Climate Change Law

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International Environmental Law

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A. Introduction[edit | edit source]

[T]he climate crisis is so violent and has exacerbated so much injustice […] It is not only the biggest challenge humanity has ever faced but also the biggest opportunity we have to change the world. Xiye Bastida, Climate Justice Activist.[2]

Today, we know with high certainty that the emission of greenhouse gases (GHG) into the atmosphere, a consequence of human activities, has warmed the climate at an unprecedented rate.[3] In its most recent Sixth Assessment Report (AR6), the Intergovernmental Panel on Climate Change (IPCC)—the lead scientific body on climate change—attests that such human-induced climate change is already affecting every region across the globe by altering the frequency and intensity of heatwaves, heavy precipitations, droughts, and tropical cyclones.[4] Concerningly, it predicts that the global surface temperature will continue to increase until at least mid-century.[5] And unless we cut down GHG emissions steeply in the coming decades, global warming of 1.5°C and 2°C will be exceeded during this 21st century, which poses multiple and significant risks to ecosystems and humans.[6]

Though almost half a century has gone by since the world planted the first seeds of today’s international climate change law—through the launch of the early negotiations for a United Nations Framework Convention on Climate Change (UNFCCC) back in the late 1980s—children and youth across the globe are still vociferously demanding action for a carbon-free world. Like Xiye Bastida, a climate justice activist from Mexico, most of these youth were not even born when the UNFCCC came into force in 1994.[7] And yet, because the current level of GHG emissions will not avert the global temperature from surpassing 2°C of warming,[8] these young people increasingly need to turn to activism to get the black letter of climate change law work. Notably, young activists from low- and middle-income countries have drawn attention to the justice issues so closely related to how climate change unfolds in these geographies, which therefore also deserve legal consideration. For example, Vanessa Nakate, founder of the Africa-based Rise Up Movement, has highlighted how climate change is a question of gender and race as it disproportionately affects women and girls in Africa.[9]

At first viewed mainly as a biophysical phenomenon, we now know that the causes and impacts of climate change go beyond a simple causal connection between the increase in emissions resulting from human activities and the enhancement of the Earth’s greenhouse effect—on which the IPCC concentrated in its earliest reports.[10] Crucially, climate change is deeply embedded in how today’s socioeconomic and political systems operate and distribute opportunities and resources, as the young climate justice activists are calling attention to.[11] For example, 57% of the global population (living below the World Bank poverty line of US$5.50 per day) induced about 16% of the global emissions compared to the top 10%, whose consumption and lifestyle patterns were responsible for almost half of all CO2. Despite such a disparity in the responsibility for the global temperature rise, climate change disproportionately impacts people living in poverty, especially groups historically marginalized due to their gender, race, and ethnicity. This is so because they experience high vulnerability to changing weather patterns as they lack the means to cope with extreme and incremental climate events, including access to adequate housing, quality healthcare, and sufficient income.[12] Thus, between 2010-2020, human mortality from floods, droughts, and storms was 15 times higher for these populations compared to regions with low vulnerability.[13]

At the same time, climate change spreads across several temporal and spatial domains, given that it affects the present and future generations and manifests globally while holding distinctive effects according to each local context. It is, therefore, a highly complex challenge—or a 'wicked problem,' as some have famously labeled it[14]—which requires deep and fast transformations not only in the environmental sphere by reducing polluting emissions but also in how the current social, economic, and even political systems work. To confront this global problem, the international community has developed a multilateral climate change regime as the first and principal means of curving down GHG emissions to avert dangerous climate change and preparing for and adjusting to the current and projected effects of changing weather patterns.[15] In 1990 the United Nations General Assembly (UNGA) set the first building blocks of such a regime by passing Resolution 45/212 that launched formal negotiations of an international climate change treaty,[16] thereby initiating the conception of the UNFCCC on which most of today’s international climate change law is cemented.

Since the adoption of such a Resolution and the subsequent conclusion of the UNFCCC in 1992, international climate change law has undergone a rapid evolution in how it frames and addresses the problem of the global temperature rise. This evolution has responded to the practical hurdles arising on the one hand, from securing global agreements and action, and, on the other, from acknowledging the high complexity of climate change. Therefore, international climate change law has experienced transformations in its legal form, character, and architecture. Further, from the normative standpoint, it has walked away from its original niche in environmental law to, for some commentators, even forge its own identity[17] and interconnect with other fields of law, such as human rights and financial law.[18]

Despite such evolution, international climate change law seldom escapes criticism. The fact that our current trajectory to warming the global temperature beyond 2°C remains undeterred profoundly questions the pertinacity of this field of law. For this reason, the study of international climate change law cannot restrain itself from identifying the potential and limits of such a legal field for confronting the climate crisis. With this in mind, the present chapter offers an overview of the background, architecture, and normative proposition of the three legally-binding treaties under the UNFCCC regime. Also, it brings into perspective how this regime intersects with other fields of international law. In so doing, readers are invited not to lose sight of the myriad of contextual hurdles in which international climate change law is negotiated, adopted, and implemented and how climate change is deeply embedded in today's socioeconomic and political systems. The chapter aims to facilitate critical learning with a view on yielding the potential and overcoming the limits of international climate change law for spurring the change that climate justice activists, like Xiye, hope for.

B. Overview of the Legal Response to Climate Change: Concepts, Principles, Stakeholders, and Politics[edit | edit source]

Although international climate change law spans beyond the regime set up under the auspices of the UNFCCC, this Convention, as a framework instrument, lays down the ground concepts upon which the issue of climate change has been understood and translated into the legal domain. Additionally, as this section will elaborate, the UNFCCC regime embraces principles that stem from norms of international environmental law and general international law relevant to climate change. Altogether, they constitute the gist of a standard 'climate change language' that has 'traveled' to other legal domains outside the UNFCCC regime. For example, resolutions of the Human Rights Council on climate change refer to ‘mitigation’ and ‘adaptation,’ which are basic concepts the Convention sets forth.

Furthermore, because the UNFCCC provides a space where actors tasked with and involved in climate action have primarily interacted (all United Nations member states are parties to the Convention),[19] its development and trajectory mirror the political dynamics that characterize such relations. Hence, this section draws primarily on insights from the UNFCCC and its core instruments to recount the overarching concepts, mechanisms, principles, stakeholders, and politics that shape the substance of international climate change law.

I. Concepts, Mechanisms, and Principles[edit | edit source]

The core objective of international climate change law, as established by the UNFCCC, is ‘to achieve […] stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’[20] To accomplish this, much of international climate change law spans two different sets of actions: mitigation and adaptation. On the one hand, actions aimed at mitigating climate change seek to limit GHG emissions, including preserving carbon sinks such as wetlands and forests. And on the other, adaptation involves actions geared at preparing for and adjusting to the current and projected effects of climate change.

