“Climate change and human rights: International Legal Aspects”

PEOPLES’ FRIENDSHIP UNIVERSITY OF RUSSIA Law Institute Department of International Law APPROVED Head of the Department Prof. A. Abashidze _________________ MASTER'S THESIS « CLIMATE CHANGE AND HUMAN RIGHTS: INTERNATIONAL LEGAL ASPECTS » 400401 «Jurisprudence» qualification «Master of Laws» Student Salikhat Magomedova State Russia Group MU-608 Student ID 1032151526 __________________ student signature «___» ____________ 2020 Supervisor A.M. Solntsev, PhD, Deputy Head of the Department of International law __________________ supervisor signature Moscow 2020 2 Annotation Master’s Thesis “Climate change and human rights: International Legal Aspects” Climate change is now affecting every country on every continent. It is disrupting national economies and affecting lives, costing people, communities and countries dearly today and even more tomorrow. People are experiencing the significant impacts of climate change, which include changing weather patterns, rising sea level, and more extreme weather events. The greenhouse gas emissions from human activities are driving climate change and continue to rise. They are now at their highest levels in history. Without action, the world’s average surface temperature is projected to rise over the 21st century and is likely to surpass 3 degrees Celsius this century—with some areas of the world expected to warm even more. The poorest and most vulnerable people are being affected the most. The aim of this thesis is to explore the international legal mechanisms concerning the protection of human rights under the impact of climate change, its influence on concrete human rights, the methods of implementation of international legal mechanisms and monitoring the application of these standards on practice. On the basis of the results of the research, it can be concluded that climate change is a global challenge that does not respect national borders. Emissions anywhere affect people everywhere. It is an issue that requires solutions that need to be coordinated at the international level and it requires international cooperation to help developing countries move toward a low-carbon economy. 3 CONTENTS INTRODUCTION………………………………………………………………………………………………………….……….5 CHAPTER 1. CLIMATE CHANGE AND HUMAN RIGHTS. THEORETICAL APPROACH............................................................................................................................ 11 1.1 The impact of human development on climate change ..................................................... 11 1.2 Sustainable development goals (SDG) (2016-2030) and climate change .......................... 17 1.3 Human Rights and Climate change: human rights approach ............................................. 25 1.4 Climate change and human rights: environmental law approach....................................... 32 CHAPTER 2. INTERNATIONAL LAW CONCERNING THE MITIGATION OF CLIMATE CHANGE AND HUMAN RIGHTS PROTECTION ......................................... 64 2.1 Measures by international organizations and States to protect human rights ..................... 64 2.2 The impact of transnational organizations (TNCs) on climate change and human rights... 80 2.3 Small island states. Climate migrants. Human rights protection ....................................... 89 CONCLUSION……………………………………………………………………………......101 LIST OF ABBREVIATIONS AND CONVENTIONAL SYMBOLS……………………...103 BIBLIOGRAPHY…………………………………………………………………...…….…..105 4 INTRODUCTION “Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen”1. Inter-governmental Panel on Climate Change, Climate Change 2014. “Climate change threatens our ability to achieve sustainable development, and in some cases, our very survival”. Ban Ki-moon, Former Secretary General of the United Nations. Topicality of the research. Human rights are universal legal guarantees that protect individuals, groups and peoples against actions and omissions that interfere with their fundamental freedoms and entitlements. Human rights law obliges governments (principally) and other duty-bearers to respect, promote, protect and fulfill all human rights. Human rights are universal and are based on the inherent dignity and equal worth of all human beings. They are equal, indivisible, interrelated and interdependent, and cannot be waived or taken away. Furthermore, human rights are legally protected, and impose obligations in relation to actions and omissions, particularly of States and State actors. It is now beyond dispute that climate change caused by human activity has negative impacts on the full enjoyment of human rights. Climate change has profound impacts on a wide variety of human rights, including the rights to life, self-determination, development, food, health, water and sanitation and housing. The human rights framework also requires that global efforts to mitigate and adapt to climate change should be guided by relevant human rights norms and principles including the rights to participation and information, transparency, accountability, equity, and 1 IPCC, Climate Change, Synthesis Report, Summary for Policy Makers, 2014. Available https://www.ipcc.ch/pdf/assessment-report/ar5/syr/AR5_SYR_FINAL_SPM.pdf (accessed 21 April, 2017). at: 5 non-discrimination. Simply put, climate change is a human rights problem and the human rights framework must be part of the solution. As emphasized by the United Nations Human Rights Council in its Resolution 26/27, “climate change is an urgent global problem requiring a global solution”2. The Council called for international cooperation to implement the United Nations Framework Convention on Climate Change (UNFCCC) “in order to support national efforts for the realization of human rights affected by climate change related impact”3. The Council affirmed that “human rights obligations, standards and principles have the potential to inform and strengthen international, regional and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes”4. This submission to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change is an outcome of the above-mentioned panel discussion that is complemented by human rights commentary and analysis. It is intended to inform climate action and policy at all levels including the work of the COP to the UNFCCC and to further elucidate the critical links between human rights and climate change identified by panelists. Also, The Paris Agreement was adopted on 12 December 2015 at the twenty-first session of the COP to the United Nations Framework Convention on Climate Change held in Paris from 30 November to 13 December 2015. The main aim of the Agreement is to "[hold] the increase in the global average temperature to well below 2 °C above pre-industrial levels", predominantly by reducing greenhouse gas emissions. On November 8, 2016, four days after the Paris Agreement entered into force in the United States, Donald Trump was elected President of the United States. On June 1, 2017, United States President Donald Trump announced that the U.S. would cease all participation in the 2015 Paris Agreement on climate change mitigation. n 2 UN GA, Human Rights Council, Twenty-sixth session, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, A/HRC/26/L.33/Rev.1, 25 June https://documents-dds2014. Available at: ny.un.org/doc/UNDOC/LTD/G14/065/81/PDF/G1406581.pdf?OpenElement (accessed 21 April, 2017). 3 Id. 4 Id. 6 accordance with Article 28 of the Paris Agreement 5, the earliest possible effective withdrawal date by the United States cannot be before November 4, 2020, four years after the Agreement came into effect in the United States and coincidentally one day after the 2020 U.S. presidential election. Until the withdrawal takes effect, the United States may be obligated to maintain its commitments under the Agreement, including the requirement to continue reporting its emissions to the United Nations. Climate change will have a profound effect on the enjoyment of human rights for billions of people. This is not merely an abstract, future possibility. Climate change is already contributing to drought, ecosystem degradation, and food shortages across the world. Some regions are hit harder than others, with more clearly attributable linkages to climate change—for example, sea level rise has adversely affected the safety and livelihoods of many coastal inhabitants, and rising temperatures are causing significant changes in the Arctic ecosystems that support many indigenous communities. According to IPCC projections, climate change will significantly reduce surface water and groundwater resources in most dry subtropical regions, thus intensifying competition for water among agriculture, ecosystems, settlements, industry, and energy production, and affecting regional water, energy, and food security. Climate change will also increase the frequency of droughts in presently dry areas. The primary drivers of these projected water shortages and droughts include: (i) reduced rainfall, (ii) reduced snowpack, resulting in less snowmelt supplying rivers and streams; (iii) higher temperatures, which increase evaporation from surface water and soils; and 5 UN, Paris Agreement, adopted at COP21 on 12 December 2015., entered into force on 4 November 2016. Available at: https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf (accessed 21 April, 2017). 