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The Oxford Handbook of International Climate Change Law edited by Carlarne, Cinnamon P; Gray, Kevin R; Tarasofsky, Richard (24th March 2016)

Part I Introduction, Ch.1 International Climate Change Law: Mapping The Field

Cinnamon P. Carlarne, Kevin R. Gray, Richard G. Tarasofsky

From: The Oxford Handbook of International Climate Change Law

Edited By: Cinnamon P. Carlarne, Kevin R. Gray, Richard Tarasofsky

Climate change — Environmental disputes — United Nations (UN) — Arbitration

(p. 3) Chapter 1  International Climate Change Law

Mapping The Field

(p. 4) 1.  The Emergence of International Climate Change Law

the field of international climate change law emerged and evolved rapidly. In the span of a quarter of a century, the international community identified climate change as a global problem, negotiated a framework treaty and a protocol to define the parameters of a global response, and developed domestic laws and regulations to implement such a response through a network of complex legal and political agreements at every level of governance.

In 1990, the United Nations General Assembly (UNGA) initiated the development of the field of international climate change law by passing Resolution 45/212 that launched formal negotiations for an international climate change treaty.1 Within two years, these negotiations culminated in the adoption of the United Nations Framework Convention on Climate Change (UNFCCC).2 The UNFCCC, as a framework instrument, sets the parameters for global discourse and provides an essential forum for dialogue and decision-making on climate change matters. It is and always has been the focal point for the development of the norms and principles of international climate change law.

The UNFCCC is complemented by the hard-fought-for Kyoto Protocol. The Kyoto Protocol is a treaty that sets out legally binding emission reduction obligations for developed country Parties, provides for a series of market-based mitigation tools, and generally adds further contour to the legal framework established under the UNFCCC. Together, the UNFCCC and the Kyoto Protocol form the backbone of the international climate change regime. But, it is a backbone that is bending under the weight of ongoing patterns of climate change coupled with the pressure exerted on the system by State and non-State actors in the international community to respond to changing physical, scientific, political, and economic realities. Indeed, it is now evident that the Kyoto Protocol itself is no longer considered by the international community to be an appropriate basis for moving forward in the longer term, given that its second commitment period for emission reduction obligations,3 which is still not in force at the time of writing, will not be followed by a subsequent commitment period.

The international climate change regime, thus, stands at a crossroads. There is an international law foundation in place but the structure has not yet produced (p. 5) the type of changes in state behaviour that are necessary to effectively address the contemporary challenges of climate change; it is a foundation in need of further development if not reconceptualization.

Recognizing this need, the Parties to the UNFCCC are currently engaged in negotiations with the ultimate goal of creating ‘a protocol, another legal instrument or an agreed outcome with legal force’ for the period from 2020 onwards.4 The mandate for these negotiations derives from the Durban Platform for Enhanced Action (the Durban Platform), adopted in December 2011. The vague wording in the Durban Platform and the absence of any language about binding commitments both differ from the path set forth in the 1990 UNGA Resolution with its call for a framework convention that includes binding obligations, and reflects continuing resistance by a few developing country Parties to agree to legally binding commitments that would be ‘applicable to all’. The resistance poses a fundamental challenge that the international community must overcome in order to reach a consensus on how the international climate change regime and, in particular, the law that underscores the regime, can evolve. The ongoing negotiations also reveal how efforts to develop international climate change law challenge the traditional paradigm of international environmental law and, in particular, traditional reliance on treaties with enforceable obligations. The vigour of the existing international law regimes developed in the last century is being put to the test.

The uncertainty about the future legal regime is juxtaposed with increasing certainty about human-induced climate change. In 2014, the lead scientific body on climate change—the Intergovernmental Panel on Climate Change (IPCC), which Ghaleigh in Chapter 3 calls ‘a remarkable success’ despite its weak mandate—released its Fifth Assessment Report (AR5).5 This Report, which is the most comprehensive assessment of climate change to date, warns of the increasing scope and intensity of the effects of climate change on human and non-human life. In critical part, the AR5 concludes that ‘[h]‌uman influence on the climate system is clear’6 and that:

[w]‌arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the (p. 6) concentrations of greenhouse gases have increased.7 … Each of the last three decades has been successively warmer at the Earth’s surface than any preceding decade since 1850.8

The AR5 confirms that unless the international community modifies its collective behaviour—by reducing emissions of greenhouse gases substantially—we will witness further warming of the planet and continued changes in all components of the climate system. These changes will be significant.9

The AR5 deepens our understanding of what we already knew: climate change creates new threats to the planet, exacerbates existing dangers, and contributes to the perpetuation of existing social and economical inequalities at both the global and local levels. Scientific consensus creates the imperative to act. Yet, the political will of States has not risen to the challenge.

Despite these failings, there is still near-unanimous political consensus on the need to act. Engagement in the UNFCCC process is nearly universal, with 195 Parties having ratified the treaty.10 This means that 195 States (as well as a regional economic organization), representing all United Nations (UN) Member States, concur that ‘human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind’.11 They also share the goal to ‘stabiliz[e]‌ … greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.12

Within this context, The Oxford Handbook on International Climate Change Law offers insight into the evolving shape and structure of international climate change law. As editors, we have attempted to compile a book that delineates climate change law, re-enforcing how this area of international law deserves specific scholarly attention. International climate change law is a unique area of international law that demands comprehensive analysis and thinking. Although climate change law can be considered a subset of international environmental law, the range of cross-cutting themes and interdisciplinary considerations (e.g. energy, trade, forests, agriculture), coupled with its contemporary significance and the fluid context of international negotiations, highlights the need for a publication dedicated to this unique area of international law. This chapter explores the evolution of (p. 7) international climate change law as revealed through international negotiations, and examinations of the norms, systems, actors, and debates that shape and inform the field.

2.  Evolution of the Field

Although international climate change law has its grounding in the UNFCCC and the Kyoto Protocol, the antecedents for the field stem from the basic tenets of international environmental law. This includes the international laws of state responsibility,13 the international treaties governing transboundary air pollution,14 as well as the normative principles that underlie the foundations of international environmental law (e.g. common but differentiated responsibility, the ‘polluter pays’ principle, and the common heritage of humankind).15 The corpus of international environmental law, including both customary international law and general principles, has set the foundation for climate change law. However, climate change law forged its own identity once the UNFCCC was concluded.

