This article is written by Thuraya Hatim of University of Khartoum, an intern under Legal Vidhiya.
Abstract
Climate change poses a threat to humans and the environment. It can happen due to deforestation, greenhouse gas emissions, and agriculture. The consequences can be high sea levels, an increase in the teamproure, and deforestation.
In order to stabilize the greenhouse gases in the atmosphere, we need to have legal instruments and frameworks that will regulate the laws for states to follow, and here is where the role of international law comes in. International law provided several treaties like the United Nations Framework Convention on Climate Change (1992), Kyoto Protocol (1997), and Paris Agreement (2015), which are the foundational treaties for climate change mitigation movement. The treaties stipulated that the states had to comply with commitments and obligations to stabilize greenhouse gas levels in the atmosphere.
The effectiveness of global efforts to reduce climate change depends on the political will of states, the involvement of non-state actors, and the capacity to adjust to changing conditions, all of which are rooted in international law.
Keywords
International Law, Climate Change, Treaties, Adaptation, Mitigation, greenhouse gases.
Introduction
Climate change is a topic that has been one of the most concerning worldwide throughout history, and its importance lies in the consequences that it will have if it is not addressed. It will affect everyone. Climate change appears when long-term shifts in temperature and weather patterns occur; this happens naturally, yet in the last centuries, human activities have been the leading cause of climate change. In the era of the evolution of industries, many industries have facilitated and developed people’s lives. However, at the same time, they have affected our environment and caused severe problems like climate change. The causes of climate change are:
- The greenhouse gas emissions: the gases that trap heat in our atmosphere are known as greenhouse gases, and they can cause climate change, such as carbon dioxin, methane, and chlorofluorocarbons. These gases are released by burning fossil fuels for energy, which affects the atmosphere and causes the climate to change.
- Agriculture: agriculture is another serious factor, Farming operations generate substantial quantities of methane and nitrous oxide, which are both powerful greenhouse gases. Livestock, rice fields, and the application of synthetic fertilizers are significant contributors to this.
- Deforestation, which involves cutting down trees from forests for human activities like farming or building, also increases greenhouse gas emissions.[1]
The consequences of climate change include increased sea levels and ocean warming, affecting food production, declining ecosystems’ ability to adapt naturally to climate change, water scarcity, and forest fires due to high temperatures.
The climate change crisis can be solved in many ways, such as mitigating greenhouse gases, planting trees, prohibiting cutting trees, and other ways that help mitigate its consequences. The role of international law in mitigating climate change is crucial. It sets out a framework of treaties like the United Nations Framework Convention on Climate Change (1992), Kyoto Protocol (1997), and Paris Agreement (2015); each of these conventions has a bundle of binding and non-binding commitments that help with climate change mitigation.
Fundamental Treaties and Agreements
United Nations Framework Convention on Climate Change (FCCC)
This convention was adopted at the UN conference in 1992 in Rio de Janeiro and came into force in 1994. This convention is the cornerstone of climate change mitigation law; it sets out many of the parties’ commitments, such as cooperation in research, and lays down a duty for education and public awareness. These commitments are for the sake of stabilization of the greenhouse gases in the atmosphere, to guarantee the economic development, ensure food production, also to allow the ecosystems to adapt naturally to climate change. [2]
The commitments under this convention stick to the principle of Common but differentiated responsibilities, which means that responsibilities vary between developed and developing countries depending on each’s capabilities. In addition, the states must help each other in order to achieve the ultimate goal of the convention. [3]
Kyoto Protocol (1997)
The Kyoto Protocol was adopted at the 3rd UN conference in 1997. The protocol is considered to be a binding commitment of the parties, the protocol’s primary concern is to reduce the greenhouse gas in a defined period of time and puts this obligation for current countries provided in Annex 1, the other countries just have to achieve the obligations stated in the convention.
The Kyoto Protocol’s primary impact could be its introduction of various adaptable mitigation tools, including some designed to leverage the global market mechanism, such as the Emissions Trading System, Joint Implementation, and the Clean Development Mechanism.[4]
Paris Agreement (2015)
The main objective of the agreement is to limit the rise in the average global temperature to significantly less than 2°C higher than pre-industrial levels and to make efforts to restrict the temperature increase to 1.5°C above pre-industrial levels. This legally binding international agreement is characterized by what is called the naturally determined contributions (NDCs), which means that all the state parties must reach the goal of the agreement by the methods that are suitable for them. Thus, it means that it is the first treaty to unite the states together to achieve the same goal.
