- If the USA were to adopt an obstructive stance, could an argument be made that they are not complying with their obligation to negotiate in good faith? What is the scope of Pacta sunt servanda and the obligation of good faith in this context ?
- What are the SB chairs’ and COP President’s powers should the USA try to obstruct the negotiations ?
- Given the practice of parties to adopt decisions and conclusions by consensus (in the absence of agreement on voting rules), what is the meaning of consensus and would it apply in a situation where one party only (USA) would raise objections to the adoption of a decision, if this particular Party had officially announced its intention to withdraw ?
1. If the USA were to adopt an obstructive stance, could an argument be made that they are not complying with their obligation to negotiate in good faith? What is the scope of Pacta sunt servanda and the obligation of good faith in this context ?
‘An obstructive stance’ could of course cover a multitude of behaviours. The US government has now provided some clarification of its intentions in its note to the UN of 4 August 2017 and its media release of the same date.
The Note states:
‘This is to inform the Secretary-General, in connection with the Paris Agreement, adopted at Paris on December 12, 2015 (“the Agreement”), that the United States intends to exercise its right to withdraw from the Agreement. Unless the United States identifies suitable terms for reengagement, the United States will submit to the Secretary-General, in accordance with Article 28, paragraph 1 of the Agreement, formal written notification of its withdrawal as soon as it is eligible to do so. Pending the submission of that notification, in the interest of transparency for parties to the Agreement, the United States requests that the Secretary-General inform the parties to the Agreement and the States entitled to become parties to the Agreement of this communication relating to the Agreement.’
The Media release states:
‘Today, the United States submitted a communication to the United Nations, in its capacity as depositary for the Paris Agreement, regarding the U.S. intent to withdraw from the Paris Agreement as soon as it is eligible to do so, consistent with the terms of the Agreement. As the President indicated in his June 1 announcement and subsequently, he is open to re-engaging in the Paris Agreement if the United States can identify terms that are more favourable to it, its businesses, its workers, its people, and its taxpayers.
The United States supports a balanced approach to climate policy that lowers emissions while promoting economic growth and ensuring energy security. We will continue to reduce our greenhouse gas emissions through innovation and technology breakthroughs, and work with other countries to help them access and use fossil fuels more cleanly and efficiently and deploy renewable and other clean energy sources, given the importance of energy access and security in many nationally determined contributions.
The United States will continue to participate in international climate change negotiations and meetings, including the 23rd Conference of the Parties (COP-23) of the UN Framework Convention on Climate Change, to protect U.S. interests and ensure all future policy options remain open to the administration. Such participation will include ongoing negotiations related to guidance for implementing the Paris Agreement.’
Effect of the Note and Statement
The reference in the Note to Article 28, paragraph 1 of the Agreement indicates that the US Government is not minded to withdraw from the UNFCCC, but only from the Paris Agreement, and only in accordance with its terms. The Paris Agreement came into force for the USA on 4 November 2016, so the USA cannot serve notice until 4 November 2019 and therefore remains party until 4 November 2020 at least. This statement implies that the US Government accepts that it is bound by the terms of the Agreement until it actually withdraws, on 4 November 2020 at the earliest. It also follows that they are not planning to walk away from the Agreement in the meantime.
The Note has no legal effect. It serves the political purpose of informing parties that the US is looking to ‘identify terms that are more favourable to it’. As pointed out by Susan Biniaz in a very useful blog post of 6 August, the US statements have left open how it might seek to achieve that. One possibility is to propose amendments to the Paris Agreement. Another is to modify its “nationally determined contribution,” i.e., the U.S. emissions target. Another option is to seek “suitable” or “more favourable” terms within the Paris-related guidelines that are currently being negotiated. The US might try all or any one of these.
These statements appear to have been drafted by or in consultation with State Dept legal advisers, as they map out an approach that is consistent with the USA’s treaty obligations, or at least could reasonably be argued to be. So, assuming this approach prevails, any ‘obstructive stance’ is likely to take the form of the US attempting to negotiate amendments to the Agreement, US tabling unpopular proposals in the COP or APA, or objecting to positions which could otherwise form the basis for consensus, rather than non-participation.