Example for Climate Mitigation: E-mobility in India: Oil-based road transportation is India's third highest GHG-emitting sector, contributing about 13% of the country's total CO2. To avoid 9.5 million tons of GHG from this sector, in 2022, the Green Climate Fund approved a project that will promote the use of electric vehicles, thereby supporting India's e-mobility transition.[21] Electric cars emit fewer GHG and air pollutants directly and indirectly than petrol and diesel cars.[22]

Example for Climate Adaptation: Climate proofing food production in Burundi: Extreme floods and droughts are expected to intensify in Burundi, making the country's agricultural yield decline by 5-25% in the coming decades.[23] To increase agricultural productivity and food security amidst such detrimental climatic projections, in 2020, the Green Climate Fund approved a project aimed at building farmers' resilience to climate change by promoting the adoption of agroecosystem management practices to conserve soil and water resources.[24]


Commitments under the UNFCCC regarding the development of programs, international cooperation, education, and public awareness concern both mitigation and adaptation. For example, Article 4 sets out that all parties shall ‘[f]ormulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases […] and measures to facilitate adequate adaptation to climate change.’[25] However, despite the dual emphasis of the Convention, during the first decade of the UN climate regime, efforts concentrated mainly on mitigation.[26] This is reflected in the fact that the first legally binding instrument that arose from the Convention, the 1997 Kyoto Protocol, prescribed specific GHG mitigation targets and timetables while not laying the same focus on climate adaptation.[27] It was not until the Convention’s second legally binding instrument, the 2015 Paris Agreement, that the UNFCCC climate regime strengthened the importance of climate adaptation by agreeing to define a global goal on adaptation.[28]

Besides mitigation and adaptation, other issues structural to the international climate change regime are its means of implementation, namely its financial and oversight mechanisms.[26] The UNFCCC climate regime sets the commitment for developed countries to provide financial resources to developing countries as an instrumental measure to advance climate action.[29] Because meeting the costs of mitigation and adaptation is instrumental for accomplishing the regime’s objectives, the parties to the Convention have agreed on establishing a financial mechanism and special funds to facilitate the flow of resources. The operating entities of the financial mechanism set by the UNFCCC are the Global Environmental Facility (GEF) and the Green Climate Fund (GCF).[30] Special funds complement the primary mechanism and support specific countries and projects through the Special Climate Change Fund, the Least Developed Countries Fund, and the Adaptation Fund.[30]

The UNFCCC climate regime has also created oversight mechanisms to ensure implementation and compliance. The Convention requires states to periodically communicate their mitigation and adaptation measures' progress as a general means for promoting accountability.[31] The Kyoto Protocol and the Paris Agreement set their implementation frameworks, as the following sub-sections of this chapter will elaborate.

Moreover, as the chapter goes through the evolution and substance of international climate change law, the terms' treaty,' ‘protocol,’ 'decision,' and 'agreement' will repeatedly come up, given how the UNFCCC climate regime is set to operate. Therefore, how such concepts and their inherent legal effects differ is worth bearing in mind. The Vienna Convention on the Law of Treaties provides a point of departure for determining such conceptual divergence. It defines 'treaty' as 'an international agreement concluded between States in written form and governed by international law.'[32] The ‘Convention,’ the Kyoto ‘Protocol’ and the Paris ‘Agreement’ are thus treaties because, regardless of their designation, states have expressed consent to be bound by them (by signature, ratification, or accession), thereby fulfilling the basic rules of treaty law.[33] By contrast, ‘decisions’ are resolutions that the Conference of Parties to the UNFCCC (COP), the ultimate authority under the UNFCCC, makes under its powers ‘to promote the effective implementation of the Convention.’[34] They do not require formal consent by each state and consequently do not hold the legal bindingness of treaties. For example, the Cancun 'Agreements' consist of a set of such COP decisions.

The Convention, the Kyoto Protocol, and the Paris Agreements are the core and only treaties of the UNFCCC regime. They comprise a 'nested regime' whose relationships (between them and their state parties) are complex and dynamic.[35] The Convention is the ‘framework’ or ‘umbrella’ treaty under which the state parties adopted the Kyoto Protocol and the Paris Agreement. That is, parties to each instrument rely on most of the by-the-Convention-set principles and bodies to implement the regime's instruments. All parties to the Kyoto Protocol and Paris Agreement must be the Convention, but not all parties to the UNFCCC have adopted these instruments.

Also, at the core of international climate change law stand its principles. Their antecedents emerge from general and international environmental law, including the no-harm rule, the obligation to act with due diligence, and the principle of common but differentiated responsibility (CBDR).[36]

The no-harm rule forms part of customary international law and is widely recognized as the 'cornerstone' of international environmental law.[37] It has been affirmed and fleshed out through a series of Multilateral Environmental Agreements (MEAs) and several decisions of the International Court of Justice (ICJ). The 1972 Stockholm Declaration of the UN Conference on the Human Environment and the 1992 Rio Declaration on Environment and Development set the responsibility of states to ensure that activities within their jurisdiction do not cause damage to the environment of other states or areas beyond the limits of national jurisdictions.[38] The ICJ emphasizes the obligation for states to take appropriate measures to prevent harm to other states' environment or the global commons and situates this in connection with the due diligence principle. More specifically, the ICJ clarifies that states are also obliged to exercise a certain level of vigilance in enforcing measures to prevent harm and exert administrative control applicable to public and private operators.[39]

The UNFCCC takes on the no-harm rule with an expanded scope beyond the known or objectively determined risks of environmental harm—with which such a rule has traditionally been concerned[40]—to include potential harms for whose identification full scientific certainty is not available. Thus, in line with Principle 15 of the Rio Declaration, the Convention sets as one of its principles the adoption of precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.[41] It further states that ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures.’[42]

Another principle that the UNFCCC regime embraces is the CBDR. The Convention provides that all parties should undertake their commitments' taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives, and circumstances.'[43] While several treaties differentiate the responsibilities of states, this principle was initially enshrined in the Rio Declaration[44] and the UNFCCC became the first international instrument to include it after that.[45] The principle suggests that even though the international community has a shared responsibility for preventing dangerous anthropogenic interference with the climate system, this diverges among States based on the extent to which each has historically contributed to the problem and their present capacities to respond.

Advanced: How does the CBDR principle reflect in the UNFCCC and the Kyoto Protocol?

The UNFCCC epitomizes the CBDR principle by distinguishing between 'Annex I’ and ‘non-Annex I’ countries. The former group comprises the so-called 'developed countries,' which have contributed the most to climate change and thus bear the bulk of responsibility for its mitigation and adaptation. The latter group includes 'developing countries,' whose contribution to climate change has not been as significant and yet are particularly vulnerable to it.[46] Similarly, the Kyoto Protocol takes on such principle by assigning Annex I countries quantified emission reduction commitments (inscribed in the Protocol's Annex B), which do not apply to non-Annex I parties. The map differentiates between Annex I and non-Annex I countries.[47]

Figure 1 CBDR principle (Annex I v non-Annex I countries).png


II. Stakeholders and Politics[edit | edit source]

Given that nations are the primary subjects of international law, the making of the international climate change regime has gravitated around state interactions. That is, states have been the central actors in negotiating, adopting, and implementing international climate change law. However, over time, intergovernmental organizations and non-state actors have gained growing prominence within the UNFCCC through their increasing participation in the COPs, where they raise their interests and concerns and their role as implementing entities of mitigation and adaptation projects.

