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International Climate Change Law
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Jeffrey Craig
Johns Hopkins University School of Advanced International Studies
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Jeff Craig
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In my final essay I will be assessing the matrices giving rise to the global environmental
climate change phenomenon we are witnessing today. Furthermore, I will be analyzing
the numerous successes, failures, and loopholes under the auspices of the current climate
change regime. With regards to this following statement: ‘Despite the proliferation of
international environmental agreements, large-scale and pernicious environmental
degradation has persisted,’ I will critically discuss the facts and results of climate
change, the effectiveness of the current climate change legal regime, and lastly, its
potential for improvement.
Thus, it is apparent the earth is already warming; and unless we modify our behavior by
reducing emissions of greenhouse gases substantially, we will experience continued
global warming and irreversible changes that will negatively impact all components of
the climate system6. According to the IPCC, global surface temperature increases will be
between 3.7°C and 4.8°C in 2100 if no new action is taken7. The temperature increases
will be substantial and the effects on humans will be severe. So, knowing this, how has
international law reacted to climate change?
4
What is climate change? (n.d.). Retrieved June 08, 2016, from http://www.takepart.com/flashcards/what-
is-climate-change
5
Cited
in
Carlarne,
7
6
Carlarne,
7
7
Cited
in
Carlarne,
8
Firstly, as noted above, Article 2 is broad in its exact specification of levels of emission.
8
This
does
not
assume
a
lack
of
recognition
of
similar
conventions
such
as
the
Vienna
Convention
vis-‐‑à-‐‑vis
the
Montreal
Protocol
&
separately,
the
Gothenburg
Protocol.
9
Birnie,
P.
W.,
&
Boyle,
A.
E.
(2009).
International
law
and
the
environment
(3rd
ed.).
Oxford
University
Press.
Page
357
10
Birnie
et
al.,
358
11
United Nations., (1992). United Nations Framework Convention on Climate Change. New York: United
Nations, General Assembly. Article 2.
Secondly, the Article does not envisage that the objectives should be achieved
immediately, but merely that it should be ‘within a time frame sufficient to allow
ecosystems to adapt naturally to climate change, to ensure that food production is not
threatened, and to enable economic development to proceed in a sustainable matter’12.
The terminology used in Article 2 suggests the parties foresee to some extent that a
decent degree of climate change as inevitable, and that they are prepared to tolerate it
provided it happens slowly enough to allow natural adaptation13.
Article 3 sets out the principles the parties shall be ‘guided by’ in their efforts to
achieve the objective of Article 2. It asserts: “Parties should protect the climate system
for the benefit of present and future generations of humankind on the basis of equity, and
in accordance with their common but differentiated responsibilities and respective
capabilities14.” It also takes into account the “specific needs and special circumstances of
developing countries,” it enforces Parties to “take precautionary measures to anticipate,
prevent or minimize the causes of climate change and mitigate its adverse effects,” it
promotes sustainable development, and lastly, it asserts that “parties should cooperate to
promote a supportive and open international economic system that would lead to
sustainable economic growth and development in all Parties, particularly developing
country Parties, thus enabling them better to address the problems of climate change15.”
Article 3 takes a novel approach to environmental protection, but in the context of
a dynamic, new, and evolutionary regime, it has the important merit of providing the
parameters that parties are required to work towards in achieving the objective of the
Convention16. In particular, they are not faced with an empty framework base source
when entering subsequent protocol negotiations or when the Conference of Parties takes
decisions under the various articles17. Regarding the legal effect of Article 3’s provisions
given their role as guidance, the principles are not necessarily binding rules that must be
complied with; especially regarding their softer legal status with the word usage of
12
Birnie
et
al.,
358
13
Cited
in
Birnie
et
al.,
358
14
Article
3
to
the
United
Nations
Framework
Convention
on
Climate
Change,
Parts
1-‐‑5.
15
Article
3
to
the
United
Nations
Framework
Convention
on
Climate
Change,
Parts
1-‐‑5.
16
Birnie
et
al.,
359
17
Ibid.,
‘should’ throughout the Article18. However, the Article is not without legal effect.
Article 4 deals with the commitments undertaken by the parties; these
commitments are based on the principle of ‘common but differentiated responsibility’.
