Legal and Policy Considerations for CC_AG

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Legal and Policy Considerations forDealing with Climate Change

Dr. Asanga Gunawansa Asst. Professor

Department of BuildingSchool of Design and Environment

National University of Singapore

Associate Member, Executive Committee Asia Pacific Centre for Environmental Law

Research AssociateInstitute of Water Policy

Lee Kwan Yew School of Public Policy



Is Climate Change real?



Is Climate Change Real?



Is Climate Change Real?

Today, the earth is hotter than it has been in two thousand years:

± 1990s was the warmest decade

± 1998 was the warmest year

± Snow cover is down 10% in the last 40 years

Climate Change is accused of being totally or partially responsiblefor many catastrophes including the recent hurricanes in the USAand floods in Asia.

Climate change is one of the biggest environmental problems theworld is facing today.



What Causes Climate Change?

� Most of the energy we use to heat our homes, for electricity and transport comes from fossil fuels such asoil, gas and coal.

� When fossil fuels are burned, they release carbondioxide which is the main greenhouse gas.

� Greenhouse gases cause the earth to heat up bytrapping the sun¶s heat in the earth¶s atmosphere ±acting like a greenhouse.

� Most scientists agree that human activity is largelyresponsible for climate change.



Clim ate Ch ange



Greenhouse Gas (GHG) Effect

� What are the Consequences ? ± Sea level rise and flooding in coastal areas

± Climate extremes and disasters ± Human health problems

± Threat to other species (e.g. polar bears)

± At the current rate of retreat, all of the glaciers inGlacier National Park will be gone by 2070.

± Threats to agriculture



Ho w s h o u ld we a dd ress Clim ateCh ange?

Mitigation

± By taking action to reduce greenhouse gases, and

therefore reduce future climate change impacts.Ad aptation

± By taking action to minimize the impacts of climate

change and to reduce its severity as it happens.



Clim ate Ch ange vs. Susta inab le Deve lop m ent

� Mitigation of climate change requires reduction of GHGs.

� Reduction of GHGs requires cutting down on current levels of industrialactivities and development of green technologies and materials.

� Cutting down on industrial activities adversely affects economic progress.

� Most developing countries lack financial capacity and technologicalknowhow for developing green technologies and materials.

� Strict International Environmental Law regimes may thus affect other

aspects of sustainable development.



How should we deal with

Climate Change?



UN Millennium Development Goals (2001)



How do we deal with Climate Change?

� Legislative and policy initiatives are necessary. ± Environmental Laws and policies aim to prevent/mitigate

environmental pollution and depletion of natural sources.

± Internat io na l Env ir o n m enta l Law (IEL) is created by nationstates for nation states, to govern problems that arise betweenthem.

± Today, over 200 international environmental agreements and anuncountable number of bilateral agreements exist.

± Nat io na l Law



Leg is lat ive an d P o licy In itiat ives -Internat io na l

� The 1972 United Nations Conference on the Human Environment(Stockholm Conference ) is considered by some as beingresponsible for the emergence of a distinctive body of IEL.

� Key issues addressed in the declaration include:

± The responsibility of states to prevent transboundaryenvironmental harm;

± The responsibility of states to protect the environment for thepresent as well as for the sake of future generations; and

± The need to adopt integrated and coordinated approachestowards environmental management.



Leg is lat ive an d P o licy In itiat ives -Internat io na l

� The interest in IEL that was generated by the Stockholm Conferenceled to:

± 1992: United Nations Conference on Environment and Development

(Rio Conference or UNCED); ± 1992: Adoption of the United Nations Declaration on Environment and

Development ( Rio Declaration );

± 1992: Conventions on Biological Diversity; and

± 1992: Un ite d Nat io ns Fra m ew o rk Co nvent io n o n Clim ate Ch ange(an d th e 1997 Ky o to Pr o to c o l).

± 1994: UN Convention to Combat Desertification.



Un ite d Nat io ns Fra m ew o rk Co nvent io n o n Clim ateCh ange (UNF CC)

� Adopted in 1992. Entered into force on 21 March 1994.

