Neutralising the ECT Sunset Clause Inter Se.

The article focuses on the European Commission’s recommendation for a coordinated withdrawal of the European Union (EU) and its Member States from the Energy Charter Treaty (ECT) and the legal feasibility of neutralizing the treaty’s sunset clause through inter se agreements. It analyzes two main options under international treaty law: a subsequent agreement on the interpretation of the ECT, as proposed by the Commission to exclude intra-EU application of the treaty and its sunset clause, and an inter se modification agreement among withdrawing parties to mutually exclude the sunset clause’s effects. The analysis concludes that such inter se agreements are legally viable under the Vienna Convention on the Law of Treaties, do not prejudice the rights of other ECT parties, and could effectively prevent investor-State dispute settlement claims related to climate measures within the group of withdrawing States. The article also addresses timing concerns, affirming that neutralization of the sunset clause can occur before or after withdrawal, and suggests that the EU and its Member States should consider extending such agreements beyond intra-EU relations to align with their climate objectives.