International Climate Change Law
Professor Hans Christian Bugge
The Greenhouse Effect
Pakistan, 2010 floods
Pakistan flood: Worst in 80 years, 14 million affected
The other end of the spectrum:
drought i Eastern Africa
• guardian.co.uk, Monday 4 July 2011:
“Drought in east Africa the result of climate
change and conflict
Aid agencies say that weather in the region
has become more erratic and years of war
leave populations especially vulnerable.”
Greenland: areas (1992 orange and 2002 red) with
seasonal melting at the surface of the ice sheet
Male, capital of the Maldives
IPCC Fourth Assessment Report 2007
• “Warming of the climate system is unequivocal, as is now
evident from observations of increases in global average air
and ocean temperature, widespread melting of snow and ice,
and rising global mean sea levels.”
• “Most of the observed increase in globally average
temperatures since the mid-20th century is very likely due to
the observed increase in anthropogenic greenhouse gas
concentrations. “
• Discernible human influences now extend to other aspects of
climate, including ocean warming, continental-average
temperatures, temperature extremes and wind patterns.”
IPCC Fourth Assessment Report 2007
The nature of the climate change problem
• It is a global problem in the full meaning of the word,
relevant to every state and people on the Planet:
We all contribute and we all will be affected
• There are extreme differences between states and
peoples with regard to its contribution and effects.
• The costs of relevant measures to solve it vary
significantly between countries.
• It is extremely complex because it is rooted in our
civilization. It involves most economic sectors.
Per capita responsibility for current anthropogenic CO2 level in
the atmosphere, including land use change (until 2000).
GHG emissions per capita 2005
Nicholas Stern:
”… the greatest and widest ranging market
failure ever seen.”
Legal status:
• Common resource?
• Shared resource?
• Common heritage of mankind?
• Common concern of humankind?
FCCC article 2 Objective
“The ultimate objective of this Convention and any
related legal instruments that the Conference of the
Parties may adopt is to achieve, in accordance with the
relevant provisions of the Convention, stabilization of
greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic
interference with the climate system.
Such a level should be achieved 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 manner.”
Climate Change: Defining Options
Climate Change
Mitigation
Adaptation
FCCC article 3, section 4
The Parties have a right to, and should, promote
sustainable development.
Policies and measures to protect the climate system
against human-induced change should be
appropriate for the specific conditions of each Party
and should be integrated with national development
programmes,
taking into account that economic development is
essential for adopting measures to address climate
change.
FCCC, article 3, section 3
• “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 should 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. ...”
…. To achieve this (cost-effectiveness),
such policies and measures should take into account
different socio-economic contexts, be
comprehensive, cover all relevant sources, sinks and
reservoirs of greenhouse gases and adaptation, and
comprise all economic sectors.
Efforts to address climate change may be carried
out cooperatively by interested Parties.”
Principle of Common but Differentiated
Responsibilities, article 4 section 1
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.
”Developed” and ”developing” countries
• “Developed countries”: OECD countries (some 30 in all),
18 % of world population
• “Developing countries”: “Group of 77 at the United Nations”
(“G 77”) (now 131 in all, including China),
80 % of world population
(Some 30 countries are outside both these groupings.)
But not consistent categorization across international
conventions
Groups of (developing) countries (art. 4 no 8-10).
• Small island countries;
• Countries with low-lying coastal areas;
• Countries with arid and semi-arid areas, forested areas and
areas liable to forest decay;
• Countries with areas prone to natural disasters;
• Countries with areas liable to drought and desertification;
• Countries with areas of high urban atmospheric pollution;
• Countries with areas with fragile ecosystems, including
mountainous ecosystems;
• Countries whose economies are highly dependent on income
generated from production etc. of fossil fue;
• Land-locked and transit countries.l
Commitments of various groups
All parties: Art 4.1.:
• national inventories
• national and regional programmes to mitigate cc
• promote Sustainable Development
• promote conservation of sinks, adaptation, education etc.
Annex I parties: Art. 4.2.(a) (all developed countries) shall in
adddition:
• develop national policies and measures on the mitigation
of climate change. Taking the lead !
• reporting requirements (Art. 4.2.(b)
Commitments of various groups contd.
Annex II Parties (Western industrialized countries), shall in
addition:
• provide financial resources to developing countries
(Art.4.3)
• assist developing countries in meeting adaptation costs
(Art. 4.4)
• technology transfer (Art. 4.5)
• allow degree of flexibility (Art 4.6 )
FCCC article 4 no. 7
“The extent to which developing country Parties will
effectively implement their commitments under the
Convention will depend on the effective
implementation by developed country Parties of their
commitments under the Convention related to
financial resources and transfer of technology
and will take fully into account that economic and
social development and poverty eradication are the
first and overriding priorities of the developing
country Parties.”
Kyoto protocol, main content
• Sets quantified emissions limitation and reduction obligations
(QELRC) for Annex-I Parties.
• Art. 3.1: overall emissions from Annex I Parties shall be
reduced to at least 5% below 1990 levels within 2008-2012
(First Commitment Period)
• The degree of reduction vary considerably between countries
(between – 8 % (for most countries) and + 10 % (Iceland)
• Annex I Parties shall not exceed their Assigned Amounts (AA)
(Annex B)
• But: They may use ”the flexible mechanisms” in order to fulfill
their obligations.
