The international climate change regime

(updated 5 September 2019)

This blogpost deals with the international legal regime “specialized” on climate change, namely the UNFCCC (UN Framework Convention on Climate Change). It was created already a quarter-century ago, in the early 1990s. If measured against its own objective — the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (UNFCCC, Article 2) — it can hardly be described as a successful example of international cooperation. Identifying the reasons for this failure is hugely important, in particular because the UNFCCC was, if anything, set to be a huge success: in the 1980s, the international community had created a hugely successful environmental legal regime for the protection of the ozone layer. The UNFCCC was modelled on its basis, and it was assumed that it would replicate this success story. Moreover, the early 1990s were a period of immense optimism regarding the possibilities of international cooperation: with the fall of most Communist regimes, hopes were high that the cold war would be followed by a period of post-ideological internationalism.

The ozone layer and the Montreal Protocol

Ozone (O3) is a gas found in the atmosphere. It absorbs ultraviolet radiation from the sun, and thereby has a protective effect. In the 1970s, scientists found that certain chemicals that are released into the atmosphere could damage the planet’s “ozone layer”. These chemicals, used for example in sprays, fridges and air conditioners, include:

• CFCs (Chlorofluorocarbons)
• HCFCs (Hydrochlorofluorocarbons)
• HFCs (Hydrofluorocarbons) → HFCs were developed to replace the first two chemicals, as they do not affect ozone; however, they have a very strong greenhouse effect; more below!

Now-President Donald Trump has been adversely affected by the Montreal Convention.

In the 1980s, increasing evidence of ozone depletion was found. When a growing “ozone hole” was identified over the poles, the Vienna Convention for the Protection of the Ozone Layer (1985) was established. Within its framework, the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) was signed. It provided for the phasing out of CFCs first, then of HCFCs. Here are some points of significance about the Montreal Protocol:

• the states commit to first freeze production as well as consumption of the relevant chemicals at the level of 1986, and then to phase them out according to a strict timetable (Article 2)
• A distinction is made between developed and developing countries; the latter can postpone the phaseout for max 10 years, provided they produce only for domestic consumption and stay below a certain absolute limit. Ultimately, however, all countries committed to phasing out the relevant chemicals.
• Ongoing research plays a significant role. The Protocol was signed relatively shortly after the first scientific studies indicated the ozone depletion of the atmosphere, which meant that there were still significant scientific uncertainties left. The legal regime is accompanied by regular assessment reports (the last one is from 2018). The Protocol allows updating the adopted measures in the light of new scientific insights.

The Montreal Protocol constitutes a significant success of international cooperation: since the 1980s, the ozone layer seems to slowly recover.

Interestingly, the ozone protection regime has recently been successfully mobilized for the purpose of climate change mitigation as well. In October 2016, states agreed to amend the Montreal Protocol, phasing out HFCs (however, objections were raised by India and the Gulf States. Read the linked article to find out why!). This is particularly interesting because HFCs do not actually damage the ozone layer, but are powerful greenhouse gases.

The UNFCCC Regime

In 1988, the International Panel on Climate Change (IPCC) was established, and in 1990 it published its first Assessment Report on climate change. The Report provided the basis for the signature of the United Nations Framework Convention on Climate Change (UNFCCC), which was signed in 1992 at the “Earth Summit” in Rio de Janeiro. Its objective is stated in its Article 2:

“The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve […] stabilization of greenhouse gas 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 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.”

In the 1990s, Angela Merkel was minister for the environment. In this function, she served as the president of the first COP, which took place in Berlin. In her opening speech, she held that “[r]adical changes were needed in patterns of behaviour, consumption and production and in lifestyles […].”

