The international climate change regime

1
The international climate change regime

• International Environmental Law JUR5520
• 28.03/11.04 2008
• Catherine Banet, Phd Research fellow
• Scandinavian Institute of Maritime Law
  Petroleum and Energy Department
• catherine.banet_at_jus.uio.no

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Overview

• Climate change factual background
• Towards an international agreement
• The UN Framework Convention on Climate Change
• The Kyoto Protocol
• Implementation issues under the Kyoto Protocol
• Post-2012 perspective and international
  negotiations

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1. Climate change factual background

• Changes in temperatures, sea level and snow cover
  between 1850 and 2010
• (source IPCC Climate Change 2007)

Greenhouse warming effect (sourcewww.combatclimat
echange.ie)
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Effect of climate change The example of the
Tuvalu Islands.
The carbon cycle
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• International Panel on Climate Change (IPPC)
  (http//www.ipcc.ch/)
• Fourth Assessment Report, 2007
• Global greenhouse gas (GHG) emissions have grown
  since pre-industrial times, with an increase of
  70 between 1970 and 2004.
• The largest growth in global GHG emissions
  between 1970 and 2004 has come from the energy
  supply sector (an increase of 145).
• A range of policies, including those on climate
  change, energy security, and sustainable
  development, have been effective in reducing GHG
  emissions in different sectors and many
  countries.
• With current climate change mitigation policies
  and related sustainable development practices,
  global GHG emissions will continue to grow over
  the next few decades.

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2. Towards an international agreement Climate
change and international air pollution regulation

• 1979 First World Climate Conference.
• 1987 Montreal Protocol on substances that
  deplete the ozone layer.
• 1987 Brundtland Rapport Our Common Future
• (World Commission on Environmenta and
  Development).
• 1988 General Assembly resolution. Climate as the
  common concern of mankind.
• 1988 General Assembly resolution on climate
  change Res. 43/53.
• 1988 Establishment of the IPCC.
• 1990 Establishment of the Intergovernmental
  Negotiating Committee (ICE) for a Framework
  Convention on Climate Change.
• 1990 IPCC first assessment report. Second World
  Climate Conference.
• 1992 UN Conference on Environment and
  Development (UNCED), Rio de Janeiro.

Time Magazine cover, 1988.
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3. The UN Framework Convention on Climate
Change

• United Nations Framework Convention on Climate
  Change (UNFCCC) (www.unfccc.int).
• The general character of the Convention.
• Entry into force 21 March 1994. 192 parties (22
  August 2007)
• Ultimate objective (Art. 2)
• The ultimate objective of this Convention and
  any related legal instruments that the Conference
  of the Parties may adopt is to achieve, in
  accordance with the relevant provisions of the
  Convention, stabilization of greenhouse gas
  concentrations in the atmosphere at a level that
  would prevent dangerous anthropogenic
  interference with the climate system. Such a
  level should be achieved within a time-frame
  sufficient to allow ecosystems to adapt naturally
  to climate change, to ensure that food production
  is not threatened and to enable economic
  development to proceed in a sustainable manner.
• Guiding principles to be found in the UNFCCC
  common concern of mankind, intra- and
  inter-generational equity, precautionary
  principle, differentiated responsibilities,
  sustainable development, cooperation.
• Imply different categories of Parties.
• UNFCCC addresses both mitigation and adaptation.

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• Institutional framework
• Conference of the Parties (COP) (Art. 7)
  supreme body of the Convention.
• Secretariat (Bonn) (Art. 8)
• 2 subsidiary bodies
• The Subsidiary Body for Scientific and
  Technological Advice (SBTA)
• The Subsidiary Body for Implementation (SBI)
• 3 expert groups
• Consultative Group of Experts
• Expert Group on Technology Transfer
• Least Developed Countries Expert Group
• Negotiating groups Group of 77, Alliance of
  Small Island States (AOSIS), Least Developed
  Countries, UE, Umbrella Group (evolved from
  JUSSCANNZ), Environmental Integrity Group, CACAM,
  etc.

