CHAPTER III: THE EVOLUTION OF THE INTERNATIONAL CLIMATE
3.2. Key steps of the development of the international climate change regime for
3.2.2. The advent of the United Nations Framework Convention on Climate Change
tools to take into account existing disparities and inequalities among states and to foster a better implementation of international agreements”294
It should also be noted in passing that the 1987 Montreal Protocol is one of the pioneer treaties on the issue of differential treatment among countries parties.295 In fact, as put forward by Cullet,296 differential treatment among countries parties to an international treaty erupted due to recent global environmental concerns (such as accidental discharges of oil tankers in the high seas) owing to which the UNFCCC also got adopted as the international legal framework to stabilise greenhouse gas concentrations in the atmosphere at levels that would prevent the world from experiencing any dangerous anthropogenic interference with the climate system.297
3.2.2. The advent of the United Nations Framework Convention on Climate
the atmosphere from interfering with the climate system. To that extent, Article 2 of the UNFCCC provides:
“The ultimate objective of this Convention and any related legal instruments that the conference of the Parties (COP) may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilisation of greenhouse gas (GHGs) concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame that is sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”300
This objective also applies to any related legal instruments that the Conference of the Parties may adopt.301
3.2.2.2. Principles of the Convention
Article 3 of the UNFCCC sets up the following guiding principles that parties should observe in their actions:
o The inter-generational equity principle (Article 3.1.)
o The common but differentiated responsibilities principle (Article 3.1.) o The full consideration to be taken on the special circumstances of developing
country parties. (Article 3.2.)
o The precautionary principle (Article 3.3.)
o The principle of sustainable development (Article 3.4.)
o The principle of international co-operation for climate action (Article 3.5.)
Article 38.1. (C) of the Statute of the International Court of Justice confers the status of the source of international law to the principles of law that are recognised by civilised
300 Article 2 of the UNFCCC.
301 Ibid.
societies.302 In the views of Beyerlin,303 principles may also be the source of emerging legal rules. Dworkin’s explanations helps to better understand the concept “principle of law”, as he first contrasts and further links it from the notion of “legal rule”:
“A legal rule point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion, whereas a principle states a reason that argues in one direction, but does not necessitate a particular decision. All that is meant, when we say that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one way or another. Because of the open-ended character of principles, a government cannot be certain of where they will eventually lead.”304
Principles that are applied under the UNFCCC are all general principles of international law. However, some of them equally apply to sectors other than climate change, while others mostly apply to one sector at a time. Principles such as the international co- operation, and the principle of full consideration to be taken on the special circumstances of developing country parties to a treaty, or even the CBDR, are also found in sectors other than the climate change sector or the environment sector, one find them for instance in commercial agreements.305 Whereas, principles such as the precautionary principle and the polluter pays principle are most specifically applied in the environment field.306 Therefore, from a sector view point, principles that apply to more than a sector at once are transversal principles, whereas those that apply to only a sector at once are vertical principles, as also explained by Kidd307 while discussing on the issue of
302 General principles of law are the third source of international law, as included in article 38 (1) (c) of the Statute of the International Court of Justice. See the Statute of International Court of Justice; available at: http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf (Accessed: 10 April 2016).
303 The Kyoto Protocol for instance illustrates the manner in which the CBDR principle have given birth to concrete rules. See U. Beyerlin 'Different types of norms in international environmental law: policies, principles and rules' in D. Bodansky et al The Oxford handbook of international environmental law (2007) at 442.
304 R. Drowkin ‘Taking rights seriously’ (1978) 136 HPU 24 at 26.
305 For instance, the principle of the most-favoured-nation (MFN) treatment under the World Trade Organisation. Information available at:
https://www.wto.org/English/thewto_e/whatis_e/tif_e/fact2_e.htm. (Accessed: 28 May 2016).
