Ebook: Regulating Global Climate Change

The UN Framework Convention on Climate Change (UNFCCC) was adopted at the UN headquarters (UNHQ) on 9 May 1992. It opened for signature at Rio de Janeiro between 4 and 14 June 1992 and thereafter at the UNHQ on 20 June 1992. That means that when, on 4 June 2022, UNFCCC turned 30, it coincided with the Stockholm+50 Conference (2–3 June 2022). In his address to the Stockholm+50 gathering, the UN Secretary-General (UNSG) Antonio Guterres construed “climate emergency” as one of the key drivers of the “triple planetary crisis”. As a framework convention with 197 states parties, the UNFCCC became one of the first global instruments to designate climate change as a common concern of humankind. With two subsequent treaties – the 1997 Kyoto Protocol and the 2015 Paris agreement – the climate change regime now consists of a corpus of instruments seeking to address this global problematique.

Since 1988, the UN General Assembly (UNGA) has been the conductor of the grand climate change orchestra. It has invoked the normativity of common concern and brought into being the UNEP-WMO joint mechanism of IPCC (UNGA resolution 43/53 of 8 December 1988). The resultant process for climate negotiations (1990–1992) accrued the UNFCCC.

The completion of three full decades (1992–2022) of the UNFCCC provided a unique opportunity to look back at the journey of global climate change regulation in order to look ahead for the realization of the primary objective (Article 2): “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.

The growing scientific warnings lead us to believe that an unprecedented global warming is at work. For instance, the IPCC AR6 (April 2022) explicitly states: “Total net anthropogenic GHG emissions have continued to arise during the period 2010–2019... of about 12% (6.5 GtCO2-eq) higher than in 2010 and 54% (21 GtCO2-eq) higher than in 1990”. In view of this, the regulatory goal for the near future has been pegged at 1.5°C of global warming by 2050. Similarly, the UNEP’s Emissions Gap Report (October 2022) reinforced global concerns that “the international community is falling far short of the Paris goals, with no credible pathway to 1.5°C in place. Only an urgent system-wide transformation can avoid climate disaster”. The WMO predictions (2022) for sea-level rise also showed that “the years 2015 to 2022 were the eight warmest in the 173-year instrumental record. The year 2022 was the fifth or sixth warmest year on record”. As a sequel, the WMO (April 2023) has now issued warning that “during the period 2013-22 sea-level rise has been 4.5 mm/yr”. At least since 1971, the human influence has been regarded as the main driver of these increases. Cumulatively, these prognoses and projections have set the stage for a climate change emergency.

COP27 (Sharm el-Sheikh) was held from 6–20 November 2022 against the backdrop of these scientific predictions. It witnessed calls for ‘payment overdue’, and marked division and posturing among different groups of countries seeking to serve national rather than common interests. Even though COP27 adopted the decision on ‘loss and damage’ funding for the vulnerable countries hit hardest by climate disasters, it will take years to flesh out the mechanism and requisite funding for such compensation payments by the countries concerned. Previous experience of the fate of such climate funding commitments does not augur well. As the stalemate continued, thousands of assembled delegates began to leave the conference venue. On 19 November, the feisty UNSG stepped in again to nudge the negotiators with the warning that “Instead of a burning bush, we face a burning planet. This conference has been driven by two overriding themes: justice and ambition. Justice for those on the frontlines who did so little to cause the crisis... Ambition to keep the 1.5° limit alive and pull humanity back from the climate cliff”. It showed that the UNFCCC, the legally ordained platform for institutionalized cooperation for the stabilization of GHG concentration, appears to be floundering, and nowhere close to realizing its raison d’etre. What has gone wrong?

Given the above, it became natural for the journal Environmental Policy and Law (EPL) to place the global process for climate change regulation under the scanner in the scholarly realm. It took more than a year to crystallize the special climate change issue to mark the 30^th year of the UNFCCC. Our quest to find ideas for the decision-makers, within the constraints of time, space and resources, culminated in an EPL special issue (vol. 52, no. 5–6, 2022). This book includes the articles from that special issue, to provide a sequel to the two back-to-back books published by IOS Press: (i) Envisioning Our Environmental Future: Stockholm+50 and Beyond (2022); and (ii) Our Earth Matters: Pathways to a Better Common Environmental Future (2021). The dozen outstanding contributions in this curated study seek to make sense of the marathon climate-change regulatory process. The book is organized in five parts: I. Climate Normativity (B. Desai; M.A. Marmolejo Cervantes et al.); II. Regime @ Crossroads (D. Bodansky; M. Doelle); III. Climate Justice (K. Junker et al.; T. S. Tirumurti); IV. Factoring Gender (B. Desai et al.; R. Maguire et al.; E. Morgera et al.); V. Paris Conundrum (E. Rehbinder; M. Hautereau-Boutonnet et al.; O. Ruppel et al.).

