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The international
climate change regime
International Environmental Law – JUR5520
28.03/11.04 2008
Catherine Banet, Phd Research fellow
Scandinavian Institute of Maritime Law – Petroleum and Energy Department
[email protected]
Overview
1.
2.
3.
4.
5.
6.
Climate change: factual background
Towards an international agreement
The UN Framework Convention on Climate Change
The Kyoto Protocol
Implementation issues under the Kyoto Protocol
Post-2012 perspective and international negotiations
International Environmental Law – Spring 2008 – C. Banet
1. Climate change: factual background
Changes in temperatures, sea level and snow cover
between 1850 and 2010
(source: IPCC Climate Change 2007):
Greenhouse warming effect
International Environmental Law – Spring 2008 – C. Banet
(source:www.combatclimatechange.ie)
Effect of climate change:
The example of the Tuvalu Islands.
The carbon cycle
International Environmental Law – Spring 2008 – C. Banet
•
International Panel on Climate Change
(IPPC) (http://www.ipcc.ch/)
•
Fourth Assessment Report, 2007:
–
”Global greenhouse gas (GHG) emissions have
grown since pre-industrial times, with an increase of
70% between 1970 and 2004.”
–
”The largest growth in global GHG emissions
between 1970 and 2004 has come from the energy
supply sector (an increase of 145%).”
–
”A range of policies, including those on climate
change, energy security, and sustainable
development, have been effective in reducing GHG
emissions in different sectors and many countries.”
–
”With current climate change mitigation policies and
related sustainable development practices, global
GHG emissions will continue to grow over the
next few decades.”
International Environmental Law – Spring 2008 – C. Banet
2. Towards an international agreement – Climate
change and international air pollution regulation
•
1979: First World Climate Conference.
•
1987: Montreal Protocol on substances that deplete the ozone layer.
•
1987: Brundtland Rapport ”Our Common Future”
(World Commission on Environmenta and Development).
•
1988: General Assembly resolution. Climate as the “common concern of mankind”.
•
1988: General Assembly resolution on climate change Res. 43/53.
•
1988: Establishment of the IPCC.
Time Magazine
cover, 1988.
•
1990: Establishment of the Intergovernmental Negotiating Committee (ICE) for a Framework
Convention on Climate Change.
•
1990: IPCC first assessment report. Second World Climate Conference.
•
1992: UN Conference on Environment and Development (UNCED), Rio de Janeiro.
International Environmental Law – Spring 2008 – C. Banet
3. The UN Framework Convention
on Climate Change
•
United Nations Framework Convention on Climate Change (UNFCCC)
(www.unfccc.int).
•
The general character of the Convention.
•
Entry into force: 21 March 1994. 192 parties (22 August 2007)
•
”Ultimate objective” (Art. 2):
“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.”
•
Guiding principles to be found in the UNFCCC: common concern of mankind,
intra- and inter-generational equity, precautionary principle, differentiated
responsibilities, sustainable development, cooperation.
•
Imply different categories of Parties.
•
UNFCCC addresses both mitigation and adaptation.
International Environmental Law – Spring 2008 – C. Banet
•
Institutional framework:
– Conference of the Parties (COP) (Art. 7): ”supreme body of the Convention”.
– Secretariat (Bonn) (Art. 8)
– 2 subsidiary bodies:
• The Subsidiary Body for Scientific and Technological Advice (SBTA)
• The Subsidiary Body for Implementation (SBI)
– 3 expert groups:
• Consultative Group of Experts
• Expert Group on Technology Transfer
• Least Developed Countries Expert Group
•
Negotiating groups: Group of 77, Alliance of Small Island States (AOSIS), Least
Developed Countries, UE, Umbrella Group (evolved from JUSSCANNZ),
Environmental Integrity Group, CACAM, etc.
•
Financial resources: specific provisions on transfers of financial resources to less
industrialised countries (Art. 4.3). Proper mechanism (Art. 11), operated by the
Global Environmental Facility (GEF).
International Environmental Law – Spring 2008 – C. Banet
• Dispute resolution (Art. 13-14). Sanctions?
• State liability issue.