Country targets (Assigned amounts) (1990- 2008/2012)
- 8 % EU-15, Bulgaria, Czech Republic, Estonia, Latvia,
Liechtenstein, Lithuania, Monaco, Romania, Slovakia,
Slovenia, Switzerland
-7% US
-6% Canada, Hungary, Japan, Poland
-5% Croatia
0 New Zealand, Russian Federation, Ukraine
+ 1 % Norway
+ 8 % Australia
+ 10 % Iceland
The Kyoto ”flexible mechanisms”
Joint fulfillment of commitment (”Bubble”) (art. 4)
Joint implementation (art. 6) - ERU
Clean Development mechanism (art. 12) - CER
Emissions trading (art. 17) (trading with assigned amounts units
(AAU) + ERUs and CERs.)
For all mechanisms there is a very detailed and complex
set of rules, generally known as ”the Marrakesh rules”.
The EU Burden Sharing Agreement (within the ”Bubble”)
International Emissions trading (art. 17)
Starting point: trading between Annex I countries of
their Assigned Amount.
But also: trade in emission units aquired by the use of
Joint implementation and CDM
(the ”offset mechanisms”)
Joint implementation (art. 6)
• Funding of projects - between Annex I countries
• Resulting in Emission Reduction Units – ERUs
Clean Developing Mechanism (CDM) (art. 12)
• Funding by Annex I countries of projects in
developing countries (non-Annex I-countries)
• Resulting in Certified Emissions Reductions – CERs.
“The Global Carbon Market”:
Pro and Contra Arguments
Pros:
• More emission reductions for the same money
(cost-effectiveness)
• Transfer of technology and financial support to
developing countries
• Emission reductions in developing countries
• Income, capacity building, sustainable
development (?)
Cons:
Right way to go? Artificial global market for
pollution rights?
• Are developed countries ‘taking the lead’?
• Hampers development of new technology in
developed countries
• Uncertain climate effect
• “Abstraction” – climate policy not something
that concerns people
• Expert field: “playing with figures”, missing
public debate, democratic deficit….
COP 15 Copenhagen: ”The Copenhagen Accord”
Elements of the ”Copenhagen Accord”
• ”Recognizes the scientific view” of maximum 2 degree
celsius, as a target target
• Deadline for submitting (voluntary) reduction targets
(developed countries) and actions (developing countries)
• Short term funding: 30 billion USD to 2012
• “Goal" for the world to raise $100 billion per year by
2020 (but where is the money?)
• Technology mechanism
• Redd+ mechanism
• Stronger Adaptation mechanisms.
Copenhagen Accord was not adopted as a COP decision.
A closer look at mitigation targets
Developed countries (Annex I Parties) would "commit
to economy-wide emissions targets for 2020" to be
submitted by 31 January 2010 and agrees that these
Parties to the Kyoto Protocol would strengthen their
existing targets. Delivery of reductions and finance
by developed countries will be measured, reported
and verified (MRV) in accordance with COP
guidelines.
Developing nations (non-Annex I Parties) would
"implement mitigation actions" (Nationally
Appropriate Mitigation Actions) to slow growth in
their carbon emissions, submitting these by 31
January 2010.
LDS and SIDS may undertake actions voluntarily and on
the basis of (international) support.
The ”bottom up approach”
”Pledge and review”: tables with targets for developed
countries) and actions (developing countries)
MRV: Monitoring, reporting av verification:
• for developed countries (international)
• for developing countries (national MRV, except for
supported NAMAs – international MRV)
• REDD+ mechanism.
• Establishment of Green Climate Fund
Annex 1 countries’ emission pledges (for 2020)
Compared to 1990:
• EU : 20% - 30%
• Japan: 25%
• Russia: 15% - 25%
Compared to 2000:
• Australia: 5% - 25%
Compared to 2005:
• Canada: 17%
• US: 17%
Developing countries’ pledges of emission reduction
Compared to business as usual:
• Brazil: 36.1% - 38.9%
• Indonesia: 26%
• Mexico: 30%
• South Africa: 34%
• South Korea: 30%
Carbon intensity compared to 2005:
• China: 40% - 45% + increased share of non-fossil fuelto 15 %
and increased forest coverage by 40 milion hectares
• India: 20% - 25%
New concepts in the climate negotiations
• MRV: Monitoring, Reporting and Verification
• NAMA: Nationally Appropriate Mitigation Actions of
developing countries.
• REDD+ : Reduction of Emissions from Deforestation
and Forest Degradation in Developing Countries.
U.S. Environmental Protection Agency
48
The discussion of legal form
• ”legal options with the aim to complete the
agreed outcome”:
• legally binding agreement to complement the
Kyoto Protocol?
• A legally binding agreement for all countries?
• A softer instrument, more ad hoc, cooperation
through COP decisions rather than a new
treaty, based on ”bottom up” approach, or…?
Status before COP 17 in Durban
Status quo since Cancun...
Most developing countries and emerging economies, (China), are
calling for an additional Kyoto period beyond 2012 to
continue the approach of no binding reduction commitments
for developing countries.
USA, Japan, Canada and Russia reject commitments beyond
2012 unless the larger emerging economies also commit to
binding emission reductions.
EU “on the fence”, prefer a new climate change agreement which
replaces the Kyoto Protocol and includes developing countries
in reduction targets.
”No sign of a broad alliance with the key emerging economies.”
“More likely is that a non-binding ‘pledge and review’ approach
will prevail as a minimum consensus: countries make voluntary
commitments (pledges), and their compliance is regularly
reviewed but no sanctions are applied if they fail to reach their
targets (review). Reaching the 2° target with this type of
approach is highly questionable.”
Debate over the KP flexible mechanisms: Can CDM continue
without a prolonged Kyoto Protocol with binding obligations for
developed countries?
• Developing countries think no.
• Developed countries think rather yes – still a useful instrument.
Climate change law as a new field of law
Challenge for lawyers:
A complex field, which demands multidisciplinary
cooperation with economists, political scientists, and
natural scientists and with other lawyers…private international law,
finance law, patent law, property law, insurance law,
human rights law….