Principles Climate Change Law

Philippe Cullet, pcullet@soas.ac.uk

BIICL, Virtual Short Course – Climate Change Law12 October 2021

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Outline

• Principles of the climate change regime – Central role despite being mostly non-binding (formal source is art. 3 UNFCCC)

• Principles analysed today:• Sovereignty, common concern and beyond:

bases for addressing climate change• Equity and differential treatment – Central role

of South-North dimensions• Precautionary principle – Central environmental

principle to address climate change• Sustainable development – Framing notion

bringing in an inter-disciplinary perspective to the regime

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Role of principles in the climate change regime

• Principles are usually non-binding but play a central role in environmental law

• In a ‘framework convention’ like the UNFCCC, principles:• provide authoritative guidance for interpretation or

implementation of the treaty• define parameters for new obligations and can facilitate

further negotiations on more detailed commitments• Raise an expectation ‘good faith’ that they will be

adhered to the extent possible (though non-binding)• The negotiations leading to the Paris Agreement confirmed

the importance of principles. In particular, the principle of common but differentiated responsibilities may have been sidelined in Paris if it was not central in the UNFCCC

‘In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following:’ [UNFCCC, art 3]

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1. Sovereignty

• In keeping with the traditional structure of international (environmental) law, the climate regime is structured around sovereign interests

• Implications: • Legal equality/absence of hierarchy between states• Reciprocity of obligations• Concerns reflected mostly those of areas under

sovereign jurisdiction (cf global commons and irony of climate change as as the most global issue)

• Linked to sovereignty is the duty of good neighbourlinessand cooperation (within the framework of sovereign interests, hence limited)

‘Reaffirming the principle of sovereignty of States in international cooperation to address climate change’. [UNFCCC Preamble]

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Sovereignty in the climate change context• Sovereignty is widely recognised for ‘airspace’.

Convention on International Civil Aviation, 1944. Article 1 –Sovereignty: The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.Article 2 – Territory: For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.

• Limitations of concept: • Airspace in this sense only applies to areas where

there are sovereign claims on land • Airspace is not the same as the atmosphere

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Legal status of atmosphere?

• In principle the ‘atmosphere’ is not claimed under sovereign rights.

• In addition, the exact limit between the atmosphere and outer-space is not clearly defined (around 150 km)

• On this basis, only some pointers can be given to help frame an understanding of the legal status of the atmosphere

• National level• International level

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Legal status of atmosphere: National level perspective[4] ‘We believe that under our system of government the landowner is entitled to such precipitation as Nature deigns to bestow. We believe that the landowner is entitled, therefore and thereby, to such rainfall as may come from clouds over his own property that Nature, in her caprice, may provide. It follows, therefore, that this enjoyment of or entitlement to the benefits of Nature should be protected by the courts if interfered with improperly and unlawfully’.Southwest Weather Research v. Jim Duncan Court of Civil Appeals of Texas, El Paso, 26 November 1958, 319 S.W.2d 940

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Legal status of atmosphere: International perspectives‘Acknowledging that change in the Earth's climate and its adverse effects are a common concern of humankind (…)’.

UNFCCC, 1992. [Preamble]

Recognizing therefore that the protection of the atmosphere from atmospheric pollution and atmospheric degradation is a pressing concern of the international community as a whole (…).

International Law Commission, Protection of the Atmosphere – Texts and titles of draft guidelines and preamble adopted by the Drafting Committee on first reading, UN Doc. A/CN.4/L.909 (2018). [preamble]

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Common concern and common heritage of humankind• Common concern: Resources are under sovereign

control but shared understanding of need to collaborate (conservation, economic, trade reasons)

UNFCC: Acknowledging that change in the Earth's climate and its adverse effects are a common concern of humankind.

• On the whole, not really going further than marking the recognition of the global nature of the problem and the need for some form of cooperation.

