The Climate Change The Climate Change RegimeRegime

From Rio to Kyoto and the From Rio to Kyoto and the

Post-Kyoto ChallengePost-Kyoto Challenge

Prof. Laurence Boisson de Chazournes

Faculty of Law - University of Geneva

PlanPlanI.I. Introduction: The Climate Change Issue Introduction: The Climate Change Issue

from a Legal Perspectivefrom a Legal Perspective

II.II. Overall Strategy: The UNFCCCOverall Strategy: The UNFCCCA.A. ObjectiveObjectiveB.B. PrinciplesPrinciplesC.C. CommitmentsCommitments

III.III. Commitments: The Kyoto ProtocolCommitments: The Kyoto ProtocolA.A. Commitment to reduce greenhouse gas Commitment to reduce greenhouse gas

emissionsemissionsB.B. Market-based mechanismsMarket-based mechanisms

IV.IV. Selected IssuesSelected Issues

V.V. Complementary StrategiesComplementary Strategies

I. Introduction: The Climate Change I. Introduction: The Climate Change Issue from a Legal PerspectiveIssue from a Legal Perspective

Climate change is a global challengeClimate change is a global challenge

No existing legal instrument dealing with the issue No existing legal instrument dealing with the issue before the adoption of the UN Framework before the adoption of the UN Framework Convention on Climate Change (UNFCCC)Convention on Climate Change (UNFCCC)

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

The Framework Convention’s technique:The Framework Convention’s technique:– General convention with guiding principlesGeneral convention with guiding principles– Series of subsequent protocols with specific rules and Series of subsequent protocols with specific rules and

commitmentscommitments

Essential elements of the overall regime strategy in the Essential elements of the overall regime strategy in the UNFCCC:UNFCCC:

A. Objective (Article 2)A. Objective (Article 2)

B. Principles (Article 3)B. Principles (Article 3)

C. Commitments (Article 4)C. Commitments (Article 4)

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.

A. Objective (UNFCCC Art 2)A. Objective (UNFCCC Art 2)

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

To guide the Parties in their actions to achieve o guide the Parties in their actions to achieve the objective of the Convention and implement the objective of the Convention and implement its provisionsits provisions

B. B. PrinciplesPrinciples (UNFCCC Art 3) (UNFCCC Art 3)

Broadly (greater detail in following slides):Broadly (greater detail in following slides):1.1. Present and future generations Present and future generations 2.2. Common but differentiated responsibilities: Common but differentiated responsibilities:

Developed and developing country PartiesDeveloped and developing country Parties3.3. Precautionary principlePrecautionary principle4.4. Free, open and sustainable economic Free, open and sustainable economic

developmentdevelopment

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

1.1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity […]

B. B. Principles (UNFCCC Art 3)Principles (UNFCCC Art 3)

1. 1. Present and future generations (Art 3(1)):Present and future generations (Art 3(1)):

This introduces the concept of This introduces the concept of intergenerational equityintergenerational equity into the legal regime to fight climate change:into the legal regime to fight climate change:

A key notion in field of environmental sustainability A key notion in field of environmental sustainability Rarely invoked by international legal instrumentsRarely invoked by international legal instruments

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

1.1. The Parties should protect the climate system … The Parties should protect the climate system … in accordance with their common but in accordance with their common but differentiated responsibilities and respective differentiated responsibilities and respective capabilities. capabilities.

B. B. PrinciplesPrinciples (UNFCCC Art 3) ( (UNFCCC Art 3) (contdcontd))

2. 2. Common but differentiated responsibilitiesCommon but differentiated responsibilities

Developed country PartiesDeveloped country Parties: Should take the lead in : Should take the lead in combating climate change and the adverse effects thereof combating climate change and the adverse effects thereof (end of paragraph 1).(end of paragraph 1).

Developing country PartiesDeveloping country Parties: Full consideration should be : Full consideration should be given to their specific needs and special circumstances given to their specific needs and special circumstances (paragraph 2).(paragraph 2).

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

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 […]

B. B. Principles (UNFCCC Art 3) (contd)Principles (UNFCCC Art 3) (contd)

3. 3. Precautionary Principle (Art 3(3)):Precautionary Principle (Art 3(3)):

The Precautionary principle :The Precautionary principle : Features in many instruments of international Features in many instruments of international environmental lawenvironmental law May potentially be considered a principle of general May potentially be considered a principle of general international lawinternational law

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

4.4. The Parties have a right to, and should, promote The Parties have a right to, and should, promote sustainable development […]sustainable development […]

5.5. The Parties should cooperate to promote a supportive and The Parties should cooperate to promote a supportive and open international economic system that would lead to open international economic system that would lead to sustainable economic growth, particularly developing sustainable economic growth, particularly developing country Parties, thus enabling them better to address the country Parties, thus enabling them better to address the problems of climate change […]problems of climate change […]

