UNFCCC Regime Research Articles

Dealing with the Challenge of Climate Change within the Legal Framework of the WTO

Although international trade and climate change regimes are two different fields of international law, they are closely interrelated. In particular, certain domestic environmental policies adopted by States may run afoul of WTO law, thereby having adverse effects on free trade. It has been claimed by critics that non-discrimination principles and subsidies regulations of WTO law constrain its Members’ ability to take certain unilateral actions aimed at climate change mitigation. According to other commentators, despite the existence of potential conflicts between UNFCCC and WTO regime, there are still synergies which can be developed to bring a greater coherence, and WTO’s multilateral framework can serve as a vehicle to facilitate targets of the Paris Agreement. This paper argues that although sustainable development is recognized by WTO regime and it leaves some scope for climate change actions, its current legal framework does not provide sufficient space for member’s regulatory autonomy in order to take national regulatory policiesAlthough international trade and climate change regimes are two different fields of international law, they are closely interrelated. In particular, certain domestic environmental policies adopted by States may run afoul of WTO law, thereby having adverse effects on free trade. It has been claimed by critics that non-discrimination principles and subsidies regulations of WTO law constrain its Members’ ability to take certain unilateral actions aimed at climate change mitigation. According to other commentators, despite the existence of potential conflicts between UNFCCC and WTO regime, there are still synergies which can be developed to bring a greater coherence, and WTO’s multilateral framework can serve as a vehicle to facilitate targets of the Paris Agreement. This paper argues that although sustainable development is recognized by WTO regime and it leaves some scope for climate change actions, its current legal framework does not provide sufficient space for member’s regulatory autonomy in order to take national regulatory policies

Explaining transformative change in EU climate policy: multilevel problems, policies, and politics

ABSTRACT The EU's ambition to lead in global climate governance has shaped its engagement with the UNFCCC regime and informed a vast body of regulatory instruments. However, EU climate policy outcomes have not always matched aspirations. We explore how UNFCCC-EU institutional interactions have shaped EU climate policy outcomes by combining a multilevel governance perspective with scholarship on policy entrepreneurship to explain when, why, and how motivated policy entrepreneurs are most likely to secure transformative policy change. We contrast the successful policy transformation of the European Green Deal with the experience of policy stagnation in the aftermath of the economic crisis, shedding light on the interaction between problems, policies, and politics across levels. We find that while the international level is significant in opening up windows of opportunity from above, the presence below of an authoritative and motivated policy entrepreneur within the political stream is a crucial additive to securing transformative policy change.

The knowledge politics of capacity building for climate change at the UNFCCC

ABSTRACT Capacity building for climate change is widely acknowledged to be a central means of implementation, and yet within the UNFCCC regime it is a messy and ambiguous concept which eludes attempts to clearly define its underlying goals, processes, actors and outcomes. In this paper, we use documents from the UNFCCC to examine the implicit logic(s) underlying the ambiguity of capacity building in the regime through a knowledge politics lens. Our study finds that there are two distinct narratives guiding capacity building in the regime: The first narrative focuses on building techno-managerial capacities utilizing standardized data to address climate change through short-term and project-based processes. The second narrative attempts to open up capacity building to plural forms of knowledge, meaningfully engaging a diverse range of actors including Indigenous Peoples, gender-specific constituencies and communities, and using transdisciplinary and holistic approaches. Our research suggests that while the former narrative is largely centralized, institutionalized and well-supported by the UNFCCC, the latter is disparate and frequently lacks necessary financial, technical, and institutional resources. Despite this, some recent developments point toward the possibilities of widening the scope of capacity building. We argue that to realize the potential of capacity building as a concept that can enable transformative and emancipatory action in the era of climate change, we must look for pathways to promote the second narrative that gives meaningful space for marginalized actors to participate in, direct, and benefit from the capacity building agenda. Key policy insights Capacity building, a widely acknowledged core means of implementation within the UNFCCC, remains ambiguous and messy on the surface but is underlined by two distinct narratives The first narrative is guided by techno-managerial and standardized data-driven goals and is well-supported and systematized within the UNFCCC The second narrative focuses on inclusive and diverse capacity building supported by transdisciplinary and holistic approaches, but remains disparate and under-funded in the UNFCCC More support and access to resources for the second narrative are required if we are to widen and deepen capacity building for climate action