7 (iv) sea level rise, which contributes to saltwater inundation of freshwater resources. In addition, variations in the timing, magnitude, and type of precipitation, as well as temperature increases and sea level rise, can harm freshwater ecosystems by changing stream flow and water quality. This can also lead to the degradation of water supplies for human consumption, agriculture, and other uses. Affected rights: right to water and sanitation, right to health, right to life, right to food, right to an adequate standard of living. Also, scientists have found that over the past century the average temperature at the earth's surface has risen by 0,6 ° C. The level of the oceans in the same period rose to 15-17 cm, which was caused by the melting of glaciers and thermal expansion of ocean waters. Therefore, predictions have become more calm and measured, although different estimates for the future continue to vary quite significantly. Typically, these predictions have three time levels: 2025, 2050 and 2100. However, even a relatively small rise in global sea level could put a serious problem faced by many coastal (especially lowland) countries. The consequences of this phenomenon can be direct (the flooding of low-lying areas, increased erosion of coasts) and indirect (loss of freshwater due to the rise of ground water and salt water intrusion into aquifers). Especially dangerous rise in global sea level for developing countries such as Bangladesh, Egypt, Gambia, Indonesia, Maldives, Mozambique, Pakistan, Senegal, Suriname and Thailand. For example, in Bangladesh sea level rise of only 1 m force location change 10% of the population of the country. In Egypt, the rise of the level of only 50 cm would flood much of the Nile Delta and habitats 16% of the population. An even greater threat to such a rise would represent for the Maldives, which consist of 20 atolls; 80% of its territory located less than 1 m above sea level. From Europe the rise in sea level would be particularly dangerous for the Netherlands. However, this level rise could be disastrous for New York, as it would entail the flooding of most of the city with all its underground transport infrastructure and three airports. 8 Finally, the level of 2100 According to the estimates of the International Panel on Climate Change, in that case, if not taken drastic measures to reduce emissions of greenhouse gases and there will be a doubling of CO2, global warming by the end of the XXI century. may reach 2,5 ° C, (r. f. 0.25 ° on average for every ten years), and possibly 5,8 ° C. Of course, all the consequences of this warming can not be foreseen today. But, by all accounts, they will be a great threat to mankind. Thus, according to some estimates, the total economic damage from warming in 2100 could make almost $ 1 trillion. However, this figure hides the real geographical changes for regional and even global nature. The object of the research is international legal cooperation of the subjects of international law in the sphere of elimination of the climate change in order to protect human rights. The subject of the research is international legal acts, adopted to mitigate the consequences of climate change and to protect human rights. The degree of scientific elaboration. The research is realized on the basis of the researches of Russian scientists: A.Kh. Abashidze, M.N. Kopilov, A.M. Solntsev, G.V. Guseinova, A.V. Semyannikova, E.B. Derendyaeva, as well as on the basis of the researches of foreign scientists: M. Matei, C. Popescu, I.G. Rădulescu, Osofsky, M. Hari , M. Limon, Rajamani L. The methodology of the research. The research was conducted on the basis of general scientific, systematic and comparative methods of analyze, also using scientific theory of law, constitutional and international law. Also in the research were used such methods as: dialectical, logical, historical, systematic and structural, functional, comparative legal method, formal-legal. The goal of the research is to monitor the observance of the international legal mechanisms concerning climate changes and identify its impact on human rights. The theoretical and practical significances of the research are dictated by the fact that they can be used: 9  to develop the proposals for improving the international legal instruments, that regulates supporting and protection of climate;  to develop the legal proposals for improving the system of human rights protection during climate change. Structurally, the research consists of introduction, two chapters, conclusion, references and documents. In the introduction part of the research we are justifying the chosen theme, the relevance of the chosen theme, its goals, objectives, subjects, the methodological bases, scientific novelty, theoretical and practical significance of the research. In the first chapter of the research, there was given some important international legal mechanisms of the supporting the climate change. In the second chapter, measures taken by international organizations and states and impact of TNCs on climate change and human rights are discussed. In the conclusion the results of the research are summarized, the recommendations and suggestions were made. 10 CHAPTER 1. CLIMATE CHANGE AND HUMAN RIGHTS. THEORETICAL APPROACH 1.1 The impact of human development on climate change The issue of climate change was arised in the late 1980s when it was firstly discussed in the UN General Assembly, it was characterized as “the defining human development challenge for the 21st century” 6. According to The Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), that was released in 2007, the global average temperature has increased by 0.74 degrees centigrade in the last century constituting the largest and fastest warming trend in the history of the Earth 7. It is predicted to increase by 1.8 to 6.4 degrees centigrade. Among other diseases, climate change increase the severity of droughts, land degradation and desertification, the intensity of floods and tropical cyclones, the incidence of malaria and heat-related mortality, and decrease crop yield and food security. The last leads to poorer nations, and the poorest within them. Climate change is expected to have impacts on human development. The Human Development Report notes that climate change obstructs to realize the MDG promise, and that failure to address the climate change problem will consign the poorest 40% of the world’s population – 2.6 billion people – to a future of diminished opportunity. Two degrees centigrade represents the threshold at which rapid reversals in human development become difficult to avoid. Also, the cost of climate change in India and South East Asia could be as high as 9-13% loss in gross domestic product (GDP) by 2100 as compared to what could have been achieved in a world without climate change. 6 Human Development Report 2000: Human Rights and Human Development. Available at: http://hdr.undp.org/sites/default/files/reports/261/hdr_2000_en.pdf (accessed 21 April, 2017). 7 Intergovernmental Panel on Climate Change, Climate Change 2007: Fourth Assessment Report. Available at: http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf (accessed 21 April, 2017). 11 The climate change can impact the realization of a range of internationally recognized human rights that were documented by the IPCC, and indeed in many parts of the world the damage is already evident. Yet it is only recently that human rights have entered the discourse on the climate change problem. Climate discourse has originated and remained the purview of physical scientists and has only recently entered the social science discourse. As such, the climate negotiations have adopted consensus-driven, welfare-based solutions with an economic orientation, and largely ignored parallel developments in the human rights arena8. The issue of human rights historically dominated by lawyers, and only now gained the attention of economists and other social scientists. According to the above mentioned, problem of this magnitude leads to swift cooperative action from the international community. The scientific studies show that the emission reduction commitments made by states have been inadequate (in that they are objectively insufficient to effectively address climate change 9) and inadequately implemented (in that numerous countries are not on track to meet their commitments). There are significant barriers to effective collective action on climate change. Vast differences exist between countries in terms of contributions to the stock of carbon in the atmosphere, industrial advancement and wealth, nature of emissions use, and climate vulnerabilities. Poverty is increasing in some parts of the world, with persistent inequalities within and between countries 10. There is a marked reluctance in many polities and societies to modify existing However for a different view see: Tully S., “Like Oil and Water: A Sceptical Appraisal of Climate Change and Human Rights”, Australian International Law Journal, 2008. The author analyses human rights- oriented and other litigation strategies in the context of environmental protection, and appraises the typical scheme of remedies flowing from human rights claims. While noting the importance of the human rights paradigm in highlighting the impacts of climate change upon individuals, the author cautions against over-estimating the comparative advantages of legal strategies focused upon human rights litigation per se, given the difficulties of establishing clear violations, identifying perpetrators and overcoming the territorial application of international human rights law. (accessed 21 March, 2017). 9 The IPCC recommends 25-40% below 1990 levels by 2020 for industrialized countries. See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997. Available at: http://www.kyotoprotocol.com/resource/kpeng.pdf (accessed 21 March, 2017). 10 UNDP, Human Development Report (2005), International Cooperation at a Crossroad: Aid, Trade and Security in an Unequal World. Available at: http://hdr.undp.org/sites/default/files/reports/266/hdr05_complete.pdf (accessed 21 March, 2017). 8 12 lifestyles and development pathways, and opinion is divided on the promise of technological solutions to complex climate change problems. Operating within these constraints, states have over the past two decades established an international legal regime, albeit an evolving one, to address climate change and its consequences. The United Nations Framework Convention on Climate Change (UNFCCC)11 and its Kyoto Protocol12 constitute the international community’s first significant steps forward to collectively address these concerns. These instruments have attracted universal adherence. Their basic purpose is to set in place an international legal framework for common but differentiated responsibility for the reduction of GHG emissions, and support for national adaptation efforts with a particular concern for the special needs of developing and vulnerable countries, including Least Developed Countries (LDCs) and low-lying states. The UNFCCC’s framework divides its member states in two major groups bearing different obligations. The first frameworks comprises the so-called “Annex-I countries,” which are mainly developed, industrialized countries historically responsible for most GHG emissions, which are accordingly subject to emissions reductions targets. “Non-Annex-I” countries constitute the remainder, which include “developing countries” (a broad and undifferentiated category including countries as diverse as China, Singapore, Argentina, India, Mali and Tuvalu) as well as the LDCs which receive special assistance. The Conference of Parties (COP) is the UNFCCC’s chief decision-making body13. The Kyoto Protocol, which was adopted in 1997 and entered into force in 2005, sets legally binding obligations on its 192 parties 14. 