B. B. PrinciplesPrinciples (UNFCCC Art 3) (contd) (UNFCCC Art 3) (contd)

4. 4. Open and sustainable economic developmentOpen and sustainable economic development::

Key notions:Key notions: Interlinked and open economic system (eg no Interlinked and open economic system (eg no restrictions on international trade through CC measures)restrictions on international trade through CC measures) Sustainable form of economic development (emphasis Sustainable form of economic development (emphasis on developing country Parties)on developing country Parties)

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

C. C. CommitmentsCommitments (UNFCCC Art 4) (UNFCCC Art 4) Different commitments for developed and Different commitments for developed and

developing country parties in light of developing country parties in light of principle of common but differentiated responsibilities:common but differentiated responsibilities:

– Developed Country (Annex I) Parties only: More More onerous obligations including the adoption of policies onerous obligations including the adoption of policies to mitigate climate change (Art 4(2)).to mitigate climate change (Art 4(2)).

– All Parties (developed and developing): Lighter : Lighter obligations to cooperate, promote, report data, egobligations to cooperate, promote, report data, eg inventories of anthropogenic emissions by sources and inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases (Art 4(1).removals by sinks of all greenhouse gases (Art 4(1).

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

1. All PartiesAll Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:(a) Develop, periodically update, publish and make Develop, periodically update, publish and make availableavailable to the Conference of the Parties, in accordance with Article 12, national   inventories of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol, using comparable methodologies to be agreed upon by the Conference of the Parties; [...] [my emphasis]

C. C. CommitmentsCommitments (UNFCCC Art 4) (contd) (UNFCCC Art 4) (contd)

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

2. The developed country PartiesThe developed country Parties and other Parties included in Annex I commit themselves specifically as provided for in the following:(a) Each of these Parties shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs […](b) In order to promote progress to this end, each of these Parties shall communicateshall communicate, within six months of the entry into force of the Convention for it and periodically thereafter, and in accordance with Article 12, detailed informationdetailed information on its policies and measures referred to in subparagraph (a) above, as well as on its resulting projected anthropogenic emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal Protocol [...] with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol […] [my emphasis]

C. C. CommitmentsCommitments (UNFCCC Art 4) (contd) (UNFCCC Art 4) (contd)

II. II. OverallOverall Strategy: The UNFCCCStrategy: The UNFCCC

Institutional mechanismsInstitutional mechanisms– Conference of the Parties (COP)Conference of the Parties (COP)– Subsidiary organsSubsidiary organs– Global Environment Facility (GEF)Global Environment Facility (GEF)

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

What is a “Protocol”?What is a “Protocol”?

– Understand in context of a Framework ConventionUnderstand in context of a Framework Convention

– Definition of ProtocolDefinition of Protocol

– The Kyoto Protocol specificallyThe Kyoto Protocol specifically

Key features of the Kyoto Protocol (‘KP’):Key features of the Kyoto Protocol (‘KP’):

A. Commitment to reduce greenhouse gas emissionsA. Commitment to reduce greenhouse gas emissions

B. Market oriented mechanismsB. Market oriented mechanisms

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

1.1. The Parties included in Annex I shall, individually or jointly, ensure that The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.the commitment period 2008 to 2012.

A. A. Commitment to reduce emissions (KP Article 3)Commitment to reduce emissions (KP Article 3)

Basic obligation (Article 3(1)):Basic obligation (Article 3(1)):

Technically, not just emission reduction, but reduction of quantity of Technically, not just emission reduction, but reduction of quantity of greenhouse gases in atmosphere, therefore also includes the role of greenhouse gases in atmosphere, therefore also includes the role of removal by eg carbon sinks (forests) (para 3)removal by eg carbon sinks (forests) (para 3)

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto ProtocolA. A. Commitment to reduce emissions (contd)Commitment to reduce emissions (contd) Timeline:Timeline:

– The period in which emission reductions are first quantified and assessed in 2008 to The period in which emission reductions are first quantified and assessed in 2008 to 2012 (para 7).2012 (para 7).

– Each party must have made demonstrable progress towards achieving its Each party must have made demonstrable progress towards achieving its commitments by 2005 (para 2).commitments by 2005 (para 2).

– The Kyoto Protocol does not set down any commitments for post-2012, but does The Kyoto Protocol does not set down any commitments for post-2012, but does require the parties to meet to consider commitments for this period from 2005 (para 9).require the parties to meet to consider commitments for this period from 2005 (para 9).

– If a Party misses its Kyoto emissions targets, the difference may be added to that If a Party misses its Kyoto emissions targets, the difference may be added to that Party’s commitment in subsequent (post-Kyoto) periods (para 13).Party’s commitment in subsequent (post-Kyoto) periods (para 13).

