GUEST LECTURE ON

CLIMATE CHANGE
SHRIYA NAYYAR
6 SEPTEMBER 2023
 The Issue & Why it is Important.

 The What – Long term and permanent changes in concentrations of

atmospheric GHG and rise in global temperatures, ushering in the
“Anthropocene” age.
 The Why – Human Involvement acquiring geological force and changing
climate cycles on the planet.
 The How – Majorly through burning of fossil fuels, carbon-intensive
production and consumption processes, deforestation, waste & recycle
pollution.
 Watch – The Threat: https://www.youtube.com/watch?v=jAa58N4Jlos
The Issues: https://www.ipcc.ch/report/ar6/syr/
 Climate Change: “Intractable Policy
Challenge”, “Issue From Hell”

Lack of Environmental
teeth in IL Issue

Internal Lack of Climate

Politics Political Different Economic
Change Issue
Will Views

Inertia to
Urgency
Ethical Issue
Varying
Capacity
 Different Ways of Slicing the Onion: The
Various Stakeholders

Small Island Developed Developing

OPEC Nations Nations Nations
Nations

• Least emissions
• Most emissions • High emissions • Support action
• Most vulnerable
• Highly invested in • Most political but have limited
• Least resources
fossil fuels influence resources
• Limited political
• Support inaction • Adopt cost-benefit • Focused on internal
influence
• Adopt economic analysis development
• Support urgent
view • Adopt ethical view
action
 Conflicts

• Historical Responsibility versus intergenerational equity.

• Quantum of reductions by developed world versus developing world.
• Environmental versus ethical perspective.
• Deciding optimal limit of temperature control & GHG emissions: how to balance
all three perspectives?
• Why we must still find a way to solve for this issue:
https://www.youtube.com/watch?v=uynhvHZUOOo
Recent Climate Disasters
 UNEP
• Established in 1972.
• Nodal UN body on coordination related to the environment, sustainable
development and environmental advocacy.
• 193 Members.
• Headquartered in Nairobi, Kenya.
• Governance collectively through United Nations Environment Assembly (UNEA)
and Committee of Permanent Representatives (CPR).
• UNEA (established in 2012 as part of RIO+20) sets global environmental agenda in
cooperation with UN institutions and Multilateral Environmental Agreements
(MEAs). It includes all 193 members.
• CPR (established in 1985) currently includes 118 members and is the inter-
sessional intergovernmental body of UNEA.
 Administers
Organizes climate
Secretariats of 15
finance majorly
MEAs such as CBD,
through Green
CITES,CMS,
Climate Fund, Global
Vienna Convention
Environment Facility, Popular UNEP Campaigns
on Ozone Layer,
European
Rotterdam
Commission. • World Environment Day
Convention
• Climate Actions Summits
• Clean Air Week
UNEP
• Clean Seas
• Beat Plastic Pollution
• Lead Paint (with WHO)
Hosts 7 sub- Works with activists, • Think.Eat.Save (with FAO)
programs related to civil society,
climate change, governments, NGOs,
biodiversity loss, private sectors to raise
waste & pollution awareness, advocacy
and funds.
 World Meteorological Organization (WMO)
• Specialised UN agency for meteorology (weather and climate), operational hydrology
and related geophysical sciences.
• Established by ratification of WMO Convention on 23 March 1950.
• 193 Member Nations.
• Secretariat in Geneva.
• Mainly governed through World Meteorological Congress and 6 regional associations for
each continent except Antarctica.
• Mandate to focus on international cooperation and coordination the Earth’s atmosphere,
its interaction with the land and oceans, the weather and climate it produces, and the
resulting distribution of water resources.
 Intergovernmental Panel on Climate Change
(IPCC)
• UN body for assessing the science related to climate change.
• Jointly created by UNEP and WMO in 1988, to provide governments at all levels with
scientific information to develop climate policies.
• 195 members (largely an organization of member states of the UN and WMO).
• IPCC’s reports formed the basis of discussions at the UNFCCC.
• Creates reports which have been foundational for all major climate treaties (UNFCCC, Kyoto
Protocol, Paris Agreement) as well as ongoing climate efforts.
• Solicits views from various governments and experts who act as authors of IPCC reports.
• Works through three Working Groups (WGs) – WG I on the physical science of climate
change, WG-II on impacts, vulnerability and adaptation, and WG-III on mitigation strategies.
 DEVELOPMENT OF CLIMATE CHANGE
LAW
• Important to focus on the history, negotiating mandate, and geo-political climate
surrounding the contemplation, negotiation, preparation, signature/ratifications,
and entry into force of a treaty.
• Role of negotiating blocs of nations – often influential in shaping treaties:

Developing Nation Blocs Developed Nation Blocs Other Blocs

• G77/China • EU • Alliance of Small Island

• Least Developed Countries • Umbrella Group (Aus, States (AOSIS)
(LDCs) Canada, Japan, NZ, US, • OPEC
• African Group Russia, Ukraine, Norway, • Environmental Integrity
• BASIC (Brazil, SA, India, Iceland, Kazakhstan) Group (hybrid group)
China) • JUSCANZS (Japan, US, • Cartagena Dialogue for
• Like-minded Developing Canada, Aus, NZ, Progressive Action (hybrid
Countries (LMDCs) Switzerland) group)
 TYPES OF CLIMATE TREATIES
• Framework Agreements (e.g., UNFCCC): Loose umbrella agreements with scope
for further protocols / sub-agreements; very little to no binding commitments;
typically provide for procedures, coordination & reporting mechanisms, establish
treaty and decision-making bodies (like CBD).
• Binding Agreements (e.g., Kyoto Protocol, Paris Agreement): Specify
commitments pertaining to each nation or different categories of nations; lesser
flexibility in terms of negotiating further protocols; same parties as framework
agreement; rely on framework for institutional support.
 May be intentionally drafted to leave no flexibility in terms of emissions targets as in Kyoto
Protocol, OR
 May deliberately provide such flexibility as in Paris Agreement.

• Non-Binding Agreements (e.g., Copenhagen Accord, Cancun Agreement): May be

political agreements without binding force or decisions of the FCCC Conference of
Parties (COP).
 HISTORICAL CHRONOLOGY OF CLIMATE
CHANGE TREATIES
• 1972 – Declaration of UN Conference on Human Environment (Stockholm Declaration)
• 1980s – Climate Change becomes an issue of global concern and talks for a climate treaty commence.
• 1988 – IPCC established.
• 1990 – UN GA Res 45/212 passed in December to formally commence negotiations on the UNFCCC.
• 1992 – UNFCCC and Rio Declaration adopted.
• 1997 – Kyoto Protocol adopted based on IPCC reports.
• 2005 – Kyoto Protocol entered into force (after US withdrawal in 2001).
• 2009 – Copenhagen Accord adopted (paradigm shift in treatment of developing nations).
• 2011 – Durban Platform to negotiate new climate treaty.
• 2012 – Doha Amendment to Kyoto Protocol.
• 2015 – Paris Agreement adopted and to be entered into force in 2020.
 STOCKHOLM DECLARATION (1972)
• Drafting betrays colonial hangover.

• Preliminary treaty on environmental conservation and contained mostly positive obligations.

• Difference between developed and developing nations acknowledged.

• Surrounding Circumstances: Many former colonies had decolonized, anti-apartheid movement was strong, Bill of
Rights had been passed, Cold War was ongoing, UNEP was created, People’s Republic of China entered UN and
Russia’s boycott of UNSC ended.

• Key Provisions:
a. Preamble (aspirati onal statement on overall objecti ve of the declarati on)
b. Principle 1 (anti -apartheid, racial segregati on, discriminati on, colonial oppression)
c. Principle 2 (intergenerati onal equity)
d. Principle 5 (sharing of benefi ts of non-renewable resources)
e. Principle 7 (precursor to UN Law of the Sea Conventi on 1982)
f. Principle 8 (development)
g. Principle 12 (additi onal technical and fi nancial assistance)
h. Principle 21 (sovereignty over resources, principle of preventi on – Genesis of ‘No Harm Rule’)
i. Principle 22 (liability)
j. Principle 24 (seeking co-operati on between all states)
k. Principle 26 (nuclear weapons and weapons of mass destructi on)
 UNFCCC (1992)
• Backdrop: Negotiated when science on climate change was unclear but it was clear that it was a serious issue
with grave ramifications for the future.
• IPCC data was used for negotiations.
• Contributions:
 Provided general principles, basic set of obligations and skeletal institutional frameworks (such as the COP).
 Clear distinctions made between developed and industrialized nations who were responsible for the bulk of
historical GHG emissions on the one hand and developing nations as well as extremely vulnerable small
island nations on the other.
 Article 2 - Acknowledged ultimate object as stabilization of GHG concentrations in the atmosphere which
would prevent dangerous anthropogenic interference with the climate system.
 Article 3 laid down general principles followed by later climate treaties:
 Intergenerational equity
 Sustainable Development
 Precautionary Principle
 Common But Differentiated Responsibilities
 UNFCCC (1992)
 Commitments Applicable to all State Parties:
 National Inventories of GHG emissions
 National Policies to limit GHG emissions
 Communications regarding national GHG inventories
 Cooperation with other State Parties in adapting to impacts of climate change
 Technology transfer
 Sharing scientific and technological research
 Disseminating education, training & public awareness