306 M. Kidd Environmental Law 2nd Ed (2011) at 7.
307 “Although different sources indicate that there are a number of distinctive environmental law principles, there appears to be general agreement on only two of these: the polluter pays principle and the precautionary principle.” see Kidd (note 306 above; 7).
environmental laws principles being distinctive principles in the field of international law.
Even if it is not the focus of the present study, the researcher esteems it necessary to summarily explain the meaning of each one of those principles played under the UNFCCC, in order to understand their probable implication in the formation of the new climate change regime.
The inter-generational equity principle, which is the first to be referred to, promotes the protection of the climate for the benefit of present and future generations, as also noticed by Weiss.308 It echoes principle 3 of the 1992 Rio Declaration on environment and development:
“The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”309
Equity in a general sense refers to the quality of being fair or impartial.310 Werner311sees through Equity, ‘The right of developing states to pursue development in the same manner as developed states did’. Moreover, the fact that the UNFCCC mentions
“Equity” only once, whereas the Paris agreement mentions it as much as six times is a clue of its significance to the Paris climate change regime. Also, the Paris agreement chooses to associate it more often with the CBDR-RC principle, perhaps for better significance towards the principle itself? Or else it may be an insistence to put and keep both principles together, and thus avoid any future misinterpretation or misuse of the
308 “Intergenerational equity is a concept that says that humans 'hold the natural and cultural environment of the Earth in common both with other members of the present generation and with other generations, past and future. It suggests that we inherit the Earth from previous generations and that we have the obligation to pass it on to future generations in good condition. The idea behind is not reducing their ability to meet their needs. Economic progress that one generation might bequeath to the following one cannot be used as an excuse to justify environmental degradation by them to generate such a welfare.”
See details on the intergenerational equity in section 5.3.3 below; See E.B. Weiss ‘Our Rights and Obligations to Future Generations for the Environment’ (1990) American Society of International Law 198 200.
309 Refer to note 20 above for the Rio Declaration.
310 Its Synonyms are: disinterest, equitableness, impartiality, fair-mindedness, fairness, justness, even- handedness, objectivity; justice, probity. Information available at:
http://www.dictionary.com/browse/equity (Accessed 13 January 2016).
311 Werner (note 252 above; 166).
CBDR principle as it has arguably been decried in the case of the Kyoto Protocol?312 Various scholars313 agree about the most significant role the CBDR principle has played in shaping the climate change regime for all parties to the Convention, and especially developing countries. The CBDR principle will be the focus of the next chapter of this study.
The second alinea of Article 3 refers to the principle of full consideration to be applied on the special circumstances of developing country parties, especially parties that are vulnerable to the adverse effects of climate change. Here, coalition such as the AOSIS surely finds their source of legitimacy, as well as a great support for action.
The precautionary principle, evoked under alinea 3, then further developed in chapter four is a “pure” environmental law principle, compared to the others listed above.314 It reiterates the need to take action by parties even in a context of insufficiency of scientific certainty, as it was precisely the case in 1992, at the adoption of the UNFCCC.315 The AOSIS group was particularly supportive to the precautionary principle due to their own geographical vulnerability to adverse effects of climate change,316 giving a very good example of what the practical meaning of the precautionary principle could be. During the plenary session of the Intergovernmental Negotiating Committee of the UNFCCC
312 See details in Chapter 5 on the Kyoto Protocol below; Pauw (note 153 above; 2).
313 P.R. Muñoz ‘Principle of Common But Differentiated Responsibilities and its current interpretation problems in the context of the climate change international regulations’ (Unpublished LLM thesis, University of Chile, 2013) 5; available at: http://repositorio.uchile.cl/bitstream/handle/2250/114523/de- rivera_p.pdf?sequence=1; (Accessed: 5 August 2016).
314 Article 3.3 of the UNFCCC: ‘The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost- effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties’; See also Kidd (note 306 above; 7).
315 The first IPCC report released in 1990 was drafted in a time when there were many scientific uncertainties with regard to climate change. That is the reason why no certainty has been advanced with regard to the human induced factor. However, over time more certainty progressively came up.
