Download Climate Negotiations – Legal Workshop

Climate negotiations – legal workshop
Dhaka 22/09/2013
Overview
The legal framework
• UNFCCC & Kyoto
• Objectives, principles and obligations
• Loss and damage
• Institutional and operational arrangements
Current Negotiations
• ADP
• 2015 agreement
• Finance and other legal issues
• Domestic implementation
Objective - Article 2
• Achieve stabilization of greenhouse gas
concentrations at a level that prevents
dangerous anthropogenic interference with
the climate system.
• Reduce GHG emission levels to 1990
levels by 2000 (Art.4.2 b)
• Degree target?
Principles – Article 3
• to protect climate system for benefit of present and future
generations of humankind (intergenerational equity)
• in accordance with their common but differentiated responsibilities
and respective capabilities (CBDRRC)
• developed countries to take the lead in combating climate change
and the adverse impacts of climate change
• specific needs, circumstances and climate vulnerability of
developing country Parties should be given full consideration
• parties to take measures to anticipate, prevent and mitigate the
causes of climate change
• lack of full scientific certainty should not be used to postpone such
measures (precautionary principle)
• Parties to promote sustainable development
Other principles?
• “No Harm”/principle of prevention
(preamble)
• Polluter pays principle
• Common Heritage of Mankind
Commitments - Article 4
• 4.1 General Commitments for all Parties: GHG inventory reporting,
cooperation
• 4.2 Specific Commitments for Annex I Parties: adopt mitigation
policies and measures
• 4.3 Funding for developing countries
• 4.4 Funding for particularly vulnerable developing countries
• 4.5 Technology Transfer (mitigation and adaptation)
• 4.6 Flexibility for Economies in Transition (EITs)
• 4.7 Links developing country implementation to funding
• 4.8 Actions for developing countries
• 4.9 Actions to consider special needs of LDCs
• 4.10 Adverse effects of response measures
Differentiated Commitments
• Annex I – Industrialized countries and EITs
– Adopt policies & measures to reduce GHG emissions to 1990
levels
– EITs can choose their own base year
– Greater reporting requirements
• Annex II – Industrialised (OECD) countries
– Provide financial resources to enable developing countries for
mitigation and adaptation
– Promote technology transfer to EITs and Non-annex I Parties
• Non-annex I – Developing countries
– No quantitative obligations
– LDCs given special consideration
Funding – Commitments
• Developed countries to provide new and additional financial
resources
- to meet the agreed full costs incurred by developing countries in
complying with their 12.1 reporting obligations
- resources for, including for technology transfer needed by
developing countries to meet the full agreed incremental costs of
implementing measures under Article 4.1
• Article 4.4: Developed countries shall also assist developed country
parties that are particularly vulnerable to the impacts of climate
change in meeting the costs of adaptation
• Article 4.5: Developed countries to take all practicable steps to
promote, facilitate and finance, as appropriate, the transfer of or
access to environmentally sound technologies
Article 11 - finance
• Defines a ‘financial mechanism’ for provision of
financing on a grant or concessional basis,
including for technology transfer
• Functions under the guidance of the COP,
reports to each COP
• Balanced and equitable representation and
transparent system of governance
• Green Climate Fund
Kyoto Protocol
• Adopted 1997 under the convention
• The Kyoto Protocol sets quantified targets
for GHG emissions reduction for Annex 1
parties within a specific timescale (2008 –
2012)
Main Provisions - KP
• Article 2 - Mitigation policies and
measures
• Article 3 - Emission targets and timetable
• Articles 6, 12 and 17 - Market-based
mechanisms
• Articles 5, 7, 8,18 - Reporting and
compliance
• Article 11 - Financing for developing
countries
Article 2 – Policies & Measures
Each Annex I Party, in achieving its QELRCs under Article 3 shall
implement and/or further elaborate P&Ms in accordance with its
national circumstances, such as:
– enhancement of energy efficiency in relevant sectors
– protection, enhancement of sinks and reservoirs of GHGs;
promotion of forest management, afforestation, reforestation
– promotion of new and renewable energy, and CO2 sequestration
technologies
– recovering methane emissions through waste management
– removing subsidies in relevant sectors
– reducing transport emissions
Article 3 – Commitments
• Annex I Parties shall, individually or jointly, ensure that
their emissions do not exceed their assigned amounts in
the period 2008-2012
• Net changes in GHG emissions shall be measured
(sources vs removals by sinks from LULUCF, limited to
afforestation, reforestation, deforestation)
• By 2005, each Annex I Party shall have made
demonstrable progress in achieving its commitments
• Commitments for subsequent commitment periods will
be established in amendments to Annex B
Kyoto Amendment
• 8 year commitment period until 2020
• Withdrawal, no target and objections
• Party’s commitment during the second commitment
period must be at least as ambitious as its actual annual
average emissions between 2008 and 2010.
