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Climate Change: An Analysis of the Adequacy of the Legal Regime

By

Rapando Fredrick Rapando

2016

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Contents
LIST OF STATUTES ................................................................................................................................. 5
LIST OF CASES ......................................................................................................................................... 6
LIST OF ACRONYMS .............................................................................................................................. 7
CHAPTER ONE ......................................................................................................................................... 8
1.1. BACKGROUND .............................................................................................................................. 8
1.2. STATEMENT OF THE PROBLEM ........................................................................................... 11
1.3. JUSTIFICATION OF THE STUDY ............................................................................................ 11
1.4. RESEARCH QUESTIONS ........................................................................................................... 12
1.5. STATEMENT OF THE OBJECTIVES ...................................................................................... 12
1.6. THEORETICAL FRAMEWORK ............................................................................................... 12
1.6.1. Human Rights Theory ............................................................................................................ 12
1.6.2. Constitutional Theory ............................................................................................................. 13
1.7. METHODOLOGY OF THE STUDY .......................................................................................... 14
1.8. LITERATURE REVIEW ............................................................................................................. 14
1.9. CHAPTER BREAKDOWN .......................................................................................................... 16
CHAPTER TWO: OVERVIEW OF THE LEGAL REGIME ON CLIMATE CHANGE ............... 18
2.1. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE ................ 18
2.1.1. ESTABLISHMENT OF THE CONFERENCE OF PARTIES AND ITS FUNCTIONS . 20
2.1.2 THE SECRETARIAT UNDER THE CONVENTION ........................................................ 22
2.2. THE KYOTO PROTOCOL ......................................................................................................... 23
2.3. THE PARIS AGREEMENT ......................................................................................................... 28
CHAPTER THREE: THE EFFECTIVENESS OF THE CLIMATE CHANGE LEGAL REGIME
.................................................................................................................................................................... 32
3.1. SUCCESSES OF THE KYOTO PROTOCOL ........................................................................... 33
3.1.1. CLEAN DEVELOPMENT MECHANISM .......................................................................... 33
3.1.2. STEPS INVOLVED IN A CDM PROJECT ........................................................................ 34
3.1.3. EMISSION TRADING ........................................................................................................... 34
3.1.4. JOINT IMPLEMENTATION ............................................................................................... 35
CHAPTER FOUR: THE SHORTCOMINGS OF THE CLIMATE CHANGE LEGAL REGIME 37
4.1. THE INADEQUACIES OF THE KYOTO PROTOCOL ......................................................... 38
4.2. CDM PROJECTS IN AFRICA .................................................................................................... 38
4.3. ENFORCEMENT .......................................................................................................................... 39

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4.4. EMISSION TARGETS ................................................................................................................. 39
4.5. ADAPTATION............................................................................................................................... 39
4.6. VIEWS ON THE PARIS AGREEMENT .................................................................................... 40
4.7. CUSTOMARY INTERNATIONAL LAW .................................................................................. 40
4.8. HUMANITARIAN AND HUMAN RIGHTS LAW.................................................................... 41
CHAPTER FIVE: CONCLUSION ......................................................................................................... 43
BIBLIOGRAPHY ..................................................................................................................................... 44

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LIST OF STATUTES

ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts

The Vienna Convention for Protection of the Ozone

The Montreal Protocol on Substances that Deplete the Ozone

United Nations Framework Convention on Climate Change

The Kyoto Protocol to the United Nations Framework Convention on Climate


Change

The Paris Agreement on Climate Change

Universal Declaration on Human Rights

Convention for the Protection of Human and Fundamental Freedoms, (European


Convention on Human Rights, as amended) (ECHR)

5
LIST OF CASES

GABCIKOVO- NAGYMAROS PROJECT (HUNGARY V SLOVAKIA) [1997] ICJ REP 7

LOPEZ OSTRA V SPAIN [1995] 20 EHRR 277

TRAIL SMELTER ARBITRATION (CANADA V USA)

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LIST OF ACRONYMS

CBDR Common but Differentiated Responsibilities


CDM Clean Development Mechanism
CER Carbon Emission Reductions
CFCs Chlorofluorocarbons
COP Conference of Parties
ERU Emission Reduction Units
EXCOM Executive Committee
GHGs Greenhouse Gases
IBDR International Bank for reconstruction and Development
ICJ International Court of Justice
ILC International Law Commission
IPCC Intergovernmental Panel on Climate Change
JISC Joint Implementation Supervisory Committee
LDCs Least Developed States
ODS Ozone Depleting Substances
UN United Nations
UNEP United Nations Environmental Program
UNFCCC United Nation Framework Convention on Climate Change

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CHAPTER ONE
1.1. BACKGROUND
The world’s climate is changing at a fast rate, weather phenomenon and their changes have made
the weather patterns more unpredictable today as opposed to decades ago. These climatic
changes are attributed to global warming. Global warming is the increase in the average
temperature of the earth’s surface.1 To understand this, one has to understand the concept of the
greenhouse effect.

Greenhouse effect is the process that occurs naturally and results in the warming up of the earth’s
surface. This process helps to maintain earth’s temperatures at certain levels to the effect that
earth can support life. Without this process, earth would have been too hot or too cold like
Mercury and Venus.2 This process is facilitated by greenhouse gases, which retain heat from the
sun. Such gases include Carbon dioxide, Methane and Nitrous Oxide. Today earth is
experiencing enhanced greenhouse effects; this is due to high levels of greenhouse gases in the
atmosphere, which retain a lot of the sun’s heat and thus global warming.3

Climate change effects are caused by man and most specifically through the burning of fossil
fuels which produce a very high percentage of greenhouse gases as end products. Scientists
record that during the period before the industrial revolution, climate change still occurred,
however, its causes could be traced to natural occurrences such as the eruption of volcanoes,
which released greenhouse gases into the atmosphere. However, the period of the industrial
revolution to date has seen drastic changes in global temperatures and these trends cannot be
attributed to natural causes alone. Human activities contribute a large portion of it. Today,
carbon dioxide concentrations in the atmosphere have increased by about 40% since the period
before industrialization. Human activities release up to 30 billion tons of carbon dioxide into the

1
Our Rising Oceans, (2015) ‘Vice’ Series 3, Episode 1, HBO Television, 6, March
2
‘Green House Effect’, (Australian Government, Department of Environment,)
https://www.environment.gov.au/climate-change/climate-science/greenhouse-effect accessed 14 June 2016
3
ibid

8
atmosphere each year.4 Carbon dioxide tends to remain in the atmosphere for longer before it is
used up and thus compounding to the effects that have resulted in climate change.5
Global climate change has been an environmental problem for so long. It is hinged to every
aspect of human life, has far-reaching effects on the international economy with social issues
such as migration and loss of livelihood, and ultimately would threaten international peace and
security. This would be so due to the loss of livelihoods. With migration in effect, people would
find themselves in search of new jobs. With increased movement towards certain areas, there
would be increased pressure on the economy due to lack of adequate opportunities to
accommodate these migrating people. This would in turn result to people turning to crime to
sustain themselves.6 For climate change, the challenge has been to persuade the world's most
industrialized and powerful countries to reduce their greenhouse gas emissions despite the fact
that these industries are the source of most of the riches that these countries enjoy.7
Rich countries contributed the larger share of greenhouse gas emissions in the period of
industrialization; however, this does not mean that climate change in its entirety is caused by rich
countries. With states pursuing their respective national economic goals, both rich and poor
countries tend to indulge in activities that result to high emissions of greenhouse gases. This is
witnessed in countries such as Brazil as witnessed in the rapid deforestation of the Amazon
forest and in India and China from the industrialization seen in the recent years. This shows that
the dynamics have substantially changed since the period of industrialization. Poor states in their
pursuit to develop and compete economically with rich countries have contributed a fair share of
the greenhouse gases that result in climate change. Therefore, each state has to take
responsibility for its contributions to climate change.8

4
‘Climate Change’, (United States Environmental Protection Agency),
https://www.epa.gov/climatechange/science/causes.html accessed 1 July 2016
5
‘Energy Concept Primer’, (New Mexico Solar Energy Association),
http://ww.nmsea.org/Curriculum/Primer/Global_Warming/Fossil_Fuels_and_global_warmimg.html accessed 8
June 2016
6
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
7
Richard J. Lazarus, ‘Climate Change Law in and Over Time’ (2010) 2 San Diego Journal of Climate and Energy Law
29
8
Sumudu Atapatu, Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change ‘’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le

