CHAPTER III: THE EVOLUTION OF THE INTERNATIONAL CLIMATE
3.3. Evolution of the climate change regime legal approach
3.3.3. The evolution towards a new legal approach after the Kyoto Protocol
countries still proved to be supportive of the top down approach.495 They assumed a leadership role for the implementation of the Kyoto Protocol pursuant to Article 3.1 of the UNFCCC,496 further took necessary steps to comply with Annex I commitments, and later accepted to take on its second commitment period. 497 The United States on the contrary had proved to be supportive of the bottom up approach, to the extent of its withdrawal from the Kyoto protocol’s regime, arguing that it was irrelevant to
489 W.D. Nordhaus ‘After Kyoto: alternative mechanisms to control global warming.’ (2006) 96 (2) The American economic review 31 at 31.
490 Bodansky (b) (note 90 above; 6).
491 Nordhaus (note 489 above; 31)
492 Bodansky (b) (note 90 above; 6).
493 Ibid.
494 Noordwijk Declaration on Atmospheric Pollution and Climate Change (7th Nov 1989) 12 Int’l Envtl at 624.
Available at:
https://books.google.co.za/books?hl=fr&id=z10RAQAAIAAJ&focus=searchwithinvolume&q=NOORD WIJK+DECLARATION. (Accessed: 12 April 2016); Bodansky (b) (note 90 above; 6).
495 Dutt (note 381 above; 276).
496 Article 3.1. of the UNFCCC states: ‘The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.’
497 Dutt (note 381 above; 276).
effectively deal with the climate change challenge.498 Comparable behaviours are seen in Japan and Russia, other supporters of the bottom up approach who complied not with the first commitment period of the Kyoto Protocol, and abstained to join its second commitment period.499
From the top down approach under the Kyoto Protocol, parties ended up shifting into a bottom up approach in the 2015 Paris Agreement. As said above, the Paris Agreement was the culmination of a major regime change process that started under the Bali Road Map,500 formalised under the Copenhagen Accord,501 and made legal under the Cancun Agreement.502 On the course of negotiations leading to the 2015 Paris Agreement, there were evidential signs of the rise of a new legal approach, expected to be different from the so called unfit approach that was under the Kyoto Protocol.503 During key steps of the negotiations, parties were either supportive to, adherent to, or simply tolerant to the bottom up approach as the looming legal form of the future climate change regime, thanks to which a broader acceptance and compliance could be secured.504
From 1992 to 2015, countries parties had greatly learned about adequate responses to administer to climate change.505 They had also learned from some of the mistakes committed in the past while implementing the current climate change regime.506 Could it be that perhaps, the accumulation of experience is constitutive of the rationale behind the climate change regime shift? As mentioned by Kidd507when analysing the historical evolution of environmental law:
“Ten years into the twenty-first century, environmental issues are prominent in people’s minds and they dominate political agendas”
498 J. Urpelainen ‘A model of dynamic climate governance: dream big, win small’ (2013) 13 (2) IEA:
PLE 107 at 125.
499 Ibid.
500 R. Clémençon ‘The Bali road map, a first step on the difficult journey to a post-Kyoto protocol agreement.’ (2008) 17 (1) The Journ of Env & Dev 70 at 70.
501 IISD (b) (note 404 above; 29).
502 Ibid.
503 Refer to chapter five below for more details.
504 Refer to sections 5.1, 5.2, and 5.3 below for more details.
505 See section 2.1 above on the reasons for concern about the climate change.
506 Refer to notes 654 and 655 below for more details.
507 Kidd (note 306 above; 1).
It is therefore understandable that a subject of such a broad concern as the climate change may benefit from various inputs of divers stakeholders and could mature over time. The global context, also, as exposed above has abundantly evolved compared to what it used to be years ago, in the extent that some of the factors that justified parties’ stances in the past are no longer at play today. Similarly, other factors have either gained meaningfulness, or have squarely erupted as new factors at play in the climate change arena.508In this regard, one can admit that the 2015 Paris Agreement may have capitalised from the rich experience of a quarter century of climate change dealings, compared to the pioneering experience of the UNFCCC in 1992.509
An abundant literature is concordant on the fact that the following factors have significantly evolved since the entry into force of the UNFCCC in 1992 and the Kyoto Protocol in 1997 up to the time of the adoption of the Paris Climate Agreement in 2015:
o Climate change awareness: as the subject of climate change is no longer breaking news, but rather a well-known concern in the public opinion, has risen cross sectorial concerns. Fear persists with respect to its unpredictable human, environmental, and material consequences; 510
o Certainty about climate change to be a human induced phenomenon: There is at present 95 percent of certainty that climate change is a human induced phenomenon, from the uncertainty reported by the IPCC in its 1990’s first
508 See section 2.1 above.
509 Refer to notes 654 and 655 below.
510 Kidd (note 306 above; 1); ‘Climate change has eventually become a key subject during countries political campaigning. A 5 July 2016 American post reads as follows: ‘The race for the White House is failing to grapple with the key issues of the day, especially the urgent need to combat climate change before atmospheric changes become irreversible’, a slice of the American electorate believes. As the primary election season turns toward a head-to-head between Hillary Clinton and Donald Trump, there is increasing anger and frustration over the nature of the contest. A Guardian call-out to online readers in the US asking them to reflect on the race so far was met by a barrage of criticism on the tone and substance of the world’s most important election – with the two main parties, individual candidates and the media all coming under heavy fire. The Guardian asked readers to identify the ‘one issue that affects your life you wish the presidential candidates were discussing more’. Resoundingly, the largest group of participants pointed to climate change. Of the 1,385 who responded to the call-out – from all 50 states – one in five expressed discontent at the relative silence from candidates around a subject that they believed to be of supreme and epochal importance.’ Information available at: https://www.theguardian.com/us- news/2016/jul/05/climate-change-voters-2016-election-issues (Accessed: 20 July 2016); an analysis conducted by Greenpeace international reveals that the Governing Party ANC in South Africa has enshrined climate change concerns in its manifesto and has listed the measures they are proposing.
Information available at: http://www.greenpeace.org/africa/en/News/news/Climate-change-renewable- energy-municipal-elections-2016/#note1 (Accessed: 2 August 2016).
assessment report.511 It remains to work and advance the understanding and reduce or eliminate the remaining uncertainties regarding the causes, effects, magnitude and timing, economic, and social consequences of climate change and its various alternative response strategies;512
o The urgency to reduce current GHG emissions, in order to achieve the goal of stabilising the global temperature increase to 2 degrees Celsius at the end of the present century;513
o The increasing trade and economic concerns over climate change: The predominance of trade concerns and economic considerations over environmental and human repercussions of climate change during climate change negotiations;514
o The application of the CBDR and Equity Principle: The increasing call for an interpretation of the CBDR and Equity Principle that takes into account current countries’ respective capabilities,515 the call for the inclusion of new major polluters from developing countries in a binding emissions reduction regime;516 o The progressive fall of the traditional cleavage between developed and
developing countries: applied in the UNFCCC, parties opted for the drop out of the traditional differentiation between countries in any future climate change regime;517
o The progressive abandon of countries’ support to the top down approach under the Kyoto Protocol518 and the emergence of the bottom up approach through the INDC strategy brought by the Bali Road Map and subsequent COP decisions.519
511 See note 126 above.
512 Article 4.1 (g) of the UNFCCC.
513 IPCC 2014 (b) (note 73 above; v).
514 L. Tamiotti et al ‘Commerce et changement climatique’ (2009) OMC & PNUE at vii-xii. Available at:
https://www.wto.org/french/res_f/booksp_f/trade_climate_change_f.pdf. (Accessed: 12 October 2016).
515 Brunnée (a) (note 153 above).
516 Ibid.
517 Refer to section 5.3.7 for more details.
518 Dutt (note 381 above); Diringer (note 368 above; 292).
519 Clémençon (note 500 above; 70).