Advanced: Cumulative increase in the number of IGOs ad NGOs that have been admitted by the COP as observer organizations to the UNFCCC process


Though the ultimate decision power still lays on states (national governments), the UNFCCC regime brings together a constellation of multiple actors who directly or indirectly shape the trajectory of international climate change law. These actors include subnational governments, intergovernmental organizations, and non-state actors or NGOs, ranging from nonprofit organizations, private corporations, and trade unions to academic institutions. The NGOs admitted to the UNFCCC process have grouped into constituencies with clustered interests or perspectives. Currently, there are nine constituencies: Business and industry NGOs (BINGO), Environmental NGOs (ENGO), Farmers, Indigenous peoples organizations (IPO), Local government and municipal authorities (LGMA), Research and independent NGOs (RINGO), Trade union NGOs (TUNGO), Women and Gender (WGC), and Youth NGOs (YOUNGO).[49]

The tensions between the diversity of interests and concerns converging at the UNFCCC process lay bare the political intricacies with which international climate change law is confronted. Three perspectives can be traced amongst such a myriad of positions.[50] Some actors (European states and organizations) see climate change mainly as an environmental problem. Hence, for them, the ultimate goal of climate change policy should be the net reduction of GHG emissions. In contrast, by conceiving climate change as an economic issue, other actors (non-European high-income countries and organizations, including the US) consider reducing emissions feasible as long as its benefits outweigh the costs. So, for them, nothing justifies the phase-out of carbon-intensive means of production unless cheaper substitutes are available.

On the other hand, several Global South countries and organizations flag how the issue of equity is interwoven with the climate change problem. Notably, they situate climate change and its politics across the broader historical context underpinning social and economic injustices. These actors raise the fact that despite having contributed the least to causing climate change, they are the most vulnerable to its effects. For this reason, they demand that high-income countries assume their responsibility for today’s global temperature increase and thus prevent and pay for the damages climate change causes.

Advanced: For small island developing states (SIDS) climate change is a matter of life and death

SIDS are extremely vulnerable to climate change-induced hurricanes and sea level rise as they are low-lying territories (one-third of them lay on land less than five meters above sea level).[51] Yet, they contribute less than 1% of global GHG emissions. Most SIDS are highly dependent on food imports; some of them are considered least developed countries.[52]

The photo depicts Maldives President Mohamed Nasheed in an underwater cabinet meeting he convened in 2009 to draw attention to the plight of small island developing states (SIDS) in the face of climate change as ‘a symbolic cry for help.’

Figure 3 maldives underwater cabinet meeting.jpg
[53]


These discrepancies have accompanied and shaped the emergence and evolution of the international climate change regime by determining the opportunities and barriers to securing international agreement. International climate change law has adjusted its legal form, character, and architecture to circumvent them. In describing the three core agreements of the UNFCCC regime, the next section will also draw attention to how they sought to counter their contextual political tensions. 

C. Emergence and Evolution on the International Climate Change Treaty Regime[edit | edit source]

As mentioned in the previous sections, the UNGA set the first building blocks of the UNFCCC regime with the adoption of Resolution 45/212 in 1990,[16] which launched formal negotiations of an international climate change treaty. This milestone, however, was not spontaneous. It resulted from a series of events that began in the 1960s and epitomized an increasing scientific and political awareness about the perils that climate change posed to humanity. This section recounts the events that led to the emergence of the international climate treaty regime before the 1990 UNGA Resolution. It subsequently introduces how the regime has evolved thereafter: From the UNFCCC negotiations to the 1997 Kyoto Protocol's rise and fall and the successful adoption of the 2015 Paris Agreement. In so doing, it highlights how such evolution has responded to the particular political and social contexts in time and thus manifested in the legal form, character, and architecture of these three core agreements.

I. Early International Concerns[edit | edit source]

The early concerns about human-induced changes in the climate initially emerged from the scientific field, given its heuristic tools for identifying and improving the understanding of the problem. In the 1960s, scientists observed that atmospheric concentrations of CO2 were increasing.[54] During the following decades (the 1970s and 1980s), the improvement of computer power allowed scientists to expand their knowledge of the problem. Hence, a 1979 report by the US National Academy of Sciences already concluded that 'if CO2 in the atmosphere continued to increase, there would be 'no reason to doubt that climate change will result and no reason to believe that these changes will be negligible.'[55]

That same year, the First World Climate Conference took place in Geneva, for which the World Meteorological Organization (WMO) convened experts from around the world.[56] The conference issued a declaration that urged all nations to ‘foresee and prevent potential man-made changes in climate that might be adverse to the well-being of humanity.’[57] It also set in motion the establishment of a World Climate Program under the joint responsibility of the WMO, the United Nations Environment Programme (UNEP), and the International Council of Scientific Unions (ICSU).[58] Further, this first conference paved the way for other subsequent meetings under the auspices of the WMO, which aimed to advance the scientific understanding of and the institutional coordination on the protection of the global climate.[59] These meetings include the 1985 Villach Conference, the 1987 World Meteorological Congress in Hamburg, and the 1988 Toronto Conference.

Another factor that spurred the surge of international climate change law was the wave of environmental activism and political developments that took place during the 1980s and 1990s—which consolidated in the adoption of the 1987 Montreal Protocol, the work of the Brundtland Commission, and the 1992 Rio Conference.[60] The increasing public awareness and concern about global environmental issues of these decades were the backdrop of the social movements that drew politicians’ and decision-maker's attention to the urgency and importance of protecting the environment, including the atmosphere.[61]

Together, the advancement of scientific knowledge and the burgeoning social and political attention on environmental concerns motivated the incorporation of climate change as a topic into the global agenda, thereby driving its institutionalization as an issue of international law. 1988 was a watershed year for the development of the climate change treaty regime because the WMO and UNEP established the IPCC and the UNGA passed its first resolution on climate change, in which the Assembly characterizes it as the ‘common concern of mankind.’[62]

After that, in 1989, the Netherlands hosted the Hague Summit, attended by seventeen heads of state, and the Noordwijk ministerial meeting.[63] The latter was the first high-level intergovernmental meeting focusing specifically on the issue of climate change. Also, that year, the Small Island States meeting, the Francophone Summit in Dakar, the G7 Meeting, the Non-Aligned meeting, and the Commonwealth Summit discussed the climate change issue.[64] In 1990, the Second World Climate Conference took place under the sponsorship of WMO and other international organizations. Its outcome declaration represented the most broadly based call for cooperative global action on climate change at that moment and set the essential parameters for negotiation of the UNFCCC.[65] Further, the IPCC published its first assessment report that year on climate change's science, impacts, and policy aspects.[10]

Advanced: Timeline of landmark international events that flagged early climate change concerns
Figure 4 Early international concerns.jpg


II. The UNFCCC[edit | edit source]

The conception of the UNFCCC began in 1990 with the adoption of Resolution 45/212 in which the UNGA decided to 'establish a single intergovernmental negotiating process under the auspices of the General Assembly, supported by the United Nations Environment Programme and the World Meteorological Organization, for the preparation by an Intergovernmental Negotiating Committee of an effective framework convention on climate change.'[16] This Intergovernmental Negotiating Committee (INC) adopted the Convention in May 1992, which entered into force almost two years later in March 1992, when it received ratification by fifty countries.[66]

The ‘ultimate objective’ of the Convention and its related instruments is the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’[20] To guide the achievement of such an objective, the Convention sets five principles that also steer the implementation of the Convention’s provisions. These principles include (1) the CBDR, according to which developed countries should take the lead in combating climate change and its detrimental effects; (2) the particular attention that ought to be given to the specific needs and circumstances of developing countries; (3) the precautionary principle; (4) the right to sustainable development and the importance of promoting it by integrating climate policies and measures with national development programs and economic development; and (5) the importance of cooperation for promoting an open international economic system.[67]

