Legal framework for compliance with international climate change law: the evolution of the compliance mechanisms

The sector of atmospheric pollution in IEL has elicited a great deal of scholarly debate, particularly in terms guaranteeing compliance with norms by using ad-hoc mechanisms. Normative design in this sector has followed the imprint of other ‘framework’ conventions geared to reach consensus amongst States.

Standards set by treaty committees are based on evidence of the harmful effects of climate change and compliance.

Following in the footsteps of the LRTAP, the normative design of the climate change regime included this type of international treaty.[1] The idea behind this was to have a legal umbrella which would facilitate the negotiations in order to set specific legal commitments and targets, enabling States to achieve progress in the field by adjusting them to different stages of the negotiations. With this purpose in mind, the 1992 United Nations Framework Convention opened a new period in the fight against atmospheric pollution, introducing new principles that regulate compliance activities, such as common but differentiated responsibilities.

The combination of different strands in the regulation and implementation of ICCL has given rise to an ad-hoc system. Compliance with ICCL is multi-layered and in continuous evolution (a progress that has been stalled sometimes). Under the UNFCCC there is a scientific strand, along with other legal and political strands that have shaped this evolving system. Reliance on scientific data provided by the Intergovernmental Panel on Climate Change (IPCC) influences the whole compliance system, also known as the scientific pillar. To this end, the IPCC’s main function is to provide support to other treaty bodies in the various areas of the compliance. This strand is interlinked with the other two areas: the political and legal dimensions. Ultimately, the legal strand is a result of the deep interactions occurring in the other two strands (scientific and political).

Noticeably, the nature and dimensions of the problem posed by accelerated climate change requires tailor-made solutions. The environmental issue consists of the protection of the atmosphere as a global common threatened by human-made emissions of greenhouse gases (GHGs), which include not only carbon dioxide but also methane, nitrogen oxides and some Chlorofluorocarbons (CFCs) and Hydrochlorofluorocarbons (HCFCs), leading to an accumulation of gasses and energy, provoking human-induced global warming. The main source of this global warming is fossil fuel-related process, together with other agricultural processes that release some of these GHGs into the atmosphere.

As a starting point, the UNFCCC set out the main principles that govern the ICCL system: intergenerational equity (Article 3.1), common but differentiated responsibilities (Article 3.1) and the precautionary principle (Article 3.3). The manner in which the UNFCCC has set up the distinction between different groups of countries is correlated to the lists included in Annex I and Annex II.

This framework determined legally and in practice differential treatment for the two groups of States. Certainly, Article 4 contemplates different groups of obligations for the parties. First, those applicable to all parties in terms of emissions reduction (Article 4.1), gathering and communication of information (Article 12.1). Second, commitments for developed States and States undergoing a transition to a market economy (‘Parties included in Annex I’) are spelled out as follows: reduction of emissions (Article 4.2) and flexibilities for countries in transition, and communication of supplementary information undertaken only by developed States (Article 4.3, 4 and 12.3) (‘Parties included in Annex IT). Third, there is cooperation and assistance obligations from developed States and the emissions reduction obligations of developing States (Article 4.7). The different categories were built upon the principle of common but differentiated responsibilities, which has completely permeated the institutional set-up. Risking polarisation in terms of compliance, the divide between the two groups has been discussed and revisited to reflect changes in the commitments assumed by States.

At the heart of the compliance, the system relies on the IPCC, tasked with the mission of examining scientific evidence on the subject, assessing it and drafting reports summarising the main findings along with recommendations to the Secretariat. The assessment reports outline the scientific basis, impacts, adaptation and vulnerability and mitigation measures, together with the ‘summary for policymakers’, considered guidelines that need to be endorsed by the representatives of State Parties to the IPCC.11 The various reports that the IPCC has issued have informed the content of climate change policies, though they remain cautious about the role of human activities in contributing to climate change.[2]

The architecture of the international climate change legal system entails legal, economic and political elements. The UNFCC created a COP (Article 7), a Secretariat (Article 8) and the subsidiary bodies: a scientific body (Article 9) and an implementation body (Article 10). Unlike other Secretariats under MEAs, under the UNFCCC, the Secretariat displays a more significant role. The Secretariat is in charge of the follow-up of the commitments. Innovation was harnessed through the introduction of market-based mechanisms and other novel tools with the aim of progressively increasing the participation of the private sector in compliance. For instance, Article 11 establishes a financial mechanism which developed into the ‘Green Climate Fund’; established in 2010, it has the objective of assisting developing countries in reducing their greenhouse gas emissions, enhancing their ability to counteract climate change’s negative impact, and will

have a significant role in the context of the Paris Agreement and keeping the global temperature below two degrees C.[3]

The Compliance Committee of the Kyoto Protocol is made up of two branches: a facilitative branch and an enforcement branch. In turn, the enforcement branch is ‘responsible for determining whether a Party included in Annex I (Annex I Party) is not in compliance with its emissions targets, the methodological and reporting requirements for greenhouse gas inventories, and the eligibility requirements under the mechanisms’.

