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.