1 June 2022

While climate negotiators are beginning to gather in Bonn for the 56^th session of the UNFCCC subsidiary bodies and their pre-conference coordination meetings, we have just released the new version of our App on the Paris Agreement “Paris Agreement A – Z”.

You can download the new version which reflects parties’ decisions adopted in Glasgow from Google Play at https://play.google.com/store/apps/details?id=com.lri.parisagreement&gl=GB and the App Store at https://apps.apple.com/gb/app/paris-agreement-a-to-z/id1560932012. We really welcome any feedback!

Following the adoption of guidance on the international transfer of mitigation outcomes, as well as rules and procedures for a centrally governed crediting mechanism to support sustainable development under Article 6 of the Paris Agreement, we have also published a briefing paper that summaries the relevant decisions: https://legalresponse.org/wp-content/uploads/2022/05/LRI-briefing-2022-1.pdf

We hope these knowledge products will make it easier for climate law and policy makers from around the globe to navigate the ever-growing body of UNFCCC rules and processes.

28 April 2022

While the annual global climate conferences (the so called “COPs”) are extensively covered by the world’s media, the meetings of the two technical bodies – the Subsidiary Bodies for Scientific and Technological Advice (SBSTA) and for Implementation (SBI) – attract a lot less attention. They are, however, the ones where most of the substantive decisions subsequently taken at the COPs are prepared, and take place at the seat of the UNFCCC secretariat in Bonn, Germany. The next, 56^th, session of both bodies (the “SBs”) will take place from 6 to 16 June 2022. Some of the important items on the programme of the meetings include:

• The need to urgently scale up ambition and implementation of mitigation commitments: the Subsidiary Bodies will initiate their consideration of this matter with a view to recommending a draft decision for adoption at the next meeting of the Paris Agreement’s governing body (CMA4) in Egypt in November 2022.
• At COP26 Parties agreed on a process that will lead to setting a new collective quantified goal on climate finance from a floor of 100 billion USD per year. The first Technical Expert Dialogue under the Ad hoc Work Programme on the New Collective Quantified Goal on Climate Finance took place in South Africa in March. The next expert dialogue will take place in Bonn.
• SB56 will see the launch of a work programme to operationalise the Global Goal on Adaptation, established under Article 7 of Paris Agreement to ensure an adequate adaptation response to climate change. The first in-session workshop will be conducted under the work programme.
• Progress on operational modalities and institutional arrangements for the Santiago Network on Loss and Damage, set up at COP25 in Madrid to catalyse technical assistance for loss and damage. The first meeting under the Glasgow Dialogue, established at COP26 to discuss arrangements for the funding of loss and damage, will also take place. The issue is critical for many developing countries which will be pushing for some tangible outcome on this, in the form of a dedicated funding mechanism.
• While the parties in Glasgow agreed on further rules for the implementation of the Paris Agreement, such as common time frames for Nationally Determined Contributions (NDCs), reporting under the transparency framework and the establishment of carbon markets, some issues were deferred for further consideration in 2022. This includes options for conducting reviews of the information related to adaptation reported under the transparency framework; further guidance on cooperative approaches under Article 6.2 of the Paris Agreement (e.g. whether internationally transferred mitigation outcomes, “ITMOs”, could include emission avoidance).
• The first meeting of the technical dialogue under the Global Stocktake established to assess collective progress towards achieving the purpose and long-term goals of the Paris Agreement. This is the start of the second phase of the Stocktake, the technical assessment of information provided by Parties and others, such as constituted bodies, UN agencies and observer organisations.

12 March 2022

The military action by the Russian Federation in and against the Ukraine is a flagrant violation of international law. It harms and threatens the lives and security of millions of people and puts in question the stability and functioning of the whole multilateral system created after World War II to maintain peace and solve problems through international cooperation. The international community’s efforts to address climate change will be thrown back at various levels. So how can the parties to UN Framework Convention on Climate Change (UNFCCC) and/or the Paris Agreement collectively respond?

There is no provision in the UNFCCC or the Paris Agreement that would allow parties to expel Russia, suspend its membership or ban representatives from participating in meetings. This is different under other international treaties such as the 1949 Statute of the Council of Europe. Under Article 8 any member state that has seriously violated its fundamental obligations under the treaty may be suspended from its rights of representation, requested to withdraw and if it does not do so, the Committee of Ministers can decide that it ceases to be a member of the Council from a certain date.¹

As there are no specific provisions in the UNFCCC and the Paris Agreement the general rules under the 1969 Vienna Convention on the Law of Treaties (VCLT) apply.² Here Article 60 paragraph 2 inter alia states that a material breach of a multilateral treaty by one party entitles the other parties to suspend the operation of the treaty (in whole or in part) in relation to the defaulting state by unanimous agreement. To do so the action by the Russian Federation must have violated “a provision essential to the accomplishment of the object or purpose of the treaty” (Article 60 paragraph 3 VCLT).

Relevant provisions in the UNFCCC could be the commitment to protect the climate system for present and future generations (Article 3 para.1), to cooperate to promote a supportive and open international economic system (Art.3.5) or to take measures on the mitigation of climate change (Art.4.2(a)). Because of the rather general and vague nature of these norms, however, legal arguments could swing both ways and parties may, to the extent possible, also have to utilize the dispute settlement procedure in Article 14 as “lex specialis” (Art.60.4 VCLT) first.³ Finally, the decision to suspend the operation of the UNFCCC in relation to the Russian Federation would require unanimity by all other parties.

Under their Draft Rules of Procedure, the Conference of UNFCCC parties (COP) could refuse to accept the credentials of the representatives of the Russian Federation (Draft Rule 21).⁴ Such a decision could be taken by consensus which, according to the previous practice of the negotiation process, does not require unanimity but only the absence of (significant) stated objections. The accreditation process aims to verify that parties’ representatives at a meeting have been properly authorized by the competent government authorities – namely the Head of State/Government or the Minister of Foreign Affairs (Draft Rule 19).

In the early 1970s the UN Assembly consistently declined to accept South Africa’s credentials and, in this way, sought to exclude the apartheid regime from participating in the work of the UN. Since, however, the formal authorization of the South African representatives was in order, many lawyers held that their exclusion from the General Assembly was illegal. But who knows whether the Russian Federation will even send a delegation to the next climate conferences? And if not, it will be easier to agree on some (compromise) text to condemn the action by the Russian state in a COP decision.

1 A decision to suspend the Russian Federation from its rights of representation in the Committee of Ministers and in the Parliamentary Assembly was adopted on 25 February 2022.
2 Russia acceded the Convention on 29 April 1986. It is generally accepted that the Convention reflects rules of international customary law.
3 The law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis).
4 The draft rules of procedure were never adopted (because of disagreements about voting) but are consistently applied (with the exception of the contentious provisions) during meetings of the parties.