10 Climate Change Law

Ms Vyoma Jha

1. Introduction

Climate change, like a lot of other problems in the modern world, is shaped by challenges that are increasingly non-linear, unpredictable, messy and context-dependent. The effects of climate change are decidedly non-linear and difficult to forecast. The law of climate change, thus, involves a wide gamut of issues that go well beyond the confines a legal framework. In order to be prepared for and resilient to the changes in the legal issues surrounding climate change, a lawyer needs to be well versed in the history of the climate change problem, the science behind it, and the resulting policy and legal responses to address the issue of climate change.

2. Learning Outcomes

To introduce students to the developing field of climate change law by providing them a sufficient grounding in the history of the climate change problem, climate science and the major international legal instruments to address the issue of climate change.

3.A history ofthe climate change problem

According to the Human Development Report 2007/8, climate change is “the defining human development challenge of the 21st Century”. From shifting weather patterns that threaten food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale. The Report goes on to highlight how climate change is not just a future scenario rather there is overwhelming scientific evidence pointing towards irreversible ecological catastrophe (UNDP, 2008).

In order to understand the origins of and responses to the climate change challenge, we will take a look at the history of the problem and the first institutional and legal measures to address the issue.

In response to a series of highly publicized climatic and environmental events in the 1960s and 1970s, the World Meteorological Organization (WMO) in associated with the United Nations Environment Programme (UNEP) convened the First World Climate Conference (FWCC), which was held on 12-23 February 1979 in Geneva. This was a landmark event as it was the very first major international meeting on climate change. Attended by scientists from a wide range of disciplines, the purpose of the conference was to assess the state of knowledge of climate and to consider the effects of climate variability and change on human society.

Following the FWCC, the World Climate Programme and the World Climate Research Programme were established with the aim of developing fundamental scientific understanding of the physical climate system and the extent of human influence on climate.

In 1988, the WMO and UNEP created the Intergovernmental Panel on Climate Change (IPCC). A scientific intergovernmental body, the IPCC aims to assess scientific information relevant to human-induced climate change, the impacts of human-induced climate change, and options for adaptation and mitigation.

The IPCC published its First Assessment Report in 1990 that served as the basis of the United Nations Framework Convention on Climate Change (hereinafter ‘UNFCCC’ or ‘Convention’).

One of the main findings of the First Assessment Report was that emissions resulting from human activities are substantially increasing the atmospheric concentrations of greenhouse gases (GHG),which in turn will enhance the greenhouse effect, resulting on average in an additional warming of the Earth’s surface. The Report also stated that carbon dioxide was been responsible for over half the enhanced greenhouse effect in the past and is likely to remain so in the future. It also calculated with confidence that stabilization of atmospheric concentrations of GHG at today’s levels would require immediate reductions in emissions from human activities of over 60 per cent.

4.  The science behind climate change

Climate science has proved to be the basis of the international legal response to the problem of climate change i.e. the UNFCCC (discussed in the next section).The IPCC now has a well-established role in reviewing worldwide climate science research, issuing regular assessment reports, and compiling special reports and technical papers. The findings of the IPCC assessment reports reflect global scientific consensus and frequently play a major role in international climate negotiations. Since 1990, the IPCC has released five assessment reports that look at the science of climate change, and have reached the conclusion that climate change is a real and man-made problem.

The Fourth Assessment Report (AR4) of the IPCC, which was released in 2007, propelled climate change into popular consciousness with its observations and future projections on climate change impacts. Some of the key findings of AR4 were:

Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice and rising global average sea level.

Most of the global average warming over the past 50 years is “very likely” (greater than 90% probability, based on expert judgement)due to human activities.

Impacts of climate change will very likely increase due to increased frequencies and intensities of some extreme weather events.

Anthropogenic warming and sea level rise would continue for centuries even if GHG emissions were to be reduced sufficiently for greenhouse gases concentrations to stabilize, due to the time scales associated with climate processes and feedbacks.

Some planned adaptation of human activities is occurring now; but more extensive adaptation is required to reduce vulnerability to climate change.

Unmitigated climate change would, in the long term, be likely to exceed the capacity of natural, managed and human systems to adapt.

Many impacts of climate change can be reduced, delayed or avoided by mitigation (IPCC, 2007).

The 2007 Nobel Peace Prize was shared, in two equal parts, between the IPCC and Al Gore for their efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change.

