Reservations and Declarations to 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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 26/08/2015

Query:

Could you draft different text options for declarations and reservations that would allow developing country parties to sign, ratify or accept a new 2015 climate treaty without giving up rights under the UNFCCC and general international law?

Advice:

(1) Declarations and reservations

There are important differences between declarations and reservations. Based on past practice, a new 2015 climate treaty may prohibit reservations. There are also reasons why developing countries might want to discourage the making of reservations, even if reservations are not expressly prohibited under the new 2015 climate treaty. Therefore, I have focused on suggested text options for declarations, rather than reservations.

Differences between declarations and reservations

Reservations are statements made by a State when signing, ratifying or accepting a treaty that purport to exclude or limit the legal effects of certain provisions of the treaty on the State making the reservation. Declarations are statements made by a State when signing, ratifying or accepting a treaty that purport to clarify the scope of the treaty or certain of its provisions. In contrast to reservations, declarations do not seek to alter the legal effects of the treaty on the party making the declaration.

Exclusions of reservations in earlier treaties

Most climate change treaties, including the UNFCCC and the Kyoto Protocol, prohibit the making of reservations. The exclusions of reservations in the UNFCC and the Kyoto Protocol are set out below.

UNFCC, Article 24: “No reservations may be made to this Convention”.

Kyoto Protocol, Article 26: “No reservations may be made to this Protocol”.

The February 2015 negotiating text for a new climate treaty includes two options concerning reservations, one would prohibit all reservations and the other would make provision for some reservations. The second option in the negotiating text does not include a detailed description of the types of reservations that might be prohibited or permitted.

Reservations are usually prohibited in climate change treaties because such treaties contain a carefully negotiated balance, or a “package deal”. As such, they should be adopted by States as a whole, and not in a piecemeal way. Allowing developed countries to make reservations that limit or exclude their obligations under a new climate treaty could be harmful to developing countries because it could weaken the legal obligations of developed countries to take measures to combat climate change or provide assistance to developing countries.

Therefore, in this initial advice I have focused on declarations rather than reservations. If, however, you would like me to provide draft text options for reservations, I will need further information about which provisions or parts of a new climate treaty might be the subject of a reservation.

(2) Declarations to the UNFCCC and the Kyoto Protocol

A number of countries made declarations to the UNFCCC and the Kyoto Protocol using similar language. These declarations were intended to make clear that the countries making them did not intend to renounce any of their rights under international law. For example:

Nauru’s declaration on signing the UNFCCC:

“The Government of Nauru 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.”

Niue’s declaration on ratifying the Kyoto Protocol:

“The Government of Niue declares its understanding that ratification of the Kyoto Protocol 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 Protocol can be interpreted as derogating from the principles of general international law.”

There is some advantage, particularly for countries that have made declarations like those set out above to earlier treaties, in using consistent language in declarations to a new climate treaty. The use of consistent language may avoid the implication that prior declarations were narrower, or that their effects were more limited, than a differently worded declaration in a new treaty. However, as discussed below, some developing countries may want to use broader language in declarations to a new climate treaty. They may also want to specifically protect certain rights under international law.

(3) Options for the text of declarations to a new climate treaty – preliminary considerations.

Use of similar language to the declarations in preceding treaties

Developing countries could base the text of their declarations to a new climate treaty on the examples set out above. If they are particularly concerned to protect rights under the UNFCCC and the Kyoto Protocol, then they could make specific reference to these instruments. An example of this is as follows:

“The Government of _____ declares its understanding that signature of the [Convention] shall in no way constitute a renunciation of any rights under international law, including the UNFCCC and the Kyoto Protocol, concerning state responsibility for the adverse effects of climate change.”

“The Government of _____ declares that no provisions in the [Convention] can be interpreted as derogating from the principles of general international law.”

Critical analysis and other options

The first paragraph above relates specifically to rights “concerning state responsibility for the adverse effects of climate change”. Developing countries may want to protect other rights that exist for them under international law. If so, they will need to include a broader form of wording.

