Climate Change

Climate Change Notes

Introduction

The ozone layer and the greenhouse effect are crucial for life on Earth.

  • Ozone Layer: Located in the stratosphere (12-50 km altitude), it blocks harmful ultraviolet rays.
  • Greenhouse Effect: Maintains an average temperature of 15 degrees Celsius in the troposphere; without it, the temperature would be -18°C. Greenhouse gases absorb infrared radiation, converting it into heat.

However, human activities release pollutants that alter these natural phenomena.

  • Ozone layer depletion is linked to substances like CFCs, halons, and methyl bromide. These substances contain chlorine, fluorine, or bromine, which catalyze ozone destruction. Solar radiation dissociates these substances, leading to ozone depletion.
  • The natural greenhouse effect is amplified by greenhouse gas (GHG) emissions, particularly carbon dioxide (CO_2), primarily from fossil fuel use and deforestation. This amplification leads to global warming, climate system disruption, extreme events, and sea-level rise.
  • Environmental disasters and population displacement are increasing.

Links between ozone depletion and global warming exist.

  • Some emissions contribute to both problems or address one while worsening the other.
  • Climate change exacerbates ozone depletion. Warming in the lower atmosphere causes cooling in the upper atmosphere, reducing stratospheric ozone regeneration and contributing to polar ozone holes.

International responses, including those from the European Union, have driven the evolution of environmental law.

Section 1: Sources of International Law on Climate Change

§ 1: Treaties Specific to the Protection of the Ozone Layer

The international process to protect the ozone layer began in 1977 with UNEP's Global Plan of Action for the Ozone Layer and the establishment of a Global Ozone Coordinating Committee.

An institutional framework was developed under UNEP in 1981, led by Sweden, and facilitated by actions from major ODS producing/using countries like the United States, Europe, Canada, and Japan.

The international legal regime for ozone layer protection is considered successful due to its rapid development, environmental effectiveness, and broad adherence. The Vienna Convention and Montreal Protocol achieved universal ratification in 2009.

A. The Vienna Convention for the Protection of the Ozone Layer

Adopted in Vienna on March 22, 1985, it sets out general obligations:

  • Adopting policies and measures to protect human health and the environment from adverse effects of human activities modifying the ozone layer.
  • Promoting scientific cooperation (systematic observation, research, information exchange), technical cooperation (development of alternatives to ozone-depleting substances), and legal cooperation (policy formulation).
B. The Montreal Protocol on Certain Substances That Deplete the Ozone Layer

In the second half of 1985, an ozone hole was observed over Antarctica, leading to the adoption of the Montreal Protocol on September 16, 1987, which came into force on January 1, 1989.

The protocol aims to reduce the production and consumption of substances harmful to the ozone layer and regulate international trade in these substances. It includes provisions for facilitating and evaluating compliance by States Parties.

1. Setting Targets for the Reduction of ODS Production and Consumption

The Montreal Protocol requires States Parties to phase out the production and consumption of several groups of ODS according to a specific timetable. Initially, certain CFCs and halons were regulated, but the Protocol allows for regular evaluation and review based on scientific, technical, and economic data.

The regulatory measures have been strengthened on six occasions:

  • London (1990)
  • Copenhagen (1992)
  • Vienna (1995)
  • Montreal (1997)
  • Beijing (1999)
  • Montreal (2007)

The protocol, as amended, provides for the elimination of:

  • Halons (since 1994)
  • CFCs, carbon tetrachloride, methyl chloroform, and HBFCs (since 1996)
  • Bromochloromethane (since 2002)
  • Methyl bromide (since 2005)
  • HCFCs (in 2020)

Control measures are expressed as a percentage of calculated national levels of production and consumption, determined by the parties based on their annual production of each group of substances. Statistical data on production, imports, and exports must be reported to UNEP.

2. Facilitating Compliance with the Protocol

The Montreal Protocol provides exemptions to the ODS phase-out schedule to give flexibility to industrialized and developing States Parties.

