This article has been written by Bhavya Gautam, 5th year/9th semester law student from RNB Global University.
INTRODUCTION
The climate crisis requires global efforts to mitigate its impacts and adapt to a changing environment. International law, which enables cooperation and provides a framework for action, is essential in addressing this crisis. This study examines the development and effectiveness of international law in addressing the climate crisis. It examines the historical development of international environmental law, highlighting key milestones such as the UNFCCC and the Paris Agreement. The study assesses the effectiveness of international law in driving climate action through mechanisms such as emission reduction targets, reporting obligations, financial assistance and technology transfer. It also addresses challenges within the existing legal framework, including enforcement mechanisms, compliance issues and equitable treatment of developing countries. The study further examines the evolving role of non-state actors in shaping climate governance and influencing international legal norms. It examines transnational networks, voluntary initiatives and corporate social responsibility as a complement to international legal instruments.
Finally, the research identifies avenues for future development and strengthening of international climate law, highlights more ambitious emissions reduction commitments, integrates climate considerations into other areas of international law, and explores innovative legal approaches such as climate litigation and climate-related trade measures. International law plays a key role in addressing climate change by providing a framework for cooperation, establishing binding and non-binding obligations and facilitating global action to mitigate its impacts.
Framework Conventions and Agreements United Nations Framework Convention on Climate Change (UNFCCC):
Established in 1992, the UNFCCC is the cornerstone of global efforts to combat climate change. Establishes an international environmental treaty aimed at stabilizing greenhouse gas concentrations to prevent dangerous anthropogenic interference with the climate system. The UNFCCC provides a forum for the negotiation of additional agreements and protocols. The United Nations Framework Convention on Climate Change (UNFCCC) sets out the basic legal framework and principles for international climate change cooperation to stabilize atmospheric concentrations of greenhouse gases (GHGs) to prevent “dangerous anthropogenic disruption of the climate system”. The UNFCCC was created in 1992 as the main forum for international action on climate change. 195 countries have joined the international agreement (known as the Convention). The negotiations focus on four key areas:
- mitigation (reduction) of greenhouse gas emissions
- adaptation to climate change
- reporting of national emissions
- financing climate action in developing countries
The United Nations Framework Convention on Climate Change (UNFCCC) obliges all signatory countries to formulate, implement, publish and update measures to prepare for the impacts of climate change, known as “adaptation”. It also commits countries to cooperation on adaptation and provides various support mechanisms for the implementation of adaptation measures in developing countries. In 2010, the Cancun Framework for Adaptation was adopted and it was agreed that adaptation must be given the same priority as mitigation. The framework calls for additional adaptation measures, including reducing vulnerability and increasing resilience to climate change in developing countries.
Kyoto Protocol (1997)
The first legally binding agreement under the UNFCCC, the Kyoto Protocol set emission reduction targets for developed countries. Although limited in scope and participation, it marked a significant step in international climate law The Kyoto Protocol mandated that industrialized countries reduce their greenhouse gas emissions at a time when the threat of global warming was growing rapidly. The protocol was linked to the United Nations Framework Convention on Climate Change. It was adopted in Kyoto, Japan on 11 December 1997 and became international law on 16 February 2005. Countries that ratified the Kyoto Protocol were assigned maximum levels of carbon emissions for a specific period and participated in carbon credit trading. If a country emitted more than the set limit, it would be penalized by reducing the emission limit in the following period. Developed industrial countries have committed to reduce their annual hydrocarbon emissions by an average of 5.2% by 2012 as part of the Kyoto Protocol. Targets depended on individual countries. As a result, each nation had a different target to meet by a given year. Members of the European Union (EU) have committed to reducing emissions by 8%, while the US and Canada have committed to reducing their emissions by 7% and 6% by 2012, respectively. The Kyoto Protocol recognized that developed countries are primarily responsible for high levels of greenhouse gas emissions in the atmosphere as a result of more than 150 years of industrial activity. As such, the Protocol placed a greater burden on developed countries compared to less developed countries.
The Kyoto Protocol mandated that 37 industrialized countries and the EU reduce their greenhouse gas emissions. Developing countries were asked to comply voluntarily, and more than 100 developing countries, including China and India, were exempted from the Kyoto Agreement entirely.
