Meaning of punitive in international law

Legal assistance paper

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Date produced: 13/12/2018

  1. What is the meaning of “punitive” in international law ?
  2.  What kinds of actions may be excluded from the scope of the compliance mechanism under Article 15, Paris Agreement as “punitive” ?
  3. Can fact-finding be construed as punitive ?

 

Advice:

We have been asked to clarify the meaning of the word ‘punitive’ in the context of Article 15(2) of the Paris Agreement, which provides that the compliance mechanism shall “be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive.”

We understand the query concerns the kinds of action that are excluded by the requirement for the compliance mechanism to be non-punitive, and in particular whether fact-finding by the mechanism could be considered punitive. This might include findings that a party is in breach of its obligations under the Agreement or modalities, procedures and guidelines, for example.

In the domestic context, courts sometimes award ‘punitive damages’, which consist of an amount exceeding what is due by way of (strict) compensation, that is awarded to punish and/or deter behaviour. In this context, therefore, ‘punitive’ describes a consequence that is intended to inflict punishment and deter.

Similarly, in international law, punitive captures the notion of punishment. Examples of punitive measures can be found in the UN Security Council measures under Chapter VII of the UN Charter (Threats to Peace). Article 41 refers to “measures” such as “partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Although it doesn’t use the term “sanction”, this is what they are in effect.

Other examples of Security Council sanctions include comprehensive economic and trade sanctions, travel bans, arms embargoes and financial and commodity restrictions.

The Kyoto Protocol envisaged punitive measures for Parties that did not comply with their targets and would therefore be penalized: the enforcement branch of the compliance committee can require a party to draw up a compliance action plan or suspend or withdraw a party from eligibility to the flexibility mechanisms. In all cases, the enforcement branch will make a public declaration that the Party is in non-compliance and will also make public the consequences to be applied.

Findings of fact as envisaged under Article 15.2, Paris Agreement are of a different nature to the types of measures described above. They denote the result of an assessment of a state of affairs without any judgmental connotation to it and, as such, are not in our view punitive. They are not intended to bring opprobrium, discredit, stigma or shame on the Party to whom they relate. If, however, sanctions or penalties were imposed as a consequence of these findings, these could potentially be punitive. Arguably, if the findings – such as non-compliance with a legally binding commitment under the Paris Agreement by one Party – were reflected in a public declaration by the committee, these would be akin to a punitive measure.