• On the way towards the Kyoto Protocol:
–
–
–
–
The Berlin Mandate
The Buenos Aires Plan of Action
The Hague
Marrakech Accords
International Environmental Law – Spring 2008 – C. Banet
4. The Kyoto Protocol
• Adopted in Kyoto, at COP3, on 11 December 1997.
• Entry into force: 16. February 2005, after ratification by Russia.
(Rule of Art. 25: 55 Parties to the UNFCCC, 55% industrialised
countries’ CO2 emissions in 1990). Current number of parties:
177 (15.01.2008).
• Scope of application: 6 GHG gases; sector/source categories
(Annex A). See recent developments for implementation of Art.
2.2 (aviation and marine bunker fuels).
• Objectives.
International Environmental Law – Spring 2008 – C. Banet
•
Commitments - 3 categories of Parties with differentiated commitments:
–
–
–
•
Parties included in Annex B of the KP;
All Parties;
Parties included in Annex II UNFCCC.
Implementation of the KP:
–
–
–
Marrakesh Accords (2001, COP.7);
the “rule book” of Montreal (2005, COP.11, COP/MOP.1);
Bali Action Plan (See Section 6 below).
•
Compliance tools including 3 flexible mechanisms, i.e. Clean Development
Mechanism (CDM), Joint Implementation (JI) and emissions trading (see
below).
•
KP institutional framework:
–
–
–
Meeting of the Parties to the Kyoto Protocol
Bureau
Constituted bodies under the Kyoto Protocol:
• CDM Executive Board
• JI Implementation Supervisory Committee
• Compliance Committee
International Environmental Law – Spring 2008 – C. Banet
• A legally binding requirement.
Consequences of non-compliance?
• Compliance regime under the Kyoto Protocol:
– Art. 18-19 KP.
– Body responsible for ensuring compliance: Compliance
Committee, composed of 2 branches, the Facilitative Branch and
the Enforcement Branch.
International Environmental Law – Spring 2008 – C. Banet
•
Kyoto flexibility mechanisms:
1.
Clean Development Mechanism (CDM)
–
Definition: Article 12 of the Kyoto Protocol.
–
Objective behind CDM:
”2. The purpose of the clean development mechanism shall be to assist Parties
not included in Annex I in achieving sustainable development and in contributing
to the ultimate objective of the Convention, and to assist Parties in Annex I in
achieving compliance with their quantified emission limitation and reduction
commitments under Article 3.”
–
CDM in practice:
”3. Under the clean development mechanism:
(a) Parties not included in Annex I will benefit from project activities resulting in
certified emission reductions; and
(b) Parties included in Annex I may use the certified emission reductions
accuring from such project activities to contribute to compliance with part of their
quantified emission limitation and reduction commitments under Article 3, as
determined by the Conference of the Parties serving as the meeting of the Parties
to this Protocol.”
Invests in CDM project,
transfer of technology, …
Annex I Party
Non-Annex I Party
CERs
International Environmental Law – Spring 2008 – C. Banet
Parties involved in CDM:
CDM project cycle:
1/ Planning a CDM project
PPs
2/ Draft the project design
document (PDD)
PPs
3/ Approval from each Party
involved
By DNA of each Party,
including host country.
Written approval.
4/ Validation
Independent evaluation by
DOE.
5/ Registration
i.e. formal acceptance as a
CDM project activity. By
CDM EB.
6/ Monitoring of the CDM
project activity
PPs collect data for GHG
emissions reductions,
based on PDD Monitoring
Plan.
7/ Verification and certification
V: Independent review. C:
written assurance. By
DOE.
brokers
8/ Issuance of CERs
CDN EB. % deduced for
assistance developing
countries.
+ others
9/ Distribution of CERs
Among PPs, according to
agreed modalties by PPs.
CDM Executive Board (EB)
Designated National Authorities (DNA)
Designated operating Entities (DOE)
+ Parties to CDM contracts
Sellers
Project Entity / Project owners
Project developer
Buyers
Host country (MoU eventually)
+ Possible intermediary organs:
NGOs
International Environmental Law – Spring 2008 – C. Banet
Conclusion: Multiple legal relationships between
parties. Requires complex contractual architecture,
in addition to technical requirements.
–
Eligible projects: http://unfccc.int/files/meetings/cop_13/application/pdf/cmp_guid_cdm.pdf
• Regulatory framework: Decision 17/CP.7 ”Modalities and procedures for a CDM”,
additionality, etc.
