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The Paris Agreement on Climate Change - Analysis and Commentary edited by Klein, Daniel; Carazo, María Pía; Doelle, Meinhard; Bulmer, Jane; Higham, Andrew (6th July 2017)

Part II Analysis of the Provisions of the Agreement, 6 Contextual Provisions (Preamble and Article 1)

María Pía Carazo

From: The Paris Agreement on Climate Change: Analysis and Commentary

Edited By: Daniel Klein, María Pía Carazo, Meinhard Doelle, Jane Bulmer, Andrew Higham

Gender — Human rights remedies — Climate change — Environmental disputes — Treaties, interpretation

(p. 107) Contextual Provisions (Preamble and Article 1)

A.  Preamble

1.  General overview

The preamble of an international treaty usually contains the objectives and considerations that guide the parties.1 Preambular paragraphs2 can perform several functions, depending on their content.3 Even though not possessing legally binding force in themselves, preambles of international treaties are of great relevance for the interpretation4 and the implementation of a treaty.

Many of the preambular paragraphs of the Paris Agreement have parallel provisions in the operative part. This is relevant, since the coupling of preambular paragraphs with operative provisions gives the former more binding character, according to well-established doctrine and law.5 This is also the case with regard to clauses that incorporate well-established principles of international law. The binding nature of preambular pararaphs derives then—with very few exceptions6—from sources of law outside the preamble.

Unique for the Paris Agreement is the fact that it goes beyond the realms of international climate and environmental law in various ways. In particular, it is the first multilateral environmental agreement to incorporate references to human rights, the rights of particular groups, gender equality, and inter-generational equity.7

2.  Negotiation history

The preamble played an important strategic role throughout the negotiations leading to the Paris Agreement. The textual proposals on the table by 2015 covered a (p. 108) broad range of substantive areas and specific concepts, with the number of paragraphs stabilizing—from over forty preambular paragraphs with numerous sub-options in the Geneva negotiating text8—to around fifteen paragraphs in the draft text of October 20159 and in the Draft Outcome forwarded to the Conference of the Parties (COP) after the first week of the Paris Conference.10 However, the preamble continued to be subject to intense consultations and its content remained unclear until the very end.11

The dynamics of the preamble negotiations involved not only parties but also many specific interest groups, from civil society through to UN bodies and organizations who lobbied parties and the Presidency of the Conference of the Parties (COP) throughout the process.12 These groups were successful at influencing parties to champion their particular cause. Often it was these issues which negotiators were addressing, in addition to specific interests of parties.

One of the main issues concerned the framing of language on human rights and group rights, as well as various concepts such as ecosystem integrity, climate justice, and Mother Earth, and their placement in the Agreement. Some parties, among them Mexico, the Philippines, Canada, and Costa Rica, pushed for the inclusion of strong human rights language in the operative part of the text. Civil society groups also exerted substantial pressure on parties for this purpose.13

Language on human rights and the other topics mentioned above was incorporated into both the preamble and Article 2 of the negotiating text in Geneva, in February 2015.14 Later on, in Paris, several parties formed a ‘Friends of the Principles’ group to further press for those issues to remain in the text.15

Regarding human rights, some parties were not in favour of their inclusion in the operative part.16 Another party supported the inclusion of human rights language in (p. 109) the operative part of the Agreement but not in Article 2. Since Article 2 states the purpose of the Agreement, such an inclusion, argued the delegation, would render the global stocktake very difficult if not impossible—unless some indicators for human rights were also included in the Agreement, which was out of the question for the majority of parties.17

In the second week of the negotiations in Paris, the President of the COP announced consultations on the preamble, led by Venezuela’s head climate negotiator. This proved to be a successful strategic step by the Presidency, enabling parties to negotiate the placement of such contended issues more appropriately. The result of the work was praised by the facilitator of those consultations as an ‘immensely revolutionary Preamble’.18

3.  Substantive analysis

3.1  Positioning the Paris Agreement within the climate change regime (paragraphs 1–2)

The Parties to this Agreement,19

Being Parties to the United Nations Framework Convention on Climate Change, hereinafter referred to as “the Convention”,

Pursuant to the Durban Platform for Enhanced Action established by decision 1/CP.17 of the Conference of the Parties to the Convention at its seventeenth session,

The opening phrase of the preamble, ‘The Parties to this Agreement’, is one of the many indicators that the Paris Agreement is a treaty under international law.20 The first paragraphs place the Agreement within the regime under the United Nations Framework Convention on Climate Change (UNFCCC). Preambular paragraph 1, representing standard language in such cases, is echoed in the operative part in Article 20.1 according to which only parties to the UNFCCC can be parties to the Agreement.21 The placement of the Paris Agreement under the umbrella of the UNFCCC is further emphasized in preambular paragraph 2 with the reference to the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) and Decision 1/CP.17.22

3.2  Object and purpose of the Agreement (paragraphs 3–4)

(p. 110)

In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,

Recognizing the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge,

Parties often state their motivation for entering into an agreement in the preamble. The preamble becomes, in turn, relevant for ascertaining the object and purpose, as well as for interpreting the operative provisions of the treaty. By upholding their resolve to enter into an agreement ‘in pursuit of the objective of the Convention’, parties incorporated the objective of the UNFCCC into the Paris Agreement.23 The objective of the UNFCCC is also referred to in Article 2.1. When defining the object and purpose of the Agreement, preambular paragraphs 3 and 4 must thus be read in conjunction with Article 2.1.24