As discussed in detail by David Freestone in Chapter 5, the UNFCCC is a framework convention signed in 1992. The UNFCCC provides for ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.16 Further, it establishes the fundamental principles underlying the development of international climate change law, including common but differential responsibilities and respective capabilities,17 precaution,18 as well as Principle 2 of the Rio Declaration.19

Following the entry into force of the UNFCCC in 1994,20 the Parties began negotiations on a protocol that would delineate State roles and responsibilities. These negotiations culminated in 1997 with the conclusion of the Kyoto Protocol, which subjects developed country Parties to explicit targets and timetables in meeting (p. 8) their obligations to reduce global greenhouse gas emissions.21 Developing country Parties were not assigned any emission reduction targets.

From an early point in international climate change negotiations, a handful of States have played a pivotal role in shaping the regime. In 1997, for example, the United States was one of the key architects of the Kyoto Protocol. It was also the largest net global greenhouse gas emitter at the time the Protocol was negotiated. Accordingly, climate negotiators knew that the United States’ response to the Protocol was critical. If the United States ratified the Protocol, then two primary results would follow: (1) the largest global polluter would agree to meaningful emission reductions, thus significantly limiting free-rider problems and offering the real possibility of net global emission reductions; and (2) the international climate change regime would receive an important boost of support. This would help legitimize the institution in the eyes of the global community and create added incentives for both developed and developing country States to engage in the process moving forward.

Following the negotiation of the Kyoto Protocol, the newly minted Bush Administration signaled that the United States would not be ratifying the Protocol. There initially remained, however, some hope that, due to international pressure, the United States would eventually reverse course. As a result, while the European Union (EU) and other supporters of the Protocol made efforts to increase the number of ratifications so as to allow the Protocol to enter into force, both State and non-State actors pursued a diverse set of strategies designed to incentivize US re-engagement in multilateral efforts to address climate change.

These efforts vis-à-vis the United States came to naught. Nonetheless, enough States ratified the Kyoto Protocol, with Russia’s being the final necessary ratification that resulted in the agreement entering into force in 2005.22 From a legal point of view, the most significant legal development that enabled many States to ratify was the Marrakesh Accords agreed at the seventh Conference of the Parties (COP-7) in 2001, which set out detailed rules on implementing the Protocol. These included the rules on the flexible mechanisms as well as the compliance regime. During the interim period between adoption and ratification of the Protocol, the greenhouse gas footprint of the rapidly developing economies of developing country Parties grew exponentially. In particular, emissions in China drastically increased beginning in 2002. By 2006, China had surpassed the United States as the largest net emitter of greenhouse gas emissions.23

(p. 9) After a decade of concerted efforts by the Parties to ensure that the Protocol was ratified and to push for collective action in its implementation, a roadmap for negotiating a post-2012 climate agreement was accepted at the 13th COP in Bali, Indonesia in 2007.

The tone of the negotiations in Bali reflected a turn in global climate negotiations. The growing presence of civil society in these negotiations reflected mounting frustration with global climate change politics. Both members of civil society and some States began to redirect the conversation during the negotiations away from the failures of key developed country Parties to commit to obligations towards a more nuanced discussion about the relative roles and responsibilities of developed and developing country States.

By 2007, the global community no longer seemed to hold onto hope that the United States would reengage meaningfully in global climate change negotiations. At the same time, China and other States with rapidly developing economies that have become some of the biggest producers of greenhouse gas emissions, remained adamantly opposed to committing to legally binding obligations to reduce greenhouse gas emissions. By 2007, the role of the rapidly developing country Parties in a negotiated solution to international climate change had become one of utmost importance. In the wake of unprecedented rates of emissions growth in these States, the global community had to adjust to a new reality: achieving meaningful emission reductions could not be accomplished without full engagement on the part of the rapidly developing country Parties.

Between 2007 and 2009, progress was made in developing negotiating texts for the all-important 2009 UNFCCC COP and the Meeting of the Parties of the Kyoto Protocol (MOP) in Copenhagen. Following multiple years of stalled negotiations, the year 2009 brought the promise of progress. With Barack Obama assuming the Presidency of the United States on a platform that promised to prioritize its domestic efforts to address climate change, and with the new administration following up shortly thereafter with modifications to its US climate change law and policy, progress seemed possible. As the 2009 COP neared, the United States, China, India, and Brazil indicated they were willing to come to the negotiating table.

The Copenhagen Climate Change Conference (COP-15/MOP-5) was an important turning point in the development of the climate change regime. Following multiple years of negotiations defined by frustrations directed towards the United States and the rapidly developing country Parties (particularly China and India), the Copenhagen Conference marked, for the first time since the 1997 meeting in Kyoto where the Protocol was adopted, a credible possibility that all major emitters would actively engage in climate change negotiations with a view to raising collective ambition.

The Copenhagen meeting proved to be a tumultuous event wherein tempers and emotions ran high and efforts to negotiate a substantive way forward to respond to (p. 10) climate change proved elusive. Unlike the meetings of the preceding years where the negotiations were largely left to lower-level diplomats and ministers, with a modest role for the handful of Heads of State in attendance, in Copenhagen, the hard work of the State negotiators was ultimately overshadowed by the presence of Heads of State from the United States, Europe, China, India, and elsewhere.

In the end, the primary output of the Copenhagen Conference was a watered-down instrument with little gravitas: the Copenhagen Accord.24 Heads of State and negotiators representing the United States, China, India, Brazil, and South Africa, drafted the Copenhagen Accord during the course of a private meeting. The three-page Accord committed parties to continuing efforts to facilitate long-term cooperative action to combat climate change and to providing ‘[s]‌caled up, new and additional, predictable and adequate funding’.25 It also laid the groundwork for a new ‘Green Climate Fund’ (see Thompson, Chapter 7).26 However, this agreement was not formally adopted by the COP, having been objected to by a handful of small developing country Parties. The fact that international consensus could be thwarted by a small number of negotiating Parties, fundamentally questioned how international climate change issues can be effectively governed by the international community.

Ultimately, the COP-15 failed to live up to the expectations of many that were kindled in the run-up to Copenhagen—that being the conclusion of an agreement including legally binding emission reduction obligations—but it gave the UNFCCC Parties a basis upon which to move forward. For example, the Copenhagen Accord called for deep cuts in emissions premised on the need to ‘[h]‌old the increase in global temperature below 2 degrees Celsius’,27 a benchmark that has underpinned subsequent negotiations. It also set up a process by which all Parties, pledged mitigation actions—marking the first time that developing country Parties made such commitments in the UNFCCC forum.

