climate change and adaptation climate change law environmental law and policies pertaining to...

DR. PETER ONYOYO O. LECTURE NOTES

CLIMATE CHANGE AND ADAPTATION

CLIMATE CHANGE LAW

ENVIRONMENTAL LAW AND POLICIES PERTAINING TO CLIMATE CHANGE

TREATY LAWBY DR. PETER ONYANGO ONYOYOASSOCIATE LECTURER AT THE ICCA


BACKGROUND ANALYSIS

1. SCIENTIFIC TRUTH / LEGAL PROCESS2. WORLD AWARENESS3. HARD & SOFT LAW4. HISTORICAL REVIEW OF ENVIRONMENTAL LAW5. UNITED NATIONS COMMITMENTS6. DEVELOPING INTERNATIONAL LEGAL INSTRUMENTS

TO COUNTER CLIMATE CHANGE – CONSENSUS7. RIO – KYOTO I & II8. COP – FROM BALI 2007 TO PARIS 2015


CATEGORIES OF LAW

• INTERNATIONAL LAW – INTERNATIONAL JUSTICE SYSTEM / GLOBAL JUSTICE/ GLOBAL JURISDICTION – SOFT LAW – LEX SPECIALIS

• REGIONAL LAW• FOREIGN LAW• NATIONAL/DOMESTIC/MUNICIPAL LAW – HARD

LAW….


CRIMINAL V CIVIL LAW

• CRIMINAL LAW – PUBLIC/ ADMINISTRATIVE LAW/ CRIMINAL LAW/ CONSTITUTIONAL LAW

• PRIVATE LAW / PRIVATE PARTIES

• PUBLIC VERSUS PRIVATE LAW


DEFINITION OF LAW

• JURISPRUDENCE• DIFFERENT DEFINITIONS OF LAW• JUDICIAL PROCESS / COURTS /• LAW MAKING BODY (LEGISLATURE)• LAW ENFORCING BODY (EXECUTIVE)• LAW INTERPRETING BODY (COURT)


CLIMATE JUSTICE

• WHAT IS JUSTICE?• WHY IS JUSTICE IMPORTANT FOR CLIMATE

CHANGE? • THE COURT HAS THE BURDEN OF JUSTICE


COMMON LAW SYSTEM AND ADJUDICATIVE APPROACH

• ADVERSARIAL APPROACH• PARTIES INITIATE THE LAW-SUIT AND NOT THE

COURT• CIVIL LAW SYSTEM HAS INQUISITORIAL APPROACH

– THE COURT CAN TAKE INITIATIVE OR ASK FOR INVESTIGATION


LAW OF CONSENSUSINTERNATIONAL LAW

• CUSTOMARY INTERNATIONAL LAW• GENERAL PRINCIPLES OF INTERNATIONAL LAW• (JUS COGENS)• TREATY LAW / CONVENTIONS- NEGOTIATIONS/

AGREEMENTS/SIGNATURES/ RATIFICATION• BINDING FORCE OF THE LAW – OBLIGATIONIS

LEGIS• SOFT LAW / HARD LAW


KEY CONCEPTS• RIGHTS – LAW CONFERS RIGHTS• OBLIGATIONS – LAW IMPOSES OBLIGATIONS• EG. CONTRACT LAW


WHAT IS CLIMATE CHANGE?

• Climate change, also sometimes called "global warming“ or the "greenhouse effect", is caused by the emission of gases into the atmosphere as a result of• human activity.


WHAT IS HAPPENING?• Certain gases emitted during industrial or

agricultural activity, such as carbondioxide (CO2), methane, nitrous oxide and ozone, known as greenhouse gases (GHGs) collect in the atmosphere and lead to changes in the climate system which have led to the 1990s being the warmest decade since records began.


SCIENTIFIC JUDGMENT/ PROOFS/ EVIDENCE

• Scientific projections predict that concentrations of carbon dioxide in the atmosphere, global average surface temperature and sea levels will rise during the 21st century.

• SEA LEVEL SHALL RISE• ICE SHALL MELT• BIODIVERSITY SHALL BE AFFECTED• RAIN PATTERNS SHALL CHANGE• FOOD PRODUCTION SHALL BE AFFECTED• IRREVERSABLE HUMANITARIAN DISASTERS


• This is likely to have an adverse effect on human health, biodiversity and ecological productivity, although the global impacts of a rise in Temperature are not all negative.