9
The major concern that arises from the climate change problem is that of human rights. Climate
change is set to have far-reaching effects on the human rights. This will see more climate change
suits brought to court under the realms of humanitarian law. This has been so witnessed from
recent trends. In the case of Lopez Ostra v Spain, the European Court on Human Rights held that
the consequences of environmental degradation may so affect an individual's well-being to deny
her the right to enjoy her private life and her family.9 In the Gabcikovo v Nagymaros project
case, the court noted that protection of the environment is a vital part of the contemporary human
rights doctrine, for it is sine qua non for numerous human rights such as the right to life itself.10

The process of coming up with climate change legal instruments started in the 20th century. The
establishment of the United Nations Environmental Program in 1972 further enhanced it. In
1985, The Vienna Convention on Protection of the Ozone Layer was agreed followed in 1987
when the Montreal Protocol to the convention was agreed. Its aim was to reduce the production
and consumption of ozone depleting gases.11 In 1992, the United Nation Framework Convention
on climate change was adopted. The Kyoto Protocol followed some years later in 1997. Of the
two, Montreal is regarded as most effective. Most recently, in 2015, the Paris agreement was
agreed. It has however not come into force. The process of formulating policies has been slow
with a number of skeptics slowing the drive to bring an efficient legal regime to deal with global
warming.12

This research paper seeks to examine the legal instruments and to discuss their adequacy in
dealing with the climate change menace. It also seeks to identify issues that are setting back the
eradication of climate change. Finally, it will engage to identify legal solutions that can be
adopted to improve the adequacy of the legal regime.

Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)

9
Lopez Ostra v Spain [1995] 20 EHRR 277
10
Gabcikovo- Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7
11
‘Montreal Protocol on Substance That Deplete the Ozone Layer’, (United Nations Environment Program, Ozone
Secretariat), http://ozone.unep.org/en/treaties-anddecisions/montreal-protocol-substances-deplete-ozone-layer
accessed 4 July 2016
12
‘A Summary of the Kyoto Protocol, United Nations Framework Convention on Climate Change’,
http://unfccc.int/kyoto-protocol/background/items/2879.php accessed 27 June 2016

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1.2. STATEMENT OF THE PROBLEM
Climate change is a big concern for the world with its effects so wide and far reaching. One of its
main impacts is the rising water levels of the seas and oceans. The Maldives islands will be
highly impacted in the future if the current trends continue. Estimates show that by the year
2100, if climate change is left unchecked then half of all Maldives islands will end up under
water due to rise in water levels. This would in turn render most of these islands uninhabitable.13

Rising and falling temperatures are also a major concern with scientists predicting sharp rises in
temperatures and in some cases sharp decreases in temperatures. These are set to impact on food
production, life expectancy and health of the world population. Climate change therefore has to
be addressed. To prevent such events from taking place, it is important that the legal regime
addresses issues regarding greenhouse gas emissions and regulate them to ensure a climate
change free environment. Climate change legal regime is supposed to address these issues to
ensure that the future of earth is protected. This study therefore seeks to interrogate the
effectiveness of the legal instruments in addressing these issues.

1.3. JUSTIFICATION OF THE STUDY


The world is undergoing drastic change. Climate change is set to significantly increase forced
migration of people especially those living in the Arctic and low lying areas.14 Rise in sea levels
will threaten communities living in low-lying areas. Recent projections show that the sea levels
will rise by around 150 centimeters. This will have effects on habitats for humans, animals and
plants.15 Mountain communities will be exposed to high risks including soil erosion. There will
be a rise in storms and intense cyclones. The average height above sea level of the Maldives is
estimated to be around two meters or below. Rise in water levels would cause half of the most
populous island to go under water by the year 2100.16

13
John H. Knox, 'Climate Change and Human Rights' (2009) 50 Virginia Journal of International Law 1
14
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
15
ibid, 85
16
John H. Knox, 'Climate Change and Human Rights' (2009) 50 Virginia Journal of International Law 1

11
With uninhabitable lands, the future of earth's capability to sustain life becomes at risk. This
study seeks to interrogate legal avenues that can be adopted to efficiently and effectively tackle
the global warming problem to help protect earth's resources for posterity.

1.4. RESEARCH QUESTIONS


The Research will answer the questions:

1. What is the role of states in combating climate change?


2. What are the current laws on climate change?
3. Are climate change laws effective and what are the problems slowing down the
implementation of climate change law regimes, the reduction and control of the climate
change menace?
4. What are the legal solutions that can be adopted?
1.5. STATEMENT OF THE OBJECTIVES
This study intends to:

a) To analyze the role of states in combating global warming.


b) To study legal regimes in place to eradicate the climate change problem and their
effectiveness in achieving the goal.
c) To identify challenges slowing down the elimination of climate change and the
problems affecting the implementation of already adopted International instruments.
d) To identify and discuss the legal solutions that can be adopted.

1.6. THEORETICAL FRAMEWORK


This research paper is centered on the human rights theory and the constitutional theory.

1.6.1. Human Rights Theory


Human rights are moral guarantees that individuals from all countries enjoy irrespective of racial
differences and geography just by virtue of being human. This therefore means that compliance
to these human rights is mandatory. They are held to be universal in the sense that people have
them and should enjoy them irrespective of race, culture or geographical differences. 17 Article 2
of the Universal Declaration on Human Rights recognizes the universality of the application of
17
Andrew Fagan, 'Human Rights' (Internet Encyclopedia of Philosophy) www.iep.utm.edu/hum-rts accessed 13
June 2016

12
human rights.18 The European Convention on Human Rights under article 1 creates an obligation
for states to secure to everyone within their jurisdiction these human rights.19

Climate change will have a high impact on human rights. It already interferes with the enjoyment
of some human rights. It is obvious that it will further affect the rights to life, property ownership
and health of the population. The Intergovernmental Panel on Climate Change (IPCC) predicts
that ongoing trends on global warming and climate change will increase population suffering
through death from heat waves, rise in disease, hunger and malnutrition. This in essence presents
the climate change problem as a human rights problem.20

Legal framework on climate change is mainly in the international arena such as treaties. It
therefore brings climate change into the field of international law. States being the subjects of
international law are obligated to protect, respect and fulfill international human rights. 21 Failure
to act in conformity with international obligations results to a breach of International obligations.
States are thus obligated to protect those human rights duly affected by climate change.22

1.6.2. Constitutional Theory


The constitutional theory brings into mind the constitution. This is the document regarded as the
fundamental or basic law of the country.23

The constitution is regarded as the supreme law of the country. The concept of supremacy of the
constitution confers the highest hierarchy on the sources of law to the constitution in the legal
system. The constitution provides how international law is applicable in the domestic arena.
Climate change law falls into this section. Principles under which legality is constituted becomes
of utmost importance.24

18
Universal Declaration on Human Rights (adopted 10 December 1948, UNGA Res 217 A(III) (UDHR) art 2
19
Convention for the Protection of Human and Fundamental Freedoms, (European Convention on Human Rights,
as amended) (ECHR) art 1
20
John H. Knox, 'Climate Change and Human Rights' (2009) 50 Virginia Journal of International Law 1
21
UNGA 'Human Rights Council' Role of Local Government in the Promotion and Protection of Human Rights - Final
Report of the Human Rights Council Advisory Committee (7 August 2015) A/HRC/30/49
22
ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, art 12
23
'What is a Constitution' (University College London) https://www.ied.ac.uk/constitution-
unit/whatis/Constitution accessed 8 June 2016
24
Larry Carta Backer, 'From Constitution to Constitution: A Global Framework for Legitimate Public Power System,
(2009) 113:3 Penn State Law Review 671

13
To ensure that climate change law gains legal effect in the domestic arena, it is important that the
process be done in conformity with the constitution. This is to ensure that the laws are made
consistent with the constitution of respective states.25

1.7. METHODOLOGY OF THE STUDY


This study will rely on desk research. It will involve an analysis of both hard and soft copy
articles, books, journals, web publications and reports. It will concentrate on the analysis of legal
regimes and in particular environmental treaties that in one way or the other are garnered
towards controlling climate change.