  • A flat-rate quota is allocated to developing countries (Article 5.1) for basic domestic needs and maintaining refrigeration and air conditioning equipment (specifically for HCFCs), with a ten-year deferral.
  • Exemptions are granted for essential or critical uses necessary for health, safety, and the proper functioning of society.
  • Parties can exchange part of their ODS production quota, except for HCFCs and bromochloromethane, for industrial rationalization, optimizing economic efficiency, or meeting anticipated needs due to company closures (Article 1.8). The conditions must be notified to the Secretariat. States may also exchange part of their HCFC consumption quota.
3. Financial Mechanism

A funding mechanism provides technical and financial cooperation, promoting access to products and technologies protecting the ozone layer in developing countries. This mechanism includes:

  • A Multilateral Fund, established in 1990 and made permanent in 1992, financed by contributions from industrialized countries.
  • Managed by an Executive Committee with assistance from the World Bank, INEE, and UNDP.
4. Regulating Trade in Ozone-Depleting Substances

Trade measures encourage adherence to the Montreal Protocol.

  • Trade (imports and exports) of controlled substances is prohibited with countries that have not ratified the treaty.
  • Imports from non-ratifying countries of products containing ODS are also prohibited for states parties that did not object when the annex was adopted.
  • Similar restrictions apply to products manufactured with but not containing the controlled substances.
5. Monitoring International Trade

A system monitors international trade to ensure compliance, prevent distortions of competition, and combat illicit trafficking.

  • It involves an authorization system for imports and exports of controlled substances and products containing them, implemented since 2000.
  • The issue of the black market in ODS, particularly CFCs and halons, has been addressed since 1995, with efforts to improve monitoring of transboundary movements and information exchange.
6. Monitoring Compliance with the Protocol

The Protocol provides for the approval of procedures and institutional mechanisms to determine non-compliance (Article 8).

A specific mechanism was established provisionally in 1990 and made permanent in 1992.

An Implementation Committee, composed of representatives of 10 parties elected for two years, examines difficulties encountered by parties. Difficulties can be communicated by a party or identified by the Secretariat based on national reports.

The Meeting of the Parties decides on measures to ensure compliance, based on the Implementation Committee's report. These measures may include:

  • Technical, technological, or financial assistance
  • Warnings
  • Sanctions (suspension of rights and privileges, such as those concerning industrial rationalization, production, consumption and trade of ODS, technology transfer, and financing mechanisms).

This last category of measures is innovative in international environmental law. Non-complying parties must develop an action plan with time-bound targets for a prompt return to compliance.

§ 2: Specific Treaties on Climate Change

Preventing climate change means limiting greenhouse gas (GHG) emissions from various sectors.

The IPCC (Intergovernmental Panel on Climate Change) was created in 1998 by the World Meteorological Organization and UNEP to produce regular reports on climate change knowledge.

  • In its fourth report (2007), the IPCC indicated that the global average surface temperature increased by 0.74°C during the 20th century and could increase by 1.1 to 6.4°C by the end of the 21st century (most likely values from 1.8 to 4°C). Sea levels could rise by 20 to 60 cm.

  • The synthesis of the IPCC's Sixth Assessment Report was published on March 20, 2023, synthesizing scientific knowledge from 2015 to 2021. This report serves as the main scientific basis for the first global review of the Paris Agreement at COP28 in Dubai, United Arab Emirates, in late 2023.

IPCC’s Sixth Report Assessment

  • The IPCC points out that greenhouse gas emissions from human activities have warmed the climate at an unprecedented rate: the global surface temperature has risen by 1.1°C compared to the pre-industrial period. Regardless of emission scenarios, the IPCC estimates that global warming will reach 1.5°C by the early 2030s.

  • Limiting this warming to 1.5°C and 2°C will only be possible by accelerating and deepening emissions reductions now to:

    • reduce global net CO_2 emissions to zero
    • significantly reduce other greenhouse gas emissions.