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• Dispute resolution (Art. 13-14). Sanctions?
• State liability issue.
• On the way towards the Kyoto Protocol
• The Berlin Mandate
• The Buenos Aires Plan of Action
• The Hague
• Marrakech Accords

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4. The Kyoto Protocol

• Adopted in Kyoto, at COP3, on 11 December 1997.
• Entry into force 16. February 2005, after
  ratification by Russia.
• (Rule of Art. 25 55 Parties to the UNFCCC, 55
  industrialised countries CO2 emissions in 1990).
  Current number of parties 177 (15.01.2008).
• Scope of application 6 GHG gases sector/source
  categories (Annex A). See recent developments for
  implementation of Art. 2.2 (aviation and marine
  bunker fuels).
• Objectives.

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• Commitments - 3 categories of Parties with
  differentiated commitments
• Parties included in Annex B of the KP
• All Parties
• Parties included in Annex II UNFCCC.
• Implementation of the KP
• Marrakesh Accords (2001, COP.7)
• the rule book of Montreal (2005, COP.11,
  COP/MOP.1)
• Bali Action Plan (See Section 6 below).
• Compliance tools including 3 flexible mechanisms,
  i.e. Clean Development Mechanism (CDM), Joint
  Implementation (JI) and emissions trading (see
  below).
• KP institutional framework
• Meeting of the Parties to the Kyoto Protocol
• Bureau
• Constituted bodies under the Kyoto Protocol
• CDM Executive Board
• JI Implementation Supervisory Committee
• Compliance Committee

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• A legally binding requirement.
• Consequences of non-compliance?
• Compliance regime under the Kyoto Protocol
• Art. 18-19 KP.
• Body responsible for ensuring compliance
  Compliance Committee, composed of 2 branches, the
  Facilitative Branch and the Enforcement Branch.

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• Kyoto flexibility mechanisms
• Clean Development Mechanism (CDM)
• Definition Article 12 of the Kyoto Protocol.
• Objective behind CDM
• 2. The purpose of the clean development
  mechanism shall be to assist Parties not included
  in Annex I in achieving sustainable development
  and in contributing to the ultimate objective of
  the Convention, and to assist Parties in Annex I
  in achieving compliance with their quantified
  emission limitation and reduction commitments
  under Article 3.
• CDM in practice
• 3. Under the clean development mechanism
• (a) Parties not included in Annex I will benefit
  from project activities resulting in certified
  emission reductions and
• (b) Parties included in Annex I may use the
  certified emission reductions accuring from such
  project activities to contribute to compliance
  with part of their quantified emission limitation
  and reduction commitments under Article 3, as
  determined by the Conference of the Parties
  serving as the meeting of the Parties to this
  Protocol.

Invests in CDM project, transfer of technology,
Annex I Party
Non-Annex I Party
CERs
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• Parties involved in CDM
• CDM Executive Board (EB)
• Designated National Authorities (DNA)
• Designated operating Entities (DOE)
• Parties to CDM contracts
• Sellers
• Project Entity / Project owners
• Project developer
• Buyers
• Host country (MoU eventually)
• Possible intermediary organs
• brokers
• others

CDM project cycle
Conclusion Multiple legal relationships between
parties. Requires complex contractual
architecture, in addition to technical
requirements.
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• Eligible projects http//unfccc.int/files/meeting
  s/cop_13/application/pdf/cmp_guid_cdm.pdf
• Regulatory framework Decision 17/CP.7
  Modalities and procedures for a CDM,
  additionality, etc.
• Included (based on pre-established or specially
  designed guidelines approved by CDM EB)
  afforestation and reforestation projects
  (Decision 17/CP.7), small scale, non-small
  scales, etc
• Excluded f. ex. Nuclear. Issues related to large
  hydro.
• Examples energy sector (RES, cogeneration,
  methane leakages), industrial activities, energy
  efficiency, transport, agriculture. Some
  restrictions for forestry projects and land
  occupation.
• http//www.cdmbazaar.net
• http//cdm.unfccc.int/Projects/MapApp/index.html
• Result CERs
• Definition abatement of one tonne of CO2
  equivalent.
• Some figures
• Registered projects 988 Issued CERs
  135,126,744. (As of April 2008)
• Expected CERs (from registered projects until the
  end of 2012) gt 1,190,000,000.
• Main locations Asia, South America. Unbalanced
  situation?
• Legal issues related to CDM projects CDM
  contracts, CERs trading, dispute settlement.
• Complementary information See CDM website of
  UNFCCC.