11 United Nations Framework Convention on Climate Change (UNFCCC), 1992 , available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 21 March, 2017). 12 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, available at: http://unfccc.int/resource/docs/convkp/kpeng.pdf (accessed 21 March, 2017). 13 In terms of scientific inputs, the COP relies upon the work of the IPCC as well as national communications from Member States, technical support for which is made available by a COP subsidiary body called the Consultative Group of Experts on National Communications from Non- Annex-I Parties. Subsidiary bodies have also been set up to advise States on scientific, technological and methodological climate change matters, technology transfer to developing countries for mitigation and adaptation, as well as to verify how the convention is being applied. These are the Subsidiary Body for Scientific and Technological Advice (SBSTA), Expert Group on Technology Transfer, and Subsidiary Body for Implementation, respectively. 13 Unlike the international human rights regime, the UNFCCC and the Kyoto Protocol do not include express provisions for remedial measures for individuals or communities in light of a particular environmental harm. However, subsequent agreements have called for consideration of the social and economic impacts of response measures as well as enhanced international cooperation 15. Notably, at the Thirteenth Session of the Conference of the Parties to the UNFCCC, the Bali Action Plan was adopted “to launch a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action” 16. The intention had been to reach an agreed outcome leading to the adoption of a decision at the COP 15 in Copenhagen in December 2009. Instead, the conference produced a non-binding political declaration “the Copenhagen Accord,” negotiated by 28 states, which was intended to bridge the differences among parties while covering the pillars agreed in Bali 17. A number of international funds have been established to support national adaptation in developing countries 18. As critical as these and related agreements are, however, the slow pace of international negotiations and continuing political and economic differences between industrialized and developing countries make for, at best, a very cautious assessment of the potential for this legal regime to ward against the more damaging – yet entirely foreseeable – climate harm scenarios. Kyoto Protocol’s Status of Ratification, available at: http://unfccc.int/kyoto_protocol/status_of_ratification/items/2613.php (accessed 22 March, 2017). 15 United Nations Climate Change Conference, Dec. 3-15, 2007, Report of the Conference of the Parties on its Thirteenth Session, U.N. Doc FCCC/CP/2007/6/Add.1 (14 March, 2008). Available at: http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf (accessed 21 March, 2017). 16 Decision 1/CP.13, Bali Action Plan, in United Nations Climate Change Conference, Dec. 3-15, 2007. Available at: http://www.preventionweb.net/files/8376_BaliE.pdf (accessed 21 March, 2017). 17 The Copenhagen Conference was the Fifteenth Conference of the Parties to the UNFCCC (COP 15). Available at: http://www.preventionweb.net/files/12138_enb12459e1.pdf (accessed 21 March, 2017). 18 A number of funds have been established under the UNFCCC. In 2001, the UNFCCC secretariat initiated a “National Adaptation Programme of Action” (NAPA) process, under which LDCs may identify priority activities that respond to their urgent and immediate needs to adapt to climate change (those for which further delay would increase vulnerability or costs at a later stage) as a tool for international resource mobilization. Available at: http://unfccc.int/adaptation/workstreams/national_adaptation_programmes_of_action/items/4583.php . Moreover, a five-year program of work (Nairobi Programme of Work, 2005-2010, available at: http://unfccc.int/resource/docs/2005/cop11/eng/05a01.pdf ) was put in place by States party, international organizations, and other stake- holders to help all States party, and, in particular, LDCs and low-lying countries, improve their understanding and assessment of impacts, vulnerability, and adaptation to climate change as a basis for informed decision-making on climate change adaptation. (accessed 21, March, 2017). 14 14 Although the UNFCCC seeks to protect the climate system for the benefit of present and future generations of humankind, it is not designed to provide human rights protections, humanitarian aid or redress to individuals or communities consequent upon environmental harms. The UNFCCC is instead an agreement between states to “anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects19”. Consensus-driven welfare-based approaches stand in uneasy relief, in the eyes of many, against the very tangible climate change harms already evident in many countries. The slow progress of international negotiations seems increasingly out of step with scientific knowledge and the pace of climate change itself. Much of the recent interest in the human rights dimensions of climate change has been sparked by the plight of the Inuit and the Small Island States, at the frontlines, albeit different ones, of climate change. In their 2005 petition before the Inter-American Commission on Human Rights the Inuit claimed that the impacts of climate change could be attributed to acts and omissions of the U.S., and violated their fundamental human rights – in particular the rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home 20. These rights were protected under several international human rights instruments, including the American Declaration of the Rights and Duties of Man21. The Commission declined to review the merit of the petition, stating that the “information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of rights protected by the 19 UNFCCC, adopted on 9 May, 1992, A range of preventive measures, including technology transfer, emissions reduction measures, education and scientific studies, are set forth in Articles 4-6. Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 27 March, 2017). 20 Organization of American States, Inter-American Commission on Human Rights, Petition Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (2005) [hereinafter Inuit Petition]. Available at: http://www.inuitcircumpolar.com/uploads/3/0/5/4/30542564/finalpetitionicc.pdf (accessed 21 March, 2017). 21 American Declaration on the Rights and Duties of Man, April 1948, OAS Resolution XXX, OEA/Ser.L.V/II.82 doc.6 rev.1 [hereinafter American Declaration]. Available at: http://www.oas.org/en/sla/dil/docs/American_Declaration_Right_Duties_Man.pdf (accessed 21 March, 2017). 15 American Declaration” 22. Although the Inuit Petition did not fare well before the Commission, it payed attention to the links between climate change and human rights and led to a “Hearing of a General Nature” on human rights and global warming. The Hearing was held on March 1, 2007, and featured testimonies from the Chair of the Inuit Circumpolar Conference and its lawyers, but not representatives of the U.S. The Commission has taken no further action, but the ICC petition did generate considerable debate in the academic literature 23. In a similar vein, in the Americas, Argentina drafted and tabled a resolution on human rights and climate change which was adopted by the General Assembly of the Organization of American States in June 2008. The Resolution instructs the Inter-American Commission on Human Rights to “determine the possible existence of a link between adverse effects of climate change and the full enjoyment of human rights”24. Argentina expressed concern that the inequitable impacts of climate change will place an undue strain on vulnerable states that will need to introduce climate policies and measures to ensure that they meet their human rights obligations. Yet a review of the politics of human rights in the international negotiations on climate change does not yield straightforward answers. Co-sponsoring states, particularly those most immediately threatened by climate change, typically underline the importance of human rights in highlighting the human face and impacts of climate change, as part of a legal or moral claim for strengthened international mitigation commitments and adaptation support from wealthier countries and major emitters. Yet explicit human rights arguments have yet to gain 22 Quoted in George, Jane, ICC Climate Change Petition Rejected, NUNATSIAQ NEWS (2006), available at: http://www.nunatsiaqonline.ca/archives/61215/news/nunavut/61215_02.html (accessed 21 March, 2017). 23 Osofsky, Hari M., The Inuit Petition as a Bridge? Beyond the Dialectics of Climate Change and Indigenous Peoples’ Rights, 31 (2), AM. INDIAN L. REV. 675 (2007). Available at: https://www.jstor.org/stable/20070803?seq=1#page_scan_tab_contents (accessed 23 March, 2017). 24 Organization of American States, Human Rights and Climate Change in the Americas, Resolution 2429, AG/RES. 2429 (XXXVIII-O/08), June 3, 2008. Available at: https://www.oas.org/dil/AGRES_2429.doc (accessed 23 March, 2017). 