Climate Protection Agreements
- Developing countries — Climate change — Environmental disputes — Precautionary principle — Extraterritorial application of treaties
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Scientific Background and Legal Origins of Climate Protection
1 In the second half of the 20th century, scientists warned that anthropogenic carbon dioxide (CO2) will not be readily absorbed by the oceans. A few years later, the CO2 concentration in the earth’s atmosphere could be measured and an annual rise (Atmosphere, International Protection) reported. The potential of these changes was underlined by evidence suggesting a particular sensitivity of the global climate system to small changes (Climate, International Protection). In the 1980s, scientists started to use new methods to prove how changes in the CO2 concentration influence the occurrence of ice-ages and weather events. Drillings into the Greenland and Antarctic ice caps revealed not only that levels of CO2 were 50% less during ice-ages than at the warmer times, but also that levels of CO2 went up in close relation to the average temperature of the earth’s atmosphere. In 1988, the Intergovernmental Panel on Climate Change (‘IPCC’) was created with the mandate to assess scientific evidence in relation to climate change.
2 The UN Framework Convention on Climate Change (‘UNFCCC’) was adopted at the 1992 Earth Summit in Rio. It entered into force in 1994; to date, it has 197 parties. It emphasizes the principle of common but differentiated responsibility and requires developed country parties to take the lead in adopting policies and measures capable of modifying longer-term trends in anthropogenic emissions while supporting developing country parties in taking climate-friendly policy approaches into account. The Kyoto Protocol of 1997, in force since 2005, was adopted at the 3rd Conference of the Parties. Developed country parties are obliged under the Kyoto Protocol to achieve a quantified reduction of their carbon emissions compared to the base year 1990. The Kyoto Protocol combines market instruments with a punitive compliance control system, but it is limited in its reach as not all major emitters are participating (see also Emissions Trading; Environmental Compliance Control).
3 The Copenhagen Conference set up a non-binding instrument that envisaged a target of limiting global temperature rise to 2° Celsius. It also introduced the Green Climate Fund. Countries agreed to make voluntary pledges to cover the period up to 2020 to provide developing country parties with financial support worth US$100 billion per year. The Durban Platform in 2011 was created to develop a new legally binding agreement for the time post-2020. Parties were invited at the Lima Conference in 2014 to submit their ‘intended nationally determined contributions’ (‘INDCs’) for their post-2020 climate action policies and goals. As of November 2015, 184 out of 196 parties had communicated their pledges. At the 21st Conference of the Parties (‘COP21’) in Paris (12 December 2015), heads of States or governments adopted the Paris Agreement and a list of related decisions (Decision 1/CP.21).
4 A scientific report published in 1974 alerted the international community that the steadily increasing production and usage of chlorofluoromethanes was equivalent to the accumulated and growing amounts of halogenated hydrocarbons in the earth’s stratosphere. In 1985, a hole in the earth’s ozone layer was detected over Antarctica.
5 Scientists concluded that this was likely a consequence of the increased use of chlorofluorocarbons (‘CFCs’). The volatility and inertness of these materials not only meant that they could be used in a variety of appliances, such as refrigerators and aerosols, but it also gave them a long lifetime of about 40–150 years. At a certain altitude, a process known as photolytic dissociation begins, leading to a chain reaction of freed chlorine atoms with ozone atoms, resulting in the destruction of the ozone layer, which protects life on earth from harmful ultraviolet radiation. With the possibility of the loss of the protection of the ozone layer, the threat of increased occurrences of skin cancer and harmful exposure of all life on earth to intense sun rays became immediate. The 1985 Vienna Convention for the Protection of the Ozone Layer was followed in 1987 by the Montreal Protocol on Substances that deplete the Ozone Layer (‘Montreal Protocol’). The Montreal Protocol entered into force in January 1989. It represents a successful reaction of the international community to the dangerous depletion of the ozone layer.
6 The Paris Agreement and the Montreal Protocol are international treaties in the sense of the Vienna Convention on the Law of Treaties (1969), and both strike a balance between development and sustainability, granting flexibility for developing country parties and emphasizing the need for ambitious action by the international community.
7 However, the Montreal Protocol’s achievements for climate protection in the past were not clear–cut, and the success in removing ozone-depleting substances (‘ODSs’) from production lines and consumption patterns was ambiguous in relation to the climate. Some of the chemicals that were used as long-term substitutes for CFCs, such as hydrochlorofluorocarbons (‘HCFCs’) and hydrofluorocarbons (‘HFCs’), were greenhouse gases with a very high global warming potential (‘GWP’) and a long atmospheric life-span. Thus, without adapting the Protocol’s purpose to the increased use of new chemicals that were non-ODSs but potent greenhouse gases, mainly HFCs, efforts of parties under the UNFCCC would be partly offset.