• The greater the increase in temperature, the greater the adverse effect. 4 Of particular concern is the impact on water supply in water-scarce areas and on human populations in low lying areas.

• Climate change presents new and difficult issues for• environmental regulators to solve. CO2, one of the• primary causes of climate change, is an unavoidable• by-product of economic activity and inevitably rises• with prosperity.6 Much of this comes from the burning• of fossil fuels, of which the planet still has a significant• stock.


WHAT IS CLIMATE CHANGE? SCIENTIFIC TRUTH


HUMAN ACTIVTIES – ANTHROPOGENIC GAS EMISSION FACILITIES


HUMAN ACTIVITIES


SCIENTIFIC FACTS: THEORY OF HARM

• GLOBAL WARMING• EFFECTS OF GLOBAL WARMING• CLIMATE CHANGE• MITIGATION AND ADAPTATION ISSUES• LAW AS ONE OF THE APPROACHES TO COUNTER

MEASURE GLOBAL WARMING / CLIMATE CHANGE


MYTH & FACTS


CHANGING ECOSYSTEM


THE CONFERENCE OF THE PARTIES (COP)

• COP IS THE SUPREME BODY OF THE UN FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCC)

• MEMBERS ARE KNOWN AS PARTIES TO THE CONVENTION


CLIMATE JUSTICE CONFERENCE


CONFERENCE OF THE PARTIESANNUAL MEETINGS

• COP 13 – Bali, Indonesia – 2007• COP 14 – Poznan, Poland – 2008• COP 15 – Copenhagen, Denmark – 2009• COP 16 – Cancun, Mexico – 2010• COP 17 – Durban, South Africa – 2011• COP 18 – Doha, Qatar – 2012• COP 19 - Warsaw, Poland - 2013• COP 20 - Lima, Peru - 2014• COP 21 - Paris, France - 2015


EARTH SUMMITRIO DE JANNAIRO 1992

• UNITED NATIONS CONFERENCE ON ENVIRONMENT & DEVELOPMENT HELD IN RIO:

• 2 CONVENTIONS – ON THE FRAMEWORK CONVENTION ON CLIMATE CHANGE & ON BIOLOGICAL DIVERSITY

• ORGANISED BY UNCED (UNITED NATIONS CONFERENCE ON ENVIRONMENT & DEVELOPMENT)


UNITED NATIONSINTERNATIONAL LAW PERSPECTIVE ON

CLIMATE CHANGE• HOW IT WORKS – • UNITED NATIONS GENERAL ASSEMBLY• INTERNATIONAL LAW COMMISSION• ADOPTING THE DRAFT BY ILC• ADOPTING THE RESOLUTION BY THE UNITED NATIONS

GENERAL ASSEMBLY• DIPLOMATIC CONFERENCES FOR DISCUSSIONS – ADOPTING,

SIGNING CONVENTIONS BY STATE MEMBERS OF THE COP – PLEDGES - COMMITMENTS

•


BILATERAL V MULTILATERAL TREATIES

• LAW MAKING TREATIES• BINDING COMPONENT OF THE LAW• JURISDICTION (ICJ – JUDICIAL ORGAN) –

ADVISORY OPINION / CONTENTIOUS ISSUES


CLIMATE CHANGE & THE RULE OF LAW

• BRITISH EXPERIENCE – CARTA MAGNA (COMMON LAW WORLD)

• CLIMATE AGREEMENT IN PARIS (MAGNA CARTA 1300) – UN FRAMEWORK CONVENTION ON CLIMATE CHANGE

• COMMITMENTS MUST HAVE LEGAL FORMS – THE ROLE OF THE COURTS TO ADMINISTER THE CLIMATE JUSTICE

• WE NEED PREPAREDNESS TO HELP JUDICIAL OFFICERS


SOME OF THE INTERNATIONAL ACTORS ON CLIMATE CHANGE & ADAPTATION

COMPONENTS• UNEP• WORLD BANK• GOVERNMENTS (UK & USA)• IFM• UNESCO• WHO• UNICEF• FAO• IFAD• WFP• UNCEP• WMO – WORLD METEOROLOGICAL