Notably, the tensions between the three overarching perspectives among states (described in Section II) influenced the crafting of such principles and how they further project on the Convention's commitments.[68] First, the tension between developed and developing parties around the issue of equity underpinned the crafting of the CBDR principle, arguably one of the most important principles elaborated by the UNFCCC, which provides the base for the Convention’s distinction between the commitments of ‘Annex I’ and ‘non-Annex I’ countries.[69] Annex-I countries comprise the developed state parties to whom the UNFCCC urges to limit GHG emissions by returning ‘by the end of the present decade (2000) to earlier levels (1990) of anthropogenic emissions.’[70] The Convention also sets differentiated commitments for a subgroup of these developed countries, listed in Annex II, which include to provide ‘new and additional financial resources to meet the agreed full costs incurred by developing country Parties’ and assist particularly vulnerable developing country parties in meeting the costs of adapting to the adverse effects of climate change.[71]

Further, concerns over the potential economic impact of binding GHG emission reduction commitments fueled disagreements among developed parties (the US and the European Union).[68] Reflecting such positions, the Convention underscores in its principles the importance of economic development for adopting measures to address climate change and promoting an open international economic system.[72] Also, the UNFCCC does not establish specific emission targets but sets general substantive obligations.

Though the UNFCCC does not contain firm commitments for countries to reduce GHG emissions (thus constituting no ambitious legal framework for addressing global warming), its principles have been key for international climate change regulation. Further, the institutional machinery the Convention sets underlie the operation of the climate change regime.[69] It also goes beyond previous framework conventions by establishing a financial mechanism (Article 11), requiring detailed reporting (Article 12) and international review (Article 7.2(e)).[68]

III. The Kyoto Protocol[edit | edit source]

The absence of concrete targets bound to a timetable in the UNFCCC led to negotiations for a ‘more stringent international agreement,’ which resulted in the conclusion of the Kyoto Protocol in 1997.[73] More specifically, at the 1st session of the Conference of the Parties (COP) held in Berlin in 1995, the parties adopted the Berlin Mandate, which established the Ad Hoc Group (AGBM) to negotiate a new legal instrument for adoption at COP3 in Kyoto. The Berlin Mandate set in motion a process for strengthening the commitments of developed countries under the Convention, including the definition of quantified limitation and reduction objectives within specified timeframes.[74]

The 2-year work of the AGBM led to the adoption of the Kyoto Protocol on 11 December 1997 during COP3. Noticeably, because of the prescriptive approach this treaty took on, it struggled to secure participation.[75] This is reflected in the fact, for example, that it did not enter into force until eight years after its adoption, on 16 February 2005, when ‘enough’ Annex I parties (accounting for at least 55% of the total CO2 emissions for 1990) deposited their instruments of ratification, acceptance, approval or accession.[76]

The overall goal of the Kyoto Protocol was to set emission reduction targets for Annex I countries and implementation and compliance mechanisms. It established a commitment period between 2008-2012 for parties to reduce their GHG emissions by at least 5% below 1990 levels.[77] Further, the Protocol mandated Annex I parties to have in place, no later than 2007, a national system for estimating anthropogenic emissions by sources and removals by sinks of all GHG, which ought to follow methodologies accepted by the IPCC and agreed upon by the COP.[78] Along the same lines of ensuring compliance, it also set the commitment for countries to periodically report and submit information relative to their progress on their emission reduction commitments.[79] To that aim, countries should incorporate relevant data into their annual inventory of GHG emissions and their national communications to the UNFCCC (Article 12 of the Convention), for which the Protocol also mandated guidelines.

Perhaps among the most salient features of the Kyoto Protocol are the implementation mechanisms it established. They are three: the Clean Development Mechanism (CDM) set up under Article 12, the Joint Implementation (JI) defined by Article 6, and the Emissions Trading (ET) set out in Article 16bis. The CDM allows countries with emission reduction commitments (Annex I parties) to undertake emission reduction projects in non-Annex I countries. In so doing, the former countries earn saleable certified emission reduction (CER) credits (each equivalent to one tonne of CO2) that count towards their Kyoto targets. Similarly, the JI provided the opportunity for Annex I countries to transfer to, or acquire from, any other such Party emission reduction Units (ERUs) resulting from emission reduction projects implemented in another Annex I country. Each ERU is equivalent to one tonne of CO2, which counts toward meeting these countries’ Kyoto targets.

Advanced: Concerns on ‘climate grabbing’ in CDM projects

The UNFCCC database indicates that 7844 CDM projects have been registered to date.[80] These projects span several sectors, including 67 activities on afforestation and reforestation.[81] While protecting the world’s forests is instrumental for reducing GHG emissions, several scholars have raised concerns about how such afforestation and reforestation projects promote ‘climate grabbing’ in Global South territories.[82] That is because governments and international NGOs are increasingly incentivized to preserve large areas of forests, they end up appropriating the land and resources of Indigenous peoples and other vulnerable communities for such climate mitigation purposes, thereby reinforcing existing socioeconomic inequalities.[83]


The ET scheme allowed countries whose actual emissions did not surpass their emission reduction commitments—and thus had emission units to spare—to sell this excess capacity to countries that were over their targets. In this way, a new commodity was created through emission reductions or removals, whereby carbon is tracked and traded like any other commodity.[84] Since CO2 is the main GHG, emissions trading is often known as the ‘carbon market.’ CER and ERU units from the CDM and JI, respectively, can also be transferred under this market.

Readers may have noticed by now that how the Kyoto Protocol set its commitments and mechanisms lay bare two distinctive aspects of its architecture. First, this treaty adopted a top-down regulatory approach whereby countries' legally binding commitments and emission reduction targets were internationally negotiated and passed down to the national levels. And second, drawing on the CBDR principle,[85] the Protocol delineated commitments and targets based upon a sharp differentiation between developed (Annex I) and developing (non-Annex I) countries. While this architecture fulfilled the vision that the Conference of the Parties had for a second legal instrument after the adoption of the Convention (as expressed in the Berlin Mandate), it entailed some disadvantages. Crucially, both because of the Protocol’s prescriptive nature and the extent of differentiation it reflects in favor of developing countries, the United States, one of the largest GHG emitters,[86] dropped out in 2001.[87] Given such a significant withdrawal and the fact that China (a non-Annex I country yet also a major GHG emitter)[86] was not given emission reduction commitments under the Protocol, this treaty’s emissions targets encompassed less than 24% of global GHG emissions.[88]

Added to the Kyoto Protocol’s limitations stands the restricted temporality it set as it only specified a first commitment period from 2008 to 2012. Hence, to extend such a period, the COP adopted decision 1/CMP.8 during its 18th session in Doha, Qatar, in December 2012. This decision, known as the ‘Doha Amendment,’ reformed the Kyoto Protocol to establish new quantified emission reduction targets for Annex I parties to achieve during a second commitment period from 2013 to 2020.[89] However, because this amendment followed the Kyoto Protocol’s architecture, it also failed to secure participation. Several developed country parties opted out from the second commitment period, including Canada, Japan, and Russia; therefore, the amendment covered only a fraction of global emissions.[87]

IV. The Paris Agreement[edit | edit source]

The Paris Agreement is the third treaty under the UNFCCC which essentially takes over from the Kyoto Protocol as the source of specific commitments for the climate regime.[90] It was adopted by the COP during its 21st session in 2015 and entered into force in November 2016. Its conclusion was the outcome of a politically bumpy process that began eight years prior, in 2007, with the adoption of the ‘Bali Action Plan’ at the 13th COP. This Plan set up an Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (AWG-LCA), as a subsidiary body under the Convention, to conduct a process ‘to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012.’[91] Such a process ought to be completed by 2009.[92]

