Foundations of International Climate Law: Objectives, Principles and Methods

Maguire, Rowena

doi:10.1007/978-94-007-5440-9_5

Rowena Maguire⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 21))

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Abstract

This chapter explores the objectives, principle and methods of climate law. The United Nations Framework Convention on Climate Change (UNFCCC) lays the foundations of the international regime by setting out its ultimate objectives in Article 2, the key principles in Article 3, and the methods of the regime in Article 4. The ultimate objective of the regime – to avoid dangerous anthropogenic interference – is examined and assessments of the Intergovernmental Panel on Climate Change (IPCC) are considered when seeking to understand the definition of this concept. The international environmental principles of: state sovereignty and responsibility, preventative action, cooperation, sustainable development, precaution, polluter pays and common but differentiated responsibility are then examined and their incorporation within the international climate regime instruments evaluated. This is followed by an examination of the methods used by the mitigation and adaptation regimes in seeking to achieve the objective of the UNFCCC. Methods of the mitigation regime include: domestic implementation of policies, setting of standards and targets and allocation of rights, use of flexibility mechanisms, and reporting. While it is noted that methods of the adaptation regime are still evolving, the latter includes measures such as impact assessments, national adaptation plans and the provision of funding.

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Notes

1.
United Nations Framework Convention on Climate Change (UNFCCC), New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992), 849.
2.
Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 10 December 1997, in force 16 February 2005, 37 International Legal Materials (1998), 22.
3.
The Cancun Adaptation Framework is contained within Articles 11–35 of the COP Report from the Cancun negotiations in 2010. The section dealing with the adaptation framework is titled “II Enhanced Action on Adaptation”. See: Decision 1/CP.16, Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, FCCC/CP/2010/7/Add.1, 15 March 2011 (Cancun Adaptation Framework).
4.
Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004), at 76.
5.
Robert T. Watson and the Core Writing Team (eds), Climate Change 2001: Synthesis Report. A Contribution of Working Groups I, II, and III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge and New York: Cambridge University Press, 2001), at 398, and Yamin and Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, supra, note 4, at 214.
6.
Marco Grasso, Justice in Funding Adaptation under the International Climate Change Regime (Netherlands: Springer, 2010), at 11.
7.
Yamin and Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, supra, note 4, at 61.
8.
Daniel Bodansky, “The History of the Global Climate Change Regime”, in Urs Luterbacher and Deflet Sprinz (eds), International Relations and Global Climate Change (Massachusetts: MIT Press, 2001), 23, at 29.
9.
Ibid., at 31.
10.
Bert Metz et al. (eds), Climate Change 2001: Mitigation. Contributions of Working Group III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2001), at 700.
11.
The AR4 focused on key vulnerabilities related to Article 2 objective. These key vulnerabilities can be broadly categories into: biological systems, social systems, geophysical systems, extreme events and regional systems. See Hans-Holger Rogner et al., “Introduction”, in Bert Metz et al. (eds), Climate Change 2007: Mitigation of Climate Change. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge and New York: Cambridge University Press, 2007), 97, at 100.
12.
The AR4 finds that deep emissions reductions are unavoidable in order to achieve stabilisation. It also finds that climate policy can substantially reduce the risk of crossing thresholds deemed dangerous, which validates the work undertaken by the climate change regime and other leaders in climate change polices such as the European Union.
13.
Rogner et al., “Introduction”, supra, note 11, at 100.
14.
Rogner et al., “Introduction”, supra, note 11, at 99.
15.
Decision 2/CP.17, Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UN Doc. FCCC/CP/2011/9/Add.1, 15 March 2012, Section II, Preamble.
16.
Decision 2/CP.17, supra, note 15.
17.
Roda Verheyen, Climate Change Damage and International Law: Prevention, Duty and State Responsibility (The Netherlands: Martinus Nijhoff Publishers, 2005), at 110.
18.
David Freestone, “The International Climate Change Legal and International Framework: An Overview”, in David Freestone and Charlotte Streck (eds), Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (New York: Oxford University Press, 2009), 1, at 18.