Beyond mitigation, the Accord emphasized the urgent need for ‘[E]‌nhanced action and international cooperation on adaptation’,28 a theme that the COP has since prioritized. Similarly, as noted above, the Accord called for the creation of a ‘Green Climate Fund’ that would constitute the operating entity of the financial mechanism for the UNFCCC.29 Thompson provides a comprehensive account of (p. 11) the Fund in Chapter 7. Developed country Parties agreed to mobilize (from public and private sources) US$100 billion per year starting from 2020. The COP has subsequently followed through in setting up the Green Climate Fund. Finally, the Accord called for the creation of a new mechanism for enhancing technology development and transfer.

At the subsequent COP, held in Cancún in 2010 (COP-16/MOP-6), the Parties concluded a set of agreements, known as the Cancun Agreements.30 In these Agreements, the key components of the Copenhagen Accord were formalized and expanded on through decisions with respect to monitoring mitigation efforts, developing the principles of the new Green Climate Fund, creating a new mechanism to facilitate technology development and transfer, and establishing the Cancún adaptation framework to facilitate action on adaptation, including the creation of a new Adaptation Committee. In key part, the Cancun Agreements reaffirmed the need to achieve cuts in greenhouse gas emissions ‘deep enough to hold the increase in global average temperature below 2°C above preindustrial levels’.31

By the time COP-17 began on 28 November 2011 in Durban, South Africa, negotiators were more pragmatic in their efforts to achieve a consensus, bearing in mind the experiences leading up to the Copenhagen COP. This is not to say that many State and non-State actors did not continue to push for a comprehensive, legally binding framework that would contain further emission reduction commitments; they did. Parties such as the small island States, the EU, and those from the ‘umbrella group’ consisting of, inter alia, the United States, Canada, Australia, Russia, and Norway, continued to pursue a legally binding instrument.32

The primary outcome of COP-17 was the Durban Platform for Enhanced Action.33 In two pages, the Durban Platform for Enhanced Action created a roadmap for the (p. 12) next three years of negotiations with the end goal being the completion of a new global agreement by 2015, as described above. Beyond this, the Durban meeting resulted in other noteworthy developments.

First, one of the most significant developments in Durban was the COP Decision on the Green Climate Fund, which set out the Fund’s broad design.34 This fulfilled a commitment made by developed country Parties in the Copenhagen Accord, which proved essential in securing developing country States’ support for the entire package of decisions adopted in Durban.

Second, the Parties to the Kyoto Protocol, noting the ‘importance of ensuring continuity in mitigation action’,35 saved the Protocol from falling into desuetude by setting out a second emission reduction commitment period that began on 1 January 2013 that is scheduled to end on 31 December 2020.36 The salvaging of the Protocol is legally significant because the mechanisms under the climate change regime will continue (see Freestone, Chapter 5). For instance, the second commitment period has prolonged the use of the project-based Clean Development Mechanism.37 This reinforces support for the existing legal infrastructure and system already established in international climate change law, even amidst uncertainty over the longer-term future direction of the climate regime.

The third significant development at COP-17 was the progress made on the issue of adaptation. In Durban, the COP adhered to the proposition set forth at COP-16 in Cancún that ‘[a]‌daptation must be addressed with the same priority as mitigation and requires appropriate institutional arrangements to enhance adaptation action and support’.38 In key part, the COP agreed on the composition of, and modalities (p. 13) and procedures for, the Adaptation Committee,39 and agreed upon a decision on National Adaptation Plans (NAPs).40 Following the basic framework and pursuing the call for action issued in Cancún, the COP formalized the structure for the Adaptation Committee with the objective of finalizing it before COP-18.

Fourth, the COP continued to develop a system to measure, report, and verify (MRV) Parties’ greenhouse gas emissions and the actions taken to reduce them.41 This was done through the adoption of revised guidelines for developed country Parties’ annual greenhouse gas inventories. The guidelines provide a platform for ensuring that these inventories are ‘transparent, consistent, comparable, complete, and accurate’,42 although they leave questions concerning national reporting by developing country Parties unanswered. Nevertheless, the progress in measurement, reporting, and verification was evident in the Parties agreeing to a common set of guidelines to ensure regular and consistent reporting of emissions.

In the years following COP 17, the Parties to the UNFCCC addressed individual issues, such as: adopting the amendments to the Kyoto Protocol in Doha that created the second commitment period, adopting a set of decisions on Reduced Emissions from Deforestation and Forest Degradation (REDD+), agreeing upon a new mechanism to address loss and damage caused by climate change,43 and developing the framework for post-2020 climate action based on a system of Intended Nationally Determined Contributions (INDCs).44 Further, the Parties made progress towards laying the groundwork for a new global agreement.

Leading into COP-21 to take place at the end of 2015, the Parties to the UNFCCC continue to develop the terrain of international climate change law. At the time of this publication, the possibility of creating a legally binding agreement still remains on the table.

(p. 14) 3.  The Legal Framework for Climate Change

3.1  Principles and Emerging Norms

The UNFCCC firmly places ethical concerns at the centre of the international climate change regime. In characterizing the Earth’s climate system as being of common concern to humankind (Soltau, Chapter 10), promoting a precautionary approach to addressing climate change (Wiener, Chapter 8), and articulating concerns about future generations and intra- and inter-generational equity (Redgwell, Chapter 9), the UNFCCC establishes a normative framework that supports ethical grounds for decision-making. Yet the implementation of these underlying norms remains a constant point of consternation for States, because the drivers of implementation operate firmly in the realm of national interests and realpolitik.

A particular point of normative controversy concerns the implementation of the principle of common but differentiated responsibilities (CBDR). The UNFCCC provides that Parties to the treaty ‘should protect the climate system … on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities’.45 This provision sets the parameters for one of the most salient ethics-based climate debates: what does common but differentiated responsibilities mean and how should it be realized?

There are numerous examples of treaties that differentiate the responsibilities of States.46 The specific phrase ‘common but differentiated responsibilities’ was first formally used in 1992 in Principle 7 of the Rio Declaration on Environment and Development.47 That same year, the UNFCCC became the first multilateral environmental agreement to include the phrase.48 In the UNFCCC, the phrase is suggests that the international community shares a common responsibility (p. 15) for protecting the global atmosphere, but that the responsibility for addressing global climate change should be differentiated among States (arguably) based on historical contribution to the problem as well as present capacity to respond.49

Inclusion of CBDR provisions in the UNFCCC divided the international community. Many developed country Parties, including the United States, resisted the inclusion of CBDR, fearing that it would create additional legal obligations. Developing country Parties were more inclined to support CBDR as it allocates more of the burden of combatting climate change to developed country Parties. Ultimately, the CBDR principle was included and emerged as the ‘overall principle guiding future development of the regime’,50 although it is important to note that the addition of the words ‘and respective capabilities’ mark an important departure from the usual CBDR formulation, particularly as it appears in Article 4(1) of the UNFCCC, which creates obligations for all parties.

