To report or not to report GHG emissions in occupied territories. A practical approach for having a more accurate world count of global GHG emissions.

Climate change is a global environmental problem that needs the participation and cooperation of all States to effectively protect the Earth’s climate system for present and future generations. Despite the high number of States Parties that the UN climate change regime has, the regime is silent about who should report the green-house gases (GHG) emissions in occupied territories. The side effects of this legal lacuna, as described by Yiokasti Mouratidi, are the inconsistent approaches to this problem by the concerned States and consequently the possible double counting of GHG emissions or the lack of information if neither the Occupying Power nor the Occupied State report them. As obtaining information on GHG emissions could be challenging in that context, some reflections on the topic are needed.

The importance of adopting mitigation measures during occupations

The UN climate change regime has many areas of action (Dupuy and Viñuales, p. 187). One of them is mitigation, which has two essential components. On one hand, mitigation comprises of those policies and actions to be adopted to reduce GHG emissions; and on the other hand, includes the reporting and review system of those policies and actions. Both components are essential to stabilize GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (Article 2 UNFCCC). As explained by Farhana and Depledge (p. 327) regular reporting (according to common guidelines) and the systematic review of the reports are the backbone of the UN climate change regime as they provide information about the GHG emissions, their sources, what actions are being taken by the Parties and their effectiveness or not to reduce them. In addition to mitigation, another area of action of the regime is adaptation which concerns those measures taken to protect from and adapt to climate change’s adverse effects. Mitigation and adaptation are interconnected (Article 7.4 Paris Agreement) because, as pointed out by Lyster, fewer adaptation measures will be needed if all States Parties implement immediate mitigation measures such as GHG emissions-reductions policies and if the Earth’s temperature is stabilized.

Although occupation is—at least in principle—a temporary situation that does not grant sovereign rights over the occupied territory to the Occupying Power (Benvenisti and Dinstein), the double counting of GHG emissions or the lack of information about it are serious problems from an environmental and humanitarian perspective. From an environmental point of view, this situation impedes having an accurate count of global GHG emissions (see here) as well as Occupying Powers taking concrete action to reduce them in occupied territories. In turn, this delays achieving the objective of the Paris Agreement (to limit the global average temperature increase to 1.5 °C above pre-industrial levels, Article 2.1.a), which has been considered to have potential catastrophic consequences (see IPCC).

From a humanitarian perspective, according to specialized sources like the ND-Gain index, 60% of the twenty countries considered the most vulnerable to climate change are sites of armed conflict (see here). This is because in such countries, as Verma’s describes, the effects of climate change and environmental degradation put existing institutions already weakened by armed conflict under further stress, including those responsible for designing or implementing adaptation and mitigation programmes. It is worth recalling that ensuring the welfare of the local population is a key obligation of Occupying Powers under the law of occupation (Spoerri, p. 184). The adoption of mitigation measures by Occupying Powers (such as measuring local GHG emissions, reporting and reducing them) is an example of how an occupied territory can be administered by taking environmental considerations into account (ILC, Draft principles on the Protection of the environment in relation to armed conflicts, Draft Principle 19). This is because such action contributes to the mid- and long-term goal of stabilizing the Earth’s climate system as well as to keeping the well-being of all human beings (included the occupied territory’s local population), by reducing their vulnerability to climate change. Therefore, double counting or the lack of information on the GHG emissions in occupied territories, can exacerbate, in the mid- and long-term, the vulnerability of all human beings (including the population of the occupied territory). Furthermore, and as I have argued elsewhere, all Parties to the UN climate change regime share a common responsibility to address global climate change in all circumstances, including situations of occupation, and the scarcity of occupied territories in the world (as compared to the number of other types of armed conflicts that exists, see RULAC) should not be used as an excuse for failing to apply the regime in such territories.

Challenges and the implementation of a practical approach

Of course, reporting occupied territories’ GHG emissions (or the lack thereof) has political implications. In this regard, their inclusion or not in the nationally determined contributions (NDCs, Articles 3 and 4 Paris Agreement) of the concerned States could also be used as a legal and diplomatic strategy for reinforcing sovereign rights over an occupied area, or to deny situations of occupations. It is important to highlight that despite the legality or illegality of the exercise of sovereign powers over a given territory—and the diplomatic strategy implemented to support the legal claims—the measuring and reporting of GHG emissions from an occupied territory should be depoliticised on the interest of the protection of the Earth’s climate system, and the protection of present and future generations (including those from occupied territories). Ideally, this depoliticization could take place through international scientific cooperation to exchange the outcomes of climate change-related research between scientists from the Occupying Power and the occupied territory for submitting a common report that includes the GHG emissions from the occupied territory. This cooperation would allow continuous monitoring and reporting of GHG emissions by joining efforts to address climate change beyond the situation of occupation.

