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 decisions

None

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 3It 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 5To 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 Agreement1. 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 3Each 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