  • The 6th IPCC assessment report shows an increase in risks (heat waves, extreme precipitation, droughts, melting of the cryosphere, changes in the behaviour of many species, etc.) for the same level of warming compared to the 5th assessment report of 2014.

  • Climate and non-climate risks worsen and multiply, making their management more complex and difficult.

  • The issue of climate change, raised by scientists in the 1970s, was considered a common concern of humanity in 1988 by a UN General Assembly resolution. The IPCC’s confirmation of the threat in its first report in 1990 accelerated the diplomatic process. Following a conference in Geneva, an intergovernmental negotiating committee was set up, leading to the adoption of the UNFCCC in 1992, supplemented by the 1997 Kyoto Protocol and subsequent agreements.

A. United Nations Framework Convention on Climate Change (UNFCCC)

Adopted in May 1992 in New York, it entered into force in March 1994. Article 2 sets the ultimate objective: “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”

  • A maximum global warming of 2°C was subsequently adopted as a political objective.
  • The UNFCCC has 195 parties, collectively responsible for preserving the climate system for present and future generations on the basis of equity and common but differentiated responsibilities (Article 3). This principle relates to the historical responsibility of industrialized countries.
  • Only Annex I parties (OECD countries and countries with economies in transition) should take the initiative to change long-term trends in anthropogenic GHG emissions by adopting policies to stabilize their emissions in 2000 at 1990 levels. This objective is not legally binding. Annex II parties (OECD countries in Annex I) must also provide new and additional financial resources to developing countries (non-Annex I) to cover the cost of implementing the obligations under the Convention and of technology transfer.

All Parties shall:

  • Establish and periodically update a national inventory of anthropogenic emissions from sources and sink uptake of all GHGs not regulated by the Montreal Protocol.
  • Develop a national program containing climate change mitigation measures and adaptation plans for their impacts.
  • Encourage sound management, conservation, and strengthening of GHG sinks and reservoirs (biomass, forests, other terrestrial, coastal, and marine ecosystems).

The need to strengthen the commitments made by industrialized countries has been recognized since the first Conference of the Parties (COP) in 1995, which established the “Berlin Mandate.” This mandated negotiations on a protocol setting out quantified targets for limiting and reducing GHG emissions, with a timetable and policies and measures to achieve them. Negotiations were significantly influenced by the second IPCC report, highlighting the anthropogenic origin and future consequences of climate system disruption.

B. The Kyoto Protocol

Despite international differences, an additional protocol to the Climate Convention was adopted at the third COP meeting in Kyoto in December 1997. This Protocol sets a target for reducing greenhouse gas emissions and provides means to promote compliance by States Parties. It came into force in February 2005.

1. Setting a Target for Reducing Greenhouse Gas Emissions

39 Annex I parties to the Climate Convention (38 industrialized countries and the European Union) committed to reducing their global emissions by six greenhouse gases over the period 2008-2012 by at least 5% compared to their 1990 levels.

The Kyoto Protocol is only the first step towards meeting the ultimate objective of the convention, in terms of the reductions that must be made to contain global warming to 2°C. The emissions covered by the Protocol are:

  • Carbon dioxide (CO_2)
  • Methane (CH_4)
  • Nitrous oxide (N_2O)
  • Hydrofluorocarbons (HFCs)
  • Perfluorocarbons (PFCs)
  • Sulphur hexafluoride (SF_6).

The International Civil Aviation Organization and the International Maritime Organization are tasked with defining the means of controlling these emissions.

Annex I countries have a carbon budget, corresponding to their right to emit during the first commitment period.

  • They receive an allocated amount of carbon units, representative of the emission of one ton of CO_2 equivalent.
  • At the end of the period, they must return a quantity of carbon credits equivalent to the cumulative amount of their emissions from 2008 to 2012, indicated by their national inventories.
  • Non-compliance results in a 30% increase in excess emissions, deducted from the allocated carbon budget for the next commitment period. Excess emission rights may be set aside and carried over to the following period.