Debate surrounding the legal meaning and application of the CBDR principle is the most prominent question of principle preoccupying climate policies and negotiations. How it is understood and applied will affect how the collective burden of climate change obligations is met by each individual Party. A static interpretation of the CBDR principle—that places the burden of achieving emission reductions solely on developed country Parties (as defined in 1992 in Annex 1 of the UNFCCC), while excluding the Parties with rapidly developing economies (e.g. China, India, and Brazil) from any type of legally binding emissions reduction commitment—is now untenable as it no longer reflects current realities. Not only does this interpretation potentially place developed country Parties in a position of economic disadvantage, but it also undermines the importance of truly effective collective action, where all States work to address climate change.

More dynamic notions of the meaning of CBDR are evident not only in the positions taken by certain EU member states and the United States, but also in the positions taken by many developing country States within the G77—and in particular, Least Developed Country (LDC) members (see Gupta, Chapter 33) and the Alliance of Small Island States (see Ronneberg, Chapter 34), who argue that any effective international climate regime must include the world’s biggest emitters. There is an increasing, yet not universal, consensus that notions of CBDR must evolve to more closely attribute responsibilities based not only on past responsibilities but also on present contributions and capacities. Adding to the challenge, the Parties to the UNFCCC, by including a list of developed countries directly in the treaty (Annex I), constrained the ability of the COP to adopt an evolving approach to understanding the concept of CBDR. In order formally to embrace a more dynamic approach to CBDR, the COP would need to adopt an amendment (p. 16) to the UNFCCC, which is a difficult process. For example, even Russia’s relatively benign amendment proposal in 2011 to create a regular review of Annexes I and II which would only envisage changes with the approval of any Party affected has still not been accepted.51

Efforts to achieve consensus on the normative foundations for a future agreement, in addition to the problems noted above, are further complicated by a variety of other perspectives such as the evolving notions of human rights and the impact of related judicial decisions (see Knox, Chapter 11 and Cullet, Chapter 22). At root, current efforts to address climate change require dramatic societal changes that touch upon sensitive public policy and economic questions, including those relating to energy, transportation, infrastructure, agriculture, food security, and forestry.

A new global agreement for the twenty-first century must transcend the traditional mode of bargaining and search for reciprocity upon which most international law rests. What is at stake with climate change is a profound challenge to the way States legally bind themselves in order to voluntarily assume obligations that will, by definition, affect prosperity and development unevenly (at least in the near-medium term), but improve the collective good. What is clear is that the current UN negotiating framework has so far proved unable to meet this challenge.

3.2  The Mitigation Regime: International and National Elements

Mitigating climate change—through measures to reduce greenhouse gas emissions or to enhance carbon sinks—so as to avoid ‘dangerous anthropogenic interference with the climate system’, lies at the heart of the international climate regime.52 Article 4(1)(b) of the UNFCCC contains general commitments by all Parties to take mitigation measures, while the Kyoto Protocol contains quantified emission reduction targets only for developed country Parties, which to date are the only internationally legally binding specific mitigation commitments. The Protocol also contains an ambitious compliance mechanism for those targets, which Oberthür assesses and seeks to draw lessons from as the UNFCCC Parties negotiate the post-2020 regime (see Chapter 6).

In response to the UNFCCC and the Kyoto Protocol, and affected by domestic concerns and interests, many UNFCCC Parties have developed a diverse and impressive set of emission reduction measures. Among others, these measures include efforts to set emission limits, establish energy intensity targets, create markets in greenhouse gas emissions, promote energy efficiency and conservation, and develop the (p. 17) renewable energy sectors. For example, in Chapter 17, Wilder and Drake explore how the international community has attempted to cooperate in developing the renewable energy sector but note how further governance is needed at the international level.

In choosing what mitigation measures to take, States generally seek to achieve positive environmental outcomes in the most economically efficient manner possible. As a result, some States—mainly developed country States—have complemented command and control style regulatory approaches with a move towards market mechanisms that provide incentives for economic actors to comply. As Hsu argues in Chapter 12, market mechanisms are policy instruments that seek to harness market forces to either reduce pollution or reduce compliance costs. Both are essential for successful environmental regulation. Indeed, market-based approaches appear regularly in the climate context. At the international level, the Kyoto Protocol created flexible mechanisms for Parties to meet its obligations,53 the most important of which are the market-based rules created under the Clean Development Mechanism. Although notable in its sophistication, its actual mitigation impact has been limited due to the low market prices for its ‘Certified Emission Reduction Units’. More successful have been some prominent domestic emissions trading systems such as the ones developed in the EU, some states in the United States and provinces of Canada, and even South Africa (See Shoyer, Sul, and van der Ven, Chapter 14).

A common debate about mitigation policies and measures concerns their impact on domestic industry and whether additional measures should be taken to address any negative economic consequences. Furthermore, facing new and often costly compliance burdens, representatives of regulated industries often contend that their counterparts operating in jurisdictions with less stringent climate change commitments have a competitive advantage. Governments, naturally, are sensitive to these concerns when designing climate mitigation measures. In Chapter 14, Shoyer, Sul, and van der Ven examine how divisions between UNFCCC Parties willing to take on more aggressive climate change reduction commitments and those that are not have led to proposals designed to alleviate the economic burden for firms and businesses subject to stricter emission reduction requirements. Mehling, in Chapter 13, explores how linking between emissions trading systems can be effective in both achieving emissions reductions while addressing economic competitiveness concerns.

However, as States develop a diverse and complex set of mitigation measures, along with measures to shield their domestic industry from economic disadvantages, (p. 18) a key question can arise as to whether such measures are consistent with a Party’s international trade obligations. In Chapter 15, Sindico assesses this issue in the light of World Trade Organization (WTO) obligations. Although evidence of economic uncompetitiveness and even carbon leakage (where producers relocate to States with less stringent emission reduction requirements) is varied and anecdotal, States are taking heed of these concerns in designing measures while being cognizant of the risks of the measures’ WTO inconsistency. Meanwhile, Sarnoff (Chapter 18) examines how the patent system, as anchored in the WTO rules, may risk colliding with innovation and technology development policies of States as they ramp up their efforts to combat climate change.

