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Climate change has been a trending issue of major concern to all mankind. Change in the world climate system has affected virtually all aspects of human endeavours around the globe. The warming of the global system has increasingly occasioned a lot of natural and anthropogenic disasters ranging from melting of the polar ice caps to flooding, incessant earthquakes and landslides amongst other extreme events. Hence, the need to find lasting solutions to this intractable problem becomes necessary otherwise more devastating harms will occur and human beings who are the major causative agents and victims will continue to suffer. Recourse has been made to climate change laws and policies by setting up the same to either abate the rate of anthropogenic activities carried out by mankind through mitigation or cushion the effects of the climate change by adaptation. However, due to the soft nature of climate change laws and policies which makes them almost unenforceable, recourse has also been had to environmental law and policy by implications to complement or add flesh to the bone of climate change law and policies. Therefore, climate laws and policies which have been specifically devised or designated to control climate change have contributed little or nothing in mitigation of climate change. Environmental law and policy on its part have impliedly been resorted to for the control of climate change but unfortunately have not made any significant headway towards climate change mitigation. This research inter alia evaluates the impacts of environmental law and policy in climate change mitigation. The research also discusses the processes and procedures for climate change mitigation. This research finds out among others that climate change law and policies per se cannot achieve climate mitigation neither do environmental law and policies be sufficient enough to control climate change. We recommend inter alia that anthropogenic global warming and climate change should be incorporated expressly in all environmental laws for the consolidation and unification of both Climate and environmental law and policy as an effective measure to mitigate climate change.



Climate change is a long-term shift in weather conditions identified by changes in temperature, precipitation, winds, and other indicators. Climate change can involve both changes in average conditions and changes in variability, including; for example, extreme events.[1] The earth's climate is naturally variable on all time scales. However, its long-term state and average temperature are regulated by the balance between incoming and outgoing energy, which determines the Earth's energy balance. Any factor that causes a sustained change to the amount of incoming energy or the amount of outgoing energy can lead to climate change. As these factors are external to the climate system, they are referred to as ‘climate forcers', invoking the idea that they force or push the climate towards a new long-term state – either warmer or cooler depending on the cause of change.[2] Different factors operate on different time scales, and not all of those factors that have been responsible for changes in earth's climate in the distant past are relevant to contemporary climate change. Factors that cause climate change can be divided into two categories ­- those related to natural processes and those related to human activity. In addition to natural causes of climate change, changes internal to the climate system, such as variations in ocean currents or atmospheric circulation, can also influence the climate for short periods of time. This natural internal climate variability is superimposed on the long-term forced climate change.[3]


1.1. Background of the Study

It is no longer news that that global climate system is warming uncontrollably due to anthropogenic activities of human beings. Unfortunately, human beings who are the major causative agents of climate are also the victims of its devastating effects. It is against this backdrop we seek to evaluate the causes and effects of this adverse change of our climate system and proffers some processes and procedures by which mankind that are also the causative agents can mitigate the effects of climate change and/or adapt to it. The path of environmental law has come to a cliff called climate change, and there is no turning around as climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this "adaptation deficit" become a concern now actively included in climate change policy debate. Previously, treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success. But we do not expect adaptation policy to play out for environmental law the way mitigation policy has and is likely to continue.


Mitigation policy has been framed as an initiative primarily within the domain of environmental law[4] and thus it will be environmental law that makes the first move and other policy realms that apply support or pushback. By contrast, environmental law does not "own" adaptation policy; rather, numerous policy fronts will compete simultaneously for primacy and priority as people demand protection from harms and enjoyment of benefits that play out as climate change moves relentlessly forward. This makes it all the more pressing for environmental law, early in the nation's formulation of adaptation policy, to find its voice and establish its place in the effort to close the adaptation deficit.[5] Climate change adaptation comprises efforts by states, regional governments, and civil society actors, and individuals to adjust natural or human systems in response to actual or expected climatic stimuli or effects in order to moderate harm or exploit beneficial opportunities.[6]


Climate change adaptation law aims to ‘increase the capacity of humans, other species, society and the ecosystem’ to adapt to the continual transformation of our environment.[7]

Politically, economically and socially marginalised groups within developing states have the lowest adaptive capacity,[8] requiring concerted international action to enable them to adapt to the effects of climate change. Accordingly, the Inter-governmental Panel on Climate Change 2014 Assessment recognised a growing need for ‘institutional and social measures, including the provision of climate linked safety nets for those who are most vulnerable.’[9]


Although the United Nations Framework Convention on Climate Change recognised the necessity of adaptation,[10] the development of adaptation law and policy has thus far lagged behind that of mitigation.[11] The UNFCCC established a procedural requirement for adaptation, directing States Parties to ‘facilitate adequate adaptation to climate change’ through the formulation, implementation and publication of national adaptation measures.[12] The UNFCCC further highlighted several areas of focus for adaptation, including the management and protection of coastal zones, water resources, agriculture and lands susceptible to desertification or flooding.[13]


The Kyoto Protocol built on the UNFCCC by requiring developed States Parties to submit their national mitigation and adaptation programmes to the Conference of the Parties.[14]

The parties to the UNFCCC have since met on a yearly basis, adding incrementally yet minimally to the adaptation framework. The Nairobi Work Programme was established in 2005 under the UNFCCC’s Subsidiary Body for Scientific and Technological Advice to aid all states, particularly developing countries, including the Less Developed Countries and Small Island Developing States, to improve their understanding and assessment of impacts, vulnerability and adaptation to climate change, as well as to make informed decisions on practical adaptation actions and measures to respond to climate change.[15] Moreover, the 2010 Cancun Adaptation Framework (CAF) invited States Parties to the UNFCCC to undertake a variety of adaptation measures, including the formulation of national adaptation plans.[16] Two years later, in Doha, the parties approved the three-year work plan of the Adaptation Committee, an important step in ‘promoting coherence in adaptation under the Convention and providing technical support and guidance to the Parties.’[17] Nevertheless, the international community has struggled to undertake coordinated action to facilitate adaptation to the effects of climate change worldwide.

