Kate Cook Matrix Chambers 16 November 2017 Supporting the UNFCCC and the Paris Agreement through International Dispute Settlement: A Proposed Checklist Kate Cook Matrix Chambers 16 November 2017

Aim of the Checklist: Measure Impacts of Dispute Settlement Processes on PA Implementation Important for the implementation and delivery of the PA that Parties and other stakeholders understand the impact of a range of dispute settlement procedures on the delivery of PA objectives, targets and strategies. One way to gather this information would be to conduct a ‘climate change impact assessment’ of dispute settlement processes and rulings. Clearly difficult where proceedings are confidential, however many processes are transparent. The development of a common approach by which to compare approaches and outcomes across a range of international processes could be useful.

General Questions: To what extent can/does the Tribunal in question have regard to the UNFCCC/PA as a source of law? To what extent can/does the Tribunal take the PA into account in relation to the market for investment and/or in terms of context for state action in response to climate change? What access do non-parties to the dispute have to the process (interventions, transparency) so as to allow issues relating to implementation of PA to be raised/addressed? How does the Tribunal address evidential issues relevant to PA implementation in the context of a dispute including: scientific issues (BAS), socio-economic impacts (resilience) and human rights impacts?

7 Key issues (non-exhaustive) Prevention of Dangerous Anthropogenic Interference with the Climate System Delivery of the NDC Finance Flows Adaptation Loss and Damage Transparency Human rights integration

Preventing Dangerous Interference with the Climate System: Context for Disputes is not Business as Usual The Parties to the PA have emphasised with: serious concern the urgent need to address the significant gap between the aggregate effect of Parties’ mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels United States Secretary of State John Kerry described the outcome of COP21 in the following terms: The result will be a very clear signal to the marketplace of the world that people are moving into low carbon, no carbon, alternative renewable energy ... Three additional new targets for action: 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, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty. (A4(1)PA

NDC Delivery and Legitimate Expectation? The investor will have a right of protection of its legitimate expectations provided it exercised due diligence and that its legitimate expectations were reasonable in light of the circumstances. Consequently, an investor must anticipate that the circumstances could change, and thus structure its investment in order to adapt it to the potential changes of legal environment. Parkerings-Compagniet v Republic of Lithuania Expectation of ratcheting up-NDC ‘progression’ at least every five years Expectation that NDC based on BAS Expectation that will include EWAERT (developed) and move towards EWERT (developing) A4(2) PA: Parties ‘shall prepare, communicate and maintain’ NDC Parties ‘shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions’

Finance Flows Analysis of ‘finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development’? Implications of compensation awards in this regard? Does Tribunal address any issue relating to fossil fuel subsidies with regard to A2PA?

Adaptation: reduce vulnerability and increase climate resilience Context for disputes: adaptation plans addressing sea level rise; access to natural resources including land; disaster risk reduction; food security Does the tribunal have regard to PA goals of reducing vulnerability and increasing resilience in assessing lawfulness of state action or the implications of investor claims? How are the implications of the dispute for affected populations addressed/weighted? The IPCC has defined resilience as: The ability of a social or ecological system to absorb disturbances while retaining the same basic structure and ways of functioning, the capacity for self organization and the capacity to adapt to stress and change (IPCC AR4, 2007). Resilience is referred to in A’s 2(1)(b), 7, 8 and 10 PA. A 7(9)(e) refers to the resilience of socioeconomic and ecological systems, picking up the scope of the IPCC use of the term. Article 7(5) PA adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems, with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate;  

Transparency Mutual trust and confidence and effective implementation of the PA depend on operation of the enhanced transparency framework, A 13 A13(7): States required to provide: (a) National inventory report on emissions and removals (b) Information necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4. States should report decisions which have impeded progress in delivering NDC?

Loss and Damage Safeguarding priority actions under A8/WIM including early warning systems, emergency preparedness, comprehensive risk assessment and management; Will tribunals protect a state’s regulatory space to secure these?

Integrating Human Rights Existing obligations referenced in the Preamble: ‘respect, promote and consider’ Does the Tribunal have regard to these when assessing the lawfulness of state action? Does the Tribunal have regard to impact of dispute on human rights of those affected? The right to life: procedural and substantive obligations The right to an adequate standard of living Participation rights-access to information about risks and consultation rights