To further elaborate, the research will highly utilize journal articles. This is because much of the
work on climate change is found in journal articles. An analysis of the views and ideas contained
in the articles will be done to fully ascertain the effectiveness of the legal regime. The research
will further concentrate on books on environmental law textbooks and more specifically texts on
climate change to highlight the process of implementation of climate change law regimes. The
research will also center on press publications together with film excerpts that are relevant to the
research to establish the impacts. Finally, the research will analyze the information collectively
in order to provide answers to the research questions.

1.8. LITERATURE REVIEW


Sumudu Atapatu, opines that the climate change problem has the capability to impact on health
and the world’s economy. With issues such as the rising sea levels set to impact on migration and
eventually threatening International peace and security. He emphasizes on how international
instruments on global warming need to hinge on the need to set disparities between developed
and developing countries in relation to climate change and other environmental problems. This
has been achieved slightly through the international law principle of ‘Common but Differentiated
Responsibility (CBDR).26

25
Jutta Limbach, 'The Concept of the Supremacy of the Constitution (2001) 64 Mordan Law Review 1
26
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)

14
Climate change is an international problem and therefore falls within the ambit of international
law. It presents itself as a major policy development challenge and therefore Sumudu argues that
the rules and remedies under existing state responsibility laws increasingly look redundant and
are therefore inadequate in combating climate change. He therefore argues that to ensure an
effective climate change law regime it is imperative that both developed and developing
countries partner. Most developing countries are burdened by climate change, a phenomenon
they least contributed to. In order to effect the push to eliminate the global warming problem, it
is important that international legal instruments emphasize on equitability.27

Professor Muhammed Tawfiq Ladan in his research paper on the Paris Agreement acknowledges
that three main issues complicate the process of eradication of greenhouse gases or rather their
reduction in the atmosphere. They include the fact that development of current technologies is
not efficient to achieve zero emissions. This links to the fact that world economy and social
dynamics are dependent on technology. Political processes also further complicate this push.
Most legal regimes render political processes too long. This makes it hard to come up with quick
effective laws to cover global warming concerns of the moment. Finally, he identifies the
question of sovereignty of states. Most countries would tend to concentrate on their national
development agendas. With the task of protecting national interests, most states tend to set aside
international agendas.28

Richard J. Lazarus in ‘Climate Change Law in and Over Time’ describes the climate change
problem as one requiring the persuasion of world’s most powerful nations and industries to
dramatically reduce greenhouse gas emissions despite the fact that their current economies and
ways of living are dependent on industries that are the main contributors of greenhouse gas
emissions. This becomes the main problem in achieving legal enforcement of climate law
regimes. It therefore arches as a major problem in achieving 100% climate law enforcement.
More often than not, the zeal and charisma put in during negotiations of treaties are lost when
people get to realize the economic and social impact of their enforcement. This creates a

27
ibid
28
Professor Mohammed Tawfiq Ladan, ‘Review of the Paris Agreement: The Heart of the Post – 2020 International
Legal Regime on Climate Change and Its Implications for Sustainable Development Goals and the Energy Sector’
(June 2016, Ahmadu Bello University) http://abuportal-ng.academia.edu/MuhammedLadan accessed 15 July 2016

15
situation where the law is viewed as a device for fanfare rather than effecting the needed
change.29

Patricia Kameri-Mbote and Collins Odote interrogates the Kenyan position with regard to
climate change. The authors discuss how climate change litigation is not highly appreciated in
the Kenyan perspective. In most cases, suits filed have been struck out due to lack of locus
standi. Global warming presents human rights problems in the population. However, this
position has been relaxed by the enactment of The Constitution of Kenya 2010, which gives
locus standi to any Kenyan to submit to the courts matters of environmental nature. However,
the full impact of this is yet to be seen. Climate change liability therefore presents a legal
problem full of hurdles. The Kenyan legal regimes do not address problems regarding liability in
climate change matters. They further recommend adoption of a multifaceted route to address
climate change effects.30

1.9. CHAPTER BREAKDOWN


Chapter One

This chapter will introduce the research topic and give the statement of the problem. It will also
outline the research objectives and research questions. Further, it will deal with the theoretical
framework and analyze the literature review. Finally, it will give the methodology of the study.

Chapter Two

This chapter will identify the various International instruments adopted to deal with the climate
change problem. More specifically, it will analyze the Kyoto Protocol, Montreal Protocol, The
United Nations Framework Convention on Climate Change and finally the Paris Agreement.

29
Richard J. Lazarus, ‘Climate Change Law in and Over Time’ (2010) 2 San Diego Journal of Climate and Energy Law
29
30
Patricia Kameri-Mbote and Collins Odote, ‘Kenya’ in Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta
Brunnee (eds) Climate Change Liability: Transnational Law and Practice (Cambridge University Press 2012)

16
Chapter Three

This chapter will discuss the effectiveness of the international instruments in combating the
climate change problem. It will specifically address the gaps in the instruments and
implementation problems.

Chapter Four

This chapter will identify the legal solutions that can be adopted to effectively deal with climate
change and close the gaps in the international treaties in conclusion.

Conclusion

17
CHAPTER TWO: OVERVIEW OF THE LEGAL REGIME ON CLIMATE
CHANGE
Greenhouse gases are a result of industrialization. Everyday human activities release Greenhouse
gases as products. These gases include Carbon dioxide, nitrous oxide, methane and fluoride rich
gases. Greenhouse gases trap heat in the atmosphere, which results in warming up earth.
Greenhouse gases pose different quotient of danger depending on how long they stay in the
atmosphere and the nature in which they are released into the atmosphere. Carbon dioxide is the
most common greenhouse gas since it is released in large quantities. Since air is moving in the
atmosphere, carbon dioxide released in Kenya could spread up evenly around the world. This
means that carbon dioxide concentration is the same no matter where you measure it. Therefore,
no matter where greenhouse gases are emitted, their effects are global in nature.31

This chapter will analyze legal framework for the control of greenhouse gases. It will discuss the
process of their coming into force. Specifically, it will interrogate provisions that are important
in achieving effective control over greenhouse gas emissions.

2.1. UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE


CHANGE
The convention acknowledges that climate change in the planet and its adverse effects are a
common concern for human life. For a long time now, human activities have been constantly
leading to an increase in greenhouse gas (GHG) concentration in the atmosphere. The convention
also notes that the largest share of GHG emission has come from the developed world with much
of it coming from industry. It acknowledges the global nature of climate change and calls for
international cooperation to come up with a proper response to the problem while at the same
time considering the common but differentiated responsibility principle. The parties, through the
convention recognize that low lying and other small island states with low-lying coastal and
semi-arid areas or areas liable to floods, drought and desertification and developing countries
with fragile mountainous ecosystems are particularly vulnerable to the adverse effects of climate
change. This shows the commitment of the parties under the convention to help protect the
vulnerable members. Many states depend on fossil fuels to sustain their economies. The

31
‘A Student’s Guide to Global Climate Change’ (Environmental Protection Agency, USA, 30 August 2016)
www.3epa.gov/climatechange/kids/basics/today/greenhouse-gases.html accessed 6 November 2016

18
convention recognizes that for the process to be a success such states need to be part of the
process. The view being to ensure that the process is fair and that the economies of these states
are protected from the effects of regulation.

The convention, through regulatory provisions aims to stabilize GHG concentrations in the
environment to levels that would not affect the environment.32 The convention requires states to
formulate, implement, publish and update national and regional regulation that has the effect of
mitigating climate change and its effects by addressing the problem of anthropogenic emissions.
States are also encouraged to promote and cooperate in the development, application and
diffusion of technologies, practices and processes that control and reduce or prevent
anthropogenic emissions of GHGs.33

One of the major concerns of the parties of the convention is the future of the coming
generations. It is evident that if we continue utilizing the scarce resources of the planet at the
same rate we are utilizing them today then the future of coming generations would be in peril.
The convention therefore recognizes the need to utilize and slow or eliminate climate change and
its effects for posterity.