16 traction to any appreciable extent within the climate change negotiations under the UNFCCC framework. Human rights have sometimes been characterized as a source of mistrust between developing and industrialized countries, with certain developing countries expressing concern at human rights being used as a way of either preventing their development (should binding emissions reduction targets be applied to them) or operating as conditionalities on climate change adaptation funds 25. Certain industrialized countries, correspondingly, have expressed concern at the possibility for an official recognition of human rights and climate change linkages to bolster the case for extra-territorial human rights obligations or a collective and self-standing “right to a safe and secure environment,” or otherwise be used as a “political or legal weapon against them”. These uncertain and evolving political dynamics form an important part of the context in which the international legal analysis and policy and operational implications fall to be considered. 1.2 SDG 2030 13 The Sustainable Development Goals (SDGs), officially known as Transforming our world: the 2030 Agenda for Sustainable Development is a set of 17 "Global Goals" with 169 targets between them. Spearheaded by the United Nations through a deliberative process involving its 193 Member States, as well as global civil society, the goals are contained in paragraph 54 of the United Nations Resolution A/RES/70/1 of 25 September 201526. The Resolution is a broader intergovernmental agreement that acts as the Post 2015 Development Agenda (successor to the Millennium Development Goals). The SDGs build on the 25 Limon, Marc, Human Rlights and Climate Change: Constructing a Case for Political Action // Harvard Environmental Law Review, vol. 33, pp. 439-476. Available at: http://www.law.harvard.edu/students/orgs/elr/vol33_2/Limon.pdf (accessed 24 March, 2017). 26 UN, Resolution adopted by the General Assembly on 25 September 2015, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E (accessed 11 February, 2017). 17 Principles agreed upon under Resolution A/RES/66/288, popularly known as The Future We Want27. The SDGs were in large measure informed by the often quoted assertion by United Nations Secretary-General Ban Ki-moon that "we don’t have plan B because there is no planet B"28. On 19 July 2014, the UN General Assembly’s Open Working Group (OWG) on Sustainable Development Goals (SDGs) forwarded a proposal for the SDGs to the Assembly. The proposal contained 17 goals with 169 targets covering a broad range of sustainable development issues. These included ending poverty and hunger, improving health and education, making cities more sustainable, combating climate change, and protecting oceans and forests29. On 5 December 2014, the UN General Assembly accepted the Secretary-General's Synthesis Report which stated that the agenda for the post-2015 SDG process would be based on the OWG proposals 30. The Intergovernmental Negotiations on the Post 2015 Development Agenda (IGN) began in January 2015 and ended in August 2015. Following the negotiations, a final document was adopted at the UN Sustainable Development Summit September 25–27, 2015 in New York, USA. The title of the agenda is Transforming our world: the 2030 Agenda for Sustainable Development 31. The Official Agenda for Sustainable Development adopted on 25 September 2015 has 92 paragraphs. Paragraph 51 outlines the 17 Sustainable Development 27 UN, Resolution adopted by the General Assembly on 27 July 2012, The future we want, A/RES/66/288*. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/66/288&Lang=E (accessed 17 February, 2017). 28 REMARKS TO THE PRESS AT COP22, Marrakech, 15 November 2016. Available at: http://www.un.org/sustainabledevelopment/blog/2016/11/secretary-generals-remarks-to-the-press-at-cop22/ (accessed 17 February, 2017). 29 "Press release - UN General Assembly’s Open Working Group proposes sustainable development goals", 4-6 June, Rio de Janeiro, Brazil. Available at: https://sustainabledevelopment.un.org/content/documents/4538pressowg13.pdf (accessed 17 February, 2017). 30 UN GA, Follow-up to the outcome of the Millennium Summit, The road to dignity by 2030: ending poverty, transforming all lives and protecting the planet Synthesis report of the Secretary-General on the post-2015 sustainable development agenda, A/69/700, December 4, 2014. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/69/700&Lang=E (accessed 17 February, 2017). 31 UN, Resolution adopted by the General Assembly on 25 September 2015, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E (accessed 11 February, 2017). 18 Goals and the associated 169 targets. Goal 13 is Climate Action, which includes 13 targets:  strengthen resilience and adaptive capacity to climate-related hazards and natural disasters in all countries;  integrate climate change measures into national policies, strategies and planning;  improve education, awareness-raising and human and institutional capacity on climate change mitigation, adaptation, impact reduction and early warning;  implement the commitment undertaken by developed-country parties to the United Nations Framework Convention on Climate Change to a goal of mobilizing jointly $100 billion annually by 2020 from all sources to address the needs of developing countries in the context of meaningful mitigation actions and transparency on implementation and fully operationalize the Green Climate Fund through its capitalization as soon as possible;  promote mechanisms for raising capacity for effective climate changerelated planning and management in least developed countries and small island developing States, including focusing on women, youth and local and marginalized communities. In accordance with par. 47 of SDG: “Our Governments have the primary responsibility for follow-up and review, at the national, regional and global levels, in relation to the progress made in implementing the Goals and targets over the coming fifteen years. To support accountability to our citizens, we will provide for systematic follow-up and review at the various levels, as set out in this Agenda and the Addis Ababa Action Agenda 32. The High Level Political Forum under the 32 UN, Third International Conference on Financing for Development, Outcome document of the Third International Conference on Financing for Development: Addis Ababa Action Agenda, A/CONF.227/L.1, 15 July 2015. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/CONF.227/L.1 (accessed 11 February, 2017). 19 auspices of the General Assembly and the Economic and Social Council will have the central role in overseeing follow-up and review at the global level” 33. On June, 2016 the first Report by Secretary General on Progress towards the Sustainable Development Goals was made. According to this report:  climate change presents the single biggest threat to development, and its widespread, unprecedented impacts disproportionately burden the poorest and most vulnerable. Urgent action to combat climate change and minimize its disruptions is integral to the successful implementation of the Sustainable Development Goals.  the global nature of climate change calls for broad international cooperation in building resilience and adaptive capacity to its adverse effects, developing sustainable low-carbon pathways to the future, and accelerating the reduction of global greenhouse gas emissions. On 22 April 2016, 175 Member States signed the Paris Agreement under the United Nations Framework Convention on Climate Change. The new agreement aims to reduce the pace of climate change and to accelerate and intensify the actions and investments needed for a sustainable low carbon future.  climate change often exacerbates disasters. Between 1990 and 2013, more than 1.6 million people died in internationally reported disasters, with annual deaths trending upwards. As a result, more countries are acting on the imperative to implement national and local disaster risk reduction strategies. In 2015, 83 countries had legislative and/or regulatory provisions in place for managing disaster risk.  parties to the United Nations Framework Convention on Climate Change are responsible for providing a range of national reports on their efforts to implement the agreement. As of 4 April 2016, 161 intended nationally determined contributions, from 189 of the 197 Parties to the Framework Convention (the European Commission submitted one joint intended 33 UN, Resolution adopted by the General Assembly on 25 September 2015, Transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E (accessed 11 February, 2017). 20 determined contribution) had been recorded by the secretariat of the Framework Convention, providing insights into the efforts many countries are taking to integrate climate change measures into national policies, strategies and planning. Among those countries, 137 parties included an adaptation component in their intended nationally determined contributions. Some countries stressed that adaptation was their main climate change priority, with strong linkages to other aspects of national development, sustainability and security. In order to help countries move forward on climate action, a global stocktaking was established, in the context of the Paris Agreement, E/2016/75 18/28 16-09102 to assess collective progress every five years. The process will begin in 2018, with a facilitative dialogue to review the efforts of parties towards emissions reductions and to inform the preparation of final nationally determined contributions.  as parties scale up climate change action, enhanced cooperation, capacity building and access to financial and technical support will be needed to help many countries realize their priorities, including those identified in intended nationally determined contributions and national adaptation plans. Developed countries have committed to mobilizing, by 2020, $100 billion a year in climate financing from a wide variety of sources to help address the needs of developing countries. By 2025, parties to the United Nations Framework Convention on Climate Change will set a new collective goal of at least $100 billion per year. The Green Climate Fund, a mechanism within the Framework Convention created to assist developing countries in adaptation and mitigation practices, is an important delivery vehicle for this financing. As of May 2016, the Green Climate Fund had mobilized $10.3 billion.  