Paris Agreement (2015)
The Paris Agreement is a landmark agreement under the UNFCCC that aims to limit global warming to well below 2°C above pre-industrial levels, with the goal of limiting the increase to 1.5°C. It introduced a system of Nationally Determined Contributions (NDCs), where each country sets its own emission reduction targets, which are reviewed and strengthened over time. Climate change as a global issue requires countries around the world to work together. In 2015, world leaders agreed on ambitious new targets to combat climate change. The Paris Agreement is an action plan to limit global warming. Its main elements are:
- long-term goal – governments agree to keep the increase in average global temperature well below 2°C above pre-industrial levels and aim to limit it to 1.5°C
- contributions – before and during the Paris conference, countries submitted comprehensive national climate action plans (called NDCs – nationally determined contributions) to reduce their emissions
- ambition – governments have agreed to communicate their action plans every five years, with each plan setting more ambitious targets
The Paris Agreement entered into force on November 4, 2016, when the condition of ratification by at least 55 countries that account for at least 55% of global greenhouse gas emissions was met. The agreement was ratified by all EU countries.
Climate change and international trade and investment law
International trade and investment law are critically involved in the area of climate change. The main source of greenhouse gas emissions is global economic activity, which is supported and facilitated by international trade and investment regimes. Responding to climate change requires new trade measures. Many environmental measures to address climate change affect international trade and therefore present problems under international trade law. These include not only direct trade measures such as carbon cap measures that states adopt to mitigate potential competitive disadvantages for domestic industries subject to costly climate policy requirements, but also general environmental policies such as carbon taxes, emissions trading schemes, efficiency of energy standards and renewable energy. subsidies such as feed-in tariffs. International economic law plays an important role in regulating climate change, especially with regard to technology diffusion and unilateral responses to the failure of multilateral negotiations. Multilateral agreements on climate change financing, intellectual property rights to plant varieties, a multilateral investment agreement or international trade in environmental goods and services have not been reached.
Multilateral progress in all these areas would facilitate technology diffusion and reduce the need for unilateral action In the case of international trade law, the stalemate at the multilateral level has led to unilateral, bilateral and regional political responses. The same may happen with respect to climate change negotiations. Unilateral measures can be taken to address local or global problems and can be used to create incentives for multilateral action. They may or may not be consistent with international obligations depending on the circumstances of each case. Unilateral actions can serve as catalysts for multilateral action on climate change by inciting affected economic actors to pressure their governments to seek solutions through litigation or negotiation. Agreements on climate change should either be consistent with international economic law and global models of economic governance, or lead to their modifications. It is important to identify political issues and options and ways to overcome obstacles in negotiations. One proposal for WTO negotiations is to reduce the ambition of negotiations by abandoning the rule that “nothing is agreed until everything is agreed” and moving away from consensus-based decision-making. There are precedents for this approach in the WTO, in which a limited number of members agree to liberalize certain sectors once enough members are on board to cover ninety percent of trade in that sector. The most-favoured-nation rule extends concessions to all WTO members, and the resulting agreement is left open for other members to join. Equal access to environmental goods and services would reduce barriers to the diffusion of climate change technologies. A similar approach could be taken with regard to greenhouse gas emissions, by seeking agreement between the countries that account for the vast majority of emissions and leaving open the possibility of other countries joining. However, even this approach can be difficult to achieve in a reasonable period of time.
How does climate change affect biodiversity?
Environmental changes caused by climate change are disrupting natural habitats and species in ways that are still unclear. There are signs that rising temperatures are affecting biodiversity, while changing rainfall patterns, extreme weather events and ocean acidification are putting pressure on species already threatened by other human activities. The threat posed to biodiversity by climate change is expected to increase, but thriving ecosystems also have the ability to help reduce the impacts of climate change. If current rates of warming continue, global temperatures could rise by more than 1.5 °C (2.7 °F) by 2030 compared to pre-industrial levels.