• Included (based on pre-established or specially designed guidelines approved by
CDM EB): afforestation and reforestation projects (Decision 17/CP.7), small scale,
non-small scales, etc…
• Excluded: f. ex. Nuclear. Issues related to large hydro.
• Examples: energy sector (RES, cogeneration, methane leakages), industrial
activities, energy efficiency, transport, agriculture. Some restrictions for forestry
projects and land occupation.
• http://www.cdmbazaar.net
• http://cdm.unfccc.int/Projects/MapApp/index.html
–
Result: CERs
• Definition: abatement of one tonne of CO2 equivalent.
• Some figures:
– Registered projects: 988; Issued CERs: 135,126,744. (As of April 2008)
– Expected CERs (from registered projects until the end of 2012): > 1,190,000,000.
– Main locations: Asia, South America. Unbalanced situation?
–
Legal issues related to CDM projects: CDM contracts, CERs trading, dispute
settlement.
–
Complementary information: See CDM website of UNFCCC.
International Environmental Law – Spring 2008 – C. Banet
2. Joint Implementation (JI)
–
Definition: Article 6 KP.
Also project-based mechanism, as CDM.
–
Objective:
”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, […]”
–
Requirements:
See JI Guidelines §21 ”a Party included in Annex I with a commitment incribed in
Annex B is eligible to transfer and/or acquire ERUs issued in accordance with the
relevant provisions, if it is in compliance with the following eligibility
requirements…”
JI in practice:
• Location: Economies in transition, in particular Russia, Ukraine, Bulgaria (60% in
2006).
–
–
Results: Emission Reduction Units (ERUs).
International Environmental Law – Spring 2008 – C. Banet
3. International emissions trading
–
Definition: Article 17 KP.
”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 purposes of meeting quantified emission limitation commitments under that Article.”
–
Objective: trading of emissions among Annex I Parties to the KP with commitments
inscribed in Annex B. Marginal-abatement costs.
–
Regulatory framework: see Marrakesh Accords, Decicions 18/CP.7 ”Modalities, rules
and guidelines for emissions trading”, ”commitment period reserve”,
–
Emissions trading in practice:
• Who trades? Although formation different than for CDM and JI, open to legal
entites other than Parties.
• What is traded? Difference between quotas and permits, international and
national trading, project-based and allowance-based transcations. Parts of
Assigned Amounts, CERs, ERUs and removal units (RMUs)
• Trading modalities?
– bilateral (over-the-counter);
– through market places:
– Registry system: national registries + CDM registry, all under supervision of
International Transaction Log (see next slide).
• Legal issues: linking registries
International Environmental Law – Spring 2008 – C. Banet
International Environmental Law – Spring 2008 – C. Banet
5. The EU Emissions Trading System
• Joint fulfillment of obligations under the KP – the
case of the EU
– Joint commitment under the Kyoto Protocol;
– The EU case.
• Directive 2003/87/EC of 13 October 2003.
• Operational since 1. January 2005.
• Analysis Directive provisions.
International Environmental Law – Spring 2008 – C. Banet
6. Post-2012 perspective and recent legal developments
•
Why are we talking about post-2012? End of KP commitments.
•
The modalities for negotiating a post-2012 regime:
COP11/CMP.1 Montréal: decision to launch two negotiation processes:
– Ad hoc Working Group on Further Commitments for Annex I Parties under the KP
(AWG-4)
– Dialogue on long-term cooperative action to address climate change by enhancing
implementation of the Convention (The Dialogue).
•
Analysis of the Bali Action Plan.
•
Towards 2009:
–
–
–
–
4 “building blocks” for negotiations: mitigation, adaptation, technology and finance.
A new “ad hoc working group on long-term cooperative action”.
Bali Action Plan + all the other decisions from the convention and the KP define a “2
negotiation tracks” process: the Convention track + the KP track.
Bali Action Plan lists themes to be discusses, structured around a common long-term
objective (although no figure adopted), a common negotiation forum for all States
(AWG), a rhythm for negotiations, a deadline (2009, Copenhagen).
International Environmental Law – Spring 2008 – C. Banet
Thank you for your attention!
International Environmental Law – Spring 2008 – C. Banet