Climate change adaptation challenges closely align with concerns regarding human security.[18] Climate change threatens various types of human security, and adaptation measures are necessary to grapple with these threats.


Similarly, the Association South East Asian Nations Political-Security Community Blueprint acknowledges that security has ‘political, economic, socio-cultural, and environmental dimensions.’[19] With the Male’ Declaration on the Human Dimension of Climate Change, small island developing states affirmed that climate change poses a substantial and immediate threat to human security by endangering their citizens’ enjoyment of basic human rights, including the rights to life, food and property.[20]


Adaptation challenges are diverse, demanding action on international, national, regional and local scales. Implementing adaptation strategies requires involvement from a wide spectrum of actors in the fields of development, urban planning, rural affairs, conflict management and disaster planning. To this end, Climate change law and policies has played little but no significant roles in achieving mitigation and adaptation due to the complex, unstructured and multifaceted nature of climate change. Hence, recourse has been made to environmental law and policies as a complement to climate change law and policies. However, the existing international environmental law is not designed as it stands to limit emissions or achieve its mitigation. Many areas of Environmental law  though are relevant to the problems raised by climate change but the law as it stands was not created with the challenge of climate change in mind and is not always well suited to address it. In other to address these problems, we shall recommend a holistic overhauling and harmonization of all environmental and climate change-related laws and policies with a view to achieving an effective mitigation and adaptation to climate change.


1.2. Statement of the Problems

The warming of the global system has increasingly occasioned a lot of natural and anthropogenic disasters ranging from melting of the polar ice caps to flooding, incessant earthquakes and landslides amongst other extreme events. Hence, the need to find lasting solutions to this intractable problem becomes necessary otherwise more devastating harms will occur and human beings who are the major causative agents and victims will continue to suffer. Firstly, the problem lies in the insufficiency of climate change laws in climate change mitigation, hence why recourse should be made to the development of environmental law and policy.

Secondly, the enforcement of environmental law and policy is another major problem impeding climate change mitigation.


1.3. Objectives of the Study

This research sets to achieve the following objectives:

1.      To determine the causes and effects of climate change.

2.      To evaluate the impacts of environmental law and policy in climate change mitigation.

3.      To identify the processes and procedure for climate change mitigation.


1.4. Research Questions

1.      What are the causes and effects of climate change?

2.      What are the impacts of environmental law and policy in climate change mitigation?

3.      What are the processes and procedures for climate change mitigation?



1.5. Research Methodology

The methodology adopted in this research is doctrinal and which is based on primary and secondary sources of data collection. The primary sources include International treaties, conventions and Case law. On the other hand, materials such as, journals, contemporary books, Internet materials etc, form the secondary sources of data.


1.6. Significance of the Study

Climate change has been a trending issue of major concern of all mankind. Change in the world climate system has affected virtually all aspects of human endeavours around the globe. The warming of the global system has increasingly occasioned a lot natural and anthropogenic disasters ranging from melting of the polar ice caps to flooding, incessant earthquakes and landslides amongst other extreme events. Hence, the need to find lasting solutions to this intractable problem becomes imperative otherwise more devastating harms will occur and human beings who are both the major causative agents and victims will continue to suffer. Consequently, this research seeks to evaluate how environmental law and policies can by implications complement climate change laws in other to achieve an effective and result-oriented adaptation and mitigation despite the fact the former were not made specifically to address climate change.


1.7. Limitations of the Study

This scope of this research is limited to the impacts of environmental law and policies in climate change mitigation, causes and effects of climate change and processes of climate change mitigation and adaptation.


1.8. Literature Review

The chief international environment instruments dedicated to addressing climate change issues are the UNFCCC, the Kyoto Protocol and the Paris Agreement. These treaties invoke the principles of inter- and intra-generational equity, Common but Differentiated Responsibilities (CBDR), the precautionary principle, the right of all parties to sustainable development, and the need to promote a supportive and open international economic system.[21]

Under the Kyoto Protocol, certain (Annex B) countries must meet emissions reductions targets through national measures to reduce GHG emissions. The Kyoto Protocol also permits Annex B parties to participate in GHG emissions trading for the purpose of fulfilling commitments under Article 3 of the UNFCCC.[22] In addition, the Kyoto Protocol established two other market-based mechanisms to allow countries to meet their targets: the Clean Development Mechanism (CDM) (discussed later in more detail),[23] and Joint Implementation.[24] In 2001, an adaptation fund was established to finance concrete adaptation projects and programmes in developing countries party to the Kyoto Protocol.[25]