� UNFCCC sets out a framework for action aimed at stabilizing

atmospheric concentrations of greenhouse gases (GHG) at a levelthat would prevent human-induced actions from leading to"dangerous interference" with the climate system.

� It recognizes that the climate system is a shared resource whose

stability can be affected by industrial and other emissions of carbondioxide and other greenhouse gases.

� 193 countries have ratified.



UNF CCC ± Art icl e 2

OBJ ECT IV E

³ 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.́



Kyoto Protocol

� The Kyoto Protocol, is a protocol to UNFCCC, which was agreed on11 December 1997.

� To date, KP is the only multilateral framework we have to addressclimate change.

� 183 countries and the EEC have ratified KP.

� CDM is one of the mechanisms established under the Kyoto

Protocol to deal with climate change.

� CDM is a mechanism for achievement of the goals of UNFCCCthrough collaboration between developed and developing countries.



The Kyoto Protocol� The Kyoto Protocol, a protocol to the International Framework Convention

on Climate Change (IFCCC) was agreed on 11 December 1997.

� It is the only multilateral framework we have to address climate change.

� KP establishes emission reduction targets for the period 2008 ± 2012 for the

industrialized countries (Annex 1 Countries).

� KP does not require developing countries to reduce the emissions of GHG.

� However, developing countries are encouraged under the cleandevelopment mechanism (CDM) to benefit from transfer of technology and

foreign investments flows into sustainable development.



O verview of the Kyoto Protocol:

Presentd a y

2012

(BaU )

Ass igne d Am o unts

Do m est ic Ac tio ns

J o int Im p le m entat io n

Emi ss io n Tra di ngAnnex I

Emi ss io n Tra di ng

Clean Deve lop m entMe ch an is m

Do m est ic Ac tio ns

2012 w ith

KP

- 5%

1990 leve l



Emi ss io n Tra di ng ± Art 17

� Parties with commitments under the Kyoto Protocol (Annex 1

Countries) have accepted targets for limiting or reducing emissions.

� These targets are expressed as levels of allowed emissions, or

³assigned amounts´ (AAUs) over the 2008-2012 commitment period .

Emi ss io ns tra di ng a llo ws c o untr ies t h at h ave e mi ss io n un its t o

s p are (sav ings fr o m AAUs ) to se ll thi s ex c ess c a p a ci ty to

c o untr ies t h at are o ver t h e ir targets.



J o int Im p le m entat io n ± Art 6

Thi s m e ch an is m a llo ws an Annex 1 c o untr y to earn e mi ss io nre d u c tio n un its (ERUs ) fr o m an e mi ss io n-re d u c tio n o r e mi ss io nre m o va l p r oj e c t in an o th er Annex 1 c o untr y.

� Earned ERUs (each equivalent to one tonne of C O 2), can becounted towards meeting its Kyoto target.

� Party investing in an emission-reduction or emission removal projectbenefits by earning ERUs.

� Host country benefit from foreign investment and technologytransfer.



Clean Deve lop m ent Me ch an is m (CDM) ± Art 12

� CDM can be defined as a Me ch an is m un d er w hich Annex I c o untr ies c an im p le m ent G HG mi tigat io n p r oj e c ts ind eve lop ing (N o n-Annex I) c o untr ies t o m eet a p art o f t h e ir

e mi ss io n re d u c tio n c o mmi tm ent.

� It aims to assist developing countries achieve sustainabledevelopment, thereby contributing to the ultimate objective of the UNFCCC.

� It aims to assist developed country Parties in achievingcompliance with their quantified emission limitation andreduction commitments.



Kyoto Protocol - CriticismIt a c tua lly im po ses o b ligat io ns o f G HG re d u c tio ns o n ly o n a fewd eve lop e d c o untr ies (Annex 1 Co untr ies ).

± There are 36 Annex 1 countries to date.

± The total percentage of Annex I Parties GHG emissions is 63.7%.