• Beyond ‘common concern’? • ILC’s ‘pressing concern of the international

community as a whole’ (above)• Common heritage of humankind (see next)

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Common heritage of humankind

• Only existing basis to think beyond sovereignty. Bases: • No sovereign claims, no appropriation• Joint management• Joint sharing of benefits• Peaceful uses

• Applied to resources beyond sovereign appropriation, such as

• Deep seabed minerals (Law of the Sea Convention)• Outer-space (Moon treaty – but limited number of

ratifications)• Lessons for the climate change regime: The way forward

belongs to an understanding of climate change as a common heritage issue requiring an entirely different starting point to cooperative measures

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Discussion

• What should be the principle on which to adopt an effective international regime to tackle climate change?

1. Sovereign rights?

2. Common concern of humankind?

3. Common heritage of humankind?

4. Another basis?

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2. Equity (Common but differentiated responsibilities)UNFCCC, art 3: ‘1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.2. The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.’

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Equity and differential treatment

• Different categories of inequality: (i) asymmetry in contribution to climate change (past and present)(ii) vulnerability to the impacts of climate change(iii) capacity to mitigate the problem(iv) power to decide on solutions

• Forms of equity1. Formal legal equality: Sovereign states are legally equal,

hence legal obligations are structured around the reciprocity of obligations (what mentioned under ‘sovereignty’)

2. Substantive equality: Measures that lead to outcomes that put everyone on the same plane. Justification: Where there are structural inequalities (eg levels of economic development) this may require compensatory measures (differential treatment)

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Implementation of differential treatment• Diverse instruments are used to realise differential

treatment: • Contextualisation: ‘All Parties, taking into account their

common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall’ (UNFCCC, 1992, art 4.1)

• Implementation aid: ‘The developed country Parties and other developed Parties included in annex II shall provide new and additional financial resources to meet the agreed full costs incurred by developing country Parties in complying with their obligations (UNFCCC, 1992, art 4.3)

• These and other differential instruments are widespread in the climate change and other environmental regimes

• [see next]

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Implementation of differential treatment (ctd)• Strongest form of differentiation is when there are different

commitments for different groups of countriesThe Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012. (Kyoto Protocol, 1997, art 3.1)

• The Kyoto Protocol includes the most ‘advanced’ form of differentiation, which is also the most controversial (central element in the non-ratification of the Protocol by US]

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Evolution of CBDR in the climate regime• Towards Paris – Developing countries ensure principle

not abandoned but additional wording qualifies it: • Decision 1/CP.20 (Lima, December 2014), paragraph 3

underscores the parties’ ‘commitment to reaching an ambitious agreement in 2015 that reflects the principle of CBDR-RC, in light of different national circumstances’.

• ‘In light of different national circumstances’ implies change of course from explicit differentiation expressed in annexes.

• Meetings preceding COP-21 slowly consolidating the notion that differentiation would be addressed in a context-specific manner appropriate to each element of the Agreement, rather than by a dichotomy that cuts across all sections.

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CBDR under the Paris Agreement

• New understanding of differentiation under the Paris Agreement:

Article 2(2): This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.Article 4(3): 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.

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CBDR under the Paris Agreement (ctd)• Basis: the principle is restated (needed given the UNFCCC

as a basis for the Paris Agreement)• ‘Binary’ differentiation abandoned. Self-differentiation (can

either be seen as more dynamic or as diluting it)• Nationally Determined Contributions are only differential

to the extent that they are ‘different’ not ‘differential’ since the latter implies a collective scheme taking into account differences between countries on the basis of established criteria

• But note Maljean Dubois stating that the earlier form of differentiation was: ‘a bipolar, rigid and static type of differentiation’ (p. 154)

• Provisions on financial support are where Paris addresses differentiation between developed and developing countries most directly and explicitly

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Discussion

• Does differentiation (common but differentiated responsibilities) contribute to a stronger or weaker climate change regime?

• What are the main factors making differentiation controversial?

• What are the main factors making differentiation unavoidable as a structuring element of the climate change regime?

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3. Precautionary principle (PP)

• UNFCCC, art 3.3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. 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, taking into account that policies and measures to deal with climate change should be cost effective so as to ensure global benefits at the lowest possible cost.

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Prevention and precaution

• Starting point. Distinguish precaution from prevention: The latter applies when the consequences of an action to be taken are known and can thus be ‘prevented’.