On the other hand, developing countries may consider that other rights will be adequately protected and even enhanced under a new climate treaty, in which case the example set out above may be sufficient.

The second paragraph is broad and the scope of the term “principles of general international law” is quite ambiguous, perhaps deliberately so. It may be hoped that the new treaty will create new legal rights and obligations beyond those contained in general international law. If the second paragraph is understood to include the rights and obligations of states under general international law relating to climate change then it may be ineffective because a new treaty may develop international law. Therefore the second paragraph may be unduly conservative.

On the other hand, the second paragraph may be intended to refer to general principles such as good faith, equity and the sovereign equality of States. If so, then it may be helpful to specifically refer to examples of the principles that developing countries want to include. However, such principles should be relevant to the interpretation of a new treaty under Article 31(3)(c) of the Vienna Convention on the Law of Treaties 1969, without the need to make a declaration to that effect.

(4) Specific textual options in connection with rights that developing countries might wish to protect under the UNFCCC.

Differentiation / Specific Needs and Privileges of LDCs in General:

The Government of X considers that ….

“…this agreement should be interpreted in the light of the common but differentiated responsibilities and respective capabilities of all Parties, and with the need to take full account of the specific needs and special situations of least developed country Parties, [as recognised in the UNFCCC/the Convention and in the subsequent practice of the Parties thereto].”

Further options to add specificity to the CBDRRC principle:

“Further, the ability of developing country Parties [least developed Parties / Parties not included in Annex X] to meet their obligations [under the present Convention / international law] will depend on the provision of adequate support, including financial resources, the transfer of technology and capacity building, by developed country Parties [Parties included in Annex Y].

OR, a stronger approach:

“Further, nothing in this agreement should be interpreted as limiting the rights of developing country Parties under the UNFCCC [as implemented in subsequent instruments / practices] to receive support from developed country Parties, including financial resources, the transfer of technology and capacity building measures, [including through the fulfilment of the commitments under Articles 4(3) and 5 of the UNFCCC].”

Specifically in relation to adaptation:

“The Government of X considers that the obligations of developing country Parties [Parties not included in Annex Y] in respect of adaptation to climate change must be interpreted in a manner reflecting their special situations and capacity to meet the costs of adaptation.

Further, the fulfilment by developing country Parties of their obligations in respect of adaptation to climate change will depend on the provision of adequate support, including financial resources and the transfer of technology, by developed country Parties [Parties included in Annex Y] [in accordance with their obligations under Article 4(4) of the UNFCCC].”

OR, a stronger approach:

“The Government of X understands that the obligations of developing country Parties [Parties not included in Annex Y or least developed country Parties] in respect of adaptation to climate change are limited to what is reasonable in the light of their national circumstances and development priorities.”

OR, an alternative stronger approach:

“The Government of X considers that the obligations of developing country Parties [Parties not included in Annex Y OR least developed country Parties] in respect of adaptation to climate change are limited to what is reasonable in the light of their national circumstances, and taking into account that economic and social development and poverty eradication are the first and overriding priorities of developing country Parties [Parties not included in Annex Y OR least developed country Parties].”

General Principles of Law:

The option set out in the previous section reads as follows:

“The Government of X declares that no provisions in the [Convention] can be interpreted as derogating from the principles of general international law.”

This textual option could be further clarified, for example:

“The Government of X declares that no provisions in the [Convention] can be interpreted as derogating from the principles of general international law including, but not limited to, the principles of prevention and ‘no harm’.”

However, a new Convention should create new obligations, and may lead to the progress development of customary international law. Therefore, a more positively phrased declaration may be more appropriate, such as the following:

The Government of X declares that the [Convention] should be interpreted in accordance with, or as progressively developing/enhancing, the principles of general international law [including, but not limited to, the principles of prevention and ‘no harm’].”