(Information Available at:
http://www.theguardian.com/environment/climateconsensus97percent/2013/sep/27/global-warming- ipcc-report-humans. (Accessed: 10 August 2016).
316 D. Bodansky (c) ‘United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18 The Yale J. Int'l l. at 501.
(INC/UNFCCC)317 in February 1991, a famous statement delivered by Robert Van Lierop, 318 former Permanent Representative to the United Nations and Chairman of the Delegation of Vanuatu, illustrates the fact:
“For us, the precautionary principle is much more than a semantic or theoretical exercise. It is an ecological and moral imperative. We trust the world understands our concerns by now. We do not have the luxury of waiting for conclusive proof, as some have suggested in the past. The proof, we fear, will kill us.”
The sustainable development principle more or less echoes principle 3 and 4 of the Rio Declaration,319 which reads respectively as follows:
“The right to development must be fulfilled so as to meet equitably developmental and environmental needs of present and future generations.”
“In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.”
During the drafting of the UNFCCC, a battle raged over suitable wordings for this principle, as it also occurred for other issues. With that regard, Bodansky320 explains that the presence of those principles left some developed countries uncomfortable, arguing that the original UNFCCC text that was brought to the negotiation table made no mention of principles. Bodansky further points out that it was a quest from China that insisted for the inclusion expressis verbis of an Article on principles in the Convention, despite the opposition of the USA on the grounds of lack of clarity of its legal status.321 With China’s claim being taken into consideration, the USA insisted alternatively on the
317 The Intergovernmental Negotiating Committee was established by the UN in 1991, with the mandate of negotiating an international convention on climate change. Information available at:
http://unfccc.int/essential_background/items/6031.php. (Accessed: 7 March 2016).
318 Statement at the Plenary Session of the INC/FCCC, 5 February 1991. Information available at:
http://www.unfccc.org (Accessed: 7 July 2016).
319 See note 20 above on the Rio de Janeiro Declaration on Environment and Development.
320 Bodansky (c) (note 316 above; 501).
321 The first country to propose an Article on general principles was China. See Bodansky (a) (note 13 above; 501)
inclusion of the term “inter alia” in the introductive paragraph322 of the said Article, to specify that the list of principles under Article 3 was not to be envisaged as limitative, as there could be more other principles that parties might refer to while implementing the UNFCCC.323
Still during negotiations, developing countries pushed for the recognition of "the right to development” as an “inalienable human right" and that "peoples have an equal right in matters relating to reasonable living standards".324 Developed countries, however, proposed instead the formula: “States have a duty to aim at sustainable development”.
They were pushed by the United States which repulsed the phrase, "right to development", arguing that it was vague and that it could motivate developing countries to claim for financial assistance.325
Besides this, developing countries expressed doubts about the concept of "sustainable development", fearing that the "sustainability" concept could end up being used as a new conditionality on financial assistance, in which case there could be inhibitions on their development goals.326 Fortunately the final provision of the Convention addressed concerns of both parties by saying: "Parties have a right to, and should promote sustainable development".327 The battle around which suitable words to be retained (for the provisions of the UNFCCC) was a more important presage with respect to country parties’ commitments.
3.2.2.3. Parties Commitments under the UNFCCC
Article 4 of the UNFCCC creates differentiated obligations for developing and developed countries. This is in order to achieve the objective of the Convention as
322 The introductive paragraph of article 3.1 states: “In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following”.
323 Bodansky (c) (note 316 above; 501).
324 Ibid at 504.
325 In 1986, the United States voted against the U.N. Declaration on the Right to Development. See the UNGASS Resolution 128, 41st Session 97th plenary U.N. Doc. A/41/53 (1986). Doc available at:
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/41/53. (Accessed: 18 September 2016).