ORGANIZATION

CLIMATE CHANGE LAW• ICJ• INTERNATIONAL

ENVIRONMENTAL LAW• ICL• CIVIL SOCIETY• DIPLOMATS• IPCC- INTERGOVERNMENTAL

PANEL FOR CLIMATE CHANGE


INTERNATIONAL COURT OF JUSTICE

• THE COURT MAY NOT BE WELL PLACED TO GIVE AN OPINION ON THE CLIMATE CHANGE LAW – SCIENCE

• ADVISORY OPINION IS UNLIKELY PROSPECT• THE COURT (ICJ) – “COURT DECLINES TO DEAL

WITH SCIENTIFIC PROBLEMS” • ADVISORY OPINION ON CLIMATE CHANGE MAY

NOT BE THE CASE – THE COURT DECLINES TO TAKE DECISION


THE NATURE OF INTERNATIONAL LAW AND ITS LIMITATIONS

• THE INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA MAY BE BETTER IDEAL OTHER THAN THE ICJ

• INTERNATIONAL TRIBUNALS ARE MORE IDEAL• CHANGES OF INTERNATIONAL PUBLIC OPINION –

THE POPE’S ENCYCLICAL LETTER USES MORAL APPROACH TO CLIMATE CHANGE

• COLLECTIVE COMMITMENT• NATIONAL COURTS ARE STARTING TO ACT ON

CLIMATE CHANGE – SCIENTIFIC EVIDENCE USED – THE NETHERLANDS


INTER-GOVERNMENTAL ORGANIZATIONS

• JUNE 1992 THE RIO CONVENTION WAS ADOPTED – ARTICLE 2

• 1997 KYOTO PROTOCOL• CONCUNI IN MEXICO – DEEP CUT – REDUCING

GREENHOUSE GAS EMISSION BELOW 2 DEGREES CELCIUS

• SOME EMISSIONS HAVE BEEN AVOIDED – SOME POLICIES AND ACTIONS HAVE BEEN TAKEN

• BUT MUCH MORE IS NEEDED


• 2014 INTER-GOVERNMENTAL MEETING / CHANGES HAVE BEEN NOTED/ SEA LEVEL HAS RISEN/ ICE-MELTING HAS BEEN REDUCED/SEVERE PERVASIVE AND IRREVERSIBLE CHANGE

• PRECIPITATION EVENTS WILL BE FREQUENT/ THE OCEAN WILL CONTINUE TO WARM AND IT WILL CONTINUE FOR CENTURIES

• MAGNITUDE OF WARMING INCREASES• HIGH RISKS WILL BE SEVERE• LEGAL PROOF IS REQUIRED – STAND OF

REASONABLE DOUBT/ SWISS LAW


• THE EARTH IS AT RISK ACCORDING TO SCIENTIFIC EVIDENCE – SOMETHING IS HAPPENING AND MUST BE ADDRESSED BY SOME LEGAL FRAMEWORK

• INTERNATINAL LEGAL ORDER – SOVEREIGNTY OF STATES• CLIMATE CHANGE PERMEATES NATIONAL BOUNDARIES –

JURISDICTION• OZONE LAYER• OCEANS• CLIMATE CHANGE IS THE SOURCE OF PROBLEMS THAT ARE

BROAD AND EXPANSIVE• EACH PERSON IS CONTRIBUTING TO CLIMATE CHANGE

AND EACH ONE WILL BE AFFECTED BY THE DESTRUCTION OF OZONE LAYER

• ROWLAND – AN AMERICAN SCIENTIST (CHEMISTRY)