climate change is already affecting the most vulnerable countries and populations, in particular the least developed countries and the small island developing States. The preparation of national adaptation programmes of action under the United Nations Framework Convention on Climate Change 21 is helping the least developed countries address urgent and immediate needs, with support from the Least Developed Countries Fund and the Least Developed Countries Expert Group. In addition, the implementation of national adaptation programs of action will help the least developed countries prepare and seek funding for comprehensive national adaptation plans, thereby reducing their risk of being left behind 34. Nations and other parties negotiating at the UN have highlighted the links between the post-2015 SDG process and the COP 21 Climate Change conference in Paris in December 201535. In May 2015, a report concluded that only a very ambitious climate deal in Paris in 2015 will enable countries to reach the sustainable development goals and targets. The report also states that tackling climate change will only be possible if the SDGs are met. Further, development and climate are inextricably linked, particularly around poverty, gender equality, and energy. The UN encourages the public sector to take initiative in this effort to minimize negative impacts on the environment36. To address climate change, countries adopted the Paris Agreement at the COP21 in Paris on 12 December 2015. The Agreement entered into force shortly thereafter, on 4 November 2016. In the agreement, all countries agreed to work to limit global temperature rise to well below 2 degrees Celsius, and given the grave risks, to strive for 1.5 degrees Celsius. Implementation of the Paris Agreement is essential for the achievement of the Sustainable Development Goals, and provides a roadmap for climate actions that will reduce emissions and build climate resilience. 34 UN Economic and Social Council, Report of the Secretary-General, Progress towards the Sustainable Development Goals, E/2016/75*, 3 June 2016. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=E/2016/75&Lang=E (accessed 13 March, 2017). 35 UNDP, COP21 conference on climate change, Paris, 30 November to 11 December 2015. Available at: http://www.undp.org/content/undp/en/home/presscenter/events/2015/december/COP21-paris-climateconference.html (accessed 13 March, 2017). 36 UN, Sustainable Development Innovation Briefs, Issue 9, “Buildings and construction as tools for promoting more sustainable patterns of consumption and production", March, 2010. Available at: https://docs.google.com/gview?url=http://sustainabledevelopment.un.org/content/documents/no9.pdf&embedded=tr ue (accessed 13 March, 2017). 22 Climate change presents the single biggest threat to development, and its widespread, unprecedented impacts disproportionately burden the poorest and most vulnerable. Urgent action to combat climate change and minimize its disruptions is integral to the successful implementation of the Sustainable Development Goals. The climate change implications of environmentally unsustainable industrial activities are unquestionable. Industry is estimated to account for one third of global CO2 emissions alone. Also, the UNIDO’s mandate of ISID 37 strongly is involves in this process. It emphasizes the need to progress toward industrial development patterns that minimize global warming and other polluting emissions. Mitigation and adaptation to climate change in industry imply the development and widescale application of new technologies, practices, management systems and business models. This not only serves the climate agenda, but is generally also beneficial for business, in terms of operational cost savings and improved productivity, and the environment and society at large. While industrial growth has helped raise tens of millions of people out of poverty in many countries over the last decades, economic growth and urbanization have not come without a price. These trends have increasingly triggered a decline in natural resources through unprecedented levels of mainly industrial air, water and land pollution, and the inefficient use of energy. Environmental degradation and climate change is also likely to intensify other already worrying environmental trends, such as desertification, sea-level rise, more frequent severe weather events and shortages of freshwater, leading in the worst scenarios to civil and cross-border conflict, uncontrollable migration and violence over access to scarce necessities. As in the case of other goals, achieving higher levels of ISID implies the adoption of The Lima Declaration, adopted by UNIDO’s Member States in December 2013, set the foundation for a new vision of inclusive and sustainable industrial development (ISID) and highlighted the role of industrialization as a driver for development. "Inclusive" in this context means that industrial development must include all countries and all peoples, as well as the private sector, civil society organizations, multinational development institutions, and all parts of the UN system, and offer equal opportunities and an equitable distribution of the benefits of industrialization to all stakeholders. The term “sustainable” addresses the need to decouple the prosperity generated from industrial activities from excessive natural resource use and negative environmental impacts. ISID therefore implies that no one is left behind and all parts of society benefit from industrial progress, which also provides the means for tackling critical social and humanitarian needs. Available at: https://isid.unido.org/about-isid.html (accessed 30 March, 2017). 37 23 technologies and practices that decouple natural resource use and environmental impacts from economic growth. Low carbon production pathways form the basis for addressing mitigation of GHG emissions as well as adaptation to the impacts of climate change, including economic, social, environmental and political changes to enable climate resilience. Industry has then to become robust in the context of climate change. Hence, UNIDO contributes significantly to the fight against climate change in both adaptation and mitigation aspects. Under the mitigation component, UNIDO has several initiatives to promote renewable energy – solar, ‘mini-hydroelectricity, wind, geothermal – and the uptake of energy-efficient technologies in industrial processes. It offers support on environmental management and industrial pollution control capacities and policies towards resource efficient and low-carbon industries. Together with UNEP, and at the request of the Committee of the Parties of the UNFCCC, UNIDO established the Climate Technology Centre and Networks to facilitate the transfer, development and deployment of innovative climate technologies in developing countries, and is working towards accreditation under the Green Climate Fund. Under the Montreal Protocol, although geared to a rather different primary goal, UNIDO’s programs generate major climate change benefits as well. Whether used as refrigerants, propellants in aerosol cans, or pesticides, the first generation of alternatives to ozone-depleting substances often exhibit a strong global warming potential. UNIDO is now working with its scientific partners to identify and promote technologies that satisfy both ozone depletion and climate change concerns, with the result that the Montreal Protocol is now acknowledged as the single most effective global instrument to combat climate change. Under the adaptation component, UNIDO leverages its agribusiness development expertise to promote green value and supply chains, reduce post-harvest losses, diversify the income of smallholder farmers, and make rural communities more resilient to the consequences of increasing weather variability, frequency of extreme events and long-term predicted climate change. UNIDO is also actively engaged in performing analytical work on the energy-water-food-ecosystem security nexus. In 24 this context, UNIDO participates in a joint research program together with the other scientific and multilateral partners, looking into both adaptation and mitigation issues with special focus on developing countries. 1.3 Human Rights and Climate change: human rights approach The consequences of climate change threaten the wide range of internationally recognized human rights. Such human rights as: the right to life, the right to adequate food, the right to water, the right to health, human security, etc. First of all, the right to life, which is protected in accordance with ICCPR38, the CRC39 and three regional human rights treaties- American and European Conventions, and also the African Charter 40. Climate change has direct implications on the right to life. At least, the number of people suffering from death is increasing, from diseases or injuries because of heat waves, floods, storms, fires and droughts. Also, the climate change affect the right to health through increased level of hunger, malnutrition and related disorder that impacts on child’s growth, their development, cardio-respiratory morbidity and mortality, that relates to ground-level ozone41. Secondly, the right to health, which is directly connected with the right to water and adequate food. The ICESCR 42 consider this right as “the highest 38 International Covenant on Civil and Political Rights (ICCPR), adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (accessed 27 March, 2017). 39 Convention on the Rights of Child (CRC), adopted on 20 November, 1989. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx(accessed 27 March, 2017). 40 American Convention on Human Rights, the Pact of San José, adopted by many countries on 22 November, 1969, Article 4. Available at: http://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.htm , European Convention of Human Rights, Article 2, adopted by CE, 1950. Available at: http://www.echr.coe.int/Documents/convention_ENg.pdf. African Charter (the Banjul Charter), adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 4. Available at: http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf (accessed 25 March, 2017). 