8 The Kigali Amendment of 2016 harmonizes multilateral approaches under both regimes. Whereas previously HFCs were used as substitutes for controlled substances under the Montreal regime but were regulated under the UNFCCC, they are now regulated under both treaties, with the prospect that mutually reinforcing effects may result for the controlled substances, instead of the likelihood that efforts under one regime may be offset through continuous use of greenhouse gases (‘GHGs’) under the other. While from a legal perspective, the approaches to international law-making of these two international agreements are different, both contribute to the fulfillment of the long-term temperature goal to which the parties agreed in Paris.
2. The UNFCCC and the Paris Agreement
9 The UNFCCC of 1992 marks the starting point of international co-operation to prevent climate change. The fact that the UNFCCC does not comprise enforceable obligations for States was remedied by the 1997 Kyoto Protocol; however, it limited the range of mandatory greenhouse gas reduction and limitation targets to developed country parties, the so-called Annex I country parties. Just before the end of the first commitment period under the Kyoto Protocol, it became tangible that a new instrument would be needed to replace the Kyoto Protocol at the end of its second commitment period, in 2020. At the Durban Conference in 2011, parties established the Ad hoc Working Group on the Durban Platform for Enhanced Action (‘ADP’) with the mandate to negotiate a new climate agreement by 2015. Initially, the outcome was planned to take the legal form of another protocol under the UNFCCC that would be applicable to all. It was intended that it should cover mitigation, adaptation, finance, technology development and transfer, transparency of action and support, and capacity-building, the so-called Durban action pillars.
10 In 2015, the Paris Agreement was adopted by the Conference of Parties of the UNFCCC. It entered into force on 4 November 2016 and has to date 174 ratifications. It will replace the Kyoto Protocol beginning in 2020, building the road to de-carbonizing economies worldwide. It has been celebrated as a huge success in the history of the UNFCCC. The Paris Agreement represents a shift from the top-down approach of the Kyoto Protocol, where only some of the world’s leading economies and major emitters who accepted the Protocol were obliged to fulfil their mandatory economy-wide quantified GHG emissions reduction or limitation targets.
11 The Kyoto Protocol covered two commitment periods, the first from 2005 to 2012 and the second from 2013 to 2020 under the Doha Amendment. While the Doha Amendment has not entered into force because of an insufficient number of ratifications, it is applied by Annex I country parties in accordance with Art. 18 Vienna Convention on the Law of Treaties. The Paris Agreement requests all parties to define their commitment to take climate action in ‘nationally determined contributions’ (‘NDCs’) that each State must submit every five years.
3. The Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer
12 The Vienna Convention for the Protection of the Ozone Layer sets out the framework for further action of its parties. In 2009, the Convention became universally ratified. With the adoption of the Montreal Protocol, parties to the Convention fulfilled their commitment, as set out in Art. 2 (1) of the Convention, ‘to take appropriate measures to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer’, and they also applied the precautionary approach/principle, to ‘protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge’ (Preamble to the Montreal Protocol).
13 The Montreal Protocol on Substances that Deplete the Ozone Layer (the Protocol) follows a different approach from the Paris Agreement. It has, at its core, down-phasing or out-phasing schedules that regulate the national production, consumption, and trade of substances included in one of the annexes to the Protocol. Its main pillars are the establishment of these schedules through amendments to the Protocol and its Annexes and through its unique adjustment mechanism, for the production and consumption of ODSs and, since the adoption of the Kigali Amendment, also non–ozone-depleting GHGs (Arts 2A–2J).
14 Parties revisit the Protocol’s regulations on a recurring basis, taking into account inter alia new scientific evidence. This practice can lead to amendments of the Protocol, mainly used to accelerate down-phasing schedules for substances, to turn them into out-phasing schedules, or to add to the list of controlled substances, or it can involve adjustments under the designated adjustment procedure, to strengthen regulations for already-covered substances. The Protocol, including the first four amendments to the Protocol, the London, Copenhagen, Montreal, and Beijing Amendments, has achieved universal ratification by all 197 parties. Parties’ efforts have led to the phase-outs of 98% of the historic levels of production and consumption of ODSs. To date the Kigali Amendment of 2016 has 26 parties and will enter into force on 1 January 2019 in accordance with Art. IV (1) Kigali Amendment, which requires at least 20 instruments of ratification, acceptance or approval. Changes to Art. 4 Montreal Protocol concerning trade with non-parties will enter into force on 1 January 2033, if at least 70 instruments of ratification, acceptance, or approval of the Amendment have been deposited by States or regional economic integration organizations. If this condition is not fulfilled by that date, the amendment shall enter into force on the ninetieth day following the date on which it has been fulfilled (Art. IV (2)).
