International Climate Change Regime Research Articles

Common Concern of Humankind and Its Legal Consequences for Climate Stability

Abstract One of the main challenges for modern international law is its capacity to deal with global public interests. In a world characterized by growing interdependence, the international community requires instruments to regulate the global commons, provide global public goods, and enforce its fundamental values. In this context, this article contributes to the debate on the legal consequences of recognizing climate stability as a global public good. While these goods are regulated on a case-by-case basis, some of them have the status of being common concerns of humankind. Since the icj and the ilc have not clarified the content of this legal status, I discuss the main academic perspectives and propose a new standpoint. Considering the current stage of public international law, I argue that the common concern status does not generate new state obligations but impacts the content of those commitments already included in the international climate change regime.

From Fact to Applicable Law: What Role for the International Climate Change Regime in Investor-State Arbitration?

Abstract While many investor-state dispute settlement (ISDS) proceedings based on international investment agreements have dealt, directly or incidentally, with environmental issues, state measures relating to the mitigation and adaptation to climate change have been subject to a small number of reported cases. This article demonstrates that there is a significant gap between the number of investor-state disputes having a direct relevance with climate change, on the one hand, and the number of such cases that have actually raised climate change as a material legal or factual issue. In addition, arbitral tribunals faced with disputes related to measures or sectors that are of direct relevance to climate action have, to date, virtually never engaged in any sort of substantial analysis of international climate change treaties and related instruments, rules, or practices. Against this backdrop, this article will explore ways for arbitrators and parties to ISDS proceedings to better consider the climate regime — in particular, the Paris Agreement and instruments arising therefrom — in ISDS proceedings beyond its current limited role as an element of context. While the literature has mostly focused on integrating climate change concerns in ISDS, this article goes further by exploring how states’ international climate obligations could play a greater role in the adjudication of investor-state disputes, including by providing states with a justification for implementing more ambitious regulations as well as tribunals with guidance for interpreting substantive obligations in investment treaties.

Carbon Leakage and International Climate Change Law

AbstractCarbon leakage – the increase of greenhouse gas emissions in foreign jurisdictions following the introduction of domestic or regional climate mitigation measures – raises key questions in the climate change debate. This includes whether carbon leakage constitutes a threat to the environmental integrity of climate policies and, if so, how this could be mitigated. Through the use of four hypothetical models of international climate change regime, this article argues that international climate change law is a key factor in answering this two-part question. Firstly, the article demonstrates that the architecture of international climate change law affects whether carbon leakage can be considered as undermining the mitigation objective of climate policies. Secondly, it draws attention to the interaction – and potential tension – between carbon leakage prevention measures and international climate change law.

Bridging the Gaps Between Human Rights and Climate Governance at the International and Regional Judicial Spheres

Climate litigation underscores the critical role of judicial systems in addressing the legal complexities that emanate from global climate governance. The lead-up to and the aftermath of the Paris Agreement saw the emergence of climate litigation with claims encompassing a human rights dominance. Climate litigation serves as a critical tool that not only exposes the deficiencies within the existing international climate change regime, but also sheds light on the pressing human rights issues arising from the widespread effects of climate change. This article examines the value and effectiveness of climate litigation in enhancing the connection between climate change impacts and the protection of human rights. This article emphasises the role of the international and regional judicial bodies in orchestrating the gaps and overlaps in the human rights and climate change regimes.

Ocean-based Climate Action and Human Rights Implications under the International Climate Change Regime

Abstract After drawing attention to the crucial role of marine biodiversity, including that of deep-sea ecosystems, in current scientific understanding of the ocean-climate nexus, this article highlights the limited extent to which the international climate change regime has so far addressed the ocean. The focus then shifts to how the international climate change regime could contribute to the protection of marine biodiversity as part of mitigation, adaptation and finance, taking into account human rights impacts and standards, drawing a comparison with REDD+. The article concludes with an original proposal, inspired by the Climate and Clean Air Coalition, to develop urgent, synergistic approaches to ocean- and human rights-based climate action through a multi-actor coalition, including different international treaties and United Nations bodies, to ‘protect and restore the ocean’s contributions to climate regulation, human well-being and planetary health’.