41 Gauri, Varun, Social Rights and Economics: Claims to Health Care and Education in Developing Countries, POLICY RESEARCH WORKING PAPER 3006, March 2003. Available at: https://openknowledge.worldbank.org/bitstream/handle/10986/18278/multi0page.pdf?sequence=1&isAllowed=y. (accessed 25 March, 2017). 42 (ICESCR), adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed 27 March, 2017). 25 attainable standard of physical and mental health”. The right to health is widely protected by international and regional instruments, and, of course, by national constitutions. This right includes timely and appropriate health care, access to safe and potable water, adequate sanitation, an adequate supply of safe food, nutrition, housing, healthy occupational and environmental conditions, access to healthrelated education and information43. These are the basic concepts of right to health, which climate change can badly effect. In accordance with the definition of “adverse effects of climate change” of the UNFCCC, it includes “significant deleterious impacts on human rights and welfare”. The UNFCCC requires States to take health impacts into account in relevant social, economic and environmental policies. The CRC also provides State parties to take appropriate measures to combat disease and malnutrition “through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangerous risks and pollution”44. Climate change has significant effect on health, including the increased (and still increasing) level of malnutrition, number of people, that suffers from death, disease and injury from heat waves, storms, fires, floods and droughts, mortality, which is connected with ground-level ozone. The IPCC also predicts that the greatest impact on health will be in lowincome countries. Especially, the urban poor, the elderly and children, traditional societies, subsistence farmers and coastal populations will suffer. According to the OHCHR report on climate change and human right, climate change is effecting the health of millions of people, including the increasing level of malnutrition, increased diseases, injuries due to extreme weather events, increased burden of diarrhoeal, cardio-respiratory and infectious diseases. Global warming also effects the spread of malaria and other vector borne 43 Report of the Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, U.N. Doc. E/CN.4/2003/58 (2003), paras. 10-36, available at: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session29/Documents/A_HRC_29_33_ENG.DOCX (accessed 25 March, 2017). 44 CRC Article 24, par. 2(c), adopted on 20 November, 1989. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx (accessed 25 March, 2017) 26 diseases in some parts of the world. Moreover, the negative effect will disproportionally be spread in Sub-Saharan Africa, South Asia and the Middle East45. Nowadays, some peoples already suffer from the consequences of the climate change. The right to health of Inuit is already violated. Weather conditions changes, so, fish and game on which the Inuit rely disappear, adversely affecting their nutrition, new diseases move northward, the amount and quality of drinking water decrease, their mental health suffers because of the diminished quality of their lives. Concerning the above mentioned, in accordance with Article 12 of the ICESCR, States are obligatory to take joint and separate actions to achieve the full realization of the right to health. Also, the Alma-Ata Declaration proclaimed that “the gross inequality in the health status of the people, particularly between developed and developing countries, as well as within countries, is politically, socially and economically unacceptable and is, therefore, of common concern to all countries”46. In light of this, we see that the climate change increase the onerous burden of developing countries that already face the problem of protecting the right to health. The right to water, which is considered as the essential right for survival, is recognized as inextricable link with other basic human rights, like the right to adequate standard of living, the right to adequate housing and adequate food 47. Climate change is projected to have serious effect on the availability of water. Even 1 degree of Celsius rise in temperature will threaten water supplies for more than 50 million people, 5 degrees of Celsius rise in temperature will result in 45 United Nations Office of the High Commissioner for Human Rights, Report on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009); available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement (accessed 25 March, 2017) 46 Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12 September 1978, Art. 2. Available at: http://www.who.int/publications/almaata_declaration_en.pdf (Accessed 25 March, 2017) 47 CESCR, General Comment No. 15: The Right to Water, E/C.12/2002/11 (2003). Al- though the ICESCR does not explicitly include the right to water, the Committee decided that the right falls within “the category of guarantees essential for securing an adequate standard of living” and is “also inextricably related to the right to the highest attainable standard of health...and the rights to adequate housing and adequate food.” Id. para. 3, available at: http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf (accessed 25 March, 2017) 27 disappearance of various Himalayan glaciers, which leads to water shortages for a quarter of China’s population and hundreds of millions of Indians48. Such weather disasters, as drought and flooding, will also effect on water supplies. Climate change will exacerbate existing stresses on water resources and compound the problem of access to safe drinking water. All in all, in addition to the duties of States to respect, protect and fulfill this right, States have a general obligation to cooperate with others to achieve full realization of this right. This right is stressed by the basic requirement in Article 3 of UNFCCC, that says: “Cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate appropriate and integrated plans for coastal zone management, water resources and agriculture”49. Among others, the right to adequate housing is also violated. In accordance with article 11 of the ICESCR “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions” 50. Its basic elements include security of tenure, protection against forced evictions, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location and cultural adequacy 51. Climate change effect the right to housing in many ways, as it was mentioned by OHCHR report of 2009: “Sea level rise and storm surges will have a direct impact on many coastal settlements. In the Arctic region and in low-lying island States such impacts have already led to the relocation of peoples and communities. Settlements in low-lying mega-deltas are also particularly at risk, as 48 Stern Review, How Climate Change will Affect People Around the World, available at: http://webarchive.nationalarchives.gov.uk/+/http:/www.hmtreasury.gov.uk/d/Chapter_3_How_climate_change_will_affect_people_around_the_world_.pdf (accessed 25 March, 2017) 49 UNFCCC, adopted on 9 May, 1992, Article 4. Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 27 March, 2017) 50 ICESCR, adopted by General Assembly resolution 2200A (XXI) nf 16 December, 1966. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed 27 March, 2017) 51 CESCR General Comment No. 7 on Forced Evictions, adopted by the United Nations Committee on Economic, Social and Cultural Rights, On 20 May, 1997. Available at: http://www.sarpn.org/documents/d0002751/5Forced_evictions_COHRE_Dec2006.pdf (accessed 27 March, 2017) 28 evidenced by the millions of people and homes affected by flooding in recent years”52. The number of people, who are going to be displaced by climate change range from 50 to 250 million of people by 2050. Migration will be the last way out for many vulnerable groups. As the IOM has observed, the possibility to migrate is considered as mobility as well as resources (financial, social). Moreover, those who will be unable to move from the negative effects of climate change (due to poverty, insecurity, disability, illness, etc.), will suffer mostly. According to the OHCHR report of 2009: “Human rights guarantees in the context of climate change include: (a) adequate protection of housing from weather hazards (habitability of housing); (b) access to housing away from hazardous zones; (c) access to shelter and disaster preparedness in cases of displacement caused by extreme weather events; (d) protection of communities that are relocated away from hazardous zones, including protection against forced evictions without appropriate forms of legal or other protection, including adequate consultation with affected persons”53. In addition to the rights discussed before, climate change also effect the realization of other rights. Climate change was characterized as a “profound denier of freedom of action and a source of disempowerment” 54. Any extreme weather events, which are the consequence of climate change, will lead to increased flood, drought risk, changing weather, crop patterns, among others will likely impede the realization of the rights to private and family life 55, property56, means of subsistence 57, freedom of residence 58 and movement59. 52 Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (2009), para. 36, available at: http://www2.ohchr.org/english/issues/climatechange/docs/A.HRC.10.61_AUV.pdf (accessed 27 March, 2017) 53 Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General, Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (2009), para. 36, available at: http://www2.ohchr.org/english/issues/climatechange/docs/A.HRC.10.61_AUV.pdf (Accessed 27 March, 2017). 54 United Nations Development Programme, Human Development Report 2000: Human Rights and Human Development (2000). Available at : http://hdr.undp.org/sites/default/files/reports/261/hdr_2000_en.pdf (accessed 27 March, 2017). 