Since the Copenhagen Accord, which triggered non-binding pledges for mitigation action by both developed and developing countries, Parties have struggled with how to design an effective and appropriate international architecture that would capture and further leverage mitigation actions. Important steps included the adoption of guidelines for ‘measuring, reporting and verifying’ mitigation actions, with processes for ‘international assessment and review’ for developed country Parties and ‘international consultation and analysis’ for developing country Parties. But the central issue of what legal status future emission reduction targets should have has so far eluded consensus. At root is a central dilemma. On the one hand, an architecture that fixes hard mitigation targets along with strong consequences for non-compliance may have the advantage of enhancing predictability, but risks deterring States from being ambitious in their commitments. On the other hand, a more flexible architecture may allow States to take on higher mitigation commitments, but may lack the clout and credibility to ensure that the targets set are ultimately met.

3.3  The International Adaptation Regime

Even as States develop increasingly complex mitigation measures, the absence of mitigation results coupled with incontrovertible evidence confirming the inevitability of some degree of climate change is prompting increased attention to adaptation planning. Leading to a further sense of urgency surrounding adaptation, the IPCC has cautioned that ‘[r]‌ecent climate changes and climate variations are beginning to have effects on many other natural and human systems’.54 As a result, we are witnessing increased efforts to develop adaptation strategies in both the developed and developing world.55

(p. 19) Adaptation governance differs fundamentally from the traditional methods of assessing governing in the context of mitigation. International efforts to mitigate climate change to date have concentrated on collective action and therefore demanded centralized, consensus-based top-down decision-making. States recognize that adaptation efforts will require greater diversification and, often, decentralization of decision-making authority. Leading climate experts have noted that ‘[a]‌dapting to climate change involves cascading decisions across a landscape made up of agents from individuals, firms and civil society, to public bodies and governments at local, regional and national scales, and international agencies’.56

Financial aid and capacity building are traditional means employed under many multilateral environmental agreements to assist developing country States in implementing their commitments. But the imperative of adapting to climate change is profound and defies traditional paradigmatic approaches. This imperative is not limited to developing country Parties, but it is developing country Parties who are most vulnerable to the adverse impacts of climate change.

While there is widespread recognition of the need to develop more comprehensive adaptation strategies, very little attention has been made to coordinate adaptation efforts, particularly at the global level. Policy-makers continue to grapple with approaches other than a top-down system of adaptation governance or, conversely, fragmentary and uncoordinated local efforts.

Within this context, the UNFCCC, as the primary instrument of international climate change law along with its decision-making institutions, has a critical role to play. The progress the COP has made since COP-15 to develop a strategy for climate change adaptation efforts demonstrates that adaptation is at the top of the international climate change agenda. There is an underlying, if unstated, recognition by the COP that adaptation governance is better suited to global facilitation rather than centralized decision-making.

The UNFCCC Parties are devoting efforts to create an institutional framework for national adaptation planning in developed countries (particularly in the least-developed countries),57 and operationalize a financing mechanism for adaptation planning and adaptation efforts in developing countries.58 Given the nascent and still evolving nature of the debate over approaches to adaptation, however, the question of how the climate change regime develops instruments to address adaptation will be a subject of discussion for the foreseeable future. As the recent debates around loss (p. 20) and damage reveal, reaching outcomes that place additional burdens on developed country Parties to provide financial assistance will be difficult to reach.

3.4  National and Supranational Actors

As previously discussed, international climate change law is significantly influenced by a handful of States acting both in their individual capacity and in their capacity as members of negotiating blocs. As explored in Part VII of this book, these States include developed country Parties responsible for the brunt of historic emissions but whose emissions have largely evened off, such as the United States of America (see Gerrard, Chapter 27) and the EU (see Bogojević, Chapter 29)—and developing country States with rapidly developing economies whose net emissions have risen rapidly and continue to climb—China (see Wang, Chapter 28), India (see Badrinarayana, Chapter 30), and Brazil (see Alvarenga de Oliveira, Chapter 32). Both developed and developing country States will be indispensable to future efforts to develop the international climate change regime.

Although politically important, the largest polluting States are not the only actors that play key roles in the negotiations and, more broadly, in global climate politics. From the G77 to the increasingly influential negotiating blocs, including the BASIC (i.e., Brazil, South Africa, India, and China), to the Alliance of Small Island States (see Ronneberg, Chapter 34), to the Least Developed Countries (see Gupta, Chapter 33), these States and groups of States have come to play increasingly important roles in shaping the narrative of climate politics generally, and the focus of global climate change negotiations more specifically. In particular, as the physical processes of climate change have advanced amidst slow and stalled negotiations, those States most affected by climate change, buoyed by support from civil society, have become increasingly prominent voices in calling for not only more effective mitigation strategies (see Ronneberg, Chapter 34 and Gupta, Chapter 33), but also improved mechanisms for adaptation and climate finance (see also Thompson, Chapter 7).

3.5  International Organizations

The UNFCCC and its constituent bodies and processes are at the centre of international climate change law; yet a host of other international organizations are playing increasingly prominent roles in structuring mitigation and adaptation measures. The roles these institutions play vary. Institutions such as the Conference of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer59 (p. 21) make decisions that can contribute towards emission reductions, while dispute settlement bodies at the World Trade Organization (see Sindico, Chapter 15) or the International Court of Justice (see Verheyen and Zengerling, Chapter 19) or human rights tribunals such as the European Court of Human Rights (see Cullet, Chapter 22) or the Inter-American Commission on Human Rights (see Knox, Chapter 11) may be able to clarify the meaning of international obligations with respect to climate change. The UN Security Council has also discussed climate change, but so far no outcomes have emerged, nor have there been resolutions identifying climate change as an international security threat.

The continuing emphasis placed on adaptation has led to many specific adaptation programmes being funded and facilitated by International Governmental Organizations (IGOs). Among the most prominent IGOs engaged in adaptation is the United Nations Development Programme (UNDP). The UNDP, together with its partner agencies—the United Nations Environment Programme (UNEP), the Food and Agriculture Organization (FAO), the United Nations International Strategy for Disaster Reduction (UNISDR), the World Health Organization (WHO), and the World Bank, among others—facilitates ongoing adaptation efforts. These and other institutions play an increasingly important role in international efforts to respond to climate change and, thus, inform the practice of international climate change law.

