Originally from Investment Treaty Arbitration and International Law Volume 17

Preview Page

I. INTRODUCTION

Does the Energy Charter Treaty (ECT or the Treaty)  hinder states’ efforts to combat climate change? I write this paper in the wake of COP 28  where states have made further commitments to address the adverse impacts of climate change. These commitments, in a rare example of international consensus, are based on a common understanding of climate change that has developed in the past decade:

a. Climate scientists have agreed that limiting the rise of the Earth’s temperature to not more than 1.5 degrees Celsius above pre-industrial levels by the end of this century will mitigate the severe effects of climate change, including severe heatwaves and heavy rainfall.  

b. To achieve this goal and pursuant to the Paris Agreement, 98%  of states have committed to reduce their greenhouse gas emissions,  and at COP 28, 98% of states have committed to transitioning away from fossil fuels. 

c. The Intergovernmental Panel on Climate Change (IPCC) estimates that in order to meet the Paris Agreement climate goals, greenhouse gas emissions need to be net zero by 2050.  The First Global Stock Take, published at COP 28, further recognizes the science that indicates global greenhouse gas emissions need to be cut 43% by 2030, compared to 2019 levels, to limit global warming to 1.5 degrees Celsius. 

d. The International Energy Agency (IEA) estimates that to achieve net zero by 2050, unbated coal and oil power plants, meaning those plants that do not capture their greenhouse gas emissions,  will need to be phased out by 2040, if not earlier. 

e. That means that existing coal and oil projects will likely need to be decommissioned.