Abstract
As we saw in section 2.2, the FCCC distinguishes different categories of States, each with their own responsibilities. We shall now review these several categories from the perspective of choosing a partner in a joint implementation project.
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Under Polish law treaties only need parliamentary approval, if they give rise to substantial financial commitments or require changes in Polish legislation. We are advised that the FCCC probably does require explicit parliamentary approval.
Law of December 23, 1988. Published and reviewed in 4 Foreign Investment Law Journal (1989), no. 1, pp. 174–188 and 28 ILM (1989), p. 1518.
Liquified natural gas, i.c. methane transported at a temperature of minus 160 degrees centigrade.
See Walter Seifritz, The Terrestrial Storage of CO2-dry Ice’, in Energy Conversion Management, (1993), Vol. 34, p. 1121.
See The Economist of 28 August 1993, p. 64.
As of 31 December 1993 the Netherlands had concluded 41 bilateral investment treaties, of which 34 in force. Apart from Kenya (1970), which serves as the paradigm here, other developing countries which may be considered for joint implementation initiatives include China (1985), Egypt (1976), Indonesia (1968), Sri Lanka (1984) and Yemen (1985). Investment treaties with these countries were concluded in the years indicated; all of these are in force.
See The World Bank, The World Bank Atlas: 25th anniversary edition, Washington, D.C., 1992, p. 19.
Cf. National Advisory Council for Development Cooperation, Recommendation on Graduation and Integration of Developing Countries and the GATT Trade Round, no. 89, The Hague, February 1987.
Letter of the Dutch Minister for Development Cooperation, dated 29 January 1993, to the Dutch House of Parliament, Tweede Kamer, vergaderjaar 1992–1993, 22 800 V, nr. 49.
See Paul Peters, ‘Status of Investment Treaties (As of April 30, 1993)’, in 32 /LM (1993), p. 929.=
A case in point might be for two States to reorganize and integrate their navies so as to enable them to fulfilcertain tasks with less expenditure of energy and hence less emission of CO2.
This is the more so when the State is in the process of divesting itself of industrial and commercial activities by privatization processes.
The word “control” is ambiguous. In a sense it is true that ultimately the State can exercise “control” over virtually all persons -both natural persons and juridical persons such as corporations-which have its nationality or are in its territory. But sometimes -in particular in the company law of countries such as Germany and the United States-control is used in the sense of “domination” (“Beherrschung” in German) where the controlling company is assumed to be in a command position vis-à-vis the controlled company. It is often difficult to trace the meaning of the word “control”, see e.g. Article 153.2 UNCLOS to which we shall refer again in section 8.5 below (cf. n.95). We shall use it in the sense of corporate control in the Netherlands and in the UK, i.e. the powers which a majority of shareholders can usually exercise to impose their will on the management of the company. The question of government control over an Iranian company was an important issue in the case Foremost-McKesson v. Iran, 905 F.2d 438 (DCC 1990), where the Court of Appeal held that control had different meanings depending on the context. Cf. David Caron, The Iran-US Claims Tribunal, in Proceedings of the Second ASIL-NVIR Joint Conference in The Hague, July 1993 (to be published in 1994).
The European Economic Cooperation Association can be set up under Regulation no. 2137/85 of the EC Council dated 25.7.85 (OJ no.85/L 199/1) and in force since 1.7.89. As of 1.3.93 there were 52 EECAs registered in the Netherlands. Proposals for a European Limited Company, better known as the Societas Europaca (SE), have been on the books since 1970 and in their latest version were submitted to the EC Council in 1991 (OJ no.91/C 176/01). Proposals for the European Cooperative Society and the European Mutual Society were published in 1992 as draft regulations (OJ no.92/C 99/03 and 99/05). The “nationality” of these various European entities and the law to which they are subject (largely EC law but in part national law) are more difficult to establish.
If the Dutch subsidiary of an American company is involved, the possibility of interference by the US government or courts pursuant to US extraterritorial legislation should be taken into account; cf. the judgment of the President of the district court of The Hague in the so-called Russian Pipeline affair: Cie. Européenne des Pétroles S.A. v. Sensor Nederland BV, 17.9.82, RvdW KG 1982, 167 (in English in 22 !GM (1983), pp. 66–74); and the well-known Fruehauf case in France, Paris Cour d’Appel 1965, 5 ILM (1966), p. 476.=
Sec the World Bank Documents concerning the establishment of GEF, in 30ILM (1991), p. 1735, to which the references (paragraph numbers) in the text refer.