The Kyoto Protocol has been widely criticised. Significantly, the US signed the Kyoto Protocol but never ratified it, and is thus not bound to comply with the quantified emission reduction commitments contained in Annex B.[26] In addition, while larger developing countries such as Brazil, China and India (which rank among the top ten GHG emitters) are parties to the Kyoto Protocol, they did not take on binding emissions targets of their own, in line with the Common But Differentiated Responsibilities principle. As a result, the Kyoto Protocol in fact only covered 27 per cent of current global energy-related CO2 emissions in 2012, likely to be now even less.[27]


Critically, in line with the principle of Common but Differentiated Responsibilities, the current climate regime is characterised by a complete divide between developed and developing countries regarding the distribution of the burden of climate actions.[28] Under the Kyoto Protocol, only certain developed countries were legally bound to reduce GHG emissions by specific percentage figures below the 1990 levels by the period 2008–2012. As already described, subsequent emission reduction commitments, for the period 2013–2020, were finally agreed to in 2012, but have not yet entered into force.[29] This ‘precedent’ for assigning GHG emission targets has been criticised by large industrialised developing countries – that are now increasingly expected to have their own targets – for not taking into account historical emissions by Annex B parties.[30] Developing countries argue that the principle of CBDR has also been circumvented by developed states through ‘carbon leakage’, which can occur, for example, when GHG emissions attributable to an Annex I country are ‘outsourced’ by moving industry or production to countries with less strict emissions limits.[31]


Furthermore, the Kyoto Protocol has been criticised for the lack of ambition of its emission reduction commitments and measures to support adaptation to climate change, its overly complicated policy tools and ineffectual enforcement mechanisms.[32] It is widely considered that, unless there is a shared understanding on burden-sharing, it will not be possible to create a legitimate global commitment regime.[33] The most recent COP, held in Warsaw in November 2013, adopted several decisions, most significantly the Warsaw  Framework for REDD+ and the Warsaw international mechanism for loss and damage, as well as agreements on further advancing the Durban Platform, operationalising the ‘Green Climate Fund’ (established in 2010 to promote low-emission and climate-resilient development pathways) and long-term finance.[34] The Warsaw outcomes build on steps taken at COP in Durban and Doha in 2011 and 2012 and informed the conclusion of the Paris Agreement.[35]


The ideals of sustainable development and the transfer of technology and financial resources, added to the goal of cost-effectiveness and flexibility in the choice of mitigation measures, led to the inclusion within the Kyoto Protocol of the so-called flexibility or aforementioned economic mechanisms (Joint Implementation, the CDM and emissions trading), in which developing and developed countries participate together.[36] Although the mechanisms have significant potential to act as important features in helping Annex I parties to achieve their mandatory emission reduction commitments under Article 3 of the Protocol while contributing to social and economic development in developing countries, this is only possible if equity concerns are incorporated into the design of the mechanisms.[37] There has been much criticism of the mechanisms in this regard and in particular the CDM.


The next is Paris Agreement. The Paris Agreement (French: Accord de Paris) is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gases emissions mitigation, adaptation  and finance starting in the year 2020. The language of the agreement was negotiated by representatives of 195 countries at the 21st Conference of the Parties of the UNFCCC in Paris and adopted by consensus on 12 December 2015. It was opened for signature on 22 April 2016 (Earth Day) at a ceremony in New York. As of December 2016, 194 UNFCCC members have signed the treaty, 127 of which have ratified it. After several European Union states ratified the agreement in October 2016, there were enough countries that had ratified the agreement that produce enough of the world's greenhouse gases for the agreement to enter into force.[38] The agreement went into effect on 4 November 2016.

The head of the Paris Conference, France's foreign minister Laurent Fabius, said this "ambitious and balanced" plan is a "historic turning point" in the goal of reducing global warming.[39]

Although the agreement was lauded by many, including French President François Hollande and UN Secretary General Ban Ki-moon,[40] criticism has also surfaced. According to a study[41], current country pledges are too low to lead to a temperature rise below the Paris Agreement temperature limit of "well below 2 °C".[42]

According to James Hansen, a former NASA scientist and a climate change expert, voiced anger that most of the agreement consists of "promises" or aims and not firm commitments.[43]


Institutional asset owners associations and think-tanks such as the World Pensions Council(WPC) have also observed that the stated objectives of the Paris Agreement are implicitly "predicated upon an assumption – that member states of the United Nations, including high polluters such as China, the US, India, Brazil, Canada, Russia, Indonesia and Australia, which generate more than half the world’s greenhouse gas emissions, will somehow drive down their carbon pollution voluntarily and assiduously without any binding enforcement mechanism to measure and control CO2 emissions at any level from factory to state, and without any specific penalty gradation or fiscal pressure (for example a carbon tax) to discourage bad behaviour. A shining example of what Roman lawyers called circular logic: an agreement (or argument) presupposing in advance what it wants to achieve."[44]


Aside from the UNFCCC, Kyoto Protocol, and Paris Agreement, no other multilateral treaties (described as MEAs)[45] are directed specifically at slowing human-caused climate change. Although a number of other multilateral treaties seek to address atmospheric and transboundary pollution, none are aimed at reducing GHG emissions (although they may have a positive impact). For example, the 1979 Geneva Convention on Long-range Transboundary Air Pollution,[46] the 1985 Vienna Convention for the Protection of the Ozone Layer[47] and its Montreal Protocol on Substances that Deplete the Ozone Layer[48] provide international frameworks to tackle global atmospheric pollution. However, these treaties are limited in scope. For example, the 1979 Geneva Convention – the purpose of which is to prevent, reduce and control transboundary air pollution – does not provide concrete commitments to specific reductions in air pollution.[49] A special Rapporteur on the Protection of the Atmosphere has recently been appointed by the International Law Commission to progress draft guidelines in this area.[50]