• Parties review their commitments by the end of 2014
• New adjustment procedure (Article 3, paragraphs 1 ter
and quater)
• Entry into force (3/4 ratifications)
• No CP2 = participate in CDM but not JI or ET
• 15% of global greenhouse gas emissions
Prevention
“The existence of the general obligation of
states to ensure that activities within their
jurisdiction and control respect the
environment of other states or of areas
beyond national control is now part of the
corpus of international law relating to the
environment.” (ICJ Advisory Opinion on
the Legality of the Threat or Use of
Nuclear Weapons, 1996)
UNFCCC
• Preamble recital 8: “… States have, …, the sovereign right to exploit
their own resources pursuant to their own environmental and
development policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction,”
• Art.3.3: “... 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, ...”
• Art. 4.8: “... Parties shall give full consideration to what actions are
necessary under the Convention, including actions related to
funding, insurance and the transfer of technology,...”
Legal principles (ILA)
• States must strengthen their emission reduction standards and
protective measures in line with evolving scientific knowledge.
• States shall take proactive, cost-effective measures which enable
sustainable development, maintain the stability of the climate system
and protect the climate system against human-induced change.
• Where there is a reasonably foreseeable threat that a proposed
activity may cause serious damage to the environment of other
States or areas beyond national jurisdiction an environmental impact
assessment on the potential impacts of such activity is required.
• If the assessment indicates a reasonably foreseeable threat of such
serious damage, the State under whose jurisdiction or control the
activity takes place shall notify and consult with the other States
likely to be affected, make available relevant information, and
cooperate with a view to reaching a joint decision.
Legal challenges
• Serious, significant, substantial etc. harm
• Legal consequence: Obligation to regulate and
control with due diligence
• Trans-boundary and/or atmospheric pollution
• Justification, waiver or consent
• Balance with right to development and other
interests
• Effect of the climate negotiations
• Causation and attribution of damages
1992 Rio Declaration, Principle 13
“States shall develop national law regarding
liability and compensation for the victims of
pollution and other environmental damage.
States shall also co-operate in an expeditious
and more determined manner to develop further
international law regarding liability and
compensation for adverse effects of
environmental damage caused by activities
within their jurisdiction or control to areas
beyond their jurisdiction.”
Private claims
International Law Commission, Draft principles on the allocation of loss
in the case of transboundary harm arising out of hazardous activities,
2006:
•“Each State should take all necessary measures to ensure that prompt
and adequate compensation is available for victims of transboundary
damage caused by hazardous activities located within its territory or
otherwise under its jurisdiction or control.” (principle 4 para.1)
• “States shall provide their domestic judicial and administrative bodies
with the necessary jurisdiction and competence and ensure that these
bodies have prompt, adequate and effective remedies available in the
event of transboundary damage.... “(principle 6 para.1)
International funds
•
•
•
•
The International Oil Pollution Compensation Funds (the 1971 Fund, the
1992 Fund and the Supplementary Fund)
Nuclear Liability regimes under Convention on Third Party Liability in the
Field of Nuclear Energy (Paris) and Supplementary Convention (Brussels)
and the IAEA Vienna Convention on Civil Liability for Nuclear Damage
United Nations Compensation Commission established by the Security
Council in 1991 to process claims and pay compensation for losses
resulting from Iraq's invasion and occupation of Kuwait
"Iraq...is liable under international law for any direct loss, damage, including
environmental damage and the depletion of natural resources, or injury to
foreign Governments, nationals and corporations, as a result of Iraq's
unlawful invasion and occupation of Kuwait". (SC resolution 687 of 3 April
1991)
[Sandoz chemical spill into the river Rhine, Bhopal disaster, Flood
compensation scheme in Thailand, 9/11 fund, BP oil spill compensation
fund etc.]