Th e c o m p lete ex cl us io n o f t h e d eve lop ing c o untr ies ra ises ser io usquest io ns ab o ut t h e o vera ll effe c tiveness o f t h e agree m ent.

� However, many agree with the principle of common but differentiatedresponsibilities enshrined in the Kyoto Protocol on the premise that it wouldnot be viable to require developing nations to meet reduction targets as itmight slow down their economic progress.



CDM distribution in unfair

India is the largestbeneficiary underCDM.

As of September 2007,it had 268 registeredCDM projects(34.74%), more thanany other country.Apart from Malaysia,and Philippines, otherASEAN countrieshave not had anysignificant benefitfrom CDM.



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Ad aptation vs. MitigationMitigat io n Ad a p tat io n

M has global benefits. A is regional at best, but mostlylocal.

M is easy to measure. A is difficult to measure.

M primarily involves the energy andtransportation sectors in industrializedcountries and the energy and forestrysectors in developing countries.

A represents a large variety of sectoral interests (agriculture,tourism, recreation, health, water supply, coastal management,urban planning and natureconservation).

The number of actors involved in M islimited. They are generally wellorganized and linked closely tonational planning and policymaking.

The number of actors involved in Ais more, and are not as organizedas in M.



Ad aptation: examples

� Shore protection (e.g., dikes, bulkheads, beach nourishment), which can prevent sealevel rise from inundating low-lying coastal property, eroding beaches, or worsenflooding.

� Improving early warning systems and flood hazard mapping for storms.

� Protecting water supplies from contamination by saltwater.

� Increasing energy efficiency to offset increases in energy consumption due towarming.

� Planting of trees in urban areas: they sequester carbon as they grow and they reduceurban heat stress in summer (helps M and A).

� Planting different crops for different seasons.

� Altering the timing of planting dates to adapt to changing growing conditions.

� Breeding new plant species and crops that are more tolerant to changed climatecondition.

� Promoting fire suppression practices in the event of increased fire risk due totemperature increases.

� Adjusting clothing and activity levels, increasing fluid intake.



Th e R o le o f Internat io na l Env ir o n m enta l Law(IEL )

Env ir o n m enta l Law - law about/against pollution and depletion of natural sources.

Internat io na l Law - law created by nations states for nation states,

to govern problems that arise between them.IEL has been shaped primarily by ecological (not geo-political)forces.

� The growing interest among nations since the 1970s to deal with the

environmental protection exemplifies the increasing willingness toaccept international obligations to conserve nature and naturalresources.



28

Liability of States under IEL

The general principles developed by IEL:

State S o vere ignt y - States have the sovereign right to exploit their ownresources pursuant to their own environmental and developmental policies ( R ioDeclaration, Principle 2 )

Rig h t t o Deve lop m ent - The right to development must be fulfilled so as toequitably meet developmental and environmental needs of present and futuregenerations ( R io Declaration, Principle 3 )

Dut y No t t o Cause Env ir o n m enta l Har m - States have the responsibility toensure that activities within their jurisdiction or control do not cause damage tothe environment of other States or of areas beyond the limits of national

jurisdiction ( R io Declaration, Principle 2 )



Liability of States under IELThe general principles developed by IEL contd«:

Co mm o n Co n c ern - The global environment is a common concern of humanity ( I UCN Covenant, Principle 13 )

Co mm o n but D ifferent iate d Res po ns ib ilities - In view of the different contributions toglobal environmental degradation, States have common but differentiated responsibilities( R io Declaration, Principle 7 )

Glo ba l Partners hi p - States shall cooperate in a spirit of global partnership to conserve,protect and restore the health and integrity of the Earth's ecosystem ( R io Declaration,Principle 7 )

No n-re lo c at io n o f Har m - States should effectively cooperate to discourage or preventthe relocation and transfer to other States of any activities and substances that causesevere environmental degradation or are found to be harmful to human health ( R ioDeclaration, Principle 14 )



Liab ility o f States un d er IEL

The general principles developed by IEL contd«:

Integrat io n - In order to achieve sustainable development, environmentalprotection shall constitute an integral part of the development process «( R io Declaration, Principle 4 )

Pea c efu l Res o lut io n o f Dis p utes - States shall resolve all their environmentaldisputes peacefully and by appropriate means in accordance with the Charter of the United Nations ( R io Declaration, Principle 26 )

Th e Pre c aut io nar y Pr in ci p le - Where there are threats of serious or irreversibledamage, lack of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to prevent environmental degradation ( R ioDeclaration, Principle 15 )



Liab ility o f States un d er IEL

The general principles developed by IEL contd«:

Th e P o lluter Pa ys Pr in ci p le - The polluter should, inprinciple, bear the cost of pollution ( R io Declaration,

Principle 16 )

Pub lic Part ici p at io n - Environmental issues are besthandled with the participation of all concerned citizens, atthe relevant level ( R io Declaration, Principle 10 )



Admi n istrat io n o f IEL

� The principles of IEL would work perfectly as long as states ratify therelevant international legal instruments and take effective measures toimplement them and to resolve the disputes amicably.

Ke y weaknesses :

Th e law m ak ing b y treat y h as been frag m entar y rather thansystematic ( ad hoc agreements rather than codification of a body of universally applicable laws in a single instrument).

La c k o f un iversa l a cc e p tan c e (e.g. Kyoto Protocol).

Ina d equate m o n ito r ing and controlling mechanisms.




Art icl e 33 o f t h e UN Ch arter provides that parties to a dispute whichmay endanger peace and security shall ³ seek a solution by negotiation,enquiry, mediation, conciliation, arbitration, judicial settlement, resort toregional agencies or arrangements, or by other peaceful means of their own choice´.

� Thus, an assortment of choices for dispute resolution is available.

O f the choices above, judicial settlement refers to settlement of disputes by reference to established judicial institutions.

� The other methods (mediation, arbitration, negotiation etc.) refer tosettlement disputes by/through persons/institutions chosen by theparties.




Established International Institutions for Settlement of E Disputes:Internat io na l Co urt o f J ust ic e (The only international legal institutionthat has general subject matter jurisdiction for adjudication of disputes)

Law o f t h e Sea Tr ibuna l (Established under the Law of the Sea

Convention)Internat io na l Cr imi na l Co urt (Established in 2002 as a permanenttribunal to prosecute war criminals (for genocide, crimes againsthumanity).

WTO Dis p ute Res o lut io n Me ch an is m (provides for resolution of traderelated environmental disputes)




� ICJ was created in 1945 for the purpose of adjudicatingdisputes among nations.

� ICJ can produce a binding ruling between states, only when

the states concerned have agreed to submit to the ruling of the court.

� Enforcement of IEAs would be much easier if the ICJ wasgiven authority to review and adjudicate claims.

� The implied surrender of national sovereignty, however,makes such judicial empowerment unrealistic, at least for now.



A P o st- Kyo to Me ch an is m ?

� Since, KP coveres obly the period of 2008-2012, it is nota long term multilateral arrangement to deal with climatechange.

� Thus, the world needs a more effective and long-termpost-Kyoto mechanism.

� At the Un ite d Nat io ns Clim ate Ch ange Co nferen c e inBa li (CO P 13), the parties adopted a roadmap for a new

negotiating process to be concluded by 2009.

� The expectation was that the roadmap would lead to apost-2012 international agreement on climate change.



Cop en h agen ( CO P 15)

� Parties ³took note of´ a 12 paragraph political declaration (Accord).

� The Accord was mainly the work of 5 countries ± USA, Brazil, China, India,

and South Africa.

� It is not a legal instrument.� Many developing countries, especially small island States protested.

� Creation of a $100 billion-a-year by 2020 climate adaptation fund for

developing countries on the condition that they also seek emission cuts.

� Recognition of the need to offer incentives for saving forests.

� 31 January 2010 deadline for Annex 1 Countries to come up with emissions

reduction targets by 2020.

Documents

Legal and Policy Considerations for CC_AG