15 The first amendment to the Protocol, the London Amendment of 1990, prescribed the complete phase-out of CFCs, halons, and carbon tetrachloride, methyl chloroform, and chlorobromomethane. For developing country parties operating under Art. 5 (1), the phase-out deadline was initially set for 2010. In addition, a further substance was added to the list of controlled substances, methyl chloroform, with a phase-out scheduled for 2005 for developed country parties and 2015 for developing countries. The Copenhagen Amendment of 1992 tightened the control mechanisms to achieve an earlier phase-out of CFCs, halons, carbon tetrachloride, and methyl chloroform in 1996 for developed country parties and in 2010 for developing country parties. In addition, parties introduced a phase-out scheme for HCFCs for developed country parties, beginning in 2004. Parties also agreed to cap the consumption of methyl bromide at 1991 levels, with a phase-out for developed country parties in 2005 and for developing country parties in 2015.
16 The Montreal Amendment of 1997 followed suit in prescribing a phase-out of HCFCs for developing countries. Furthermore, the phase-out deadline for methyl bromide was set for developed countries for 2005, allowing developing country parties to achieve this aim in 2015. The Beijing Amendment of 1999 included tightened controls on the production and trade of HCFCs. HCFC production and consumption were required to end in 2020 in developed country parties and for developing country parties in 2030. Bromochloromethane was also added to the list of controlled substances with a phase-out target set in 2002.
17 The Kigali Amendment of 2016 prescribes the phase-down schedule for the production and consumption of hydrofluorocarbons (‘HFCs’). For the first time in its history, the Montreal Protocol requires parties to phase down a substance that does not present a danger to the ozone layer but is used as a long-term substitute for other ODSs. HFCs have a GWP that is higher than the GWP of CO2, and as a result, their unrestricted use could partly offset the efforts of the international community to halt climate change. For instance, HFC-23, a substance used in refrigeration and air conditioning, has a global warming potential of 14,800 times of that of CO2 over 100 years.
B. The Paris Agreement: Action Pillars, Differentiation and Oversight
18 For the first time in international climate action, the Paris Agreement sets out a temperature objective that is binding for all parties. Art. 2 (1) (a) sets forth the goal of:
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, recognizing that this would significantly reduce the risks and impacts of climate change.
19 While the Kyoto Protocol was prescriptive in relation to a binding emission target for developed countries, the Paris Agreement is more ambitious in the way in which it prescribes a world-wide temperature goal and enables the Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement (‘CMA’) to guide and influence parties’ efforts. Each party can base its contribution on the self-perception of its role in combating climate change. However, the agreement employs the CMA as the strategic driver of a State Party’s ambition, thus combining decentralized sovereign decision-making with elements of central oversight over the collective progress towards the temperature goal.
1. Mitigation, Adaptation and Compensation
20 The Paris Agreement consists of three main action pillars: mitigation, adaptation, and compensation. For mitigation, each party shall prepare, communicate, and maintain an NDC every five years (Art. 4 (2)). Domestic mitigation measures shall have the aim of achieving the objective of such contribution. Each successive contribution will represent a progression (Art. 4 (3)) and each party may at any time adjust its contribution to enhance its level of ambition (Art. 4 (11)).
21 Adaptation becomes the second pillar of climate action under the Paris Agreement. Adaptation is a reaction to failing mitigation of climate change. The Paris Agreement highlights the close link between successful mitigation and lowering adaptation needs (Art. 7 (4)). Parties recognize that adaptation is a global challenge faced by all, while immediate needs of developing country parties that are particularly vulnerable are also emphasized (Art. 7 (2)). Each party should submit and update periodically an adaptation communication, Art. 7 (10). This requirement should not create any additional burden on developing country parties, but may serve to indicate adaptation priorities, implementation progress, and needs, plans, and actions.