Meaning of ‘pacta sunt servanda’
It is generally accepted that ‘good faith’ is a general principle of international law. It functions as a principle rather than a rule; it guides interpretation of rules.  Its content is difficult to define in the abstract. It underlies a number of more specific rules and principles, such as the ‘‘pacta sunt servanda’ principle of treaty relations. This latter principle is set out in the Vienna Convention on the Law of Treaties, Art 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. Although the USA is not party to the Vienna Convention, it accepts that most of its provisions reflect the customary international law of treaties and clearly Article 26 is one of those, and therefore applicable to the USA.
The Paris Agreement is a treaty and is binding on the USA. The USA is obliged to perform its obligations under the Paris Agreement in good faith, for so long as it remains party to it. This obligation will continue until the date of withdrawal, ie if and when the USA serves formal notice of withdrawal, its obligation to perform its treaty obligations in good faith will continue during the year of notice until the actual withdrawal, which could not be before 4 November 2020.
Not all the provisions of the Paris Agreement are equally concrete – some have a subjective or hortatory element. The ‘pacta sunt servanda’ principle does not convert any individual provision of the Agreement into a harder obligation; each provision has to be interpreted on its own terms (eg ‘should’ normally indicates an exhortation, whereas ‘shall’ normally indicates a hard obligation). However, even imprecise obligations of endeavour must be interpreted in good faith, in light of the treaty’s objectives. For example, Article 4 leaves considerable latitude to Parties, but if the USA did not ‘prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’ or if it did not ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’ in good faith, that would be a breach of Article 4. The good faith principle might come into play in assessing the genuineness of the link between the measures and the objectives.
Meaning of ‘obligation to negotiate in good faith’
Is there an obligation on the USA to negotiate in good faith, in relation to decisions of subsidiary bodies under the Paris Agreement, or amendments to the Agreement?
The ‘Pacta sunt servanda’ principle of treaty relations applies only to treaties which are in force for the party concerned. It obliges States to perform existing obligations in good faith but not to negotiate or agree to any new treaty obligation. If the USA were to put forward a position or proposal in a subsidiary body that would undermine the Paris Agreement’s aims as set out in Article 2, or would be inconsistent with the US’s obligations under Article 3 or related articles, it could be argued that it was not negotiating in good faith. However, I’m not sure what a bad faith accusation would add to the substantive argument that the US proposal or position is inconsistent with a specific provision of the Agreement by which it is already bound. It is usually difficult to find documentary evidence of a State’s intentions, and bad faith cannot be presumed; it has to be demonstrated by objectively discernable acts.
When a State is under a duty to negotiate with another State or States, due to an existing treaty or other obligation, there is an obligation to do so in good faith, in the sense that the negotiation process must not be treated as a mere formality. The requirements of good faith in negotiations have been elaborated in a number of decisions by international courts and tribunals, such as Lake Lanoux Arbitration (Spain v France), in which the tribunal gave as examples of conduct which would not meet this requirement: ‘unjustified breaking off of the discussions, abnormal delay, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests’. This does not however amount to an obligation to conclude a new agreement. Although the requirements of good faith in negotiations have so far been considered in the context of bilateral relations, the same principles could be applied in a multilateral context, where there is a duty to negotiate.
The question is, what further negotiations are the parties to the Paris Agreement committed to? The Agreement itself does not contain any express obligation to negotiate further agreements of a specific kind. However it does clearly set up institutions and processes under the overall charge of the CMA, which is tasked with the regular review of the implementation of this Agreement and shall make, within its mandate, the decisions necessary to promote its effective implementation (Article 16). Decision 1/CP.21 adopting the Agreement sets out more detail of the future work of these treaty bodies, from which it is clear that the Parties envisaged that, as the Agreement is only a framework agreement, further rules, mechanisms, procedures etc would need to be developed and adopted, in order to give effect to it. A decision of the Conference of Parties is not binding in itself, but this decision could be considered part of the context which is relevant for interpreting the provisions of the Agreement, as it is an ‘agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’ (see Vienna Convention on the Law of Treaties, Article 31(2)(a)).
