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May 11, 2024

Whose emissions are these anyway? The Paris Agreement and greenhouse gas emissions emanating from occupied territories: a case study of Ukraine, Georgia and Russia

The Paris Agreement, hailed as a “historic agreement” to tackle climate change, does not directly address the impact that armed conflicts can have on climate change. One of the (many) unanswered

The Paris Agreement, hailed as a “historic agreement” to tackle climate change, does not directly address the impact that armed conflicts can have on climate change. One of the (many) unanswered questions is how greenhouse gas (GHG) emissions emanating from occupied territories are to be treated by the relevant Parties to the Agreement. In other words, is the occupied State or occupying power responsible for accounting for and mitigating against GHG emissions from occupied territories?

This blog post explores this question by undertaking a case study on the positions taken by Ukraine and Georgia, as States facing occupation on their territories, and Russia, as the respective occupying power. It thereafter maps out existing international law principles that could assist in establishing an objective approach towards this. Firstly, however, it provides a general overview of the key aspects of the law of occupation and the Paris Agreement.

As a separate issue, the Paris Agreement does not specify whether its continuing application is affected by armed conflicts. Answering this question is gaining academic traction (see, for example, a recent publication by Pezzot). Whilst the focus of this post is the how, rather than whether it applies, ultimately these two legal questions are intertwined such that answering the former, helps further the legal arguments for the latter.

The relevant legal frameworks

Military occupation, arising in the context of international armed conflicts, can be summarised as “the effective control of a power […] over a territory to which that power has no sovereign title, without the volition of the sovereignty of that territory” (Benvenisti, 2012). A further characteristic is the “conservationist” principle, as reflected in Articles 43 Hague Regulations and 64 Geneva Convention IV. Accordingly, subject to some exceptions, the occupying power is bound to respect the existing laws in the territory and its own legislative competences over this are not unlimited.

The Paris Agreement is a multilateral environmental agreement adopted within the UN Framework Convention on Climate Change (UNFCCC). With near-universal ratification, its main aim is to address climate change by limiting the increase in global average temperature. One of the key means of achieving this is the adoption of mitigation measures by Parties (Vinuales, 2015). Accordingly, Parties shall draw up nationality determined contributions (NDCs) that they intend to achieve and shall pursue domestic mitigation measures to achieve these targets (Paris Agreement, Art 4(2)). Parties’ ambitions are in light of their “national circumstances” (Art 4(3)) and NDCs must be updated every five years (Art 4(2)).

Whilst NDCs are non-binding, the Agreement establishes a review process of Parties’ progress. Article 13 of the Agreement sets out a “transparency framework” requiring, inter alia, the submission of national inventory reports on emissions. This “pledge-and-review” process accordingly affords Parties opportunities to name and shame those not meeting their pledges, exert peer pressure, and also provide a basis for domestic actors to hold policy makers to account (Falkner, 2016).

Approaches in practice: Ukraine, Georgia and Russia

There is currently no authoritative guidance on whether GHG emissions emanating from occupied territories come within the scope of the occupied State’s or the occupying power’s NDC. Ukraine’s NDC (updated since the 2022 invasion by Russia) explicitly includes GHG emissions and targets for what it considers as its occupied territories, namely Crimea, the city of Sevastopol, and certain districts of the Donetsk and Luhansk regions. It then, however, sets out a disclaimer that “expert estimation” was made for the emission and reduction estimations from these territories due to inability to collect and report data from these locations, and will therefore be re-assessed upon the end of occupation. Finally, it refers to the Russian occupation of these territories, and its ongoing armed aggression against Ukraine, as one of the “main obstacles” in achieving the targets in its NDC.

Contrastingly, Georgia’s NDC states (in a footnote) that: “[t]he commitment does not cover Abkhazia and Tskhinvali Region of Georgia, since these are the temporarily occupied territories and the Government of Georgia has no effective control over them.” In outlining its population figures, it clarifies that this does not include the population in the occupied territories.

The approaches taken by Ukraine and Georgia are thus polar-opposite. Matters do not become clearer by looking at Russia’s NDC, which contains no explicit reference to these territories in Ukraine and Georgia. Turning to other official documents, however, it becomes apparent that it does, in fact, include Crimea and Sevastopol within its mitigation action and targets. For example, its 2021 National Inventory Report (available only in Russian) contains references such as “[a]rea growth in 2014 due to the inclusion of the Crimea Federal District in the Russian Federation”.

As such, Crimea and Sevastopol are not included by virtue of Russia acknowledging its status as occupying power, but rather by claiming to be the rightful sovereign. Russia confirmed this in a written statement, in which it referred to the Crimean people’s right to self-determination and needing to take a “pragmatic and non-politici[s]ed” approach towards implementing, inter alia, the Paris Agreement; it further denied Ukraine’s “incorrect and unacceptable” claim regarding Russia’s involvement in its “internal conflict” in Donetsk and Luhansk.

Russia’s NDC and official reports are seemingly silent on the Georgian-occupied regions. Whilst it has not issued a similar statement to the above clarifying its rationale, it has historically denied being an occupying power of these regions (see, for example, its position in the ICJ Case Concerning the Application of ICERD).