Legal Aspects of Adaptation Finance under the UNFCCC Regime with Special Reference to the Adaptation Fund

Abstract This article addresses the legal aspects of the financing of adaptation to climate change, with special consideration given to one of the climate funds – the Adaptation Fund (AF). In the complex structure of climate finance, the AF attracts attention as it differs from other funds in several aspects. As an exception from other United Nations (UNs) climate funds, AF has not been recognised as an operating entity of the Financial Mechanism of the Convention. AF is also an unprecedented example under the Convention of a fund serving in parallel two decision-making bodies (CMP and CMA) under two agreements (Kyoto Protocol and Paris Agreement) ratified by non-overlapping sets of parties; with a Fund Board elected by both bodies collectively. AFs funding source is specific, it was designed to be financed from shares of the proceeds of sales of certified emission reduction units (CERs) generated by Clean Development Mechanism (CDM) projects but since 2012 there is a limited possibility of offsetting the emissions with CERs under the EU emissions trading system (ETS). For several years Parties were unable to agree the operating principles and procedures of a new mechanism established in article 6(4) of the Paris Agreement, which will resemble CDM, and would constitute a source of funding for the AF. Once this source of funding is available, the AF would cease to serve the Kyoto Protocol. Despite the above problems, AF was seen as a good example of how future climate funding can be designed. We examine the evolution of the above legal problems, including the most recent decisions and conclusions adopted during Conference of Parties (COP)25 in Madrid.

Tackling climate change and gender justice – integral; not optional

This paper examines the relationship between gender justice and climate change, arguing that, to meaningfully address the issues that arise in this context, it is imperative to engage not only with matters of principle, but also with the practicalities of gender exclusion in respect of climate change itself and the praxis of global climate governance. The discussion briefly considers key gendered societal and scientific contexts that form part of the complex substrate that situates climate change in reality, academic and political debate, and which ground and shape the global climate change regime. These considerations explain why, while there is now a systemic acknowledgment of the need to act on gender issues in principle in the UNFCCC regime, the effectiveness of recently adopted strategies is not a given, and more profoundly, it behoves us to consider how their efficacy might be improved as we seek to mature global climate governance.

Transparency Under the Paris Rulebook: Is the Transparency Framework Truly Enhanced?

In December 2018, cop 24/cma 1.3 adopted the Modalities, Procedures and Guidelines for the Transparency Framework under Article 13 of the Paris Agreement. Commenting on this decision, this article reviews and assesses the rules on transparency in the unfccc regime as they will apply during the coming years. Two main themes are identified: differentiation and progression. With regard to differentiation, while the Transparency Framework seeks to apply the same rules to all countries, bifurcation remains in place in some important respects. With regard to progression, the article identifies four aspects in which the adoption of a uniform set of rules has come at the expense of the stringency of the rules applicable to Annex i parties.

Comparing the robustness and effectiveness of the Antarctic treaty system and the UNFCCC regime

ABSTRACTBoth the UNFCCC governing climate change and the Antarctic Treaty System that governs Antarctica can now be understood as multi-treaty regimes situated within an Antarctic and Southern Ocean regime complex. The theory of Cognitive Structures of Cooperation (CSC Theory) provides a framework within which to analyse normative developments within a regime complex. Using CSC Theory this paper compares the two regimes in terms of robustness and effectiveness, before considering their interaction within the Antarctic and Southern Ocean regime complex. It finds that both have prioritised regime robustness over effectiveness. This is contrary to an assumption implicit in the Paris Agreement – that as the climate change challenge becomes worse, ambition (to increase effectiveness) will increase. For the ATS, the risk of prioritising institutional robustness over effectiveness is ultimately a loss of relevance.

