Respective capabilities

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Date produced: 09/04/2014

Does the notion of ‘respective capabilities’ (RC) apply to the commitments in Article 4 of the Convention?

More generally, does common but differentiated responsibilities and respective capabilities (CBDRRC) and RC in particular apply to the whole Convention?

Summary: CBDRRC is an overarching principle guiding the implementation of the Convention. As such CBDR and RC, as one principle, apply to the Convention as a whole, including Article 4. To apply CBDR to Article 4 without RC would deviate from Article 3 and subsequent agreements. The two concepts (CBDR and RC) are inextricably linked in the preamble, the text of the Convention, and in subsequent agreements concluded in connection with the Convention. They must therefore be applied together to the Convention as a whole, and to Article 4 in particular.

Advice

Although two separate questions have been asked, they will be dealt with together since they address the same issue. That is, the applicability of common but differentiated responsibilities (CBDR) and respective capabilities (RC) to the Convention as a whole, and in particular Article 4. This is to be determined according to the customary rules of treaty interpretation as embodied in Article 31 of the Vienna Convention on the Law of Treaties (VCLT). There are four elements to be examined under Article 31: the ‘ordinary meaning’ of the provision that must be interpreted, the context, object and purpose and the role of good faith in the interpretation of Article 4 and the Convention as a whole.

The ordinary meaning of the words contained in Article 4

Article 4 contains elements of RC reflected at various points in the wording of the provision itself. First off, Article 4(1) requires the commitments in Article 4 be applied and interpreted in a manner that takes into account Parties’ ‘specific national and regional development priorities, objectives and circumstances.’ The ordinary meaning of these words encompasses the same elements as contained in the notion of RC. Further, Article 4 divides Parties into groups: developed states that have a greater capacity and capability have more onerous commitments than parties with less capability. The commitments in Article 4(1) apply to all Parties, but the more onerous commitments contained in Article 4(2) regarding mitigation policies etc. only apply to ‘developed country Parties and other Parties included in Annex I’ due to the greater capability and capacity of Annex I Parties to implement the more onerous commitments.[2]

In addition, Article 4(7) links the implementation of developing countries’ commitments to the effective implementation of developed countries’ commitments related to financial resources and transfer of technology. This is a further reflection of RC: developing countries have less capacity to implement the commitments, therefore compliance with their commitments is linked to the implementation of financial and technology transfer. This financial and technology transfer would raise the capabilities of developing countries to enable them to fulfill their commitments under the provision. Consequently, the ordinary meaning of the wording in Article 4 alone demonstrates the applicability of RC to the provision.

The context of Article 4

The context is comprised of the text, preamble and annexes of the Convention, as well as any agreement relating to the Convention that was made between all the Parties in connection with the Convention.[3] Such agreements include the Copenhagen Accord, the Cancun Agreements and the Durban Long-term Cooperative Action decision.

The text of the Convention

The text of Article 3 provides that the Parties shall be guided by CBDR and RC to ‘achieve the objective of the Convention and to implement its provisions;’[4] this includes Article 4 and the commitments referred to therein. As such, the text of the Convention provides that Parties shall be guided by CBDRRC in the implementation of the commitments in Article 4. It has been noted that ‘at the very least, Article 3 [of the FCCC] is relevant to the interpretation and implementation of the Convention as well as creating expectations concerning matters which must be taken into account in good faith negotiations of further instruments.’[5] This is confirmed by Article 2 of the Convention, which states that the ‘ultimate objective’ of the Convention is to achieve a stabilization of greenhouse gas concentrations in the atmosphere at a level that prevents dangerous climate change ‘in accordance with the relevant provisions of the Convention’, including Article 3.[6] The text of the Convention therefore provides that CBDRRC is a guiding principle of the Convention, and that the objective of the Convention shall be achieved in accordance with CBDRRC. This entails the applicability of CBDRRC to Article 4 and the Convention as a whole.

It should be noted that CBDR and RC appear together in Article 3 and the preamble of the Convention, as well as subsequent reiterations in agreements concluded in connection with the Convention. The guiding principle in the implementation of the Convention is therefore both concepts in tandem. The inclusion of CBDR and RC together in Article 3 requires their application together, as one principle, to Article 4 and the Convention as a whole. Since Article 4 enumerates the substantive commitments of the Parties, the application of CBDR and RC is especially significant in guiding the implementation of these commitments. Article 4 is arguably the most important provision in the Convention; the principles enunciated in Article 3 are therefore all the more important in guiding its implementation.  As demonstrated by the text of Article 3, CBDRRC, taken together, is a fundamental principle that should guide the interpretation of the Convention as a whole, particularly Article 4, considering its fundamental relevance therein.

The preamble of the Convention

It has been noted and is widely accepted that the preamble plays a significant role in the interpretation of treaties.[7] Most relevant in these circumstances, the preamble may be important to establish the meaning of treaty provisions and clarifying their purpose.[8] In these circumstances, the inclusion of CBDRRC in the preamble of the Convention points to its application to the Convention as a whole, including Article 4.

