Climate Change Law
Session 2 - Development of international climate law principles
From IPCC to Paris
- Early phase? Doubts about climate change, research only
- UNFCCC (1992)
- Concluded at UN Conference on environment and development in Rio
- Some basic obligations, framework for future decisions
- No reduction targets. General objective:
- Stabilization of GHG concentrations that prevent dangerous anthropogenic interference
with climate system (Art. 2)
- “<2º Celsius rise above pre-industrial level” (not in text UNFCCC)
- Co=operation, research, education, public awareness
- Framework for future agreements
- All parties - Annex I countries - Annex II countries
- Kyoto protocol
- Binding emission reduction targets for developed countries, to be achieved by 2012.
- Unilateral instruments that individual States implement: Subsidy, tax, emission controls,
ETS and others.
Emission Trading Scheme:
If you have acquired 15 allowances but you emit 12, you have 3 allowances that you need that you
can sell on the market to another company. Companies that manage to reduce their emissions
need less allowances can make money out of it.
- Many COPs (1998-2014) —> To help the States for reaching the binding emission reduction
targets of Kyoto Protocol.
- Enforcement mechanism
- Adaptation framework
- Technology Mechanism
- Green Climate Fund
- Loss and damage
- Reduced Emissions from Deforestation and Forest Degradation (REDD+)
- Unsuccessful post-Kyoto COPs: Copenhagen 2009
Paris agreement (2015)
- Moved away from the initial approach of Kyoto about targets for each countries and moved
to bottom up approach, From top down to bottom up approach which are targeted by
the States themselves,
- The end goals are amended.
- Global temperature rise well below 2 or at 1,5 degrees
- Balance between emissions and removals by sinks in the second half of this century
- Nationally Determined Contributions
- Increase adaptation
- Make finance flows consistent with low GHG (Greenhouse gas) emissions pathways and climate-
resilient development
, Climate Change Law
- New framework for future international climate change negotiations
- Lecture 4: PA in detail
Role of general international law
- Treaties: binding, “hard law”, although provisions may leave much room for individual states
(UNFCCC, Kyoto Protocol, Paris Agreement)
- General principles of law: several environmental principles accepted by ICJ as binding principles
(no harm, environmental impact assessment)
- Decisions by ICJ, PCA etc.
- Soft law: non-binding, declarations, guidelines, soft principles such as principle of sustainable
development (Rio Declaration on Environment and Development)
- Enforcement problematic:
- Security council, use of force
- Compliance mechanism can be drafted under specific treaty (Kyoto Protocol Compliance
Mechanism) Imposing fines on States,
- Paris Agreement does not have the same mechanism.
- Bilateral conflict or tribunal or court (ICJ. PCA)
Enforcement of Climate Change law is vey problematic.
Sovereignty & No harm principles
- The most important principle of International law
- “States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other States or of areas
beyond the limits of national jurisdiction” (Rio Declaration, Principle 2)
Principles of climate law
- Article 3 UNFCCC “Principles”:
- Protect future generations (1) – intergenerational equity • —> Between generations, there
has to be equality in the sense that the current one should not move its obligations to
the next.
- Common but differentiated responsibilities (1) – intragenerational equity —> We all (every
nation) has to do something for the climate in the bigger sense.
- Special attention for vulnerable, developing country parties (2) —> States should take
action before its too late, it can be too late if you wait for the scientific proof.
- Precautionary principle (3): Take into account socio-economic context, be comprehensive,
including sinks, reservoirs, adaptation (3)
- Right to sustainable development (4)
- Cooperation principle, free trade (5)
- CC is common concern of humankind (not really a principle, in preamble, also of Paris
Agreement) It is contradictory to the principle of every nation has their own obligations and
sovereignty and can make their own decisions. A big debate going on. Every country has
their own laws and governments so there is a real gap between how we are organized
countries and laws and what is needed to protect the planet . This principle of common
concern of humankind fits very well with this idea of “we have one planet and we should
work together” But the other principle of sovereignty is completely opposed to this idea.