22 The Warsaw International Mechanism for Loss and Damage (‘WIM’) is also taken on board the Paris Agreement. Parties acknowledge that next to mitigation and adaptation, the WIM needed to be a self-standing concept, under which loss and damage could be addressed, in instances where mitigation and adaptation were not sufficient. Originally, the WIM had been established under the Cancun Adaptation Framework. The WIM is now operated under the authority and guidance of the CMA, and the CMA may enhance and strengthen the mechanism (Art. 8 (2)).
23 The function of the WIM is to address loss and damage associated with impacts of climate change in developing countries with a particular vulnerability to the adverse effects of climate change. It is intended to have a catalytic and pioneering nature and to promote the implementation of approaches to address loss and damage. The Paris Agreement gives some guidance for the areas of co-operation, action, and support. Read on its face, the provision sparks the assumption that the mechanism introduces a new liability rule into the climate change regime. However, the decisions accompanying the Paris Agreement explicitly exclude this option, stating that ‘Article 8 of the Agreement does not involve or provide a basis for any liability or compensation’ (Decision 1/CP.21 para. 51). What exactly this COP decision excludes from the WIM is, however, not as clear as it might seem at a first glance. It could even be argued that this does not at all affect the capacity of the WIM to develop over time a scheme that provides for financial compensation for loss and damage within liability rules. It certainly seems questionable whether the COP can bind future decision-making of the CMA under the Paris Agreement. The decision of the COP outside the Paris Agreement made inclusion of the WIM in its present form into the Agreement acceptable for all parties. Substantively, this decision of the COP marks progress in two respects. First, it acknowledges that losses and damages will occur, even if the mitigation and adaptation efforts of parties bring the world on track for the temperature range-goal of Art. 2 (1) (a) Paris Agreement. Second, and more importantly, States have acknowledged that they are collectively accountable for dispersed loss and damage, without yet accepting elements of private actors’ or stand-alone State liability. The emphasis is less on identifying a single actor’s responsibility than on finding ways of addressing the risk that remains despite mitigation and adaptation efforts.
2. The Principle of Common but Differentiated Responsibilities and Financial Support
24 The Paris Agreement overcomes the divide between developed and developing countries by no longer exempting developing countries from the obligation to contribute, while still allowing for different degrees of ambition (Art. 4 (4)). The principle of common but differentiated responsibilities remains applicable, but nuances have changed. Developed country parties ‘should take the lead in undertaking economy-wide absolute emission reduction targets’. Developing country parties are only expected to move over time towards economy-wide emission reduction targets. Different capabilities are considered in the phrase ‘in the light of different national circumstances’ (Art. 2 (2)). This dynamic reference indicates that there is a normative expectation that contributions will rise in accordance with improvements of national circumstances.
25 The provision on finance reiterates the fact that mitigation and adaptation are the main fundamentals of future climate actions. Art. 9 (1) states that developed country parties shall provide financial resources for developing country parties with respect to both mitigation and adaptation. This is a mandatory provision. The Paris Agreement extends the circle of contributors, in adding to the existing obligation of developed country parties the voluntary contribution of other parties, who are also encouraged to provide support. The mobilization of climate finance funds should represent progression of efforts (Art. 9 (3)). Developing country parties should receive scaled-up financial resources with the aim of balancing mitigation and adaptation efforts. A specification on concrete amounts is not provided in the Agreement itself, but in the decisions giving effect to the Agreement (Decision 1/CP.21 para. 53). This indicates a target of jointly providing US$100 billion annually by 2020 for mitigation and adaptation. Parties decided in the list of accompanying decisions that the Green Climate Fund and the Global Environment Facility (GEF), as well as the Least Developed Countries Fund and the Special Climate Change Fund, would serve the Paris Agreement.
3. Normative Expectation of Progression
26 The Paris Agreement sets forth instruments to control the implementation of NDCs, such as expert review of national GHG inventories, a multilateral consideration of progress, and a new global stocktaking mechanism. These top-down instruments of oversight are, however, different from the punitive compliance control under the Kyoto Protocol. Generally, more emphasis is given to the expectation that States will act because all of them are investing in fundamentally changing their economies, and that the failure of States to act will increase the costs for those who do take their NDCs seriously. The Paris Agreement demands ambition and claims that each successive contribution ‘will represent a progression’ (Art. 4 (3)) and that parties may adjust their level of ambition (Art. 4 (11)).