In addition, all of the multilateral environmental agreements face similar compliance challenges. Pollution and environmental degradation principally result from transboundary, corporate, non-state activities. Therefore, they are more difficult to regulate directly by international law through treaties between states since the corporate entities are not treaty parties and must be regulated by their individual states.[51] Furthermore, many compliance problems result from gaps in economic, regulatory and technical capacity issues: for example, the current IMO regulation of ocean fertilisation and other geo-engineering proposals relies on states’ willingness to embrace the precautionary principle, rather than comprehensive mandatory regulation.[52] Other issues are simply left unaddressed: a significant gap in the current international climate law regime has been the lack of controls on deforestation, now subject to significant work through Reducing Emissions Through Deforestation and Forest Degradation-Plus(REDD+) .[53] Similarly, the existing international framework for regulating states’ maritime borders under UNCLOS may not be designed to deal with changing borders due to sea level rises[54] because it largely presumes a fixed coastline.


Despite the significant progress that International Environmental treaties have made on certain issues, such as regulation of the ozone layer, treaties do have particular weaknesses in effectively regulating climate change mitigation. States can too easily make reservations or derogations in respect of obligations to which they object.[55] Environmental treaties depend on reaching the required number of ratifications to actually enter into force, or may not include the states whose involvement is most vital to resolve the specific issue.[56] Additionally, many environmental treaties do not contain clear, detailed or specific rules, but instead may only lay down a framework of general principles.[57] A major constraint for many MEAs is that they do not provide any forum for filing complaints by non-state actors (with the exception of the Aarhus Convention, discussed in the following sections). Because treaties take years to negotiate, international law is often criticised as not being able to respond quickly enough to the emerging environmental challenges, nor adequately protect the environment even when treaties or customary laws apply.[58] Finally, international environmental treaties have developed on a slightly ad hoc, often sectorial basis, for example in response to specific environmental disasters, rather than through a coordinated approach to reflect the interdependence of environmental issues and solutions.[59]


Accordingly, to date, the UNFCCC and other international treaties have been constrained both in their ability to effectively address the global mitigation and prevention of climate change, as well as in their ability to provide avenues of redress to individuals to secure climate change justice. These weaknesses aside, treaty law is still critical for defining states’ international legal obligations and can successfully regulate difficult cross-border issues, for example, as seen in the UNCLOS. To properly address climate change mitigation and adaptation, the international community needs to strengthen and expand states’ legally binding commitments and compliance under the existing UNFCCC, as well as consider a much broader response.


Some legal scholars like E.U Onyeabor et al[60]  have advocated that some international environmental principles be treated or regarded as customary international laws or customs erga omnes with a view to enforcing climate change laws and policies. Customary international law imposes obligations on states that do not derive from express agreements between states but that are implied through consistent state practice, coupled with an intention to be legally bound (known as opinio juris). Such rules, once they have emerged, are binding on all states under international law.[61] Customary rules of international law have their own limitations: it is always difficult in the short term to demonstrate the existence of consistent opinio juris and state practice required to form customary law.[62] In environmental law, developments in ‘soft law’ are often cited as evidence of developing customary international law (eg, through codes of practice, guidelines, resolutions or declarations of principles).[63]


Various environmental principles are recognised to differing degrees under customary international law. One of the widely recognised principles is the no-harm principle, whereby a state is duty-bound to prevent, reduce and control risk of environmental harm to other states.[64] However, despite wide citation, it has not yet required any ‘general obligation’ to prevent significant transboundary harm or to minimise the risk of such harm outside of a specific treaty regime.[65] Instead, the principle has traditionally been applied in the context of region-specific disputes and has often led only to a generalised holding that states must take environmental norms into account when making policy decisions.[66] Similarly, the principle of sustainable development is widely accepted as an important principle by states, but difficulties with its exact definition mean it is not yet globally recognised under customary international law.[67] Similar difficulties confront the ‘polluter pays principle’, the CBDR principle and the full recognition of the precautionary principle. Though widely accepted in international environmental law and endorsed by states,[68] the application of the precautionary principle remains somewhat unclear because of disagreements over its precise meaning.[69] Under international law, establishing state responsibility for harms caused by climate change, such as extreme weather events or environmental degradation, has traditionally faced many difficulties.


For example, in addition to the limits imposed by concepts of traditional state immunity, there has not historically been an obvious forum before which individuals or groups may seek to challenge states’ actions in respect of climate change: the ICJ is limited to disputes filed by other states; there is no effective judicial body within the UNFCCC process that individuals can apply to; domestic courts are generally limited to applying domestic, as opposed to international, law; and regional human rights courts, although increasingly invoked by individuals for environmental harms, as discussed herein, were not designed with a specifically environmental mandate.


Another key issue is standing: under traditional international law, individuals do not have standing to bring claims against states at the international level.[70] Although there have been positive developments in this regard, such as individuals having standing to bring claims under human rights regimes,[71] much broader acceptance of wide definitions of standing is required.