• ELUSIVE EFFORTS FROM THE INTERNAITONAL COMMUNITY AND THE INTERNATIONAL COURTS AND TRIBUNALS

• INTERNATIONAL COURTS AND TRIBUNALS ARE ALMOST 40 WHOSE CONCERN WITH INTERNAITONAL DISPUTES

• TRIALS – USA SUPREME COURT – JUDGMENT OF LAW IS CONSIDERING THE SCIENTIFIC EVIDENCE ON CLIMATE CHANGE

• JURISPRUDENCE• SOME COURTS ARE STRONG BUT SOME ARE

WEAK IN THE AREA OF CLIMATE CHANGE


EXPECTATIONS

• COURTS OF LIMITED JURISDICTION• COURTS OF GENERAL JURISDICTION• INTERNATIONAL COURT – RAISES

CONSCIOUSNESS ON THE MATTER AND ON WHAT NEEDS TO BE DONE/ THEY ENHANCE CONSCIOUSNESS AND PROMOTES LEGITIMACY

• THE ISSUE OF CLIMATE CHANGE HAS HANDLED LIMITED CLIMATE CHANGE ISSUES


• RIGHTS TO LIFE• RIGHTS OF MIGRATION• REFUGEE RIGHTS• HUMAN RIGHTS TO ACCESS FOOD/ HEALTH• LIVELIHOOD• ECONOMIC DEVELOPMENT


VIOLATIONS OF CLIMATE CHANGE LAWS

• WTO – ISSUES OF CLIMATE CHANGE DISPUTES SHALL COME ADVERSLY TO ARBITRATIONS

• CLIMATE CHANGE ARISES AS A SUBJECT OF VIOLATIONS OF HUMAN RIGHTS

• INTERNATIONAL COURT WITH MORE GENERAL JURISDICTIONS

• THE INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEA AT HUMBURG (GERMANY) – MORE LIMITED ISSUES RELEVANT TO OCEANS/ PREVENTING SEA LEVEL RISE


ICJ

• THE ICJ LOOKS AT A BROADER SCOPE ON WHICH CONSCIOUSNESS IS FORMED –

• THE INTERNATIONAL COURT HAS PLAYED THIS FUNCTION – THE ENVIRONEMT IS NOT AN ABSTRACTION BUT A REAL SPACE WHICH PROVIDES SPACE FOR HUMANS… A STATE MUST RESPECT THE ENVIRONMENT OF OTHER STATES (1996) – ADVISORY OPINION IS MEANT TO PLAY A USEFUL ROLE IN CONTRIBUTING TO GENERAL CONSCIOUSNESS USED BY STATES, CORPORATES, NGOs, GOVERNMENTS AND INDIVIDUALS/


• SUCH ADVISORY OPINIONS JUDGMENTS HELP TO CHANGE THE BEHAVIOUR – FOR INSTANCE, WHALING IN JAPAN.

• 2004 – ICJ CASES = WHALE MEAT PRODUCTS


CLIMATE CHANGE

• THE QUESTION OF STANDING- WHO CAN BRING A CASE BEFORE THE INTERNATIONAL COURT (ICJ) STARE DECISIS

• CLIMATE CHANGE BROUGHT TO BE HEARD BY AN NGO IN THE NETHERLANDS WAS HEARD BECAUSE THE ORGANIZATION HAD INTEREST.

• AT INTERNATIONAL LAW, AN NGO OR ANY PRIVATE BODY CANNOT BRING A CASE BEFORE THE COURT FOR CONSIDERATION


CONTENTIOUS CASE

• STATE VERSUS STATE = • ANY STATE CAN BRING A PROCEEDING AGAINST

ANOTHER STATE PARTY• CUBA AND THE NETHERLANDS ACCEPTED THE

JURISDICTION OF THE COURT TO BRING A CASE ON CLIMATE CHANGE

• AUSTRALIA V JAPAN ON WHALING (ICJ) … IT WORKED

• THE RULING GIVES A CASE FOR CAUSE FOR ACTION


• SUCH ADVISORY OPINION PROVIDE TITLES FOR NEGOTIATIONS –

• CONTENTIOUS CASES CAN AS WELL PROVIDE TITLES FOR NEGOTIATIONS AT INTERNATIONAL PLATFORM

• E.G. LAW OF THE SEA CONVENTIONS (UNCLOS) OF 1982 – AFRICAN SUB-REGION FISHING REQUIREMENTS / REQUESTS FOR ADVISORY OPINION

• THE ICJ CAN REJECT ANY REQUEST OR FAIL TO RESPOND/


LEGAL FACTS

• CASE OR QUESTIONS BROUGHT TO THE COURT MUST HAVE IN ESSENCE MATERIAL ISSUES OF SCIENTIFIC OF TECHNICAL NATURE/ JUDGES HAVE THE EXPERTISE ON THIS