55 UDHR, adopted by the United Nations General Assembly on 10 December, 1948, Article 12. Available at: http://www.un.org/en/universal-declaration-human-rights/index.html . ICCPR, adopted by General Assembly 29 For indigenous groups of people like Inuit, climate change impacts the way of life, protected rights and interests 60, especially the right to the benefits of their culture61 and the right to freely dispose of natural resources. For such groups, whose very existence is threatened, who live in small island states, climate change also threatens their right to self-determination, which is protected by ICCPR and ICESCR. Human Development Report shows that inequalities within country are a marker for vulnerability to climate shocks 62. “The effects of climate change will be felt most acutely by those segments of the population who are already in vulnerable situations due to factors such as poverty, gender, age, minority status, and disability” 63. resolution 2200A (XXI) of 16 December 1966, Article 17. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx. CRC Article 16, adopted on 20 November, 1989. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx. European Convention on Human Rights, Article 8, adopted by CE, 1950. Available at: http://www.echr.coe.int/Documents/convention_ENg.pdf. American Declaration on Human Rights, the Pact of San José, adopted by many countries on 22 November, 1969, Article 5. Available at: http://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.htm (accessed 27 March, 2017). 56 UDHR adopted by the United Nations General Assembly on 10 December, 1948, Article 17, Available at: http://www.un.org/en/universal-declaration-human-rights/index.html. American Declaration of the Rights and Duties of Man, adopted by the nations of the Americas at the Ninth International Conference of American States in Colombia, in April 1948, Article 23. Available at: https://www.cidh.oas.org/Basicos/English/Basic2.american%20Declaration.htm . (accessed 27 March, 2017) 57 ICCPR, Article 1(2), adopted by General Assembly resolution 2200A (XXI) of 16 December 1966. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (accessed 27 March, 2017). 58 UDHR, adopted by the United Nations General Assembly on 10 December, 1948, Article 13. Available at: http://www.un.org/en/universal-declaration-human-rights/index.html (accessed 1 April, 2017). 59 Id. 60 Convention Concerning Indigenous and Tribal Peoples, adopted by International Labor Organization on 27 June, 1989. Available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169 (accessed 30 March, 2017). 61 UNDHR, adopted by the United Nations General Assembly on 10 December, 1948, Article 27. Available at: http://www.un.org/en/universal-declaration-human-rights/index.html. International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200A (XXI) of 16 December 1966, Article 15. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx. American Declaration on the Rights and Duties of Man, April 1948, OAS Resolution XXX, OEA/Ser.L.V/II.82 doc.6 rev.1, Article 13 .Available at: http://www.oas.org/en/sla/dil/docs/American_Declaration_Right_Duties_Man.pdf (accessed 21 March, 2017). 62 Human Development Report 2007/8, Fighting Climate Change: Human Solidarity in a divided world, UNDP. Available at; http://hdr.undp.org/sites/default/files/reports/268/hdr_20072008_en_complete.pdf (accessed 1 April, 2017). 63 United Nations Office of the High Commissioner for Human Rights, Report on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009); available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement (accessed 25 March, 2017). 30 For example, there is a growing body of scholarship that documents the gendered impacts of climate change and climate change policy and the disproportionate impacts on women’s rights. The nature of that vulnerability varies widely, cautioning against generalization. However, because women form a disproportionate share of the poor in developing countries and communities that are highly dependent on local natural resources, women will in many instances, be disproportionately vulnerable to the impacts of climate change 64. The situation is further exacerbated by gender differences in property rights, political participation, access to information and in economic, social and cultural rights 65. The CEDAW Committee has issued a statement on Gender and Climate Change as a contribution to the COP 13 negotiations, drawing attention to the gender-differentiated impacts of climate change and the need for equal participation of women and men in decision-making. Another vulnerable group is children. The OHCHR report says: “overall, the health burden of climate change will primarily be borne by children in the developing world”66. Recent research by the United Nations Children’s Fund (UNICEF) identifies a wide range of circumstances – ranging from physical attributes of children to structural factors determining the distribution of economic power and social roles, such as the gendered divisions of labor – that will render climate change especially threatening to children by exacerbating existing health risks; destroying clinics, homes and schools; disrupting the natural resource base sustaining community livelihoods and nutrition and water security; provoking population displacements; and undermining support structures that protect children 64 Women for Climate Justice Position Paper, UNFCCC Cop 13, Bali, Indonesia, December 2007). Available at: https://www.gdnonline.org/resources/gendercc_GDN_positionpaper_COP13.pdf (accessed 1 April, 2017). 65 Id. 66 Nations Office of the High Commissioner for Human Rights, Report on the Relationship Between Climate Change and Human Rights, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009); available at: https://documents-ddsny.un.org/doc/UNDOC/GEN/G09/103/44/PDF/G0910344.pdf?OpenElement (accessed 25 March, 2017). 31 from harm67. Extreme weather events and reduced quantity and quality of water already leads to malnutrition, child death and different illnesses. Earlier, governments considered climate change as an ecological problem, and more recently, as an economic one. The social and human rights implications of climate change have not been widely recognized. The effects of climate change may threaten a broad range of internationally accepted human rights, including the rights to life, to food and to a place to live and work. In addition, policies designed to address climate change themselves have the potential to impact on human rights. For this reason, it is important to look at how a human rights-based approach can contribute to the development of climate change policy. 1.4 Climate change and human rights: environmental law approach In accordance with Article 38 of the Statute of the International Court of Justice (ICJ), the sources of international law are principally treaties, customary law, and general principles of law 68. Among general norms, there are jus cogens norms, that are defined in article 53 of the 1969 Vienna Convention on the law of treaties as norms of general international law “accepted and recognized by the international community of States as a whole as norms “from which no derogation is permitted” and which can only be modified by subsequent norms of general international law “having the same character” 69. Climate change law, human rights law and other relevant bodies of international law that concerns trade and intellectual property rights, have evolved largely independently of one another. Yet these bodies of law may all have distinctive and essential roles to play in relation to particular facets of United Nations Children’s Fund, Climate Change and Children: A Human Security Challenge, UNICEF Innocenti Research Centre in cooperation with UNICEF Programme Division, November 2008. Available at: https://www.unicef-irc.org/publications/pdf/climate_change.pdf (accessed 25 March, 2017). 68 Statute of ICJ, 1945, established in 1945 by the UN Charter. Available at: http://www.icjcij.org/documents/?p1=4&p2=2 (accessed 2 April, 2017). 69 1969 Vienna Convention on the law of treaties. Available at: http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (Accessed 2 April, 2017). 67 32 environmental or social problems, and may interact with each other in unpredictable ways 70. The first World Climate Conference was convened by the WMO in 1979. Work on a possible legal framework governing climate change commenced in 1990 after the second World Climate Conference. The first session of the Intergovernmental Negotiating Committee for a framework convention was held in 1990. The UN Framework Convention on Climate Change (UNFCCC) was opened for signature at the Rio Conference on Environment and Development in 1992 and entered into force soon afterwards in 1994. While some scholars are of the view that the climate change regime does not go far enough, others have referred to the two decades since the 1980s as having seen a “remarkable evolution” in relation to climate change law 71. The legal regime governing climate change adopts a framework-protocol approach, similar to the approach taken in relation to many other environmental issues: acid rain and ozone depletion are good examples. There are many advantages and disadvantages of this approach. While flexibility, buying more time to consolidate political support, particularly if there is scientific uncertainty, and information exchange and further research are some of the advantages, vagueness, delay and lack of precise obligations in the framework convention are some of the disadvantages. A good example of a legal regime that adopted a framework-protocol approach in the face of scientific uncertainty and lack of political consensus is provided by the regime governing ozone depletion. 70 Howse, Robert & Ruti G. Teitel, Beyond the Divide: The Covenant on Economic, Social and Cultural Rights and the World Trade Organization, available at: http://www.law.nyu.edu/sites/default/files/ECM_PRO_060605.pdf (accessed 2 April, 2017). 71 Bodansky & Rajamani, The Evolution and Governance Architecture Draft, October 28, 2012 Forthcoming in International Relations and Global Climate Change, eds. By Detlef Sprinz and Urs Luterbacher (2d)ed., MIT Press, 2013, available at: http://cprclimateworkshop.cprindia.org/uploads/2/3/7/5/23756750/bodansky_and_rajamani__evolution_and_governance_architecture_of_the_climate_change_regime.pdf (accessed 14 April, 2017). 