There is a strong focus on monitoring GHG emissions. Each Annex I Party shall establish a national system for estimating emissions from sources and absorption by sinks and shall establish an annual inventory using IPCC methodologies.
Developing countries are not subject to emission control commitments but have obligations to develop mitigation and adaptation programs and maintain emission inventories, as set out in the Climate Convention. The link is also made between the fight against greenhouse gases and the protection of the ozone layer.

2. The Modalities for Implementing the Obligations

Annex I parties have several means to fulfill their obligations:

  • Establishment of national policies and measures
  • Use of flexibility mechanisms
  • Consideration of carbon sinks

National policies and measures may include:

  • Increasing energy efficiency
  • Protecting and strengthening carbon sinks
  • Promoting sustainable methods of agriculture and forest management
  • Renewable energy sources
  • Reducing market imperfections that favor GHG emitting sectors (fossil fuel subsidies)
  • Reducing GHG emissions in the transportation sector, waste, and energy

These measures provide an opportunity to move towards sustainable development and apply the right of future generations but can generate significant costs.

The Protocol establishes three flexibility mechanisms:

  • Emissions trading
  • Joint implementation
  • Clean development mechanism

These mechanisms make it easier and cheaper for Annex I parties to meet their obligations.

From a global climate perspective, the location of GHG emissions is of no importance. States may exceed their allocated quantity if their excess emissions are offset by the acquisition of carbon units corresponding to emission reductions achieved in the territory of other States Parties.

  • Transfers of issue units are made through transfers between accounts opened in registers set up by Annex I countries and the Executive Board of the Clean Development Mechanism.
  • Records ensure traceability of all carbon credit transactions and are connected via an International Transaction Log (ITL), maintained by the UNFCCC Secretariat to verify the lawfulness of transactions.

The modalities, rules, and guidelines applicable to the three flexibility mechanisms were specified in the Marrakesh Agreements (2001), determining eligibility criteria for Parties and specifying conditions for private operators' participation.

GHG emissions trading schemes are being established at national or supranational levels:

  • The first system was implemented at the EU level in 2005.
  • The same approach is adopted/considered by Norway, Iceland, Liechtenstein, Switzerland, Australia, Japan, New Zealand, the North American States (United States and Quebec), South Korea, and China.
  • Only carbon units issued under systems established by Annex I countries subject to emission control obligations under the Kyoto Protocol may be validly used to demonstrate compliance.

The implementation of flexibility mechanisms leads to the creation of carbon markets. The price of emissions is reflected by supply and demand, allowing participants to determine the most economic compliance strategy (emission reductions or acquisition of carbon credits).

A problem lies in the availability of too many emission rights, which reduces the economic incentive to reduce GHGs.

3. Monitoring Compliance with the Protocol

Building on the Montreal Protocol, the Kyoto Protocol refers to the first Conference of the Parties serving as the meeting of the Parties to the Protocol (COP/MOP) for approval of compliance monitoring procedures.

An elaborate compliance mechanism was established by the Marrakesh Accords in 2001, confirmed in 2005. It includes incentives and also sanctions for non-compliance.

The Compliance Monitoring Committee addresses implementation issues raised by expert teams or States Parties, consisting of:

  • The facilitation branch
  • The enforcement branch

The situation in Canada, whose emissions far exceed the allocated amount, may not be reviewed by the enforcement branch because the country withdrew from the protocol in 2011.

C. The Post-2012 Agreement

Since 2005, the main challenge for the Conferences of the Parties is to develop the legal regime applicable when the Kyoto Protocol expires in December 2012. The challenge is to strengthen the commitments of industrialized countries and define the commitments of developing countries, especially emerging countries, to limit global GHG emissions.