Particularly, Article 4, Section 2a states:
Each of these Parties shall adopt national policies and take corresponding measures on the
mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and
protecting and enhancing its greenhouse gas sinks and reservoirs. These policies and measures
will demonstrate that developed countries are taking the lead in modifying longer-term trends in
anthropogenic emissions consistent with the objective of the Convention, recognizing that the
return by the end of the present decade to earlier levels of anthropogenic emissions of carbon
dioxide and other greenhouse gases not controlled by the Montreal Protocol would contribute to
such modification, and taking into account the differences in these Parties’ starting points and
approaches, economic structures and resource bases, the need to maintain strong and sustainable
economic growth, available technologies and other individual circumstances, as well as the need
for equitable and appropriate contributions by each of these Parties to the global effort regarding
that objective. These Parties may implement such
policies and measures jointly with other Parties
and may assist other Parties in contributing
to the achievement of the objective of the Convention
and, in particular, that of this subparagraph19;
Thus, the commitments undertaken by developed states in this Article are only
marginally more onerous by consisting principally of an obligation to adopt national
policies and measures on the mitigation of climate change by limiting emission of
greenhouse gases20. However, in deciding what these policies and measures should be, it
is freely up for individual Annex I parties to decide21. Furthermore, no uniformity of
approach is required, and economies in transition are additionally allowed a ‘certain
degree of flexibility’ in implementing their commitments under this article22.
As a result of the wording of these sub articles in Article 2, there creates a neither
strong nor clear commitment, in effect, the parties recognized that it would be necessary
to strengthen the Convention’s commitments in light of new scientific information and
further assessments of climate change. This led to the first Conference of the Parties to be
held at Berlin in 1995 to assess the results of the newest IPCC report at the time.
i. Overall assessment of its role: effectiveness & weaknesses
At the time of its adoption in 1992 the UNFCCC was criticized for containing
‘only the vaguest of commitments regarding stabilization and no commitment at all on
18
Birnie
et
al.,
359
19
Article
4
to
the
United
Nations
Framework
Convention
on
Climate
Change
20
Birnie
et
al.,
360
21
Birnie
et
al.,
360
22
Ibid.,
reductions23.’ Furthermore, it contained no provisions for international monitoring or
fact-finding. Nor did it acknowledge the responsibility of industrialized states to
compensate other states for the harm caused by greenhouse gas emissions beyond a
vague commitment to assist vulnerable developing country parties to meet the costs of
adaption24.
Despite the widespread criticism, a lot has changed since. In determining the
effectiveness of Conventions, the test of success lies not in the commitments made in the
Convention itself but in its subsequent evolution25. To notice, the UNFCCC did achieve
an equitable balance acceptable to a great majority of developed and developing states.
Moreover, the adoption of the Kyoto Protocol in 1997 demonstrated that agreement on
stronger emissions limits and earlier timetables was possible, despite the difficulty of
maintaining meaningful consensus26. Thus, the Convention set forth a basic framework of
legal effectiveness with regards to compliance towards its provisions, by establishing
general requirements for treaty outcomes, and by setting forth obligations of result. But,
in these cases, the notions of compliance with the treaty and the aims of its implicit
requirements and obligations are vague. As a result, the Convention has been subject to
many caveats. Despite the generality, I believe this Convention’s effectiveness most
relies on behavioral effectiveness where the role of the Convention’s articles is to modify
international behavior and steer it in the right direction towards achieving the regime’s
objective27. The only weakness with this aspect is that behavioral effectiveness is difficult
to measure, unlike legal effectiveness. Therefore, we may only compare what takes place
with what would have occurred in the absence of the treaty28. In this case, I believe the
UNFCCC is behaviorally effective and was the genesis in IEL that sought to combat
global climate change in a comprehensive manner.
b) Kyoto Protocol
By 1995, countries began to launch negotiations in order to help strengthen the
23
Birnie
et
al.,
370
24
Birnie
et
al.,
371
25
Ibid.,
26
Birnie
et
al.,
371
27
Bodansky, D. (2010). The art and craft of international environmental law. Cambridge, MA: Harvard
University Press. Page 253.
