1.How could the current climate negotiations on non-market approaches (under article 6.8 of the Paris Agreement) be decoupled from the negotiations on market approaches (under article 6.2 and 6.4)?
2. Are there any legal principles or legal arguments that could be put forward to support the “decoupling”?
Summary:
1. Procedural decoupling
The ‘decoupling’ of the climate negotiations on Non-Market Approaches (NMA’s) from the negotiations on market approaches (article 6), could be facilitated by aiming for a separate decision on NMAsat the third sessionof the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA) in Glasgow. During its 52nd session, the Subsidiary Body for Scientific and Technological Advice (SBSTA) can prepare this separate CMA draft decision on the basis of Decision 1/CP.21, paragraph 40 and Decision 9/CMA.2. In this regard the SBSTA does not need a new mandate from the CMA.
2. A substantive argument
The international legal principle to perform and interpret a treaty in good faith could be put forward to support the ‘decoupling’ of article 6.8 negotiations (articles 26 and 31 (1), Vienna Convention on the Law of Treaties (Vienna)).
To interpret a treaty in good faith, according to this international legal principle, means to interpret it in accordance with the ‘ordinary meaning’ to be given to the terms of the treaty. For article 6.8 this implies reading it in particular in conjunction with recitals 2, 3, 4, 5, 7, 10, and articles 2, 3, and 6.1 from the Paris Agreement (PA). On the basis of this interpretation of article 6.8, it can be substantiated that Parties should be able to make use of the NMA framework (under article 6.8 and 6.9) as soon as possible. All the more since the implementation of this NMA framework could, in particular, support developing countries in their climate action efforts.
In accordance with this international legal principle of good faith, it could therefore be argued that the successful conclusion of the article 6.8 negotiations should not be hampered by possible stalled negotiations on article 6.2 and 6.4. The rapid operationalization of article 6.8 – by putting into place a work-programme under the framework on NMA – could be realised by aiming for a separate CMA decision in Glasgow (see Advice on Question 1).
Advice:
1. Question 1 on process
In Katowice (2018) as well as in Madrid (2019), the CMA outcomes on article 6 were provided in one common CMA decision.[1] However, looking at the specific negotiation-mandates related to article 6.2, 6.4 and 6.8, separate implementation decisions could be prepared for the CMA in Glasgow regarding each of the three components of article 6.
First of all, this can be read from the ‘back bone’ mandate for the implementation of the Paris Agreement: Paris Decision 1/CP.21.[2] Paragraphs 36-40 of this Decision provide for specific requests regarding the implementation of the three parts on cooperation under article 6. Decision 1/CP.21 provides for separate mandates to develop guidance under article 6.2; rules, modalities and procedures under article 6.4; and specifically with regard to the implementation of article 6.8:
“39. Also requests the Subsidiary Body for Scientific and Technological Advice to undertake a work programme under the framework for non-market approaches to sustainable development referred to in Article 6, paragraph 8, of the Agreement, with the objective of considering how to enhance linkages and create synergy between, inter alia, mitigation, adaptation, finance, technology transfer and capacity-building, and how to facilitate the implementation and coordination of non-market approaches;
40. Further requests the Subsidiary Body for Scientific and Technological Advice to recommend a draft decision on the work programme referred to in paragraph 39 above, taking into account the views of Parties, for consideration and adoption by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement at its first session;”
The latest mandate for the SBSTA concerning NMA’s can be found in Decision 9/CMA.2. This CMA Decision builds on Decision 1/CP.21, and mandates the SBSTA to continue consideration of these matters at it 52th session with a view to recommending draft decisions for consideration and adoption by CMA.3:
“1. Notes the draft decision texts on matters relating to Article 6 of the Paris Agreement prepared by the President of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement [see footnote 2] at its second session, while recognizing that these draft texts do not represent a consensus among Parties;
2. Requests the Subsidiary Body for Scientific and Technological Advice to continue consideration of the matters referred to in paragraph 1 above at its fifty-second session (June 2020) on the basis of the draft decision texts referred to in paragraph 1 above, with a view to recommending draft decisions for consideration and adoption by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement at its third session (November 2020)”[Decision 9/CMA.2, paragraph 1 and 2]
Although Decision 9/CMA.2 addresses market approaches and NMA’s at the same time, it does not preclude a ‘decoupling’ of these matters. Not only is Decision 9/CMA.2 firmly based on the fundamental mandate in Decision 1/CP.21, it also explicitly refers to recommending ‘decisions’ (in plural). So, there is a clear procedural possibility to ‘decouple’ article 6.8 negotiations from the two market components of Article 6.