Algeria, Brazil, China, Côte d’Ivoire, Egypt, India, Indonesia, Mexico, Morocco, Nigeria and Pakistan. See the report by the Chairman to the Participants Meeting in Cartagena, December 1993, p. 15. These data concern participation in the pilot phase. More than 70 countries participate in the negotiations for restructuring the GEF after the pilot phase.
See Article 10 (as amended in 1990) of the Montreal Protocol. This Article deals with the financial mechanism to be set up with the cooperation of the World Bank, UNEP and UNDP “or other appropriate agencies”. The corresponding Article 11 (Financial Mechanism) of FCCC is less specific, in merely stating that the operation of a mechanism for the provision of financial resources “shall be entrusted to one or more existing international entities”; but Article 21 FCCC designates GEF as the entity in question on an interim basis.
See an article on ‘Squaring the Energy Circle’, in Shell World, April 1993. See also the Report of the Chairman to the Participants Meeting in Cartagena, December 1993, Amex III, p. 71, which refers to a project cost of $73m.
The EC could be an exception, because as a Party to FCCC it is in the same position as a State. The EC could also be an exception in a joint project between EC and an ACP country under the current Lomé-IV Convention. See, however, section 5.1 above at note 55.
Lack of legal personality is a problem for partners and third parties, who then must deal with the individual members of the NGO -of which there may be thousands-in case of claims or formalities. In the case of an unincorporated business partnership (see section 8.2) it is not usually a problem since there is ordinarily only a small number of partners which each have legal personality.
Article 153.2 of the 1982 UN Convention on the Law of the Sea. There is some doubt as to what is meant by the words “effectively controlled”, either by one or more States Parties or by nationals of such States Parties. We shall not pursue this point here, as the article is only quoted because of its reference to sponsorship.
Another example of the application of equity in intemational law may be found in Article 6 of the ILC’s draft articles on the law of the non-navigational uses of international watercourses, Report of ILC on the work of its 43rd session, 1991 (UN Doc. A/46/10), p. 163 and ILC Yearbook, 1987 Vol. II, Part 2, p. 36 on equitable and reasonable utilization of an international watercourse and the need to take into account all factors relevant to ensuring that the equal and correlative rights of other watercourse States are respected. Cf. also Article 4 of the ILA’s Helsinki Rules (1966) on the uses of the waters of international rivers, on equitable utilization. Article 4.2(a) of FCCC itself refers, in a different context, to the need for equitable and appropriate contributions to the global effort by each of the Annex-I Parties.
Cf. R.R. Lillich, The Valuation of Nationalized Property in International Law, 3 vols., Charlottesville, 1972–1975. For an overview of awards on the subject by the Iran-United States Claims Tribunal, Charles N. Brower, ‘The Iran-United States Claims Tribunal’, in 224 Receuil des Cours de l’Académie de Droit International de la Ilaye (1990-V), Chapter V, pp. 333–385.
It has been pointed out to us by Professor Góralczyk of Warsaw, an authority on the Law of the Sea and the equity concept as developed by the ICJ, that it is doubtful whether this concept is applicable to the credit sharing problem. See also his comments in A. Blued and P. van Dijk (eds.), Forty Years of International Court of Justice: Jurisdiction,Equity and Equality, Europa Instituut, Utrecht, 1988, pp. 165–167. While we recognize the problems inherent in applying a concept developed in one field of the law to problems arising in a totally new and unconnected field, we feel that the methodology used by the ICJ can properly be used in this new field, although the substance of equity may be very different from that elaborated by the ICJ in delimitation cases.
There may be projects where it is more difficult to establish how much of the work is done in B and under B’s jurisdiction. If indeed this ‘input’ by B is less significant, this should be reflected in the equitable adjustment.