• ANTHROPOGENIC GREENHOUSE GAS EMISSIONS IS A SCIENTIFIC OPINION/ BUT IT IS ANOTHER ISSUE FOR THE ICJ TO GIVE ITS LEGAL ADVISORY OPINION

• THERE IS A BROAD CONSENSUS FOR THE COURT TO PROVIDE ADVISORY OPINION ON SCIENTIFIC FACTS BUT THIS IS NOT FREE FROM DISPUTES


• THE CONDUCT OF THE INTERNATIONAL COURT CAN PROVIDE A PLATFORM FOR FUTURE OPINION FORMING

• JUDGMENTS GIVEN CAN BE OF SCIENTIFIC INTEREST

• THE ICJ CAN AS WELL DECLINE NOT TO GIVE AN OPINION

• CROSS EXAMINATION BY SCIENTIFIC EXPERTS FROM AUSTRALIA AND JAPAN – SCIENTIFIC EXPERTS ACTING AS COUNSELS IN COURT TO PROVIDE EVIDENCE – THE CONCLUSION TAKEN BY THE COURT HAS PROVED THAT THE COURT HAS POTENTIALLY ROLE TO PLAY IN CLIMATE CHANGE


THE LAW

• THE WHOLE TRUTH WILL DEPEND ON THE WORDING OF THE LAW WHETHER IT CAN BE INTERPRETED BY THE COURT OR NOT

• IT WILL BE USEFUL TO DWEL SO MUCH IN THE PAST OR HISTORICAL REALITY

• ADVISORY OPINION IS TO BENEFIT THE INTERNATIONAL COMMUNTIY ON WHAT IS TO BE DONE OTHER THAN WHAT WAS DONE


INTERNATIONAL JUSTICE

• WHAT IS THE LAW APPLICABLE TO THE MATTER? CLIMATE CHANGE

• THE COURT MAY BE INVITED TO PROVIDE AN OPINION ON FUTURE DUTY AND OBLIGATIONS OF THE GOVERNMENTS

• THE COURT COULD BE ASKE DTO DEAL WITH THE OBLIGATIONS UNDER TREATY SUCH AS KYOTO PROTOCOLS

• THE STATES HAVE A DUTY TO ACT IN A WAY TO PREVENT THE CLIMATE CHANGE AND REDUCE GLOBAL WARMING


INTERNATIONAL WRONGFUL ACT

• RATIFICATION SHALL ASSIST IN HOLDING STATES LEGALLY RESPONSIBLE.

• THE ISSUE OF STATE RESPONSIBILITY RAISES MANY QUESTIONS

• MANY STATES MAY CONTRIBUTE TO INTERNATIONAL WRONGFUL ACT

• WHAT IS EQUITABLE IN THAT ACT? THE COURT IS CONCERNED WITH WHAT IS EQUITABLE.


• LAW CAN PLAY A ROLE IN CLARIFYING SOME DOUBTS AND CONVINCING THE INTERNATIONAL ACTORS

• THE INTERNATIONAL COURT / TRIBUNAL CAN ADD VALUE TO THE STRUGGLE TO MITIGATE CLIMATE CHANGE AND ENHANCE ADAPTATION

• FOR INSTANCE – FISHERY CONSERVATION / LIABILITY – ADVISORY OPINION HAS BEEN WELL RECEIVED AND SHARED

• THE COURT TRACK RECORD IS CLEAR – WHALING CASE

• PROLIFERATION OF WEAPONS OF MASS DESTRUCTION


• CHINA AND USA COMING TOGETHER• INTERNATIONAL TRIBUNAL FOR THE LAW FOR

THE SEA• THE COURT CAN MAKE A POSITIVE

CONTRIBUTION TO THE DEVELOPMENT OF THE CLIMATE CHANGE LAW


CHALLENGES POSED BY THE CLIMATE CHANGE

• DISPUTES LINKED TO CLIMATE CHANGE• WORKABLE AND EFFECTIVE SOLUTION FOR THE

CLIMATE CHANGE LAW• BUILDING ON DOMESTIC COUNTERPARTS – • WORKABLE SOLUTIONS RATHER THAN POINTING

FINGERS AND BLAMES• MATTERS RELATED TO OBLIGATIONS OF STATES TO

CONDUCT THEMSELVES WITHIN THE LAW – THE JUDICIAL ORGANS ARE WELL PLACED TO DEAL WITH LEGAL QUESTIONS


THE SUPREME COURT OF THE USA

• THE JUDGMENTS AND OPINIONS OF THE COURT ARE VERY ESSENTIAL IN SUPPORTING NEGOTIATIONS ON CLIMATE CHANGE EFFECTS AND HOW TO MITIGATE SUCH EFFECTS