The most important conferences of the parties are:

  • Bali COP 13, 2007: Established the premises of an environmental policy for the post-Kyoto period. The objective was to improve mechanisms and conclude an agreement for the post-2012 period. The “Bali Action Plan” lists four areas of action:

    • Reducing and limiting GHG emissions

    • Adaptation to climate change

    • Technology development and transfer

    • Funding of proposed measures

    • The plan aims to put in place a global process for reducing greenhouse gases common to industrialized and developing countries. The parties failed to reach an agreement on the global mitigation target. The importance of small island states was recognized.

  • Copenhagen COP 15, 2009: Ended with a political agreement setting the target of limiting the global average temperature rise to 2°C relative to pre-industrial values. Presents a list of non-binding commitments. Only 55 states declared targets, which will not allow them to remain below 2°C. The question of financial aid for developing countries was not discussed. The conference ended in failure.

  • Cancun COP 16, 2010: Allowed some progress in several areas:

    • Creating a Green Climate Fund to assist developing countries in their mitigation and adaptation projects
    • By providing rapid financing, industrialized countries commit to mobilizing $30 billion for the period 2010-2012, with the contribution to the Green Fund expected to reach $100 billion annually by 2020.
    • By setting up a technological mechanism allowing developing countries access to appropriate technologies to reduce the impacts of climate change.
    • Adopting a climate change adaptation plan to reduce the vulnerability of States.
    • Taking into account forest management, by defining accounting rules for developed countries.
    • Reflecting on the creation of a new market mechanism, adapted to sectoral approaches or national policies such as voluntary emission reduction commitments from developing countries).

  • Durban COP 17, 2011: Concluded with a political agreement calling for a comprehensive plan to reduce greenhouse gas emissions by 2015. A working group is tasked with developing a “protocol, other legal instrument or legally binding agreement” applicable in 2020 to all parties. The Kyoto protocol expires on December 31, 2012, creating a legal vacuum for the period 2013-2020 and a lack of binding commitments. The principle of extending the Kyoto Protocol during a second period was established. However, Japan, Canada and Russia declined to participate.

  • Doha COP 18, 2012: The agreement made it possible to ratify the extension of the Kyoto Protocol from 2013 to 2020. The numerical targets are to be reviewed by 2014. However, only 15% of global GHG emissions are covered by the Protocol. The adoption in 2015 of a comprehensive and ambitious agreement is recalled. The question of financial assistance to the countries of the South by 2020 should be clarified.

  • Paris COP 21, 2015: The Paris Agreement

    • Significantly reduce global greenhouse gas emissions with the goal of limiting global warming to 2°C over the present century, while continuing action to further limit global warming to 1.5°C
    • Reassess national commitments every five years
    • Provide developing countries with financial resources to mitigate climate change and adapt to the impacts
    • The Agreement is a legally binding international treaty that entered into force on November 4, 2016.
    • The Agreement operates on a five-year cycle, during which countries conduct ever more ambitious climate actions. Every five years, each country is expected to submit a revised national action plan, known as a “Nationally Determined Contribution” or “NDC”.
    • Articles 27 and 28 limit the ability of States to denounce this agreement, which has no reservations. Those who want to do so will have to respect a three-year deadline.

  • Glasgow COP 26, 2021

    • COP26 was to mark an essential step towards the realization of the means to achieve the ambition of the Paris Agreement to contain the rise in the global average temperature to well below 2°C by continuing the action taken to limit the rise in temperature to 1.5°C from pre-industrial levels and to achieve carbon neutrality in the second half of this century.
    • COP26 marks an increase in emission reduction targets, but they remain clearly insufficient: 2.92 gigatons of CO_2 avoided in 2030 compared to the initial contributions presented in 2015 at COP21, an increase in temperature of 2,4°C by the end of the century. However, COP26 has made some significant progress on economic instruments, with a final text paving the way for the creation of an international carbon market and a project mechanism for the Paris agreement.

  • Charm el-Sheikh COP 27, 2022

    • An agreement to create a “loss and damage” fund has been reached.
    • COP 27 did not result in any new measures to reduce greenhouse gas (GHG) emissions.
    • Fossil fuels are presented by associations as the forgotten ones of this COP.