27 The expectation of progression is related to two parameters: time and improved capacities. Progression over time aims at accelerating ambition just because time has progressed. Once an NDC has been made, one could argue that a party is legally obliged to improve upon it. However, progression in relation to improved capacities will remain rather difficult to establish. The Paris Agreement employs the principle of common but differentiated responsibilities in a slightly nuanced fashion and allows parties to determine their progression ‘in the light of different national circumstances’. This is a dynamic reference that underscores the normative expectation that contributions will rise in accordance with improved national circumstances. However, there is no definition of the term ‘different national circumstances’. Some guidance can be derived from the expectation that the Paris Agreement spells out in relation to adapting quantified emission reduction targets. For developed country parties, the objective is that they ‘should take the lead in undertaking economy-wide absolute emission reduction targets’. Developing country parties are expected to move over time towards economy-wide emission reduction targets.
4. Enhanced Transparency Framework
28 The enhanced transparency framework is concerned with tracking progress towards achieving parties’ individual NDCs. The transparency framework has reporting obligations for all parties at its heart (Art. 13 (1) Paris Agreement) while providing for ‘built-in flexibility’. All parties must submit their national inventory report of GHG emissions and removals and provide information necessary to track progress in relation to their NDC (Art. 13 (7) Paris Agreement). The agreement abandons the differentiation of reporting requirements on mitigation efforts for developed and developing countries in favor of a robust ‘one size fits all’ approach, with general flexibility only allowed for those developing country parties that need it (Art. 13 (2) Paris Agreement). However, this flexibility could include the scope, frequency, and level of detail of reporting and also affect the scope of review, as further indicated in the list of accompanying decisions (Decision 1/CP.21 para. 89). Information should be submitted regularly and designed to inform the global stocktake. The term ‘regularly’ is not defined in the Agreement but is further clarified in the Paris Decision. Except for the least developed country parties and small-island developing States, it means that information shall be submitted not less frequently than biennially (Decision 1/CP.21 para. 90).
29 All reports will undergo expert review (Art. 13 (11) Paris Agreement) as does the information submitted by developed country parties on financial support, technology transfer, and capacity building provided to developing country parties (Art. 13 (9), (11) Paris Agreement). Each party is also under the obligation to participate in a facilitative, multilateral consideration of progress, in relation to the provision of financial support and the achievement of its NDC (Art. 13 (11) Paris Agreement).
5. Global Stocktake and Compliance
30 Art. 14 (1) Paris Agreement tasks the CMA to periodically take stock of the implementation of the Agreement. The CMA has far-reaching competences concerning the time frame, starting date, input, and outcome of the global stocktake. The global stocktake mechanism aims at scrutinizing the collective progress of all States towards achieving the purpose and the long-term goals of the Agreement. It does not assess the contribution of single States. The procedure shall be construed in a comprehensive and facilitative manner, considering mitigation and the means of implementation and support, in the light of equity and the best available science. The first global stocktake will take place in 2023 and every five years thereafter, unless the CMA decides otherwise. The outcome of the global stocktake procedure will inform future NDCs. Much will depend on the further design of the mechanism, for which the CMA will be responsible. The Paris Agreement comes full circle: The CMA will be able to identify elements and guidance for parties to compose their NDCs and the CMA will be able to inform parties, whether their contributions are sufficient or not in order to achieve the overall temperature goal set forth by the Agreement.
31 How exactly the global stocktake will inform future NDCs is not specified in the Paris Agreement. In the Paris Decision, however, the COP gives detailed guidance for further developing the global stocktake procedure, through endowing the CMA with the competence to decide on ‘sources of input’ and modalities of the global stocktake (Decision 1/CP.21 para. 99). Scientific assessments of the IPCC also inform the global stocktake. The CMA has the power through the global stocktake to inform parties that their collective efforts are not sufficient to reach the upper limit of the temperature objective that the Paris Agreement sets forth, let alone the lower and more aspirational goal of 1.5° Celsius.
C. The Montreal Protocol: Amendments and Adjustments
1. Amendment Procedure
32 Parties have amended the Montreal Protocol to include new chemicals in the control mechanism and to create a financial mechanism to enable developing countries to comply. Any party has the right to propose an amendment to the Convention or to the Protocol under Art. 9 (1) Vienna Convention for the Protection of the Ozone Layer. Such amendments ‘shall take due account, inter alia, of relevant scientific and technical considerations’. Amendments to the Convention are to be adopted by the Conference of Parties and amendments to the Protocol at a Meeting of the Parties to the Montreal Protocol. The proposed text must be communicated to the parties at least six months before the respective meeting takes place (Art. 9 (2)).