The negotiating parties went beyond the preamble of the UNFCCC by recognizing the ‘need for an effective and progressive response to the urgent threat of climate change’.25 The inclusion of the phrase ‘urgent threat of climate change’ evidences the parties’ acknowledgement of the seriousness of the problem, and the need for a swift, effective, and progressive response on the basis of the best available scientific knowledge.26 This reflects the shift in parties’ appreciation of the imminent threat of climate change and their willingness to address it.27

3.3  Guiding principles, common but differentiated responsibilities and respective capabilities (paragraph 3), specific needs, and special circumstances (paragraphs 5 and 6)

Also recognizing the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, as provided for in the Convention,

(p. 111) Taking full account of the specific needs and special situations of the least developed countries with regard to funding and transfer of technology,

Preambular paragraph 328 also requires that parties be guided by the principles of the Convention, ‘including the principle of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’.29 The phrase ‘in light of different national circumstances’ stems from the bilateral agreement between China and the United States of early 2014.30 It was incorporated into the negotiation text in Lima,31 and brings a new dimension to the CBDRRC principle. This addition to the principle is one result of the hard-fought compromise reached by the parties regarding differentiation.32

Preambular paragraph 5 is relevant in this context, containing a special reference to those considered particularly vulnerable ‘as provided for in the Convention’.33 Also related to the issue of differentiation is preambular paragraph 6 that mentions the specific needs and special situations of least developed countries (LDCs) in respect of funding and transfer of technology.34

3.4  Impacts of climate change effects and measures, interlinkages with sustainable development, eradication of poverty, food security, just transition of the workforce, and sustainable lifestyles (paragraphs 7–10 and 16)

Recognizing that Parties may be affected not only by climate change, but also by the impacts of the measures taken in response to it,

Emphasizing the intrinsic relationship that climate change actions, responses and impacts have with equitable access to sustainable development and eradication of poverty,

(p. 112) Recognizing the fundamental priority of safeguarding food security and ending hunger, and the particular vulnerabilities of food production systems to the adverse impacts of climate change,

Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities,

Also recognizing that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change,

(a)  Impacts of response measures (paragraph 7)

One of the reasons why the negotiations leading up to the Paris Agreement were so difficult and complex was that they also revolved around issues of an economic and developmental nature. This complexity is visible in the preamble as well as throughout the text of the Paris Outcome.

Preambular paragraphs 7–10 are particular forms of expressing the various interlinkages between climate change and sustainable development. Preambular paragraph 7 is a reminder of the impacts that measures to combat climate change, so-called response measures, may have on parties and thereby implicitly of the call to take those into consideration when implementing the Agreement.35

(b)  Equitable access to sustainable development and the eradication of poverty (paragraph 8)

In this paragraph, parties emphasize the intricacy of the relation between climate change actions and impacts on the one hand and ‘equitable access to sustainable development and the eradication of poverty’ on the other. The specific concept of ‘equitable access to sustainable development’ is quite unique to the UN climate change context.36 Originating from a proposal by India in the negotiations ensuing from the Bali Action Plan, and supported by other developing countries, in particular from the ALBA group37 and the Like-minded developing countries (LMDCs), it found reflection in various COP decisions from 2010 to 2012. It points to the notions of equity and fairness with regard to the distribution of climate change action and support and, probably most important, to the development context and needs of developing countries.38

(p. 113) The broader concept of sustainable development provides, together with the goal of poverty eradication, the context for action in many of the operational provisions of the Agreement, such as Articles 2.1, 4.1, and 6.8.39 Such repetition of similar language in a preambular and operative paragraphs is not irrelevant. Preambular paragraph 8 obtains an enhanced legal weight from this conjunction—as well as from the incorporation of the well-established principle of sustainable development. Due to the reasons explained above40 paragraph 8 should therefore be read together with Article 2.1 and Article 4.1 when interpreting the Agreement.

(c)  Safeguarding food security, ending hunger and particular vulnerabilities of food production systems to climate change (paragraph 9)

The preamble stresses the ‘fundamental priority of safeguarding food security and ending hunger’. The explicit reference to ‘ending hunger’ is new in the UN climate change context and one of the signals that parties were very aware of the Sustainable Development Goals (SDGs) adopted the same year, in particular SDG 2.41 The connection to food security is already built into the UNFCCC’s objective, which states that the stabilization of GHGs in the atmosphere should be achieved ‘within a time frame … to ensure that food production is not threatened’.42 This connection is also echoed in Article 2.1(b), according to which parties aim for increasing adaptive capacity and resilience without threatening food production.43 Both point to the intrinsically related challenges of avoiding adverse effects on the agricultural sector that some climate change mitigation measures may have, and of accelerating both mitigation and adaptation so to avert detrimental climate change impacts on food security.44 The latter may be the greater of the two challenges.45

(d)  Just transition of the workforce, creation of decent work and quality jobs; sustainability of lifestyles, consumption, and production patterns (paragraphs 10 and 16)