The position of developing states is unique because most of these states do not have the
resources that are wielded by rich countries. For this reasons, the conventions has put in place
measures that will help these states achieve the goals of the convention. Thus, developed states
are encouraged to adopt national policies that will help mitigate on climate change and its
effects. States have to communicate detailed information on the policy steps they have taken and
measures as well as the resulting anthropogenic emissions resultant after implementation of the
measures. The convention recognizes the special needs of small island states, countries with low
lying coastal areas, countries with arid and semi- arid areas, forested and areas liable to forest
decay. The convention further recognizes the need to put into the mind states which are prone to
natural disasters, landlocked and transit states, states with fragile ecosystems and those with high

32
United Nations Framework Convention on Climate Change, (adopted on 9 May 1992, entered into force 21
March 1994)
33
ibid

19
urban atmospheric pollution in the formulation and implementation of climate change legal
regime.34

Parties are encouraged to create and facilitate public awareness on climate change and its effects.
They are also encouraged to create public access to information relating to climate change. They
are to encourage their citizens to participate in addressing the problem of climate change.
Exchange and promotion of public awareness and educational material is also paramount in
achieving the goals of the convention. This being an important facet of climate change
mitigation, there is need to create public awareness of the many dimensions created by climate
change and the risks that result of the same. To combat climate change would require
participation of states with their people. To achieve this goal, awareness has to be created.35

States are also encouraged to support programs and endeavors aimed at defining, conducting,
assessing, and financing research in their international and local capacities.36 The convention
well aware of the need for financial backing to achieve its goals provides for a need to establish a
financial mechanism for its implementation.37

2.1.1. ESTABLISHMENT OF THE CONFERENCE OF PARTIES AND ITS


FUNCTIONS
The convention establishes the conference of parties which is the chief decisions making organ
under the convention. The conference of the parties consists of parties to the convention. Chief
among the duties of the conference are to peruse and consider reports drafted by the secretariat or
any other specialized committee or agency under the convention and further adopt them and
ensure their publication once they are adopted. The COP can further make recommendations on
matters that are necessary and need to be implemented under the convention so as to achieve the
goals of the convention. This function ensures that the wheels of decision making do not take
long to be turned.

34
Amr Osama Abdel-Aziz,” Overview on UNFCCC & Kyoto Protocol and Beyond” (Climate Change Research
Programs and Technology Needs, January 2014)
http://www.climasouth.eu/docs/Research%20and%20Technology_Amr%20Osama%20060114.pdf accessed 16
May 2017
35
Koko Warner and Sumaya Ahmed Zakieldeen, ‘Loss and Damage Due to Climate Change: An Overview of the
UNFCCC Negotiations (European Capacity Building Initiative) www.eurocapacity.org accessed 15 April 2017
36
United Nations Framework Convention on Climate Change, (adopted on 9 May 1992, entered into force 21
March 1994) art 5

20
The COP also creates mechanism that facilitate the mobilization of funds to help run programs
and bodies under the ambit of the convention. This ensures that financial resources are provided
to facilitate the fight against climate change. The COP as the chief decision making organ of the
convention in its endeavor to ensure that the convention keeps up with the changing times and
dimensions constantly reviews the implementation of the convention and any other instruments
the parties may adopt under the ambit of the convention. The COP also required formulates
directions that facilitate effective implementation of the convention. It also establishes subsidiary
bodies necessary for the implementation of the convention.

The fight against climate change can only be won through the removal of emissions by sinks and
the reduction of emissions among other ways. The conference of parties therefore ensures that it
devices ways in which such methods may be compared among states to determine the most
effective one. In this regard, the COP device methods for the creation of inventories to
effectively ascertain the effectiveness. The need to standardize such information is to ensure
uniformity and reduce irregularity in information. This is key in combating climate change.

The COP further promotes the need to exchange information among parties. Such information
may deal with the measures that have been adopted in addressing climate change and also their
effectiveness in this regard. Exchange of information ensures that parties are able to update both
legislative and technical information that is relevant and more effective in reducing or
eradicating climate change as opposed to the ones such parties are using.

The workings of the COP and other subsidiary bodies require finances. The COP therefore
agrees upon and adopts rules of procedure and financial rules for itself and other subsidiary
bodies. The COP further acts as the oversight body together with the secretariat to ensure that
such finances are properly utilized so as to fulfill the goals of the convention.
The COP also seeks to facilitate requests of two or more parties to initiate the coordination of
measures adopted by them to address climate change and finally utilizes the services and
cooperation of information provided by international organizations and intergovernmental
bodies.38

38
M. J. Mace, ‘Funding for Adaptation to Climate Change: UNFCCC and GEF Developments since COP-7’,(November
2005) Vol 14:3 Review of European, Comparative & International Environmental Law 225

21
2.1.2 THE SECRETARIAT UNDER THE CONVENTION
Article 8 of the convention establishes the secretariat to the convention. The secretariat being the
wheel of the workings of the convention. They deal with the day-to-day activities that relate to
the convention. The convention tasks the secretariat with the mandate to compile information
submitted to it subject to the convention and transmitting it to the relevant bodies or parties.

The secretariat further organizes the meetings of the COP and its subsidiary bodies, arranges to
that effect, and provides them with services they may require as provided for under the
convention. Since the secretariat is tasked with the day-to-day activities under the convention,
various activities are carried out under its ambit. The secretariat is therefore required to make
reports on such activities and present them to the COP.

The secretariat further ensures that there is co-ordination with the secretariat of other relevant
international bodies to effectively help in the achievement of the goals of the convention.
Facilitating the assistance of parties on request in the compilation of communication of
information required in accordance with the convention is also another mandate of the
secretariat. This is imperative in allowing the COP to ascertain the various strides they are
making towards combating climate change.

The secretariat is also allowed to enter, under into such administrative and contractual
agreements as may be required for the effective discharge of its functions. However this is done
under the supervision of the COP.39
The convention further establishes a subsidiary body for scientific and technological advice. The
body is mandated to Prepare scientific assessments of the effects of measures taken in the
implementation of the convention and to provide assessments on the state of scientific
information relating to climate change and its effects.

The body further identifies innovative, efficient and state of the art technologies and know- how
and advice on the way and means of promoting development and/or transferring such
technologies.

39
United Nations Framework Convention on Climate Change, (adopted on 9 May 1992, entered into force 21
March 1994) art 8

22
Its mandate also involves the need to respond to scientific, methodological and technological
questions that the COP and any subsidiary body may out to it keeping in mind that climate
change evolves as quickly as the technology around us changes.
It also provides advice on scientific programs, international cooperation in research and
development related to climate change as well as on ways and means of supporting endogenous
capacity building in developing countries.40
The convention allows its parties to adopt protocols that will help achieve the goals of the
convention. Only parties to the convention may be parties to the protocol.41 The convention
provided that it would enter into force 90 days after deposit of 50th instrument of ratification,
acceptance, approval or accession. It therefore came into force on 21 March 1994.42

2.2. THE KYOTO PROTOCOL


In 1995, the United Nations held a conference in Berlin, now known as COP-1, which was a
conference of the parties to the United Nations Framework Convention on Climate Change. Its
main aim was to assess progress on promises made concerning Greenhouse Gas emissions under
the UNFCCC. The progress was minimal at the time with few parties showing commitment
towards reducing their emissions. Parties therefore agreed to a 20-year plan, which would require
that specific targets are set which would be binding, and introduce timetables to reduce
emissions. This followed closely on the make of the Montreal Protocol and the Vienna
Convention on Substances that Deplete the Ozone. COP-II was held in Geneva in 1996;
however, not much was agreed at that meeting. The USA’s tone towards climate change shifted
thereafter. Through its chief negotiator at the meeting, USA emphasized that it was willing to
abide by any binding regime if other countries would do so. Their contention was the CBDR
principle, which they complained to have the effect of creating huge obligations for developed
states. They were against a regime that created huge financial obligations for them and their

40
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
41
United Nations Framework Convention on Climate Change, (adopted on 9 May 1992, entered into force 21
March 1994) art 17
42
United Nations Framework Convention on Climate Change, (adopted on 9 May 1992, entered into force 21
March 1994) art 23

23
peers. To them, each state needed to meet its own implementation costs and that shifting the
costs on developing states would be unfair.43

The European Union tried turning up pressure in calling for action on March 3 1997 by asking
for reduction of emissions by all industrialized states below 1990 levels by 2010. There was
however, an emerging disquiet over the regime of climate changes. Oil exporting states were
seeking compensation from any attempt to drive down energy consumption and their incomes
with it. They argued on the point of the reliance of their economies on the exportation and trade
of oil. States with low-lying lands also contended that the continued rises on sea levels
threatened to eliminate them and their people from the picture. States that were now starting to
industrialize among them India and China viewed global warming as a rich countries plan to stop
them from competing in the economic arena. Such were the many different sentiments. The USA
president at the time, Bill Clinton addressed the UN special session in early 1997 where he said
that the science was clear on human contribution to global climate change. He brought the idea
of new technologies and economic strategies like emission trading that would enhance reduction
in Greenhouse Gas emission without having enormous economic implications. This would be the
face of the negotiations and finally the final text of the Kyoto protocol. For developing states,
their support for any Climate Change regime that would cap their emission levels would hinge
on the efforts developed states were making to address the problem.44