In 2013, the IPCC’s Fifth Assessment Report (AR5) has provided more clarity about human-induced climate change than ever before. The Working Group 1 of AR5 provides a comprehensive assessment of climate change impacts and their causes over the past few decades.Some of the key findings presented by them are as follows:

Agricultural yields are expected to drop in most tropical and sub-tropical regions (and in temperate regions, too) if the temperature increase is more than a few degrees.

Diseases, especially those carried by vectors like mosquitoes, could spread to new areas in the world.

Millions of people are expected to be exposed to increasing water stress as ice packs that feed melt-water into rivers that keep millions of people alive, shrink progressively over the decades; or pump extra water into the rivers in the summer, causing damaging, unprecedented flooding.

More intense weather-related disasters combine with rising sea levels and other climate-related stresses to make the lives of those living on coastlines, particularly the world’s poor, misery

Extinctions are expected from the current warming trends (IPCC, 2013).

5.Background on the UNFCCC: The international response to climate change

The UNFCCC is the principal international legal instrument adopted by states to address climate change. The international treaty was negotiated at the United Nations Conference on Environment and Development (UNCED), also called the ‘Earth Summit’, in Rio de Janeiro in June 1992. The effort by the countries was to cooperatively consider options to limit average global temperature increases and the resulting climate change, and to cope with the impacts of climate change. As a result, the ultimate objective of the treaty is to “stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Article 2, UNFCCC).The UNFCCC enjoys near universal membership and as of October 2014 there are 196 Parties to the Convention. The Conference of the Parties (COP) is the supreme body of the Convention to assess progress in dealing with climate change. All Parties to the Convention are represented at the COP, which meets every year unless the Parties decide otherwise. It reviews the implementation of the Convention and any other legal instruments that have been adopted by the COP, and is responsible for all decision making toensure the effective implementation of the Convention.

The Parties to the Conventionnote that “the largest share of historical and current global emissions of greenhouse gases has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs” (Preamble, UNFCCC). Given that industrialized countries are identified as the source of most past and current GHG emissions, they are expected to undertake the maximum emissions cut on home ground. On the basis of this historical responsibility, the Convention puts the onus on developed countries to lead the way in combating climate change.

As per the Convention, these countries are called Annex I countries and belong to the Organization for Economic Cooperation and Development (OECD). They include 12 countries with “economies in transition” from Central and Eastern Europe. Annex I countries were expected to stabilize their GHG emissions at 1990 levels, by the year 2000.Non-Annex Icountries are Parties to the UNFCCC that are not listed in Annex I, and comprise mostly of low-income developing countries. Non-Annex I countries do not have legally binding targets to reduce or limit their GHG emissions.

Article 3 of the Convention provides the basis for one of the core principles of the climate change regime: the common but differentiated responsibilities and respective capabilities. Article 3.1 reads as follows:

The 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 capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

Under Article 4 of the Convention, all Parties make general commitments to address climate change through, for example, climate change mitigation or adaptation, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances.

According to Article 4.3 of the Convention, developed country Parties and other developed Parties included in Annex II of the Convention shall provide financial support, including transfer of technology, to help support climate change activities in developing countries. The financial resources provided by the developed countries must be new and additional, and meet the agreed full incremental costs incurred by developing countries in complying with their obligations. Moreover, the implementation of these commitments shall take into account the need for adequacy and predictability in the flow of funds and the importance of appropriate burden sharing among the developed country Parties.

[For more details, please refer tothe unit on “Financial Mechanisms and Technology Transfer” in the Environmental Law module.]

6. The Kyoto Protocol

In 1995, countries launched further negotiations to strengthen the global response to climate change after it was realized that the emissions reduction provisions in the Convention were inadequate since the Convention itself neither set mandatory limits on GHG emissions for countries nor contain any enforcement mechanisms. The Convention, in essence, was considered to be legally non-binding. It did, however, allow for the adoption of protocols to the Convention (Article 17, UNFCCC), which led countries to adopt the Kyoto Protocol to the UNFCCC in 1997. The Kyoto Protocol (or ‘Protocol) is an international treaty that legally binds developed country Parties or Annex I Parties to reduce GHG emissions, but contains no binding emissions reduction commitments for non-Annex I Parties. The Protocol essentially “operationalized” the Convention,as it committed industrialized countries to stabilize GHG emissions based on the principles of the Convention, whereas the Convention itself only encouraged countries to do so. The Protocol,however, was structured on the principles of the Convention and placed a heavier burden on developed nations under its central principle: that of “common but differentiated responsibility”.