The central political tension upon which the work of the AWG-LCA unfolded gravitated around the differentiation of emission reduction commitments between developed and developing countries. As emissions from the latter parties increased rapidly during the 2000s, the former countries emphasized the need for developing states to implement mitigation actions equally.[93] This was a crucial demand of countries like the US, who pulled out of agreements that differentiated participation—as happened with the Kyoto Protocol and its Doha Amendment. So, by the 2009 COP15 in Copenhagen (when the negotiations conducted within the AWG-LCA were supposed to lead to the adoption of a new instrument), incompatible views between developed and developing parties on such an issue impeded the conclusion of an agreement. Nonetheless, the resulting Copenhagen Accords sought to navigate the political tension by confirming the Bali Action Plan’s invitation to both Annex I parties to submit emission reduction targets for 2020 and to developing parties to submit nationally appropriate mitigation actions.[94] This enhanced role in climate mitigation that the Accords further reiterated for developing parties provided the subsequent negotiations a basis for moving forward.

A new attempt to develop a legal instrument under the Convention was formalized in 2011 at the 17th session of the COP in Durban, South Africa. COP17 established the Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG-DP), a process that would lead to an agreed outcome with legal force to be implemented from 2020. That outcome was the Paris Agreement, whose architecture, influenced by the route the preceding negotiations took, contrasts with the Kyoto Protocol, particularly in how it treats the distribution of countries’ emission reduction commitments.

The central purposes of the Paris Agreement stretch along the lines of both climate mitigation and adaptation. Regarding the former, the Agreement aims at ‘holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels […]’[95] At the same time, it calls for ‘increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience.’[96]

Unlike the Kyoto Protocol, the Paris Agreement does not mandate differentiated emission reduction targets based on the countries' development trajectory. Reaching the Agreement's temperature target requires mitigation actions from all parties. However, this instrument still embraces the principle of CBDR and calls for equity in the Agreement’s implementation.[97] Hence, in delineating how goals ought to be attained, Article 4 sets forth some considerations that differentiate between developed and developing countries to a certain extent. For example, it expresses the ‘aim’ of Parties to ‘reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter […]’[98] It also mandates developed parties to continue 'taking the lead' in emission reduction targets and support developing countries in implementing the Agreement.[99]

Besides the CBDR and equity principles—which past instruments already recognized—the Agreement introduces a new set of principles, namely the maximum ambition and the progression principles.[100] Specifically, Article 3 calls on parties to undertake and communicate ‘ambitious efforts’ that represent a ‘progression over time.’[101] Together, these principles help establish a foundation for higher ambition by ensuring that each party progressively increases its level of commitment (over the 5-year cycle the Agreement works on) considering its maximum possible efforts.

Central features of the Paris Agreement are the tools it crafts for achieving its purposes. Among these tools stand the nationally determined contributions (NDCs), the long-term strategies (LT-LEDS), adaptation, and the global stocktake. The NDCs are the plans through which state parties (both developed and developing countries) are obliged to communicate the actions they intend to take to reduce their GHG emissions to reach the Paris Agreement's temperature goal and adapt to climate change.[102] Each party should communicate its NDC every five years so that each submission progressively shows increased ambition.[103] The NDC cycle began in 2020 when all parties were welcome to submit their initial updated communications.[104]

Advanced: The ambition of GHG emission reductions pledged in NDCs is not enough to avert a 1.5°C increase in the global temperature
According to the Climate Action Tracker, an independent scientific analysis that monitors government climate action, as of November 2021, a substantial gap remains between the levels of emissions in 2030 projected in the NDCs submitted to the UNFCCC, and the lower levels that would be consistent with the temperature limit of the Paris Agreement.[105] As the image shows, there is a gap of 19–23 GtCO2e in 2030 between the emission from the NDCs submitted and the benchmark emissions from a 1.5°C compatible pathway (26 GtCO2e in 2030).
Figure 5 CAT 2021-11 Briefing 2030EmissionsGaps-Changes2.original.png
[106]


Furthermore, the Paris Agreement invites countries to ‘formulate and communicate long-term low greenhouse gas emission development strategies’[107] (LT-LEDS). These strategies define the long-term horizon to the NDCs. However, unlike NDCs, LT-LEDS are not mandatory.[104] The Paris COP15 invited state parties to communicate their LT-LEDS by 2020.[108] As of August 2022, 51 countries had submitted their strategies, including the European Union, United States, and China,[108] the world’s top GHG emitters.

The setting up of a set of arrangements around adaptation is another tool the Paris Agreement defines as a means for achieving its purposes.[28] In so doing, it confers equal visibility and importance to mitigation and adaptation, thereby becoming the first treaty of the UNFCCC to prioritize adaptation.[109] Article 7 of the Agreement sets a global goal on adaptation and mandates countries to engage in adaptation planning processes and the implementation of actions, including by developing national adaptation plans.[110] Parties should submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs, plans, and actions.[111] The Agreement also calls for the provision of international support for developing country parties in adaptation efforts.[112]

Given that reaching the Agreement's long-term temperature target and adaptation goals depends on the level of ambition of climate action, the Paris Agreement establishes a continuous improvement cycle to sustain rising ambition over time.[113] This is a ‘plan-implement-review’[114] cycle referred to as the 'global stocktake,’ through which countries plan and submit their NDCs and adaptation communications, implement them, and finally, review their adequacy and effectiveness to inform future planning and subsequent communications. Article 14 mandates the COP to undertake its first global stocktake in 2023 and every five years after that.

This architecture contrasts with that of the Kyoto Protocol. While the Paris Agreement's objectives and principles were laid down by multilateral negotiations, reflecting a top-down approach, the Agreement's NDCs and adaptation arrangements entail a bottom-up template.[115] In other words, the Agreement requires mitigation actions from all countries indistinctively while giving them the flexibility to decide on their level of ambition, as opposed to the Kyoto Protocol's differentiation-based and prescriptive model. It then undertakes a global stocktake to assess collective progress based on which parties will again determine their next NDCs and communications. Such a hybrid architecture has allowed the Paris Agreement to improve its predecessor’s level of participation: A record 175 parties signed the Agreement on 22 April 2016, when it opened for signature, and it entered into force less than a year after it was adopted.[116]

D. International Climate Change Law beyond the UNFCCC[edit | edit source]

This chapter has thus far focused on the UNFCCC treaty regime, as it constitutes a central source of international climate change law. However, as mentioned in the previous sections, it is essential to note that international climate change law spans beyond such a regime. Because climate change infuses in and affects almost every dimension of human existence, normative developments in other fields of international law that regulate such dimensions have also intersected with concerns about the problem of global warming. These fields include international environmental law, human rights law, trade and investment law, refugee and migration law, and the law of the sea.

This section concentrates on the content of international environmental law and human rights law that address climate change and thus add to the corpus of international climate change law. While legal propositions on climate change stemming from other fields of international law are equally relevant, international environmental law holds perhaps one of the closest ties with the issue of climate change, given how its principles have ‘traveled’ to the UNFCCC makeup. On the other hand, the overlap of climate change with human rights law has opened pathways beyond the executive branches that appear to be expanding the influence of international climate change law, as the recent wave of rights-based climate litigation suggests. In recounting how both fields address climate change, this section considers the normative developments in international law's global and regional arenas.