• FAILURE TO HAVE A PROPER FRAMEWORK IN PLACE CAN HAVE TERRIBLE CONSEQUENCES


LEGISLATIVE MEASURES IN USACLIMATE SECURITY ACT 2007

• JOSEPH LIEBERMAN & JOHN WARNER (SENATORS) – SPONSORED THE BILL IN THE SENATE

• FEDERAL CAP & TRADE SYSTEM IN THE USA – FEDERAL CLIMATE CHANGE LAW

• THE BILL DID NOT PASS


ELEMENTS OF THE ACT• The primary features of the CSA:• " Cap on greenhouse gases ("GHG") emitted by• many sectors of the US economy applying from• 2012 to 2050.• " Financial incentives for deployment of new• technologies to address climate change.• " Utilization of an emission trading program.• Under the CSA each covered facility is required to• surrender at the end of each year the number of• emission allowances equalling the CO2 equivalents• that the facility emitted in that year. The cap on• emissions will affect a number of facilities that emit


THE EU EMISSIONS TRADING SCHEME


PREVENTION

• AGENDA CASE – THE NETHERLANDS COURT RULING – CONTROLLING THE TEMPERATURE TO BELOW 2 CELSIUS DEGREES TARGET HAS BEEN MET

• CARBONDIOXIDE• CARBON EMISSIONS


PLAYERS / ACTORS IN THE CLIMATE CHANGE

• (PREVENTION AGENDA BASED ON THE NEED OF THE NETHERLANDS)

• ICJ – HAS A ROLE TO PLAY IN SCIENCE – OBLIGATIONS TO REDUCE EMISSIONS/ CO2/CFC

• GOVERNMENTS• CORPORATES• MULTINATIONALS• ORGANIZATIONS / NGOs• OTHER PRIVATE ACTORS ARE INVOLVED• (LORD ARTKIN) – “IN CLASH OF ARMS THE LAWS ARE NOT SILENT)

– 1941.• INTERNATIONAL COURTS SHOULD NOT BE SILENT ON THIS ISSUE…


COMMENTS

• THERE IS DIFFICULTY ON THE PROBLEM WHICH GLOBAL WARMING AND CLIMATE CHANGE PRESENT

• THE OZONE LAYER IS THE ISSUE AT HAND – DEPLETION OF THE LAYER REQUIRES COLLECTIVE ACTION/ ANTHROGENIC GREENHOUSE GAS EMISSION REQUIRES JOINT EFFORT AND CONSENSUS

• WE SHOULD NOT EXPECT SO MUCH FROM THE INTERNATIONAL COURTS


CASE LAW

• DOMESTIC JURISDICTIONS• DIFFERENT LEGAL TRADITIONS IN DIFFERENT

SOCIETIES• CLIMATE CHANGE NEGOTIATIONS IS VERY MUCH

WORK IN PROGRESS – WHAT IS AT STAKE IS THE SPIRIT

• LEGAL DEVELOPMENT IS FACED WITH CRITICAL POLITICAL ISSUES/ GOVERNMENT POLICIES (AUSTRALIA) … IT DEPENDS ON THE GOVERNMENT AND ITS LEADERSHIP


AMERICAN SUPREME COURTCONNECTICUT CASE

• THE POSITION OF THE COURT ON SCIENTIFIC DECISIONS

• COAL MINING / COAL EXTRACTION OPERATIONS• GREENHOUSE GAS EMISSIONS• COAL MINING / CHINA• IS REFERENCE TO INTERNATIONAL COMMUNITY A