It only binds developed countries to emissions reduction targets because it recognizes their responsibility for the historical and current high levels of GHG emissions.

The Protocol has two commitment periods: the first commitment period applies to emissions between 2008 and 2012, and the second commitment period applies to emissions between 2013 and 2020. During the first commitment period, the Protocol set binding emissions reduction targets for Annex I Parties under the UNFCCC. Together, these targets add up to an average five per cent emissions reduction compared to 1990 levels over the first commitment period.

It entered into force on 16 February 2005 after a long ratification period. At present, 192 countries are Parties to the Kyoto Protocol. Most significantly, the United States of America, which was the highest emitter of greenhouse gases at the time the Protocol was signed, never ratified the Protocol.

The COP serves as the meeting of the Parties to the Kyoto Protocol. This is called the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP). The CMP meets annually during the same period as the COP. The first CMP was held in Montreal, Canada in December 2005, in conjunction with the eleventh session of the COP (COP 11).

4.1. The Kyoto Mechanis ms

Although Parties are bound to meet their emissions reduction targets through domestic action i.e. to reduce their emissions on shore, the Kyoto Protocol allows Parties to meet part of their targets through three flexible mark et-based mechanisms that ideally encourage GHG abatement to start where it is most cost-effe ctive, for example, in the developing world. These market-based mechanisms, also known as the “Kyoto mechanisms”, are as follows:

4.1.1.International Emissi ons Trading

Parties with commitments under the Kyoto Protocol have accepted tar gets for limiting or reducing emissions. These targets are expressed as levels of allowed emissions, or “assigned amounts,” over the first co mmitment period. The allowed emissions are divided into “assigned amount units” (AAUs).

Article 17 of the Protocol envisages emissions trading, and allows countries that have emission units to spare i.e. emission s permitted for them but not “used”, to sell this excess capacity to countries that are over their targets.

Thus, a new commodity was created in the form of emission reductions or removals. Since carbon dioxide is the princip al greenhouse gas, people speak simply of tradi ng in carbon. Carbon is now tracked and traded lik e any other commodity. This is known as the “ca rbon market”.

4.1.2. The Clean Developm ent Mechanism (CDM)

Under Article 12 of the Protocol, the CDM allows a country with a n emissionreduction commitment to implement an emissionreduction project a developing countr y. These projects can earn saleable certified emiss ion reduction (CER) credits, each equivalent to one tonne of carbon dioxide (CO2), which can be counted towards meeting Kyoto targets.The m echanism stimulates sustainable development and emission reductions, while giving industrialized countries some flexibility in how they meet their emission reduction or limitation targets. For example, a CDM project activity might involve a rural electrification project using solar panels or the installation of more energy-efficient boilers in developing countries.

4.1.3. Joint Implementation (JI)

Under Article 6 of theProtocol, the JI allows a country with an emission reduction commitment to implement an emission reduction project in another developed country. These projectscan earn emission reduction units (ERU), each equivalent to one tonne of CO2, which can also be counted towards meeting its Kyoto target. JI offers Parties a flexible and cost-efficient means of fulfilling a part of their Kyoto commitments, while the host Party benefits from foreign investment and technology transfer.

4.2.Registry, Reporting and Compliance

There are specific rules under the Protocol that oblige countries to monitor their actual emissions and maintain precise records of the trades carried out. Registry systems track and record transactions by Parties under the market-based mechanisms. The UNFCCC Secretariat, based in Bonn, Germany, keeps an international transaction log to verify that transactions are consistent with the rules of the Protocol.

There are certain provisions for reporting and review procedures under the Protocol,whereby Parties are required to submit annual emissions inventories and national reports at regular intervals. Article 5 commits Annex I Parties to having in place, no later than 2007, national systems for the estimation of greenhouse gas emissions by sources and removals by sinks. Article 7 requires Annex I Parties to submit annual greenhouse gas inventories, as well as national communications, at regular intervals, both including supplementary information to demonstrate compliance with the Protocol. Article 8 establishes that expert review teams will review the inventories, and national communications submitted by Annex I Parties.

