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Full notes on climate and society - legal aspects
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These are the full notes for the block legal aspects in the course climate and society at Utrecht University.
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Climate & society - legal aspectsHC 1: introduction & international climate change
regime
Introduction
What is law?
- Law: norms (standards of behavior) that have become legally binding on the members of a
(political) society because they have been established through recognized/authoritative
processes
- Legally binding means that violations of the law van have legal consequences (unlike political
or moral norms or policy goals)
International law
“International law governs relations between independent States. The rules of law
binding upon States … emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these coexisting
independent communities or with a view to the achievement of common aims.”
- Why do we need international law to address climate change?
o Transboundary nature of the problem: climate change can only be effectively
addressed through concerted action of States
o International law can direct or constrain behavior of States
o International law can facilitate cooperation among States
- Where do we find international climate law?
o Primary sources
Treaties
Customary international law some general rules and principles
o Subsidiary sources
Judicial decisions some relevant case law
Doctrine (opinions of legal scholars)
o Other sources: acts of international organizations
Treaties
“an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation.”
- Making of treaties: stages
o Negotiations
o Adoption treaty and opening for signature
o Formal expression of consent to be bound by States (usually through ratification)
o Entry into force
- When is a treaty legally binding?
o A treaty only becomes binding after entry into force and then only for States that
have become contracting parties free rider problem (state that does not take part,
can profit from treaty, but does not have to participate)
, o Signatory States have an obligation to refrain from acts which would defeat the
“objects and purpose” of the treaty pending its entry into force
o A treaty in force must be performed by the parties in good faith (pacta sunt
servanda)
- Common structure:
o Preamble (not binding): general pronouncements
o Operative part (main articles): substantive and procedural provisions
o Annexes or appendices (integral part of the treaty)
- What do treaty obligations look like?
o Differs greatly from one treaty to another
o Substantive and procedural obligations
o Hard and soft obligations: usually determined by choice of verb (shall vs should)
o Usually directed towards contracting parties (States), but can also be directed
towards other entities
International climate change regime
Background
Development of the international climate change regime
1988 UNGA Resolution 43/54: global climate change is a “common concern of mankind”
UNEP and WMO establish Intergovernmental Panel on Climate Change (IPCC)
1990 UN establishes Intergovernmental Negotiating Committee (INC) to prepare a framework
convention on climate change
1992 UNFCCC is adopted and opened for signature at UNCED in Rio de Janeiro
1994 UNFCCC enters into force
1997 Adoption of the Kyoto Protocol
2001 Bush Administration announces that US will not become a party to Kyoto Protocol
2004 Russia ratifies Kyoto Protocol
2005 Kyoto Protocol enters into force
2007 COP-13 & CMP-3: “Bali roadmap”
2009 COP-15 & CMP-5: Copenhagen Accord
2010 Adoption of “Cancun Agreements”
2011 Durban platform for enhanced action
2012 Doha Amendment to the Kyoto Protocol adopted
2015 Paris Agreement adopted
2017 Trump administration announces that US will withdraw from Paris Agreement
Climate change
- Treaties
o 1992: UNFCCC (in force since 1994)
o 1997: Kyoto Protocol (in force since 2005)
o 2015: Paris Agreements (in force since 2016)
- Response options
o Mitigations
Sources: reduce GHG emissions
Sinks and reservoirs: enhance removal or storage of GHG
Climate engineering (geo-engineering)?
o Adaptation
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