Liability
• Causation and attribution of damages
• Compensation by industry and/or states
• Strict or fault based liability
• Principle of non-discrimination
• Existing funds
• Specific regimes
...
Decision 3/CP 18
“Decides to establish, at its nineteenth session,
institutional arrangements, such as an
international mechanism, including functions and
modalities, elaborated in accordance with the
role of the Convention as defined in paragraph 5
above, to address loss and damage associated
with the impacts of climate change in developing
countries that are particularly vulnerable to the
adverse effects of climate change”
Governance – UNFCCC
• Conference of the Parties (COP) - decisions
• UNFCCC Secretariat
• Subsidiary Body on Scientific and Technical
Advice (SBSTA)
• Subsidiary Body on Implementation
• ADP
• Expert Groups – created by COP (e.g. Expert
Group on Non-Annex I National
Communications)
Adaptation Fund
• KP contains commitments on adaptation
• 2% share of the proceeds of CDM CERs
to Adaptation Fund
• For concrete adaptation projects in
particularly vulnerable developing
countries
• Governed by Adaptation Fund Board with
majority developing country Party
participation, separate from GEF
Compliance mechanism –
Decision 24/CP.7
• Two branches:
– Facilitative Branch aims to provide advice and assistance to
Parties in order to promote compliance
– Enforcement Branch has the power to determine consequences
for Parties not meeting their commitments.
• Each branch has 10 members:
– one from each of the five official UN regions (Africa, Asia, Latin
America and the Caribbean, Central and Eastern Europe, and
WEOG)
– one from the small island developing states
– two each from Annex I and non-Annex I Parties.
• Committee meets in a Plenary composed of both branches.
– Bureau of four members, made up of Chair and Vice-Chair of
each branch, supports the Committee’s work.
Decision 1/CP.17
Workstream I
• Establishes the Ad hoc Working Group on the Durban Platform for
Enhanced Action (ADP)
• Launches a process to develop a protocol, another legal instrument
or an agreed outcome with legal force under the Convention (ADP)
• ADP to complete its work no later than 2015
• Protocol, another legal instrument or an agreed outcome with legal
force to come into effect in 2020
Workstream II
• Launches a workplan on enhancing mitigation ambition to identify
and to explore options for a range of actions that can close the
ambition gap
COP Decision 1/CP.17
“2. Also decides to launch a process to
develop a protocol, another legal
instrument or an agreed outcome with
legal force under the Convention
applicable to all Parties, through a
subsidiary body under the Convention
hereby established and to be known as
the Ad Hoc Working Group on the Durban
Platform for Enhanced Action.”
COP Decision 1/CP.17 para.2
• a protocol,
• another
- legal
- instrument or
• an agreed outcome
- with legal force
- under the Convention/
• under the Convention
• applicable to all Parties
Formal outcome
New
international
treaty (Protocol,
Implementation
Agreement,
Covenant etc)
Unilaterally
binding
declarations
Amendments of
Convention
and/or Protocol
Mix bags
of
outcomes
Political
agreement
(e.g. on
national
legislation)
COP
None
decisions
Mixed bags of formal outcomes
• Unilateral declarations on mitigation ambition
and political agreement on finance
• COP decisions on adaptation, technology
transfer etc. and treaty on mitigation targets
and/or finance
• Schedules containing binding/non binding
country specific outcomes/activities on
mitigation, adaptation, finance etc
• ...
International treaty
• “Supports legal certainty and rule of law amongst
nations”
• Subject to more thorough negotiation and preparation
process = political buy-in resulting in better
implementation and compliance
• Accountability to civil society
• “The more legal force the better”
• No guarantee for success
• Form and content
Legally binding?
•
•
•
Art. 8 CBD: “Each Contracting Party shall, as far as possible and as
appropriate: (a) Establish a system of protected areas or areas where
special measures need to be taken to conserve biological diversity.”
Art.11 para.1 International Covenant on Economic, Social and Cultural
Rights: “The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, ...”