Making EU FTAs ‘Paris Safe’ Three Studies with Concrete Proposals

Ensuring that future EU trade and investment agreements do not undercut the successful implementation of the Paris Agreement and the UNFCCC regime will require three changes to the structure of current EU trade and investment agreements. First, these agreements must ensure that the Paris Agreement takes unambiguous precedence when it comes into conflict with future FTAs. Second, the agreements must clarify the rules with respect to carbon footprint measures. And third, the Parties must insert ‘climate vetoes’ into various chapters of future agreements to ensure that trade and investment protections do not impede the EU’s ability to meet its commitments under the UN Framework Convention on Climate Change. The three studies contained in this report address these topics, explaining potential areas of conflict between EU trade policy and its climate goals, and providing concrete examples and textual proposals for how the EU might design future FTAs that will be ‘Paris Safe’.

Can intellectual property rights within climate technology transfer work for the UNFCCC and the Paris Agreement?

Since the UNFCCC 1992 mandated technology transfer commitments, how to fulfil the commitments and effectively facilitate the international transfer of climate-friendly technology in reality has been the subject of debate. In theory, climate change policymakers provide a broad framework for technology transfer through the UNFCCC regime. The 2015 Paris Agreement commits the Parties to strengthening cooperation on climate technology. In practice, however, the dynamic transfer of these technologies on an international scale does not take place fast enough to reach the full potential required by the UNFCCC. This shortcoming is partly due to intellectual property rights, which pose a significant obstacle to quick and efficient technology transfer. This article examines the kinds of changes in intellectual property laws needed to promote accessible, affordable and adaptable technology transfers and to help prepare host countries for potentially mandatory emission reductions in the post-Paris era.

The Place of Customary Norms in Climate Law: A Reply to Zahar

In his essay on the thesis of my book, Alexander Zahar objects to my characterization of customary international law as one of the sources of the international law on climate change and, in particular, to my conclusion about the relevance of the no-harm principle. I disagree. In the first part of his essay, Zahar’s analysis of the no-harm principle is limited to arguments by analogy, but a valid international legal argument can be based on deduction from axiomatic premises of the international legal order. In the second part of his essay, Zahar claims that the UNFCCC regime excludes the application of the no-harm principle when, in reality, the UNFCCC regime really seeks to facilitate the implementation of general international law.

Climate Change and State Responsibility for Human Rights Violations: Causation and Imputation

The Paris Agreement provides that States ‘should respect, promote and consider their respective obligations on human rights’ in ‘taking action to address climate change’. Should therefore States be held responsible for anthropogenic greenhouse gas emissions in breach of fundamental obligations, that is, the duties to respect, protect and fulfil first, second and third generation human rights? The key cases of the Inuit Petitions to the Inter-American Commission on Human Rights and Kivalina demonstrate that there are serious objective and subjective impediments to holding a State responsible for greenhouse gas emissions. By contrast, the decision of the Hague District Court in Urgenda has the potential to prompt a paradigm shift, whereby the evolution from first to second and third generation human rights allows streamlining fundamental issues of causation, extraterritoriality, attribution of responsibility and policy discretion. It is therefore arguable that the international recognition of a human right to a sustainable environment would require the plaintiff to only demonstrate direct causation, instead of indirect causation, thus fundamentally shifting the burden of proof to the defendant. Furthermore, such a right would allow attributing responsibility pro rata, based on minimum reduction targets outlined in the UNFCCC regime, overcoming issues of extraterritoriality and policy discretion. The human right to a sustainable environment entails asserting the fundamental nature of the no-harm rule.

Systemic integration between climate change and human rights in international law?

UN human rights organs have persistently invoked the integration of fundamental rights into the UNFCCC regime and the Paris Agreement now provides that the ‘Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. How integration should be achieved is nevertheless a matter of international law development. At the regional level, a tendency seems to progressively emerge to ground integration in the fundamental right to a sustainable environment. Against such a background, it is argued in this article that a third generation environmental claim simplifies the complex establishment of a causal nexus between anthropogenic greenhouse gas emissions and first and second generation fundamental rights. This would allow international human rights protection mechanisms to be triggered based on (minimum) reduction targets under the UNFCCC regime. The international recognition of a human right to a sustainable environment therefore emerges as fundamental to determining human rights responsibility for climate change, with particular regard to States. It thus facilitates systemically integrating fundamental rights into climate change regulation and taking consequential institutional action. This argument adds strings to the bow of those scholars who support the idea of intergenerational environmental justice on legal and moral grounds.