The protocol provides that parties endeavor to implement and elaborate policies and measures
that will help to enhance energy efficiency in relevant sectors of their respective national
economies, this being in line with the objectives of the UNFCCC. States are further encouraged
to protect sinks and GHG reservoirs and to promote sustainable forest management. Policies and
measures are to be implemented to reduce GHG emissions in their respective jurisdictions. They
should also limit methane emissions through recovery and use of waste management as well as

43
J. W. Anderson, ‘The Kyoto Protocol on Climate Change Background, Unresolved issues and Next Steps’
(Resources for the Future January 1998)
44
J. W. Anderson, ‘The Kyoto Protocol on Climate Change Background, Unresolved issues and Next Steps’
(Resources for the Future January 1998)

24
in the production, transport and distribution of energy. Parties are also encouraged to stimulate
reform in relevant sectors to promote policies aimed at reducing GHG emissions.45

Parties are encouraged to research, develop, promote and use new and renewable forms of
energy, Carbon dioxide sequestration technology and use of advanced and environmentally
sound technologies. The protocol aims to phase out market imperfections, fiscal incentives, tax
and duty exemptions and subsidies in all GHG emitting sectors that run counter to the objectives
of the United Nations Framework Convention on Climate Change (UNFCCC). Cooperation
among parties is a keen requirement in the need to enhance combined and effective policies and
measures adopted amongst them nationally. Developed states take up extra responsibilities under
the convention. They are required to ensure that they reduce emissions from aviation and marine
banker fuels. In pursuit to implement the policies under national law, parties are required to
ensure that such policies once implemented, minimize the adverse effects of climate change on
trade, social, environmental and economic impacts on other parties to the protocol. These
provisions generally apply to developed state party to the protocol.

Developed states are also obligated to ensure their aggregate Carbon dioxide emissions of GHGs
in Annex A do not exceed their assigned amounts. This is to be done with the view of reducing
emissions of such gases by at least 5% below 1990 levels. This provision is highly criticized by
commentators due to the fact it only addresses minimal reductions of emissions. The protocol
obligates developed states to show demonstrable commitment while implementing their
obligations under the convention. This means that it requires that any such steps should be
substantive. The protocol in this section recognizes the major role the developed world has
played in creating the climate change problem. It also acknowledges the need to abide practically
to the provisions of the convention.46

Where developed states implement projects that enhance removal by sinks that are because of
human induced land use change and forestry activities they are seen to have partly fulfilled their
obligations under the protocol. These projects emissions reduction capacities are calculated

45
The Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December
1997, entered into force 16 February 2005) Art 2
46
Henry D. Jacoby and Ian Sue wing, ‘Adjustment Time, Capital Malleability and Policy Cost’ in ‘The Cost of the
Kyoto Protocol: A Multimodal Evaluation, (2010) 1 The Energy Journal 73

25
together with a state’s compliance obligations which in turn earn the state emission reduction
units.

The protocol establishes the Conference of Parties as the supreme decision making organ of the
protocol. Parties to the UNFCC who are not parties to the protocol can attend the COP as
observers. However, they cannot vote in the meeting. The functions of the COP under the
protocol include are somehow similar to those of the COP under the UNFCCC. The functions
include the mobilization of resources for the implementation of the protocol and to establish
subsidiary bodies necessary for the implementation of the protocol.

The COP as the oversight body under the protocol also recommends on matters necessary in the
implementation of the convention together with the promotion and guidance towards the
development and periodic release of methodologies for the effective implementation of the
protocol.

The COP also Interrogates and utilizes services of competent International organizations,
intergovernmental and non- governmental bodies.

Facilitate and promote exchange of information on measures adopted by the parties in addressing
climate change and its effects and to facilitate at the request of parties the coordination of
measures adopted by them to address the climate change menace and its effects is a very
important role played by the COP of the protocol
To ascertain the progress in implementation, the COP assesses the implementation of the
protocol by the parties and the obligations of the parties under the protocol and if necessary
review any such obligation.47
The protocol uses the secretariat established under the UNFCCC as its secretariat. 48 Developed
states are required to put up a system that will help to determine anthropogenic emissions by
sources and the removal by sinks of GHGs. This is important to help quantify and determine if a
state is fulfilling its obligations under the protocol. These states can transfer and acquire from
other parties’ emission reduction units. These units result from projects aimed at reducing
anthropogenic emissions. To derive emission reduction units the projects should have the

47
The Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December
1997, entered into force 16 February 2005) Art 13
48
Christopher Bohringer, “ The Kyoto Protocol: Review and Perspectives”, ftp://ftp.zew.de/pub/zew-
docs/dp/dp0361.pdf accessed 25 May 2017

26
approval of the parties involved and should be able to provide reduction in emissions by sources
or enhances reduction by sinks once completed.

If a state does not comply with its emission obligations, it does not derive any emission reduction
units from the projects.49

The protocol creates the Clean Development Mechanism (CDM). The purpose of CDM is to
assist developing states achieve sustainable development and to contribute to the ultimate goals
of the convention. The projects under CDM mainly benefit developing states. These projects
under CDM receive funding from developed states. The projects derive Emission Reduction
Units for the states funding the projects. For such a project to go ahead, the protocol requires that
such project must derive real, measurable and long-term benefits that relate to mitigation of
climate change. The projects should derive reductions in emissions that are additional to any that
would occur in the absence of the certified project and that the participation of the parties
involved should be voluntary.50

The conference of parties can review the protocol in view of changing scientific information and
assessment of climate change and its impacts. The protocol also recognizes the Common but
Differentiated Responsibilities (CBDR) principle. It requires that when parties make decisions
under the protocol that create obligations, they must do that keeping in mind the various
diversities that are enshrined within the membership of the protocol.

The protocol provided that it would assume legal force 90 days after the 55th instrument of
accession, acceptance or ratification is deposited with the depository. It formally came into force
on 16 February 2005.51

49
The Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December
1997, entered into force 16 February 2005) Art 6
50
ibid
51
ibid

27
2.3. THE PARIS AGREEMENT
The agreement recognizes the need for urgent, effective and progressive response to the urgent
threat of climate change. In the preamble, the agreement acknowledges the special circumstances
of Least Developed States. (LDCs). Further, it recognizes the important relationship between
climate change and sustainable development in the eradication of poverty in the world over.52

The agreement aims to strengthen global response to the problem of climate change through
sustainable development by increasing the ability of human beings and other creatures of earth to
adapt to the adverse effects of climate change. The agreement envisions a system that will
facilitate financial flows, which will lead to a reduction in GHG emissions and concentrations in
the atmosphere. To achieve its goals, the agreement provides that the global average
temperatures to be held below 2℃ above pre-industrial levels and pursue efforts to limit increase
to 1.5℃ above pre- industrial levels.53

Parties are encouraged to reach global peaking of GHGs as soon as possible to deal out the
problem. However, the agreement recognizes the special circumstances of Least Developing
Countries (LDCs) and developing states by further acknowledging that they may take longer to
achieve these requirements under the agreement. Parties are further encouraged to pursue
mitigation measures to climate change and its effects. Developed states are to lead these efforts
by taking, economy-wide, absolute emission reduction targets. The agreement further relaxes its
obligations under developing states by only requiring that they continue to enhance their
emission targets, which will eventually reduce GHG concentrations in the atmosphere.
Developing states are assured of support in their pursuit to achieve their obligations under the
agreement.54

The agreement requires parties to take action to conserve and enhance sinks and reservoirs of
GHGs.55

52
The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) preamble
53
Chloe Corbyn, ‘The Paris Agreement on Climate Change- A Summary’ (National Assembly For Wales Research
Service, 4 April 2016) https://assemblyinbrief.wordpress.com/2016/04/04/the-paris-agreement-on-climate-
change-a-summary/ accessed 20 May 2017
54
ibid
55
ibid

28
The agreement recognizes the need in understanding the problem of Climate Change. With better
understanding comes better means and ideas in combating the problem. In this regard, the
agreement encourages parties to enhance support, understanding and action on the problem of
climate change. This can be done through the Warsaw International Mechanism for Loss and
Damage associated with climate change impacts by encouraging cooperation between the
mechanism and parties to the agreement. Facilitation by the mechanism with regard to loss and
damage associated with adverse effects of climate change is also another area where
understanding and action needs a boost. Areas of cooperation may include Early warning
systems, slow onset events, emergency preparedness, non-economic losses, resilience of
communities, livelihoods and ecosystems, risk insurance facilities, climate risk pooling and other
insurance facilities, comprehensive risk assessment and management, events that may involve
irreversible and permanent loss and damage56

Capacity building is an important facet of the climate action regime. This involves being
equipped with the technology, understanding, awareness, and financial resources and will to act
effectively on the Climate Change menace. The agreement therefore provides under Article 11
the need to build capacity of parties. This provision aims specifically at the developing state
parties. It requires that they receive support from developed states to help them build capacity to
take effective climate change action. The agreement however requires that capacity building
should hinge on national needs and should foster country ownership of parties. Chief among the
requirements is the need for this provision to be country driven.

