International climate law and policy

Climate change is a common concern of humankind. Science discovered the linkages between human activities and global warming at the end of the 19^th century, and the Intergovernmental Panel on Climate Change (IPCC) has published climate reports since 1988, providing scientific evidence of the impacts of climate change. 

While states have adopted national policies to reduce pollution of the atmosphere through greenhouse gases (GHG), efficiently dealing with climate change requires international cooperation and universally coordinated action. Yet, only in 1992 states succeeded in adopting the UN Framework Convention on Climate Change (UNFCCC), which has nearly universal membership with 198 parties – the prerequisite for meaningful climate action.

The UNFCCC’s objective is the “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. While the UNFCCC fails to determine concrete obligations for states to reduce GHGs, it establishes a general obligation to monitor climate change by establishing inventories of GHGs and an annual reporting requirement, which allows for a better understanding of the climate change phenomenon. The most important aspect is, however, that the UNFCCC creates a framework for international cooperation and negotiating further instruments at the annual Conferences of the Parties (COPs).

The 1997 Kyoto Protocol (KP) was the first tangible outcome of the UNFCCC negotiations. It established binding GHG reduction targets, several mechanisms to achieve this goal, and a reporting and monitoring system. The KP, however, raised criticism for its weaknesses. Following the principle of common but shared responsibility, the GHG reduction obligations apply only to industrialised states and countries in transition (“Annex I parties”), whereas the implementation by the large group of non-Annex I parties, such as China, India, or Brazil, is voluntary. 

Overall, the KP only covers about 12% of the global emissions, as several main emitters, such as the US and Canada, are not parties to the KP. Moreover, the KP fails to cover all relevant GHGs. It only entered into force in 2005 and only applied for a limited period. While subsequent COPs could not agree to extend the KP beyond 2012, the increasingly alarming reports of the IPCC resulted in the 2015 Paris Agreement on Climate Change (PA), with 194 parties.

The PA regime requires all states parties to contribute to “holding the increase in the global average temperature to well below 2 °C above pre-industrial levels, and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognising that this would significantly reduce the risks and impacts of climate change”. In addition to climate change mitigation, parties must adopt measures to adapt to climate change and provide financial means for their realisation. In contrast to the KP with fixed GHG reduction obligations – yet for only some parties – the PA pursues a bottom-up approach that permits all parties to determine how and to what extent to contribute to achieving the 2/1.5 °C objectives. This approach ensures that all parties take action but gives them the flexibility to choose the most suitable measures to contribute to mitigating climate change, depending on their national situation.

To implement the PA objective, the PA requires the parties to establish “Nationally Determined Contributions” (NDCs). They typically set a peak year for GHG emissions, interim reduction goals, and a date for climate neutrality and establish how the different sectors of the economy and society contribute to achieving this goal. The parties must communicate their NDCs to the UNFCCC Secretariat in Bonn/Germany and resubmit revised NDCs every five years, representing a progression. The parties implement these obligations on the national level through national climate and energy plans. As both the EU and its member states are PA parties, they implement their PA obligations jointly, in line with the distribution of powers between the EU and its member states to adopt climate law and policy.

The EU submitted the first NDCs on 6 March 2015, followed by the second submission in 2020. In addition, the EU presented its long-term strategy on 6 March 2020, which states that it will reduce emissions by 55% by 2030 and be climate-neutral in 2050. The European Green Deal and the member states’ National Integrated Climate and Energy Plans implement the EU’s NDCs internally. The European Green Deal, in conjunction with the specific emissions reduction targets and strategies, aims to make the EU economy sustainable and climate-neutral by 2050 with intermediate emissions reduction targets. It covers a wide range of measures addressing all sectors of the economy. 

To implement the European Green Deal, the EU legislators have developed a comprehensive legislative framework. A prominent example is the European Climate law, which sets a legally binding net-zero GHG emissions target by 2050. It obliges the EU institutions to develop policies and take the necessary measures at the EU level to meet the target. These measures are complemented by the member states’ national integrated Climate and Energy Plans and national legislation to the extent that the EU does not hold powers to do so.

The UNFCCC and PA regimes are frequently criticised for not effectively addressing the climate change problem. Not only failed the parties in achieving the KP GHG reduction goals, but climate scientists also criticise the NDCs submitted under the PA for being far below what is needed to achieve the PA goal of limiting temperature rise to 1,5/2 degrees above pre-industrial levels. Moreover, the mechanisms to monitor implementation are limited to reporting requirements and fail to hold states responsible for not complying with their obligations. However, the UNFCCC regime must be evaluated in light of its public international law framework.

International law is created by consent of sovereign states, and its obligations are only binding for states that consented. The existing UNFCCC regime reflects the climate obligations that states are currently willing to accept. While states failed to agree in the UNFCCC and the PA on more extensive obligations and enforcement mechanisms to combat climate change, they pledged to monitor the climate change phenomenon and its impacts on their states and to meet annually to identify and coordinate climate change mitigation and adaptation measures. The annual COP meetings provide, due to the nearly universal membership, an effective forum for tackling climate change with all relevant states on board, which is necessary to combat climate change effectively. 

At the COPs, states discuss necessary measures and policies to mitigate and adapt to climate change, pledge to provide financial means for their implementation, and monitor the implementation process. Although the PA only requires states to submit self-chosen commitments in their NDCs, the COPs reflect the increasing awareness of the ever-growing adverse impacts of climate change on humanity, and we can observe rising efforts to combat climate change every year. If the regime imposed stricter obligations, it would come at the cost of fewer states participating, as the KP showed. Less than universal participation would, however, weaken the role of the UNFCCC regime as a forum for climate change action. The existing regime reflects the current consent to address climate change, and it is worth observing the development of the COP negotiations and watching to what extent the increasingly pressing adverse impacts of climate change influence the states’ willingnesses to make stronger commitments.

Further Readings:

• Daniel Bodansky/Jutta Brunnée/Lavanya Rajamani, International Climate Change Law (OUP 2017)
• Petra Minnerop, Climate Protection Agreements, Max-Planck Encyclopedia of International Law, March 2018