REFERENCE TO INTERNATIONAL COURT?• THE COURT SEEKS TO GRAPPLE WITH THE SCIENCE

– OF LATE THERE IS CONSENSUS BY THE COURT TO ADMIT EXPERT EVIDENCE AS PROOF


• LEX SPECIALIS PRINCIPLE• THE NEGOTIATIONS – THE COURT CANNOT

INVENT THE INTERNATIONAL LAW BUT RELIES ON WHAT HAS BEEN RATIFIED AND IS BINDING


CONTEXTUALIZATION

• APPLICATION OF GENERAL INTERNATIONAL LAW TO MITIGATE CLIMATE CHANGE

• THE NATURE OF OBJECTIONS TO CLIMATE CHANGE THEORIES

• NEGOTIATIONS ARE EFFECTIVE – PARIS NEGOTIATION DEC 2015 / MANY MORE NEGOTIATIONS

• VULNERABLE NATIONS / NEGOTIATIONS ARE LACKING MORLA AND LEGAL ASPECTS – THERE IS NO SENSE OF OBLIGATIONS (LEGAL) AND CONCERN FOR THE VULNERABLE (MORAL).


• BOTTOM UP ARCHITECTURE • REGIONAL ECONOMIES – SOUTH AFRICA AND

BRAZIL HAVE MADE THEIR CONTRIBUTIONS TO AGREED TEMPERATURE LIMIT

• CONTRIBUTIONS FROMS STATES ARE NOT NEGOTIATED BUT AGREED/

• THERE IS AMBITION• THERE IS DISCRETION RELATED TO NATIONAL STATES

AUTONOMY IN MITIGATION AND ADAPTATION TO CLIMATE CHANGE

• EQUITABILITY – CONSIDERATION OF VULNERABLE STATES / BOTTOM UP MUST TAKE INTO ACCOUNT IF THE AGREEMENT IS FAIR OR NOT


• PROBABILITY V CERTAINTY OF THE CLIMATE CHANGE CONSEQUENCES

• CUSTOMARY INTERNAITONAL LAW / GENERAL INTERNATIONAL LAW/ LEX SPECIALIS

• THE COURT CAN CLARIFY THE LEGAL FRAMEWORK INVOLVED IN CLIMATE CHANGE

• OBLIGATIONS UNDER DISCUSSION MUST BE CLEARER AND LESS AMBIGUOUS OR TOO SCIENTIFIC


CONCEPT OF OFFENCE IN THE CLIMATE CHANGE AND ADAPTATION PROGRAMME

• HAS ANYBODY DIED DUE TO CLIMATE CHANGE? DISCUSS –

• HAS ANY TERRITORY BEEN LOST DUE TO RISE OF THE SEA LEVEL OR NOT?

• HAS GLOBAL WARMING CAUSED ANY DAMAGE OR LEGAL INJURY?

• IS THERE ANY LEGAL CLARITY IN THE AREA OF CLIMATE CHANGE?

• WHAT IS THE STAND-POINT OF INTERNATIONAL HUMAN RIGHTS LAWYERS ON CLIMATE CHANGE?


CRIMINAL & CIVIL PROCEEDINGS ON CLIMATE CHANGE JUSTICE SYSTEM

• IS THERE ANY OFFENCE UNDER THE CRIMINAL PROCEEDINGS OF CLIMATE CHANGE? DISCUSS

• WE USUALLY TALK OF DAMAGES AND PROBABLE RISKS TO HUMANITY AND NATURE IN GENERAL – ARE THERE INJURIES?


KENYAN ENVIRONMENTAL LAW & POLICIES

• EMCA 1999• ENVIRONMENTAL IMPACT ASSESSMENT POLICIES• NEMA• HIGHT COURT OF ENVIRONMENT AND LAND • KENYAN SHOW CASE OF CLIMATE CHANGE DAMAGES /

LAND LAW (LAND USE/ WATER/ IRRIGATIONS/ DIGGERS/ RIVERS/ FORESTS CONSERVATIONS)

• REDUPLICATION OF ROLES AND DUTIES – TOO MANY INSTITUTIONS DEALING WITH SIMILAR MANDATES ON ENVIRONMENTAL ISSUES – TOO MANY PLAYERS


CHALLENGES ON ADJUDICATION ON CLIMATE CHANGE ISSUES

• GLOBAL BROKERAGE – DOMESTIC CONTEXT/ ISSUES/ CANADA/ AMERICA/ AUSTRALIA

• CLEAN ENERGY IMPLEMENTATION (KYOTO PROTOCOL)• BIGGER SYSTEMIC ROLE ISSUES – INTERNATIONAL

JUDGES MUST BE TO THE TASK TO PROVIDE SOLUTION• THE NATURE OF THE INSTITUTION WHICH IS

ADJUDICATING MATTERS IN DISREGARD TO WHETHER IT IS INTERNATIONAL OR NATIONAL – THE BOTTOM LINE IS WHAT EXTENT WILL THE COURT DECISION GIVE EFFECT?