European Leadership and European Youth in the Climate Change Regime Complex

Environmental degradation is one of the most significant challenges faced by humanity, yet current global politics struggle to implement collective solutions. Previous research has suggested that the EU has a leadership role in the international climate change regime complex, which refer to a set of overlapping institutions that address different aspects of climate governance. Moreover, within these regime complexes, non-state actors have been found to have an active role. Building on the literature on regime complexes and non-state actors, we study the specific role of European non-state actors in furthering the EU’s agenda in the climate change regime complex. More precisely, we focus on European youth organizations. Indeed, youth have recently embraced the global climate agenda very actively while receiving limited attention from scholars. This article is based on the analysis of a database of youth organizations active in several institutions of the climate change regime complex, interviews with European officials and European youth actors, and documentary analysis. The analysis shows that EU interactions with European youth have been slow, while the need for coordination between the two is clear. On an analytical level, we contribute to the academic debate on how governmental entities such as the EU could shape international regime complexes with the support of non-state actors.

The International Investment Regime and Climate Change Goals: Clash of the Existing Systems and Available Balancing Tools

International commitments of states require them to adopt regulatory measures aimed at reducing CO2 emissions to combat climate change. This is likely to trigger a wave of investor-state claims by affected foreign investors, mostly from the fossil fuel industry. As no precedent currently exists, this article seeks to analyse how investment tribunals might approach such claims and balance substantive protections under international investment agreements with host states’ obligations under the international climate change regime. After a brief overview of international climate change law, the article considers whether investor-state dispute settlement may serve as an enforcement mechanism for states’ international climate change commitments, or rather investors’ claims cause a regulatory chill. The article further analyses how international climate change law might be applied in investment treaty disputes and concludes that it is likely to be invoked to interpret standards of investment protection. Finally, the view is adopted that the police powers doctrine defence and invocation of general public policy exceptions, contained in new generation investment treaties, might excuse host states from compensation for regulatory measures adopted in furtherance of climate goals.

Due Diligence – The Lay of the Land From an Ocean-Climate Perspective

Within the universe of what is commonly referred to as systemic climate change litigation,1 national courts are typically asked to determine whether the State has met its duty of care toward its citizens as it pertains to the negative impacts of climate change. Significant negative impacts from climate change are frequently driven by ocean-related changes such as sea level rise, ocean warming and the ocean’s role as an integral part of the climate system. Even so, the focus in systemic climate litigation is on climate law rather than ocean-related legal arguments. National courts, when faced with systemic climate litigation, tend to make duty of care determinations based on the State’s conduct through the lens of due diligence. Due diligence is also the lens through which States’ obligations within both the international climate change regime and the law of the sea regime, which governs the ocean, are interpreted. The objective of this paper is therefore to explore how due diligence is articulated within each of these two international legal regimes. Section I provides a contextual overview of the importance of due diligence within national systemic climate change litigation. In Section II, the strengths and weaknesses of both legal regimes are compared through the lens of due diligence in order establish the potential applicability of inclusion of law of the sea regime in national climate litigation to drive increased climate ambition. Section III concludes with a brief look towards the future.

Protecting the marine environment from the impacts of climate change: A regime interaction study

AbstractAs the oceans are heavily impacted by climate change, effective regulatory responses are needed to mitigate, as well as to adapt to, these adverse effects. Problematically, however, neither the international climate change regime nor the international law of the sea specifically addresses the adverse effects of climate change on the oceans. This article analyses the interactions between these regimes, seeking to illuminate how Part XII of the United Nations Convention on the Law of the Sea (UNCLOS) on the protection and preservation of the marine environment ought to be interpreted in light of the Paris Agreement. As such, the limits of UNCLOS' capacity to grow and evolve as a ‘living instrument’ are explored. The article finds that the standard of conduct set by Part XII is informed by the Paris Agreement and the due diligence obligation that flows from it, which functions as a minimum threshold. States are, additionally, required to take measures that are specifically designed to protect the marine environment from the adverse effects of climate change and pollution from carbon dioxide.