I.  Multilateral Environmental Agreements[edit | edit source]

Concerns about climate change have arisen in several areas of international environmental law. They are reflected in provisions set by multilateral environmental agreements (MEAs), which aim to address the impacts of climate change on natural resources and strengthen how environmental governance deals with climate mitigation and adaptation. The 1971 Convention of Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and the 1992 Convention on Biological Diversity (CBD), three major instruments concerning biodiversity, outline responses in such regard. Climate responses also arise from regional instruments on environmental governance as the 2017 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and the 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement).

Biodiversity Agreements[edit | edit source]

The Ramsar Convention is the oldest of the modern MEAs; it was adopted in the city of Ramsar, Iran, and came into force in 1975.[117] This Convention promotes the conservation of wetlands (areas of marsh, fen, peatland, or water with water that is static or flowing, fresh, brackish, or salt)[118] that hold international significance in terms of their environmental characteristics, including their ecology and hydrology.[119] CITES is another international agreement aiming to protect wild flora and fauna—as irreplaceable parts of the natural systems—by ensuring that their international trade does not threaten the species' survival.[120] It was adopted in 1973 and entered into force two years later, in 1975.[121] The CBD is a more recent instrument as it was adopted two decades after CITES in 1992 and entered into force in 1993.[122] It is also concerned with protecting living organisms, but unlike CITES, the CBD does not regulate trade, nor is it restricted to animals and plants. The CBD is concerned with the conservation and sustainable use of biological diversity, which encompasses all biotic components of ecosystems (including micro-organism communities and non-living environments), and the equitable sharing of the benefits arising from their genetic resources.[123] While neither of these instruments makes explicit reference to climate change—in fact, the Ramsar Convention and CITES even precede the establishment of the UNFCCC—their work considers the threats it poses to the species and habitats they protect. Therefore these treaties address climate change to varying degrees.[124]

The linkage between wetlands and the global temperature increase is strong. On the one hand, peatlands, which cover only 3% of the earth’s land surface, store 30% of all land-based carbon. At the same time, mangroves and seagrasses provide cost-effective disaster-risk reduction solutions to protect communities against storm surges.[125] And on the other, climate change situates wetlands at risk of degradation and loss.[125] Given the essential role of wetlands for climate mitigation and adaptation and the detrimental impacts of climate change on them, the Conference of the Parties to the Ramsar Convention (COP-Ramsar) has recurrently addressed such a linkage. More specifically, it has taken several steps to include climate change considerations in the management and protection of wetlands. For example, in 2002, the COP-Ramsar adopted Resolution VIII.3 on 'Climate change and wetlands; impacts, adaptation and mitigation,' which the Conference subsequently updated through Resolution X.24 during its 10th Meeting in 2008. This superseding resolution entitled 'Climate change and wetlands' mandated contracting countries, among other measures, to ‘include in national climate change strategies the protection of wetlands’ and to ‘improve management practices of peatlands and other wetland types that are significant GHG sinks.’[126] It also set institutional arrangements for strengthening synergies between the Ramsar Convention, the CBD, and the UNFCCC.[126]

Of these three biodiversity treaties, CITES is the least concerned with climate change impacts.[127] Discussions on such an issue by the Conference of the Parties to this Convention (COP-CITES) have concentrated on the implications of climate change for science-based decision-making.[127] For example, at its 15th Meeting in Doha in 2010, the COP-CITES adopted decisions 15.15 and 15.16. Through the former, COP-CITES directed the Animals and Plants Committees to ‘identify the scientific aspects of the provisions of the Convention and of Resolutions of the Conference of the Parties that are actually or likely to be affected by climate change […] and make recommendations for further action.’[128] Decision 15.16 directed the Secretariat to ‘request from the secretariats of other [MEAs] information on their activities that may be linked to climate change and CITES.’[128] The subsequent institutional developments within CITES revolve around ‘fact finding’ the impacts of climate change on the Convention’s core activities, particularly on listing and non-detriment determinations.[127]

Like the Ramsar Convention, the CBD acknowledges how closely connected biodiversity conservation and climate change are and has thus integrated climate change issues into its core activity. Notably, the findings of the 3rd Global Biodiversity Outlook (GBO), published in 2010, led the Conference of the Parties to the CBD (COP-CBD) to adopt the Strategic Plan 2011-2020 and the Aichi Biodiversity Targets, which include climate-related measures in two strategic goals.[129] More specifically, the 2010 GBO pointed to climate change as one of the five main pressures directly driving biodiversity loss, which, reciprocally, exacerbates climate change due to the degradation of carbon-storing ecosystems.[130] Hence, two of the twenty Aichi Biodiversity Targets for 2015-2020, which are organized under the five goals of the Strategic Plan, address climate change.[131] The first of these, Target 10, calls for protecting coral reefs and other vulnerable ecosystems from climate change. The second climate-related target, Target 15, mandates parties to contribute to climate change mitigation and adaptation by ensuring the restoration of at least 15% of degraded ecosystems.

The development of the post-2020 global biodiversity framework is currently under preparation by the CBD. Its adoption is expected to occur during the 15th Meeting of the COP-CBD, which encompasses two parts: one during 2021 and the second on December 2022.[132]

Environmental Governance Agreements[edit | edit source]

The Espoo Convention aims to prevent, reduce, and control adverse transboundary environmental impacts by directing countries to develop national environmental impact assessment (EIA) procedures and forging a base for international cooperation in the subject matter.[133] This regional treaty was adopted by the Senior Advisers on Environmental and Water Problems of the Economic Commission for Europe at their fourth session held in Espoo, Finland, during February and March 1991.[134] It entered into force in September 1997.[134] The Protocol on Strategic Environmental Assessment (Kyiv Protocol), which came into force 13 years later in 2010, expanded the Convention's scope by ensuring that governments integrate EIA into their plans and programs at the earliest stages.

Even though the Convention includes effects on ‘climate’ among the environmental impacts that countries should address, it leaves harms of 'global nature' out of its regulatory focus.[135] Hence, the Convention does not fully address climate change concerns because the impacts of GHG emissions are not usually detectable at the place where they are emitted—they instead have global effects. However, its Kyiv Protocol, which also considers ‘climate’ among the list of potential effects of concerns,[136] requires states to conduct strategic EIA whether or not the impact would take place in a transboundary context, thereby providing an interpretative ground for considering the effects on the global environment.[137] Further, the EU Commission has called for the mainstreaming of climate mitigation measures into member states’ legislation on EIA and therefore issued guidance documents in 2013[138] and a directive in 2014[139] on the matter, which ultimately reverberates on the implementation of the Espoo Convention and its Protocol.