Finally, as noted by Verheyen and Zengerling in Chapter 19, international courts and tribunals have already had an important influence on international climate change law and will likely become increasingly important.

3.6  Non-State Actors

Civil society has played a vital role in shaping climate change debates and strategies. The involvement of civil society groups in environmental policy dates back to the late 1960s, when the growing social movement around environmental protection helped mobilize support for the development of new environmental laws at the domestic and eventually the global level. Civil society continued to influence environmental decision-making, culminating in the outcomes at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro (Earth Summit). The Rio/Earth Summit brought together political and civic leaders from all over the world. As a result of the energy and initiative civil society brought to the Rio/Earth Summit, the States adopted two prominent multilateral environmental agreements (the UNFCCC and the Convention on Biological Diversity), as well as a number of soft law instruments.

Since the Rio Earth Summit, the climate change debate continues to be influenced by civil society. Civil society campaigns have helped to mobilize awareness (p. 22) of climate change and related issues through various initiatives, including massive climate change litigation campaigns in the United States and at international forums (Gerrard, Chapter 27, and Verheyen and Zengerling, Chapter 19), the global campaign (including litigation) to reinforce the linkages between climate change and human rights (see Knox, Chapter 11, and Cullet, Chapter 22), ongoing efforts to develop new frameworks for responding to displaced peoples (see McAdam, Chapter 23), compensating losses and damages caused by climate change (see Voigt, Chapter 21), and focused campaigns to stop new fossil fuel projects or divest financial resources away from fossil fuel development. These civil society initiatives have affected both public opinion and the concurrent development of national measures. Yet, in recent years, the influence of civil society on the outcomes of UNFCCC negotiations has been hard to discern, even though the UNFCCC is one of the most open and transparent international negotiating processes.

The private sector in particular has an indispensable role to play in addressing climate change. The IPCC notes in the AR5 that ‘[i]‌n many countries, the private sector plays central roles in the processes that lead to emissions as well as to mitigation. Within appropriate enabling environments, the private sector, along with the public sector, can play an important role in financing mitigation’.60 The private sector is both a primary contributor to climate change and also a possible source of hope for mitigating climate change through mobilizing changes in consumer behaviour, and, perhaps most critically, by investing in the development of clean and renewable energy. The IPCC AR5 emphasizes the importance of private sector investment, stating that there needs to be huge shifts in investment in order to avoid the worst impacts of climate change, noting in particular that ‘[s]ubstantial reductions in emissions would require large changes in investment patterns’.61 The pace of investment cannot be slow. According to the AR5, investment in renewables and other low carbon sources ‘needs to at least treble by the middle of the century, while money flowing into fossil fuels has to diminish’.62

The massive shift towards decarbonization and the investments needed to generate that shift will require extraordinary levels of private sector involvement. How that shift materializes will be influenced by governmental policy and the ability of governments to create the right incentives.

(p. 23) 4.  Conclusion: The Future of International Climate Change Law

International climate change law is a field that sits on the precipice of great advancement. The boundaries of international climate change law are being redrawn.

Global climate change is a problem defying traditional geographic and geopolitical divisions. How the international community divides, coordinates, and enforces its responsibilities to address climate change will determine success. Responses will need to be thoroughly assessed to face climate change scenarios that transcend such divisions, and will involve governing bodies from the local to the international. For instance, issues of water supply and flood control will often involve watersheds that span national and internal boundaries. Similarly, climate change may in the future lead some actors to attempt to limit the effects of climate change using new technologies designed to remove carbon dioxide from the atmosphere and manage solar radiation—often collectively referred to as geoengineering—that will raise profound questions around responsibility and liability (see Eagle and Sumaila, Chapter 24). In these and other ways, climate change poses complex governance challenges.

The urgency of climate change necessitates considering what types of governance options are available when the existing approaches are failing. It requires innovative responses to an environmental problem that is characterized by extreme heterogeneity, in terms of needs, capacities, and challenges across multiple levels of governance. The issues here are not ones where traditional modes of bargaining between States based on self-interest have, or will likely provide, sufficient answers. Arriving at effective legal solutions entails critical assessment of, and obvious self-reflection by, the UNFCCC process.

The 2014 meeting of the COP in Lima, Peru (COP-20), and the resulting Lima Call for Climate Action,63 reflect the challenges and the changing perceptions of the gap between what can be achieved through the sometimes-clumsy processes of the UNFCCC, and what needs to be achieved in order to address climate change.

The Lima Call for Climate Action challenges the rigidity of the dominant legal strategy that characterized the first two decades of negotiations in two important ways. First, the Lima Call for Climate Action abandons the premise that the Parties should agree to an overarching emission reduction objective that will be achieved through corresponding, emission reduction obligations for State Parties met within a specific timeframe. Instead, the Lima Call for Climate Action ‘invites (p. 24) each Party to communicate to the UNFCCC Secretariat’ an ‘intended nationally determined contribution’64—contributions formulated through domestic policy-making processes.

Second, the Lima Call for Climate Action erodes the long-standing divide between developed and developing country Parties with respect to their climate change mitigation obligations. That is, it calls on all States—not just developed countries—to communicate their ‘nationally determined contributions’.

Negotiations in Lima and the subsequent Lima Call for Climate Action were spurred, in part, by the announcement by the United States and China before the COP in which they committed to bilateral cooperation on climate change and announced respective emission reduction targets.65 This announcement was seen as a breakthrough; it demonstrated that the two largest polluters were open to negotiations and that the lines between developed and developing country States were beginning to blur.

This shift is critical, simultaneously reflecting the realities of what can and cannot be achieved through the channels of the UNFCCC. Reflecting these dual realities, at the end of COP-20, UNFCCC Executive Secretary, Christiana Figueres, noted: ‘The negotiations here reached a new level of realism and understanding about what needs to be done now, over the next 12 months and into the years and decades to come if climate change is to be truly and decisively addressed’.66

In the run-up to the next COP (COP-21) in Paris, there is widespread recognition of the challenges climate change poses to long-term physical, social, and economic stability. There is also widespread acceptance that our existing governance systems are inadequate for addressing these challenges. The results of the Lima COP begin to break down the walls between the developed and developing world that separate the approaches on mitigation efforts, although it does little to envision how the collective mitigation measures will be achieved. The Lima Call for Climate Action reiterates the seriousness of the issue and the need for enhanced action on mitigation, adaptation, financing, and more. It confirms the depth of the problem, embeds fairness concerns at the heart of global efforts and reminds us how much still needs to be achieved. In the end, however, the Lima Call for Climate Action creates only a skeletal road map for how to get where we need to go. Fundamentally, it reveals the extent to which climate change is an issue of such scale and complexity that it defies resolution through traditional governance approaches and, in particular, through the constraints of the UNFCCC process.

