Model Inter Se Agreement to Neutralize the Survival Clause of the Energy Charter Treaty Between the EU and Other non-EU Contracting Parties

The briefing argues that the Energy Charter Treaty's (ECT) survival clause obstructs climate mitigation by allowing fossil fuel investors to seek compensation for government phase-out measures for 20 years after a state's withdrawal. To address this, the authors provide a model 'inter se' agreement that allows the EU and other non-EU contracting parties to modify the treaty among themselves to delete the survival clause. The document asserts that this modification is legally viable under Article 41 of the Vienna Convention on the Law of Treaties (VCLT), as it does not affect third-party rights, is not prohibited by the ECT, and aligns with the treaty's stated environmental objectives and the Paris Agreement.

• The Energy Charter Treaty (ECT) hinders climate goals because its survival clause in Article 47(3) allows investments made before withdrawal to benefit from investment provisions and investor-state arbitration for 20 years, potentially shielding fossil fuel assets from government intervention.
• The proposed model agreement is designed to be flexible, allowing both current ECT contracting parties and those that have already notified or completed their withdrawal to join or accede to the initiative.
• The modification is legally permissible under Article 41(1)(b) of the Vienna Convention on the Law of Treaties (VCLT) because the ECT does not expressly or impliedly prohibit such modifications.
• The proposed modification does not violate the VCLT condition regarding third-party rights because the ECT is a bundle of reciprocal bilateral relations rather than a set of interdependent obligations erga omnes.
• Neutralizing the survival clause is compatible with the ECT's own object and purpose, as it enables states to meet environmental objectives and comply with Article 2(1)(c) of the Paris Agreement by preventing compensation awards to fossil fuel investors.
• The model agreement includes a cooperation mechanism where signatory states commit to collaborate to ensure that any arbitration proceedings registered after the agreement's entry into force are recognized as lacking a legal basis and are unenforceable.

APA

Schaugg, L., & Nikièma, S. (2024). Model Inter Se Agreement to Neutralize the Survival Clause of the Energy Charter Treaty Between the EU and Other non-EU Contracting Parties. International Institute for Sustainable Development. https://www.iisd.org/system/files/2024-07/energy-charter-treaty-survival-clause.pdf

Chicago

Schaugg, Lukas, and Suzy Nikièma. Model Inter Se Agreement to Neutralize the Survival Clause of the Energy Charter Treaty Between the EU and Other non-EU Contracting Parties. International Institute for Sustainable Development, 2024. https://www.iisd.org/system/files/2024-07/energy-charter-treaty-survival-clause.pdf.

Wikipedia

{{cite report |last1=Schaugg |first1=Lukas |last2=Nikièma |first2=Suzy |title=Model Inter Se Agreement to Neutralize the Survival Clause of the Energy Charter Treaty Between the EU and Other non-EU Contracting Parties |publisher=International Institute for Sustainable Development |date=August 2024 |url=https://www.iisd.org/system/files/2024-07/energy-charter-treaty-survival-clause.pdf |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{schaugg2024model, author = {Schaugg, Lukas and Nikièma, Suzy}, title = {{Model Inter Se Agreement to Neutralize the Survival Clause of the Energy Charter Treaty Between the EU and Other non-EU Contracting Parties}}, institution = {International Institute for Sustainable Development}, year = {2024}, month = aug, url = {https://www.iisd.org/system/files/2024-07/energy-charter-treaty-survival-clause.pdf}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }