CHAPTER III: THE EVOLUTION OF THE INTERNATIONAL CLIMATE
3.2. Key steps of the development of the international climate change regime for
3.2.1. The era preceding the United Nations Framework Convention on Climate Change
Three dominant reflexes emerged among developing countries during the negotiations of the first climate change treaty that is the UNFCCC. The first was the fear that developing countries could be hampered from any economic development because of the climate change related restrictive measures to be imposed on their weaker economies and products.266 This was expressed by major industrialising countries such as China, Brazil and India. The second comprises the string of environmental damages on geographically disadvantaged countries,267 brought forward by developing countries islands (that later established the Alliance of Small Island States “AOSIS” negotiating group to support their climatic claims).268 The last was in liaison with developing
263 Ibid.
264 Werner (note 252 above; 169); Winkler (a) (note 35 above; 470).
265 Brunnée (a) (note 153 above; 603).
266 This concern was expressed by major industrialising countries such as China, Brazil and India. See E.
Louka ‘International Environmental Law: Fairness, Effectiveness, and World Order’ (2006) 364 Quoting Article 3.4 and Article 5 of the UNFCCC; A. Cosbey ‘Border Carbon Adjustment’ (June 2008) Trade and
Climate Change Seminar at IV. Available at:
https://www.iisd.org/pdf/2008/cph_trade_climate_border_carbon.pdf; (Accessed: 6 May 2016); Bodansky (a) (note 13 above; 23).
267 Ibid Bodansky (a) at 24.
268 ‘The Alliance of Small Island States (AOSIS) is a coalition of Small Island and low-lying coastal countries that share similar development challenges and concerns about the environment, especially their vulnerability to the adverse effects of global climate change. It functions primarily as an ad hoc lobby and negotiating voice for Small Island developing States (SIDS) within the United Nations system, and especially the UNFCCC. It has a membership of 44 States and observers, drawn from all oceans and regions of the world: Africa, Caribbean, Indian Ocean, Mediterranean, Pacific and South China Sea. 39 of them are UN members, amounting to almost 28% of developing countries, and 20 % of the UN’s total
countries’ lack of financial and technological means for mitigation and adaptation actions,269 put up by the Least Developed Countries (LDC).270 Those reflexes, made by countries with different developmental profiles, varying economic situations, and uneven geographical vulnerability,271 later became formal claims of developing countries, and played a role in inspiring the climate change regime in general. The next section describes the few steps back into the days when the current climate change regime was in gestation.
3.2.1.1. Initial climate change awareness
Previously unknown, the climate change awareness arose at the turn of the 20th century.272 The Swedish chemist S. Arrhenius, is regarded as one of the scientific pioneers to have discovered the greenhouse effect, which he found to be in relation with climate change.273 For a short time, his work triggered a great interest for both phenomenon (greenhouse effect and climate change) but especially for the greenhouse effect.274 However, it took almost a century before the awareness expanded worldwide, and concrete political engagements followed, owing to insufficiency of information and
membership. Together, SIDS communities constitute some five percent of the global population. It functions on the basis of consultation and consensus. It does not have a formal charter, neither any regular budget, nor a secretariat, and operates out of the chairman’s Mission to the United Nations.’ Information available at: http://aosis.org/documents/climate-change/ (Accessed: 10 July 2016).
269 Bodansky (a) (note 13 above; 24).
270 Article 4.9 of the UNFCCC States: ‘Parties shall take full account of the specific needs and special situations of the least developed countries (LDC) in their actions with regard to funding and transfer of technology.’ The (LDCs) group comprises 49 countries based on three criteria: low income, weak human assets and high economic vulnerability. Thirty-three are in Africa, ten in Asia, one in the Caribbean and five in the Pacific. At present, of the 49 LDCs, 48 are Party to the UNFCCC. An up-to-date list of the LDCs is maintained at: http://www.unctad.org/Templates/Page.asp?intItemID=3641&lang=1.
(Accessed: 12 July 2016); Information available at:
http://unfccc.int/cooperation_and_support/ldc/items/3097.php (Accessed: 12 July 2016).
271 Developing countries are organised in negotiation groups under the UNFCCC as follows:
1. Group of 77 and China (G77 + China): comprising the BASIC group, the Arab Group, The Bolivarian Alliance for the Peoples of Our America (ALBA), The Independent Alliance of Latin America and the Caribbean (AILAC), the Alliance of Small Island States (AOSIS), The African Group, The group of Least Developed Countries (LDCs). More details available at:
http://www.g77.org/ (Accessed: 20 May 2016).
2. The Coalition for Rainforest Nations (CfRN); more details available at:
http://www.rainforestcoalition.org/ (Accessed: 20 May 2016).
3. The Like-Minded Developing Countries on Climate Change (LMDC); more details available at http://www.cop21.gouv.fr/en/whats-the-use-of-the-country-coalitions/ (Accessed: 15 July 2016).
272 Bodansky (a) (note 13 above; 32).
273 See note 55 above for details on Arrhenius’s presentation; See also Bodansky (a) (note above 13; 24).
274 Ibid Bodansky (a).
to rudimentary means of research at that time.275 Even though more information came up, and knowledge improved, there were still doubts and hesitations for climate change actions due to persistent uncertainties around its nature, origins and drivers.276 As a result, further efforts had to be deployed to dispel these uncertainties.
3.2.1.2. Early climate change initiatives
In 1960, the research of a group of scientists from the Mauna Loa observatory277 established the rise of the atmospheric CO2 and hence confirmed the occurrence of climate change, putting an end to the climate change controversy that until then existed.278 As a result, scientists and political actors started undertaking actions to deal with the new challenge.279
However, despite numerous earlier international environmental moves that eventually led to the 26 principled 1972 Stockholm Conference,280 firmer initiatives towards the current climate change regime started only late 1980s and early 1990s.281 Contributions such as the discovery of the stratospheric “ozone hole” in 1987 followed by the publication of the Brundtland Commission report, Our Common Future282 were noticeable, as they led to the 1992 UNCED in Rio de Janeiro.283 The 1985 Vienna Convention for the Protection of the Ozone Layer and its 1987 Montreal Protocol on
275 Ibid Bodansky (a); S.B. Pralle ‘Agenda-setting and climate change’ (2009) 18 (5) Env. Politics 781 at 782-783.
276 IPCC 2014 (a) (note 56 above; 351-411).
277 The Mauna Loa observatory is located in Hawaii. Scientists engaged in that research were under the supervision of Charles David Keeling. Based on evidence, they scientifically established that the atmospheric concentrations of CO2 were increasing. See Bodansky (a) (note 13 above; 24).
278 Ibid Bodansky (a).
279 Ibid.
280 Various international conferences on global warming were held in the 1980s. See L. Kurukulasuriya
& A.N. Robinson (Eds) Training manual on international environmental law. UNEP/Earthprint (2006) at 111. Available at:
http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1789&context=lawfaculty (Accessed: 2 May 2016); See note 170 above for the declaration of the 1972 United Nations Conference on the Human Environment.
281 Bodansky (a) (note 13 above; 23).
282 Ibid Bodansky; the Brundtland Commission report was published in 1987. Report available at:
http://www.un-documents.net/our-common-future.pdf. (Accessed: 18 June 2016).
283 Conference held from 3 – 14 June 1992 under the aegis of the UN. Report on the conference available at: http://www.un.org/geninfo/bp/enviro.html (Accessed: 16 July 2016).
Substances that Deplete the Ozone Layer284 are also worthy to be mentioned owing to the referential role they played towards the shaping of a climate change regime. 285 The United Nations General Assembly Resolution 43/53 recognising climate change as a
“common concern for mankind” was determined to put the subject on a high profile agenda.286 In addition, both the establishment of the Intergovernmental Panel on Climate Change (IPCC) in 1988,287 and the proclamation of the 1992 Rio de Janeiro Principles added value to the scientific contributions and to the ongoing judicial steps, as both were proven to be particularly enabling to the negotiation and adoption of the UNFCCC in 1992 and the Kyoto Protocol in 1997.
As also was the view of Velders,288 among all the aforementioned influential factors, was the prominent and referral legal role played by the 1987 Montreal Protocol towards the shaping of the climate change regime. The next sections review the 1987 Montreal Protocol contribution.
284 “Since its initial adoption in 1987, the Montreal Protocol has been adjusted six times. Its specificity is that it includes a unique adjustment provision that enables its parties to respond quickly to new scientific information and agree to accelerate the reductions required on chemicals already covered by the Protocol.
These adjustments are then automatically applicable to all its country parties.” Available at:
http://ozone.unep.org/en/handbook-montreal-protocol-substances-deplete-ozone-layer/6 (Accessed: 11 April 2016).
285 “The 1985 Vienna Convention was adopted in 1985. It entered into force on the 22nd September 1988.
In 2009, it became the first Convention to achieve universal ratification, with 197 countries parties. Its objectives were for Parties to promote cooperation by means of systematic observations, research and information exchange on the effects of human activities on the ozone layer and to adopt legislative or administrative measures against activities likely to have adverse effects on the ozone layer. Its specificity is that it includes a unique adjustment provision that enables its parties to respond quickly to new scientific information and agree to accelerate the reductions required on chemicals already covered by the Protocol.
It required not to countries to take concrete actions to control ozone depleting substances. It provides that countries had to adopt a Protocol which sets up actions to phase out substances that deplete the ozone layer.” Information available at: http://ozone.unep.org/en/treaties-and-decisions/vienna-convention- protection-ozone-layer. (Accessed: 11 April 2016).
286 ‘The 70th plenary meeting of the General Assembly of the United Nations, of the 6th December 1988, entitled “Protection of global climate for present and future generations of mankind” declares: ‘…
Recalling also the conclusions of the meeting held at Villach, Austria, in 1985, which, inter alia, recommended a programme on climate change to be promoted by governments and the scientific community with the collaboration of the World Meteorological Organization, the United Nations Environment Programme and the International Council of Scientific Unions, Convinced that climate change affects humanity as a whole and should be confronted within a global framework so as to take into account the vital interests of all mankind, 1. Recognizes that climate change is a common concern for mankind, since climate is an essential condition which sustains life on earth’.
See UNGA Resolution 43/53 A/RES/43/53, 6 December 1988, United Nations Organisation. Available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/43/53; (Accessed: 10 February 2016).
287 See section 2.1 note 58 for details on the IPCC.
288 Velders (note 52 above; 4814).
At the adoption of the 1987 Montreal Protocol, whose mandate was the phasing out of listed ozone depleting substances,289 there was probably no idea of the future role this text was going to play for the climate change regime.290 The fact that both the UNFCCC and the Kyoto Protocol refer to the Montreal Protocol as much as 11 times each is a confirmation of the inspirational role it has played in the adoption of both texts.291 One of the features of the climate change regime that the Montreal Protocol has contributed to influence the most is the share of GHG emissions reduction burden between countries parties to the Kyoto Protocol, based on the CBDR and Equity Principle. Despite the fact that neither the 1985 Vienna Convention, nor the 1987 Montreal Protocol do explicitly mention the CBDR in their text bodies, the principle however is clearly referred to by both treaties,292 while differently affecting to parties the burden of phasing out the ozone depleting substances. Tripp293for instance sees the principle not only present, but overused under the Montreal Protocol, declaring that during the first ten years of its implementation, the Protocol tended to favour the “equity element” more than the protection of the ozone as such.
Once placed back into its 1987 context, Tripp’s remark although striking today, appears more justifiable as at that time, differential treatments towards countries was a relatively new international environmental law concept, as also noticed by Philippe Cullet in his analysis of differential treatments in international law:
“International law has traditionally been based on the principle of sovereign equality among states. As a consequence, treaties have normally provided for similar obligations for all states. In recent decades, the expansion of the international community and the globalisation of environmental and economic issues have led to the search for new legal
289 The chemical substances referred to here are used in solvents, foam, aerosols, mobile air conditioning, refrigeration and fire, of which chlorofluorocarbons are the most prominent. They accounted for 85% of the ozone layer depletion. See Kurukulasuriya (note 280 above; 111); Ibid Velders.
290 Ibid Velders.
291 See chapter 4 on the Kyoto Protocol below.
292 See section 2.3.3.2 above for details about the CBDR principle under the 1985 Vienna Convention and the 1987 Montreal Protocol.
293 Tripp & T.B. James ‘UNEP Montreal Protocol: Industrialized and Developing Countries Sharing the Responsibility for Protecting the Stratospheric Ozone Layer’ (1987) 20 The. NYUJ Int'l L. & Pol 733 at 734.
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