Is it mandatory to submit an adaptation communication? If a party does submit an adaptation communication, are the provisions of Article 7.11 mandatory? In essence, how much flexibility do these provisions offer? Can you produce an analysis of the obligations of Parties under Articles 7.10 and 7.11?

Summary:

Articles 7.10 and 7.11 reflect formal, procedural commitments by Parties on adaptation (to submit and update adaptation communications). However, these commitments are qualified by “shall, as appropriate” and “should” and are, therefore, of limited binding nature.

Advice:

Articles 7.10 and 7.11 of the Paris Agreement provides:

Each Party should, as appropriate, submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs, plans and actions, without creating any additional burden for developing country Parties.

The adaptation communication referred to in paragraph 10 of this Article shall be, as appropriate, submitted and updated periodically, as a component of or in conjunction with other communications or documents, including a national adaptation plan, a nationally determined contribution as referred to in Article 4, paragraph 2, and/or a national communication.

General Rules on Treaty Interpretation

The 1969 Vienna Convention on the Law of Treaties (VCLT) sets out in the basic rules of treaty interpretation. Under Articles 31(1) and (4) VCLT, words in treaties are to be read in accordance with their ordinary meaning, unless the Parties themselves agree otherwise. This ordinary meaning is in light of the context and object and purpose of the treaty.

Analysis

There are several elements that define the legal character of a provision including location, normative content, language and precision.

Article 7 is in the operative part of the Paris Agreement and therefore does have the capacity to create rights and obligations for the Parties that have expressed their consent to be bound to it. Article 7, paras 10 to 11, places requirements on States (to submit and update adaptation communications) and is therefore capable of creating obligations on them. The terminology used in these provisions will determine whether they should be construed as imposing mandatory obligations or rather setting expectations or recommendations on Parties.

Article 7.10

Article 7.10 reads: “Each Party should…….as appropriate “. The term “should” sets a strong normative expectation on Parties, and arguably imposes more of an obligation on them than “may” would, but still does not create a mandatory requirement to submit adaptation communications. The use of ‘should’ is further qualified by the use of discretionary language (“as appropriate”). These qualifying elements combined with the fact that the obligation is addressed to individual States (“Each Party”), making room for self-serving interpretation by Parties, means that the commitment is in the nature of a recommendation rather than a legally binding obligation. It is for each Party to determine for themselves, as appropriate for them, whether to submit and update periodically an adaptation communication.

Article 7.10 also provides guidance as to the scope of an adaptation communication through its use of the words “may include…”. This language is again not mandatory in nature and does not create a binding obligation on Parties. Instead, a Party’s adaptation communication, should it submit one, could include its priorities, implementation and support needs, plans and actions. Moreover, the submitting and updating of the adaptation communication should not result in any additional burden on developing country Parties, suggesting a degree of flexibility for those Parties.

Article 7.11

Article 7.11 states that “The adaptation communication……. shall be, as appropriate”. Whilst, at first glance, the use of ‘shall’ might suggest a mandatory requirement, in contrast with the voluntary nature of the commitment under Article 7.10, the use of discretionary language (‘as appropriate’) in conjunction with ‘shall’ again serves to qualify the imperative nature of the obligation and turns it into a recommendation. Further, Article 7.11 should not be interpreted in isolation but in the context of the previous paragraph, as emphasized by the reference to “The adaptation communication referred to in paragraph 10 of this Article shall be …” (emphasis added) with which it is related. The provision is not prescriptive in how the Parties must satisfy this obligation. The drafting clearly allows the submitting Parties a degree of flexibility and discretion.

Accordingly, we consider that once a Party decides to submit an adaptation communication as per Article 7.10, Article 7.11 sets out that:

• the adaptation communication must be submitted and updated periodically as the Party determines appropriate. I.e., there is no fixed or prescribed point in time established in the Agreement for when an adaptation communication has to be updated. Instead, Parties are expected/encouraged to update their adaptation communication ‘periodically’ – i.e. ‘from time to time’ as the Party views appropriate.
• the adaptation communication needs to be submitted and updated periodically as a component (i.e. part of) or in conjunction with (e.g., along with) other “communications” or “documents”. Such “communications” or “documents” may include a national adaptation plan, a NDC as per Article 4.2 and / or a national communication. The use of the words “including a …” means that discretion is given to the Party as to the vehicle through which its adaptation communication will be submitted and updated periodically.