Virtual Short Course: Climate Change Law5, 12, 19, 26 October, 2, 9, 16, 23 November 2021

13.00 – 15.00 UK time

British Institute of International and Comparative Law

Part 1 – The Fundamentals of Climate Change Law

Session 1 – 5 October United Nations climate change regime Ivano Alogna

Session 2 – 12 October Principles of climate change law Philippe Cullet

Session 3 – 19 October Climate change legal mechanisms Michael A. Mehling

Session 4 – 26 October Climate change litigation Joana Setzer

Part 2 – The Intersections of Climate Change Law and Other Areas

Session 5 – 2 November Territory, sovereignty and climate change Constantinos Yiallourides

Session 6 – 9 November Migration and climate change Irene Antonopoulos

Session 7 – 16 November Business, human rights and climate change Irene Pietropaoli and Lise Smit

Session 8 – 23 November Trade, investment and climate change Markus W. Gehring

Course Timetable

United Nations Climate Change Regime 5 October 2021

Ivano AlognaArthur Watts Research Fellow in Environmental and Climate Change LawBritish Institute of International and Comparative Law

Outline

1. The Complexity of the International Climate Change Regime

2. The Evolution of the UN Climate Change Regime

1. The Complexity of the International Climate Regime: Science, (Geo)Politics and International Law

The complexity of law?

• «The law is not only the norm, nor the institution or the legal system. It is all of this at once, but also the history and society with which it is inextricably linked » (S. Cassese, Il mondo nuovo del diritto – Un giurista e il suo tempo, Bologna : Il Mulino, 2008, p. 196)

What is complexity?

• “The fabric of events, actions, interactions, feedbacks, determinations, hazards, which constitute our phenomenal world” (E. Morin, Introduction à la pensée complexe, Paris : ESF éd., 1990, p. 21)

• Both a problem-word “as the complexity is inextricable, linked as it is to the questions of coherence and completeness that condition the legitimacy and predictability of legal systems”, and a solution-word “because complexity seems inevitable in the context of a globalization which multiplies the interdependencies between legal systems, and more broadly between national and international normative spaces” (M. Delmas-Marty, « La tragédie de trois C », inM. Doat, J. Le Goff et Ph. Pedrot (dir.), Droit et complexité. Pour une nouvelle intelligence du droit vivant, Rennes : Presses Universitaires de Rennes, 2007, p. 8.)

• “Complexity is a mode of representation of the universe” (A.-J. Arnaud e M.J. Fariñas Dulce, Introduction à l’analyse sociologique des systèmes juridiques, Bruxelles : Bruylant, 1998, p. 234)

3 pillars: science, (geo)politics and international law

The scientific pillar

Climate Change:‘Climate change’ means a change of climate which is aBributed directly or indirectly to human acCvity that alters the composiCon of the global atmosphere and which is in addiCon to natural climate variability observed over comparable Cme periods. (Ar@cle 1, United Na@ons Framework Conven@on on Climate Change, UN FCCC)

The Greenhouse effect

Greenhouse gases (GHGs)

• “Greenhouse gases” means those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation. (art. 1, UN FCCC)• water vapor (H20), • carbon dioxide (C02), • methane (CH4), • nitrous oxide (N2O), • ozone (O3).

GHGs only due to human activity

• hydrochlorofluorocarbons (HCFC-22), • chlorofluorocarbons (CFCs), • tetrafluoromethane (CF4) • sulphur hexafluoride (SF6)

Extreme weather events and other consequences

• Heat waves• Floods• Droughts• Melting of glaciers• Increase in sea levels• Redistribution of species and vectors of diseases, etc

The Human Cost of Disasters 2000-2019: https://www.undrr.org/publication/human-cost-disasters-overview-last-20-years-2000-2019

Intergovernmental Panel on Climate Change (or IPCC)

• Created in 1988 by WMO, UNEP and the International Council for Science (ICSU)• Its purpose: to provide detailed assessments of the state of scientific,

technical and socio-economic knowledge on climate change, their causes, their potential repercussions and countermeasures.• In 2007: Nobel Peace Prize• In 2014: Fifth assessment report