There is therefore a possible basis for arguing that the USA is under a duty to negotiate further matters, where these are mandated by the general provisions of the Agreement and elaborated in Decision 1/CP.21. The principle of good faith would apply to the conduct of the USA in such negotiations up to the date of withdrawal from the Agreement, at least in relation to matters to be performed by the USA before that date. If the USA has given formal notice to withdraw, the USA could not be expected to participate actively in negotiations on matters to be performed after its withdrawal, although any attempt to block other parties from decisions on their future action after the US withdrawal could be regarded as an example of acting in bad faith. This might inform the approach of the Chair in deciding whether to declare consensus in spite of US opposition (see below).
If the USA were to propose an amendment to the Agreement that is inconsistent with Article 2, with the stated intention of renegotiating the agreement for the period after 2020, it would be hard to argue bad faith given that the USA would legally be free to leave the Agreement altogether. Provided the USA complies with its existing obligations up to the date of withdrawal, it is free to propose any new agreement it wishes for after that date. However, if its proposals are inconsistent with the aims of the Paris Agreement, there would be no obligation on other States to negotiate with the USA on the basis of such proposals.
2. What are the SB chairs’ and COP President’s powers should the USA try to obstruct the negotiations ?
The Conference of the Parties of the UNFCCC serves as the meeting of the Parties to the Paris Agreement (CMA) (Article 16 of Paris). With regard to Rules of Procedure, Art 16(5) provides:
The rules of procedure of the Conference of the Parties and the financial procedures applied under the Convention shall be applied mutatis mutandis under this Agreement, except as may be otherwise decided by consensus by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.
The first CMA in January 2017 adopted the ‘Rules of procedure of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’ (Decision 2/CMA.1). This decision lists a handful of modifications to the UNFCCC draft Rules.
The CMA Chair’s powers are set out in Rule 23 of the UNFCCC draft Rules. When applied to the CMA, the rules concern control of the conduct of the CMA sessions including ensuring observance of the rules at those sessions, under the authority of the CMA. So, the CMA or SB chair has the right to decide the order of business, call speakers and deal with points of order.
Rule 27 provides that the rules apply mutatis mutandis to the proceedings of SBs.
See also Rule 30 on the Conduct of Business.
The Chairs’ formal powers do not extend outside of sessions, so are only relevant if the USA should use disruptive tactics in the meetings themselves. So if they try something as crude as eg speaking out of turn, the Chairs will have the usual powers to deal with it. But that doesn’t seem very likely. It seems the US delegation is planning to engage in the meetings in a conventionally diplomatic manner, so the formal powers of the Chairs are unlikely to be called upon in this way.
3. Given the practice of parties to adopt decisions and conclusions by consensus (in the absence of agreement on voting rules), what is the meaning of consensus and would it apply in a situation where one party only (USA) would raise objections to the adoption of a decision, if this particular Party had officially announced its intention to withdraw ?
Meaning of ‘consensus’
Clearly, as Rule 42 of the draft UNFCCC rules on Voting has not been adopted, it does not apply to the CMA. So, like the COP, the CMA can only adopt decisions ‘by consensus’.
Although draft Rule 42 refers to ‘consensus’ it does not define it. There is no universally applicable legal definition. In the UN context, where decisions are routinely said to be adopted ‘by consensus’, what is actually meant is that the decision was adopted without a vote, in the absence of any stated objection, either to the substance of the decision or to the procedure of adopting it without a vote. It is, in my experience at the UN and other international conferences, generally understood that if a single delegation objects, the decision may not be adopted without a vote, ie any one delegation can block consensus. However, in the UN and at most international conferences, if one delegation objects, either to the decision itself or to it being adopted without a vote, a vote will take place. That will happen because the rules of procedure provide for decisions to be taken by vote, usually simple majority or two-thirds majority, depending on the type of decision. If there is only one or a small number of objecting delegations they can thus be outvoted. In the UNFCCC context, there is no possibility of voting and so greater efforts have to be made to reach consensus. Unsurprisingly, this imperative may on occasion colour the notion of a ‘consensus’.
‘Consensus’ in spite of an objection?