The main impact of climate change on biodiversity is an increase in the intensity and frequency of fires, storms or drought. In Australia, 97,000 km2 of forest and surrounding habitats were destroyed in late 2019 and early 2020 by intense fires now known to have been exacerbated by climate change. This contributes to the threat to biodiversity that has already been under pressure from other human activities. It is estimated that the number of endangered species in the area may have increased by 14% as a result of the fires. Rising global temperatures also have the potential to change ecosystems in the long term by changing what can grow and live in them. There is already evidence to suggest that the reduction of water vapor in the atmosphere since the 1990s has resulted in 59% of vegetation areas globally showing significant browning and reduced growth rates. Rising ocean temperatures are affecting marine organisms. Corals are particularly sensitive to rising temperatures, and ocean acidification can make it harder for crustaceans and corals in the upper ocean to build shells and hard skeletons.
Climate Change and International Criminal Law
It is a fact, as well as a widely accepted belief, that climate change has been caused primarily by Western nations, while poor and already disadvantaged nations have suffered disproportionately and will suffer even more in the future. The climate burden “falls disproportionately on the individuals and populations least responsible and raises serious equity concerns.” To make matters worse, richer nations that have largely caused climate change often take a “come after you” approach to the Global South, a position where they say they will not make meaningful emissions reductions unless poor countries do so first. Since the 2018 IPCC report on global warming of 1.5°C, the world knows that the difference between 1.5°C and 2°C is equivalent to “hundreds of millions” of deaths.
Therefore, it is important to have a public discussion about criminal responsibility. However, it is essential that the questions of who caused the problem and who will bear the brunt of the impact are at the forefront of any such analysis. While there are various definitions of environmental justice (hereafter “EJ”), it may be more useful to look at widely accepted concepts or elements of EJ. Four have long been accepted: distributive justice, procedural justice, corrective justice, and social justice. A fifth factor – equality of recognition – has recently been adopted.
Recognizing justice requires recognizing differences “between dominant and subordinate groups in society” and “recognizing the institutionalization of unconscious biases, exclusionary processes, and normative judgments” that operate through social structures to “manifest racially disparate outcomes.”
Distributive justice is about the fair and equal distribution of both costs and benefits, while procedural justice is about how you get there. Finally, the central concept of EJ is “we speak for ourselves”. Recognition justice is also related to this. The crime of ecocide should not be dealt with by the ICC as it would violate these EJ principles and exacerbate the injustices and imbalances that have caused climate change. While the application of criminal law to climate change is worthy of effort, other solutions should be found that are consistent with EJ principles. This post will focus on EJ’s critique of ecocide in the ICC in the context of climate change. It will end with short preliminary suggestions for other tools, but we won’t go into it in depth. EJ is used instead of Climate Justice (“CJ”) as there may be less certainty with the newer evolving term CJ
Conclusion
International law is an indispensable part of the global response to climate change, providing the legal structures, principles and mechanisms necessary for effective and fair action. It enables countries to work together to achieve a common goal, promotes accountability and transparency, and ensures that all nations, regardless of their economic or geographic status, have the support they need to contribute to climate change mitigation. As the impacts of climate change continue to intensify, the role of international law in guiding the global community towards a sustainable and resilient future will only become more critical. The dynamic and adaptive nature of international law ensures that it will remain a key tool in addressing the evolving challenges posed by climate change and help protect the planet for present and future generations. In addition, international law supports the global cooperation and diplomacy that are essential to the success of climate change mitigation efforts. Through ongoing negotiations, countries are coming together to draft, ratify and implement treaties and agreements that reflect a collective will to address climate change. These negotiations, while often complex and challenging, are essential to achieving consensus and ensuring that all nations are committed to the same goals.
The creation of coalitions and alliances, such as the Climate Vulnerable Forum and the High Ambition Coalition, further strengthens global cooperation by bringing together countries with common interests and strengthening their voices in international discussions. The role of international courts and tribunals in mitigating climate change is an area of growing importance. Although still evolving, the potential of international judicial bodies to adjudicate climate-related disputes is significant. As climate change increasingly intersects with issues of justice and accountability, the involvement of international courts could provide a way to hold countries and corporations accountable for their actions and ensure compliance with global commitments.
