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Limitations of International Climate Change Law

Climate change is the biggest threat we will be facing in the future. It is to be a huge threat in the future if we do not take any initiative to fix this problem. Climate change, also known as global warming, refers to the rise in the earth’s temperature. This is caused due to the emission of excess emission of greenhouse gases (GHG) such as carbon-di-oxide into the atmosphere, which is caused due to various factors such as burning fossil fuels, emissions from vehicles, and gases released from livestock animals. These gases that are emitted are trapped in the atmosphere, which in turn contains the heat from the earth, causing the temperatures to rise gradually. A report by the IPCC (intergovernmental panel on climate change) states that since the 1950s, there has been a significant rise in sea levels and the concentration of greenhouse gases in the atmosphere. Therefore, if we do not make a significant difference in the way we use our resources, the damages could be irreversible.

REGIMES INITIATED BY THE UN TO CURB CLIMATE CHANGE.

In 1992 the United Nations Framework Convention on Climate Change (UNFCCC) was adopted at the Rio Conference; the main aim was to provide a primary framework on how to curb climate change. However, the UNFCCC did not make a statutory framework for countries to follow but was made to encourage them to come together to take specific measures in unison. It did not aim to eradicate the GHG entirely but to stabilize the current output so that we would not further be contributing to climate change. Due to this, the UNFCCC was criticized for neither being clear on the commitments that were to be followed nor making an initiative to reduce the GHG in the atmosphere.

KYOTO PROTOCOL

After several meetings being held after the 1992 Rio conference and the UNFCCC being adopted, due to the inefficient change in the reduction of GHG, On December 11, 1997, the KYOTO PROTOCOL was initiated in Japan. The protocol, this time, aimed at “quantitative restrictions on emissions from industrialized economies” this meant that countries that had a more developed economy had to take up bigger initiatives to reduce the GHG in the atmosphere. Although it gave the countries flexibility as to how to implement their duties, it had a strict structure on the form and nature of their commitments and had to meet their said targets. Unlike the previous initiative, the KYOTO PROTOCOL started looking like reducing climate change could be achieved. Sadly, this initiative failed despite having support from the biggest countries in the world. The reason was due to a couple of contributing factors (i) there was insignificant emission reduction on a global scale. (ii)did not get all the countries to participate in this agreement, and (iii) the required targets were not achieved within the time period. And ever since, the GHG in the atmosphere has kept on increasing, making climate change a reality.

PARIS AGREEMENT

On December 12th, 2015, the Paris Agreement (PA) was adopted. This was the most recent step taken up by the UN to curb climate change. This agreement aimed to get global involvement to maintain a global temperature rise below 2 degrees Celsius, which was above the pre-industrial level. Similar to the first initiative by the UNFCCC, the PA did not keep any target on reducing the emission of GHG but insisted on keeping a stable global temperature well below 2 degrees Celsius for the next century. This agreement can be legally binding if more than 55 parties representing at least 55% of the global emissions have been ratified. Furthermore, the PA aims to make progress by making parties into preparing a “nationally determined contribution”(NCDs) where each party has to come up with an agenda as to what the party would archive and consistently keep enhancing their plans. I think, in my opinion, the PA is a great initiative by the UNFCCC, but for this regime to be successful more countries have to come together to make an impact globally.

LIMITATIONS ON INTERNATIONAL CLIMATE CHANGE LAW

Ever since the issue of climate change majority of the laws related to international climate change have been implemented under the 1992 UNFCCC, Kyoto Protocol, and the Paris Agreement. Although the climate change regimes by the UN constitute the majority of the laws that are applicable to climate change, the rules and regulations under the general international law, policies and regulations by the state, and Judicial decisions by the ICJ are also relevant to climate change. In a publication by oxford university press on International Climate Change Law, the author brings about two broad perspectives on the climate change problem, i.e., (i)climate change as an environmental problem and (ii)climate change as an economic problem. Using these perspectives, we can understand the limitations of international climate change law in regard to mitigation and adaptation.

(i) Climate change as an environmental problem

Considering the biggest problem we’ll face due to climate change is the environmental problem. Taking into consideration the Paris Agreement where the aim is to reduce GHG emissions by limiting the temperature below 2 degrees Celsius but for a state to archive this, it has to take into three factors, (i) the level of temperature deemed safe and (ii) the concentration levels necessary to prevent warming from exceeding the temperature limit and (iii) the choice of an emission pathway to achieve the necessary concentration level. To achieve this, considering these parameters, it would likely require stabilization of GHG concentration not more than 450 ppm. At this rate, we would see a 40-70% fall only by the year 2050. For this to be possible, we will have to depend on strict stringency, a stringency where we see participation from a lot more states. Also, we need to ensure all three factors to be considered should be effective at all times. If one of them is a little complacent, it will allow us to push the goal away from us. This intricate coordination within the states to reduce cumulative GHG in the environment while ensuring the factors and measures are to be kept would be equivalent to solving an immensely complex equation. Therefore, the less stringent these commitments are, we are only further contributing to climate change.  

(ii) Climate change as an economic problem

the policies implemented by the UN are to achieve an efficient outcome, where the outcome comes with the highest net benefits. The reduction of emissions should be made if the benefits outweigh the costs. But calculating the cost and benefit is extremely difficult given that the tools that are used to reduce the cost and calculate the cost and benefit are outsourced. If a state can reduce the GHG emissions in a more cost-effective way than the other, then the state should shift some of the pollution reduction to other countries with lower mitigation costs so that the emissions can be reduced wherever it can be done most cheaply. Two-thirds of the GHG that is being released contain co2, although the UN insists that in order to maximize cost efficiency, it encourages the state to focus on gases that are least expensive. Although states have various opinions in regard to this problem. Out of all the states that are to be affected by climate change, all of them are impacted in a different way. The states belonging to the coastal areas are more adversely affected due to the rise in sea levels compared to more developed state, which is far more economically dependent than the ones who are directly affected by this. Even though the contributors to this GHG are far more in these developed states. And many developing countries still have situations they would have to deal with now and hence would be hesitant to make a sincere contribution to the mitigation of GHG.

Need for Human Rights based approach along with the emerging concept of Climate Change Litigation.

Every year more and more people are getting to know about climate change and the impact it can have on the earth if nothing is done about it. And due to this, there have been a lot of responses to the treaties formed and the law and policies implemented out of these treaties. And also gone up to the extent of filing lawsuits against the government, claiming it as climate change litigations.

The main objective of these litigations is to bring up the liability on people or a person who is responsible for contributing excess amounts of GHG or has impacted the lives of others by violating the existing law.

The stages of exercising this are:-

(i)the plaintiff has to establish the grounds on which he or she is filling the petitions.

(ii) the defendant should be a party to seeking redressal

(iii) the appropriate forum has to be approached

With the implementation of treaties and various policies, countries that emit the largest amount of GHG mitigate the problem of climate change. The best way for these states to have an incentive to help the environment by implementing these policies as a priority is by public pressure, especially when there is no binding rule as of now, which makes it mandatory. Therefore, unless sire restricting international climate change laws are not implemented as a whole, the scope of eradicating climate change merely stays a myth.

By Bevin Pereira