Financing Climate Mitigation and Adaptation

The promise of climate finance has been a fundamental challenge within the UNFCCC regime since its inception. While the Parties agreed on a Financial Mechanism, and that developed countries would provide ‘new and additional resources’, developed and developing countries have often been at odds over this commitment, and more fundamentally, what constitutes ‘climate finance’, how much should be provided, and whether there has been adequate balance between mitigation and adaptation. Just when Paris seemed to show signs of momentum toward climate finance targets, the new US Administration reversed course on the prior administration’s commitment to the Green Climate Fund. This article looks at the possible impacts of the US decision on climate finance, including the efforts of other countries and international organizations to address the potential funding gap.

UNFCCC before and after Paris – what's necessary for an effective climate regime?

What can reasonably be expected from the UNFCCC process and the climate conference in Paris 2015? To achieve transformative change, prevailing unsustainable routines embedded in socio-economic systems have to be translated into new and sustainable ones. This article conceptualizes the UNFCCC and the associated policy processes as a catalyst for this translation by applying a structurational regime model. This model provides an analytical distinction of rules (norms and shared meaning) and resources (economic resources as well as authoritative and allocative power) and allows us to conceptualize agency on various levels, including beyond nation states. The analysis concludes that the UNFCCC's narrow focus on emission targets, which essentially is a focus on resources, has proven ineffective. In addition, the static division of industrialized and developing countries in the Convention's annexes and the consensus-based decision-making rules have impeded ambitious climate protection. The article concludes that the UNFCCC is much better equipped to provide rules for climate protection activities and should consciously expand this feature to improve its impact.Policy relevanceThe international community is negotiating a new global climate agreement, to be adopted at the Conference of the Parties (COP 21) in December 2015 in Paris and to be applicable from 2020. This article analyses the successes and limitations the UNFCCC has had so far in combating climate change and it develops recommendations on how to enhance efforts within and beyond the framework of the Convention. From our analysis we derive two main recommendations for an effective and structurationally balanced treaty: First, multidimensional mitigation contributions going beyond emission targets could strongly improve countries’ abilities to tailor their contributions around national political discourses. Second, the UNFCCC regime should be complemented with another treaty outside of the UNFCCC framework. This ‘Alliance of the Ambitious’ would allow the pioneers of climate protection to move ahead and enjoy the benefits of cooperation. The dynamics generated through such a club approach could be fed back into the UNFCCC, leading to increased ambition by others in future commitment cycles.

Building Productive Links between the UNFCCC and the Broader Global Climate Governance Landscape1. This article reflects and builds upon discussions at a December 2013 workshop held in Neemrana, India, sponsored by the Centre for Policy Research (New Delhi) and the Mitigation Action Plans and Scenarios (MAPS) program of the Energy Research Centre (Cape Town). This article builds on pp. 14–19

This forum article outlines a research agenda focused on linkages between the UNFCCC and other governance arrangements that also address climate change. We take as our point of departure the recognition that the UNFCCC is no longer the sole site of global climate change governance, and thus the types of linkage across what we call the global climate governance landscape including as a central node the UNFCCC are important for thinking through how improved global responses to climate change may be pursued. The forum identifies two specific types of linkage: division-of-labor linkages and catalytic linkages. We illustrate these with some examples and raise questions we believe would be useful to pursue in future research.

The Role of the UNFCCC Regime in Ensuring Effective Adaptation in Developing Countries: Lessons from Bangladesh

This paper provides a general overview of the UNFCCCs approach to adaptation, and then conducts a case study of adaptation efforts in Bangladesh. Based on the results of the case study and drawing on existing literature, the paper considers to what extent the current approach under the UNFCCC is likely to be effective, and how UNFCCC adaptation efforts might be strengthened.