Developed states are further obligated to provide for to contribute financial resources to assist
developing states deal with the mitigation of climate change and adapt to its effects. This is a
strong commitment by the parties to the agreement in recognizing the special situation of
developing states under the CBDR principle. That their financial capabilities may derail their
fulfilment of obligations and responsibilities under the agreement without the support of the
developed world. The provision does not however lock other states that are non-developed from

56
The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) Art 8

29
contributing to the support of developing states. It provides that they may contribute if they wish
to do so. Their contributions under the agreement and are only contributions of good will.57

The agreement establishes a mechanism to contribute to the mitigation of GHGs emission and to
support sustainable development. The aims of the mechanism include delivering overall
mitigation to global emissions; contributing to the reduction of emission levels in the host party
states that will benefit from the mitigation activities resulting in emissions reduction that can be
used by another party to fulfill its nationally determined contribution.

It also aims to promote the mitigation of greenhouse gas emissions while fostering sustainable
development and to incentivize and facilitate participation in mitigation of GHG emission by
public and private entities authorized by respective parties.
These provisions under the protocol emphasize the need to achieve a sustainable development
regime. The biggest factor under the provisions are the need to ensure that the future of earth is
protected and that posterity will enjoy the facilities that are abundant to us.

Parties to the agreement are encouraged to recognize the importance of integrated, holistic and
balanced non- market approaches in assisting the parties achieve their nationally determined
contributions. The approaches are aimed at enhancing opportunities for the coordination across
instruments and relevant institutional arrangements and the mitigation and adaptation ambitions.
Further, they enhance public and private sector participation in implementing nationally
determined contributions.58

Education, training, public awareness, public participation and public access are to be chief
concerns for the parties. The parties to the agreement acknowledge that the fight to achieve an
emissions free environment can only be achieved with the support of the citizens of the world.
To achieve this, the agreement obligates parties to respond appropriately to ensure that
education; ad training on Climate Change, its effects and causes are imparted to their respective

57
Hellen Briggs, ‘Global Climate Deal: In Summary (BBC 12 December 2015) http://www.bbc.com/news/science-
environment-35073297 accessed 20 December 2016
58
‘Outcomes of the UN Climate Change Conference in Paris’ (Center for Climate and Energy Solutions 2015)
https://www.c2es.org/international/negotiations/cop21-paris/summary accessed 16 December 2016

30
citizens. Parties should also encourage public participation in deriving policies on the mitigation
and reduction of emissions into the environment.59

The agreement establishes a mechanism to facilitate the implementation of the obligations and
promote compliance with the provisions of the agreement. The mechanism is controlled by a
committee of experts, which is required to put special consideration to the national capabilities
and circumstances of the parties in fulfilling its mandate under the agreement.60

The protocol further creates an enhanced transparency framework for action and support, which
will work on building mutual trust and confidence among parties. It also promotes effective
implementation of the agreement. The body builds on and enhances transparency mechanisms
under UNFCCC. Its purpose is to provide a clear understanding of climate change action in the
light of their capacities. It further requires parties to report regularly on the financial support,
technology transfer and capacity building support needed and received.61

The agreement provides that it will enter into force 30 days after the date on which at least 55
parties of the COP accounting in at least 55% of the total global Greenhouse gas emissions have
deposited their instruments of ratification, acceptance, accession and approval with the
depositary. The agreement entered into force on 4 November 2016.62

59
Charlotte Streck, Paul Keenlyside, Moritz Von Unger, ‘The Paris Agreement: A New Beginning’ (2016) Vol 13
Journal for European Environmental and Planning Law 3
60
The Paris Agreement and Beyond: International Climate Change Policy Post 2020 (Harvard Project on Climate
Agreements 2016) http://www.belfercenter.org/sites/default/files/legacy/files/2016-10_paris-agreement-
beyond_v4.pdf accessed 20 May 2017
61
The Paris Agreement and Beyond: International Climate Change Policy Post 2020 (Harvard Project on Climate
Agreements 2016) http://www.belfercenter.org/sites/default/files/legacy/files/2016-10_paris-agreement-
beyond_v4.pdf accessed 20 May 2017
62
The Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) Art 21

31
CHAPTER THREE: THE EFFECTIVENESS OF THE CLIMATE
CHANGE LEGAL REGIME
The subject of climate change received very wide criticism when it came to regulation.
Opposition came from various quotas but still it required there was no refuting that climate
change is a major problem. It was acknowledged that implementing the intended regulation
would result in parties incurring costs. At the time the international instrument were being
discussed, the parties were unaware of the exact nature of the costs that would result. To cushion
parties from the costs associated with implementing, the parties created provisions that were
aimed at facilitating a smooth implementation process and leading to the success of the
instruments.63

Climate change being a big problem requires that enough measures are put in place to effectively
deal with it. To date, a lot has been done on the international arena to ensure that cooperation
among states is encouraged, as global warming is not a single state’s problem.

The idea and framework of the UNFCCC followed the settings of the Vienna Convention on
ozone depleting substances. The idea being to agree on a convention followed by protocols that
carried the full intentions of the convention. Like the Vienna convention, the UNFCCC does not
provide for definite obligations, as its provisions are general in nature. However, the protocols
have definite obligations.64

For any form of success to be achieved it was imperative that states cooperate. This was
achieved through creating incentives for developed states to join the ambit of the convention.
This was done through creating mechanisms that facilitated the relaxation of some of the
obligations under the convention. Developing countries were also given incentives to join the
convention. This was facilitated by creating financial provisions. it was the view of the
negotiators of the UNFCCC that they should cushion developing states from the expenses that
would have arisen from the implementation of their obligations under the convention. This
chapter will establish the successes of the instruments. Further, it will identify specific provisions
and facilities that are aimed towards achieving success in combating the climate change problem.

63
Bruce Pardy, ‘Kyoto Protocol: Bad News for the Global Environment, (2004) 14 Journal of Environmental Law and
Practice 27
64
ibid

32
3.1. SUCCESSES OF THE KYOTO PROTOCOL
The Kyoto protocol as drafted did not provide for much. Many skeptics warned of a system that
would be less effective as opposed to its predecessors. The negotiators of the protocol were
against a regulation-based system. They wanted a voluntary based one that was enshrined in the
market that would create incentives for industry to commit to the reduction requirements. To
ensure greater compliance and efficiency, the parties devised three mechanisms that were aimed
at encouraging sustainable development and reduce emission of GHGs among the parties. These
mechanisms are discussed below;

3.1.1. CLEAN DEVELOPMENT MECHANISM


The Clean Development Mechanism (CDM) facilitates developing states to join and participate
in climate change mitigation. The workings of CDM allow industrialized states to invest in
projects that will reduce, control or mitigate the effects of climate change. CDM creates
incentives for the developed states since they gain Carbon Credits that are used by the developed
state to offset their Emission Reduction Requirements.65