Here are a few key points about the Convention:

• The Convention does not set binding emission limits;
• instead, it provides a framework within which the states can develop further agreements (such as the Kyoto Protocol of 1997 and the Paris Agreement of 2015); (Article 17). → it is a framework convention, just like the Vienna Convention discussed above. The Vienna Convention and the Montreal Protocol provided the blueprint for the UNFCCC and the Kyoto Protocol.
• the states meet yearly at the Conference of Parties (COP) — (Article 7). This year, COP25 will be held in Santiago de Chile.
• the COP passes decisions and resolutions.
• it requires the states to establish a “national inventory of anthropogenic emissions” (Article 12), i.e., comprehensive data on greenhouse gas emissions (excluding those regulated by the Montreal Convention).
• it established a distinction between developing and developed countries (the so-called “Annex I countries”, which are the countries listed in the Convention’s Annex I). These countries bear differentiated obligations. → This distinction, which is based on a specific idea of fairness or justice, led to significant conflicts in the subsequent years, as we will discuss later.
• Different to later agreements, the objective of adaptation to climate change did not yet play a significant role in the UNFCCC.

Moreover, the Convention established a number of important principles to guide the process (Article 3), including the following:

• The precautionary principle, which holds: “Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing […] measures [addressing climate change].” This means that states should take measures against climate change even when the science is not yet perfect. Or, in other words: better safe than sorry.
• The principle of common but differentiated responsibilities and respective capabilities. It means that all countries should take action against climate change, but “the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”
• The principle of sustainable development. This means that developing countries should continue to have the right to develop economically.

The last two principles are an expression of conflicting views on climate change held by the developed and developing countries, which shaped the discussions within the UNFCCC framework. The latter were concerned that an undifferentiated obligation to cut emissions would undermine their ability to develop their economies.

This table shows some of the main steps in the UNFCCC regime (from Vogler, Climate Change in World Politics)

Kyoto Protocol

The Kyoto Protocol was ratified in 1997. Its objective was to create binding CO2 targets for the signatory countries. Here are some of the key facts to know about the Kyoto Protocol:

• Only the developed countries (i.e., the UNFCCC “Annex I” countries we discussed earlier) had to commit to binding reductions of CO2 emissions.
• The Kyoto Protocol regulates all greenhouse gases not covered by the Montreal Convention.
• The Annex I countries committed to reduce their emissions in relation to the base year, which was 1990 (except for a few ex-Communist countries, who have a later base year). This commitment was to be fulfilled in the first commitment period (2008–2012). The individual country commitments can be found in Annex B. For example, Australia has 108%, and Austria (like all other EU Member States) has 92% — this means that Australia committed to emit only 8% more than in 1990, whereas Austria (like the other EU member states) committed to reduce its emissions as compared to 1990.
• The Kyoto Protocol does not include emissions from shipping and from aviation. These are supposed to be regulated by the relevant international organizations, the IMO (International Maritime Organization) and the ICAO (International Civil Aviation Organization), respectively.
• The Protocol includes three so-called “flexibility mechanisms.” This includes the Clean Development Mechanism (Article 12), Joint Implementation (Article 4), and emissions trading (Article 17).

Failure of Kyoto

While the US signed the Protocol, the US Senate did not ratify it. Instead, they passed the “Byrd-Hagel Resolution” (named after two senators), which held:

“[…] Resolved, That it is the sense of the Senate that —

(1) the United States should not be a signatory to any protocol to, or other agreement regarding, the United Nations Framework Convention on Climate Change of 1992, at negotiations in Kyoto in December 1997, or thereafter, which would —

(A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period […]”

In other words, the Senate objected the US to being bound by a climate treaty that did not hold any binding obligations for developing countries, such as China or India. The view was that, even though current and historical emissions were to be attributed mainly to developed countries, the developing countries would quickly catch up, and account for a large share of emissions in the future. In fact, in 2007 China has become the largest yearly emitter of CO2. By 2020, non-”Annex I countries” emissions are expected to overtake those of developed countries (IEA, International Energy Outlook 2013, quoted in Vogler, 41).

Because the US did not ratify the Protocol, it was not bound by its emission targets. Mainly because of this, the Kyoto Protocol was considered a failure. As it did not apply to the emissions of developing countries, of the US, and not to emissions from aviation and shipping, it actually covered only a relatively small percentage of global emissions. Moreover, the emission cuts were not considered to be very ambitious. In 2011, Russia, Japan and Canada decided not to sign up for a second commitment period. Only the EU and Australia, together with a number of other countries, entered the second commitment period.

