Sunset Clauses in International Law and their Consequences for EU Law
PE 703.592
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law’ would
have applied, and any existing treaty in conflict with the provisions of the Paris Agreement,
would become void.
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The goals of the Paris Agreement, such as the reduction of gas emission and the limit on climate
pollution potentially contradict the special protection countries guarantee on fossil fuel investments
under the ECT. To exemplify this, a report found that ‘in Europe, the ECT protects at least 47 coal
plants
that have remaining economic life’
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and simultaneously the EU has submitted in December 2020 its
updated and enhanced NDCs with the target to ‘reduce emissions by at least 55% by 2030 from 1990
levels’
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To put it differently, in one regard, according to the Paris Agreement, the Parties of the Convention are
required to put forward their best efforts through the creation of NDCs to reduce gas
emissions and
cut climate pollution. On the other hand, the ECT requires the Parties of the Treaty to respect already
made investments in the energy sector, including fossil fuel investments. Hence, the conclusions from
a recent report stressing that ‘Investor-state dispute settlement and compensation for stranded fossil
fuel assets is raising the cost of climate action’
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were not unexpected.
While there is no conflict provision in the Paris Agreement to regulate its
relationship with other
treaties, the ECT contains two provisions relevant to this discussion. First, the Preamble of the ECT has
a reference to the United Nations Framework Convention on Climate Change under the auspices of
which the Paris Agreement was signed.
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Accordingly, it could be argued that ‘this preamble
reference
is relevant to the interpretation of the ECT.’
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Indeed, VCLT in Article 31 provides that ‘a treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose’ and it also states that ‘there shall be taken
into account, together with the context: any subsequent agreement between the
parties regarding the
interpretation of the treaty or the application of its provisions;’.
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