IPCC reports

• 1st report (1990): “It will probably be at least 10 years before observations allow us to establish with certainty that there has been an increase in the greenhouse effect”;

• 2nd report (1995): “the effects observed (...) agree to indicate a perceptible influence of man on the climate”;

• 3rd report (2001): “more recent and more conclusive evidence allows us to say that most of the warming observed over the last fifty years is due to human activities”;

• 4th report (2007): “the warming of the climate system is unequivocal” and that it is "very probable" that human activities are the cause of “most of the rise in average temperature of the globe observed since the middle of the 20th century”;

• 5th report (2013): “the warming of the climate system is unequivocaland, since the 1950s, many of the changes observed have been unprecedented in decades or even millennia (…) It is extremely likelythat the influence of man is the main cause of the warming observed since the middle of the 20th century”.

Global Warming of 1,5 °C

See online:

• IPCC, 2018: Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-DelmoJe, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. MaJhews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)], 24 p.

hJps://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf

The (geo)political pillar

“Today, to understand the world, you have to do appeal to history, geography, sociology, law, economics, political science, etc. The term geopolitics has entered common parlance, it is more and more used, instead of international relations So let's admit that geopolitics is a way of understanding the world.” (P. Boniface, La géopolitique, 5ème édition, Paris : Eyrolles, 2018, p. 35 )

Intra- and inter-generaIonal equity

“In the long run climate change is a massive threat to human development and in some places it is already undermining the international community’s efforts to reduce extreme poverty.” (Human Development Report 2007/2008, Fighting climate change: Human solidarity in a divided world, New York, 2007)

Necessary internaIonal cooperaIon

• Harmonised policies to fight climate changev for competition reasonso such as risks of “carbon leakage” (businesses)o Risk of “race to the bottom”(Countries)o Risk of “free-rider” (Countries)

Climate emergency

• Now at the top of the poli@cal and diploma@c agenda (geopoli@cal) • Evidence from IPCC reports (environmental)• The “Stern Review” on The Economics of Climate Change (economical):

“The costs of stabilising the climate are significant but manageable; delay would be dangerous and much more costly” (hap://www.lse.ac.uk/GranthamIns@tute/publica@on/the-economics-of-climate-change-the-stern-review/)

The legal pillar

• From the “international climate governance” (political concept)

• The dictionary defines “Global Governance” as a “set of transnational regulations put in place to face the economic and environmental challenges of globalization”.

• To the “international climate regime” (legal concept)

• as a set of principles, norms, rules and procedures of implicit or explicit decisions, around which the expectations of the actors converge in a specific domain and which can help to converge behaviors(S.D. Krasner (ed.), International Regimes, Ithaca: Cornell University Press, 1983)

2. The Evolution of the UN Climate Regime:Rio de Janeiro, Kyoto and Paris

3 stages of evolution

1. UN Framework Conven@on on Climate Change

2. Kyoto Protocol3. Paris Agreement

1) The United Nations Framework Convention on Climate Change

Origins:• Framework Convention for the Protection of

the Ozone Layer (Vienna, March 22, 1985) –idea• 1st report IPCC – scientific basis• UN General Assembly resolution 45/212 of

21 December 1990 – legal basis for the negotiation process

UNFCCC

• Signature in 1992

• entered into force in 1994

• 197 Parties• “Framework Convention”: “a treaty instrument which lays down the principles which

should serve as the basis for cooperation between States Parties in a given field, while leaving it to them to define by separate agreements [the protocols], the modalities and the details of the cooperation, providing, where appropriate, one or more institutions suitable for this purpose.”(A.Ch. Kiss, « Les traités-cadre : une technique juridique caractéristique du droit international de l'environnement », Annuaire Français de Droit International, 1993, 39, pp. 792-797, not. 793)

UNFCCC - objective

• “ulCmate objecCve”: to “achieve, in accordance with the relevant provisions of the ConvenCon, stabilizaCon of greenhouse gas concentraCons in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” and to do it “within a Cme frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food producCon is not threatened and to enable economic development to proceed in a sustainable manner”. (art. 2)