The International Dimension of the EU Emissions Trading System: Bringing the Pieces Together

Abstract We analyse the international dimension of the EU Emissions Trading System (EU ETS) over the past two decades and in the foreseeable future by reviewing facts and economic theory. The facts mainly concern the international climate change regime and the EU’s relevant experience in international cooperation. Club theory shows how incentives can be created for cooperation on climate mitigation. The linkage of the EU ETS to the Kyoto flexible mechanisms had mixed results: it promoted emissions trading abroad, but the inflow of credits into the EU ETS added to a large market surplus and the environmental integrity of certain credits was problematic. Looking ahead, the ability of the EU ETS to reduce foreign emissions may grow. Key will be whether competitiveness and distributional effects are successfully addressed. The Carbon Border Adjustment Mechanism might help the EU reduce the risk of carbon leakage while incentivising emission reductions in countries exporting to the EU. The EU’s focus on reducing domestic emissions only, suggests we will probably not see new international linkages this decade. However, it cannot be excluded that the EU will revisit its decision and relax the domestic constraint.

Analysis of the Short-Term and Long-Term Impacts of the Coronavirus Crisis on International Climate Policy

The coronavirus pandemic has caused far-reaching precautionary measures around the world. Governments’ attempts to get the coronavirus under control have led to the negligence of other important policy areas. Climate policy in particular has been significantly influenced and lost importance on the political agendas of states after the outbreak. Over time, the coronavirus will either disappear or lose its initial impact due to medical measures. Two years after the outbreak of the coronavirus, this paper aims to analyse and evaluate the short-term and long-term impacts of the coronavirus crisis on international climate policy. It is important to analyse how it has shaped international climate policy and what lessons can be learned for dealing with climate change. The analysis is based on the principles and regular functioning of the International Climate Change Regime.

Capacity building as the cornerstone of the climate change regime: evolution of the agenda through a policy-practitioner view from Brazil

ABSTRACT As developing economies walk a tightrope balancing economic development with environmental protection, capacity building becomes the most prominent instrument to ensure that the development needs of citizens are met within the realities of the climate change regime. Capacity building sits at the very foundation of the climate change regime, together with ‘finance’ and ‘technology development and transfer’ mechanisms. Recognizing that developing countries are on the receiving end of implementation projects, this review highlights historical understanding of the constituents of capacity building initiatives and how these can advance humanity towards the global good of decelerating, and even reversing, the adverse impacts of climate change. In particular, the article describes the institutionalization of capacity building since the establishment of the international climate change regime and highlights some of the stances of the Brazilian environmental diplomacy in this process. Furthermore, it emphasizes initiatives taken by developing countries to empower their citizens and to serve as a mainstay for enhancing South–South cooperation by sharing climate-friendly practices and capabilities. With the establishment of the Paris Committee on Capacity Building and Capacity Building Initiative for Transparency at COP21, it is clear that ‘clarity’ and ‘tracking of progress’ are the new objective tools needed to build on and supplement NDCs and related national efforts for tackling climate change. Key policy insights Capacity development projects should be tailored to the characteristics and needs of each recipient Non-Annex I country. Effective and lasting development of capabilities requires going beyond imparting technical know-how of environmentally-beneficial technologies and must include adopting a ‘learning by doing’ approach. National institutions of the recipient countries should be at the helm of capacity building projects to bring in necessary knowledge on national regulations, traditional skills, and resources that are vital to the success of these initiatives. Transparency in information flow and timely multistakeholder assessment of capacity building efforts are the lynchpin for enduring capacity development efforts.