Commitments and Responsibilities for Climate Change Mitigation
The treaties set out a number of binding and non-binding commitments for the state parties to accomplish; the commitments can be like lay down obligations for education and public awareness and also provide for cooperation in research and systematic observation that set out in the United Nations Framework Convention on Climate Change, or like the commitment to take all the necessary considerations to reduce the greenhouse gas emissions through joint implementation, emissions trading systems, and the clean development mechanisms that were set out in Kyoto Protocol. The commitment in the Kyoto Protocol is a legally binding instrument that forces the countries to take responsibility. If the countries failed to comply with it, that could lead to sanctions under international law.
An example of a non-binding commitment is the naturally determined contributions (NDCs) addressed in the Paris Agreement. Although the Paris Agreement is a legally binding agreement in the field of climate change, the naturally determined contributions are a non-binding commitment to the parties, which depend on the obligations the country will take to achieve the goal of the agreement, and there is no enforcement mechanism here.
The responsibilities of the states are contained in the articles of the treaties, such as taking precautionary measures to prevent climate change, parties should promote for sustainable development, and parties should support developing countries to achieve their goal by providing financial assistance, technology transfer, and other means that are needed for them, this is one of the most important responsibilites that is effective and will help to mitigate the climate change.
Enforcement and Accountability Measures
The role of international law in climate change mitigation does not stop at setting commitments for the parties to follow but also setting Mechanisms for monitoring and enforcing compliance established by international law, like the compliance committee in the Kyoto Protocol, to deal with the cases of non-compliance. Countries established the enhanced transparency framework (ETF) through the Paris Agreement. From 2024 onwards, countries will be required to report openly on their efforts and advancements in addressing climate change, implementing adaptation measures, and offering or receiving support. The framework also includes international processes for reviewing the reports that are submitted. The Enforcement and Accountability measures help enhance international law’s role in climate change mitigation.
Climate litigation
Climate change litigation is a way of preventing climate change mitigation. Cases can be brought against governments, corporations, such as fossil fuel companies, or states for actions that will cause climate change.
A remarkable case in climate litigation is Urgenda Foundation v. State of the Netherlands:
The Supreme Court of the Netherlands ruled in favor of Urgenda, stating that a member state must take preventative action against climate change. It argued that climate change poses a threat to the right to life (Article 2) and the right to health and respect for private and family life (Article 8), drawing on ECHR case law and framing it as a national issue. The Court rejected the Dutch government’s argument that addressing the impacts of climate change depends on the commitments of other major emitters, holding the Netherlands individually accountable for meeting its obligations. Citing the UNFCCC, which mandates all states to reduce greenhouse gas emissions regardless of their size, the Court ruled that the Dutch government must reduce its GHG emissions by at least 25% by the end of 2020 (compared to 1990 levels) to protect human rights. Ultimately, the Court held the state responsible for failing to meet the minimum standard required to comply with Articles 2 and 8. [5]
Another case high profile case is that took place in2015, the case of Leghari v. Federation of Pakistan became a pivotal climate litigation matter in Pakistan. Asghar Leghari, a farmer, brought a case to the Lahore High Court, contending that the government’s insufficient climate policies violated his fundamental rights to life and dignity. Leghari asserted that Pakistan’s inadequate response to climate change had severe repercussions for farming, water resources, and people’s livelihoods. The court’s decision recognized the pressing need for climate action and instructed the government to promptly implement measures to lessen the impacts of climate change. This case underscored the connection between human rights and environmental conservation, emphasizing the government’s responsibility to protect individuals from climate-related harm. Leghari’s case raised awareness about climate justice and the necessity for more robust legal frameworks to tackle climate change on a global scale.[6]
Finally,PSB et al. v. Brazil (on Climate Fund) case:
The Workers’ Party (PT), Socialism and Liberty Party (PSOL), Brazilian Socialist Party (PSB), and Sustainability Network (Rede) have filed a Constitutional Challenge ADPF against the Federal Union, alleging that the Union breached the right to a healthy environment by leaving the National Fund on Climate Change (Climate Fund) inactive from 2019 to 2020.
Established by Law No. 12114/2009, the Climate Fund serves as the primary federal tool for financing climate change mitigation efforts and achieving greenhouse gas emission reduction targets in Brazil.
Recognizing climate change as a constitutional issue, the court referenced Article 225, which guarantees the right to an ecologically balanced environment. Environmental law treaties are regarded as human rights treaties and hold supranational status. The court stressed the principle of prohibiting regression in environmental protection, aiming to prevent the dilution of environmental safeguards through inaction or the elimination of relevant public policies without suitable replacements.[7]
Interlinks between Mitigation and Adaptation
Climate change mitigation measures can negatively affect people. For example, constructing a large wind turbine near someone’s residence, also has an effect on the biodiversity system and landscapes. In these cases, the role of international law does not just stop on the point of mitigating climate change, but also to protect humans from its side effects.
One of the ways to alleviate the side effects of climate change mitigation is to combine it with adaptation measures. In the past mitigation measures alone worked, but now both mitigation and adaptation measures should be done together for a better result.