Notwithstanding these difficulties, various international fora, including the International Court of Justice, the Permanent Court of Arbitration, and the International Tribunal for the Law of the Sea and even the European Court of Human Rights,[72] are already addressing environmental claims against states.[73] Accordingly, despite various attempts to institute a world environment court, climate change litigation is developing in various contexts around the world. The following section canvasses the different attempts made already to introduce a global environmental court – whether through the ICJ, or as an independent ICE – and the constraints of each.

Given the complex, unstructured and multifaceted nature of climate change, existing international environmental law is not designed as it stands to limit GHG emissions or achieve its mitigation. Many areas of international law are relevant to the problems raised by climate change but the law as it stands was not created with the challenge of climate change in mind and is not always well suited to address it. According to Lara Hansen et al, climate change undermines the ambitious goals of environmental laws of the United States.[74] They further opined:

Changes in climate can jeopardize the survival and recovery of endangered species. Climate change is likely to alter hydrologic processes in ways that could undermine the goal of providing clean, safe water resources. Climate change can also exacerbate long-standing air quality issues by increasing the likelihood of unhealthy or ecologically-damaging conditions. The first step is to take our collective foot off our fossil fuel-powered accelerator by implementing prompt and deliberate measures to reduce the emission of greenhouse gases. This first step, while necessary, is not sufficient. We are already committed to significant levels of climate change due to the accumulation of CO2 in our oceans and atmosphere. Achieving conservation and resource protection goals will require developing robust and resilient practices that explicitly anticipate and address the potential for changing conditions. In the years ahead, efforts to mitigate and adapt to climate change will constitute important, new dimensions to these critical pieces of environmental legislation.


Accordingly, E.U Onyeabor et al[75] identified some obstacles associated with litigation and enforcement of environmental laws as possible challenges to climate change mitigation. Such obstacles include inter alia the issues of locus standi, subject matter of jurisdiction and establishing the causal link between climate change and alleged damages to the environment.


Following the above review, it is pertinent to note that   many areas of Environmental law  are relevant to the problems raised by climate change but the law as it stands was not created with the challenge of climate change in mind and is not always well suited to address it. Therefore, the existing international environmental law is not designed as it stands to limit GHG emissions or achieve its mitigation. Hence, there is an urgent need to overhaul and harmonise all environmental and climate change-related laws and policies with a view to achieving an effective mitigation and adaptation to climate change.

[1] Causes of climate change,’ published by service

  Canada; <http://www.climatechange.gc.ca/default.asp?lang=en&n=E18C8F2D-1> Last accessed:  February

  27, 2017.

[2] Ibid.

[3] Ibid.

[4] A form of pollution control on steroids.

[5] J. B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 Envtl. L. 363       2010,pp.363-364.

[6] IPCC, Climate Change 2007: Synthesis Report. Intergovernmental Panel on Climate Change (2007). <https://www.ipcc.ch/publications_and_data/publications_ipcc_fourth_assessment_report_synthesis_report.htm>     Last accessed:  27th February, 2017.

[7]  R. K Craig, ‘Stationarity is Dead’ Long Live Transformation: Five Principles for Climate

Change Adaptation Law’, (2010) 34 Harv Environmental L Rev 9, 39.

[8]  T. G Puthucherril, ‘International law on Climate Change Adaptation: Has the

Time Come for a New Protocol?’ (2012) 8 Macquarie J Int’l & Comp Environmental L 42, 47.

[9]  IPCC, ‘Chapter 14: Adaptation Needs and Options’, Climate Change 2014: Impacts, Adaptation, and

Vulnerability (2014) 2.

[10] See UNFCCC, Art 4.

[11] D Freestone, ‘The International Legal Framework for Adaptation’, in Michael B Gerrard and Katina

Fischer Kuh (eds), The Law of Adaptation to Climate Change: US and International Aspects (American Bar Association, 2012) 603.

[12] UNFCCC, Art 4; Ibid.

[13] UNFCCC, Art 4(1)(e).

[14] Ibid., Kyoto Protocol, Art 10(b).

[15]  See, for example, UNFCCC, Adaptation Assessment: Planning and Practice – An Overview from the Nairobi  Work Programme on Impacts, Vulnerability and Adaptation to Climate Change (UNFCCC, 2010).

[16]   Cancun Agreements, Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative

  Action Under the Convention. Decision 1/CP.16, 4–5 (2010).

[17] See generally Draft Decision -/CP.18: National Adaptation Plans (Advance Unedited Version) at <http://unfccc.int/files/meetings/doha nov 2012/decisions/application/pdf/copl8 naps.pdf>.  Last accessed: 28th  February, 2017.

[18]   UNDP, Human Development Report (UNDP, 1994) 24–25.

[19]   ASEAN Secretariat, ASEAN Political-Security Community Blueprint (2009) 2.

[20]  ‘Malé Declaration on the Human Dimension of Global Climate Change’ (14 November 2007) 2 at  <www.www.ciel.org/Publications/Male_Declaration_Nov07.pdf> Last accessed: 7th February, 2017.