‘Innovation and Experimentation in the International Climate Change Regime’, written by Lavanya Rajamani

‘Innovation and Experimentation in the International Climate Change Regime’, written by Lavanya Rajamani

Non-state Actors in the International Climate Change Regulatory Framework

Global climate governance is multilateral and involves both state and non-state actors. This study sets to identify the ways in which non-state actors can access and participate in the international climate change regime under the UNFCCC and the 2015 Paris Agreement and to evaluate how they can influence law-making processes and outcomes under the agreements. The study further provides recommendations on how the involvement of non-state actors can be improved under the agreements. The study emphasizes that under the UNFCCC, non-state actors have an important role in acting as intermediaries under the orchestration governance model and in participating to the Conference of Parties and under the Paris Agreement, by exerting influence on state’s nationally determined contributions. The study suggests that the role of non-state actors in formulating nationally determined contributions and in participating to the Conference of Parties should be further formalised and that the NAZCA portal should be improved.

India’s diplomatic discourse and development dilemma in the international climate change regime

ABSTRACT At the United Nations Framework Convention on Climate Change negoti- ations, India has repeatedly pushed for urgent international action on climate change, while simultaneously refusing to limit its own emissions, frustrating other participating countries. The extant economic and strategic interest-based expla- nations do not sufficiently explain some key anomalies in India’s international climate policy and have justified such contradictions in India’s diplomatic dis- course as realpolitik or pragmatic diplomacy. We argue that in order to facilitate India’s meaningful participation in the international climate change regime, we need to engage with these contradictions and understand India’s aspirations for moral and material leadership that stem from the complex interaction between economic and strategic interests and ideational factors. We posit that India’s anti-colonial discourse that repudiated Western materialism, along with its de- sire to be a moral power in global politics coupled with its desire to mimic the western standard of living, creates a development dilemma for India’s postcolo- nial identity in the global climate change regime. India’s continuous attempt to resolve this dilemma has produced specific frames–projecting itself as a victim, mistrust of the West, framing the Earth’s CO2 carrying capacity as extended sovereign territory, and national exceptionalism–in the climate change discourse. These frames are consistent with India’s broader foreign policy discourse as a postcolonial nation and have coalesced India’s claim to moral leadership, seek commitments from developed countries to do their part, and simultaneously play- ing a limited role in the international climate regime.

국제기후변화법제와 국제통상법체제의 조화적 공존을 위한 법적고찰 : 탄소배출권 무상할당조치와 WTO 보조금협정을 중심으로

2015년 12월 파리협정이 채택됨에 따라 교토의정서 체제를 대체하는 신기후체제가 도입되었다. 이에 따라 탄소배출에 가격을 부여하여 온실가스 배출비용을 부담하도록 하는 소위 탄소가격제(carbon pricing)의 시행이 점차 확대되어 가고 있으며, 여러 국가들은 온실가스 감축을 위한 주요 수단으로서 배출권 거래제의 시행을 확대해가고 있다. 최근 미국의 철강업체들은 유럽 및 한국의 탄소배출권 거래제를 보조금의 측면에서 문제 삼고 있으며, 특히 탄소배출권 무상할당이 상계관세 부과의 대상이 되는 보조금이라고 주장하고 있다. 보조금은 무역 및 경쟁에 왜곡을 초래할 수도 있으나 시장실패 방지 또는 다른 합법적 정책목표를 추구하는데 이용된다는 측면에서 양면적 속성을 지닌다. 그런데 ASCM은 환경정책 측면에 입각한 정당화 가능성을 인정하지 아니하고 협정의 기계적 적용결과에 따라 보조금 여하를 판단하도록 하는 내재적 한계가 있다.BR 탄소배출권 무상할당조치는 각국의 불균형적인 환경규제정책에 따라 발생하는 탄소누출의 문제를 방지하기 위한 주요 수단이다. 보조금 논리에 의해 탄소배출권 무상할당이 불가능하게 된다면 기후변화법제상 의무 준수가 어려워 질 수도 있다. 탄소배출권 무상할당조치를 보조금 협정 규율에 비추어 검토하고, 국제기후변화법제와 국제통상법체제가 조화적으로 공존할 수 있는 방안을 모색하여야 한다.