The next step for the SBSTA to ‘decouple’ could be to consider a separate draft decision on NMA’s on the basis of the draft decision texts relating to article 6.8 as mentioned in paragraph 1 in Decision 9/CMA.2 (see footnote 2, Decision 9/CMA/2). These draft decision texts are available at:
https://unfccc.int/documents/204667 (third iteration, 15 December),
https://unfccc.int/documents/202118 (second iteration, 14 December)
and https://unfccc.int/documents/204638 (first iteration, 13 December) (see footnote 2, Decision 9/CMA/2).
For the ‘decoupling’ to take place the CMA could adopt a new decision at COP26 to the effect that SBSTA has an express mandate to continue consideration of the matters related to Article 6.8 independently (from the negotiations on market approaches) with a view to recommending a draft decision for consideration and adoption by the next CMA. This, however, is not a precondition to taking a decision on art.6.8. In this regard the initial and follow up mandates for the SBSTA (based on Decision 1/CP.21, paragraph 40 and Decision 9/CMA.2) seem to be clear enough. The SBSTA can prepare a separate draft decision on the NMA-work programme at its next session (in June) and recommend it for immediate adoption by the CMA at its third session.
Choosing negotiation-strategies will of course bring political considerations into play, and if the President and/or other Parties do not want to pursue ’decoupling’, other solutions could be considered (e.g., creating a ‘group of the willing’ to pressurize and pursue consensus on article 6.8 and aiming for a separate outcome/decision).
2. Question 2 on legal substance
The international legal principle to perform and interpret a treaty in good faith could be put forward to support the ‘decoupling’ of article 6.8 negotiations.
International legal principle to perform and interpret a treaty in good faith
Parties to an international treaty have to perform and interpret a treaty in good faith.[3] To interpret a treaty in good faith means to interpret it in accordance with the ‘ordinary meaning’ to be given to the terms of the treaty (articles 26 and 31 (1), Vienna). The ‘ordinary meaning’ is to be discerned from reading the relevant provisions in their context and in the light of the treaty’s object and purpose. The context includes the text of the preamble.
The ‘ordinary meaning’ of article 6.8
To discern the ‘ordinary meaning’ of article 6.8, the text and place of article 6.8 is briefly explored below. Subsequently, article 6.8 is read in its context and in the light of the PA’s object and purpose.
Article 6
Parties recognized in Paris, that mechanisms of voluntary cooperation approaches would assist Parties to achieve a higher ambition for their climate action. Besides two market approaches (article 6.2 and 6.4), they created in article 6.8 and 6.9 a framework for NMA’s. Parties still need to agree on how this new NMA framework will function. Proposals in this regard were discussed, but no consensus was reached.[4]
Article 6.1 provides the general concept of cooperative implementation. The reference to ‘allow for higher ambition’ in this paragraph is important.[5] It provides opportunities for Parties to pursue the implementation of their NDC’s with higher ambition.Article 6.8 has to be read in this light.
Each cooperative approach under articles 6.2, 6.4, and 6.8 has its own distinct elements of implementation. This is further developed in Decision 1/CP.21.[6] The three approaches seem to be independently formulated. Article 6.8 can therefore also be separately implemented by a CMA decision.