(p. 25) Behind these efforts are a series of questions that inform the future of the field of international climate change law. Key among these questions are: how to determine the relative roles and responsibilities of different groups of State actors in addressing climate change in a world characterized by rapid change; how to balance the parallel need to continue to search for effective and efficient mitigation strategies with the growing need to develop comprehensive adaptation strategies; how best to mobilize civil society and the private sector in efforts to address climate change; and, how to maximize the effectiveness of law at every level of governance in ongoing efforts to mitigate and adapt to climate change.

The aim of this handbook is to provide a comprehensive exposition of the field of international climate change law. The chapters in this book examine the unique nature of climate change, the complexities that complicate international efforts to address climate change, and the legal instruments, mechanisms, and processes that have resulted from those efforts.


*  The views expressed in the book are those of the authors and in no way do they represent the views of the Government of Canada, the Canadian Department of Justice or the Global Affairs Canada.

1  Protection of Global Climate for Present and Future Generations of Mankind, G.A. Res. 45/212, UN Doc. A/RES/45/212 (21 December 1990).

2  9 May 1992, 1771 UNTS 107, available at <http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf> (hereinafter ‘UNFCCC’).

3  Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its Eighth Session, held in Doha from 26 November to 8 December 2012, Doha Amendment to the Kyoto Protocol, Decision 1/CMP.8, UN Doc FCCC//KP/CMP/2012/13/Add.1 (28 February 2013).

4  Report of the Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Decision 1/CP.17, Preamble, UN Doc FCCC/CP/2011/9/Add.1, (15 March 2012).

5  IPCC, Fifth Assessment Report (AR5), <http://www.ipcc.ch/report/ar5/> (accessed 8 July 2015). More than 830 authors representing up to eighty-five countries contributed to this Report. IPCC, Activities, <https://www.ipcc.ch/activities/activities.shtml> (accessed 8 July 2015).

6  IPCC, (2014), Fifth Assessment Report (AR5): Climate Change 2014: Impacts, Adaptation and Vulnerability, Working Group I, Summary for Policy Makers 15, <http://ipcc-wg2.gov/AR5/images/uploads/IPCC_WG2AR5_SPM_Approved.pdf>.

7  Ibid, at 4.

8  Ibid, at 5.

9  Ibid, at 20 (According to the IPCC, ‘[g]‌lobal surface temperature change for the end of the twenty-first century is likely to exceed 1.5°C relative to 1850 to 1900 for all RCP scenarios except RCP2.6. It is likely to exceed 2°C for RCP6.0 and RCP8.5, and more likely than not to exceed 2°C for RCP4.5. Warming will continue beyond 2100 under all RCP scenarios except RCP2.6’).

10  UNFCCC, Status of Ratification of the Convention, <https://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php> (accessed 11 March 2014). There are now 195 State Parties that have ratified the UNFCCC, while there are 192 Parties that have ratified the Kyoto Protocol.

11  UNFCCC, supra note 2, Preamble.

12  UNFCCC, supra note 2, Article 2.

13  Trail Smelter Arbitral Tribunal Decision (United States v Canada), 11 March 1941, Ad Hoc International Arbitral Tribunal, 3 UN Rep. Intl. Arb. Awards 1911, 1938 (1941).

14  E.g. Convention on Long Term Transboundary Air Pollution (Geneva, 13 November 1979), UKTS 57 (1983), Cmd. 9034, TIAS No. 10521, 18 ILM 1442 (1979).

15  All of these principles are reflected, either explicitly or by implication, in the UNFCCC and the Kyoto Protocol.

16  UNFCCC, supra note 2, Article 2.

17  UNFCCC, supra note 2, Articles 3(1), 4(1).

18  UNFCCC, supra note 2, Article 3(3).

19  Rio Declaration on Environment and Development, (1992) 31 ILM 876. See UNFCCC, Preamble.

20  UNFCCC, supra note 2. Opened for signature 9 May 1992, and entered into force 21 March 1994.

21  Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 16 March 1998, 37 ILM 22 (entered into force 16 February 2005) (hereinafter ‘Kyoto Protocol’).

22  Ibid.

23  In 2007, the US Energy Information Administration (EIA) projected that ‘by 2030, carbon dioxide emissions from China and India combined are projected to account for 31 percent of total world emissions’. Energy Info. Admin., US Dept of Energy doe/eia-0484(2007), International Energy Outlook 74–86, <http://tonto.eia.doe.gov/ftproot/forecasting/0484(2007).pdf>.

24  UN Framework Convention on Climate Change Conference of the Parties, Copenhagen, Denmark, 7–19 December 2009, Report of the Conference of the Parties on its Fifteenth Session, Decision 2/CP.15, UN Doc FCCC/CP/2009/11/Add.1 4 (30 March 2010), available at <http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf> (hereinafter ‘Copenhagen Accord’).

25  Ibid, at 4.

26  Ibid, para 10. See also Rob Fowler, Analysis of the Copenhagen Accord: An Initial Assessment of the Copenhagen Outcomes, Teaching Climate/Energy Law & Policy, available at <http://www.teachingclimatelaw.org/analysis-of-the-copenhagen-accord/> (accessed 8 July 2015).

27  Copenhagen Accord, supra note 24, at 5, para 2.

28  Copenhagen Accord, supra note 24, para 3.

29  Copenhagen Accord, supra note 24, para 10.

30  See generally, Report of the Conference of the Parties on its Sixteenth Session, held in Cancún from 29 November to 10 December 2010, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Decision 1/CP.16, UN Doc FCCC/CP/2010/7/Add.1 (15 March 2011), available at <http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf>.

31  Ibid, at para. 4.

32  See e.g. Press Release, Council of the European Union, Environment (10 October 2011), available at <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/125030.pdf> declaring that [t]‌he E.U. remains of the view that a single legally binding instrument would be the best framework for the period after 2012, but the Council agreed in confirming the EU’s openness to a second commitment period [to the Kyoto Protocol], on the condition that it should be the last one before convergence between the Kyoto Protocol and Convention outcomes, and that in any case it should last no longer than 2020.