Copenhagen Accord (2009)

As the Kyoto Protocol did not succeed in establishing an effective regime to contain greenhouse gas emissions, the attention turned to creating a comprehensive agreement for the period after 2012, i.e., when the first Kyoto commitment period would end. The focus point became the COP15 meeting in Copenhagen; expectations were high, fueled both by public officials and by NGOs; in particular, this was the case because the US had elected a new president, Barack Obama, who politically committed himself to break with the (absence of a) climate policy of his predecessor, George W Bush. Numerous heads of government participated in the summit, including President Obama himself.

However, the Copenhagen summit was again characterized by the disagreement between the US and other developed countries following its lead on the one hand, and developing countries on the other. The outcome of the summit was the so-called Copenhagen “Accord”, which was put together by a group of only five countries (US, China, India, South Africa, Brazil) in its very last phase. It was very controversial, and did not find formal endorsement of the COP as an UNFCCC agreement (however, its terms were formally accepted at the COP16 in Cancun the following year).

The following points can be made about the Copenhagen Accord:

• It constituted a turn away from legally binding emission targets as set by the Kyoto Protocol, and instead puts the weight on non-binding “pledges” by the various countries. This is sometimes described as a shift from a “top-down” to a “bottom-up” approach. This description ignores, however, that the binding emission targets set by the Kyoto Protocol were essentially also based on what the respective countries were ready to commit. In practice, the difference is that countries did not want to commit to legally binding emission targets.
• It still differentiates between developed (Annex I) and developing countries. Annex I countries were supposed to commit to implement “quantified economy-wide emission targets” for 2020, whereas developing countries committed to “nationally appropriate mitigation actions” (“NAMAs”). Annex I countries were supposed to reduce emissions calculated from a base year, whereas developing countries could still increase emissions, but were supposed to reduce this emission increase as compared to the “business as usual” scenario, and attempt to reach their emission peak (i.e., the point from which onwards emissions no longer grow, but fall) sooner.
• It included, for the first time, a mention of the 2C limit, and proposed that the long-term objectives of the UNFCCC regime could, in the future, be measured against the 1.5C limit.

Paris Agreement (2015)

The Paris Agreement was signed in late 2015, and came into force a year later, in November 2016, when the necessary 55 states representing 55% of emissions (Article 21) had ratified it. The Agreement essentially formalizes and further develops the path taken with the Copenhagen Accord, i.e., with (“bottom-up”) national pledges, and without binding emission limits. Its Article 2(1) defines the Agreement’s objectives as follows:

This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a) Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

The Agreement thus pursues both mitigation and adaptation objectives. Whether the mitigation target can be interpreted as a binding obligation remains to be seen.

The following additional points can be made:

• Similar to the Copenhagen Accord, the Paris Agreement requires the states to submit emission pledges, which are now termed the “intended nationally determined contributions” (INDCs) — Article 4.
• The INDCs shall be communicated every five years, and will in turn be part of the “global stocktake” (i.e., an overview of global emission targets). — Articles 4 and 14.
• The Agreement emphasizes at various points that the INDCs are supposed to become progressively more ambitious.

It was essential for the US to keep the national contributions non-binding, because an international agreement with binding emission targets requires, presumably, the approval of the US Senate. In that period, the US Senate was controlled by Republicans, who rejected such binding agreement.

Other issues addressed by the Paris Agreement include:

• Adaptation (Article 7)
• Averting, minimizing and addressing loss and damage associated with the adverse effects of climate change (Article 8)
• Financial support by developed countries for developing countries (Article 9)
• Technology development and transfer (Article 10)
• Capacity-building (Article 11)

In 2017, US President Trump announced that the US would leave the Paris Agreement. In this case, the US — together with Syria — would be the only countries outside of the Agreement.