The present approach acknowledges that both elements play a crucial role in any policy addressing climate change, and they are closely interconnected in both positive way. Initially, actions taken to reduce greenhouse gas emissions in the land and land use sector can also contribute to achieving adaptation objectives. Planting new forests, restoring existing ones, and conserving or rehabilitating mangroves with the aim of capturing carbon can also be part of a strategy to adapt to protecting the land from flooding, landslides resulting from heavy rainfall, and the adverse effects of storms.[8]
Conclusion
Finally, climate change is an issue that needs to be seriously solved because of its harsh consequences. Mitigating and adaptation together can prevent climate change from happening. Mitigating alone is not enough because we have reached the point where mitigating and adaptation should be applied together in order to reduce the greenhouse gas emissions that cause climate change.
International law plays an important role in mitigating climate change by providing conventions and agreements that help with this issue, but there are loopholes in the law that need to be solved by powering the implementation and accountability mechanisms.
Our environment calls for us to stop the harm caused by industrial and other human activities that negatively affect it. If the issue of climate change continues with the ignorance of the states, humans, plants, and animals will be in a bad situation. That is why we need to spread awareness of the importance of climate change and the ways that we can mitigate it.
References
- Chircop, A., Doelle, M. and Gauvin, R. (n.d.). International Law and Policy Considerations for Shipping’s International Law and Policy Considerations for Shipping’s Contribution to Climate Change Mitigation Contribution to Climate Change Mitigation. [online] Available at: https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1004&context=reports [Accessed 14 Aug. 2024].
- Jain, M. (2018). Climate Change and Global Warming: Definition, Causes, and Effects. [online] Science ABC. Available at: https://www.scienceabc.com/social-science/climate-change-definition-causes-and-effects.html.
- Leghari v. Federation of Pakistan – Climate Change Litigation [WWW Document], 2024. . Climate Change Litigation. URL https://climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/
- Lothar Gündling, Law, E., Union, I. and Nations, U. (2005). International Environmental Law.
- Meguro, M. (2020) ‘Litigating climate change through international law: Obligations strategy and rights strategy’, Leiden Journal of International Law, 33(4), pp. 933–951. doi:10.1017/S0922156520000473.
- PSB et al. v. Brazil (on Climate Fund) – Climate Change Litigation [WWW Document], 2022. . Climate Change Litigation. URL https://climatecasechart.com/non-us-case/psb-et-al-v-federal-union/
- Reins, L., and Verschuuren, J. (2022). Chapter 1: Climate change mitigation and the role of law. In Research Handbook on Climate Change Mitigation Law, Cheltenham, UK: Edward Elgar Publishing. available from: <https://doi.org/10.4337/9781839101595.00006> [Accessed 12 August 2024]
[1] Jain, M. (2018). Climate Change and Global Warming: Definition, Causes, and Effects. [online] Science ABC. Available at: https://www.scienceabc.com/social-science/climate-change-definition-causes-and-effects.html.
[2] Chircop, A., Doelle, M. and Gauvin, R. (n.d.). International Law and Policy Considerations for Shipping’s International Law and Policy Considerations for Shipping’s Contribution to Climate Change Mitigation Contribution to Climate Change Mitigation. [online] Available at: https://digitalcommons.schulichlaw.dal.ca/cgi/viewcontent.cgi?article=1004&context=reports [Accessed 14 Aug. 2024].
[3] Lothar Gündling, Law, E., Union, I. and Nations, U. (2005). International Environmental Law.
[4] Reins, L., and Verschuuren, J. (2022). Chapter 1: Climate change mitigation and the role of law. In Research Handbook on Climate Change Mitigation Law, Cheltenham, UK: Edward Elgar Publishing. available from: <https://doi.org/10.4337/9781839101595.00006> [Accessed 12 August 2024]
[5] Meguro, M. (2020) ‘Litigating climate change through international law: Obligations strategy and rights strategy’, Leiden Journal of International Law, 33(4), pp. 933–951. doi:10.1017/S0922156520000473.
[6] Leghari v. Federation of Pakistan – Climate Change Litigation [WWW Document], 2024. . Climate Change Litigation. URL https://climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/
[7] PSB et al. v. Brazil (on Climate Fund) – Climate Change Litigation [WWW Document], 2022. . Climate Change Litigation. URL https://climatecasechart.com/non-us-case/psb-et-al-v-federal-union/
[8] Reins, L., and Verschuuren, J. (2022). Chapter 1: Climate change mitigation and the role of law. In Research Handbook on Climate Change Mitigation Law, Cheltenham, UK: Edward Elgar Publishing. available from: <https://doi.org/10.4337/9781839101595.00006> [Accessed 12 August 2024]
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