A more recent MEA on environmental governance is the Escazú Agreement. Adopted in March 2018, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean—as its long name suggests—aims to guarantee the full and effective implementation in this world region of the rights of access to environmental information, public participation, and access to justice relevant to the protection of the environment.[140] The Agreement came into force on 22 April 2021 after Argentina and Mexico ratified it, thereby fulfilling the conditions for its entry into force according to Article 22.[141] Currently, 25 out of the 33 Latin America and the Caribbean countries have adopted it, while 13 have ratified it.[142]

The Escazu Agreement sets the principles and measures each state should adopt to realize the rights protected by this instrument. For instance, regarding the rights of access to environmental information and justice, respectively, it mandates countries to 'have in place one or more up-to-date environmental information systems' and ‘meet the needs of persons or groups in vulnerable situations by establishing […] free technical and legal assistance.’[143] It also establishes a voluntary fund to support its implementation and outlines institutional and procedural arrangements to facilitate its application and enforcement, such as the Committee to Support Implementation and Compliance and a dispute settlement mechanism.[144] In so doing, the Escazú Agreement constitutes a key instrument for the fight against climate change. Notably, it is relevant for climate change mitigation and adaptation in two senses. First, Article 3.3(g) mandates state parties to disclose updated information on climate change sources. Further, the Agreement commits countries to implement open and inclusive participation.[145] Together, these provisions urge countries to make information on their NDC publicly available while promoting the public's engagement in their design, as, for example, in Colombia's case.[146]

II. Intersections with Human Rights Law[edit | edit source]

Even though climate change impacts almost every dimension of human well-being and dignity, international climate change and human rights law formally intersected until recently. Because these legal fields stemmed from divergent historical and political junctures, they have followed different normative trajectories. Multiple commentators trace the beginning of the treaty-based international human rights regime to 1948, with the adoption of the Universal Declaration of Human Rights, which the post-World War II momentum facilitated.[147] The UNFCCC treaty regime, on the other hand, began to develop four decades after, in 1992 (cross reference). Yet it was not until 2008 that the human rights regime addressed the issue of climate change through the adoption of Resolution 7/23 by the Human Rights Council. Reciprocally, the UNFCCC incorporated the language of human rights in 2010.

The 2008 Resolution 7/23 of the human rights council was the first by a UN human rights body concerned with the impacts of climate change on the full enjoyment of human rights. It requested the Office of the UN High Commissioner for Human Rights (OHCHR) to conduct a ‘detailed’ analytical study on such a relationship.[148] The OHCHR submitted this report a year after, in 2009, on the occasion of the tenth session of the Human Rights Council.[149] In its study, the High Commissioner outlined the implications of the increase in the global average temperature on specific human rights—such as the rights to life, adequate food, water, and health—and on particular groups.[150] It also highlighted the significance of procedural rights such as access to information and participation in decision-making to address climate change.[151] Crucially, it purveyed an early clarification of the extent to which human rights obligations protect against climate change or measures taken to respond to climate change.[152] However, it took a conservative stance by depreciating the interpretative space for qualifying the effects of climate change as human rights violations.[153]

Since then, the UN human rights system has adopted several resolutions and undertaken studies and discussions on the relationship between climate change and human rights.[154] Regional human rights systems, like the African Commission on Human and Peoples' Rights and the Inter-American Human Rights Commissions, have also taken a stance on the issue by adopting resolutions that substantiate a connection between human rights obligations and the urgency to prevent dangerous global warming. Moreover, against the absence of substantive international jurisprudence dealing with the application of human rights law to climate change, scholarly analyses have been able to even attribute state responsibility for acts and omissions that lead to dangerous climate change and associated violations of human rights by integrating both legal frameworks[155]—a doctrinal progression that the 2009 OHCHR report overlooked.

Advanced: Climate change and the African Commission on Human and People’s Rights

In 2015, the African Commission on Human and Peoples’ Rights deliberated together with representatives of Indigenous peoples, national human rights institutions, and civil society from the East and Central African sub-regions on the ways and means of implementing the Outcome Document adopted by the General Assembly Resolution A/Res/692 at the World Conference on Indigenous Peoples of September 2014.[156] The resulting Yaundé Declaration consolidated the agreement among such parties to ‘ensure that when climate change policies and actions are being developed and implemented at the national and local levels, indigenous peoples are effectively involved, their rights are respected, protected and fulfilled, and their traditional knowledge […] recognized, supported and used.’[157]

Advanced: The Inter-American Commission on Human Rights’ Resolution on the Climate Emergency

In December 2021, the Inter-American Commission on Human Rights adopted Resolution 3/21 ‘Climate Emergency: Scope of Inter-American human rights obligations,’ the first document of this regional human rights body specifically dedicated to the issue of climate change.[158] This resolution draws inter alia on the normative and jurisprudential developments of the Inter-American Human Rights System, including the Advisory Opinion 23 of the Inter-American Court of Human Rights, to systematize the human rights obligations of States in the context of the climate crisis in order to guide them toward rights-based approach policy-making.[159]


This trajectory has strengthened how the connection between human rights and climate change is addressed both institutionally and normatively. For example, the most recent resolutions stemming from the UN human rights system concern two landmark developments in both directions. First, at the institutional level, in 2021 the Human Rights Council appointed a special rapporteurship on the promotion and protection of human rights in the context of climate change, with the mandate of, among other objectives, making recommendations on how to address and prevent the adverse effects of climate change on the full and effective enjoyment of human rights.[160] Further, in July 2022, the UN General Assembly recognized the right to a clean, healthy and sustainable environment as a human right, whose enjoyment—the Assembly further identified—is compromised by climate change.[161] The utility of having a stand-alone right to a healthy environment is that it imposes obligations on states to prevent harmful conditions for the environment, including climate change, thus facilitating policymaking and legal reasoning in such a direction.[162]

On a parallel track to international human rights law, the connection between human rights and climate change has also developed within the field of climate change law, albeit at a slower pace. The COP to the UNFCCC first recognized such a linkage at its 10th session held in Cancún in 2010 by 'noting' Resolution 10/4 of the Human Rights Council, which acknowledges the adverse effects climate change poses on several human rights.[163] Moreover, the Cancún Agreements recommend parties to fully respect human rights in all climate change-related actions.[164] A greater emphasis on the human rights-climate change nexus came five years after, with the adoption of the Paris Agreement—the third legally-binding instrument of the UNFCCC climate regime. Despite solid efforts of international human rights bodies to incorporate human rights law in the substantive part of the Agreement, political tensions in the negotiations upon such an issue led to the Agreement only recognizing human rights as a preambular reference.[165] Specifically, the Paris Agreement acknowledges, in its Preamble, that 'climate change is a common concern of humankind' and commends parties to 'respect, promote and consider their respective obligations on human rights' when taking action to address climate change.[166]

By endorsing the linkage between human rights and climate change in a legally binding instrument, the Paris Agreement signifies an important milestone for integrating both legal fields. Consequently, efforts at the policy and judicial fronts to mitigate and adapt to climate change have increasingly relied on making the human rights and climate change frameworks coalesce. For example, the elaboration of National Adaptation Plans (a policy instrument stemming from the UNFCCC climate regime) under a human rights approach has gained traction as a strategy to better advance the realization of specific human rights in contexts characterized by high socioeconomic inequalities.[167] Also, the Paris Agreement marked a surge in climate change lawsuits worldwide, in which litigants have increasingly relied on human rights arguments to prompt national courts to redress climate-induced risks.[168]

Advanced: Rights-Based Climate Litigation in the Global South: A Case in Focus

Mr. Ashgar Leghari, a Pakistani farmer, filed a lawsuit in the Lahore High Court in 2015 against the Pakistani government for failing to address climate change. He argued that despite the government's publication of a National Climate Change Policy, no tangible progress had been made on the ground, thus putting his fundamental constitutional rights in jeopardy. The Court ruled in favor of Mr. Leghari. He ordered the constitution of a joint Climate Change Commission of experts and the government to advance the issue and implement the fundamental rights of the people of Punjab.[169]



Conclusion[edit | edit source]

Climate change is one of the most complex and challenging issues of our time to which law seeks to respond. This chapter has offered an overview of the background, architecture, and normative proposition of the UNFCCC regime upon which international climate change law is mainly forged. It has also outlined the mechanisms through which the written law ought to be translated into actions. Whether these tools or those provided by climate change law's intersections with other legal fields purvey an adequate and timely response to prevent and adapt to increasing temperatures remains an open endeavor. Climate change's inexorable connection with global patterns of inequality underpins political and socioeconomic tensions, whose untangling is essential for realizing climate justice. Because the law is a perfectible instrument, its adequacy for addressing climate change depends mostly on our ability to choose a healthy planet over accumulation and dispossession.