28
Bodansky,
D.
(2010).
Page
255
global response to climate change. Specifically, these meetings are referred to as the
United Nations Climate Change conferences. These Conferences serve as the formal
meetings of the UNFCCC Parties (Conferences of the Parties/COP) to assess the progress
in dealing with climate change. During COP1, held at Berlin in 1995, the Parties accepted
that the various commitments under the UNFCCC were inadequate, thus providing a
strong mandate for negotiating new and more rigorous obligations, to which would
eventually become the Kyoto Protocol29. Therefore, the Kyoto Protocol was adopted in
Kyoto, Japan, on December 11th, 1997 and entered into force on February 16th, 200530.
Currently, there are 192 Parties to the Kyoto Protocol but only 84 signatories31.
The key feature of the Kyoto Protocol is that it established for the first time,
quantitative restrictions on emissions from industrialized economies32. Furthermore, it
commits Parties to its standards by setting internationally binding emission reduction
targets. While the Protocol gives states freedom in how they implement their
commitments, it does not give them similar flexibility in defining the form and nature of
their commitments, as in the initial framework Convention. Instead, it prescribes a single
type of commitment (fixed emissions targets, which countries must achieve regardless of
changing economic or other circumstances), the scope of those targets (economy-wide),
the gases covered (a basket of six greenhouse gases), and the international offsets that can
count towards meeting those targets (certified emission reductions created through the
collective decision-making procedures of the Clean Development Mechanism)33.
Moreover, rather than being determined by each country unilaterally, the initial Kyoto
targets were defined through a process of international negotiations, and are subject to
detailed international accounting rules to determine whether a country has complied34.
This symbolized a move back towards a more flexible bottom-up approach. The
states willing to accept the initial Kyoto targets (for 2008–2012) represented only about a
29
Birnie
et
al.,
360
30
Kyoto Protocol. (n.d.). Retrieved June 08, 2016, from http://unfccc.int/kyoto_protocol/items/2830.php
31
Kyoto Protocol. (n.d.). Retrieved June 08, 2016, from http://unfccc.int/kyoto_protocol/items/2830.php.
The
Protocol’s
first
commitment
period
started
in
2008
and
ended
in
2012.
The
second
commitment
period
began
on
January
1st
2013
and
will
end
in
2020
32
Birnie
et
al.,
361
33
Bodansky,
D.,
O'Connor,
S.
D.,
&
Diringer,
E.
(2014,
May).
EVOLUTION
OF
THE
INTERNATIONAL
CLIMATE
EFFORT.
Retrieved
June
7,
2016.
Page
2.
34
Ibid.,
quarter of global emissions; the smaller subset of countries taking second-round targets
(through 2020) account for only 14 percent35. Thus, participation was low. Specifically
regarding emissions, the quantified emission limitation and reduction commitments
contained in Article 3(1) of the Protocol seek to ensure that overall emissions from
Annex B states are reduced to at least 5 percent below 1990 levels within the period 2008
to 201236. This article sets out different limits for each party, in deference to their
particular circumstances, including ability to reduce emissions, access to clean
technology, use of energy and so on. Nonetheless, all parties listed in Annex I of the
Convention must show ‘demonstrable progress in meeting their Kyoto Protocol
commitments by 200537. In addition, and oddly enough, developing states are not
included in Annex B. As a result, emissions limits do not apply to them and they are not
required to do any more than to meet their existing commitments under Article 4(1) of
the UNFCCC38.
i. Assessment of its role: effectiveness & weaknesses
In recognizing that developed countries are principally responsible for the current
high levels of GHG emissions in the atmosphere, the Protocol places a heavier burden on
these nations under the principle of ‘common but differentiated responsibilities.’
Nonetheless, countries must meet their targets primarily through national measures.
However, the Protocol also offers additional means to meet their targets by way of three
market-based mechanisms: the Clean Development Mechanism, Joint Implementation,
and Emissions Trading39. The Kyoto Protocol was seen as an important first step towards
a truly global emission reduction regime that would stabilize GHG emissions and serve
as the architecture for future international agreements on climate change.
However, despite strong initial support from the international community, the
Protocol ultimately failed to induce significant emission reductions on a global scale40.