33 The Vienna Convention allows a qualified majority voting for amendments to adopt an amendment if all efforts to reach consensus have been exhausted (Art. 9 (3)). The criteria that such a qualified majority vote must satisfy depend on whether parties are debating an amendment to the Convention or to the Protocol. For an amendment to the Vienna Convention, a three-fourths majority vote of the parties present and voting at the meeting is necessary (Art. 9 (3)). Amending the Montreal Protocol requires a two-thirds majority of the parties to the Protocol present and voting (Art. 9 (4)). In contrast to the adjustment measures that can bind a party without its consent, amendments to the Convention or the Protocol require that the party submit an instrument of ratification, acceptance, or approval. Unless an amendment has been adopted by consent, the amendment only enters into force for the parties who have provided such an instrument of ratification, acceptance, or approval, provided that a qualified majority of three-fourths of the parties to the Convention or two-thirds of the parties to the Protocol have provided such an instrument (Art. 9 (5)).
2. Adjustment Mechanism
34 The Montreal Protocol allows parties to adjust the existing control measures in accordance with new scientific knowledge. The Protocol provides a procedure for scientific review of the control mechanism (Art. 6). The provision requires parties to assess the control measures of Art. 2 of the Protocol, beginning in 1990 and at least every four years thereafter. Parties must convene panels of experts at least one year before an assessment of the control measures takes place. This is a mandatory provision. The panel of experts must report its findings to the parties within a year of being convened. Since 1987, there have been six occasions on which parties have adjusted the reduction requirements of production and consumption of the controlled substances as listed in the Annexes of the Protocol. All of these adjustments are applicable to all parties.
35 Based on the outcome of the scientific assessment made under Art. 6 Montreal Protocol, parties can tighten controls. Adjustments can be made to the ozone-depleting potentials of chemicals that are included in Annex A, B, C and/or E to the Protocol. Since the Kigali Amendment, these adjustments can also be made in relation to the GWP of controlled substances included in Group I of Annex A, Annex C, and Annex F. Furthermore, adjustments can be made for the reduction of production or consumption of the controlled substances, including their scope, amount, and timing (Art. 2 (9) (a)).
36 Proposals for adjustments must be communicated to the parties at least six months before the meeting of the parties takes place (Art. 2 (9) (b)). If parties have exhausted all efforts to reach agreement by consensus in respect of an adjustment, a decision can be taken by a qualified majority vote. This qualified majority vote must satisfy three criteria. First, it has to be adopted by a two-thirds majority vote of the parties present and voting. Second, this must represent a majority of developing country parties present and voting, ie, parties operating under Art. 5 (1) Montreal Protocol. Third, this also must represent the majority of the developed country parties present and voting, ie, parties not operating under Art. 5 (1) Montreal Protocol. Decisions on adjustments that have been adopted by such a qualified majority vote shall enter into force for all parties, according to Art. 2 (9) (d).
3. The Principle of Common but Differentiated Responsibilities: Art. 5(1) Parties
37 The Montreal Protocol allows flexibility for developing country parties. The crucial differentiation lies in its Art. 5 (1). The provision acknowledges the special situation for developing country parties. Any party that is a developing country must also satisfy a further requirement to operate under Art. 5 (1), which reads as follows:
4. The Kigali Amendment
38 The Kigali Amendment turns the Montreal Protocol into an international agreement aimed at climate protection. With the inclusion of HFCs, the Protocol now regulates new substances that have no ozone-depleting potential but are potent GHGs. Parties have clarified their intentions in relation to the relationship of the UNFCCC, the Kyoto Protocol, and the Kigali Amendment, stating that the Kigali Amendment is not intended to except HFCs from the scope of application of Arts 4 and 12 UNFCCC and Arts 2, 5, 7, and 10 Kyoto Protocol. The Amendment provides for three different phase-down schedules. Depending on the schedule, the baseline for the calculation of HFCs is different and the timeline that prescribes the phase-down schedule varies. For developed country parties, the baseline is calculated using 2011–2013 as reference years, with the reduction schedule starting in 2019. They aim for a reduction of 85% of the baseline levels by 2036 (Art. 2J). The group of developing country parties acting under Art. 5 (1) is divided into two further groups (Art. 5 (8 qua)). Developing country parties in group one (faster track) will use the years 2020–2022 to calculate their baseline and start reductions in 2024. They aim for an 80% reduction of the baseline amount by 2045. The third group of developing countries will use the years 2024–2028 to calculate their baseline and will start with reduction in 2028. They aim for an 85% reduction of their baseline level by 2047.