In this regard, the WTO Appellate Body (AB) has referred to the preamble of the WTO Agreement to support and acknowledge that sustainable development is an objective as such of the multilateral trading system.[9] It held that ‘As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement …’[10] Similarly, CBDRRC, due to its inclusion in the preamble, must add colour and texture to the interpretation of the Convention, including Article 4. More significantly, preambular statements have stronger binding legal force when incorporated in the operative text of the treaty.[11] CBDRRC’s inclusion in the operative text in Article 3 therefore further elevates its position within the Convention, and requires its application to the Convention as a whole, including Article 4.

The preamble of the Convention is also relevant in identifying the object(s) and purpose(s) of the Convention.[12] It can be deduced from the wording of the preamble that one of the fundamental objects and purposes of the Convention is to ensure cooperation in the fight against climate change in accordance with CBDRRC. This further supports the broad application of CBDRRC to the Convention as a whole, including Article 4.

Agreements concluded in connection with the Convention

The inclusion of CBDR and RC together in subsequent agreements concluded in connection with the Convention further supports the wide applicability of CBDRRC to the Convention including Article 4.  In particular, the Copenhagen Accord emphasises the ‘strong political will to urgently combat climate change in accordance with the principle of common but differentiated responsibilities and respective capabilities.’[13] Further, the Cancun Agreements ‘affirms that climate change is one of the greatest challenges of our time and that all Parties share a vision for long-term cooperative action in order to achieve the objective of the Convention under its Article 2, including through the achievement of a global goal, on the basis of equity and in accordance with common but differentiated responsibilities and respective capabilities.’[14] In addition, the Durban Long-term Cooperative Action decision affirms ‘the need to maintain consistency with the principles and commitments of the Convention, particularly that Parties should protect the climate system in accordance with their common but differentiated responsibilities and respective capabilities.’[15]

These agreements further demonstrate that CBDR and RC are consistently applied in tandem. They further reiterate that CBDRRC, as one principle, consistently applies as a guiding principle of the Convention. To apply CBDR to Article 4 without RC would deviate from Article 3 and subsequent agreements. The two concepts (CBDR and RC) are inextricably linked in the preamble, the text of the Convention, and in subsequent agreements concluded in connection with the Convention. They must therefore be applied together to the Convention as a whole, and to Article 4 in particular.

The role of good faith (principle of effectiveness)

Throughout this process, it must be borne in mind that a treaty and its provisions must be interpreted in good faith.[16] Good faith includes the principle commonly described as ‘effectiveness,’[17] which has been held to represent a ‘fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31.’[18] The WTO Appellate Body has further held that ‘In light of the interpretative principle of effectiveness, it is the duty of any treaty interpreter to “read all applicable provisions of a treaty in a way that gives meaning to all of them, harmoniously.’” An important corollary of this principle is that a treaty should be interpreted as a whole, and, in particular, its sections and parts should be read as whole.

The interpretation of Article 4 must therefore give effect to CBDRRC as enunciated in Article 3. Otherwise its inclusion in Article 3 would be rendered meaningless. The duty to interpret the treaty in good faith requires that CBDRRC be given effect in the interpretation and application of the Convention as a whole, particularly Article 4. This is all the more necessary considering that Article 4 contains the substantive commitments of the parties, as such, it is the most relevant provision to give effect to CBDRRC.

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[2] In addition to the notion of historical burden and equity concerns surrounding sustainable development as engrained in the concept of CBDR, as reflected in the preamble of the Convention.  It is not disputed that the notion of CBDR is expressly included in Article 4 and therefore any comments regarding CBDR without RC are outside the scope of this advice.

[3] See Article 31(2) of the Vienna Convention on the Law of Treaties, supra note 1.

[4] UNFCCC Article 3, emphasis added.

[5] International Law Association, Committee on Legal Principles Related to Climate Change, Second Report (2012) pg. 8,, quoting Boyle, A.E., ‘Some Reflections on the Relationship of Treaties and Soft Law’, International and Comparative Law Quarterly, pp 901-913, pg. 908.

[6] See Article 2 of the Convention, emphasis added.

[7] Mbengue, M., ‘The Notion of Preamble’ in Rudiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2009), pg. 2.

[8] Idem.

[9] Ibid pg. 3.

[10] WTO US-Shrimp case, quoted in Mbengue, M., op cit.  pg. 3.

[11] Mbengue, M., op cit. pg. 5.

[12] Mbengue, M., op cit, pg. 2.

[13] Copenhagen Accord, paragraph 1.

[14] Cancun Agreements, paragraph 1.

[15] Durban Long-term Cooperative Action decision (FCCC/CP/2011/9/Add.1)  preambular recital, pg. 17.

[16] See Article 31 of the VCLT.

[17] Gardiner, R.K., op cit pg. 148.

[18] Japan-Taxes on Alcoholic Beverages, AB-1996-2, WT/DS8,10 & 11/AB/R(1996), found in Gardiner, R.K., op cit, page 160.