And while the relative failure of the Kyoto Protocol is often attributed to a variety of
35
Ibid.,
36
Cited
in
Birnie
et
al.,
361
37
Birnie
et
al.,
361
38
Ibid.,
39
Birnie
et
al.,
361
40
Grunbaum, L. (2015, December 1). From Kyoto to Paris: How Bottom-Up Regulation Could Revitalize
the UNFCCC. Stanford Environmental Law Journal.
factors, one of the Protocol’s most significant flaws was its failure to promote
comprehensive participation by all UNFCCC parties. Lastly, the emissions reductions
required by the subsequent Kyoto periods (2012-2020) have yet to enter into force due to
insufficient ratification by member Parties. So, while it is true that the Kyoto Protocol
encouraged all parties (including developing countries) to adopt emission reduction
targets, the agreement ultimately failed to obtain emission reduction commitments from
the some of the world’s largest greenhouse gas emitters, which include the United States,
China, Brazil, India, and South Africa.
As a result, the Kyoto Protocol has failed to provide for a truly comprehensive
and effective solution to climate change41. The failure of its legal effectiveness was due
to its lack of widespread participation of states complying to the obligations the rules
established, and in the actual conduct or lack of conduct/compliance regarding those
subject to these obligations. In essence, almost two decades after the emergence of global
warming as a significant political issue, global emissions of greenhouse gases continue to
grow at a rate of roughly 1.9 percent per year, and the entry into force of the Kyoto
Protocol has done little to slow this trend42.
c) Paris Agreement
The 2015 Paris Agreement (PA), adopted in Paris on December 12th, 2015, marks
the latest step in the evolution of the UN climate change regime and builds on the work
undertaken under the UNFCC43. The Paris Agreement’s central aim is to strengthen the
global response to climate change by keeping a global temperature rise this century well
below 2 degrees Celsius above pre-industrial levels, and to pursue efforts to limit
temperature increase even further to 1.5 degrees Celsius44. Although it does not require a
certain amount or range of emission cuts in a certain amount of time, the PA is still a
significant addition in the effort to combat global climate change. It is a legally binding
treaty. However, it needs to be ratified by a sufficient number of parties before it can
enter into force. It will be opened for signature on April 22nd, 2016 in New York, and
41
Grunbaum (2005)
42
Cited in Bodansky (2010), 260
43
Background on the UNFCCC: The international response to climate change. (n.d.). Retrieved June 08,
2016, from http://unfccc.int/essential_background/items/6031.php
44
Background on the UNFCCC: The international response to climate change. (n.d.). Retrieved June 08,
2016, from http://unfccc.int/essential_background/items/6031.php
enter into force if at least 55 Parties representing at least 55 percent of global emissions
have ratified45.
The Paris Agreement sheds new light in differentiating between developing and
developed countries, it breaks new ground by supplementing the principle of ‘common
but differentiated responsibilities’ by its core obligations for all parties and by its range of
techniques used to express differentiation between parties46. Specifically, it does this by
focusing on individual climate mitigation plans. In five-year cycles, all parties have to
prepare ‘nationally determined contributions’ (NDCs) (Article 4 & 20), report on
implementation, account for their contributions, and regularly enhance their national
plans. Lastly, developing countries continue to receive support for their actions and
reporting.
The NDC approach is regarded as positive co-option instead of imposing general
obligations on all parties47. This assumes that by not prescribing specific measures or
emission reductions, it will make it easier and more attractive for countries to join the
Agreement and to develop ambitious NDCs. Even more so, it assumes that the
transparent nature of this system will pressure States to do their fair share and implement
their own NDCs48. The fact that almost all parties to the UNFCCC, developed and
developing, have showed their commitment by submitting ‘intended nationally
determined contributions’ prior to the Paris summit can be regarded as a success in this
respect49. However, as a whole, the INDCs so far still fall short of the ambition required
globally to effectively combat climate change.
i. Assessment of its role: effectiveness & future outlook
Despite various shortcomings in its legal status, the Paris Agreement is framed in
45
European Commission, COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL. (2016, February 3). The Road from Paris: Assessing the
implications of the Paris Agreement and accompanying the proposal for a Council decision on the signing,
on behalf of the European Union, of the Paris agreement adopted under the United Nations Framework
Convention on Climate Change [Press release].