These criteria were discussed at the INC-8 meeting on joint implementation in Geneva, August 18–19 (see note dated 25.8.93 by H. Merkus on WGI and EC discussions in Geneva and Roebijn Heintz, Joint lniplementation in Discussion, Institute for Environmental Studies, Free University, Amsterdam, 1993); it is clear from these discussions that there is a wide divergence of views on the desirability, practicability and criteria of joint implementation.
It could work out unfairly for instance because 0.05 percentage point is a far greater percentage for a country allocating 0.1% GNP to ODA than for a country allocating 0.6% to it; and because a country rising from 0.65 to 0.69% would get no credit while a country rising from 0.1 to 0.15% would be allowed credit.
Subrata Roy Chowdury, ‘Permanent Sovereignty over Natural Resources: Substratum of the Seoul Declaration’, in P. de Waart, P. Peters and E. Denters (eds.), International Law and Development, Martinus Nijhoff, Dordrecht, 1988, pp. 59–85, at p. 71; Samuel K.B. Asante, ‘The Concept of Stability of Contractual Relations in the Transnational Investment Process’, and H.S. Zakariya, ‘Changed Circumstances and the Continued Validity of Mineral Development Contracts’, in Kamal Hossain (ed.), Legal Aspects of a New International Economic Order,Frances Pinter, London, 1980, pp. 234–262 and pp. 263–278.
Nevertheless, it does seem both appropriate and necessary at some point for the CoP to refine and agree on methodologies for these matters in order to evaluate and compare the effectiveness of measures for limiting emissions and enhancing the removal of GHG. This is in fact contemplated in Article 7.2(d).
Cf. Donald M. Goldberg, ‘As the World Burns: Negotiating the Framework Convention on Climate Change’, in 5 Georgetown International Environmental Law Review 1993, pp. 239–275. Cf. Annex to TK/19921993/22031/No. 15, Tradeable Emission Permits and Funding Mechanisms in a North-South Perspective. Cf. Michael Grubb, ‘Options for an International Agreement’, in UNCTAD/RDP/DFP/1, Combating Global Warming: Study on a Global System of Tradeable Emission Entitlements,New York, 1992. Cf. McKinsey & Company, Protecting the Global Environment: Funding Mechanisms, Findings and Conclusions of the Ministerial Conference on Atmospheric Pollution & Climate Change, Noordwijk, November 1989. Cf. Scott Barrett, ‘Acceptable Allocations of Tradeable Carbon Emission Entitlements in a Global Warming Treaty’, in UNCTAD/RDP/DFP/1, Combating Global Warming: Study on a Global System of Tradeable Emission Entitlements,New York, 1992.
The terminology varies. Reference is usually made to tradeable or marketable permits, entitlements or rights. These words are interchangeable. In the case of emission permits each permit may allow the holder to emit a stated quantity of pollutant, e.g. one tonne of CO2. The term is therefore the mirror image of ‘credits’ as used elsewhere in this Part: one permit not used (whether sold abroad or torn up) represents one credit. In practice the words permit (or entitlement, right) and credit mean the same thing. The Montreal Protocol includes provisions for the international trading of CFC emissions, although no such trade has taken place as yet. In the US CFC permits are already being traded at the national level.
Sec for a discussion of the various alternatives the advisory report of the Sociaal-Economische Raad, Advies Milieu en Ontwikkeling, publicatie 93/04, The Hague, particularly chapter 4. Abstract in English, Environment, Trade and Sustainable Development: Some International Issues, no. 93/04 E.
This may be expressed in terms of tomes of CO2 or, in the case of OHO other than CO2, in tomes of CO2 equivalent.
It is difficult to envisage a national institution in one country fulfilling the tasks of an international clearinghouse; it would require an unusual degree of confidence or submission among the authorities in other participating countries. However, it is conceivable that a clearinghouse in a large country such as the US, set up for Americans trading emission permits, would admit foreign buyers and sellers in the same way that the New York Stock Exchange (and a number of other stock exchanges in other countries) admit trade in foreign stocks and bonds. It is also conceivable that a clearinghouse should be set up by the EC as a focal point for trade in permits by member States and their companies; and that it would admit also non-EC buyers and sellers.