Table of Contents[edit source]

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Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. Xiye Bastida, ‘Speech delivered at the Leaders Summit on Climate’ (U.S. Department of State Summits and Conferences, 22 April 2021) 2:50:21<https://www.youtube.com/watch?v=6xa7yyypznY>accessed 1 August 2022.
  3. ‘IPCC, 2021: Summary for Policymakers’ in V. Masson-Delmotte, P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2021) 3, 6.
  4. ‘IPCC, 2021: Summary for Policymakers’ in V. Masson-Delmotte, P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2021) 3, 8.
  5. ‘IPCC, 2021: Summary for Policymakers’ in V. Masson-Delmotte, P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.), Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2021) 3, 14.
  6. Ibid 14; ‘IPCC, 2021: Summary for Policymakers’ in H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama (eds.), Climate Change 2022: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2022) 1, 13.
  7. Chezza Zoeller, ‘Climate Hero: Xiye Bastida’ (One Earth, 25 October 2021)< https://www.oneearth.org/climate-hero-xiye-bastida/>accessed 1 August 2022.
  8. Climate Action Tracker, ‘2100 Warming Projections’ (Climate Action Tracker, November 2021)<https://climateactiontracker.org/global/temperatures/>accessed 1 August 2022.
  9. UN Women, ‘Interview: “You can’t have climate justice without gender equality”’ (UN Women, 1 March 2022) <https://www.unwomen.org/en/news-stories/interview/2022/03/interview-you-cant-have-climate-justice-without-gender-equality>accessed 1 August 2022.
  10. a b J. T. Houghton, G. J. Jenkins, and J. J. Ephraums (eds.), Climate Change: The IPCC Scientific Assessment (WMO and UNEP 1990)< https://www.ipcc.ch/site/assets/uploads/2018/03/ipcc_far_wg_I_full_report.pdf>accessed 1 August 2022.
  11. Susana Borràs, ‘Movimientos para la justicia climática global: replanteando el escenario internacional del cambio climático’ (2016) 33 Relaciones Internacionales 97, 98.
  12. Caroline Moser, Andrew Norton, Alfredo Stein, and Sophia Georgieva, Pro-Poor Adaptation to Climate Change in Urban Centers: Case Studies of Vulnerability and Resilience in Kenya and Nicaragua (The World Bank, 2010) <https://openknowledge.worldbank.org/handle/10986/3001>accessed 1 August 2022.
  13. ‘IPCC, 2021: Summary for Policymakers’ in H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama (eds.), Climate Change 2022: Impacts, Adaptation, and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2022) 1, 12.
  14. Richard Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ (2009) 94(5) Cornell Law Review 1153.
  15. Rosemary Gail Rayfuse and Shirley V. Scott, ‘Mapping the Impact of Climate Change on International Law’ in Rosemary Gail Rayfuse and Shirley V. Scott (eds.), International Law in the Era of Climate Change (Edward Elgar Publishing 2012), 4.
  16. a b c UN General Assembly, Resolution 45/212 - Protection of Global Climate for Present and Future Generations of Mankind (United Nations, 21 December 1990)<https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/566/01/IMG/NR056601.pdf?OpenElement>accessed 1 August 2022.
  17. Cinnamon Carlarne, Kevin R. Gray, and Richard Tarasofsky, ‘International Climate Change Law: Mapping The Field’, in Kevin R. Gray, Richard Tarasofsky, and Cinnamon Carlarne (eds.), The Oxford Handbook of International Climate Change Law (Oxford University Press, 2016)<https://doi.org/10.1093/law/9780199684601.003.0001>
  18. Lavanya Rajamani and Jacob D. Werksman, ‘Climate Change’, in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2021) 492, 507.
  19. UN Climate Change, ‘Status of Ratification of the Convention’ (UNFCCC, n.d.)<https://unfccc.int/process-and-meetings/the-convention/status-of-ratification/status-of-ratification-of-the-convention>accessed 1 August 2022.
  20. a b UNFCCC 1992, Article 2.
  21. ´FP 186 – India E-Mobility Financing Program’ (Green Climate Fund, n.d.)https://www.greenclimate.fund/project/fp186accessed 30 August 2022.
  22. Paul Wolfram, Stephanie Weber, Kenneth Gillingham, and Edgar G. Hertwich, ‘Pricing Indirect Emissions Accelerates Low—Carbon Transition of US Light Vehicle Sector’ (2021) 12(1) Nature Communications 7121 <https://doi.org/10.1038/s41467-021-27247-y>accessed 30 August 2022.
  23. SAP017 – Climate proofing food production investments in Imbo and Moso basins in the Republic of Burundi’ (Green Climate Fund, n.d.)https://www.greenclimate.fund/project/sap017accessed 30 August 2022.
  24. SAP017 – Climate proofing food production investments in Imbo and Moso basins in the Republic of Burundi’ (Green Climate Fund, n.d.)https://www.greenclimate.fund/project/sap017accessed 30 August 2022.
  25. UNFCCC 1992, Article 4(b).
  26. a b Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani, International Climate Change Law (Oxford University Press, 2017), 12.
  27. Kyoto Protocol 1997, Article 3.
  28. a b Paris Agreement 2015, Article 7.
  29. UNFCCC 1992, Article 4 para. 3.
  30. a b United Nations Climate Change, ‘Climate Finance’ (UNFCCC n.d.)< https://unfccc.int/topics/climate-finance/the-big-picture/climate-finance-in-the-negotiations/climate-finance#:~:text=The%20Financial%20Mechanism%20is%20accountable,and%20eligibility%20criteria%20for%20funding.&text=The%20Kyoto%20Protocol%20also%20recognizes,activities%20by%20developing%20country%20Parties>accessed 1 August 2022.
  31. UNFCCC 1992, Article 12.
  32. Vienna Convention on the Law of Treaties 1969, Article 2(a).
  33. Vienna Convention on the Law of Treaties 1969, Article 11.
  34. UNFCCC 1992, Article 7 para. 2.
  35. Lavanya Rajamani and Jacob D. Werksman, 'Climate Change,' in Lavanya Rajamani and Jacqueline Peel (eds.), The Oxford Handbook of International Environmental Law (Oxford University Press, 2021) 492, 497.
  36. Lavanya Rajamani and Jacob D. Werksman, 'Climate Change,' in Lavanya Rajamani and Jacqueline Peel (eds.), The Oxford Handbook of International Environmental Law (Oxford University Press, 2021) 492, 493.
  37. Erkki J. Hollo, Kati Kulovesi, and Michael Mehling, eds., Climate Change and the Law (Springer Netherlands, 2013), 16.
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