  • Dubai COP 28, 2023

    • Develop the first Global Stocktake
    • Increase funding for adaptation
    • Discussing the future of fossil fuels

Section 2: Main Rules Applicable to Climate Change

§ 1: The Means Implemented by the States to Reduce Climate Change

A. Explicit Inclusion of the Paris Agreement in National Climate Policies

Since the adoption of the Paris Agreement, states have sought to meet their climate obligations through various measures. This may have had an impact on national litigation.

Example: Heathrow Airport case in the United Kingdom. The London Court of Appeal ruled that the UK’s National Airport Plan for the expansion of Heathrow Airport is illegal because it must incorporate the Paris Agreement.

B. The Lines of Development of Climate Litigation Against National Public Policies

The Paris Agreement has raised awareness among civil society, allowing a real judicial revolution to develop in the field of climate law. This litigation has the dual characteristic, first of multiplying, and, moreover, of beginning to identify precise objectives. There were nearly 1,500 ongoing litigation cases in 2020, especially in Anglo-Saxon countries. 2021 marked an important milestone for global climate justice.

In the United States, the Juliana case used the argument of the Paris Agreement in its first requests, brandishing the need for the State to adopt climate policies that could meet the objective of not exceeding 2°C of warming. In Norway, the Greenpeace case also argued that the agreement should be recognised as an internal Norwegian public policy text.

C. Implications of Climate Change on the Enjoyment of Human Rights

The Urgenda case was decided by the Supreme Court of Holland, interpreting Articles 2 and 8 of the Convention. Referring to Articles 2 (right to life) and 8 (right to respect for private and family life and the home), the Supreme Court of Holland has taken the next step in considering that these provisions should be interpreted as applying equally at the collective level and therefore for a whole population.

Several South American civil society organizations have requested a hearing before the Inter-American Commission on Human Rights on the implications of climate change on the enjoyment of human rights in the Americas.

In Germany, an individual constitutional challenge was brought against the federal climate change law. In this decision, the Court develops a transgenerational and timeless vision of fundamental rights. The law is censored because it has an “anticipated effect on fundamental rights.” In that decision, the Paris Agreement is referred to many times as an international standard embodied in the contested law that used it as a basis.

§ 2: The Development of a Climate Litigation Relating to the Engagement of the Climate Responsibility of Companies

Shell case in the Netherlands: In 2019, several associations and more than 17. 000 citizens filed a climate lawsuit in the Netherlands against Royal Dutch Shell (RDS).

The Shell decision follows on from the Urgenda case. The judge interpreted RDS’s duty of care in the light of international principles of flexible human rights law addressed to companies. The judge stated : “In light of the broad international consensus that each company must independently work towards achieving net zero emissions by 2050, RDS may be expected to do its part.”

§ 3: The Carbon Market

The Kyoto Protocol is at the origin of the first international carbon market, with the objective of achieving emission reduction targets at a lower overall cost. The total number of rights outstanding during the commitment period remains unchanged.

In the case of the Paris Agreement, the lack of harmonization in the definition of objectives and the question of double counting of emission reductions from project mechanisms, have led to reluctance.

After four years of negotiations, COP26 was able to set out concrete modalities for the implementation of ITMOs exchanges between countries in a bilateral framework. According to E3G (European think tank active on climate change issues), the value of an ITMO on the international market is estimated to be in the range of US$100-400 billion annually by 2030.

Another key challenge of COP26 was to propose a transparent and regulated framework for investments made in project mechanisms to generate standardised and tradable carbon credits while avoiding double counting.

COP26 assessment on international carbon markets: Progress on economic instruments at COP 26 is an important step. The European CO_2 market is a good example:

  • After 10 years of structural weakness between 2008 and 2018 (with a carbon price ranging between €5 and €10 in Europe), the price of emission allowances on the European market has risen steadily since the end of 2018 and the announcement of the implementation of an emissions reduction target in Europe for the post-2020 period.
  • Since then, the European market has continued to break records.