The 1997 KP spelled out the obligations and provided more detailed commitments, which have evolved into leading commitments in the field of international regulation in air pollution. However, the choice of the legal tools to control greenhouse gas emissions, although adequate on paper, is difficult to implement, as demonstrated by the lengthy ratification process and states’ positions vis-à-vis the commitments. Building an effective international regime to solve climate change-related problems proves difficult as they are deeply entangled with other areas of law, and the causes and effects are rooted in economic activities. Differential state engagement (from committed to reluctant states) remained a problem throughout the implementation of the Kyoto Protocol. Whereas the European Union and its members, along with other industrialised countries, decided to lead the implementation, other parties, like the United States and emerging countries, positioned themselves against hard commitments. A further group of States stayed ‘on the fence’. States leading by example have sanctioned specific systems and legal frameworks, such as the ad-hoc Emissions Trading System (ETS).

In terms of the legacy of the KP, it encompassed a new regulatory approach that remained relevant for a period, namely, from its entry into force until the 2011 Durban Conference. The KP followed the traditional type of framework treaty, as per Article 17 of the UNFCCC; the ratification technique set out in Article 25(1) determined to a long ratification period. According to Article 25(1), the KP had to be ratified by at least 55 states parties to the Convention, including representation from a number of Annex I that accounted for total carbon dioxide emission in the baseline year 1990, representing 55%. Another les-

Climate change 225 son to be learned from its application concerns the lack of flexibility. Emerging economies which would increase emissions during the period were not bound to comply with any specific targets or quantified obligations. Under the KP the regime had a clear focus on the obligations of Annex I States, excluding others (Article 3(1) and Annex B), and this was embodied in the mandate ‘[n]ot to introduce any new commitments for Parties not included in Annex I’.[4] This specific set-in-stone provision and negotiating guideline hinder any possibility to adjust the commitments, so the KP became outdated over time. Such a clause may add a significant hurdle to compliance without allowing for periodical updates of the legal commitments, leaving States with high emission levels (like emerging countries and the US as the ‘big elephant in the room’) off the hook.

The decade under the KP can be called the ‘decade of building up’ of the system, complemented by the adoption of various accords and additional agreements, such as the ’Copenhagen Accord’ and the ‘Cancun Agreements’. Under the KP, the main obligation laid down was to curb GHG identified in Annex A of the Protocol from regulation, taking as year base 1990 except for emissions of certain gases. Emission reduction targets were numerically expressed in order to be fulfilled during a specific commitment period.

The KP brought in innovation by incorporating market mechanisms, further developing the strategy of the Montreal Protocol, adding mechanisms that are more sophisticated based on the idea of trading of emission rights in an ad-hoc institutional structure, which provides for the transfer of emissions allowance from one user (State or private party authorised to do so) to another. These emissions rights are measured in units, ‘assigned amount units’ (or AAUs) and the ‘emission reduction units’ (or ‘ERU’), which are set out in Annex B for listed countries. The emission market facilitates the transactions between those States that are interested in selling the excess and those States which are willing to buy the emission rights.

Considered a game-changer, the 2015 Paris Agreement paved the way for a new understanding of climate change obligations as all contracting States were supposed to submit their nationally determined contributions (NDCs). In a

compare and contrast exercise, the PA represents an evolution of the previous system with a different strategy and variable flexibility in terms of the commitments. When fully implemented, the Committee established to facilitate implementation and promote compliance under the PA will operate under the decision governing its activities.2'1 It remains to be seen if the Committee will enable compliance of all States in light of the NDCs submitted. Its launch is dependent on the election of its members. With regard to the nature of the Paris Agreement, scholars have emphasised the sui generis nature of the Agreement which integrates elements of a diverse legal nature (including soft-law norms) and core provisions.[5]

Differentiation within the compliance system in terms of developing and developed countries has been attenuated by the introduction of the NDCs. Decisions adopted to date only provide for flexibility in terms of procedural deadlines for Parties in view of their domestic capabilities. Nevertheless, developing countries, as a category, are subject to the flexibility provided for in Article 13. Similarly, as a group of countries they are still entitled to financial assistance in order to co-fund their participation in the activities of the Committee. The triggering of the procedures is another important piece of the new system. A distinctive note is the agreement between the Parties about the Committee’s mandate to start non-compliance procedures on its own initiative in certain cases and, in the event of serious and persistent failure, to comply with the transparency guidelines, with the agreement of the Parties.