At Cancun, the notion of consensus was stretched beyond its normal meaning. The Chair declared there was consensus despite the stated objection of one State (Bolivia). However, I don’t think this signals any general shift in the accepted meaning of ‘consensus’. The Cancun Chair took a calculated political risk, judging that the overwhelming mood in the room was against Bolivia and that Bolivia would not challenge the decision after the event. It is very unlikely that a Chair would take such a risk against a powerful State such as the USA. There are a few other reported examples of Chairs bringing down the gavel on ‘consensus’ despite one or more delegation having asked for the floor, but none where the objection of an important State was overridden. So if the USA were to state its formal objection to a decision on which consensus is required, it could effectively block its adoption.
‘Consensus Minus One’
If the USA were opposed to a decision but did not wish to block other parties from adopting it, there is a precedent that might be useful. When the UN General Assembly adopted a resolution to establish diplomatic negotiations on the Statute for the International Criminal Court (in the mid-90s), the USA stated that it did not wish to block its adoption without a vote, but wished to disassociate itself from the decision. Technically, when a decision is adopted without a vote (or by ‘consensus’), it means that all delegations are in favour or not opposed, so it would follow that if there had been a vote they would have voted For or Abstain. The USA wished to record the fact that if there had been a vote they would have voted against, but without calling for a vote, so they agreed that it could be adopted on the basis of ‘consensus minus one’, and this is how it was done. This could be a useful diplomatic tool for the Chair to use in the future, should a similar situation arise.
The effect of an official USA withdrawal from the Paris Agreement
The announcement made by the USA on 4 August 2017 has no legal effect and cannot affect the meaning of consensus.
If, after 4 November 2019, the USA were to give official notice of withdrawal, there would be a period of one year in which the USA is still party to the Paris Agreement and therefore entitled to participate in decision-making. Legally, all its rights and obligations as a party would continue until the withdrawal takes effect. So a US objection would suffice to block a decision. Whether a Chair would dare to bring down the gavel on a decision despite a US objection would depend on the political context. If it were an attempt to block future action by parties after US withdrawal, the Chair might decide to disregard it if there was overwhelming support from others for doing so. Most likely, the political context would be dominated by the hope of persuading the USA to cancel its withdrawal or rejoin, and on that scenario it is harder to imagine that a US objection would not be respected by the CMA up to the date its withdrawal takes effect.
_______________________________________ http://www.climatechangenews.com/2017/08/07/trump-tells-un-intention-leave-paris-climate-accord-full/  Biniaz’s comments are worth reading in full. She was until recently the State Dept legal adviser on climate change. http://blogs.law.columbia.edu/climatechange/2017/08/06/the-u-s-communication-regarding-intent-to-withdraw-from-the-paris-agreement-what-does-it-mean/  J Crawford, Brownlie’s Principles of Public International Law, 8th ed, 2012, at 37.  (1957) 12 R.I.A.A. 281; 24 I.L.R. 101.See also North Sea Continental Shelf Cases (Germany v Denmark/ Netherlands) (Merits)  ICJ Rep 3; and Case concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits)  ICJ Rep 18.  Lake Lanoux, Ibid, at p23.  For discussions on the meaning of ‘good faith’ in negotiations, see eg H Thirlway, ‘I General Principles and Sources of Law, Division A: General Principles, Ch.I: Good Faith and Related Principles’, in The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence Volume II, Oxford, 2013, A D’Amato, ‘Good Faith’ in Encyclopedia of Public International Law 599-601 (1992), S Reinhold, ‘Good Faith in International Law’, UCL Journal of Law and Jurisprudence 2013, 40-63; There is also a new book (which I haven’t read): R Kolb, Good Faith in International Law, Hart, July 2017.  http://unfccc.int/resource/docs/2016/cma1/eng/03a01.pdf  See article by Akande for examples: https://www.ejiltalk.org/negotiations-on-arms-trade-treaty-fail-to-adopt-treaty-by-consensus-what-is-the-meaning-of-consensus-in-international-decision-making/  See L Rajamani, “The Cancun Climate Agreements: Reading the Text, Subtext and Tea Leaves”, (2011) 60 ICLQ 499, esp at 518: ‘The open-textured interpretation of consensus applied in Cancun also has the potential to amplify power imbalances. It is inconceivable, for instance, that China would be overruled in the fashion that Bolivia was—however sustained the applause. The determining factor, then, it appears is the extent to which the objecting State is politically consequential to the effective implementation of the decision.’