, Climate Change Law
- A mix of principles, some general principles of intl environmental law, some soft law principles,
some other types of norms (human rights)
Precautionary principle
- At the moment, it is not that relevant anymore because climate change is here, there is nothing to
argue about it anymore.
- “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of
climate change and mitigate its adverse effects. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing such
measures, taking into account that policies and measures to deal with climate change should be
cost-effective so as to ensure global benefits at the lowest possible cost.”
- What does it actually mean? – Some argue that it’s too late to take precautionary action:
‘post-cautionary’ measures (such as adaptation, disaster response, loss & damage)
Session 3 - UNFCCC and Kyoto Protocol
UNFCCC
- UN Framework Convention on Climate Change
- No reduction targets.
- General objective:
- Stabilization of GHG concentrations that prevent dangerous anthropogenic interference with
climate system (Art. 2)
- “<2º Celsius rise above pre-industrial level”
- Framework for future agreements
Mitigation measures for all parties (Art. 4(1))
- National inventory GHG emissions and “sinks” –
- Implement mitigation policy – No reference to how much should it be, having the
policy seems enough.
- Stimulate clean technology/practice –
- Sustainable management of “sinks” (forests/oceans) –
- Integrate climate into decision-making (social, economic, environmental) –
- Stimulate research –
- Stimulate education, public awareness, broad participation
Adaptation measures for all parties:
- Climate change adaptation is the process of adjusting to current or expected climate
change and its effects.[1][2] It is one of the ways to respond to climate change, along with climate
change mitigation.[3]
- For humans, adaptation aims to moderate or avoid harm, and exploit opportunities; for natural
systems, humans may intervene to help adjustment.)
- Establish adaptation policy
- Cooperate on adaptation measures, especially in the field of agriculture and water
management (including coastal zones), especially in Africa –
- Integrate adaptation measures into social, economic and environmental policy
, Climate Change Law
Measures Annex I parties (Art. 4(2))
- National policy to reduce GHG emissions
- Report emission data and measures to COP
Measures for Annex II parties (Art (3-5))
- Finance, technology, know-how to developing countries
- Aid for adaptation measures in developing countries
Kyoto Protocol (1997) - It set up the Paris agreement
Emission reduction targets:
- Several greenhouse gasses: Annex A (relationship to Montreal protocol ozone layer)
- Annex B refers to the Annex I countries (UNFCCC)
- EU as a whole: 8%, within EU differences
- Reduction below 1990 levels, to be achieved between 2008 and 2012 (Art. 3(1))
Legal instruments to be used:
- Unilateral instruments (subsidy, tax, emission controls, ETS, etc.)
- Bi- or multilateral instruments (ETS, JI, CDM)
“Cap and trade” in Kyoto Protocol
- How does it work?
- Emission trading (Art.17 Kyoto Protocol)
- Domestic level (UK, NZ, China, South Korea …)
- Group of countries level (EU)
- The surplus of the allowances can be sold and traded. Its called the Carbon Market.
- UK’s 11% contribution has been taken out from the EU perspective after the Brexit. It
changed the market.
Currently it is 33 euros per kilo of CO2. Some say that it is not enough for a big improvement to
happen. You need higher prices.
- Largest emitters are coal fired power plants:
- Largest in Europe: 37 million tonnes of CO2 annually
- Largest worldwide: 41 million
Clean Development Mechanism (Article 12 Kyoto Protocol) (CDM)
Is between Annex I country and the developing country
- You have to develop a project to reduce emissions and it has to happen in a developing country.
- Dual aim: GHG emissions reduction AND sustainable development in developing country
- Investor earns CER (Certified Emission Reduction credit), which can be traded or used in ETS
(see session 5)
- Making sure that the developing countries can have sustainable economic growth
• (1) to assist parties not included in Annex I in achieving sustainable development and in
contributing to the ultimate objective of the United Nations Framework Convention on
Climate Change (UNFCCC), which is to prevent dangerous climate change; and