CDM provides an opportunity for developing states to achieve sustainable development and
additional funding to improve compliance with climate change laws. It is through this
mechanism that carbon has become a tradeable commodity. This is achieved by reducing carbon
into projects under the CDM and therefore resulting into a carbon credit. These has created
certified emissions reductions (CERs) that are calculated in tons of CO2. CDM allows states to
buy emission reductions arising out of implementing projects at developing state countries.
Through these projects, such states are able to meet their emission reduction obligations while
developing states gain from financial assistance and other benefits that arise from the projects
such as revenue, and development. For a project to be eligible for funding under the CDM, it has
to be a project that contributes to sustainable development in the host state keeping in mind the
need to preserve the environment for posterity. It also needs to be a project that results in

65
Christina Voigt, ‘The Deadlock of the Clean Development Mechanism: Caught Between Sustainability,
Environmental Integrity and Economic Efficiency’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)

33
reduction in emissions, which must be additional to any that would have occurred without the
project and must have measurable benefits.66

3.1.2. STEPS INVOLVED IN A CDM PROJECT


A CDM has to first be identified by the host and investor. This involves describing and making
the initial estimates of the project of the project. This can include a rough estimate of what the
project will cost.
A project design documents are the prepared. These documents provide for the location, size,
financial requirements and the viability of the project. The project design documents then
undergo validation by a United Nation authorized auditor to confirm the information provided.
The host country then has to view the documentation and finally decide whether to approve it
and once the project has been approved, the executive board of the CDM then registers the
project.
While the project is undergoing implementation, emission reductions during that period are
monitored to help ascertain the emission reductions units from the project and once implemented
it undergoes certification and emission reductions are issued.
The first CDM project was registered on 8 March 2005 with the host country being India. The
UK and Switzerland were the investors of the project. By 2011, the CDM board had approved
2,703 projects with an estimated CER of 419,622,727 units. Most of the projects during this
period were concentrated in East Asia and Latin America. The projects registered in Africa,
which has the largest number of developing states, was negligible. The value of Carbon market
under CDM has largely increased.67

3.1.3. EMISSION TRADING


Emission trading is the system that bases on agreed reductions targets that define overall volume
of permissible emissions available for trade.68 This involves the creation of markets that trade in
carbon. This derives from article 17 that allows parties with excess emission units to sell the

66
Anil Gupta, ‘An Assessment of Success of Clean Development Mechanism of Kyoto Protocol in Climate Change
Mitigation and Sustainable Development’ (2012) Vol 1:8 International Journal of Social Science & Interdisciplinary
Research 42
67
Anil Gupta, ‘An Assessment of Success of Clean Development Mechanism of Kyoto Protocol in Climate Change
Mitigation and Sustainable Development’ (2012) Vol 1:8 International Journal of Social Science & Interdisciplinary
Research 42
68
Hermann E. Ott, Wolfgang Sachs, ‘Ethical Aspects of Emission Trading’ (Wuppertal Institute for Climate,
Environment and Energy September 2010) www.wupperinst.org accessed 14 December 2016

34
excess to other parties who have or anticipate that they will go over their allowed required
emissions.69

The European Union (EU) launched the world’s first emission trading scheme in 2005, known as
the European Union Emission Trading Scheme (EU ETS). This system covers about 11,000
power plants. By the start of 2016, the ETS covered all 28-member states in the EU, and had
been approximated to cover about 45% of the total GHG emissions in the EU. What is unique
about this system is that the EU as a block implements it. During the negotiations that led to the
adoption of the protocol and thereafter, the EU had intimated its intention to implement the
provisions of the protocol as a block. This was reinforced by the fact that the EU had on the
onset started to device regulation and legislation that would facilitate in combating climate
change.70 The European Union hopes to reduce emissions by 20% against 1990 emission levels
by 2020 and a further 95% by 2050. The Emission Trading system under the EU is liberalized to
allow direct contact between buyers and sellers. The emission trade thus giving sufficient
incentives to industrial players. About 40 million assigned amount units are traded daily in the
EU. Other Emission Trading Schemes have been created. Among them are the New Zealand
Emission Trading Scheme (NZ ETS), Chicago Climate Exchange and the Montreal Climate
Exchange.71

3.1.4. JOINT IMPLEMENTATION


Joint implementation originates from article 6 of the protocol. This mechanism facilitates
projects between developed states. To be eligible, the project must get the approval of the host
state. The project should also be one that will influence GHG emission reduction.72

Joint implementation projects are categorized into two types. They are based on the eligibility
requirements of host parties. They are categorized as track one and track two projects. Track one
projects are those where the host party meets all eligibility requirements to transfer or acquire
emission reduction units and verify its emission reductions. Track two projects are those where

69
Neelima Naik, Seema Unnikrishnan, Anju Sigh and Indrayan Nimkar,’Role of Emission Trading and Clean
Development Mechanism in Achieving Clean Production’ (2016) Vol 7:11 International Journal of Environmental
Science and Development 843
70
Neelima Naik, Seema Unnikrishnan, Anju Sigh and Indrayan Nimkar,’Role of Emission Trading and Clean
Development Mechanism in Achieving Clean Production’ (2016) Vol 7:11 International Journal of Environmental
Science and Development 843
71
ibid
72
ibid

35
the host party does not meet all eligibility requirements then in this instance verification of
emission reductions is done through Joint Implementation Supervisory Committee (JISC) to
determine if relevant requirements have been met. By October 2015, 597 track one projects had
been implemented in the EU with 2 track two projects. Ukraine has hosted the largest number of
Joint Implementation projects with 251 projects as of October 2015. Belgium and Romania had
the least with 2 projects each.73

73
ibid

36
CHAPTER FOUR: THE SHORTCOMINGS OF THE CLIMATE CHANGE
LEGAL REGIME
Climate change legal regime has endeavored to combat climate change. However, they present a
few shortcomings. As such, the process of eradicating emissions is slowed down. Reports
indicate that the USA is projected to pull out of the Paris agreement.74 This is set to weaken the
resolve of other parties since the USA is the second largest emitter of greenhouse gases.

The role of states is an important facet in climate change mitigation. States are the primary
subjects of International Law. It is therefore up to states to implement obligations under
International Law. This means that when a state breaches its International obligations then it is
said to have done an internationally wrongful act. The International Law Commission draft
articles on responsibility of states for internationally wrongful acts provides for this proviso. It
provides that every internationally wrongful act entails the state responsibility of the respective
state. This means that the said act is then attributed to the state. For an act to be wrongful, it
should constitute a breach of an obligation and must be attributable to the state under
international law.75

This in essence means that states should endeavor to ensure that their citizens do not commit acts
that would mean a breach of a state’s international obligations. Under climate change mitigation,
responsibility of a state should be for that portion it is responsible for causing. This is however
not the path climate change regimes have taken. Many of the enforcement mechanisms under the
regimes are considered soft and therefore not enough in ensuring compliance. The major
question remains, how do you enforce damage or loss acquired due to climate change?76

74
Rob Crilly ,”Donald Trump pulls US out of Paris climate accord to 'put American workers first(The Telegraph 2
JUNE 2017)
‘http://www.telegraph.co.uk/news/2017/06/01/trump-pull-paris-accord-seek-better-deal/ accessed 20 MAY 2017
75
Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted 2001)
76
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)

37
This chapter will interrogate the inadequacies witnessed in the climate change legal regime.
Further, it will interrogate various avenues that can be taken to improve implementation of the
legal regime and effectively improve efficiency in their application.

4.1. THE INADEQUACIES OF THE KYOTO PROTOCOL


UNFCCC and the Kyoto Protocol. Most of the language used in the instruments is largely vague
to the extent that the obligations imposed are not clear. Some provisions of the protocol also tend
to create problems. However, the main contribution to the lack of effectiveness of the regimes is
due to the political unwillingness to commit. Most states view such measures as those that will
hurt their economies.77

Developed countries are at times reluctant to transfer new technologies to developing states and
have charged high prices for transferable technology making developing states unable to acquire
necessary technology. Developing states have therefore had to further impoverish their resources
such as forests due to this. The protocol also lacks enforcement mechanisms to ensure parties
fulfill their obligation. In this regard, it has no punishment mechanism for non-compliance78 in
respect to some states that chose to neglect their treaty obligations.