[21] UNFCCC, 29 May 1992, A/AC.237/18 (Part II)/Add 1, reprinted in (1992) 31 ILM 849, Art 3; see the

Kyoto Protocol to the UNFCCC, 10 December 1997, FCCC/CP/1997/L.7/add 1, reprinted in (1998) 37

ILM 22; Vienna Convention for the Protection of the Ozone Layer, Vienna 22 March 1985, UN, Treaty

Series, Vol 1513, at 293; Montreal Protocol on Substances that Deplete the Ozone Layer, 1 January

1989, 1522 UNTS 3; 26 ILM 1550 (1987); UN Rio Declaration on Environment and Development,

14 June 1992, 31 ILM 874 (1992); see also ILA, The Hague Conference 2010, Legal Principles Relating to

    Climate Change; Rafael Leal-Arcas, Climate Change and International Trade, Part 2 (Edward Elgar, 2013).

[22] See n 71, Kyoto Protocol (1998), Art 17.

[23] Ibid, Art 12. The CDM has been criticised for not reflecting real, verifiable GHG emissions reductions

    but instead favouring the cheapest abatement options. See n 149 above, Leal-Arcas, 241–44.

[24]  Ibid. See also n 71, Kyoto Protocol (1998).

[26] The states listed in Annex B that have ratified the Kyoto Protocol are bound to reduce their GHG

     emissions by specified percentages below their recorded 1990 emissions.

[27]  L. Rajamani, J. Brunnée and M. Doelle, ‘Introduction: The role of compliance in

    an evolving climate regime’ in Lavanya Rajamani, Jutta Brunnée, and Meinhard Doelle, Promoting

    Compliance in an Evolving Climate Regime (Cambridge University Press, 2012) 4–5; see also n 149 above,

    Leal-Arcas, 250, for an overview of the top 25 largest CO2-emitting countries in 2009, and at 266 for an

    overview of projected emissions of GHGs in 2025.

[28]  J. Brunnée, ‘Promoting compliance with multilateral environmental agreements’ in Lavanya

Rajamani, Jutta Brunnée and Meinhard Doelle, Promoting Compliance in an Evolving Climate Regime

(Cambridge University Press, 2012) 48–49; Sumudu Atapattu, ‘Climate Change, differentiated

responsibilities and state responsibility: devising novel legal strategies for damage caused by climate

change’ in Benjamin J Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray and Stepan Wood,

Climate Law and Developing Countries, Legal and Policy Challenges for the World Economy (Edward Elgar, 2009)

39; L. Godden, ‘Death, Desire, Modernity and Redemption: Climate Change and Public International

    Environmental Law’ (2009) 10 Melbourne Journal of International Law 31–36.

[29] Doha Amendment adopted by decision 1/CMP. 8 in accordance with Articles 20 and 21 of the Kyoto

     Protocol, at the eighth session of the COP serving as the meeting of the Parties to the Kyoto Protocol held in    Doha, Qatar in December 2012 at:<https://unfccc.int/kyoto_protocol/doha_amendment/items/7362.php>Last accessed: February 4, 2017.

[30]  B. J Richardson and others, ‘Introduction:Climate Law and Developing Countries, Legal and Policy Challenges for the World Economy’ in Benjamin J Richardson, Yves Le Bouthillier, Heather McLeod-Kilmurray and Stepan Wood, Climate Law  and Developing Countries, Legal and Policy Challenges for the World Economy (Edward Elgar, 2009) 8; pp.371–72, 374; n 156, Godden, 31–36.

[31] Birnie and others International Law and the Environment (3rd

    edn, Oxford University Press,  (2009) 357.

[32] Richardson and others (2009), op.cit p.13.

[33] Brunnée (2012), op.cit. p. 49

[34]See< http://unfccc.int/meetings/warsaw_nov_2013/meeting/7649.php>  Last accessed: February 1, 2017.

[35] Ibid. Notably the Durban Platform no longer refers specifically to the principle of CBDR, but instead

   launched a process to develop a protocol, the legal instrument or agreed outcome in 2015, which would

   be ‘applicable to all Parties’.

[36] Y. Farhana and D. Joanna, The International Climate Change Regime: a Guide to Rules, Institutions and

   Procedures (Cambridge University Press, 2004) 136–140, 144–45; David Hunter, James Salzman and Durwood    Zaelke, International environmental law and policy (2nd edn, Foundation Press, 2002) 640–645; Charlotte Kreuter-Kirchhof, Neue Kooperationsformen im Umweltvolkerrecht (Duncker & Humblot GmbH, 2005) 112–14; Anita M Halvorssen, ‘Common, but Differentiated Commitments in the Future Climate Change Regime –Amending the Kyoto Protocol to include Annex C and the Annex C Mitigation Fund’ (2007) 18 Colo J of Int’l Environmental Law & Pol’y 256–257. The CDM is rooted in the principles of CBDR and sustainable development, working as a ‘partnership’ between the two groups of nations, where each group has its own responsibilities aiming at a common goal (Dr Philippe Cullet, ‘Equity and Flexibility Mechanisms in the

     Climate Change Regime: Conceptual and Practical Issues’ (1998) IELRC Working Paper, 11.

[37] Ibid, Cullet (1998), 8.

[38] ‘Paris Agreement to enter into force as EU agrees ratification.’< http://europa.eu/rapid/press-release_IP-16-  3284_en.htm> European Commission. 4 October 2016.last accessed: 29th  January, 2017.