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto ProtocolA. Commitment to reduce emissions (contd)A. Commitment to reduce emissions (contd)

Examples of some specific commitments signed up to:Examples of some specific commitments signed up to:

Party Base year (1990) emissions

(million tonnes)

KP reduction commitment

(from base year)

Canada 595.954 6 %

European Community 4257.837 8 %

Japan 1272.043 6 %

Russian Federation 2989.833 0 %

Switzerland 52.749 8 %

United States* 6229.041 7 %

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

1. For the purpose of meeting its commitments under Article 3, any Party included in Annex I may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy, provided that:

(a) Any such project has the approval of the Parties involved;

(b) Any such project provides a reduction in emissions by sources, or an enhancement of removals by sinks, that is additional to any that would otherwise occur; […]

3. A Party included in Annex I may authorize legal entities to participate, under its responsibility, in actions leading to the generation, transfer or acquisition under this Article of emission reduction units”.

B. Market-based mechanismsB. Market-based mechanisms

Joint implementation through investment projects (Art 6):Joint implementation through investment projects (Art 6):

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

2. The purpose of the clean development mechanism shall be to assist 2. The purpose of the clean development mechanism shall be to assist Parties not included in Annex I in achieving sustainable development and Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.emission limitation and reduction commitments under Article 3.

3. Under the clean development mechanism:3. Under the clean development mechanism:

(a) Parties not included in Annex I will benefit from project activities (a) Parties not included in Annex I will benefit from project activities resulting in certified emission reductions; andresulting in certified emission reductions; and

(b) Parties included in Annex I may use the certified emission reductions (b) Parties included in Annex I may use the certified emission reductions accruing from such project activities to contribute to compliance with part accruing from such project activities to contribute to compliance with part of their quantified emission limitation and reduction commitments under of their quantified emission limitation and reduction commitments under Article 3, as determined by the Conference of the Parties serving as the Article 3, as determined by the Conference of the Parties serving as the meeting of the Parties to this Protocol […]meeting of the Parties to this Protocol […]

B. B. Market-based mechanisms (contd)Market-based mechanisms (contd)

Clean Development Mechanism (Article 12):Clean Development Mechanism (Article 12):

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

The Conference of the Parties shall define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. The Parties included in Annex B may participate in emissions trading for the purposes of fulfilling their commitments under Article 3. Any such trading shall be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments under that Article.

B. B. Market-based mechanisms (contd)Market-based mechanisms (contd)

Further emission trading provisionsFurther emission trading provisions

– Article 17:Article 17:

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

10. Any emission reduction units, or any part of an assigned amount, which a Party acquires from another Party in accordance with the provisions of Article 6 or of Article 17 shall be added to the assigned amount for the acquiring Party.

11. Any emission reduction units, or any part of an assigned amount, which a Party transfers to another Party in accordance with the provisions of Article 6 or of Article 17 shall be subtracted from the assigned amount for the transferring Party.

12. Any certified emission reductions which a Party acquires from another Party in accordance with the provisions of Article 12 shall be added to the assigned amount for the acquiring Party.

B. B. Market-based mechanismsMarket-based mechanisms (contd) (contd)

Further emission trading provisionsFurther emission trading provisions

– Article 3:Article 3:

III. III. CommitmentsCommitments: The Kyoto Protocol: The Kyoto Protocol

The Marrakech Agreements (COP-7)The Marrakech Agreements (COP-7)

“1. This Protocol shall enter into force on the ninetieth day after the date on which not less than 55 Parties to the Convention, incorporating Parties included in Annex I which accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the Parties included in Annex I, have deposited their instruments of ratification, acceptance, approval or accession.

2. For the purposes of this Article, ‘the total carbon dioxide emissions for 1990 of the Parties included in Annex I’ means the amount communicated on or before the date of adoption of this Protocol by the Parties included in Annex I in their first national communications submitted in accordance with Article 12 of the Convention […]”

Entry into force of the Kyoto Protocol (Article 25):Entry into force of the Kyoto Protocol (Article 25):

IV. IV. SelectedSelected Issues Issues

Non-Compliance Procedure:Non-Compliance Procedure:

– CollectiveCollective

– Two branches:Two branches: FacilitativeFacilitative

EnforcementEnforcement

Clean Development MechanismClean Development Mechanism

– Benefits for emerging economiesBenefits for emerging economies

IV. IV. SelectedSelected Issues Issues

The Post-Kyoto challenge:The Post-Kyoto challenge:

– The need for drastic reductions in greenhouse gas The need for drastic reductions in greenhouse gas emissionsemissions

– The case of the “emerging economies”The case of the “emerging economies”

– Tools and meansTools and means

V. Complementary StrategiesV. Complementary Strategies

Climate change and human rightsClimate change and human rights

Climate change and collective securityClimate change and collective security

Climate change and international trade law (WTO)Climate change and international trade law (WTO)