Lecture 2 Repetition Climate change law is based on the global political consent that - despite lack of scientific certainty – global warming must be tackled and the increase reduced to a minimum, in accordance with sustainability The global approach on the top leads to strategic measures at the root level, based on appropriate legal planning and other measures – in accordance with the prevention and polluter pays -principles.

Self-evaluation / Check! By now you should be able to define: Climate cycle Emission GHG Sink Precaution What are the legal approaches (3) to react? Sustainability UNFCCC

THE (UNCED) RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT (1992) PRINCIPLE 1: Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. PRINCIPLE 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

The Broader Triptyck Rio 1992 Sustainability (4 pillars) – Origin: UN Commission – Brundtland Commission - Report 1987: ”Our Common World” Biodiversity (CBD) – and sectoral Conventions Ramsar Convention on Wetlands Nagoya COP 2011: Climate Change Programme Climate Change (UNFCCC) – and air pollution Convention to Combat Desertification (CCD) Thus: Climate Change regimes are based on the principle that development shall be sustainable and support diversity of the biological environment

The UN Climate Regime Basic classification of CC measures (1) Mitigation (cf. Prevention of emissions) ” efforts to reduce or prevent emission of greenhouse gases. … using new technologies and renewable energies, making older equipment more energy efficient, or changing management practices or consumer behaviour.”

Cont. (2) Adaptation – adaption to the inevitable impacts of CC – decrease of risks (floods, deserts, forest fire) by management Cc NASA

Structuring regulatory instruments Horizontal versus sectoral approaches Balance between economic benefits (investments) and environmental goals? The role of Climate POLITICS? More Politics than Law? – Dependence on energy!

Developed states ethically liable The triangle EET (economy, environment and technology) Who pays – environmental liability? (polluter pays principle) Result: global solidarity towards developing states! Argument: Developing states are entitled to get the profit of welfare before being obliged to pay. – Rich states had the chance to get their share at the cost of the environment!

The CC Regime The Climate Framework Convention (UNFCCC) The Kyoto Protocol 1997 EU – forerunner – adopted additional strategies and goals (→ EU Climate Policy) Related: IPCC (non-political) Conferences of Parties (COPs, both UNFCCC and Kyoto), latest COP Paris 2015, next COP 23 in Bonn

UNFCCC – Main objective (Art. 2) The ultimate objective of this Convention and any related legal instruments … is to achieve,… (1) stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. (Mitigation) 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. (Adaptation)

Principles Art.3 1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity.. 2. The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable.., should be given full consideration. 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… 4. . 5. The Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties,

Commitments of Parties, Art 4 Three categories: (1) Developed Countries, listed in Annex I and II: full commitments (2) Developing Countries: commitments as financed by developed countries and programmes (3) Threatened developing countries (low islands, coastal states e.g.)

Commitments Art. 4: Developed countries 1. All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall: 2. The developed country Parties and other Parties included in Annex I commit themselves specifically as provided for in the following: 3. The developed country Parties and other developed Parties included in Annex II shall provide new and additional financial resources to meet the agreed full costs

Cont. Art. 4 Developing countries 7. The extent to which developing country Parties will effectively implement their commitments, … to meet the 15 specific needs and concerns of developing country Parties arising from the adverse effects of climate change and/or the impact of the implementation of response measures, especially on:

(a) Small island countries; Tuvalu, Papua (b) Countries with low-lying coastal areas; Bangladesh (c) Countries with arid and semi-arid areas, forested areas and areas liable to forest decay; (d) Countries with areas prone to natural disasters; Gulf of Mexico Future challenge: Climate refugees!!

Cont.2 Further categories of developing countries (e) Countries with areas liable to drought and desertification; (f) Countries with areas of high urban atmospheric pollution; (g) Countries with areas with fragile ecosystems, including mountainous ecosystems; (h) Countries whose economies are highly dependent on income generated from the production, processing and export, and/or on consumption of fossil fuels and associated energy-intensive products; and (i) Land-locked and transit countries.

National liabilities and participation Art National liabilities and participation Art. 7 Note: Material strategies and social involvement … the Parties shall: SUBSTANTIAL (a) Promote and facilitate at the national and, as appropriate, subregional and regional levels, and in accordance with national laws and regulations,..: → strategies PROCEDURAL (i) The development and implementation of educational and public awareness programmes on climate change and its effects; (ii) Public access to information on climate change and its effects; (iii) Public participation in addressing climate change and its effects and developing adequate responses; and (iv) Training of scientific, technical and managerial personnel. Cf. The Aarhus Convention on public participation (1998) https://www.unece.org/env/pp/introduction.html

3 pillars of the Aarhus Convention Information (access rights) Participation (hearing in procedures without legal standing) Access to justice (if right is denied, court examines the case)

The role of the IPCC (Homepage) “The IPCC is a scientific body. It reviews and assesses, at regular intervals, the most recent scientific, technical and socioeconomic information produced worldwide, relevant to the understanding of climate change. It does not conduct any research nor does it monitor climate-related data or parameters. The COP receives the outputs of the IPCC and uses IPCC data and information as a baseline on the state of knowledge on climate change in making science based decisions.”

COP Reviews, Art 7 CONFERENCE OF THE PARTIES 1. A Conference of the Parties is hereby established. 2. The Conference of the Parties, as the supreme body of this Convention, shall keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make,.. decisions necessary to promote the effective implementation of the Convention.

The Kyoto Protocol 1997 (COP) Adopted as an international agreement and ratified by most Parties (not all) to the UNFCCC. Objective: To set short-term targets for the implementation of the UNFCCC. The basic terms are the same as in the Convention. The important input of the Protocol is the adoption of the ”KYOTO MECHANISMS” – still used and further developed for the implemenation.

The Kyoto Mechanisms Joint implementation (JI) Emission Trading (ET) Clean Development Mechanisms (CDM) The Protocol is followed up by COPs, parallel to the COPs of the UNFCCC

ET Emissions trading, as set out in Article 17 of the Kyoto Protocol, allows countries that have emission units to spare - emissions permitted them but not "used" - to sell this excess capacity to countries that are over their targets.

JI The mechanism known as “joint implementation,” defined in Article 6 of the Kyoto Protocol, allows a country with an emission reduction or limitation commitment under the Kyoto Protocol (Annex B Party) to earn emission reduction units (ERUs) from an emission-reduction or emission removal project in another Annex B Party, each equivalent to one tonne of CO2, which can be counted towards meeting its Kyoto target.

CDM The Clean Development Mechanism (CDM), defined in Article 12 of the Protocol, allows a country with an emission-reduction or emission-limitation commitment under the Kyoto Protocol (Annex B Party) to implement an emission-reduction project in developing countries.

EU Environment policy principles Art. 191/2 Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on (1) the precautionary principle and on the principles that (2) preventive action should be taken, that (3) environmental damage should as a priority be rectified at source and that the (4) polluter should pay.

Leading Principles for Regulation (Command and control) Role of constitutional rights (owners, users and ”victims” (including the env) Polluter pays (causation principle) Prevention principle Precautionary principle Access to env information and participation (access to justice) Legality of administrative acts (legal control)