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Class 27: Climate. POLS 363 International Law P. Brian Fisher Spring 2011. R2P. General Rules of NI (UNC Art 2) and Caselaw (Corfu, Nicaragua) Definition of R2P (and how it fits into UNC Art 2) Atrocity Crimes: Genocide, CAH, War Crime, EC Each Atrocity Crime has its own “elements”

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Class 27: Climate

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class 27 climate

Class 27: Climate

POLS 363

International Law

P. Brian Fisher

Spring 2011

  • General Rules of NI (UNC Art 2) and Caselaw (Corfu, Nicaragua)
  • Definition of R2P (and how it fits into UNC Art 2)
  • Atrocity Crimes: Genocide, CAH, War Crime, EC
  • Each Atrocity Crime has its own “elements”
  • Crimes: “Substantiality Test” (Of sufficient Magnitude and Widespread)  Led by an Elite
  • Implementation  Precautionary Principles
    • Right Intention
    • Last Resort
    • Proportional
    • Chance for Success (reasonable?)
    • UN Sec Council Authorization (throughout)
historical continuum of iel
Historical Continuum of IEL
  • 1972, Stockholm Conference on the Human Environment (differences b/w GS and GN)
  • 1982, UN Convention on the Law of the Sea (UNCLOS) (1994)—strongest environ agreement
  • 1992, Earth Summit, UN Conference on Environment and Development World (based on Brundtland Commission or WCED, 1983), Rio
    • Created paradigm upon which IEL has since been based: SD
  • 2002, Summit on Sustainable Development (WSSD), Jo’burg  Thrust was implementation of Rio
unced rio 1992 earth summit
UNCED, Rio 1992 (Earth Summit)

Four Institutional Results

  • Rio Declaration
  • Agenda 21 (Non-binding Action Plan)
  • Nonbinding Stmt of Principles for Global Consensus on Management, Conservation and SD of Forests
  • Ceremonial signing of CC and BD Conventions
rio declaration
Rio Declaration
  • Replaced the “Earth Charter”
  • Guruswamy: “Set a dubious foundation for IEL (reversing many ideas in Stockholm)”
  • Some scholars even suggested Rio undermined the autonomy of IEL and its future application
  • Built on compromises between EP (environ protection) and economic development
  • More specific than Stockholm, but controversial
key principles of rio
Key Principles of Rio
  • Principle 1: Reflects an anthropocentric approach to environment– “human beings

are at the center of concerns for SD”—no rt to clean environ

  • Principle 2: Nascent rt to wholesome environment replaced by rt to development
  • Duty not to cause TB harm (Principle 21) was weakened by Principle 2 allowing states to “exploit their own natural resources pursuant to their environ and development policies” (CBD follows 21)
  • Principle 3&4: Reformulation of obligation to conserve (for future generations) changed to right to consume and develop (3) GS; while 4 states that EP shall constitute an integral part of the development process “not isolated from it” (GN)
  • Principles 4, 11, 12:advocate open economic trade system premised on economic growth and SD as platform for econ growth
  • Principle 12: prohibits unilateral actions (US-Dolphins)
  • Principle 13: “States shall develop national law regarding liability and compensation for victims of pollution and other environ damage” (Nat’l juris; indivrts)
codification of general principles of iel
Codification of General Principles of IEL
  • Principle 7:Common but differentiated Responsibility (customary law)
  • Principle 15: Precautionary Approach (Art 3 of Conv on CC)
  • Principle 16: Polluter Pays Principle
effects of rio
Effects of Rio
  • Balances EP v. Development; or does rt to development weaken environmental concerns?
  • First compromise between GN and GS
  • But does it diminish the imperative of SD?
  • Enshrines distinct principles of IEL
  • Helps to move IEL from normative features to techniques of implementation
wssd 2002 jo burg goals
WSSD, 2002, Jo’burg Goals
  • Halve by 2015, people w/o basic sanitation
  • By 2020, minimize chemical effects
  • Restock fisheries by 2015
  • By 2010, significant reduction in biodiversity loss (which requires financial and technical resources to GS)
wssd outcomes
WSSD Outcomes
  • Increasing role for NGOs and nonstate actors
  • Increasing partnerships among diversified groups
  • Specific targets guided by specific goals
  • Galvanized like-minded countries on climate change and BD loss
  • Ironically, more willing to discuss economic/social pillars of SD than environ
    • Little support for environ orgs and instits
  • SD: great vision, untenable policy?
  • Too much on environmentalism’s plate?
climate change
Climate Change
  • Fisher Newspaper Article
  • Sun Come Up (short clip)
  • Climate Change: long term change to earth’s climatic system—not necessarily uniform or equal
  • Global Warming: Increases in global mean temperature
  • Weather: all phenomenon in earth’s atmosphere at a given time (e.g. temperature, precip, etc.).
  • IPCC: Intergovernmental Panel on Climate Change
ipcc unequivocal warming
IPCC: Unequivocal Warming

“Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level”

global warming
Global Warming
  • Global Mean Temp: 1.5°F increase in average global surface temperature in the past century.
  • Rate Increase: The rate of this increased warming has accelerated as the warming over the last fifty years is 0.13°C, almost double for the previous 50 years, and this rate has increased to 0.17°C per decade in the last twenty-five years.
  • Eleven of the last twelve years (1995–2006) rank among the 12 warmest years in the instrumental record of global surface temperature9 (since 1850).
earth warming ipcc findings
Earth Warming, IPCC Findings
  • Eleven of the twelve years in the period (1995-2006) rank among the top 12 warmest years in the instrumental record (since 1850, towards the end of the Little Ice Age).
  • Urban heat island effects were determined to have negligible influence (less than 0.0006 °C per decade over land and zero over oceans) on these measurements.
  • "Average Arctic temperatures increased at almost twice the global average rate in the past 100 years."
  • It is likely that greenhouse gases would have caused more warming than we have observed if not for the cooling effects of volcanic and human-caused aerosols.
  • “Warming in the last 100 years has caused about a 0.74 °C increase in global average temperature. This is up from the 0.6 °C increase in the 100 years prior to the Third Assessment Report.”
global effects from gcc
Global Effects from GCC
  • Ice Melt/Deglaciation
  • Rising sea levels (ice melt, increase in water)
  • Changes in extremes of temperature
  • Salination of Water and Soil
  • Increase in Extreme weather (storm surges, precipitation, hurricane/cyclone intensity)
  • Changes in Wind patterns and intensity
  • Wind and SLR lead to coastal erosion
  • Droughts and flooding
  • Increase in Ocean temperature
  • Increase in insects (particularly mosquitoes)
  • Changes to growing seasons
anthropogenic climate change
Anthropogenic Climate Change

Fingerprint-modeling of global surface temperature change (Adapted from Meehl et al. 2004). (A) Model results with all forcings included. The combined forcings provided the best match to the fingerprint of climate change in the observed record. (B) Natural forcings alone explained much of the temperature change in the first half of the century. (C) Man-made forcings strongly dominated the temperature change after 1975.

Note: The 20th C warming trend at the earth’s surface progressed in a distinct pattern, with a large warming during 1910-1940, moderate cooling during 1940-1975, and a large warming from 1975 to today.

basic climate framework
Basic Climate Framework
  • Kyoto Protocol
  • COPs= conference of parties
    • the supreme body of the UNFCC
    • Has legislative powers to create additional protocols and amendments
    • Interprets rules and regulations
  • Parties that sign on are bound by its provisions
    • 3/4 majority rules – opposing parties must state they are not in agreement
    • This scared a lot of parties away (b/c essentially imposing emissions by votes per country)
  • Int’l environmental treaty produced at the United Nations Conference on Environment and Development (UNCED) or Earth Summit, held in Rio de Janeiro June 1992
  • UNFCCC Designed to:
    • stabilize GHG emissions
    • General principles to guide future work—equity, precaution & cost-effectiveness
    • Process to improve our knowledge base
    • Improve institutions to oversee implementation of Conv
unfccc article 2
UNFCCC, Article 2

“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

unfccc structure
UNFCCC Structure
  • Annex I Countries—Industrialized Countries (40 + EU)

Australia, Austria, Belarus, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, USA

  • Annex II—Developed Countries to Pay Developing (23 + EU)
  • Developing Countries—No Responsibility (Why?)

1. Avoids restrictions on growth because pollution is strongly linked to industrial growth.

2. It means that they cannot sell emissions credits to industrialized nations to permit those nations to over-pollute.

3. They get money and technologies from the developed countries in Annex II.

unfccc principles of iel
UNFCCC Principles of IEL
  • Article 3: climate change is the “common concern of mankind”
  • Intergenerational Equity: protect the climate for the benefit of future generations
  • Precautionary Principle (Art 3(2))
  • States have Common but Differentiated Responsibilities (CDR) (Art 3(1))—developed countries should take the lead, while special circumstances of developing shall be considered
    • Developed Countries have differentiated responsibilities to:
      • Develop targets to limit GHGs (created in Kyoto)
      • Enhance Sinks
      • Technical and technology assistance to developing
      • Financial assistance to developing
  • Sustainable development (Art 3(4)) as foundation of IEL
kyoto protocol entered into force feb 15 2005
Kyoto Protocol(entered into force Feb 15, 2005)
  • Negotiations b/w other high-level officials from 160 countries
  • Expires in 2012 (Copenhagen is COP 15)
    • See
  • Protocol is a legally binding (once ratified)
  • Russia’s ratification created enough total emissions to trigger KP entry into force
  • Cap and Trade System: cap overall emissions through market incentives and flexibility
kyoto protocol specifics
Kyoto Protocol Specifics
  • under which industrialized countries (Annex I) will reduce their collective emissions of greenhouse gases by 5.2%
  • Each country has own emissions target (EU 8%; US 7%; Jap 6%; Russia 0%; Norway +1%; Australia +8%) – based on 1990 levels
  • The agreement aims to lower overall emissions from a group of six greenhouse gases by 2008-12, calculated as an average over these five years.
  • Cuts will be measured against a base year of 1990.
  • Variety of mechanisms employed to assist states achieve targets in a flexible way, including emissions trading and CDM (clean develop mech)
copenhagen accord
Copenhagen Accord
  • Non binding agreement signed between major GHG emitters in Dec 2009 in Copenhagen
  • UN has renounced the document (based on pressure from the developing countries)
  • Goal: recognizes "the scientific view that the increase in global temperature should be below 2°C", in a context of sustainable development, to combat climate change.
  • Mitigation: developed countries (Annex I Parties) would "commit to economy-wide emissions targets for 2020" to be submitted by 31 January 2010 and agrees that these Parties to the Kyoto Protocol would strengthen their existing targets.
  • Adaptation: Agrees a "goal" for the world to raise $100 billion per year by 2020, from "a wide variety of sources", to help developing countries cut carbon emissions (mitigation).
climate law
Climate Law
  • Enforcing Global Agreements (UNFCCC & Kyoto)
  • Enforcing Climate through other Sectoral Agreements (Conv on Biodiversity, UNCLOS or Trade)
  • Human Rights—Right to a clean environment?
    • Inuit Petition to IACHRs against US (dismissed)
  • Domestic:
    • EPA v. Mass (2007)—GHG are a “pollutant” to be regulated by the EPA
    • State (e.g. California) new rules/laws governing clean energy, fuel stnds, etc that affect climate
  • ATS for private wrongs