An important social aspect of development addressed by the preamble is the need of ‘ensuring a just transition of the workforce and the creation of decent work and quality jobs’. While the UNFCCC was silent in this regard, the concept of ‘just transition’ had been advocated in the negotiations under the Bali Action Plan and a clause of (p. 114) the same wording had been included in the 2010 Cancún Agreements.46 It confirms the recognition of the parties that the transition towards a low-emission, climate-resilient development will involve a radical departure from the economic model of today. Parties are aware of the implications and of the potential conflict with international and national legal labour provisions.47

The same recognition of the need for changes in economic behaviour underpins preambular paragraph 16 on the importance of sustainable lifestyles and sustainable patterns of consumption and production.48 This is also one of the paragraphs in the Agreement that calls for the leadership by developed country parties.49

3.5  Climate change and human rights (paragraph 11)

Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

(a)  General considerations

Albeit long and complex, preambular paragraph 11 is indeed revolutionary. It is the first time that such a provision has been incorporated in a climate treaty.50 Echoing the language of the UNFCCC, it begins by acknowledging that climate change is a common concern of humankind51 and then sets out the expectation that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’.

The use of ‘should’—indicative of a ‘soft’ obligation—in a preamble is certainly out of the ordinary. Preambular provisions are usually exhortative, formulated using general language and without the intent to create substantive norms. They are primarily relevant for political reasons and to express the motives that led to the conclusion of the treaty. Preambular paragraph 11, however, embodies the will of the negotiating (p. 115) parties that it be used as a guide for the implementation of the Agreement and, as such, breaks new ground.

Preambular paragraph 11 is a good example of an incorporative preambular paragraph that takes into account other obligations under international law.52 Incorporative clauses are built into treaty preambles in order to integrate norms or principles of other areas of international law and also contribute to avoid conflict between different regimes.53 Other multilateral environmental agreements (MEAs) regulate the relationship between regimes in their preambles. What differs is the intent of harmonization. While other MEA preambles have clauses to ensure mutual supportiveness of different regimes,54 the Paris Agreement goes beyond such mutual supportiveness towards a true incorporation of human rights into the Paris Agreement. This may prevent problems regarding the impairment of human rights through mitigation or adaptation projects, such as some that have arisen in the past.55

(b)  Expectation to respect, promote, and consider respective human rights obligations

Importantly, the recognition to ‘respect, promote and consider Parties’ respective human rights obligations’ does not impose additional obligations for parties. The word ‘respective’ was carefully negotiated to assure parties that they were not taking upon new human rights obligations.56 Without such an assurance, human rights language would not have been incorporated into the Paris Agreement. Which obligation a party has would depend on the treaties it has ratified. Relevant for all parties, however, are human rights obligations in the form of customary international law (especially those that are considered to have the force of ius cogens).

It is interesting to notice that parties chose the phrase ‘respect, promote and consider’ instead of the generally accepted duties to ‘respect, protect and fulfil’ human rights.57 The terms ‘fulfil’ and ‘protect’ were considered ‘too operative, that is requiring specific action, for a preambular paragraph’.58 Also, fulfilment may not be the appropriate term to be utilized in a non-human rights treaty, such as the Paris Agreement.

(p. 116) Given that preambular paragraph 11 refers to ‘action to address climate change’, it seems, at first sight, to be unclear whether parties should also consider human rights implications when deciding on their level of ambition. An interpretation of the clause in light of the Agreement as a whole,59 and in light of customary human rights law,60 indicates that parties are indeed expected to take human rights implications into consideration when deciding the level of ambition of their contributions to the global response to climate change. This does not mean that parties would be obliged to choose a disproportionately high level of ambition. Rather, the expectation would be that parties prepare nationally determined contributions (NDCs) that truly reflect their highest possible ambition, within the realm of their possibilities (according to the principle of CBDRRC in the light of different national circumstances).

(c)  Mention of specific human rights

Preambular paragraph 11 continues by listing specific rights to be taken into consideration. These are: the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations, as well as the right to development.61 The inclusion of these rights—and not others—also resulted from the intense lobbying of different interest groups who were not satisfied with the argument presented by the states that all of their interests would be covered by the general term ‘human rights’.62 It is noteworthy that parties explicitly list the ‘right to development’. This denotes the general acceptance of the negotiating parties of the existence of such right, potentially ending the prolonged dispute surrounding this issue in international law. Read in conjunction with the other preambular paragraphs and the operative part of the Agreement, it is understood that this development should be sustainable.

(d)  Gender equality and intergenerational equity

In the last phrase of preambular paragraph 11, parties close by acknowledging their intent to respect, promote, and consider their respective obligations on human rights ‘as well as gender equality, empowerment of women and intergenerational equity’. It is interesting that the negotiating parties did not use right-based language when referring to women (eg ‘the rights of women’). Women’s rights are well contoured in (p. 117) many human rights treaties. One reason for avoiding a right-based approach can be that women’s rights also deal with interpersonal conflict such as harassment, sexual violence, etc. The choice of language may also have been influenced by the recently adopted 2030 Agenda for Sustainable Development (particularly SDG 5) and the desire for consistency with the terminology used in the development context.63 Also, constituencies and interest groups lobbied for the inclusion of the terms ‘gender equality’ and ‘women empowerment’.64