19.
Decision 1/CMP. 7, Outcome of the Work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its Sixteenth Session, UN Doc. FCCC/KP/CMP/2011/10/Add.1, 15 March 2012.
20.
Australia and New Zealand are prepared to consider submitting information on QELRO pursuant to domestic processes and taking into account of number of CMP and COP decisions.
21.
Decision 2/CP. 17, supra, note 15, para. 2.
22.
Decision 2/CP. 17, supra, note 15, Art. 4.
23.
Yamin and Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, supra, note 4, at 213.
24.
Marco Grasso, Justice in Funding Adaptation under the International Climate Change Regime (Netherlands: Springer, 2010), at 12.
25.
Cancun Adaptation Framework, supra, note 3.
26.
Ibid., para. 11.
27.
Ibid., paras. 12 and 13.
28.
Ibid., para. 12.
29.
Ibid., para. 18.
30.
Also see UNFCCC, supra, note 1, Arts. 4 (8) and 4 (9).
31.
Many of the statements in the preamble were part of earlier draft texts of the UNFCCC, which were relegated to the preamble as they were considered to be too controversial for inclusion within the Articles of the instrument. Yamin and Depledge The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, supra, note 4, at 67.
32.
Kyoto Protocol, Preamble, supra, note 2, para. 4.
33.
UNFCCC, supra, note 1, Art. 3.
34.
Philippe Sands, Principles of International Environmental Law, 2nd ed. (Cambridge: Cambridge University Press, 2003), at 231.
35.
Gentini case (Italy/Venezuela) M.C.C. (1903), J.H. Ralston and W.T.S. Doyle, Venezuelan arbitration OF 1903 ETC. (1904), 720, 725, cited in Sands, Principles of International Environmental Law, supra, note 34, at 233.
36.
Daniel Bodansky, “The United Nations Framework Convention on Climate Change: A Commentary”, 18 Yale Journal of International Law (1993), 451, at 501.
37.
Yamin and Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, supra, note 4, at 66.
38.
On the different discipline understandings (international law, international relations, philosophy and economics see Melea Lewis, Charles Sampford and Ramesh Thakur, “Introduction”, in Trudy Jacobsen, Charles Sampford and Ramesh Thakur (eds), Re-envisioning Sovereignty: The End of Westphalia (London: Ashgate Publishers, 2008), 1, at 8.
39.
See for example Richard Tol and Roda Verheyen, “State Responsibility and Compensation for Climate Change Damage – a legal and economic assessment”, 32 Energy Policy (2004), 1109 .
40.
Phoebe Okowa, “Responsibility for Environmental Damage”, in Malgosia Fitmaurice, David Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (United Kingdom: Edward Elgar Publishers, 2010), 303, at 304.
41.
Ibid. and on consideration of climate change see generally Brian Preston, “Climate Change Litigation (Part 1)”, 5 Carbon and Climate Law Review (2011), 3, and Jacqueline Peel, “Issues in Climate Change Litigation”, 5 Carbon and Climate Law Review (2011), 15.
42.
See Decision 7/CP.17, Work Programme on Loss and Damage, UN Doc. FCCC/CP/2011/9 Add.2, 15 March 2012.
43.
Sands, Principles of International Environmental Law, supra, note 34, at 246.
44.
Ibid., at 246.
45.
Ibid., at 250.
46.
Draft Principles of Conduct for the Guidance of States in the Conservation and Harmonious Exploitation of Natural Resources Shared by Two or More States, United Nations Environment Programme Governing Council, XII Plenary Meeting, UN Doc. UNEP/GC/101 and Corr.1, 9 to 25 May 1978.
47.
Criticism has been levelled against the UNFCCC COP process with many feeling that the process is moving too slow and that the process does not bind many of the world’s highest emitters. The Copenhagen negotiations in particular attracted criticism concerning the lack of political will of the parties to reach a legally binding outcome. For an analysis of what led to failure in Copenhagen see Cameron Hepburn and Nicholas Stern, “A New Global Deal on Climate Change”, 27 Oxford Review of Economic Policy (2011), 259, at 259–279. Also see Daniel Bodansky and Elliot Diringer, “The Evolution of Multilateral Regimes: Implications for Climate Change”, 2010, available at: http://www.pewclimate.org/docUploads/evolution-multilateral-regimes-implications-climate-change.pdf (last accessed on 5 January 2012).
48.
Also note that the Kyoto Protocol creates additional cooperation obligations for parties to this agreement in Art. 1(b) and Arts. 10 (c), (d), (e), supra, note 2.
49.
UNFCCC, supra, note 1, Art. 4 (c).
50.
Ibid., Art. 4 (h).
51.
Ibid., Art. 4(i)
52.
Ibid., Art. 4 (j). The requirements of Article 12 will be discussed in greater detail further on in this chapter.
53.
World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987), at 43.
54.