[39] A. Doyle and B. Lewis (12 December 2015). ‘World seals landmark climate accord, marking turn from fossil  fuels.’ Reuters. Thomson Reuters.<http://www.reuters.com/article/us-climatechange-summit-idUSKBN0TV04L20151212#gVKudBATCD0EGdxL.97> Last accessed: 30th January, 2017

[40] Historic Paris Agreement on Climate Change-195 Nations Set Path to Keep Temperature Rise Well Below 2   Degrees Celsius’.< http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/> UN Climate Change Newsroom. United Nations Framework Convention on Climate Change. 12 December 2015. Last accessed: 29th January, 2017.

[41]  published in one international journal Nature in June 2016

[42]  Rogelj and others (2016). ‘Paris Agreement climate proposals need a boost to keep warming well below 2C.’   Nature. 534 (7609): 631–639.

[43] M. Oliver (12 December 2015).James Hansen, father of climate change awareness, calls paris talks ‘a fraud.’.  The Guardian. London, England. <https://www.theguardian.com/environment/2015/dec/12/james-hansen-climate-change-paris-talks-fraud> Last accessed: 27th January, 2017.

[44] M. Nicolas J. Firzli (25 January 2016).Investment Governance: The Real Fight against Emissions is Being Waged by Markets.’ Dow Jones Financial News. <http://www.efinancialnews.co./story/2016-01-25/un-climate-conference-cop21-laurent-fabius-carbon-emission-calpers-calstrs> Last accessed: 4th February, 2017.

[45] See, for example, Convention on the Prevention of Marine Pollution by Dumping of Waste and Other

    Matter and its Protocol, 30 August 1975, 26 UST 2403, 1046 UNTS 120, 11 ILM 1294 (1972); UNCLOS,

    16 November 1994, 1833 UNTS 3, 397; 21 ILM 1261 (1982) (UNCLOS); Convention on Biological

    Diversity and its Cartagena Protocol on Biosafety, 29 December 1993, 1760 UNTS 79, 31 ILM 818

    (1992); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their

    Disposal, 5 May 1992, 1673 UNTS 126, 28 ILM 657 (1989); Convention on International Trade and

    Endangered Species of Wild Fauna and Flora, 1 July 1975, 27 UST 1087, TIAS 8249, 993 UNTS 243.

[46] See <www.unece.org/env/lrtap/lrtap_h1.html> Last accessed: 29th January, 2017.

[47] See <http://legal.un.org/avl/ha/vcpol/vcpol.html> Last accessed: 29th January, 2017.

[49] Birnie, Boyle and Redgwell (2009), op.cit. pp345–46.

[50] S. Murase, International Law Commission, First Report on the Protection of the Atmosphere A/CN.4/667

   (14 February 2014).

[51] Brunnée (2012), op.cit. pp. 47–48.

[52] Ibid.

[53] See  Richardson and others, op.cit. pp. 9–10; , Leal-Arcas, op.cit. 246–

  47, stating that ‘due to continued deforestation in tropical developing countries, developing countries

   today produce more GHG emissions that the developed world’.

[54] See  UNCLOS, parts II and V of UNCLOS codify international law relating to states’ territorial

   seas (12 nautical miles from a state’s legally determined baseline) and Exclusive Economic Zones

   (200 nautical miles from the baseline), where a state exercises control of natural resources in the

   Exclusive Economic Zones. This aspect of UNCLOS was agreed as an effort to encourage the final

   resolution of maritime boundary disputes, and the setting of relatively stable and permanent boundaries.

   See, for example, Achim Maas and Alexander Carius, Territorial Integrity and Sovereignty: Climate Change and    Security in the Pacific and Beyond (2010) 6–8.

[55] See  Birnie, Boyle and Redgwell (2009), op.cit. p. 18.

[56] Ibid, pp.34–37.

[57] See, for example, UNFCCC; Bonn Convention on Conservation of Migratory Species of Wild

 Animals (1979), <www.cms.int> Last accessed: 29th January, 2017 ; Convention on Biological Diversity and   UNCLOS;International Convention on the Regulation of Whaling (1946), 62 Stat 1716, 161 UNTS 72.

[58] See Birnie (2009), op.cit. p. 37.

[59] Ibid.

[60] E.U. Onyeabor and I. Anika and N.J Nwanta, ‘Overcoming Barriers to Claims for Loss and Damage in Climate  Change Litigation,’ Journal of International Affairs and Global Strategy(2016) vol.44,pp.72 and 73 <http://www.iiste.org>  [Last acessed 12th  February, 2017]

[61] See, for example, Ian Brownlie, Principles of Public International Law (7th ed, Oxford University Press,

   2008) 6–12 .

[62] Birnie, Boyle and Redgwell (2009), op.cit.pp 22–25.

[63] Ibid, 34–37.

[64] Initially expressed in the Trail Smelter Arbitration, and most recently recognised as part of the corpus of

    international law relating to the environment in the ICJ Advisory Opinion on the Legality or Threat of Use of    Nuclear Weapons (ICJ Rep 1996 at 20). (‘Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the

   prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and  the prohibition of attacks against the natural environment by way of reprisals.’)