Paragraph 11 similarly does not refer to rights with regard to future generations.65 The resistance to do so may become clear when seen in the context of international environmental and climate law. Such rights are contested, among other things, owing to the difficulty of determining who is the right bearer or who can claim in favour of future generations. Instead, the clause refers to ‘intergenerational equity’. While using this specific term may represent a novelty in UNFCCC instruments, it can be based on a well-consolidated principle in international doctrine and law.66

3.6  Conservation, ecosystem integrity, and the protection of biodiversity (paragraphs 12–13)

Recognizing the importance of the conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases referred to in the Convention,

Noting the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of “climate justice”, when taking action to address climate change,

These two preambular paragraphs take up the issue of sustainable development mentioned above albeit now with a focus on environmental conservation. They link the Paris Agreement with other areas of international environmental law. There is a difference in language here in comparison to paragraph 11, as paragraphs 12 and 13 merely ‘recognize’ and ‘note’ the importance of the issues. Nevertheless, these recitals show the weight that the respective matters had for negotiating parties.

Preambular paragraph 12 reaffirms the importance of conserving and enhancing sinks and reservoirs. Here again there is a direct link between a (p. 118) preambular paragraph and an operative provision of the Agreement, namely Article 5 (in particular Article 5.2),67 bestowing on this preambular paragraph more legal weight.68

Preambular paragraph 13 has an interesting background and shows the power of creative drafting to solve negotiation blockages. The terms ‘Mother Earth’ and ‘climate justice’ were highly contentious during the negotiations. By relativizing these terms (‘recognized by some cultures as Mother Earth’, ‘importance for some of the concept of climate justice’), they could be included in the text of the Agreement appeasing highly vocal parties and interest groups, and at the same time remaining acceptable to other parties. The importance of Mother Earth and climate justice for some parties, interest groups, and constituencies is also the reason why it is embodied in a separate preambular paragraph, departing from the previous negotiating drafts where they were treated in the same paragraph with human rights.

Parties also found in preambular paragraph 13 an encompassing way of referring to the ‘integrity of all ecosystems’ as well as the specific mentioning of oceans and the protection of biodiversity. This responds to long-standing concerns that biodiversity and ecosystem integrity risks are not sufficiently considered by parties when taking climate action. Such clauses can also assume a function of integration and of conflict avoidance with other areas of international law and policy.69

3.7  Procedural duties, training, and education (paragraph 14)

Affirming the importance of education, training, public awareness, public participation, public access to information and cooperation at all levels on the matters addressed in this Agreement,

The parties affirm the importance of education, training, public awareness, public participation and public access to information when taking action to address climate change in preambular paragraph 14. The Paris Outcome—in line with the UNFCCC70—contains specific provisions that deal with this matter: Article 11 deals with capacity-building as encompassing training71 and Article 12 contains a legal duty for parties to cooperate in taking measures to ‘enhance climate change education, training, public awareness, public participation and public access to information’.72 These are complemented by paragraphs 71 to 83 of Decision 1/CP.21. In particular, public access to information and public participation are well-established procedural obligations under international environmental law (including climate change law).73

(p. 119) 3.8  Cooperation and engagement of all levels of government and of various actors in addressing climate change (paragraph 15)

Recognizing the importance of the engagements of all levels of government and various actors, in accordance with respective national legislations of Parties, in addressing climate change,

In preambular paragraph 14, parties also affirm the importance of ‘cooperation at all levels’ on matters of the Agreement. In addition to the rather general reference in paragraph 14, preambular paragraph 15 stresses the importance of the ‘engagements of all levels of government’ and makes specific reference to sub-national and local governments as well as to ‘various actors’ (which includes in particular, non-governmental organizations, civil society, and the private sector). While under the caveat that this be ‘in accordance with respective national legislation’, the paragraph clearly underlines the importance of non-party stakeholders in achieving the objectives of the Paris Agreement, which is expressed in various ways throughout the Paris Outcome.74

4.  Evaluation and outlook: implementation and interpretation of the Paris Agreement in light of the preamble

The preamble of the Paris Agreement mirrors the development of the climate regime since the adoption of the UNFCCC. One notable difference is that the Paris Agreement no longer contains a reference to state sovereignty.75 A second important development is the acknowledgment of the certainty of climate change and the need for urgent and immediate action against it. A third aspect that has changed relates to the differentiation of parties, where certain obligations apply to all parties, with a more nuanced and tailored approach to differentiation.

As mentioned above, the preamble will be of relevance to the interpretation of the object and purpose, and of the provisions of the Agreement. Parties, secretariats, subsidiary bodies, and institutional arrangements of international agreements constantly face the need of interpreting a provision for the correct implementation of their respective treaty. The preamble of the Paris Agreement offers a useful guide to parties for an adequate implementation of all matters of the Agreement, in harmony with other obligations under international law.76

It is likely that national and international organizations, individuals, private corporations, and academia (among many actors) will closely observe and exert pressure on parties throughout the various stages of implementation, to ensure that their instruments and measures are in harmony with the preamble and international law. This could be done through judicial litigation, public participation in the process, other forms of civil society engagement, lobbying, etc.