 Obligations limited to Developed Countries:

 Annex I Nations: Adoption of policies to revert to GHG levels at 1900, by the year 2000.
 Annex II Nations (subset of Annex I nations) : Providing additional finance to developing and most vulnerable
countries in their climate adaption and mitigation strategies (led to development of Global Environmental Fund
in 1995 and Green Climate Fund in 2010).
 RIO DECLARATION (1992)
• Articulated the broad general obligations cast by UNFCCC as principles.
• More focused on sustainable development, less aspirational and more practical, compared
to Stockholm Declaration.
• Key Provisions:
a. Principle 2 (sovereignty over resources, principle of preventi on - ‘No harm rule’)
o Principle 3 (right to development, intergenerati onal equity)
o Principle 4 (sustainable development)
o Principle 5 (poverty eradicati on)
o Principle 7 (common but differenti ated responsibiliti es)
o Principle 8 (developed country consumpti on)
o Principle 15 (precauti onary principle)
o Principle 16 (polluter pays principle)
o Principle 17 (duty to conduct an environmental impact assessment)
o Principles 18 and 19 (duty to cooperate)
o Principle 24 (environmental protecti on during armed confl ict)
 KYOTO PROTOCOL (1997)
• Negotiating Background:
 More certainty on the science of climate change.
 Higher preparedness amongst developed countries to take concrete actions.
 Aimed to operationalize UNFCCC principles, most prominently ‘Common but Differentiated
Responsibilities’.
 Clearest demarcation between obligations of developed and developing nations till date.

• Key Contributions:
 Quantified targets for emissions reduction for developed nations only – no such targets for developing
nations.
 Annex B nations asked to reduce emissions of a ‘basket of GHGs’ by at 5% below 1990 levels between 2008-2012.
 Individual country targets varied – 8% for EU nations and 10% for Iceland.
 Market Mechanisms for emissions reductions:
 Clean Development Mechanisms – projects between developed and developing countries.
 Joint Implementation – projects between developed countries.
 Emissions trading – became very popular, especially in EU countries.
 KYOTO PROTOCOL (1997)
• Poor Reception by Developed Countries:
 Developed bloc protested against partisan drafting.
 US withdrew it’s signature in 2001 – it has till date not become a party.
 Later, Canada, Russia and Japan withdrew as well.
 Entry into force took 8 years and it came into force in 2005.
 Only 24% emissions covered in original 2008-2012 period.
 Doha Amendment of 2012 renewed it from 2013-2020, but very limited emissions were covered.
 Did not remain very relevant post 2020.