INTERNATIONAL COURT/ TRIBUNALS ARE BETTER PLACED THAN DOMESTIC COURTS• IT IS NECESSARY TO LOOK AT IMPLEMENTATION

STRATEGIES ADOPTED BY DIFFERENT STATES – • OTHER PARTS OF LEGISLATION ARE EQUALLY

IMPORTANT WHEN WE CONSIDER CLIMATE CHANGE ISSUES

• FOR INSTANCE – AIR, WATER AND LAND POLLUTIONS/


LEGISLATIONS: CIVIL LAW

• CIVIL OFFENCES – OFFENCES DIRECTED TO PRIVATE INDIVIDUALS


• LAW OF CONTRACT• LAW OF TORT (NUISANCE/

CARELESSNESS/NEGLIGENCE)• LAW OF TRUST• INTELLECTUAL PROPERTY LAW (IPL)• LAW OF EQUITY• PROPERTY LAW• BUSINESS / COMMERCIAL LAW• MARITIME LAW• ADMINISTRATIVE LAW

(POLICIES/REGULATIONS/BYLAWS/ PERMITS AN LICENCES/ ASSESSMENTS/ INSTITUTIONS)


CRIMINAL ASPECT OF VIOLATIONS OF CLIMATE CHANGE LAWS

• THE MAIN TOPIC SHOULD BE ON HUMAN RIGHTS LAW – “COMMON HUMANITY”

• NATURAL LAW THEORY AND CONCEPTS• PUBLIC INTERNATIONAL LAW – GENERAL

PRINCIPLES OF INTERNATIONAL LAW (JUS COGENS / PACTA SUNT SERVANDA); CUSTOMARY INTERNATIONAL LAW/ TEATIES (CONVENTIONS/PROTOCOLS/ACCORDS/PACTS)

• LAW OF INTERNATIONAL ORGANIZATIONS (UN)


REGIONALIZATION OF THE CLIMATE CHANGE TREATIES

• AFRICAN UNION AND ITS STAND ON CLIMATE CHANGE

• IGAD• COMESA• EAC• MAGREB• ECOWAS


TRANSNATIONAL CORPORATIONS

• MULTINATIONALS -• COMPANIES• WORLD TRADE ORGANISATION• G7 – WORLD ECONOMIC FORUM• G20- WORLD ECONOMIC FORUM• WORLD SOCIAL FORUM (INGOs & NGOs)


POLICIES, REGULATIONS, DOMESTICATION

• RATIFICATION PROCESS (TREATY LAW)• DOMESTICATION PROCESS (LEGISLATIONS) –

EACH MEMBER STATE TO IMPLEMENT THE TREATIES

• UN – REGULATORY MECHANISM / MONITORING / ASSESSMENT/ REPORTING


SANCTIONS

• INTERNATIONAL SANCTIONS (SOFT LAW) • EMBARGOES – ECONOMIC EMBARGO• POLUTER PAYS – PRINCIPLE AND ITS EFFECTS• PRECAUTIONARY PRINCIPLE –• EARLY WARNING • AWARENESS CREATION


ROLE OF THE ARBITRATIONS IN CLIMATE CHANGE

CONFLICT OF LAWS• INTERNATIONAL COMMERCIAL ARBITRATION (ICA)• INTERNATIONAL CHAMBERS OF COMMERCE (ICC)• ARBITRATIVE JUSTICE AND ITS RELEVANCE TO

CLIMATE CHANGE• CONTRIBUTION OF WORLD TRADE IN CLIMATE

CHANGE (WTO)• INTERNATIONAL CODE OF ARBITRATION (ICA)• RIGHT TO DEVELOPMENT AND ITS CHALLENGES

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