The preamble of the Paris Agreement is not only a navigational compass for the Agreement itself. It is also a map that guides the positioning of the Agreement within (p. 120) the climate change regime and public international law. It shows points of interconnection and synergy—but also of possible conflict—between the upcoming climate change regime and other areas of international (and national) law and policy, which will have to be addressed.77

B.  Definitions (Article 1)

Article 1

For the purpose of this Agreement, the definitions contained in Article 1 of the Convention shall apply. In addition:

  1. (a)  “Convention” means the United Nations Framework Convention on Climate Change, adopted in New York on 9 May 1992;

  2. (b)  “Conference of the Parties” means the Conference of the Parties to the Convention;

  3. (c)  “Party” means a Party to this Agreement.

1.  General overview

Article 1 is one of the leanest articles of the Paris Agreement, similar to the Kyoto Protocol in its basic approach. It consists of an opening clause which incorporates the definitions contained in Article 1 UNFCCC into the Paris Agreement and defines three additional terms, namely: Convention, Conference of the Parties, and Party.

2.  Negotiation history

Negotiations on Article 1 became relevant after the ADP meeting in Geneva, held in February 2015. Up until that date, draft texts or proposals for the Agreement only contained a placeholder for ‘other definitions as needed’78 as well as a first definition of ‘governing body’.79 In Geneva, parties added several terms to be defined, namely: ‘Convention’, ‘emission reductions’, ‘present and voting’, ‘subsidiary body’, and ‘Party’, as well as various specifications of groups of parties, namely ‘Party included in annex X’, ‘Party included in annex Y’, and ‘Party in annex Z / III’, which mostly corresponded with other proposals for substantive provisions related to mitigation and support.80

(p. 121) This list was reduced by the Co-chairs to three definitions in their draft text prepared for the ADP session in October 2015,81 which was built on the preamble of the Kyoto Protocol and introduced the incorporation clause of the definitions of Article 1 of the Convention.82 This list was, however, expanded significantly during that session to a list of fourteen definitions.83 New terms that had not previously been considered were added, such as definitions for: ‘REDD-plus’, ‘JMA’, ‘climate forcers’, ‘Conference of the Parties’, ‘developed country Party’, ‘developing country Party’ and ‘Party included in Annex I’; as well as placeholders for ‘countries in need of support’ and for ‘climate finance’. Again, many of these proposed definitions were linked to parties’ positions on substantive provisions within the text of the Agreement, which were under negotiation in the context of those respective substantive areas and often highly political, for example the terms which implied a certain way of differentiation among parties.84

At the same time, there was an implicit expectation of parties that many of the definitions which had direct linkages to other provisions in the operative part of the Agreement, would become unnecessary once the parties would have reached agreement on those other issues. During the Paris Conference, work on definitions was therefore largely ‘parked’, and the Draft Paris Outcome forwarded by the ADP to the COP, contained only the clause on the incorporation of the definitions of Article 1 UNFCCC without the attempt to define any other terms.85 The second proposal of the President of COP 21 to the parties presented on 10 December 2015 maintained the general clause, but also reintroduced the three definitions for ‘Convention’, ‘Conference of the Parties’, and ‘Party’.86 This text proved uncontroversial and was adopted by the negotiating parties as part of the final Agreement on 12 December 2015.

3.  Analysis

Article 1 of the Paris Agreement may surprise by its succinctness. This speaks in its favour, however, since it is not likely to be a possible source of future discord among parties. Article 1 does not entail legal obligations. It is nonetheless important given that the incorporation of the definitions contained in Article 1 UNFCCC into the Paris Agreement makes these applicable to all of the Agreement’s provisions. These are the definitions for: adverse effects of climate change, climate change, climate system, emissions, greenhouse gases, regional economic integration (p. 122) organization, reservoir, sink, and source. In general, the inclusion of the definitions of the UNFCCC is not problematic. Rather, it helps to ensure consistency between the Agreement and the Convention. Some of the UNFCCC definitions are of rather limited relevance as the terms are rarely found in the Paris Agreement.87 Others are relevant for specific areas, such as sinks and reservoirs.88 The three additional terms, namely: Convention, Conference of the Parties, and Party, are mainly a technicality to ensure legal clarity.


1  Makane Moïse Mbengue, ‘Preamble’ in Max Planck Encyclopedia of Public International Law para 1 http://opil.ouplaw.com/home/EPIL (last accessed 10 February 2017).

2  Also named recitals or simply paragraphs.

3  These functions can be interpretative, supplementary, incorporative and/or binding (in special circumstances); see Moïse Mbengue (n 1).

4  See Vienna Convention on the Law of Treaties (VCLT) (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 31(2).

5  For more references see Moïse Mbengue (n 1) para 13.

6  See Case concerning Rights of Nationals of the United States of America in Morocco (France v USA) (Merits) [1952] ICJ Rep 1952, 183–84.

7  See also Tracy Bach, ‘Human Rights in a Climate Changed World: The Impact of COP 21, Nationally Determined Contributions, and National Courts’ (2016) 40 Vermont Law Review 561 ff.

8  Negotiating text, ADP, FCCC/ADP/2015/1 (25 February 2015) 1–4.

9  See Draft agreement and draft decision on workstreams 1 and 2, ADP, version of 23 October 2015 (23:30 hrs) 1–2 http://unfccc.int/files/bodies/application/pdf/ws1and2@2330.pdf (last accessed 10 February 2017).