• Precaution is where the consequences are not entirely understood at the time regulatory action is to be taken. The basis for applying the precautionary principle is where there is:

• Risk of damage and scientific uncertaintyNote: science is at the root of preventative and precautionary measures, the only difference is that there is a level of ‘uncertainty’ left in the case of precaution

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Precautionary principle (PP) in practice• Three ways to conceive precaution (weak to strong):

1) States agree to act carefully, with foresight: need to take measures but, e.g. limited by focus on cost of measures2) PP requires activities and substances which may be harmful to the environment to be regulated and possibly prohibited even if no conclusive or overwhelming evidence is available3) Shifting the burden of proof: this requires polluters to establish that activities and discharge of certain substances would not adversely or significantly affect the environment before they are granted the right to carry it out

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Precaution in the climate regime

• Which risk level triggers what consequences:

UNFCCC: ‘serious or irreversible damage’

• Legal status - Distinction ‘approach’ and ‘principle’• Debates over its customary status but no conclusive

evidence• If so, formulation of Rio Declaration, 1992 - Principle 15

similar to UNFCCC: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.’

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Discussion

• What makes precaution different from prevention?

• Why is the precautionary a central element of the climate change regime?

• Why is the precautionary principle controversial?

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4. Sustainable development

• UNFCCC, art 3.4. The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.

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Definition of sustainable development• World Commission on Environment and Development

(WCED) – 1987 Report:

• ‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:

- the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and- the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.’ (UN Doc. A/42/427, p. 54)

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Sustainable development –Diverse understandings• The concept is broad and can be moulded in different

ways

• Can be ‘twisted’ to mean anything from a challenge to conventional economic paradigm (requiring fewer demands on resource base) [environmental perspective] to maximising net benefits of economic development subject to maintaining services and quality of natural resources over time.

• In policy terms, progressively clear that sustainable development is made of three linked dimensions: economic development, social development and environmental protection

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Legal status

• Little to build a case that there is a binding legal principle of sustainable development.

• One exception is Judge Weeramantry’s separate opinion in the Gabcikovo case 1997 (ICJ) where he states:

It is clear that a principle must be followed which pays due regard to both considerations. Is there such a principle, and does it command recognition in international law? I believe the answer to both questions is in the affirmative. The principle is the principle of sustainable development and, in my view, it is an integral part of modern international law. It is clearly of the utmost importance, both in this case and more generally.

• In practice, thus sustainable development remains a framing notion informing the climate change regime but its specific content is difficult to ascertain

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Formulations

• Rio Declaration on Environment and Development, 1992 (Principle 4): ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’.

• Johannesburg Declaration on Sustainable Development, 2002: 5. (…) pillars of sustainable development –economic development, social development and environmental protection (…).

• United Nations Conference on Sustainable Development (Rio+20), The Future we Want: 56. In this regard, we consider green economy in the context of sustainable development and poverty eradication as one of the important tools available for achieving sustainable development…

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Sustainable development in the Paris Agreement• Preamble: (…) Emphasizing the intrinsic relationship that climate change actions, responses and impacts have with equitable access to sustainable development and eradication of poverty,

• Article 2(1): This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels (…)

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5. Safeguard principle: Non-regression

• It might be argued that the Paris Agreement backtracks compared to collective commitments made in Kyoto. More generally, in the current climate enshrining ‘non-regression’ seems crucial

• May have seen unnecessary until recently but now found in some legal instruments.

• This is the case of the Draft Global Pact for the Environment, 2017:

Article 17 - Non-regression

The Parties and their sub-national entities refrain from allowing activities or adopting norms that have the effect of reducing the global level of environmental protection guaranteed by current law. [emphasis added]

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Also the case of the Brexit Agreement

Art. 2 Non-regression in the level of environmental protection1. With the aim of ensuring the proper functioning of the single customs territory, the Union and the United Kingdom shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period in relation to: access to environmental information, public participation and access to justice in environmental matters; environmental impact assessment and strategic environmental assessment; (…) and climate change.Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, COM(2018) 833 final [Annex IV, Part 2, Environmental Protection]