Towards Right to Regulate for Climate Actions: A Closer Look at the Modernized Energy Charter Treaty

Abstract This article discusses recently adopted amendments to the text of the ECT through the lens of the right to regulate. In doing so, it critically analyses how contracting parties attempted to incorporate right to regulate into the ECT framework and identifies related developments in general treaty drafting practice. It introduces a typology of such attempts and developments, enabling the author to demonstrate increasing creativity in treaty drafting practice of IIAs. The concept of the right to regulate is approached narrowly, solely in the context of climate actions of host states. It is argued that discussed attempted expressions of the right to regulate should in principle be viewed as having attributes of quasi rights carrying the potential to influence and steer interpretation and application of treaty norms, however failing to provide host states with a binding and enforceable legal right.