Week 10: International Law and the Envirnment United Nations conferences have played a significant role in international environmental governance and

Week 10: International Law and the Envirnment 

• United Nations conferences have played a significant role in international environmental governance and law- making 

• First major conference was in Stockholm in 1972, produced the Stockholm declaration 

• 1992 Rio “Earth Summit” which produced the non-binding Rio Declaration 

Key Principles 

• Stocklom and Rio Declaration set out principles for international envirmental law 

• State Resonsibility - Princple 21, Stockholm Declaration 

  • Countries have the sovereign right to use their natural resources as they wish but must ensure that their actions do not harm the environment of other countries or areas beyond national jurisdiction.

• Sustainable development (Principle 4, Rio Declaration)

  • Development should meet the needs of the present without compromising the ability of future generations to meet their needs.

  • Emphasizes integrating environmental protection into development plans.

• Common but differentiated responsibility (Principle 7, Rio Declaration)

  • All states share the responsibility to address global environmental problems, but their responsibilities vary based on:

    • Contributions to environmental degradation (e.g., developed countries bear a larger burden due to their historical emissions).

    • Capabilities (e.g., developing countries may lack resources and need support)

• Common structure of international environmental law: Framework convention + protocol

Framework Convention:

• A broad, general agreement that sets the overall goals and principles (e.g., the United Nations Framework Convention on Climate Change - UNFCCC).

• Acts as a foundation for further negotiations.

Protocols:

• Specific, legally binding agreements that build on the framework to tackle particular issues (e.g., Kyoto Protocol or Paris Agreement under the UNFCCC).

• Define measurable targets and actions.

International Law and Ozone Depletion 

• Vienna Convention for the Protection of the Ozone Layer 

  • A global treaty signed by 197 states to create a framework for protecting the ozone layer, which shields Earth from harmful ultraviolet (UV) radiation.

  • Countries agreed to:

• "Take appropriate measures" to protect human health and the environment from ozone depletion.

• Work together without specific obligations or legally binding targets at this stage.

- Montreal Protocol on Substances that Deplete the Ozone Layer

- Signed in 1987; 197 state parties 

- States committed to reducing CFC levels:

• To 80% of 1986 levels by 1993.

• To 50% of 1986 levels by 1998.

• Reduction targets were later accelerated at the London Conference of the Parties (COP). 

Common but Differentiated Responsibility (CBDR):

• Recognizes that not all countries have the same capacity to address environmental issues.

• Developing countries were given an additional 10 years to meet reduction targets.

• A Multilateral Fund was established to provide financial assistance to developing countries for the transition—a first in international environmental law.

Expansion via Kigali Amendment (2016):

• Extended the Protocol's scope to hydrofluorocarbons (HFCs), which, while not harmful to the ozone layer, are potent greenhouse gases contributing to climate change.

Why was the Montreal Protocol successful? 

1.  Ratified by all 197 UN member states, ensuring global coverage and commitment.

2.  Binding obligations to reduce CFCs (e.g., 50% reduction by 1998), with adjustments for stricter timelines.

3. Developing countries received a 10-year extension for compliance.

4. Ensured fairness and encouraged participation.

5. Multilateral Fund helped developing countries transition to ozone-safe alternatives.:

6. Strong evidence linked CFCs to ozone depletion.

7. Regular updates (e.g., Kigali Amendment added hydrofluorocarbons in 2016).

8. Economic incentives and alternatives to CFCs ensured industry support.

International Law and Climate Change 

• UN Framework Convention on Climate Change 

  • Signed in 1990; entered into force in 1994 

  • 198 state parties 

  • Annual COPs since (including Kyoto 1997/COP 3; Paris 2015/COP 21) 

• Three Phases of Global Climate Change Regime 

• Phase 1 (1990 – 1995): Adoption of the UNFCCC

•  Phase 2 (1995 – 2004): Creation of the Kyoto Protocol

•  Phase 3 (2005 – present): Post-Kyoto and creation of Paris Agreement

Phase 1 (1990 – 1995): UNFCCC

• The UNFCCC sets out a broad commitment by states to reduce emissions, but much was left to the annual meeting of state partie established by the UNFCCC – the Conference of the Parties or COPS.

• The annual COPs are where much of international law making on climate change has since happened.