10  See Draft Paris Outcome, Revised draft conclusions proposed by the Co-chairs, ADP, FCCC/ADP/2015/L.6/Rev.1 (5 December 2015) Annex I, 2–3.

11  For a general overview see IISD Reporting Services ‘Doha Climate Change Conference’ (2012) 12(556) Earth Negotiations Bulletin 5 www.iisd.ca/climate/cop21/enb/ (last accessed 10 February 2017).

12  For an account see Bach (n 7) 7 ff and Benoît Mayer, ‘Human Rights in the Paris Agreement’ (2016) 6 Climate Law 110 ff.

13  See Lili Fuhr and others, ‘COP 21 and the Paris Agreement: A Force Awakened’ (15 December 2015) www.boell.de/de/node/288509 (last accessed 10 February 2017). See also ‘A Call to Action to Defend Humanity and the Planet’, Paris (11 December 2015) presented by numerous civil-society organizations and constituencies www.ciel.org/wp-content/uploads/2015/12/A-Call-to-Action-to-Defend-Humanity-and-the-Planet-11-Dec-2015.pdf (last accessed 10 February 2017).

14  Negotiating text (n 8). See also the Geneva Pledge at www.rree.go.cr/?sec=politica%20exterior&cat=medio%20ambiente%20y%20desarrollo%20sostenible&cont=97 (last accessed 10 February 2017).

15  This loose coalition was formed by various parties, including 14 countries (Belgium, Chile, Costa Rica, Dominican Republic, Finland, Guatemala, Ireland, Luxembourg, Mexico, the Netherlands, the Philippines, Switzerland, Sweden, and Uruguay who undersigned a letter to the COP 21 Presidency dated 11 December 2015) www.regeringen.se/globalassets/regeringen/dokument/miljo--och-energidepartementet/pdf/friends-of-principles-final.pdf (last accessed 10 February 2017).

16  Notably Saudi Arabia and the United States (US); see eg Fuhr and others (n 13).

17  This was argued by the Norwegian delegation. Interview with Christina Voigt, professor at the Department of Public and International Law, University of Oslo, Norway, adviser and negotiator for Norway at COP 21 (Bonn, Germany, 10 July 2016). See also Human Rights Watch, ‘Human Rights in Climate Pact Under Fire’ (7 December 2015) www.hrw.org/news/2015/12/07/human-rights-climate-pact-under-fire (last accessed 10 February 2017).

18  Venezuela: from bloodied hand to shock climate pledge, Climate Home (14 December 2015) www.climatechangenews.com/2015/12/14/venezuela-from-bloodied-hand-to-shock-climate-pledge/ (last accessed 10 February 2017).

19  Note by the editors: In the numbering and referencing of paragraphs of the Preamble, as used in this Chapter and throughout this book, this standard opening clause (‘The Parties to this Agreement’) is not counted. For example, ‘paragraph 1 of the Preamble’ refers to the first full recital of the Preamble, ie to ‘Being Parties to the United Nations Framework Convention on Climate Change, hereinafter referred to as “the Convention”

20  For more on the legal nature of the Paris Agreement see ch 5 and ch 21.

21  See also Paris Agreement art 20.

22  Decision 1/CP.17, Establishment of ADP, FCCC/CP/2011/9/Add.1 (15 March 2012) para 2. On the term ‘under the Convention’ see chs 4.C.1 and 7.C.1.

23  With the stabilization of greenhouse gas (GHG) concentrations in the atmosphere ‘at a level that prevents dangerous anthropogenic interference with the climate system’ at its core; UNFCCC art 2.

24  See ch 7.

25  Preamble para 4.

26  ibid. For the role of science on the road towards the Paris Agreement see ch 1.A. The Paris Agreement requires parties to act on the basis of the best available science also in regard to mitigation (art 4.1), adaptation (art 7.5), and the global stocktake (art 14.1). See chs 9, 12, and 19 respectively. The concept of the best available scientific knowledge is embedded in the UNFCCC, see eg art 4.2(c)(d).

27  The UNFCCC preamble, in contrast, alludes to ‘uncertainties in predictions of climate change …’ UNFCCC preamble para 5. In more recent COP decisions, a reminder of the ‘urgency’ of addressing climate change had become a constant part of the preambular considerations; see eg Decision 1/CP.13, Bali Action Plan, FCCC/CP/2007/6/Add.1 (14 March 2008) preamble para 3, and subsequent decisions under the AWG-LCA and the ADP. For more on the need for urgent action, UNFCCC Secretariat, Climate Action Now: Summary for Policymakers (2015) 6–10 http://climateaction2020.unfccc.int/media/1173/21789-spm-unfccc-lowres.pdf (last accessed 10 February 2017).

28  See text of preambular para 3 in previous section.

29  The principles guiding parties under the Convention are set out in UNFCCC art 3 and include: the precautionary principle, equity, including inter-generational equity, common but differentiated responsibility and respective capabilities (CBDRRC), sustainable development and the promotion of a supportive and open international economic system. For more see Patricia Birnie and Alan Boyle, International Environmental Law and the Environment (2nd edn, OUP 2002) 84–95 and Rowena Maguire, ‘Foundations of International Climate Law: Objectives, Principles and Methods’ in Erkki J Hollo, Kati Kulovesi, and Michael Mehling (eds), Climate Change and the Law (Springer 2013) 83 ff.