For instance, a major summit – the United Nations Conference on Sustainable Development (Rio + 20) – will take place in June 2012 in Rio de Janeiro, Brazil. This event marks the 20th anniversary of the Rio Declaration 1992, signed at the Earth Summit in Rio. The objective of the Conference is to secure renewed political commitment for sustainable development, assess the progress to date and the remaining gaps in the implementation of the outcomes of the major summits on sustainable development, and address new and emerging challenges. The Conference will focus on two themes: (a) a green economy in the context of sustainable development and poverty eradication; and (b) the institutional framework for sustainable development. For the complete agenda and further background information, see on the Internet http://www.uncsd2012.org (last accessed on 25 March 2012).
55.
Sands, Principles of International Environmental Law, supra, note 34, at 253.
56.
For further background on the concept of inter-generational equity see Edith Brown Weiss, “Our Rights and Obligations to Future Generations for the Environment”, 84 American Journal of International Law (1990), 198.
57.
Peter Doherty, “What Do We Owe to Future Generations?”, in Helen Sykes (ed.), Future Justice (Albert Park, Vic.: Future Leaders, 2010), 21 and more generally see generally Laura Westra, Environmental Justice and the Rights of Unborn and Future Generations: Law, Environmental Harm and the Right to Health (United Kingdom: Earthscan, 2006).
58.
Sands, Principles of International Environmental Law, supra, note 34, at 257.
59.
The most recent IPCC report is the 4th Assessment Report, available at http://www.ipcc.ch/publications_and_data/publications_and_data_reports.shtml (last accessed on 25 March 2012).
60.
See generally on the topic of environmental justice David Schlosberg, Defining Environmental Justice: Theories, Movements, and Nature (Oxford: Oxford University Press, 2007); Klaus Bosselman and Benjamin J. Richardson, Environmental Justice and Market Mechanisms: Key Challenges for Environmental Law and Policy (London: Kluwer Law, 1999).
61.
Maxine Burkett, “Just Solutions to Climate Change: A Climate Justice Proposal for a Domestic Clean Development Mechanism”, 56 Buffalo Law Review (2008), 169, at 177.
62.
Chukwumerije Okereke and Heike Schroeder, “How Can the Objectives of Justice, Development and Climate Change Mitigation be Reconciled in the Treatment of Developing Countries in a Post-Kyoto Settlement?”, Background Paper for the DSA-DFID Policy Forum on Climate Change and International Development, University of Greenwich, 2 June 2008, at 1.
63.
Cancun Adaptation Framework, supra, note 3, Art. 8.
64.
Ibid., Art. 11.
65.
Minna Pyhälä, Anne Brusendorff and Hanna Paulomäki, “The Precautionary Principle”, in Malgosia Fitmaurice, David Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (United Kingdom: Edward Elgar Publishers, 2010), 203, at 203.
66.
Sands, Principles of International Environmental Law, supra, note 34, at 267–268.
67.
Nicholas Stern, The Economics of Climate Change: The Stern Review (Cambridge: Cambridge University Press, 2007).
68.
Pyhälä, Brusendorff and Paulomäki, “The Precautionary Principle”, supra, note 65, at 215.
69.
Global acceptance refers to the agreed upper temperature increases agreed within the climate change regime. See Decision 2/CP.17, supra, note 15, para. 2.
70.
Compilation of Economy–wide Emission Reduction Targets to Be Implemented by Parties included in Annex I to the Convention, FCCC/SB/2011/INF.1/REV.1, 7 June 2011.
71.
Kelly Levin and Murray Ward, “The Emissions Gap Report”, 2010, available at: http://www.unep.org/publications/ebooks/emissionsgapreport (last accessed on 24 February 2012).
72.
Priscilla Schwartz, “The Polluter-pays Principle”, in Malgosia Fitmaurice, David Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (United Kingdom: Edward Elgar Publishers, 2010), 243.
73.
Connecticut v American Electrical Power Company Inc, Judgement, 20 June 2011, 406F.Supp. 2d, at 265; Korsinsky v U.S. EPA, Judgement, 29 September 2005, No 05–859 (NRB), 205 U.S. Dist LEXIS 21778; California ex rel Brown v General Motors Corporation, Judgement, 17 September 2007, U.S. Dist LEXIS 68547. For a discussion of all of these cases see Theodore J. Boutrous and Dominic Lanza, “Global Warming Tort Litigation: The Real Public Nuisance”, 80 Ecology Law Currents (2008), 80.
74.
The Kyoto Protocol aims at an international solution to this problem. However, any climate policy measures would still have to be implemented at the national level. Germany and the European Union are acting as forerunners in international climate change policy. Michael Grubb, “Seeking Fair Weather: Ethics and the International Debate on Climate Change”, 71 International Affairs (1995), 463.
75.