Cumulatively, these ideational takes on different facets of the climate change juggernaut provide concrete elements for scholars and decision-makers to seriously ponder regarding the approach, process, tools and techniques used to address the primary objective of the UNFCCC. Does this mean going back to the drawing board? That would require the original progenitor, the UN General Assembly, to reframe the normative basis from ‘common concern’ to ‘planetary concern’. In the wake of the climate crisis assuming a planetary scale, the UNGA needs to take charge, adopting an appropriate normative process, possibly through an emergency special session, to provide a future direction for the UNFCCC and the Paris Agreement processes. COP27 (2022) left nagging questions with regard to the three decades old global climate change regime, the in-built law-making processes, the sincerity of the state parties in taking the scientific evidence of human impact on climatic changes seriously, and effectiveness of the tools and techniques employed to address the challenge. Nothing spectacular is expected to take place at COP28, to be held in Dubai (UAE) from 30 November to 12 December 2023.

The advisory opinion sought by the UNGA (vide resolution 77/276 of 29 March 2023) from the International Court of Justice (ICJ) is indicative of the crisis that pertains. The ICJ has been called upon to clarify what is already laid down in the three climate change treaties as regards: “obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations” as well as the “legal consequences under these obligations”. If the ICJ agrees to render an opinion, it will take about two years to do so. Will that make a critical difference in averting the climate crisis? It may give a fillip to the climate change related litigation in the domestic courts of law. Making the sovereign States to walk-the-talk of giving effect to their obligations (moral and legal) for the ‘stabilization’ of GHG concentrations in the atmosphere (UNFCCC, Article 2) to avert climate emergency remains the biggest challenge in this era of a planetary crisis.

Thus, as we look ahead, the future trajectory of the global climate change regulatory process remains uncertain. It presents an ideational challenge for the scholars of international law, the UNGA and the UNFCCC process to actually make it work by elevating the normative ambit from ‘common concern’ to ‘planetary concern’ with all attendant requirements including the three climate change treaties (1992; 1997; 2015). It can define the future direction of the entire climate change regulatory approach in a way that it will be scrupulously complied with in a timely manner by all the parties. The forthcoming Summit of the Future (UNGA resolution 76/307 of 8 September 2022), to be convened in New York on 22–23 September 2024, may possibly also provide an opportunity to shift into higher (emergency) gear for a decisive course correction which may rescue the earth from the planetary-scale climate crisis. Time will have to be very generous if it is to grant us enough latitude to achieve this.

Bharat H. Desai

Editor

Since the recognition by the UN General Assembly resolution 43/53 (6 December 1988) that “climate change is a common concern of mankind” as well as adoption of the UN Framework Convention on Climate Change (UNFCCC) at the 1992 Rio Earth Summit, climate change has emerged as one of the most pressing global environmental challenges. The IPCC AR6 (April 2022) curated scientific evidence has explicitly observed that “Net anthropogenic GHG emissions have increased since 2010 across all major sectors globally.” The cumulative effect of GHG emissions appears to exacerbate the abnormal weather events, melting the polar ice caps and cause other cataclysmic climatic changes. The effects of climate change transcend territorial boundaries and continents. It has provided a normative basis for the concerted international law-making process underneath the existing UNFCCC led global regulatory regime. It designated climate change as a common concern of humankind. The resultant soft normativity has been shaped into the hard law through the trajectory of three international legal instruments that took the forms such as common but differentiated responsibilities and respective capabilities (1992 UNFCCC) to international legal commitments only for Annex I countries (1997 Kyoto Protocol) and the nationally determined commitments by the parties (2015 Paris Agreement). This study has sought to place under scanner the graded evolution of the climate change regime through the in-built law-making process premised upon a common concern of humankind. In the aftermath of the UN Secretary-General’s warning about climate emergency as part of “triple planetary crisis”, it is high time the international law scholars, the UN General Assembly and the UNFCCC regulatory process shift into the higher trajectory of climate change as a planetary concern.