Context and PA’s object and purpose (recitals 2, 3, 4, 5, 7, 10 and articles 2, 3)
Throughout the PA a framing for a higher ambition and urgency is established.[7] The PA provides not only new notions[8], but also many new themes, in particular the focus on human rights, which highlight the severity of adverse climate change impacts.[9] These new notions and themes provide further guidance in interpreting article 6.8 and in its implementation.[10]
The abovementioned elements express a context of a continuous improvement cycle and rising ambition with urgency for climate action. This context is confirmed in the PA’s object and purpose. The PA seeks to enhance the implementation of the UNFCCC(article 2.1). It aims to do so by strengthening the global response to climate change to the threat of climate change, including by committing to a long-term temperature goal,[11] enhancing adaptive capacity and climate resilience, and making finance flows consistent with low-emission development pathways.
Party contributions to these global objectives need to be expressed through the Nationally Determined Contributions (NDCs). The efforts of all Parties in this regard “will represent a progression over time, while recognizing the need to support developing country Parties for the effective implementation” (article 3). Article 6.8 links to thisgeneral framing in the PA to specifically support developing country Parties[12] by referring explicitly to the context of ‘poverty eradication’.[13]
So, interpreting and implementing article 6.8 in good faith means looking at article 6.8 in conjunction with the preamble (in particular recitals 2, 3, 4, 5, 7, 10)and articles 2 and 3. This interpretation of article 6.8 arguably means that awork programme under the framework on NMA’s should be decided upon as soon as possible. Even more so since this cooperation mechanism could in particular assist in raising the ambition of the NDCs in developing countries.
A decision on the work programme on NMA’s is already long overdue (since 2015). If, by ‘decoupling’, at least the operationalization of article 6.8 could be ensured, then the necessary procedures and decisions should be taken in this regard. If not, one could argue that this would be an infringement of the international legal principle that Parties should perform and interpret a treaty in good faith.
Conclusion
To interpret article 6.8 in accordance with the international legal principle to perform and interpret a treaty in good faith implies reading it in particular in conjunction with the recitals 2, 3, 4, 5, 7, 10, and articles 2, 3, and 6.1 from the PA. On the basis of this interpretation of article 6.8, it can be argued that Parties should be able to make use of the NMA framework (under article 6.8 and 6.9) as soon as possible. All the more since the implementation of this NMA framework could in particular support developing countries in their climate action efforts.
In accordance with this international legal principle of good faith, it could therefore be argued that the successful conclusion of article 6.8 negotiations, should not be hampered by possible stalled negotiations on article 6.2 and 6.4. The rapid operationalization of article 6.8 – by putting into place a work-programme under the framework on NMA – could be realised by aiming for a separate CMA decision in Glasgow (see Advice on Question 1 above).
[1] See respectively Decision 8/CMA.1 and Decision 9/CMA.2.
[2] https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf.
[3] The Paris Agreement is a legally binding treaty.
[4] See e.g., The President’s proposal (December 2019) as referred to in Decision 9/CMA.2 (https://unfccc.int/sites/default/files/resource/DT.CMA2_.i11c.v3.pdf)
[5] Some PA drafts on these issues (cooperation, transfers, markets, etc.) referred to the need to “enhance mitigation ambition.”
[6] In Decision 1/CP.21 SBSTA is mandated to elaborate: 1) guidance for cooperative approaches referred in article 6.2, 2) rules, modalities and procedures for the mechanism established in article 6.4, and 3) a decision in relation to the framework for NMA for decision by CMA.
[7] E.g., “need for an effective and progressive response to the urgent threat of climate change” (recital 3, preamble), article 4 explicitly mentions, ”In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible” [underlining added] (article 4.1).
[8] E.g.,“in the light of different national circumstances” (recital 2, preamble).
[9] Recital 10, preamble.
[10] The second half of the preamble mostly strengthens themes referred to under the UNFCCC such as eradication of poverty, economic development, and public participation. It incorporates a number of issues that are relatively new to the international climate negotiations: human rights, the rights of Indigenous Peoples, local communities, migrants, children, persons with disabilities, people in vulnerable situations, gender equality and the empowerment of women. It also notes the importance of Mother Earth and climate justice.
[11] It aims to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2°C above pre-industrial levels and to pursue efforts to limit the increase even further to 1.5°C (article 2.1 (a)).
[12] See e.g., recital 4, 5, 7, article 3, article 4.15.
[13] This context of poverty eradication is not explicitly mentioned in article 6.2 and 6.4.