Angela Williams, “Promoting Justice within the International Legal System: Prospects for Climate Refugees”, in Benjamin J. Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray, Stepan Wood (eds.), Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (Cheltenham: Edward Elgar, 2009), 84, at 90.‬
76.
Kati Kulovesi and Maria Gutierrez, “Climate Change Negotiations Update: Process and Prospects for a Copenhagen Agreed Outcome in December 2009”, 18 Review of European Community and International Environmental Law (2009), 229, at 236.
77.
See Rio Declaration on Environment and Development, Rio de Janeiro, 14 June 1992, A/CONF.151/5/Rev.1, Vol.1, Annex 1. Most notably, see Principle 6, which states that the “special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable shall be given special priority. International actions in the field of environment and development should also address the interests and needs of all countries.” See also Principle 7, which states that “States should cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command”.
78.
See Art. 4(i) of the UNFCCC, which outlines the national and regional development priorities, objectives and circumstances supra, note 1. See also Art. 8, which explains that parties shall give full consideration as to what actions are necessary under the convention specifically in relation to the needs and concerns of developing country parties, supra, note 1.
79.
See UNFCCC, supra, note 1, Art. 10.
80.
Tuula Honkonen, “The Principle of Common But Differentiated Responsibility in Post 2012 Climate Negotiations”, 18 Review of European Community & International Environmental Law (2009), 257, at 259. See also M. Bothe, “The United Nations Framework Convention on Climate Change – An Unprecedented Multilevel Regulatory Challenge”, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2005), 239, at 252.
81.
UNFCCC, supra, note 1, Art. 7(2).
82.
Ibid., Art. 7(4).
83.
Organizational Matters: Adoption of Rules and Procedures, FCCC/CP/1996/2, 22 May 1996, rule 41.
84.
Ibid., rule 42.
85.
See for example UNFCCC, supra, note 1, Art. 4(a) and (b).
86.
Ibid., Art. 10 (a).
87.
The gases covered by the regime are set in Annex A of the Kyoto Protocol, supra, note 2.
88.
Freestone, “The International Climate Change Legal and International Framework: An Overview”, supra, note 18, at 12.
89.
Kyoto Protocol, supra, note 2, Art. 6 (1) (a) and (b).
90.
Ibid., Art. 6 (1) (c).
91.
Ibid., Art. 6 (1) (d). The Kyoto Protocol does not define supplementarity, but the European Union has decided that this means at least 50% of domestic policies and measures.
92.
Ibid., Art. 6 (4).
93.
See for further discussion on this point Roda Verheyen, Climate Change Damage and International Law: Prevention, Duty and State Responsibility (Netherlands: Martinus Nijhoff Publisers, 2005), at 113.
94.
Kyoto Protocol, supra, note 2, Art. 12 (4)
95.
Ibid., Art. 12 (5).
96.
Ibid., Art. 12 (8).
97.
Kyoto Protocol, supra, note 2, Art. 5. The IPCC revised 1996 guidelines for national greenhouse gas inventories are the current guidelines prescribed by the regime.
98.
Cancun Adaptation Framework, supra, note 3, para. 13.
99.
Ibid., para. 14 (b).
100.
Ibid., para. 14 (a) .
101.
Ibid., para. 14 (c) and (d).
102.
Ibid., para. 14 (e) and (h).
103.
Ibid., para. 14 (f).
104.
Ibid., para. 14 (g), (h) and (i).
105.
The decision of the Work Program on loss and damage is a decision that outlines a number of meetings and that commissions reports as they relate to this topic. See Decision 7/CP.17, Work Program on Loss and Damage, UN Doc. FCCC/CP/2011/9/Add.2, 15 March 2012.
106.
Decision 7/CP.17, supra, note 15 para. 101.
107.
Ibid., paras. 99 and 100.
108.
Ibid., para. 97.
109.
Decision 5/CP.17, National Adaptation Plans, UN Doc. FCCC/CP/2011/9/Add.1, 15 March 2012.
110.
Ibid., paras. 29 and 39.
111.
Art. 11 (1) of the UNFCCC allows for the operation of the financial mechanism to be entrusted to one or more existing international entities, supra, note 1.
112.
Report of the Conference of the Parties on its sixteenth session, FCCC/CP/2010/7/Add.1, 15 March 2011, para. 95.
113.
Ibid., para. 10.

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Faculty of Law, Institute for Sustainable Resources, Queensland University of Technology, Gardens Point Campus, 2 George Street, QLD, 4000, Brisbane, Australia
Rowena Maguire

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, Faculty of Law, University of Helsinki, Yliopistokatu 3, Helsinki, 00014, Finland
Erkki J. Hollo
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Kati Kulovesi
Ecological Institute, Connecticut Ave. NW, Suite 300 1630, Washington D.C., 20009, District of Columbia, USA
Michael Mehling

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Maguire, R. (2013). Foundations of International Climate Law: Objectives, Principles and Methods. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_5

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