C. Parry, J.P. Grant. A. Parry, A.D. Watts (eds.), Encyclopedic Dictionary of International Law, Oceana Publications, New York, 1986, p. 121.
According to this provision “(…) ”treaty“ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
Luzius Wildhaber, ‘Executive Agreements’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 7 (1984), Elsevier Science Publishers, Amsterdam, p. 84.
Similar to Article 42.1 of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States which provides: “The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed upon by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable” (emphasis added), 575 UNTS (1965), p. 159 a.f. Cf. Article 25 FCCC and Articles 54 and 55 of the Vienna Convention on the Law of Treaties.
Report of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change on the Work of its Eighth Session held at Geneva from 16 to 27 August 1993, U.N. Doc. A/AC.237/41, 20 October 1993, p. 16; Roebijn Heintz, op.cit. (n.106).
This approach is supported by the spirit of various relevant FCCC Articles. Examples include those dealing with research and systematic observation such as Article 5. The CoP, assisted by a Subsidiary Body for Implementation (SUBIM, cf. Art. 10), is given the task to assess the implementation of the Convention by the Parties, the overall effects of the measures taken and the extent to which progress towards the objective of the Convention is being achieved (Art. 7.2(e)). Joint implementation, being one form of implementation of the Convention, should also be evaluated by it.
FCCC Article 14.2(a) also refers to an existing procedure as one of the possible means of settlement of disputes arising under the Convention itself, namely “submission of the dispute to the International Court of Justice”. For disputes concerning joint implementation agreements this seems to be too severe, see section 12.4 of this report.
Kamen Sachariew, ‘Promoting Compliance with International Environmental Legal Standards: Reflections on Monitoring and Reporting Mechanisms’, in Yearbook of International Environmental Law,Vol. 2, 1991, p. 37.
Ibid. p. 521; see also T. van der Burg, On Joint Implementation, Institute for Environmental Studies, Free University, Amsterdam, 1993, p. 3 a.f.
See a.o. Tom Tietcnberg, ‘Implementation Issues: A General Survey’, in UNCTAD, Combating Global Warming: Study on a Global System of Tradeable Carbon Emission Entitlements,United Nations, New York, 1992, pp. 137–139.
See e.g. United Nations Centre for Human Rights and UNITAR, Manual on Human Rights Reporting under Six Major International human Rights Instruments,United Nations, New York, 1991.
In the Report of INC 8, op. cit. (n.124) at p. 16, it was recognized that the interim Secretariat should start preparing draft guidelines on communications by the Parties. These would need to “ensure consistency, transparency and comparability of information across communications, as well as flexibility, taking into account specific national situations.” Report INC 8, op. cit. (n.124), pp. 16–17.
FCCC Article 14.2. Only few States will be prepared to accept compulsory submission of disputes about the FCCC to the ICJ. In general, States are reluctant to recognize compulsory jurisdiction of the ICJ. Those who do often attach far-reaching reservations. Poland for example, made such reservation for disputes with regard to pollution of the environment unless the jurisdiction of the International Court of Justice results from treaty obligations.
See Paul Peters, ‘Dispute Settlement in Investment Treaties’, in 22 Netherlands Yearbook of International Law (1991), p. 91, in particular section 3.4 on ICSID and altematives.
The trade measures of the Montreal Protocol affect only non-State Parties. They include bans on import and export of controlled substances and export prohibition for relevant technologies.
Draft Article 30 of Ago’s Draft Articles on State Responsibility provides: ‘The wrongfulness of an act of a State not in conformity with an obligation of that State towards another State is precluded if the act constitutes a measure legitimate under international law against that other State, in consequence of an internationally wrongful act of that other State.’ Yearbook of the International Law Commission 1980,Vol. II Part Two, p. 33.
GATT Document DS 21/R of 3 September 1991, also published in 30 ILM (1991), pp. 1594–1623. For a review see Ernst-Ulrich Petersmann, op. cit. (n. 55), at pp. 60–62.
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Kuik, O., Peters, P., Schrijver, N. (1994). Putting Joint Implementation into Practice. In: Kuik, O., Peters, P., Schrijver, N. (eds) Joint Implementation to Curb Climate Change. Environment & Policy, vol 2. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8370-1_2
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