Download Climate Change - British Institute of International and Comparative

Climate Change:
Ripple Effects on International Law
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M.J. Mace
17 October 2008
London
British Institute of International and Comparative Law
Annual Conference 2008: “Climate Change and its challenges for
the international legal system”
Climate change now affecting…
• implementation of a range of existing treaties, creating
– practical challenges to their successful implementation
– political challenges to their successful implementation
– Substantial threat to past accomplishments
• development of existing treaties
– climate concerns reflected in decisions taken by a range of
convention bodies
– calls for plugging of new-found ‘gaps’ in existing regimes
– calls for expedited implementation of existing mandates
– calls for new instruments, tools, funding approaches
• Rapid expansion of interest and expertise
• Opportunities for synergies, and for conflicts
• Collision of environmental, economic, social, political
concerns
No end to the areas of law that will
be affected
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Air pollution
Water pollution
Marine pollution
Law of the sea
Biodiversity / conservation
Species protection
Energy frameworks
Human rights
Security
International Economic Law
Investment
Intellectual property
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Trade
Financial regulation
Insurance
Accounting
State aid
Cultural protection
Indigenous rights
Refugee and migration law
International transport
Rights and duties of States
Dispute settlement
• Etc, etc, etc
Big Picture New Challenges:
Arctic and Small Island States?
UNCLOS: Establishment of
new boundaries?
• Denmark, Russia, Canada,
US, Norway claims under
UNCLOS Art.76
• Canada/US/EU disputes
over Northwest Passage
Defense of boundaries at risk
due to rising sea levels
Defense of statehood and
where territory at risk of loss
EU Parliament has called for a
new Arctic treaty!
What is at stake?
Economic/Commercial Interests
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Offshore oil and gas reserves
Offshore fisheries
Mineral deposits on the seabed
Shipping lanes
Political/Strategic Interests
• Military
• GPS Navigation
Human dimension?
• Displacement, migration?
• New visa categories under
existing migration laws?
• Amendments to 1951
Refugee Convention?
• New Convention on the
Protection of Environmentally
Displaced Persons?
• Protocol to UNFCCC on
recognition, protection and
resettlement of climate
‘refugees’?
Photo © Gary Braasch
Undermining and Enabling?
Biodiversity and species protection
• CBD, CMS, CITES, Forest protection
agreements (TTA)
• Biodiversity has declined by 25% in last
35 years (WWF)
• EEA reports half its conservation sites are
failing to protect vulnerable species and
habitats
• But…new interest, new tools, new funding
• ‘Reducing Emissions from Deforestation’
• ‘Adaptation’ under the UNFCCC as a
funding lever
• Sustainable forest management,
conservation, forests may get instruments
get a new lease on life
Revisiting the law?
London Dumping Convention / OSPAR
• Carbon capture and storage identified as a
potential mitigation tool
• 1972 London Convention prevents the pollution
of the sea by the ‘dumping’ of waste; specifically
the dumping of industrial waste ‘generated by
manufacturing or processing operations’ was
specifically prohibited.
• Proponents of carbon capture and storage
underneath the sea bed sought amendment of
marine pollution conventions…
• In 2006, the 1996 London Protocol was
amended to specifically allow the ‘storage’ of
CO2 streams from capture processes for
sequestration beneath the seabed.
• EU waste and water legislation – as ‘barriers’ to
the storage of CO2 underground.
Perverse Incentives and
Conflicts? Montreal Protocol
• Montreal Protocol aims to phase out
ozone-depleting substances
– KP’s CDM creates incentive for reduction of
HFC-23 (good)
– But created incentive for production of
additional HCFC-22 (bad)
– Value of CDM credits greater than the cost
of HCFC production, creating an incentive
to build HCFC plants despite the phase-out
• September 2007, Parties agreed to
accelerate phaseouts of HCFCs from 2009:
– Developed countries to reduce production
and consumption 10 years earlier, with final
phase out in 2020.
– Developing countries to cut production and
consumption by 10% in 2015 with a final
phase-out in 2030, also 10 years sooner
than planned.
The Nitty Gritty of Implementation?:
International Accounting Standards
• With the creation of the EU ETS, differences in how
countries and companies account for allowances
• IASB in the process of answering questions:
• Is an allowance an asset? Does it depend where
allowances are acquired from? What is the nature
of an allowance? A license to emit? A form of
emission currency? If assets, when are they
recognised and how are they valued?
• What is the book entry where allowances are
received from the government for free? Is there a
liability? What is the nature of the liability? How is
it valued initially?
• How should allowances be accounted for
subsequently? As under IAS 38 Intangible
Assets? Under IAS 39 Financial Instruments? If
not, how?
Tools for Enforcement?
UNESCO
• UNESCO World Heritage List
• 2005 decision by the World
Heritage Committee to start
studying impact of climate
change on World Heritage sites.
• Report features case studies,
including Tower of London,
Kilimanjaro National Park, Great
Barrier Reef - representative of
dangers faced by the 830 listed
sites (Westminster Palace,
Greenwich, Tower of London)
• UNESCO rejected efforts to
have 5 sites added to the ‘sites
in danger list’, based on
exposure to climate change
impacts.
Competing principles?: Emissions from
International Transport
• UNFCCC, IMO, ICAO, MARPOL
and Chicago Convention
• KP provides emissions from
international aviation and maritime
shipping to be addressed by
developed countries working
through ICAO and IMO.
• UNFCCC principle of common but
differentiated responsibilities and
respective capabilities
• IMO – MARPOL – principle of
equal applicability - standoff
• ICAO – Chicago Convention
• EU going ahead with integration of
aviation into EU ETS
Thank you for your attention
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M.J. Mace
[email protected]