33  Framework Convention on Climate Change, Report of the Conference of the Parties on its Seventeenth Session, 28 November–11 December 2011, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Decision 1/CP.17, Preamble, UN Doc FCCC/CP/2011/9/Add.1 (15 March 2012).

34  Report of the Conference of the Parties on its Seventeenth Session, 28 November–11 December 2011, Addendum, Launching the Green Climate Fund, Decision 3/CP.17, UN Doc FCCC/CP/2011/9/Add.1 (15March 2012).

35  See Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its Seventh Session, held in Durban from 28 November to 11 December 2011, Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its Sixteenth Session, Decision1/CMP.7, FCCC/KP/CMP/2011/10/Add.1 (15 March 2012), available at <http://unfccc.int/resource/docs/2011/cmp7/eng/10a01.pdf#page=22>.

36  Ibid.

37  Ibid. Decision 2/CMP.7. See also UNFCCC, REDD Web Platform, <http://unfccc.int/methods_science/redd/items/4531.php>; Carbon Planet White Policy, The History of REDD Policy (2009), available at <http://unfccc.int/files/land_use_and_climate_change/redd/submissions/application/pdf/redd_20091216_carbon_planet_the_history_of_redd_carbon_planet.pdf> (accessed 28 September 2015).

38  Report of the Conference of the Parties on its Sixteenth Session, held in Cancún from 29 November to 10 December 2010, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Decision 1/CP.16, UN Doc FCCC/CP/2010/7/Add.1 (15 March 2011), available at <http://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf> (accessed 25 September 2015).

39  Report of the Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011, Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention, Decision 2/CP.17, UN Doc FCCC/CP/2011/9/Add.1 (15 March 2012).

40  Report of the Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011, National Adaptation Plans, Decision 5/CP.17, UN Doc FCCC/CP/2011/9/Add.1 (10 December 2011; 15 March 2012).

41  Report of the Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011, Revision of the UNFCCC reporting guidelines on annual inventories for Parties included in Annex I to the Convention, Decision 15/CP.17, UN Doc FCCC/CP/2011/9/Add.2 (15 March 2012), available at <http://unfccc.int/resource/docs/2011/cop17/eng/09a02.pdf>.

42  Ibid.

43  See UNFCCC, Warsaw Mechanism for International Loss and Damage Associated with the Climate Change Impacts, <http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php> (accessed 25 September 2015).

44  Report of the Conference of the Parties on its Twentieth Session, held in Lima from 1 to 14 December 2014, Lima Call for Climate Action, Draft Decision 1CP/.20, UN Doc FCCC/CP/2014/10/Add.1 (1 February 2015).

45  UNFCCC, supra note 2, Article 3(1).

46  See Christopher Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 AJIL 276, 278. The 1972 Stockholm Declaration laid the foundations for CBDR in environmental law:

Without prejudice to such criteria as may be agreed upon by the international community, or to standards which will have to be determined nationally, it will be essential in all cases to consider the systems of values prevailing in each country and the extent of the applicability of standards which are valid for the most advanced countries but which may be inappropriate and of unwarranted social cost for the developing countries.

‘Report of the United Nations Conference on the Human Environment’ (Stockholm, Sweden, 5–16 June 1972) (16 June 1972) UN Doc A/CONF.48/14.

47  Rio Declaration, supra note 19, principle 7; UNFCCC, supra note 2, Article 3.

48  UNFCCC, supra note 2, Article 3.

49  Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime’ (2000) 9 Rev Eur Community & Intl Envtl L 120, 121.

50  Ibid, at 124.

51  See Proposal from the Russian Federation to amend Article 4, paragraph 2(f), of the Convention, UN Doc FCCC/CP/2011/5 (26 July 2011), <http://unfccc.int/resource/docs/2011/cop17/eng/05.pdf> (accessed 25 September 2015).

52  UNFCCC, supra note 2, Article 2.

53  These mechanisms are known as (a) ‘Joint Implementation’, which is a project-based mechanism allowing developed country Parties to earn credits towards meeting their targets by investing in emission reduction projects in other developed countries, (b) ‘Clean Development Mechanism’, which is a project-based mechanism allowing developed country Parties to earn credits towards meeting their targets by investing in emission reduction projects in developing country Parties, and (c) ‘emissions trading’, which allows developed countries Parties to purchase emission reduction credits from other developed country Parties.

54  ‘Summary for Policymakers’, in Martin L. Parry et al. (eds), Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, 9 (Cambridge: Cambridge University Press, 2007).

55  See UNFCCC, Climate Change: Impacts, Vulnerabilities and Adaptation in Developing Countries (2007), available at <http://unfccc.int/resource/docs/publications/impacts.pdf> (noting the particular vulnerabilities of developing countries to climate change).

56  W. Neil Adger et. al., ‘Successful Adaptation to Climate Change Across Scales’, 15 Global Envtl. Change 77, 79 (2005).

57  As it exists, the UNFCCC adaptation framework focuses on the least-developed country Parties. UNFCCC adaptation efforts focus on facilitating country-driven approaches, complementing other ongoing adaptation planning efforts and avoiding being prescriptive or duplicative.

58  Report of the Conference of the Parties on its Seventeenth Session, 28 November–11 December 2011, Addendum, UNFCCC, Launching the Green Climate Fund, Decision 3/CP.17, UN Doc FCCC/CP/2011/9/Add.1 (15 March 2012; 10 December 2011).

59  (1987) 1513 UNTS 323; 26 ILM 1529.

60  IPCC, (2014), Fifth Assessment Report (AR5): Climate Change 2014: Mitigation of Climate Change, Working Group III, Summary for Policy Makers 15, at 5.1 p. 32, <http://mitigation2014.org/report/summary-for-policy-makers>.

61  Ibid, at 5.1, p. 29.

62  The Report notes, in key part, that ‘[t]‌he reduction of subsidies for GHG [greenhouse gas]-related activities in various sectors can achieve emission reductions, depending on the social and economic context (high confidence)’. Ibid, at 31.

63  Report of the Conference of the Parties on its Twentieth Session, held in Lima from 1 to 14 December 2014, Lima Call for Climate Action, Draft Decision–1CP/.20, UN Doc CCC/CP/2014/10/Add.1 (14 December 2014; 2 February 2015).

64  Ibid, para. 9.

65  US–China Joint Announcement on Climate Change (11 November 2014), <http://www. whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change> (accessed 8 July 2015).

66  ‘Lima Call for Climate Action Puts World on Track to Paris 2015’, UNFCCC Press Release (14 December 2014), <http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/> (accessed 8 July 2015).