[65] The ICJ espoused this ‘preventive’ dimension of the no-harm rule in Pulp Mills on the River Uruguay

    (Argentina v Uruguay), Judgment, ICJ Rep 2010 (20 April 2010). The ILA, Legal Principles Relating to

    Climate Change: Draft Articles (April 2014), usefully progress this by including in Draft Art 3.5: ‘Where

    social and economic development plans, programs or projects may result in significant emissions of

    GHGs or cause serious damage to the environment through climate change, States have a duty to prevent

    such harm or, at a minimum, to employ due diligence efforts to mitigate climate change impact.’ Also

    Draft Art 7A: ‘States have an obligation to ensure that activities within their jurisdiction or control

    do not cause damage to the environment of other States or of areas beyond the limits of national

    jurisdiction, including damage through climate change.’

[66] See Trail Smelter case (US v Canada), Award 16 April 1938, 3 RIAA 1905, 1965; Corfu Channel case, (UK v   Albania), ICJ Rep 1949 (9 April 1949); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996; Case concerning the Gabčikovo-Nagymaros Project (Hungary v Slovakia), ICJ Rep 1997. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ acknowledged the no-harm rule as a principle of customary international law, but went on to point out that no obligations of total restraint stem from environmental law treaties, and that states must simply ‘take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives’ (para 30). The Court did not define a specific obligation arising from the no-harm principle, rather opting for a case-by-case analysis (para 33).

[67] Birnie, Boyle and Redgwell (2009), op.cit.125–127.

[68] UNFCCC, Art 3; UN Rio Declaration on Environment and Development, Principle

    3 and Principle 15; various formulations of the precautionary principle have also been adopted into

    other international agreements, including: the Montreal Protocol on Substances that Delete the Ozone

    Layer; the Cartagena Protocol on Biosafety,; and the Stockholm Convention

    on Persistent Organic Pollutants, 17 May 2004, 2256 UNTS 119, 40 ILM 532 (2001).

[69] Birnie, Boyle and Redgwell (2009),op.cit. 159–64; Kenneth L Mossman and Gary E Marchant, ‘The

   Precautionary Principle & Radiation Protection’ (Spring 2002) 13 Risk: Health, Safety & Environment

   137. In its 2011 Advisory Opinion on the Responsibilities and Obligations of States, the Seabed Disputes

   Chamber of the International Tribunal on the Law of the Sea stated that the precautionary approach is

   ‘an integral part of the due diligence obligation of sponsoring States’ (in the context of the Regulations

   at issue in that case). In Tatar v Romania, App No 67021/01, Eur Ct HR para 120 (27 January 2009), the

   ECtHR noted that the precautionary principle was part of European Community law, ‘qui “a vocation à

   s’appliquer en vue d’assurer un niveau de protection élevée de la santé, de la sécurité des consommateurs

   et de l’environnement, dans l’ensemble des activités de la Communauté”.’ In addition, the ILA Draft

   Articles on Climate Change n 92 above usefully progresses this by including in Draft Art 7B.1: ‘Where there is a    reasonably foreseeable threat of serious or irreversible damage, including serious or irreversible

    damage to States vulnerable to the impacts of climate change, measures to anticipate, prevent or adapt

    to climate change shall be taken by States without waiting for conclusive scientific proof of that damage.’

[70] See Statute of the International Court of Justice, Art 34 (26 June 1945), available at: www.icj-cij.org/

   documents/index.php?p1=4&p2=2&p3=0&; see also Massachusetts v Environmental Protection Agency, 549 US   497, 127 S Ct 1438 (2007).              

[71] See, for example, Option Protocol I to the International Covenant on Civil and Political Rights (1966),

6 ILM383 (1967); see also regional human rights treaties such as treaties by the IACHR.

[72] The joint dissenting opinion of Judges Costa, Ress, Türmen, Zupančič, and Steiner states ‘that the original text of    the Convention does not yet disclose an awareness of the need for the protection of environmental human rights’ but recognises that the interpretation of the ECHR by the ECtHR has been progressive and‘has given clear confirmation that Article 8 of the Convention guarantees the right to a healthy environment.’(Dissenting Opinion of Judge Costa, Ress, Turmen, Zupancic, and Steiner in Hatton and Others v the United Kingdom, App No 36022/97, Eur Ct HR paras 1, 4 (2003). Although it has not happened to date, it seems that it is possible for the ECHR, without adding any additional rights to the ECHR or its Protocols, to interpret the ECHR in such a way that it includes protection against the consequences of climate change.

[73] Notable decisions of international tribunals on environmental issues include: the ICJ’s advisory opinion on the   Legality of the Use of Nuclear Weapons, its judgment in the case concerning the Gabčikovo-Nagymaros dispute (Hungary v Slovakia) concerning the construction of barrages on the Danube (September 1997), and its provisional measures order in the case concerning Pulp Mills on the River Uruguay, brought by Argentina against Uruguay (July 2006); the WTO Appellate Body’s decision in the Shrimp Turtle case, concerning the circumstances in which the US was able to impose conservation measures under its laws on shrimping activities taking place in four Asian countries (October 1998), the WTO Panel decision in the EC-Biotech case brought by Argentina, Canada and the US challenging the European Community’s import regime for genetically modified organisms (February 2006); and the award of the arbitral tribunal (Permanent Court of Arbitration) in the case concerning the Iron Rhine (Ijzeren Rijn) Railway (Belgium v Netherlands, May 2005).

[74] Hansen, Lara and Christopher R. Pyke. ‘Climate Change and Federal Environmental Law.’ Sustainable  Development Law & Policy, Winter 2007, 26-28, 79.

[75] Op.cit. pp.63-72.

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