An Introduction to International Environmental Law: the simplified version you always wanted

What's the big deal about International Environmental Law? Why no one seems to get the big picture? A friend from National Law School, Bangalore, Preeta Dhar makes the necessary effort in a series of two posts to put things in context and explain the development that has been taking place in this ever-dynamic area of law. Never get confused again in the legal terminology of global climate change!

We’ve been hearing of Copenhagen for a long time, and the UNFCCC and Kyoto Protocol for an even longer time. However, for most people, the entire body of abbreviations and international instruments and media hype might pose a daunting prospect to decipher. Here’s trying to simplify things a little.

ONCE UPON A TIME…

It all began in 1987, with the United Nations World Commission on Environment and Development publishing a report, Our Common Future, more popularly known as the Brundtland Report. It was in this report that the concept of ‘sustainable development’ featured for the first time, defining it as development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

The Brundtland report formed the foundation of the Earth Summit in Rio de Janeiro (1992), recognizing that the existing path of industrial development was unsustainable, and bringing to the fore of international concern the need for sustainable development. The Earth Summit resulted in

1. 
   
   the Rio Declaration on Environment and Development, consisting of 27 principles intended to guide future sustainable development around the world
2. 
   
   Agenda 21, referring to an agenda for the 21st century, voted and accepted by 178 nations
3. 
   
   The United Nations Framework Convention on Climate Change, i.e., UNFCCC.

(it may be noted that the Convention on Biological Diversity was also adopted at the Earth Summit)

UNFCCC

The UNFCCC was first produced at the Earth Summit, and opened for signature. It entered into force on March 21, 1994. As of date, the UNFCCC has 193 parties.

The treaty itself does not set any mandatory limits on greenhouse gas emissions for individual countries and contains no enforcement mechanisms, and thus, is considered to be legally non-binding. However, it provides an overall framework for intergovernmental efforts to tackle the challenge posed by climate change.

The two salient features captured by the UNFCCC are the concepts of common but differentiated responsibility and the precautionary principle.

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Common but differentiated responsibility - A major bone of contention that haunts the international debates over climate change mitigation action till date is the issue of burden sharing of the cost of mitigation measures between developed and developing countries. By 1994, the nations of the world could be divided on terms of developed and developing countries. To generalize, developed countries have been historically responsible for contribution to the level of emissions in the atmosphere in the first place. Furthermore, they have more resources at their disposal to address the problem of climate change. Developing countries, on the other hand, were by and large, neither responsible for the levels of atmospheric pollution since they had not industrialized heavily up till then; and moreover, had more urgent concerns like raising standards of living and alleviating poverty, and did not have the resources, or ability to invest in climate change mitigation actions. Therefore, a differential treatment of developed and developing countries was warranted. The idea is that, although climate change is a common concern, the responsibility for mitigating climate change is differentiated, both in terms of historical responsibility, as well as ability of nations. This forms the basis of the classification of countries as Annex I (read, developed) and non-Annex I (read, underdeveloped, or developing, or least developed) countries. It must be noted at this point that the Annexure form an integral part of the UNFCCC. However, it may be amended, in the same manner as the amendment of the UNFCCC as prescribed.

Precautionary principle - The precautionary principle, very simply, is that uncertainty is not an argument for delaying action. The UNFCCC provides that 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.”

The Conference of the Parties (COP) is the highest decision-making authority envisaged by the UNFCCC. It is an association of all the countries that are Parties to the Convention, and meets once every year.

KYOTO PROTOCOL

At the very outset, we must appreciate the UNFCCC for exactly what it is. As the name suggests, it is merely a framework, and as noted above, does not spell out any rights or obligations or commitments. It is in this light, that the Kyoto Protocol should be understood. Under the UNFCCC, Annex I countries are committed to adopt policies and measures aimed at reducing greenhouse gas emission levels by 2000 (Article 4.2). Following the decision of the first Conference of the Parties (COP1) in Berlin in 1995 that these commitments were inadequate, the Kyoto Protocol was negotiated and adopted by consensus at COP3, in Kyoto in 1997. However, the Kyoto Protocol entered into force as late as 16 February 2005.

The requirement for the Kyoto Protocol to come into force was ratification of the Protocol by at least 55 countries accounting for at least 55 percent of developed country emissions in 1990. The first threshold was met in 2001. However, only on the ratification of the Protocol by Russia in 2005, was the second threshold satisfied. It may be noted that the USA is yet to ratify the Kyoto Protocol. With entry into force, Kyoto’s emission targets become binding legal commitments for those industrialized countries that have ratified it. Under the Kyoto Protocol, all the signatories to the Protocol have an annual Meeting of Parties (MOP) (analogous to the COP under the UNFCCC)

The Kyoto Protocol is based on the classification of countries as Annex I and non-Annex I countries, and gives effect to the principle of common but differentiated responsibility. Developing countries have no binding commitments under the Kyoto Protocol. Under the Kyoto Protocol, Annex I countries agreed to reduce their collective greenhouse gas emissions by 5.2% from the 1990 level. This, they can achieve by implementing domestic measures, or regional measures, insofar as no obligation, directly or indirectly is cast on non-Annex I countries. Furthermore, the Kyoto Protocol also provides for flexible mechanisms, whereby, through market mechanisms, Annex I countries may fulfill their commitments under the Kyoto Protocol. These include clean development mechanisms (CDM), joint implementation (JI) and emissions trading. Another mechanism, also considered to be a flexibility mechanism, is achieving emission reduction targets through “bubbles”, wherein a group of countries can, as a single unit, can achieve emissions reduction targets. The only instance of this is the EU.

Clean Development Mechanism allows a country with an emission- commitment under the Kyoto Protocol (i.e., developed country) to implement an emission-reduction project in developing countries. These projects earn certified emission reduction (CER) credits, which can be counted towards meeting Kyoto targets, and sold. Joint implementation is a similar mechanism. It allows a country with an emission reduction or limitation commitment under the Kyoto Protocol (i.e., developed country) to earn emission reduction units (ERUs) from an emission-reduction or emission removal project in another developed country. The point of differentiation being that whereas CDM refers to projects implemented by developed countries to developing countries, JI refers to projects undertaken jointly by two developed countries. Emissions trading is often referred to as the ‘cap and trade’ mechanism. Essentially, under the Kyoto Protocol, developed countries have commitments to reduce greenhouse gas emissions. This implies that there are expressed levels of allowed emissions, (which are at a lower level than the present levels of emissions). Emissions trading, as set out in Article 17 of the Kyoto Protocol, allow countries that have emission units to spare, i.e., emissions permitted them but not used, to sell this excess capacity to countries that are over their targets. For example, if country A and B are permitted to emit upto 20 units each, A can choose to emit only upto 15 units and sell 5 units to B, who can emit upto 25 units. The European Union emissions trading scheme is the largest in operation.

Come back in a couple of days for a comprehensive understanding of Bali and Copenhagen - the new history in making.