This article analyzes the possibility of environmental obligations acquiring the status of jus cogens (peremptory) norms from six perspectives, namely, domestic legislation of States, national judicial decisions, academia and international organizations, United Nations documents and initiatives, treaties and international State practice, and international tribunals. Additionally, it is argued that the economic and political interests surrounding the military and fossil fuel industries and the vast resources dedicated to them hinder the world’s climate change efforts. Thus, the article presents two research questions. First, what are the possibilities of environmental obligations becoming peremptory norms of international law? Second, if these obligations currently do not meet the requirements to be recognized as jus cogens, what would be required for them to obtain this status?

This article provides a retrospective assessment of the United Nations climate change regime at age thirty. It begins by reviewing the four key stages in the development of the regime. It then discusses how, despite considerable changes in the world, the climate change regime has stayed much the same, and analyzes why the issue has been so intractable. It introduces three models of how international law might address the climate change problem—a prescriptive, contractual, and facilitative/catalytic model—and argues that the facilitative/catalytic approach reflected in the Paris Agreement is best suited to address the climate change problem. It concludes with a report card on how the regime is doing on its 30^th anniversary.

The UN Framework Convention on Climate Change (UNFCCC) was adopted in 1992. It was opened for signature at Rio de Janeiro in June of that year. The 30th anniversary of its adoption offers an opportunity to reflect on more than a quarter of a century of UN climate diplomacy, and to consider the path ahead. This contribution takes a look back at the choices made that have led the regime to its current state. It then takes a look forward and considers the prospects of the regime meeting its ultimate aim of avoiding dangerous human interference with the climate system.

We are already witnessing climate-induced migration and thus must prepare to address the next decades of even more human mobility as a consequence of the climate disruption crisis. Fifty years after the Stockholm Conference, international environmental law still needs solutions to protect those persons most vulnerable to environmental harm. This paper seeks to focus on the concept of reparative justice as the theme and attitude of legal solutions, so as to refocus legal tools to provide relief to those persons who are displaced and dispossessed because of the climate disruption crisis. In this paper, we present possibilities for a reparative climate justice regime that could help to break the current cycle of harm and denial in which states are currently embroiled within international climate negotiations. This focus considers how careful solutions such as credit within the financial mechanisms under the Paris Agreement, in a spirit of trust and solidarity, could contribute to legal solutions to climate migration problems. The paper first iterates the scope and history of climate-induced migration in international law and then presents the case for reparations as a strong legal response to climate-induced migration, before finally exploring the legal avenues within international climate law wherein reparative justice and financing could potentially operate.

The current name of the game on climate action by the Global North is called “Backtracking” – backtracking on almost every commitment made by them at the various Conference of Parties (COP) held under the Unites Nations Framework Convention on Climate Change (UNFCCC). This comes even as the UNFCCC turned 30 on 04 June 2022. The article seeks to place under scanner issues at stake that will impinge upon the future trajectory of the climate change regulatory regime.

There is a reality of creeping adverse effects of climate change. The human imprint on it has been affirmed by various global processes including 21 May 2019 recognition by the Anthropocene Working Group. It has emerged as a planetary crisis. By 2050 climate change could see 4% of global annual economic output lost to the tune of $23 trillion and may hit many poorer parts of the world disproportionately. Though entire populations are affected by climate change, women and girls suffer the most. Due to their traditional roles, women are heavily dependent on natural resources. As a consequence of natural disasters and during Covid-19 pandemic in 2020–22, women have faced heightened risks to different forms of sexual and gender-based violence (SGBV). They suffer from a lack of protection, privacy, and mental trauma. Effects of climate change results in the feminization and intensification of vulnerability of women and girls. As there is double victimization of women both as human beings and because of their gender. Growing evidence suggests role of climate change heightened violence against women and girls. There is no specific international legal instrument dealing with SGBV against women during and after the climate change induced disasters. The texts of the three specific climate change treaties (1992 UNFCCC, 1997 Kyoto Protocol and 2015 Paris Agreement) do not address this crucial aspect. It has been given attention only through the recent decisions of the Conference of the Parties (COP). Due to serious psychological and bodily harm SGBV causes to women, it needs to be explicitly factored in respective international legal instruments on climate change and disasters. There are ignorance, denials and lack of adequate attention by scholars and decision-makers in the field to address adverse effects of climate change in causing heightened violence against women and girls. Hence, this study makes a modest effort to deduce and analyze – from scattered initiatives, scholarly literature in different areas, existing international legal instruments and intergovernmental processes – the growing causal relationship between climate change and SGBV especially against women and girls as well as the phenomenal cost so as to suggest a way out for our better common future. It is a new challenge for international law that needs to be duly addressed in a timely manner.