326 Bodansky (c) (note 316 above; 504).
327 Ibid.
enshrined in its Article 2, although commitments are structured in a pretty complicated way:328
o General commitments [Articles 4(1), 5, 6, and 12(1)]: mostly based on the CBDR principle they apply to both developed and developing countries;329
o Specific commitments on sources and sinks of GHG [Articles 4(2) and 12(2)]: apply only to parties listed as Annex I (OECD330 member states and former Eastern bloc);
o Specific commitments relating to financial resources and technology transfer (Article 4(3)), which apply to the parties listed in Annex II (OECD countries). Under those provisions, developing countries do not assume the same commitments as the developed ones; besides that, the general commitments are only qualitative, they relate to matters such as greenhouse gas inventories, reporting, national strategies, co-operation in scientific research, and information exchange.
Under the UNFCCC, member countries of the OECD took on the strongest measures and further agreed to adopt policies and measures that demonstrate their good will in
‘taking the lead’ in addressing climate change. Countries in transition to a market economy were granted ‘a certain degree of flexibility’, in the implementation of their commitments under Article 4.2.
Similarly, to the scenario under the 1985 Vienna Convention and the 1987 Montreal Protocol for the phasing out of the ozone layer depleting substances, the UNFCCC adopted no “specific measures” to address climate change,331 but instead took on
“framework measures” to organise the international response.332 Negotiations therefore had to continue towards more concrete measures and steps.
Nevertheless, it is worth noticing that from the negotiation stages up to the adoption of the final text of the Convention, parties were unanimous on the fact that from an historical point of view, developed countries have played a greater role in the emission
328 Ibid at 505.
329 PW. Birnie et al (a) International Law and the Environmental 3 Ed (2009) at 359.
330 See section 2.1.2 note 126.
331 See section 4.1 below and note 527 above for the definition and more details on framework conventions.
332 Ibid.
of GHG, and that they should accordingly take the lead in combating climate change, with more commitments, compared to developing countries.
Even the preamble of the UNFCCC states:
“Noting that the largest share of historical and current global emissions of GHG has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.” 333
A proposition that developing countries should commit themselves to keep their future net growth of greenhouse gas emissions to the lowest levels possible was abandoned due to the lack of support.334 Countries such as India maintained that there should be no legal obligation for developing countries under the UNFCCC.335 Thus, the Convention included specific commitments for developed countries, with no specific timeframe and no target for emissions limitation.336 Here again, it is worth noticing that the main holdout against the adoption of targets and timeframes was the United States.337 Meanwhile, for a quarter of a century after the adoption of the UNFCCC, the global context of GHG emissions has abundantly evolved, and more actions are needed from all countries.338 It is argued that more than two thirds of cuts in greenhouse gas emissions needed by 2030, will have to come from developing countries in order to stabilise long term greenhouse gas concentrations at 450 ppm CO2-eq or lower.339 Developed countries as a group should by 2020 reduce emissions by 25–40 percent below 1990 levels, while developing countries’ emissions are expected to be reduced by around 15–30percent,
333 See Preamble of the UNFCCC.
334 Consolidated Text Based on Proposals Regarding Principles and Commitments INC/FCCC 3rd Session (1991) Provisional Agenda Item 2(a) U.N. Doc. AIAC 237 I Misc.at 9.
335 See the Statement of India Feb. 6 1991 at 4 (maintaining that "there can be no legal obligation for developing countries").
336 A. Kiss & D. Shelton International Environmental Law 2 Ed (2000) at 514.
337 Ibid.
338 Bodansky (a) (note 13 above, 11).
339 D. Elzen et al ‘Sharing the reduction effort to limit global warming to 2⁰ C’ (2010) 10 (3) Climate Policy 247 at 247.
relative to their baseline levels, even though they are not historically responsible for the current climate change.340
Hence, slowly but firmly came up the question of whether or not there should be, binding emissions limitations upon developing countries as well. The question gained momentum to the extent of becoming one of the burning issues during climate change negotiations after the adoption of the Kyoto protocol.
3.2.3. Overview of negotiations talks towards a new regime for developing