So what?

A number of issues arise from the above inconsistent approaches. Firstly, the approaches towards emissions from Crimea and Sevastopol could give rise to double counting: two or more States claiming the same GHG emission reduction. This can lead to an overestimation of mitigation results, potentially undermining the achievement of internationally agreed mitigation objectives (Climate Focus, 2015).

By contrast, Georgia’s explicit and Russia’s implicit exclusion of Georgian-occupied territories from their NDCs gives rise to a vacuum in addressing these emissions. This highlights a key weakness of the Paris Agreement: Parties’ NDCs are taken “as is”, with no scope for negotiation (Held and Roger, 2018). It further highlights a long-standing weakness in the regime of occupation: whilst establishing occupation is a question of fact, occupying powers often present with a “pattern of denial” about this (Benvenisti, 2012).

Finally, the case study demonstrates that the (non)inclusion of occupied territories in NDCs is, at present, highly context-specific and politicised. For example, Ukraine asserted at the COP26 in 2021 that Russia’s inclusion of Crimea in its reports is being done to “legitimise” the occupation. Τhis concern may have influenced Ukraine to include its occupied territories in its own NDC, despite the significant practical hurdles it faces in implementing measures in these regions.

The role for existing international law

The above issues highlight the need for an objective regime to determine how GHG emissions from occupied territories are to be treated vis-à-vis the Paris Agreement. In the absence of any specific guidance on this issue, the author suggests turning to existing international law principles to identify a solution. Indeed, these principles would apply equally to situations of occupation that are not disputed by the States concerned.

The first argument is based on the “conservationist” principle, as outlined above. This has recently been built upon by the International Law Commission’s Draft Principles on the Protection of the Environment in Relation to Armed Conflicts. According to Draft Principle 19, “[a]n Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict”. The accompanying Commentary states that “law and institutions” includes international obligations.

Arguably, therefore, an NDC already in place prior to occupation forms part of the territory’s “law and institutions”. Pursuant to the conservationist principle, the occupying power would be bound to respect this, subject to permissible exceptions. The key issue, however, is that this only pertains to laws which are already in force when occupation commences; the occupying power is not bound to apply any subsequent legislation passed by the occupied State (Dinstein, 2009). The NDCs of this case study fall into this latter situation, as the Paris Agreement was concluded in 2015. Reliance on the conservationist principle may therefore assist only in situations postdating the Agreement’s ratification.

A second avenue to explore is the extraterritorial effect of the occupying power’s own obligations under the Paris Agreement. In support of this, one can look to the extraterritorial application of international human rights law (IHRL) during occupation, as confirmed by the ICJ. To this end, it is notable that in recent years, there has been a paradigm shift in legally framing climate change as a human rights issue. This extraterritorial application of the Paris Agreement is further supported by the ILC’s Commentary on its Draft Principles states that in occupied territories “other bodies of law, such as human rights law and international environmental law, gain more importance as time goes by.” It is therefore arguable that the Paris Agreement can have an extraterritorial application akin to IHRL, thereby requiring occupying powers to account for emissions from occupied territories within their own NDCs. As such, the inclusions of Crimea and Sevastopol in Russia’s NDC are “only” problematic insofar as Russia’s subjective rationale is that they come within its territory. Ukraine has suggested countering this by including in Russian reports a statement to the effect that the territories are occupied.

Arguably, however, a more sweeping and consistent approach would be achieved by the adoption of a “decision” by Parties on this issue at a future Conference of the Parties (COP). Adopted by consensus, decisions are taken for the effective implementation of the UNFCCC. Even though occupied States and occupying powers could still not be forced to adopt a certain approach, other Parties would be able to rely on the decision to exert political pressure, whilst also remaining alert to the issues of double counting and allocation gaps that occupations can give rise to.

Concluding remarks

Through a case study of Ukraine, Georgia and Russia, this post has highlighted how the (non)inclusion of occupied territories in NDCs is currently being done in an ad hoc, context-specific and political manner. Indeed, this is not an issue unique to this case study: Cyprus excludes the Turkish Republic of Northern Cyprus (TRNC) from its geographical scope by virtue of it being an “illegal secessionist entity”, while Türkiye is seemingly silent on the TRNC, giving rise to uncertainty in relation to the allocation and mitigation of GHG emissions from this territory; the explicit inclusion of East Jerusalem by both Palestine and Israel gives rise to double counting, while according to Palestine the “status quo scenario” of occupation also limits its full control over its emissions profile and adaptation capabilities in the Gaza Strip and Western Bank.

In the absence of a specific framework for occupied territories within the Paris Agreement, this post has mapped out potential solutions on the basis of existing international law principles. Whilst the focus has been on occupied territories, similar questions over emission allocation and mitigation arise also in disputed territories falling short of occupation or entities declaring independent statehood but are not Parties to the Paris Agreement, such as Kosovo. Further academic research would go towards drawing attention to and filling these complex and multifaceted gaps within the Paris Agreement.