• Gave rise to lobbying for equal treatment of developed and developing nations.
Led to ‘Copenhagen Accord’ in 2009, which prescribed ‘nationally appropriate mitigation
targets’ for ALL states.
 PARIS AGREEMENT (2015)
• Lobbying by developed nations in the backlash following Kyoto Protocol led to talks of a new treaty with
more equal terms.
• Durban Conference 2011: ‘Nationally Determined Contributions’ (NDCs) along with 5-year review period
(often called ‘ambition period’) agreed upon.
• Also contains provisions on global emissions trading and generating climate finance but less prescriptive
on ways of regulating the same.
• Deliberately made more ambiguous and less prescriptive than Kyoto Protocol to allow both developed and
developing countries to decide modalities without legal rigor.
• Signed in 2015, came into force in 2016, implementation began in 2020.
• Aim:
 Limit global temperature to ‘well below 2 degrees Celsius above pre-industrial levels’
 Limit temperature increase to 2 degrees Celsius above pre-industrial levels (aspirational goal is 1.5 degrees).
 Achieving ‘carbon neutrality’ by around 2050.
 PARIS AGREEMENT (2015)
• Key Features:
 More nuanced and tailored differentiation between countries – unlike Annex system of Kyoto Protocol.
 More flexibility given to states, which also means compliance rigor is less compared to Kyoto Protocol.
 NDCs are nationally decided by each state, not internationally at conferences.
 It is only mandatory to set NDCs every 5 years but not to achieve these – successive NDCs must be
higher than previous commitments for each country.
 Developed Nations required to lead the charge on raising climate finance – floor of USD 100 billion by
2025.
 Information sharing and transparency mechanisms are more robust than any previous treaty.
 Detailed rules, party obligations and rights fleshed out in the 2018 Paris Rulebook.
• Drawbacks:
 Also overshadowed by Big Power Politics – US withdrawal under President Trump, leadership of China,
revival of commitments in COP 26.
 Targets are already not met – Compliance is poor.
 CLIMATE RULES WHICH BECAME
CUSTOMARY INTERNATIONAL LAW
• “No Harm Principle”: First articulated in 1941 Trail Smelter Case and then in Stockholm
and Rio Declarations. Later declared CIL by the ICJ in Pulp Mills Case.
• “Precautionary Principle”: Captured in Principle 15 of Rio Declaration – focused on ‘due
diligence’ in environmental matters; covers areas beyond states boundaries and actors other
than states.
• “Common but Differentiated Responsibilities”: Captured in Principle 7 of Rio
Declaration – focused on sustainable development and intergenerational equity.
• “Sustainable Development”: Stronger wording (“right to develop”) in UNFCCC based on
definition by Brundtland Commission – but watered down in Principle 3 of Rio Declaration
to appease developed countries. Important interstitial norm in environmental treaties.
 CENTRALITY OF CARBON & ROLE OF
SCIENCE
• International law has imagined carbon as an ‘object’. Examples include:
 Emissions trading in carbon markets
 Carbon Pricing Mechanisms
 Replacement of grey carbon with green carbon
 Substitutions between GHGs

• Quantification and objectification can help with formalizing scientific mitigation strategies into law.
• Role of Science:
 IPCC reports have fed into all treaties.
 Appeals for ‘Globalist Framing’ of environment and the science associated with it, where it is seen as an
’ontologically unitary system’ – it stays independent of other disciplines such as politics, law and
economics.
 CRITICAL IPCC REPORTS
• Fifth Assessment Report (AR5), 2014:
 Provided scientific data for Paris Agreement
 Predicted that global temperatures were ‘likely’ to exceed 1.5 degrees and 2 degrees by end of 21 st century.
 Confirmed highest GHG concentration in 800,000 years.
 Predicted unprecedented changes to ice caps, sea levels, oceans, ecosystems.
 Reason for adoption of 2 degrees target in Paris Agreement.

• Special Report on Global Warming, 2018:

 Confirmed that limiting global warming to 1.5 degrees would require rapid, far-reaching and unprecedented
changes in all aspects of society.
 Fed into Katowice Climate Change Conference and Paris Rulebook of 2018.

• Sixth Assessment Report (AR6), 2021-22:

 Critical science for COP26 (Glasgow) in 2021 – starkest warning yet.
 Declared that it is only possible to avoid warming of 1.5 or 2.0 degrees if massive and immediate GHG
emission cuts are made before 2030.
 Indicated need for urgent global action by ALL NATIONS.
 IMPACT OF POLITICS
• According to current projections, exceeding 2 degrees of warming is likely and we have only a 1 in 20 chance of
avoiding it.
• Loosing Earth (p.3): “The climate scientist James Hansen has called two-degree warming “a prescription for
long-term disaster.” Long-term disaster is now the best-case scenario. Three-degree warming is a prescription for
short-term disaster: forests in the Arctic and the loss of most coastal cities. Robert Watson, a former director of
the United Nations Intergovernmental Panel on Climate Change, has argued that three-degree warming is the
realistic minimum. Four degrees: Europe in permanent drought; vast areas of China, India and Bangladesh
claimed by desert; Polynesia swallowed by the sea; the Colorado River thinned to a trickle; the American
Southwest largely uninhabitable. The prospect of a five-degree warming has prompted some of the world’s leading
climate scientists to warn of the end of human civilization .”
• Political Apathy in the decade between 1979 to 1989 led to this - science was already known since 1950 and
confirmed by 1979 but was ignored – IPCC was formed 10 years later.
• Proposal to freeze carbon emissions at the 1980s levels with 20% reduction by 2005 could have curbed
temperature rise to 1.5 degrees!
• Proposals to levy carbon tax denied – climate action financed into the future!
 IMPACT OF POLITICS
• Who is to blame?
 Economic Greed of Developed Countries, OPEC nations
 Lobbying by industries heavily reliant on Fossil Fuels
 Big corporate executives of companies like Exxon, Chevron.