30  The White House, ‘U.S.–China Joint Announcement on Climate Change’ The White House (12 November 2014) para 2 www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change (last accessed 10 February 2017).

31  Decision 1/CP.20, Lima Call for Climate Action, FCCC/CP2014/10/Add.1 (2 February 2015) para 3.

32  This is clearer when comparing paragraph 3 with the preambular text of the UNFCCC, which mentioned the historically larger share of GHGs by developed countries and the then lower per capita emissions in developing countries, UNFCCC preambular para 3. For more on differentiation see chs 2.A, 4.C, 8.A, and 9.

33  See UNFCCC preamble para 19 and art 3.2. In light of the lack of agreement by the date of the adoption of the Agreement, the President launched future consultations on these matters. See UNFCCC Conference of the Parties, Report of the Conference of the Parties on its twenty-first session (30 November to 13 December 2015), Part One: Proceedings, FCCC/CP/2015/10 (29 January 2016) paras 72–73 http://unfccc.int/resource/docs/2015/cop21/eng/10.pdf (last accessed 10 February 2017). See also ch 4.C.

34  Preamble para 6. See also UNFCCC art 4.9. Other provisions of the Paris Agreement also defer to the needs of least developed countries. See arts 4.6, 9.4, 9.9, 11.1, 13.3 and Decision 1/CP.21 paras 65 and 91. On LDCs see chs 9, 14, 16, and 18. On differentiation see chs 2.A and 4.C.

35  See Paris Agreement art 4.15 and ch 9.F. See also UNFCCC art 4.8 and 4.10.

36  It appears as part of the ‘Shared vision’ in the three main decisions under the Bali Action Plan, see Decision 1/CP.16, The Cancún Agreements: Outcome of the work of the AWG-LCA, FCCC/CP/2010/7/Add.1 (15 March 2011) (Cancún Agreements) para 6, Decision 2/CP.17, Outcome of the work of the AWG-LCA, FCCC/CP/2011/9/Add.1 (15 March 2012) paras 2 and 4, and Decision 1/CP.18 Agreed outcome pursuant the Bali Action Plan, FCCC/CP/2012/8/Add.1 (28 February 2013) paras 2 and 3.

37  Bolivarian Alliance for the Peoples of Our America (ALBA). Bolivia, in particular, originally focused on an equitable access to the ‘carbon space’ or atmospheric space, a concept which proved unacceptable to other, particularly developed country parties.

38  See eg Equitable Access to Sustainable Development in a Carbon Constrained World (MAPS Policy Brief, November 2012) www.mapsprogramme.org/wp-content/uploads/EASD_Brief.pdf (last accessed 10 February 2017).

39  All referring to ‘the context of sustainable development and the eradication of poverty’.

40  See section 6.A.1 above.

41  Transforming our world: the 2030 Agenda for Sustainable Development, UNGA Resolution adopted on 25 September 2015, A/RES/70/1, containing the so-called Sustainable Development Goals (SDGs), including SDG 2 (‘End hunger, achieve food security and improved nutrition and promote sustainable agriculture’). See also ch 23 on the relationship to the SDGs.

42  UNFCCC art 2.

43  See ch 7.

44  See Jonathan Verschuuren, ‘The Paris Climate Agreement: Agriculture and Food Security’ (2016) 7 Tilburg Law School Legal Studies Research Paper Series http://ssrn.com/abstract=2759128 (last accessed 10 February 2017).

45  The emphasis in preambular para 8 on the ‘particular vulnerabilities of food production systems to the adverse impacts of climate change’ indicates the growing international awareness of the latter challenge.

46  The Cancún Agreements (n 36), para 10. New is only the term ‘imperatives of’, whereas the Cancún Agreements spoke about ‘ensuring’, and later decisions about ‘promoting’ a just transition; see eg Decision 2/CP.17 (n 36) para 88, which also introduced the caveat ‘in accordance with nationally defined development priorities and strategies’ that has been maintained in the preambular para 10. The concept of just transition may potentially fulfil a ‘bridge-building’ role, similar to the function of the concept of sustainable development.

47  Sean Stephenson, ‘Jobs, Justice, Climate: Conflicting State Obligations in the International Human Rights and Climate Change Regimes’ (2010) 42 Ottawa Law Review 155, 157 ff.

48  Mentioned in the Cancún Agreements (n 36) para 10, together with the need for just transition, in the context of the required paradigm shift towards building a low-carbon society.

49  Also reflected in arts 4.4 and 9.3. On this leadership role as well as the two provisions in this regard see chs 4, 9, and 14.

50  See also Mayer (n 12) 113.

51  See UNFCCC preambular para 1. For more see Peter-Tobias Stoll, ‘The Climate as a Global Common’ in Daniel A Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar Publishing 2016).

52  See in general Moïse Mbengue (n 1) paras 9–10.

53  ibid. Examples of incorporative clauses are UNFCCC preambular paras 11–13 recalling UN resolutions in the area of environment and development, including on desertification and ozone layer protection.