Phase 2: (1995- 2004): Kyoto Protocol to the UNFCCC

• Negotiated and signed at COP3/Kyoto 1997

•  Sets binding legal commitments in emissions targets

•  E.g., Canada made an internationally binding commitment to reduce its emissions to 94% of its previous output

The Kyoto Protocol 

• Common but differentiated responsibility: applied in the Kyoto Protocol to largely exempt developing countries, limiting individualized emission targets to developed countries 

• Binding commitments to reduce emissions were to take place in two periods: the first commitment period (2008-2012), and a second commitment period that was eventually negotiated with the Doha Amendment and set targets through 2020 

• Notable absences of large emitters from binding commitments: 

  • US: never ratified the agreement 

  • China: exempted as a non-Annex I country 

• Canada withdraws from Kyoto: 

  • Canada withdrew from the Kyoto Protocol in 2011, as it was not going to meet is first round of commitments 

  • Canada did not participate in the 2nd round of commitments, the Doha amendment 

Criticisms and Aftermath

Challenges and Criticisms:

• Developing vs. Developed Divide:

  • Stark distinction left developing countries without binding commitments.

  • Critics, including the U.S., argued this hindered global participation.

• Large Emitters Missing:

  • The absence of the U.S. and limited commitments from major emitters like China undermined the Protocol’s effectiveness.

Phase 3: Post- Kyoto and the Paris Agreement 

• Paris Agreement 

  • Negotiated in Paris in 2015 at the UNFCCC’s 21st COP 

  • 194 state parties 

-  Key features include: Legally binding, “bottom-up approach”, transparency and stocktaking, global 

Paris Agreement Goals 

1. Temperature Goals:

• Aim: Limit global warming to well below 2°C, with efforts to restrict it to 1.5°C above pre-industrial levels (Article 2(1)).

• Recognizes that staying closer to 1.5°C significantly reduces climate risks.

2. Legally Binding with a “Bottom-Up” Approach:

Each country sets its own Nationally Determined Contributions (NDCs)—targets for reducing emissions—and determines its domestic policies to meet them (Article 4.2).

No internationally imposed targets, allowing flexibility for national circumstances while still requiring contributions.

3. Transparency and Stocktaking:

Enhanced Transparency Framework (Article 13):

Countries must submit regular reports on:

Emissions inventories (anthropogenic emissions and removals).

Progress toward achieving their NDCs.

Information is reviewed by technical experts and the Conference of the Parties (COP) to ensure accountability.

4. Global Framework with Updated CBDR:

Introduces a modernized approach to Common but Differentiated Responsibility (CBDR):

All parties must take action, but responsibilities vary based on national circumstances and capabilities.

Progression Principle (Article 4.3):

Each successive NDC must represent progress and reflect the highest possible ambition for that country.

Success of Negotiations in Paris (Victor 2016) 

1. The "Bottom-Up" Approach

• What is it? 

  • Instead of imposing binding, top-down emission reduction targets on countries, the Paris Agreement allowed each country to determine its own climate goals. This flexibility encouraged widespread participation, as countries had the autonomy to set targets that aligned with their national interests and capabilities.

• Why was it successful? 

  • This approach allowed major emitters, including the United States and China, to actively engage and contribute to the agreement. By making self-determined pledges, countries were more willing to participate and contribute to the global effort against climate change.

2.  Tradeoffs of Participation and Commitment

• What are the tradeoffs? 

  • The Paris Agreement found a balance between encouraging participation (by allowing countries to set their own targets) and ensuring that these commitments remained sufficiently ambitious to address the global challenge. While some critics argue that the agreement's flexibility makes it weaker, others suggest that this approach is the key to broad and sustained participation.

• The key tradeoff

  •  is that while the agreement may not impose rigorous legal obligations, it creates a framework for global cooperation where countries must regularly report progress and update their targets.

3. Goldilocks" Solution

• What is the "Goldilocks" Solution? Supporters of the Paris Agreement argue that it strikes the right balance—not too strict to be unacceptable to key states, and not too weak to be ineffective. The agreement is designed to be flexible enough to gain support from both developed and developing nations, while still being strong enough to set the stage for serious climate action 

4.  Criticism and Challenges

• Critics' View: Some critics, like Bodansky (2015), argue that the Paris Agreement is merely a "triumph of wishes over facts," as it relies on voluntary pledges rather than binding commitments. The concern is that the collective pledges made by states may not be sufficient to keep global temperatures from rising beyond 2°C.

• Hoffman (2021): Another critique highlights that while the Paris Agreement can work perfectly, it does not guarantee that individual efforts will be enough. Therefore, the Paris Agreement is a means, not an end in itself. It provides a framework for action, but much of the responsibility lies with individual countries to follow through on their commitments.