The strategy followed in the Paris Agreement attempted to reach broad consensus, leaving future details to be determined once the treaty came into force. As a result, the ratification of the Paris Agreement is one of the fastest MEAs. Article 17 of the Kyoto Protocol provided for reliance on emission trading schemes.

The Compliance Committee will be established to scrutinise environmental policy and law, investigate complaints and take enforcement action against public authorities, if necessary, to uphold environmental standards. The Rulebook confirms that the PACC’s powers will cover all climate change legislation and hold governments to account on their respective commitments to reach emissions reductions by the target dates. According to the UNFCCC, this ambition will be supported by championing efficiency-based solutions, helping to demonstrate a commitment to tackle climate change.

  • [1] Anna Huggins, Multilateral Environmental Agreements and Compliance: The Benefits of Administrative Procedures (Routledge 2018). 2 Zerrin Sava?an, Paris Climate Agreement: A Deal for Better Compliance? Learned from the Compliance Mechanisms of the Kyoto and Montreal Protocols (Springer 2019). 3 Navraj Singh Ghaleigh, ‘Science and Climate Change Law - The Role of the IPCC in International Decision-Making’, in Kevin R. Gray, Richard Tarasofsky, and Cinnamon Carlarne (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press 2016).
  • [2] Appendix A to the Principles Governing IPCC Work, Procedures for the Preparation, Review, Acceptance, Adoption, Approval and Publication of IPCC Reports. Adopted at the Fifteenth Session (San Jose, 15-18 April 1999) amended at the Twentieth Session. (Paris, 19-21 February 2003), Twenty-first Session (Vienna, 3 and 6-7 November 2003), and Twenty-Ninth Session (Geneva, 31 August-4 September 2008). 2 AR6 Climate Change 2021: Impacts, Adaptation and Vulnerability, The Working Group II contribution to the Sixth Assessment Report {forthcoming).
  • [3] Green Climate Fund, About GCF, available at https://www.greenclimate.fund/about accessed 1 April 2020. 2 Kyoto Protocol Compliance Committee, Facilitative Branch, available at https://cop23.unfccc. int/process/bodies/constituted-bodies/compliance-committee-cc/facilitative-branch 3 Kyoto Protocol Compliance Committee, Facilitative Branch, available at https://unfccc.int/ compliance-committee-bodies-page accessed 1 April 2020. 4 Kyoto Protocol Compliance Committee, An Introduction to the Kyoto Protocol Compliance Mechanism, available at https://unfccc.int/process/the-kyoto-protocol/compliance-under-the-kyoto-protocol/introduction 5 The 2011 Durban Conference witnessed the split between the States which rejected the assumptions of new commitments, such as Canada, Russia and Japan. 6 Joanna Depledge, Tracing the Origins of the Kyoto Protocol: An Article-By-Article Textual History, Technical paper FCCC/TP/2000/2, UNFCCC (2000), available at https://unfccc.int/ resource/docs/tp/tp0200.pdf accessed 1 March 2020.
  • [4] Berlin mandate, para. II.2.(b). 2 Copenhagen Accord, Decision 2/CP.15, 30 March 2010, DOC. FCCC/CP/2009/ll/Add.l. The ‘Cancun Agreements’, available at https://unfccc.int/process/conferences/pastconfer-ences/cancun-climate-change-conference-november-2010/statements-and-resources/Agree-ments accessed 1 April 2020. 3 Sander Simonetti and Rutger de Witt Wijnen (2009-10-01), ‘International Emissions Trading and Green Investment Schemes’, in David Freestone and Charlotte Streck, Legal Aspects of Carbon Trading: Kyoto, Copenhagen, and beyond (Oxford University Press 2009). Retrieved 11 May. 2020, from https://www.oxfordscholarship.com/view/10.1093/acprof: oso/9780199565931.001.0001/acprof-9780199565931-chapter-7 accessed 1 April 2020. 4 UN Climate Change, Nationally Determined Contributions (NDCs), available at https://unfccc. int/process-and-meetings/the-paris-agreement/the-paris-agreement/nationally-determined-contributions-ndcs#:~:text=Nationally%20determined%20contributions%20(NDCs)%20 are,the%20impacts%20of%20climate%20change accessed 1 April 2020.
  • [5] Article 15, paragraphs 1 and 2, of the Paris Agreement. Further detail was included in decision 1/CP.21 paragraphs 102 and 103. 2 Daniel Bodansky, The Paris Climate Change Agreement: A New Hope? (2016) 110(2) American Journal of International Law, pp. 288-319. Daniel Bodansky and Jutta Brunnee, and Lavanya Rajamani, Introduction to International Climate Change Law (Oxford University Press 2017). 3 20/CM A. 1 Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement, available at https://unfccc.int/sites/default/files/resource/CMA2018_03a02E. pdf, accessed 1 April 2020.
 
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