Climate change is accelerating gender inequality, as climate extremes amplify inequalities, vulnerabilities, negative gender norms, with Gender-Based Violence (GBV) rates increase during times of disaster. Yet the gendered experiences of climate change have to date been inadequately factored into climate law and policy-making, with the United Nations Framework Convention on Climate Change (UNFCCC) traditionally limiting its focus to ‘gender balance’ in representation within the regime. This article explores mainstreaming gender considerations within the UNFCCC by reflecting upon where we have come from, where we are now, and where we are going with respect with gender. While there was very little progress in the early days of the UNFCCC, this article shows that from 2001 to the present there have been a series of small gains, which this article will explain and critique. Much remains to be done, however, for gender within the UNFCCC. In recommending future actions, it draws particularly on lessons from the Pacific and Australian experiences.

The 2021 Glasgow Climate Pact brought the ocean into the international climate regime, and the 2022 Sharm el-Sheikh COP27 of the UN Framework Convention on Climate Change (UNFCCC) has finally ushered the world into a special fund to respond to loss and damage associated with the adverse effects of climate change, including on the human rights of present and future generations. But much remains to be clarified about how ocean-based mitigation, adaptation, finance and technology will contribute to inter-generational equity. To shed light on these issues, this article starts from the premise that the ocean is an essential but little-understood component of the interdependency between climate change and human rights. It is followed by an exploration of the importance of a healthy ocean for children’s human rights as a way to advance inter-generational equity under the 30-year-old (1992–2022) UNFCCC through systemic interpretation. The upcoming General Comment on children’s rights and the environment with a special focus on climate change (General Comment No. 26) by the UN Committee on the Rights of the Child presents an opportunity to clarify the role of existing international human rights obligations in strengthening intergenerational equity at the climate-ocean interface on the basis of the UN Convention on the Rights of the Child (UNCRC). This appears vital to ensure coordination across intergovernmental bodies and national government departments to safeguard ocean-dependent children’s human rights through climate policy and action at different levels.

“Ambition” and its variants “progression” and “highest possible ambition” are cornerstones of the Paris Agreement and its 2/1.5 degrees C global warming goals, while ambition is at best implicit in the Framework Convention on Climate Change. Even though only a normative expectation in a system of self-assessment, under the Paris Agreement ambition serves as a yardstick for judging and discussing the adequacy of the NDCs. However, the content and meaning of “ambition” are far from being agreed upon and the applicability of the reformulated principle of common but differentiated responsibilities and respective capabilities does not provide clear answers. In these circumstances, the article looks for guidance from national court decisions that interpret, apply or consider the notion of ambition “on the ground”. These decisions address a number of elements of ambition. They may encourage more ambitious national action. However, they are mostly not specific enough to draw robust conclusions from them regarding concrete questions of application.

The Paris Climate Agreement can be seen as illustrating the evolution of how legal norms are enforced in international law. While the Agreement benefits from a carefully thought-out enforcement mechanism in the international legal order, with techniques that encourage compliance rather than sanction non-compliance, its enforcement is also supported by domestic legal orders. Indeed, the Paris Agreement benefits from both hard and soft enforcement mechanisms. Here, all techniques and all actors have a role to play. This contribution shows that in order to discern the enforcement mechanisms attached to a legal instrument, it is sometimes necessary to take a global and complex look at all legal orders, techniques and actors, since they can act in a complementary manner.

The decision-makers, lawyers and legislators have a responsibility to know and understand the science, facts, global regulatory framework and uncertainties of climate change in order to better achieve the goals of the Nationally Determined Contributions (NDCs) under the 2015 Paris Agreement as well as the 2030 Sustainable Development Goals (SDGs), among others. They also have linkages and relevance for the implementation of the legal obligations under Article 6 (inherent right to life) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Articles 11 (adequate standard of living) and 12 (physical and mental health) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This study critically examines the complex interplay between different regimes regarding climate change adaptation and mitigation, sustainability and human rights so as to better respond to “climate emergency” underscored by the UN Secretary-General on 2 June 2022 at the Stockholm+50 Conference.