The Role of the unfccc Regime in Ensuring Effective Adaptation in Developing Countries: Lessons from Bangladesh

The goal of this article is to explore climate change adaptation efforts in Bangladesh within the context of the unfccc’s current efforts to assist developing countries such as Bangladesh with adaptation, and to offer recommendations for negotiators of the future climate regime.

The Study on ensuring Effectiveness of IMO Instrument regarding GHG emission from Ships - focusing on MARPOL73/78 Annex VI

UNFCCC was adopted in 1992 in order to prevent global warming. However, as a lack of concrete reduction goal and implementation plan, UNFCCC could not have effectiveness. In 1997, Kyoto Protocol to UNFCCC was adopted and UNFCCC regime started practically binding on the parties. Global warming takes the leading role in changing marine environment such as the rising of water level and sea water temperature. Also, Ocean plays the vital role in storing carbon to prevent global warming. Meanwhile ships which get the propulsion generated by consuming the fossil fuel are identified as GHG source and the discussions regarding the control of GHG emitted from ships are still in progress in IMO. IMO instrument has some legal conflicts with UNFCCC in principle. Therefore, this paper reviews the present UNFCCC regime and UNCLOS. Also, it surveys activities of IMO and analyze the Amendment to MARPOL73/78 Annex VI which entered into force on January 1, 2013. Finally, conclusions suggest the improvements in order to ensure effectiveness the new Amendment to MARPOL73/78 practically.

Book Review: International Relations: Justice in Funding Adaptation under the International Climate Change Regime

Covering the ethical dimensions of international-level adaptation funding, a subject of growing interest in the climate change debate, this book provides a theoretical analysis of the ethical foundations of the UNFCCC regime on adaptation funding, one that culminates in the definition of a framework of justice. The text features an interpretative analysis of the ethical contents of the UNFCCC funding architecture by applying the framework of justice proposed to different areas of empirical investigation. The book offers scholars working on climate change, international relations, and environmental politics an analysis characterized by both theoretical soundness and empirical richness. The comprehensiveness of the book’s approach should make it possible to plan and implement international adaptation funding more effectively, and eventually to define more just funding policies and practices.

Using GATT Flexibilities to Produce a WTO-Consistent Shift Toward More Climate-Friendly Consumption Patterns: An Analysis of GATT Article III from the Perspective of Greenhouse Gas Consumption Taxes

Taxes on goods according to the quantity of greenhouse gases or energy they contain are capable of addressing some of the most significant failings of the multilateral effort to mitigate global climate change. By focussing on consumption and including the greenhouse gases effectively embedded in imports, such measures tackle the mounting problem of so-called carbon leakage and afford developed countries committed to combating climate change an opportunity to influence a far greater portion of global greenhouse gas emissions than those that their action under the production-based developed country focussed UNFCCC regime address. However, by altering the consumption patterns of domestic and imported goods according to their embedded greenhouse gas content, such measures are subject to the constraints of international trade law. The present article undertakes an in-depth analysis of the GATT’s anti-discrimination rules in an effort to identify the policy space afforded to greenhouse gas consumption taxes, undoubtedly one of the most effective consumption-based climate change policies. The complex situation that would be created by a comprehensive greenhouse gas consumption tax programme reveals several important and heretofore under-analysed issues of WTO law including questions as to which products must be compared to establish de facto discrimination and the precise meaning of the “so as to afford protection” requirement for the rule in GATT article III: 2 second sentence. A balanced reading of the relevant WTO jurisprudence and how the GATT’s anti-discrimination rules would apply to greenhouse gas consumption taxes reveals several flexibilities for certain types of nonetheless effective environmental tax measures. It is accordingly submitted that, by crafting any unilateral climate change consumption-based policy around such flexibilities in the fundamental GATT anti-discrimination rules, WTO Members may comply with WTO law even without what would be somewhat dangerous reliance on the general exceptions of GATT article XX. If greenhouse gas consumption-based regulation indeed constitutes a potential way forward for the stalled international effort to mitigate climate change, this article shows that WTO law will not stand in the way of implementations of even some of the more potent forms of such regulation.