In addition, the compliance systemunder the Protocol is designed to strengthen the Protocol’s environmental integrity, support the carbon market’s credibility and ensure transparency of accounting by Parties. Its main objective is to facilitate, promote and enforce compliance with the commitments under the Protocol. The Compliance Committee is made up of two branches: a facilitative branch and an enforcement branch. The facilitative branch aims to provide advice and assistance to Parties in order to promote compliance, while the enforcement branch has the responsibility to determine consequences for Parties not meeting their commitments.

4. International Climate Change Negotiations: Important Developments

With the first commitment period of the Kyoto Protocol scheduled to expire in 2012, Parties to the Convention decided to launch a process to negotiate a successor to the Kyoto Protocol. At the 13th session of the COP (COP 13) held in Bali, Indonesia, the international community agreed to launch negotiations on the post-2012 international climate regime in order to provide clear guidance to the parties on how they can increase their efforts to combat climate change after the end of the first commitment period of the Kyoto Protocol.

5.1. Bali:Drawing the road map for a global climate deal

In 2007, at the 13thsession of the COP (COP 13) held in Bali, Indonesia, Parties adopted the Bali Road Map, which was a set of decisions that represented key issues in reaching a global climate deal. The Bali Road Map includes the Bali Action Plan (BAP), which launched a “new, comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012”, with the aim of reaching an agreed outcome and adopting a decision by the 15th session of the COP (COP15) in Copenhagen. It was decided that the BAP would be divided the plan into five main categories: shared vision, mitigation, adaptation, technology and financing. The conference also established two subsidiary bodies under the Convention to conduct the process, the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) and the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP). Both these groups were to complete their work by 2009 and present the outcome at COP15.

5.2. Copenhagen: Failure to launch

In 2009, COP15 heldin Copenhagen, Denmarkraised expectations about a new global climate deal and turned the attention of the highest political levels towards climate change policy, with 115 world leaders attending the conference. It produced the Copenhagen Accord, which was not adopted by governments, but advanced a number of key issues in the negotiations. This included the long-term goal of limiting the maximum global average temperature increase to no more than two degrees Celsius above pre-industrial levels, subject to a review in 2015. However, there was no agreement on how to do this.It alsocommitted developed countries on their promises to fund actions to reduce greenhouse gas emissions and to adapt to the inevitable effects of climate change in developing countries. Developed countries promised to provide US$30 billion in “fast-start finance” for the period 2010-2012, and to mobilize long-term finance of a further US$100 billion a year by 2020 from a variety of sources.COP15 also extended the work for the two central negotiating groups, the AWG-LCA and the AWG-KP.

5.3. Cancun:Continuing to address the long-term challenge of climate change

The 16thsession of the COP (COP 16) was held in Cancun, Mexico, in 2010. The outcome of this conference were the Cancun Agreements, which are a set of significant decisions by the international community to address the long-term challenge of climate change collectively and comprehensively over time and to take concrete action now to speed up the global response. It addressed issues of mitigation, adaptation, finance, technology and capacity building. One of the most important decisions to emerge from the conference was the establishment of the Green Climate Fund, designated as an operating entity of the financial mechanism of the Convention. On technology transfer, there was a decision to establish a Technology Mechanism, which would consist of a Technology Executive Committee and a Climate Technology Centre and Network.[For more details, please refer to the unit on “Financial Mechanisms and Technology Transfer” in the Environmental Law module.]

5.4.Durban:Launching a new process for a global climate deal

In 2011, Parties met in Durban, South Africa for the 17th session of the COP (COP 17) to continue their work towards a post-2012 legally binding agreement. In addition, Parties reached an agreement on a second commitment period on the Kyoto Protocol. Governments recognized the need for a universal legal agreement to deal with climate change beyond 2020 and agreed on a pathway and deadlines to drawing up and committing to a new, post-2020 mitigation framework under the Convention. Parties then launched the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) as a subsidiary body of the Convention.

One of the workplans of the ADP process isto develop “a protocol, another l egal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015 in order for it to be adopted at the 21st session of the COP (COP 21), and for it to co me into effect and be implemented from 2020.In addition, Parties also agreed to launch a workplan on enhancing mitigation ambition to iden tify and explore options for a range of actions that can close the ambition gap, with a view to ensuring the highest possible mitigation efforts by all Parties.