46
Bodle, R., Donat, L., & Duwe, M. (2016, January 28). The Paris Agreement: Analysis, Assessment and
Outlook [Background paper for the workshop “Beyond COP21: what does Paris mean for future climate
policy?”]. Federal Ministry for the Environment, Nature Conserva- tion, Building and Nuclear Safety,
Berlin. Page 2.
47
Bodle
et
al.,
29
48
Ibid.,
49
Bodle
et
al.,
22
a way that presents a clear political narrative of what parties are expected to do towards
combatting climate change50. The procedural approach is a means for setting out a simple
but clear structure for the global effort. The number, and quality of the INDCs submitted
so far is a sign that parties are willing to follow this approach51. But, it remains to be seen
whether the PA’s provisions will trigger sufficient momentum over time, whether parties
will implement them, and how effective they actually turn out to be. Thus,
implementation is key to the long-term success of the PA outcome.
I believe that order to uphold the progress made in combatting global climate
change, the political momentum captured in Paris needs to be maintained52. Secondly, the
capacity has to be created for the continued implementation of NDCs. The ‘intended’
contributions (INDCs) submitted before and in Paris showed an almost universal
engagement by all countries, despite their content not being sufficient for staying below 2
degrees Celsius53.
Thirdly, the PA’s procedural approach means that further
development and codification of the provision’s details are required. The negotiations in
future COP meetings need to determine the remaining technical details, in particular
regarding the NDC’s features and the Agreement’s transparency. These details have to
provide a counterweight to the flexibility parties have in defining and implementing their
actions in fighting climate change54.
Part 3: Potential for Progress, Improvement, and Amendment
Thus, it seems that with the signature of the Paris Agreement a larger worldwide
consensus on combatting climate change was achieved. Specifically, with the backing of
the world’s most powerful states, (finally including the US) furthermore, by involving
states bound together with a sense of community and cooperation seeking to prevent
catastrophic climate change. With the creation of a more secure financial mechanism,
developing countries can have access to more clean solutions to industrialization, also, by
featuring a climate change regime with both a top-down approach and a flexible bottom-
up approach, it provides all states with the flexibility to willfully try out the new system
50
Bodle
et
al.,
29
51
Ibid.,
52
Bodle
et
al.,
29
53
Bodle
et
al.,
29
54
Ibid.,
at their own capacity. In the end, determining the successes of the climate change regime
is a complex and difficult task; nonetheless, I believe the regime has come a long way
since its design in 1992. Concerning the increased participation of the global community,
the annual meetings held to discuss the issue, to the proliferation of the scientific
community in assessing climate change and in the cooperation of signing the Paris treaty,
are all evidence of support that highlight the regime’s development through time as a
more strengthened and recognized institution in combatting climate change. At last, the
results and effectiveness will depend on the implementation of the climate regime’s
provisions by the international community.
Works
Cited
Birnie, P. W., & Boyle, A. E. (2009). International law and the environment (3rd ed.).
Oxford University Press.
Bodansky, D. (2010). The art and craft of international environmental law. Cambridge,
MA: Harvard University Press.
Bodansky, D., O'Connor, S. D., & Diringer, E. (2014, May). EVOLUTION OF THE
INTERNATIONAL CLIMATE EFFORT. Retrieved June 7, 2016, from
http://www.c2es.org/docUploads/evolution-of-the-international-climate-effort.pdf
Bodle, R., Donat, L., & Duwe, M. (2016, January 28). The Paris Agreement: Analysis,
Assessment and Outlook [Background paper for the workshop “Beyond COP21:
what does Paris mean for future climate policy?”]. Federal Ministry for the
Environment, Nature Conserva- tion, Building and Nuclear Safety, Berlin.
Grunbaum, L. (2015, December 1). From Kyoto to Paris: How Bottom-Up Regulation
Could Revitalize the UNFCCC. Stanford Environmental Law Journal. Retrieved from
https://journals.law.stanford.edu/stanford-environmental-law-journal-elj/blog/kyoto-
paris-how-bottom-regulation-could-revitalize-unfccc.