Declarations by the US Secretary of State in 1978: “The United States will
not use nuclear weapons against any non-nuclear–weapon State party to
the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable
internationally binding commitment not to acquire nuclear explosive devices,
except in the case of an attack on the United States, its territories or armed
forces, or its allies...”
2015 Agreement
• Preamble, definitions
• Provisions/obligations on:
- mitigation
- adaptation
- finance
- technology transfer, capacity building
• differentiation amongst parties
• transparency, implementation, compliance
• provisions on the institutional and operational framework
• procedural rules on its adoption, amendment and entry into force
• annexes
Timetable
2013
– Decision on raising pre 2020 mitigation ambition (work plan I)
– Road map with milestones for the 2015 agreement (Work plan II)
2014
– Decisions on pre 2020 process and implementation
– Final consolidated negotiating text of the 2015 Agreement to be
presented
2015
– Actions on pre 2020 work plan continues
– Adoption of the 2015 Agreement (Paris Protocol?)
Link to pre-2015 ambition in Paris Protocol?
“Bottom up”
• “Legalisation” of pledge and review (Cancun
Agreements)
• What countries can/want to do
• Range of targets
• WTO schedules on market access
- Goods: binding commitments on tariffs
- Agriculture: combinations of tariffs and quotas,
export subsidies and domestic support
- Services: commitments on access of foreign
service providers in specific sectors
Schedule of commitment
1972 UNESCO World Heritage
Convention
Article 3
It is for each State Party to this Convention to identify and delineate
the different properties situated on its territory mentioned in Articles
1 and 2 above [cultural and natural heritage].
Article 5
To ensure that effective and active measures are taken for the
protection, conservation and presentation of the cultural and natural
heritage situated on its territory, each State Party to this Convention
shall endeavour, in so far as possible, and as appropriate for each
country:
(a) to adopt a general policy which aims to give the cultural and
natural heritage a function in the life of the community and to
integrate the protection of that heritage into comprehensive planning
programmes;...
Harmonisation
• Harmonisation (active pursuit) v natural convergence through
practice
• Creating new and/or amending existing legal instruments (system of
survey and certification under IMO SOLAS, Load Lines and
MARPOL 73/78)
• Minimum standards (for new aircrafts, vessels etc)
• Soft law: guidance, models, blueprints, best practice etc
• Soft to hard law (human rights, corporate governance)
• International coordination: institutions, bodies, standing negotiations
• Participation in rule development
• Improving and establishing consistent conditions for the operation of
rules and regulations: institution building to enabling environments
Framework v prescriptive
•
•
•
•
Principles
Domestic activities
Self determined
Reporting/
Assessment
• Meeting of parties
• Negotiation,
mediation
“Easy & quick & large”
•
•
•
•
Rights & obligations
Specific outcomes
Rules & regulations
Compliance/
Enforcement
• Processes & institutions
• Binding dispute
resolution
“Tough & slow & small”
Third party provisions
• Need for third party to accept obligations or rights
• 2009 Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated
Fishing, Article 23: Non Parties to this Agreement
1. Parties shall encourage non-Parties to this Agreement
to become Parties thereto and/or to adopt laws and
regulations and implement measures consistent with its
provisions.
2. Parties shall take fair, non-discriminatory and
transparent measures consistent with this Agreement
and other applicable international law to deter the
activities of non- Parties which undermine the effective
implementation of this Agreement.
Minimata Convention on
Mercury
Article 3
Each Party shall not allow the export of mercury
except:...
(b) To a non-Party that has provided the exporting Party
with its written consent, including certification
demonstrating that:
(i) The non-Party has measures in place to ensure the
protection of human health and the environment and to
ensure its compliance with the provisions of Articles 10
and 11; and
(ii) Such mercury will be used only for a use allowed to a
Party under this Convention or for environmentally sound
interim storage as set out in Article 10.
Finance
• Developed countries commit to mobilizing
jointly 100 billion US dollars from a wide
variety of sources, public and private,
bilateral and multilateral, including
alternative sources of finance.
• Voluntary pledges/binding commitments
• New and additional v. ODA
• Differentiation between parties
• Compliance/consequences