The Kyoto Protocol does not express emission targets in terms of limits but rather offers each
party targets for reduction, which do not play an effective role in reducing GHG emissions. Due
to this, CBDR principle then becomes ineffective since no states share the same targets and if
any they are quite minimal. The principle of sustainable development has in effect been
criticized since its implementation process tends to rely more on development at the cost of the
climate.79

4.2. CDM PROJECTS IN AFRICA


Most of the CDM projects are being carried out in states where they are less needed. Investors
decide on returns on investment and not on the needs of the communities and states where the
projects are to be implemented. Over the last years since the establishment of the CDM, Africa

77
Zhongfa Ma, ‘Effectiveness of the Kyoto Protocol and Consummating the Legal Institution for International
Technology Transfer’ (2010) Vol 6:4 Asian Social Science 1
78
Bruce Pardy, ‘Kyoto Protocol: Bad News for the Global Environment, (2004) 14 Journal of Environmental Law and
Practice 27
79
Chris Peloso, ‘Change Protocol: Applying the Lessons Learned from the Success of the Montreal Protocol and the
Ozone Depletion Problem’ (2010) Vol 25:2 Journal of Land Use 306

38
has had the least amount of projects under the mechanism. This in effect means that states in
Africa are benefitting less from the mechanism.80 CDM initiatives should be taken in states
where such investments are really needed and should not concentrate on states where better
returns on investments would be received.81

4.3. ENFORCEMENT
The protocol does not have enforcement mechanisms that are adequate in case of breach. This
creates room for member states to breach provisions of the protocol. The protocol should create
proper enforcement mechanisms that would punish non- compliance with treaty obligations.
These provisions should be strict in nature to advance the intentions of the protocol.82

4.4. EMISSION TARGETS


Emission targets under the Kyoto protocol have not been properly defined.

The protocol should also express emission targets in terms of limits such as those in the Montreal
Protocol. This would work to quantify GHG emission obligations, and in effect become more
effective.

4.5. ADAPTATION
Adaptation is any action taken towards adjusting to changing climatic conditions. Negotiators of
the Kyoto protocol did not want to include adaptation provisions into the text. The idea behind
this was that they did not want to be seen as parties that did not want to fully commit to the
mitigation of climate change. However, ensuing climate change legislation has added adaptation
into their provision. Adaptation is important in helping to ensure that current climate change
effects are dealt with and that they do not or are not allowed to become more harsh. These
adaptive measures include building flood blocks on islands.

80
Jason M. Patlis, ’The Multilateral Fund of the Montreal Protocol: A Prototype for Financial Mechanisms in
Protecting Global Environment’ (1992) Vol 25:1 Cornell International Law Journal 181
81
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
82
Zhongfa Ma, ‘Effectiveness of the Kyoto Protocol and Consummating the Legal Institution for International
Technology Transfer’ (2010) Vol 6:4 Asian Social Science 1

39
4.6. VIEWS ON THE PARIS AGREEMENT
The Paris Agreement has only recently come into force and it is therefore important that the full
letter of the text be upheld to realize its full impact. Not much can be said about the agreement
until the full extent of its force has taken shape. The agreement carries a very promising outlook
and it is up to the member states to ensure its success. The agreement largely settles on the need
to enforce adaptive as well as mitigation measures on climate change and its effects. In this
regard, cooperation is highly encouraged among states to ensure that communities around the
world have and are able to deal with the impacts of climate change. The agreement has however
come under attacks with the United States of America under new leadership threatening to pull
out from the deal. However, this is just speculative, as no official communication on the path the
USA intends to take on this subject has been communicated. However, steps by the current
president to encourage use of coal and other fossil fuels seems to lead to the conclusion that the
USA might be taking a step back from the deliberations of the agreement. Their involvement is
highly important since they are among the largest emitters of GHGs in the world. Any attempt to
fulfil the will of the UNFCCC must be inclusive of the USA.

4.7. CUSTOMARY INTERNATIONAL LAW


The ILC articles are important in the enforcement of claims under climate change. They apply to
trans boundary claims, as is the case with Climate Change. Emissions from one state can spread
towards another state and at the same time, their effects felt in a different location. In the Trail
Smelter Arbitration between Canada and USA, A tribunal was set up by Canada and the United
States to resolve a dispute over timber and crop damages caused by a smelter on the Canadian
side of the border. The tribunal decided that Canada had to pay the United States for damages,
and further that it was obliged to abate the pollution. In delivering their decision, the tribunal
decided that no State has the right to use or permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another. Or the properties or persons therein, when
the case is of serious consequence and the injury is established by clear and convincing
evidence..." The case was landmark because it was the first to challenge historic principles of
international law, which subordinated international environmental duty to nationalistic claims of

40
sovereignty and free-market methods of unfettered industrial development.83 Burden is therefore
on the claimant state to show that damage is caused or is about to be caused by the other state.84

4.8. HUMANITARIAN AND HUMAN RIGHTS LAW


Many of the environmental effects can be a cause of human rights limitations. They include loss
of livelihoods, displacement and loss of food. Human rights law can be used as a way to litigate
the damage caused by climate change. This has been effected through the Lopez Ostra Case. On
May 14, 1990, Gregoria López Ostra filed a report before the European Commission on Human
Rights against the Spanish State. She claimed that the State’s failure to take any measures against
the smell, noise and contaminating smokes originated in a solid and liquid waste treatment plant
located a few meters away from her home violated her rights to physical integrity. On August 31,
1993, the Commission stated there was a violation of the right to respect for the home and
private life, but not of the right to physical integrity. In December of the same year, the
Commission referred the case to the European Court of Human Rights (ECHR), which affirmed
the findings of the Commission. The ECHR considered that neither the claimant moving out nor
the closing down of the waste treatment plant changed the fact that the claimant and her family
had lived for years a few meters away from a source of smell and smokes. The ECHR found the
State responsible for violating the right to respect for the home and private life, since serious
pollution can influence an individual’s well-being and prevent him or her from enjoying his or
her home in such a way that his or her private and family life is damaged. The European Court
further stated that the State had failed to find an adequate balance between its interest to promote
the city’s economic development and the claimant’s effective enjoyment of her rights, ordering
the State to pay compensation for damages caused and judicial costs.85

83
Trail Smelter Arbitration, Canada v USA
84
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
85
Lopez Ostra v Spain [1995] 20 EHRR 277

41
Traditionally, international law did not allow individuals to sue over international law claims.
However, this position has changed over the last few years with international courts allowing
individuals to sue on their own capacity.86

86
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)

42
CHAPTER FIVE: CONCLUSION
The biggest problem that climate change is projected to cause is displacing large amounts of
people therefore leading to the highest number of refugees. Estimates indicate that up to 200
million people would have been displaced by 2050. The biggest problem would be how to issue
reparation in such instances. Traditional international law remedies such as damages, restitution
and reparation would not be efficient in such instances. There is therefore need to plan for such
situations as displacement and settlement of refugees.87 This can be done through establishing a
fund under the climate change legal regimes that can offer direct compensation to victims of
climate change.88

There is enough legal documentation in force to cater for climate change. However, the process
is taken back by lack of commitment by many states in implementing their obligations under the
UNFCCC. The legal regime as is can largely promote a climate change free society. However,
this can only be realized when both states and private actors fully commit and cooperate to
actualize this. More emphasis should be put towards creating awareness to remove the idea
behind climate change being a hoax. It is important that the society realize that climate change is
happening and that their efforts and pressure will largely influence the efforts to reduce and
eliminate emissions. A well-informed society is therefore imperative.

Climate change is the biggest problem of this century and it is important that the world work
together to ensure that it is dealt with. Studies show that a large number of the world’s populace
are least knowledgeable about climate change. It is therefore important that much work is put to
ensure populations around the world have enough information on climate change and that they
participate in combating climate change.89

87
Angela Williams, ’Justice Within the International Legal System: Prospects of Climate Change Refugees’ in
Heather McLeod- Kilmurray, Stephen Wood and Yves Le Bouthillier (eds) Climate Law and Developing Countries:
Legal and Policy Challenges for the World Economy (Edward Elgar Publishing Limited)
88
Sumudu Atapatu, ‘Climate Change, Differentiated responsibilities and State Responsibility: Devising Novel Legal
Strategies for Damage Caused by Climate Change’ in Heather McLeod- Kilmurray, Stephen Wood and Yves Le
Bouthillier (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy
(Edward Elgar Publishing Limited)
89
Jolene Lin, ‘Supporting Adaptation in Developing Countries at the National and Global Levels’ in Heather
McLeod- Kilmurray, Stephen Wood and Yves Le Bouthillier (eds) Climate Law and Developing Countries: Legal and
Policy Challenges for the World Economy (Edward Elgar Publishing Limited)

43
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