COP26: The legal effect of the Paris Agreement in the Isle of Man

On 4 November 2021, an announcement at the COP26 climate change conference in Glasgow was made by Chair of the Isle of Man Climate Change Transformation Board, Daphne Caine MHK, that the UK Government had agreed to extend to the Isle of Man the UK’s ratification of the Paris Agreement, an international treaty on climate change.

As a Crown Dependency, the UK Government represents the Isle of Man in international forums, meaning the Isle of Man could not independently become a signatory to the Paris Agreement. With the announcement of the extension of the Paris Agreement to include the Isle of Man, Consultant Advocate Andrew Langan-Newton explores the legal effect of the Paris Agreement as a matter of Isle of Man law.

The Paris Agreement

The Paris Agreement is an international treaty on the climate crisis aiming to radically reduce the world’s carbon emissions. It has been ratified by 192 nation states, including the UK. The Paris Agreement superseded the previous international treaty on climate change adopted on 11 December 1997 in Kyoto, Japan (the Kyoto Protocol).

The Kyoto Protocol, which was ratified by the UK on 31 May 2002, was extended to the Isle of Man by the UK Government on 4 April 2006, following a request made to it by the Isle of Man Government.

The legal effect of international treaties

As the Isle of Man is not an independent state, it cannot become a party to multilateral conventions or agreements under international law. As a Crown Dependency of the UK, the UK Government is required to represent the interests of the Isle of Man in international forums, and to sign, ratify, and report on international obligations on behalf of the Isle of Man.

Since the Bevin Memorandum in October 1950, an international treaty entered into by the UK Government should not apply to the Isle of Man unless it is explicitly stated to be the case. If an international treaty is being extended to the Isle of Man, the Isle of Man Government should be given reasonable notice.

Once a treaty is extended to the Isle of Man, it only has a limited domestic legal effect until and unless it is incorporated into Isle of Man law through the legislative process. The Isle of Man appeal court pronounced in Jones v R MLR 1990-2001 that an international treaty that has been extended to the Isle of Man but has not been incorporated into domestic law will only have effect to resolve any ambiguity in the interpretation of a statute or the common law, or where it was necessary to inform the exercise of an administrative discretion by a public body.

The legal effect of the Paris Agreement

Article 2 of the Paris Agreement notes that parties have agreed to implement measures to hold “the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels”.

In order to achieve the agreed goal of the Paris Agreement, under Article 4 parties must “prepare, communicate and maintain successive nationally determined contributions” (NDCs).

The NDCs are self-defined by parties to the Paris Agreement and reported to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC). In order for the commitments enshrined in the NDCs to keep pace with the prospects of achieving the goal under Article 2, parties are required to give updates every 5 years. COP26 (delayed by 1 year due to the Coronavirus pandemic) is the first opportunity to update the original NDCs of the Paris Agreement.

On 16 December 2020, the UK Supreme Court handed down a judgment clarifying the legal effect of the Paris Agreement under English law in R (on the application of Friends of the Earth limited & others) v Heathrow Airport Limited [2020] UKSC 52 (Friends of the Earth).

This case acted as a judicial review of the UK Government’s decision to issue the Airports National Policy Statement (ANPS), a policy supporting the development of a third runway at Heathrow Airport. The claimants claimed (amongst other things) that in issuing the ANPS the UK Government had failed to take account of the greenhouse gas and global warming targets set out in the Paris Agreement.

The Supreme Court held that the specific legal obligation imposed by the Paris Agreement was to meet any NDCs communicated by the UK to the UNFCCC. However, the Supreme Court pointed out that the UK’s existing domestic targets to reduce carbon emissions under the Climate Change Act 2008 met (and went beyond) the United Kingdom’s NDC obligations under the Paris Agreement. The UK Government had taken into account its obligations under the Climate Change Act in issuing the ANPS and accordingly, the claim to judicially review the issuing of the ANPS was dismissed.

Judgments of the UK’s Supreme Court, although not binding, are considered to be highly persuasive upon an Isle of Man court.

The question of Isle of Man NDCs

In the absence of the incorporation of the Paris Agreement into domestic law, the Supreme Court judgment suggests that its domestic legal effect will be limited to the influence of the applicable NDCs to resolving ambiguity in statutory or common law, and where it is necessary to inform the exercise of an administrative discretion by a public body.

On 3 December 2020, the UK Government announced that it was setting the world’s most ambitious NDC target to reduce emissions by 68% by 2030 compared to 1990 levels. In an Isle of Man Government press release dated 4 November 2021, it was stated that once the formal process for finalising the treaty extension is completed, the Isle of Man will be brought within the scope of the UK’s NDCs. This appears to replicate the position of the Isle of Man following the extension of the Kyoto Protocol, which was interpreted at a sitting of Tynwald on 17 October 2006 by the then Minister for Local Government and the Environment, John Rimington, as meaning that the Isle of Man was not directly bound to make emissions reductions in accordance with the UK’s Kyoto commitments.

One question left unanswered by the Supreme Court judgment in Friends of the Earth is the legal effect of a conflict between existing domestic climate change policy and applicable NDCs. Consequently, in the event of any misalignment between the climate change policy of the Isle of Man Government and the UK’s NDCs, there appears to be ambiguity as to the weight (if any) that the Isle of Man Government should give to compliance with the UK NDCs in informing the exercise of an administrative discretion. The test indicated by the Supreme Court is that the UK’s NDCs would have to be “so obviously material” that they must be taken into account in the exercise of an administrative discretion by the Government. This is a high bar to reach.

If you have any questions on the issues raised in this article, please contact Andrew Langan-Newton. Andrew is a Consultant Advocate providing litigation advice and representation to clients on a range of matters including doleance claims (judicial review) against decisions of public bodies.