating to article 8 on loss and damage. It is arguable that state responsibility for climate change could be construed to be broader than that covered by article 8.

Most significantly, however, it is not clear that paragraph 51 meets the requirements of Article 55 of ARSIWA (“lex specialis”) namely ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law’.

Paragraph 51 seeks to be an exclusionary rule; it is not a special rule of international law. Without clearer wording, it would be a significant incursion on state sovereignty to say that States had decided to deny themselves rights under the law of state responsibility by virtue of a non-binding provision in a CoP Decision.

Whatever the intention of some of the Parties at the Paris negotiations (and further work would need to be done on the negotiating history of paragraph 51) it is my opinion that the wording of that paragraph is not sufficient to exclude general international law.

Finally, though the Paris Agreement eschews all reference to article 17 of the UNFCCC, there is no doubt that as a matter of international law, the Paris Agreement is a protocol to the UNFCCC. It therefore becomes an interesting question how far, and to what extent, provisions of the Convention and interpretative declarations attached thereto (be that at signature or ratification) are relevant to the interpretation of the Paris Agreement.

Some Parties did submit an interpretative declaration at the time (eg. “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’).

It is debatable – though it cannot be completely excluded – whether such declarations can be “carried across” to such Parties’ participation in the Paris Agreement (if they so continue to hold to such a viewpoint).

Though the Paris Agreement excludes reservations, similar declarations may of course be made upon signature or ratification.

It might be argued that the effect of paragraph 51 is to prevent Parties from making fresh declarations of a similar nature, but as noted above, the wording of that paragraph is sufficiently ambiguous to allow room for debate and sovereign discretion.

If a Party wished to reserve its position on this matter, a similar interpretative declaration to those previously made by other States may prove of some purpose at signature.