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• 2. Joint Implementation (JI)
• Definition Article 6 KP.
• Also project-based mechanism, as CDM.
• Objective
• 1. For the purpose of meeting its commitments
  under Article 3, any Party included in Annex I
  may transfer to, or acquire from, any other such
  Party emission reduction units resulting from
  projects aimed at reducing anthropogenic
  emissions by sources or enhancing anthropogenic
  removals by sinks of greenhouse gases in any
  sector of the economy,
• Requirements
• See JI Guidelines 21 a Party included in Annex
  I with a commitment incribed in Annex B is
  eligible to transfer and/or acquire ERUs issued
  in accordance with the relevant provisions, if it
  is in compliance with the following eligibility
  requirements
• JI in practice
• Location Economies in transition, in particular
  Russia, Ukraine, Bulgaria (60 in 2006).
• Results Emission Reduction Units (ERUs).

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• 3. International emissions trading
• Definition Article 17 KP.
• The Conference of the Parties shall define the
  relevant principles, modalities, rules and
  guidelines, in particular for verification,
  reporting and accountability for emissions
  trading. The Parties included in Annex B may
  participate in emissions trading for the purposes
  of fulfilling their commitments under Article 3.
  Any such trading shall be supplemental to
  domestic actions for the purposes of meeting
  quantified emission limitation commitments under
  that Article.
• Objective trading of emissions among Annex I
  Parties to the KP with commitments inscribed in
  Annex B. Marginal-abatement costs.
• Regulatory framework see Marrakesh Accords,
  Decicions 18/CP.7 Modalities, rules and
  guidelines for emissions trading, commitment
  period reserve,
• Emissions trading in practice
• Who trades? Although formation different than for
  CDM and JI, open to legal entites other than
  Parties.
• What is traded? Difference between quotas and
  permits, international and national trading,
  project-based and allowance-based transcations.
  Parts of Assigned Amounts, CERs, ERUs and removal
  units (RMUs)
• Trading modalities?
• bilateral (over-the-counter)
• through market places
• Registry system national registries CDM
  registry, all under supervision of International
  Transaction Log (see next slide).
• Legal issues linking registries

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5. The EU Emissions Trading System

• Joint fulfillment of obligations under the KP
  the case of the EU
• Joint commitment under the Kyoto Protocol
• The EU case.
• Directive 2003/87/EC of 13 October 2003.
• Operational since 1. January 2005.
• Analysis Directive provisions.

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6. Post-2012 perspective and recent legal
developments

• Why are we talking about post-2012? End of KP
  commitments.
• The modalities for negotiating a post-2012
  regime
• COP11/CMP.1 Montréal decision to launch two
  negotiation processes
• Ad hoc Working Group on Further Commitments for
  Annex I Parties under the KP (AWG-4)
• Dialogue on long-term cooperative action to
  address climate change by enhancing
  implementation of the Convention (The Dialogue).
• Analysis of the Bali Action Plan.
• Towards 2009
• 4 building blocks for negotiations mitigation,
  adaptation, technology and finance.
• A new ad hoc working group on long-term
  cooperative action.
• Bali Action Plan all the other decisions from
  the convention and the KP define a 2 negotiation
  tracks process the Convention track the KP
  track.
• Bali Action Plan lists themes to be discusses,
  structured around a common long-term objective
  (although no figure adopted), a common
  negotiation forum for all States (AWG), a rhythm
  for negotiations, a deadline (2009, Copenhagen).

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• Thank you for your attention!