However, as this cooperation could be difficult to implement in the context of an occupation due to political reasons, a practical approach should be implemented to shed some light for all Parties to the UN climate change regime on this issue of reporting GHG emissions from occupied territories. To that end, the 1959 Antarctic Treaty could serve as one example of a practical approach of depoliticising in the interest of solving an environmental problem. In concrete, Article 4 of that treaty could be a good antecedent to follow as this cornerstone provision has frozen Consultative Parties’ sovereignty claims in the area (without affecting their positions) with the aim of achieving the objectives of the treaty: demilitarization, denuclearisation and scientific cooperation in Antarctica. Article 4 has been called an “umbrella provision” and provides as follows:

“1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”

It has been explained by Trolle-Anderson that this provision:

“has removed the need for the parties to the Treaty repeatedly to reassert their respective views on the sovereignty issues and made it possible for these parties to cooperate peacefully in spite of their differences of view”.

The adoption of an umbrella resolution by the COP

The first sentence of Article 4(2) of the 1959 Antarctic Treaty is the part that can be replicated for the UN climate change regime to depoliticize the reporting of GHG emissions from occupied territories. More concretely, this can be implemented by the adoption of a resolution by the Conference of the Parties to the regime clarifying that it is the State “in effective control over territory” that should report GHG emissions from those territories. Moreover, the resolution should also clarify that (while the UN climate change regime is in force) such reporting shall not constitute a basis for asserting, supporting or denying a claim to territorial sovereignty or create any rights of sovereignty over the territory.

This proposed “umbrella resolution” has a practical approach because it gives a solution to the existing legal lacuna by answering three main questions or concerns related to reporting GHG emissions in situations where territory is under occupation. The first question is who reports? The answer would be the State that is the Occupying Power, whether it considers itself to be such or not, and simply on the basis of its factual position as being in effective control of the territory. Second, why should such State report? Because it is the one with the best overview of the human activities taking place in the occupied territory as it is the de facto authority in charge of it. Lastly, what are the legal consequences of that unilateral act of reporting by the Occupying Power? The act does not create any right of sovereignty over the occupied territory. Therefore, this “umbrella resolution” reinforces the importance of reporting GHG emissions by filling the existing gap in the UN climate change regime on who should report the GHG emissions from occupied territories while addressing the unintended consequences of sovereignty claims in the context of global climate change.  

Nevertheless, it could be argued that this “umbrella resolution” does not provide a solution to the possible problem of double counting GHG emissions when the Occupying Power and the Occupied State include in their NDCs the GHG emissions from the occupied territory. However, as explained above, under this approach, it ought to be the Occupying Power, as the de facto authority, that should be reporting the GHG emission levels from the occupied area under its effective control with the aim to have a more accurate information about it. This would be of help to reduce the emissions at a later stage. Consequently, the Occupying Power can accurately monitor, measure and report them, for example by supporting the local official entities in charge of the mechanisms of monitoring and reporting GHG emissions. Advocating for this position is particularly important as occupation, albeit temporary situations, may exist for long periods of time.

Besides, one may wonder whether the “umbrella resolution” would solve the problem of lack of reporting when a State does not consider itself to be in effective control of territory, because in its view, such territory is under the effective control of an entity, which it considers to be a State, but which is not internationally recognized as such. The “umbrella resolution” could also include a paragraph clarifying that in those cases the act of reporting does not confer statehood status or does not imply recognition of an entity as a State when this is contested by the international community. Consequently, this would reinforce the importance of reporting GHG emissions, making clear that the act of reporting is purely due to humanitarian and environmental reasons.

Concluding remarks

The key aspect in the “umbrella resolution” is that it is the (sovereign) entity which has effective control over a territory that has responsibility to report the GHG emissions from that territory and that such reporting shall not be regarded as affecting either the legal situation of the disputed territory nor the status of the reporting entity (as the case may be). The adoption of this resolution by the Conference of Parties would prioritize the implementation of the UN climate change regime over sovereignty disputes of the Parties, by: i) depoliticizing the act of reporting by Occupying Powers; ii) preserving and facilitating the effective measurement and reporting of GHG emissions from occupied territories by enabling Parties to focus in them; iii) contributing to the accomplishment of one of the main obligations established by the law of occupations, i.e. ensuring the well-being of the local population by taking into account environmental considerations when administering the occupied territory; and iv) contributing to achieving the objectives of the UN climate change regime and improving the global climate change situation. All in all, mitigating GHG emissions is in the interest of protecting present and future generations as well as the global environment, in particular, the Earth’s climate system.