UNFCCC - principles

• precau@onary principle (art.3-3)• principle of intergenera@onal equity (art. 3-1)• principle of common but differen@ated responsibili@es (art . 3-1)

UNFCCC – Obligations of the Parties

• 3 levels:

1. Obligations incumbent on all parties: reduction of emissions (art. 4-1); obligations to collect and communicate information (art. 12-1);

2. 2. Obligations incumbent only on developed States and States in transition ("Partiesincluded in Annex I"): reduction of emissions (art. 4-2 and art. 4-6 with regard to the flexibilities granted to States in transition); communication of additional information (art. 12-2);

3. 3. Obligations in matters of assistance incumbent only on developed States (“Parties included in Annex II”) (arts. 4-3, 4-5 and 12-3), in addition to the obligation to be at the forefront of the fight against climate change and its harmful effects.

UNFCCC – InsItuIonal aspects

• Conference of the Parties (art. 7)• Secretariat (art. 8)• the Subsidiary Body for Scientific and Technological Advice (art. 9)• the Subsidiary Body for Implementation (art. 10)• the Green Climate Fund (art. 11 – since 2010)

2) Kyoto Protocol

Origins:

• Art. 17 UNFCCC

• Berlin Mandate (1995)

vAdopted in Japan on December 11, 1997 vAccording to art. 25(1) of the Protocole: « this

Protocol shall enter into force on the nineNeth day aOer the date on which not less than 55 ParNes to the ConvenNon, incorporaNng ParNes included in Annex I which accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the ParNes included in Annex I, have deposited their instruments of raNficaNon… » –> in 2005

Kyoto Protocol – reduction obligations and flexible instruments

• Applica@on of the principles of "common but differen@ated responsibili@es" and of “historical responsibility” • GHG emissions reduc@on obliga@ons: only for the 38 industrialized

countries + European Community (Annexe B)3 Market (or flexible) mechanisms:• Art. 6 Joint implementaCon• Art. 12 Clean Development Mechanism• Art. 17 Emission Trading

GHGs considered by the Protocole

Listed in its Annex A:• carbon dioxide (CO2),• methane (CH4), • nitrous oxide (N20),• hydrofluorocarbons (HFCs), • perfluorocarbons (PFC), • sulfur hexafluoride (SF6)

3) Paris Agreement

• Decision of the COP 21 (decision 1/CP.21) + the Paris Agreement in annex

• A Protocol?• It follows negotiations held at the Paris Climate

Conference (COP21) of the UUNFCCC• Signed by 175 countries on April 22• Entered into force on November 4, 2016, after

being ratified by at least 55 states representing 55% of GHG emissions

• Today, 196 countries have signed it (around ten less have ratified it)

Parties’ objectives

• Art. 2 Paris Agreement: “Holding the increase in the global average temperatureto well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that thiswould significantly reduce the risks and impacts of climate change”

• “AdaptaXon” component is more pronounced• “Green Climate Fund”: 100 billion per year unXl 2025 • Common objecXve: a global framework for cooperaXon and generalized solidarity• Principle of progression within a framework of transparency• Need to disinvest from fossil fuels

Differentiated commitments

In relauon to the state of their development (art. 4):

• Developed countries: reducuon objecuve emissions in absolute figures (“should conNnue taking the lead by undertaking economy-wide absolute emission reducNon targets” )

• Developing countries: requests for “miugauon efforts” (“should conNnue enhancing theirmiNgaNon efforts, and are encouraged to move over Nme towards economy-wide emissionreducNon or limitaNon targets in the light of different naNonal circumstances”)

• “Vulnerable countries”: specific measures (“The least developed countries and small island developing States may prepare and communicate strategies, plans and acNons for low greenhouse gas emissions development reflecNng their special circumstances”)

Voluntary contributions

• Nationally determined contribution (art. 4):« Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. Each Party's successive nationally determined contribution will represent a progression beyond the Party's then current nationally determined contribution and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. »