La esencialidad del principio de responsabilidades comunes pero diferenciadas en el régimen internacional del cambio climático

Este artículo revisa la esencialidad del principio de responsabilidades comunes pero diferenciadas en el desarrollo del régimen internacional del cambio climático. El análisis repasa la evolución que el principio ha tenido desde su incorporación en la Convención Marco de las Naciones Unidas para el Cambio Climático y la relevancia de su rol en el progreso actual del régimen climático. Primero, se desarrolla un análisis general del principio, con foco en su origen. Segundo, se revisa la legitimidad del principio de responsabilidades comunes pero diferenciadas dentro del régimen climático. A continuación, el análisis brinda ciertas respuestas a las críticas que ha recibido este principio. Finalmente, se elaboran comentarios y proyecciones sobre el estado actual y futura relevancia del principio de responsabilidades comunes pero diferenciadas en el progreso del régimen climático.

Empresas, derechos humanos y el régimen internacional del cambio climático: la configuración de las obligaciones climáticas para las empresas

La presente investigación analiza la interrelación entre el cambio climático, las empresas y los derechos humanos. Esto con el objetivo de discernir las obligaciones climáticas de las empresas, que consideramos deberían estar incluidas en el régimen internacional del cambio climático con el fin de que, junto con los Estados, compartan los compromisos vinculantes de reducción de emisiones de gases de efecto invernadero y aseguren las condiciones necesarias para el disfrute de los derechos humanos a través de la implementación de procesos efectivos e integrales de diligencia debida. Para ello, se analizan algunos instrumentos internacionales de softlaw que contienen o clarifican estándares climáticos aplicables a las operaciones de las empresas o reconocen el papel de las empresas en la lucha contra el cambio climático.

The divergent climate change approaches of the EU and the US: an analysis of contributing factors

The European Union and the United States have significantly different approaches when addressing climate change. It is reasonable to think that the actions of the EU and the US, as powerful entities in global politics, influence the contours and effectiveness of the international climate change regime. The EU has for a long time strived to play the strongest role possible in international climate negotiations and to maximise its climate change targets, which is reflected through its climate policies and legal implementation of the international climate change regime. The situation in the US is more polarised, with the Republican Party almost uniformly denying the existence of climate change and any human impact on rising global temperatures. Instead of taking scientific reports on impacts, risks and adaptation to climate change seriously, the Trump administration is focused on increasing US production of oil, natural gas and coal. Meanwhile, Democrats are pushing to combat climate change, build a clean energy economy and secure environmental justice. This article explores and explains the legal differences in the EU and the US responses to climate change and climate change targets, and considers the possible contributing factors. The assessment takes account of policies at the highest governing level, thus not taking account of what is happening among some US states.

International Law as an Adaptation Measure to Sea-level Rise and Its Impacts on Islands and Offshore Features

Abstract Climate change-induced sea-level rise will result in the partial or complete inundation of low-lying coastal areas and insular features. The consequences of this include the loss of baselines from which maritime zones are established. The loss of baselines raises a number of legal questions, in particular concerning the legal status of maritime entitlements and in some cases the potential loss of statehood. Solutions proposed include maintaining existing baselines or outer limits of maritime zones, or the construction de novo of artificial islands. This article examines the current state of international law under the international climate-change regime and the law of the sea in relation to adaptation and adaptive measures, such as maintaining of baselines, island fortification and the construction of artificial islands. In addition, the article explores the question as to whether measures such as maintaining baselines would constitute adaptive measures under the existing climate-change regime.