CYIL vol. 12 (2021)

Monika Feigerlová CYIL 12 (2021) liberalization and expansion of energy market, and increase of energy security in the ECT member countries. 18 After the adoption of the Paris Agreement in 2015, the attention to climate change has started to change given that half of the contracting states of the ECT are also parties to the Paris Agreement. ECT and UN Climate Change Regime The Paris Agreement is an international agreement that was adopted at the 21 st conference of the parties of the UNFCCC in Paris (COP 21) on 12 December 2015 and entered into force on 4 November 2016. Today 196 countries have signed it and about 10 less have ratified it. 19 It deals with mitigation of GHG emissions, adaptation to climate change, and finance issues. Its goal is to limit global warming to well below 2°C, preferably to 1.5°C, compared to pre-industrial levels. 20 The countries aim to reach global peaking of GHG emissions as soon as possible so as to achieve a GHG balance in the second half of this century. 21 Each country is called to account regarding its individual responsibility and shall set its nationally determined contributions (NDCs) to the global response to climate change. The NDCs shall be ambitious and progress over time. 22 Each of the treaties, i.e., the ECT and the Paris Agreement, concerns different subject- matters and from a strictly legal perspective it cannot be said that the treaties are legally incompatible in the sense of Article 30 of the Vienna Convention on the Law of Treaties. 23 Nevertheless, in reality, the energy transformation necessitated by the goals of the Paris Agreement clashes with the raison d’être of the ECT and its protection of existing (fossil fuels) investments. As some authors described the relationship, the two regimes are pulling in opposite directions. 24 The linkage of the two regimes is not disputed by the ECT members. The Secretary-General of the Energy Charter Secretariat confirmed the fact that commitments of the ECT Members under the Paris Agreement already have an important impact on how energy is produced, transited, and consumed. 25 As will be explained in the text below, the current efforts for the ECT modernization are significantly shaped by concerns of some European ECT parties to pursue their climate change commitments, including the Green Deal, 26 without being exposed to claims under the ECT. Negotiation over the Redesign of the ECT In 2018, the Energy Charter Conference appointed a Subgroup on Modernisation to conduct discussions on the potential modernization of the ECT. The Energy Charter 18 The stated objective of the ECT in its Article 2 is to set ‘ a legal framework in order to promote long-term cooperation in the energy field, based on complementarities and mutual benefits’ . 19 All EU countries, including the EU, signed the Paris Agreement. 23 Moreover, Article 16 of the ECT dictates to apply provisions more favourable to investors or investments. 24 Bernasconi-Osterwalder, N., Brauch, M.D. Redesigning the Energy Charter Treaty to Advance the Low-Carbon Transition. TDM 1 (2019). [online], pp. 7–8. Available at: < https://www.transnational-dispute- management.com/article.asp?key=2632>. Visited on 1 June 2021. 25 International Energy Charter Annual Report 2020, (April 2021). [online]. p. 6. Available at: . Visited on 1 June 2021. 26 Commission Communication on the European Green Deal, 11 December 2019, COM (2019) 640 final. 20 Article 2 of the Paris Agreement. 21 Article 4.1 of the Paris Agreement. 22 Article 3 of the Paris Agreement.

386