5. Climate Finance under the Montreal Protocol
39 One reason for the successful implementation of the Montreal Protocol by all its parties is the financial mechanism of the Protocol. It establishes a multilateral fund that pays towards the incremental costs incurred by developing countries in the implementation of their obligations. The mechanism is managed under the supervision of an executive committee, with seven members each representing the group of developed country parties and parties operating under Art. 5. The mechanism is responsible for the supervision of technology transfer and capacity building projects and has reached a total of contributions of US$3.7 billion.
D. New Developments in the Legal Approach of Multilateral Climate Action
40 Law-making in the framework of multilateral environmental treaties, as traditionally conceived, is firmly anchored in the consent of all parties to the treaty, with this consent comprising parliamentary approval. The Paris Agreement confronts this concept with a new reality, where law-making occurs to an even greater extent than before in decision-making that potentially replaces the need for treaty amendments or further protocols. While these decisions are still supported by parties’ consent on the international level, they are not part of the international treaty that parties agreed to using national parliamentary ratification avenues. However, the fact that these decisions are taken by the governments of States does not mean that they cannot be legally binding. It is not new that States use conferences or meetings of parties as a forum of review and action for implementing and developing multilateral law-making treaties, and yet there is a significant increase in provisions in the agreement that depend on further and strategic decisions of the CMA to be operational (Environmental Treaty Bodies).
41 In 2016 the International Law Commission (ILC) adopted draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties. Pursuant to these draft conclusions, the legal effect of such parties’ decision depends on the particular case and has to be determined in the light of the treaty, the rules of procedure, and the circumstances of the concrete decision. The ‘specificity and the clarity of the terms chosen in the light of the text of the Conference of States Parties’ decision as a whole’ must be considered, and ‘its object and purpose, and the way in which it is applied, need to be taken into account’. Legally binding decisions have to be clearly distinguished from a mere provision of practical options for implementation. A further relevant consideration is ‘whether States Parties uniformly or without challenge apply the treaty as interpreted by the Conference of States Parties’ decision’. The provision of a respective competence in the treaty is not a necessary condition for the decision to create a legal effect: ‘In any case, it cannot simply be said that because the treaty does not accord the Conference of States Parties a competence to take legally binding decisions, their decisions are necessarily legally irrelevant and constitute only political commitments.’ That is indeed a matter of the lawfulness of the particular decision, not of its binding character. With the ILC guidance in mind, the question of how the CMA will direct the future development of the Paris Agreement and, specifically, whether the CMA could adjust the temperature goal through a legally binding decision, would depend on the wording and the intention of the CMA’s decision.
42 The Montreal Protocol represents a different legal approach, where controls can be tightened once a substance has been subjected to the control mechanisms. Both the Paris Agreement and the Montreal Protocol allow for the rapid adaptation of legally binding obligations to new scientific evidence, but only the Montreal Protocol with its unique adjustment mechanism provides a mechanism enshrined in an international agreement. The successful implementation of the Paris Agreement, by contrast, depends to a greater extent on further strategic decision-making by the CMA.
E. Climate Change as a Matter for Courts
43 There is a growing volume of case-law in relation to climate protection. The Rechtbank in The Hague ruled in 2015 that the climate policy of the Dutch Government was insufficient to achieve the country’s 2020 GHG emission targets of a reduction of 25%–40% of GHGs compared to 1990 levels. The Court held that it was the responsibility of the State to effectively control the Dutch emission levels, and that any reduction of emissions would contribute to the prevention of dangerous climate change. While the Court agreed that climate change was a global problem, it also emphasized that the Netherlands as a developed country should take the lead in reducing GHG emissions. In sharp contrast, the Oslo District Court ruled in a January 2018 case, People v Arctic Oil, that Norway is not responsible for GHG emissions resulting from further oil exports. The judges rejected the argument by Greenpeace and Nature and Youth that a further round of licensing for oil drillings in the Barents Sea would lead to increasing oil production and would thus be in conflict with Norway’s climate change obligations under the Paris Agreement. The Court considered GHG emissions resulting from the use of Norwegian oil to be of extraterritorial effect and thus outside its jurisdiction. Furthermore, the licensing was held to be in line with the government’s general policy and as such a policy matter outside the jurisdiction of the court.