5.5. Doha: Giving Kyoto an extended lease of life

In 2012, at the 18th session of the COP (COP 18) held in Doha, Qatar, Parties decided on an amendment to the Kyoto Pr otocol, which launched a new commitment period under the Kyoto Protocol (2013-2020), thereby ensuring that this treaty’s important legal an d accounting models remain in place and underlining the principle that developed countries lead mandated action to cut greenhouse gas emissions. P arties also strengthened their resolve and set out a timetable to adopt a universal climate agreeme nt by 2015, which will come into effect in 2020. In addition, the work under the BAP wrapped up with the close of the two subsidiary bodies i.e. AWG-LCA and the AWG-KP. Therefore, the climate negotiations were streamlined to concentrate on the new work towards a 2015 agreement u nder a single negotiating stream under the ADP.

5.6.Warsaw: One step closer to the 2015 agreement

In 2013, at the 19th session of the COP (COP 19) held in Warsaw, Polan d, Parties took some essential decisions to stay o n track towards securing a new climate change agreement in 2015. Governments agreed to com municate their intended nationally determined contributions towards the universal agreement w ell in advance of the meeting in Paris in 2015. Further, the requiredmonitoring, reporti ng and verification arrangements for domestic action have been finalized for implementatio n, thereby providing a solid foundation for the 2015 agreement. Parties also took two significant decisions at COP19: the “Warsaw International Mechanism for Loss and Damage” (to address losses and damages associated with long-term climate change impacts in developing countries that are especially vulnerable to such impacts) and the “Warsaw Framework for REDD+” (to reduce emissions from deforestation and forest degradation, and bolster forest preservation and sustainable use of forests with direct benefits for people who live in and around forests).

5.7.Paris: A 2015 Clima te Agreement?

The international climate negotiations are at a crucial juncture as countries attempt to arrive at a global deal for a post-2020 international climate regime. The international community is keenly awaiting COP 21to be held in Paris in December 2015, as it is likely to culminate into a new climate agreement that is b eing currently being negotiated through the ADP process. This new agreement will take the for m of “a protocol, another legal instrument oran agreed outcome with legal force”, and will be applicable to all Parties. Till then, it is a wait and watch as to whether the Parties to the Convention ar e able to arrive at a new legally binding instrument to address climate change post-2020, when the second commitment period of the Kyoto Protoco l ends.

6. Summary

An introduction to the emerging field of climate change is incomplete without an understanding of the history of the climate change problem, as well as the science behind climate change. Once the reader is aware of the historical and scientific background behind the adoption of the first international legal instrument to address the issue of climate change, it becomes easier to delve deeper into the implications of international climate negotiations for the development of international climate change law. As we approach a landmark year in climate negotiations in 2015 and await a new climate agreement to replace the Kyoto Protocol once its second commitment period ends, this unit hopes to leave the reader with a better understanding of the initial international legal response to climate change and the most significant developments in the international climate negotiations leading up to the prospect of a renewed climate regime.

References

• “IPCC, 2007: “Summary for Policymakers.” in Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change,edited by S.Solomon and others. Cambridge and New York: Cambridge University Press, 2007.
• “IPCC, 2013: Summary for Policymakers.” in Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, edited by T.F. Stocker and others.Cambridge and New York: Cambridge University Press, Cambridge, 2013.
• United Nations Development Programme, 2007: Human Development Report 2007/2008 Fighting climate change: Human solidarity in a divided world. Palgrave Macmillan: New York, USA, 2007.

Web links

• Bali Road Map: http://unfccc.int/key_steps/bali_road_map/items/6072.php
• Cancun Agreements: http://unfccc.int/key_steps/cancun_agreements/items/6132.php
• Copenhagen Accord http://unfccc.int/meetings/copenhagen_dec_2009/items/5262.php
• Doha Climate Gateway: http://unfccc.int/key_steps/doha_climate_gateway/items/7389.php
• Durban Outcomes: http://unfccc.int/key_steps/durban_outcomes/items/6825.php
• Official website of the Intergovernmental Panel on Climate Change: http://www.ipcc.ch/
• Official website of the  United  Nations Framework Convention on  Climate  Change:http://unfccc.int/2860.php
• Text of the Kyoto Protocol: http://unfccc.int/resource/docs/convkp/kpeng.pdf
• Text of the United Nations Framework Convention on Climate Change:
• Http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/ pdf/conveng.pdf
• Warsaw Outcomes: http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php
• World Climate Conferences:http://www.wmo.int/pages/themes/climate/international_wcc.php