54  See eg Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000, entered into force 11 September 2003) 2226 UNTS 208, preambular clauses 9–11.

55  Hans Morten Haugen, ‘What Role for Human Rights in Clean Development Mechanism, REDD+ and Green Climate Fund Projects?’ (2013) 1 Nordic Environmental Law Journal 51 and Jeanette Schade and Wolfgang Obergassel, ‘Human Rights and the Clean Development Mechanism’ (2014) 27 Cambridge Review of International Affairs 717.

56  See Voigt (n 17).

57  See Sandra Friedman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008) 70 ff.

58  See Voigt (n 17).

59  Especially Paris Agreement arts 2, 3, 4.1, and 4.3.

60  See Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (1 February 2016) UN Doc A/HRC/31/52, paras 65 ff; see also Kevin R Gray, Richard Tarasofsky, and Cinnamon P Carlarne (eds), Oxford Handbook of International Climate Change Law (OUP 2015) 213 ff and Meinhard Doelle, ‘Climate Change and Human Rights: The Role of Human Rights in Motivating States to Take Climate Change Seriously’ (2004) 1 Macquarie Journal of International and Comparative Environmental Law 179 ff.

61  On the right to development see also the UN General Assembly, Declaration on the Right to Development, A/RES/41/128 (4 December 1986); the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, and UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1 (21 October 2015).

62  See Voigt (n 17).

63  See 2030 Agenda for Sustainable Development (n 41) preamble, Declaration paras 3, 20, and 21, and SDG 5, targets 5b and 5c.

64  See Voigt (n 17).

65  While ‘equity’ is used within the UNFCCC, the specific mentioning of ‘intergenerational equity’ represents a novelty. The Convention, for example, speaks of the ‘benefit of present and future generations’; see UNFCCC art 3.1.

66  UNFCCC art 3.1, as well as in preambular clause 23. Moreover, it can be understood as a dimension of ‘equity’, which is firmly rooted in the UNFCCC and subsequent instruments, including the Paris Agreement. See also Rio Declaration on Environment and Development 1992 principle 3, and Edith Brown Weiss, In Fairness to Future Generations: International Law: Common Patrimony and Intergenerational Equity (UN University 1989). For a deep insight on matters regarding intergenerational matters provided see Peter Lawrence, Justice for Future Generations: Climate Change and International Law (Edward Elgar Publishing 2014).

67  See ch 10.

68  See section 6.A.1 above.

69  See also section 6.3.5(a) above and ch 23.

70  UNFCCC art 6.

71  See ch 16.

72  See ch 17.

73  The other is access to justice in environmental matters. See Rio Declaration (n 66) principle 10 and Convention on Access to information, public participation in decision-making and access to justice in environmental matters, done at Aarhus, Denmark, on 25 June 1998. For more see Daniel Klein, Umweltinformation im Völker- und Europarecht (Mohr Siebeck 2011).

74  Decision 1/CP.21 paras 116–20, 133–36, Paris Agreement arts 6.4(b), 6.8(b), and 7.5. See ch 2.B for more on the role of non-party stakeholders.

75  In contrast see UNFCCC preambular clauses 8 and 9.

76  See ch 23.

77  See ch 23.

78  First introduced by the Co-chairs’ non-paper on elements for a draft negotiating text, Updated non-paper on Parties’ views and proposals, ADP.2014.11.NonPaper (11 November 2014) 1 http://unfccc.int/resource/docs/2014/adp2/eng/11nonpap.pdf (last accessed 10 February 2017).

79  ibid. The initial definition of ‘governing body’ served rather as a clarification that this generic term was being used throughout the text, without prejudging the term that parties may eventually choose for this body. See also the explanation in: Co-chairs’ Tool: A Non-paper Illustrating Possible Elements of the Paris Package, ADP.2015.4.InformalNote (24 July 2015) Annex II, page 3 (‘References to the governing body’) http://unfccc.int/resource/docs/2015/adp2/eng/4infnot.pdf (last accessed 10 February 2017).

80  Negotiating text (n 8) 3–4.

81  ‘Parties present and voting’, ‘Party’, and ‘Conference of the Parties serving as the meeting of the Parties to this Agreement’ (CMA). See Non-paper, ADP, Note by the Co-chairs, ADP.2015.8.InformalNote (5 October 2015) art 1 http://unfccc.int/resource/docs/2015/adp2/eng/8infnot.pdf (last accessed 10 February 2017).

82  ibid.

83  See Draft agreement and draft decision on workstreams 1 and 2, ADP (23 October 2015) (n 9) 2–3.

84  Similarly, the reference to ‘countries in need of support’ related to the debate around recipients of support, vulnerability and special circumstances of certain parties. On these issues in the negotiations and related provisions in the Agreement see, among others, chs 4, 8.A, 9, and 14.

85  Draft Paris Outcome, ADP (n 10) 3.

86  Draft Paris Outcome, Proposal by the President, Version 2 of 10 December 2015 (21:00) 16–17 (art 1) http://unfccc.int/resource/docs/2015/cop21/eng/da02.pdf (last accessed 10 February 2017).

87  For example the ‘climate system’ is referred to only once, namely in the context of adaptation, see Paris Agreement art 7.7(c) (on strengthening scientific knowledge on climate, including research, systematic observation).

88  See ch 10.