44 A further court ruling may give the emerging case law a new dimension. In November 2017, a German court, the Higher Regional Court in Hamm (OLG Hamm), decided in the case Lliuya v RWE to enter into the evidentiary stage of proceedings to establish whether a Peruvian farmer can claim compensation from the German energy provider RWE. The farmer claims that RWE’s GHG emissions are contributing to the increase of the water volume in Lake Palcacocha, which is situated adjacent to a glacier, and that this increase in the water volume places his lower-lying property at risk to be exposed to dangerous flooding or mudslides. In its order to establish further evidence, the Court states that the GHG emissions of RWE lead to a chain of events in the atmosphere and result in a global temperature increase that reduces the ice of the glacier. Experts will now have to establish whether the contribution of RWE can be measured as well as whether the contribution is approximately 0.47%, as claimed by the applicant. Indeed, the crucial factor in these court proceedings will be the attribution of global warming, climate change, and severe weather events to the GHG emissions of certain States and enterprises.
45 The emerging science of probabilistic event attribution (‘PEA’) increasingly makes possible a quantitative measurement of the contribution of human-induced climate change to local and regional weather events. In the future, results of PEA science might well be capable of delivering relevant evidence. The fact that once causation has been proved, the likely damage would have to be estimated could be overcome in the light of the recent judgment of the ICJ in the case Costa Rica v Nicaragua. In its decision of 2 February 2018, the Court adjudicated for the first time in its history a claim for compensation for environmental damage. It held that ‘the absence of certainty as to the extent of damage does not necessarily preclude [the Court] from awarding an amount that it considers approximately to reflect the value of the impairment or loss of environmental goods and services’ (para. 86).
46 With the latest Kigali Amendment to the Montreal Protocol and the Paris Agreement, two different legal instruments are controlling certain GHGs, and this development will increase the possibility of achieving the global temperature goal set out by the Paris Agreement. However, the reduction achieved even with the combined effects of both instruments in relation to HFCs will need to be accompanied by high ambition realized in States’ NDCs and their implementation.
47 For many States, ambition will be linked at least in the short term to the availability of technology that allows them to decarbonize their economies and to add renewable energy resources to their overall mix of energy sources while at the same time pursuing efforts to eradicate poverty. Yet the majority of these States are not in the group of major emitters. One major achievement of the Paris Agreement, the participation of all major emitters, is now challenged by the US announcement of its intention to withdraw from the Agreement. A lack of commitment arises here not from a limited capacity to act ambitiously but from declining ambition, a decision made by the government that contravenes one of the core principles to which all parties to the UNFCCC agreed in Paris. All State Parties agreed to invest in new technologies to decrease the use of fossil fuels and to decarbonize economies for the benefit of humankind, in a global effort to make human survival on earth a long-term prospect. Art. 28 Paris Agreement stipulates that a party may withdraw from the agreement only three years or more after the date on which the Agreement has entered into force for that party. The withdrawal shall then take effect upon the expiry of one year from the date of receipt by the depositary of the notification of withdrawal. Up to that time, a party remains obligated to fully comply with the Agreement, as required by Art. 70 Vienna Convention on the Law of Treaties. The decision to withdraw from the Paris Agreement is in sharp contrast with the ambition demonstrated by the US Government under the Montreal Protocol, in which the US, Canada, and Mexico in 2015 supported the initiative to include HFCs in the control mechanism and to use advanced technology to replace them.
48 For the remaining parties, the Paris Agreement remains the cornerstone of climate change action and the US withdrawal announcement has had the effect of strengthening their commitment, as demonstrated in the European Council Conclusions on the Paris Agreement on Climate Change, 22 June 2017. Likewise, the annex to the G20 Leaders Declaration, ‘G20 Hamburg Climate and Energy Action Plan for Growth’ (2017), contains the reference that ‘[t]he United States is currently in the process of reviewing many of its policies related to climate change and continues to reserve its position on this document and its contents’, while maintaining that the commitment of ‘G20 minus 1’ would remain unchanged.
49 The action of private enterprises and all stakeholders needs to be strong and aligned with the long-term goal of the Paris Agreement, even more so if States fail to act or even, as in the case of the US, to make commitments. In January 2018, a group of legal experts from around the world launched the Principles on Climate Obligations of Enterprises. Along with the 2015 Oslo Principles, these Principles aim at outlining the climate change obligations of enterprises. These are clear signs that enterprises could develop their own course of action, in a complementary move, or even replace at least in part the lack of their governments’ ambition. Even if these are not contained in a legally binding text per se, they nonetheless contribute to an emerging opinio iuris between relevant stakeholders.
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