• COP26 and related politics:

 New NDCs committed – current commitments would lead to 2.7 degrees warming by 2100.
 Adaptation finance to be doubled from 2019 levels by 2025 – USD 100 bn ceiling not even close.
 Very few committed to net zero pledges.
 Plan to phase down coal and phasing out inefficient fossil fuels.
 US-China symbolic solidarity.
 Pushback from Developing Nations – China emissions to peak by 2030 and reach net zero by 2060, India
pledged to 2070.
 IMPACT OF POLITICS
• Alternative Pathways:
 Negotiating Blocs unable to agree – but urgency is higher than action.
 Many believe multilateralism has failed for climate negotiations and look instead towards ‘mini-
lateralism’.
 State-driven politics giving way to other stakeholders:
 NGOs
 Civil Society (Greta Thunberg, et al)
 Philanthropists
 Mass Movements
 Corporate Lobbyists – They were the largest group at COP26 (500 representatives of fossil fuel companies)! –
Having independent negotiations of corporate entities and target setting for such entities would also be
pathbreaking.

• Proposals to split Corporations into ‘carbon dependents’, ‘carbon intensives’, ‘unconstrained’ and
‘climate solutions’ - different tax and policy considerations could apply to each category.
 ALTERNATIVES BEING CONTEMPLATED
• Alternative Treaties:
 Fossil Fuel Non-Proliferation Treaty – based on Nuclear Non-Proliferation; wanted as a precedent treaty;
aiming to focus on ‘non-proliferation, disarmament, peaceful uses of technology’.
 Coal Elimination Treaty – Radical treaty to phase out coal mining, sale and burning by 2030.
 Based on Treaty on Prohibition of Nuclear Weapons.
 Nearly 25% global emissions from coal, hence it is seen as largest enemy.
 Potential adoption through UNFCCC, health assembly of WHO, or independent treaty negotiations under UNGA.
 Solar Geoengineering Non-Use Treaty:
 Climate engineering through (A) CO 2 removal by interventions in carbon cycles or direct capture of carbon through
artificial systems, (B) Solar Radiation Modification or increasing the earth’s reflective surfaces – either by throwing
aerosols in stratosphere, making human infrastructure brightly colored or making clouds brighter to reflect more
sunlight.
 CO 2 removal is safer, it cannot be implemented at the scale needed.
 Solar Radiation Modification can manage scale, but is extremely unstable and unsafe.
 See on Solar Geoengineering: https://www.youtube.com/watch?v=dFMMssyRsWo
 ALTERNATIVES BEING CONTEMPLATED
• Proposed ICJ Advisory Opinion:
 Contentious case unlikely to stem for many years.
 Likely to providing important guidance for future.
 Will not bind individual nations but can be used for future treaties on climate change (similar to Legality of
Threat of Nuclear Weapons Decision by ICJ in 1996).

• Other Legal Regimes (Mini-lateralism):

 International Investment Law – Climate friendly investment BITs, investor-state arbitrations, compensation
by errant investors as climate funding.
 WTO Law – Climate friendly subsidies, trade and environment already a nuanced subject.
 Human Rights Law – Reading climate related rights into the Bill of Rights, regional human rights courts and
bodies giving climate friendly decisions.
 UNSC – Security Council to prioritize climate change as threat to peace and security.
 International Criminal Law – Creation of new crime of ‘Ecocide’ under Rome Statute.
QUESTIONS?

THANK YOU!