33 The Vienna Convention on the Protection of the Ozone Layer 72 was adopted in 1985 despite the fact that the causal link between ozone depletion and CFCs was not clearly established; barely two years later, the Montreal Protocol on Substances that Deplete the Ozone Layer 73 was adopted. This is the only environmental treaty regime to have achieved universal participation and is widely regarded as a success story in international environmental law 74. The climate regime sought to replicate this model, but that is probably where the similarities end – the UNFCCC was adopted at the Rio Conference in 1992 but it took five years for the international community to adopt a protocol with more stringent obligations. It has been noted that the UNFCCC is clearly more selfconscious as a framework convention than the Vienna Convention. While an elaborate roadmap was adopted at Bali in 2007 to govern the new legal regime when the first commitment period ended in 2012, the international community was unable to reach a consensus to do so. Despite high expectations that a protocol would be adopted at Copenhagen, only a soft law instrument was adopted and that too was outside the formal negotiating process. As no protocol was forthcoming, parties agreed in 2012 to extend the Kyoto Protocol, despite its drawbacks, for another commitment period (2013–20) with the international community agreeing to draft a protocol by 2015 which would become operational by 202075. The question, of course, is whether the international community could afford to wait until 2020 to adopt a post-Kyoto regime, eight years after the obligations under Kyoto were set to expire. An interesting feature of the climate regime is the definite tendency to adopt soft law instruments76. 72 UNEP, The Vienna Convention for the Protection of the Ozone Layer. Available online at: http://ozone.unep.org/new_site/en/Treaties/treaties_decisions-hb.php?sec_id=155 (accessed 14 April, 2017). 73 UNEP, The Montreal Protocol on Substances that Deplete the Ozone Layer. Available online at: http://ozone.unep.org/new_site/en/Treaties/treaties_decisions-hb.php?sec_id=5 (accessed 14 April, 2017). 74 Kyoto Protocol to the UN Framework Convention on Climate Change. Available online at: http://unfccc.int/resource/docs/convkp/kpeng.pdf (accessed 13 April, 2017) 75 UNFCCC Doha Amendment to Kyoto Protocol, 8 December, 2012. Available online at: http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf (accessed 24 April, 2017). 76 Vihma, A. (2013) ‘Analyzing Soft Law and Hard Law in Climate Change in Climate Change and the Law’, Springer Science & Business Media, 4 December, 2012. Available at: https://books.google.ru/books?id=oJAH17vc- 34 While the two earlier instruments on climate change squarely fall within hard law (although it is difficult to refer to commitments in framework conventions as hard law, nonetheless they are embodied in a treaty, and are hence binding), the latter instruments all fall within the realm of soft law, raising the issue whether this trend will continue. Certainly, in some fields of international law such as environmental protection, soft law instruments have played a significant role. However, the commitments in these soft law instruments cannot be enforced and no repercussions attach to non-compliance. On the other hand, there is no denying that these instruments are flexible and politically more palatable, precisely because they are non-binding. It is far easier to adopt a nonbinding document than a treaty, and therefore speedy adoption for issues that require speedy action is an attractive feature. Alarmed perhaps by the important role that these soft law instruments are playing in shaping international law and state practice, states have begun to attach “interpretative statements” to these instruments. No doubt, both hard law and soft law have their own advantages and disadvantages, and perhaps a combination of both should inform a process as complex as climate change, in order to give states the flexibility they need and at the same time ensure that some obligations remain hard and that non-compliance can be addressed. Furthermore, possible fragmentation of international law by climate change law has attracted the attention of the international legal community. When legal systems mature, it is inevitable that certain areas become specialized with their sui generis systems and concerns are raised about possible fragmentation. Not only have areas that were hitherto unknown in international law become a separate branch of international law, but topics within those specialized areas have assumed a life of their own. Thus, for example, not only has international environmental law become a specialized branch of international law 2EC&pg=PA142&lpg=PA142&dq=Vihma,+A.+(2013)+‘Analyzing+Soft+Law+and+Hard+Law+in+Climate+Chan ge+in+Climate+Change+and+the+Law’&source=bl&ots=7lE0_Y7ius&sig=9p6ZXLS1_m2YFLcgxWtK6l19h4&hl=ru&sa=X&ved=0ahUKEwj6lLpwNHTAhWJhlQKHQWMBK0Q6AEISTAG#v=onepage&q=Vihma%2C%20A.%20(2013)%20%E2%80%98An alyzing%20Soft%20Law%20and%20Hard%20Law%20in%20Climate%20Change%20in%20Climate%20Change% 20and%20the%20Law%E2%80%99&f=false (accessed 24 April, 2017). 35 in its own right, but topics such as biodiversity, climate change, ozone depletion and hazardous waste have become specialized topics as well. Not only that, we have further specialization within climate change itself, showing just how complex this issue has become within a short span of time REDD77, climate migration, carbon trading, clean development mechanisms are some of the topics, not to mention women and climate change, indigenous groups and climate change, the Arctic and climate change, etc. Just how quickly this area of law has grown and branched out into some complex areas is itself pretty remarkable. Three key concepts have been identified as informing climate change law and policy: (a) climate change is an extremely complex issue “at the interface of science, law, politics, culture, and economics”; (b) law relating to climate change is not just environmental; and (c) it cannot be fully addressed through international negotiations under the UNFCCC framework and requires action at multiple levels by a multitude of actors78. Climate change law is largely based on mitigation, although as consequences of climate change unfold, adaptation will play a more prominent role for the current and at least the next generation79. In the 1990s, the international community was optimistic enough, perhaps based on its experience with the ozone issue, to think that it could solve the climate change problem. It is increasingly becoming clear that, in the extremely unlikely event of achieving zero emissions today, climate change will continue to take place because of the historic emissions that are already in the atmosphere. Moreover, developing countries and vulnerable communities in developed countries will be disproportionately affected by climate change. These countries and communities will need assistance to adapt to climate 77 REDD, Reducing emissions from deforestation and forest degradation in developing countries. Available at: http://redd.unfccc.int (accessed 10 April, 2017). 78 Bodansky & Rajamani, The Evolution and Governance Architecture Draft, October 28, 2012 Forthcoming in International Relations and Global Climate Change, eds. By Detlef Sprinz and Urs Luterbacher (2d)ed., MIT Press, 2013, available at: http://cprclimateworkshop.cprindia.org/uploads/2/3/7/5/23756750/bodansky_and_rajamani__evolution_and_governance_architecture_of_the_climate_change_regime.pdf (accessed 10 April, 2017). 79 Ib., Chapter 5. 36 change. The UNFCCC places a greater burden on developed countries in relation to both mitigation and adaptation. The climate change legal regime has moved from mitigation to encompass adaptation, with more emphasis on adaptation for vulnerable communities and states. Although the United States withdrew from the Kyoto Protocol in 2001, President Obama issued an Executive Order on climate change adaptation in 2013 80. The Intergovernmental Panel on Climate Change (IPCC) was established by the UNEP, the WMO and the WHO in 1988. Since then, the IPCC has issued five assessment reports, the latest being the one in 2014. From its start, the IPCC has attributed climate change to human activities, but its level of certainty has increased from likely to very likely, and most recently to extremely likely (which has been translated into general parlance as being 95% certain) that climate change is man-made, ending years of debate about the human contribution to climate change. The IPCC, an eminent body of more than 100 scientists from all over the world, is now regarded as the authority on science relating to climate change. The task of the IPCC is not to carry out research itself, but to synthesize research on climate change done by other scientists. Translating such science into policy and then into law is the task of international negotiators and lawyers. While, on the face of it, this seems easy enough, the reality is very different. For example, currently there are 196 states in the international community whose priorities and vulnerabilities are different, as are their emission levels. Moreover, there are, inter alia, economies based on fossil fuels, oil-exporting economies, countries at varying levels of development, countries whose economies are based on capitalist economies, and those who consume much more in terms of resources than others. Climate change is intertwined with every aspect of life and engulfs the entire international community so that a holistic approach that encompasses every sector of society and is based on international cooperation is necessary to address it effectively. The White House (2013) Executive Order – Preparing the United States for the Impacts of Climate Change. Available online at: www.whitehouse.gov/the-press-office/2013/11/01/executive-order-preparing-united-statesimpacts-climate-change (accessed 10 April, 2017). 80 37 While deep North–South divisions plagued the drafting and the negotiating of the framework convention, other divisions were visible too 81. Within the G-77, there were divisions between low-lying states and oil-producing states, and countries with a sizable forest cover; within industrialized countries, the European Union and the United States were at loggerheads, while Australia did not favor binding emission reductions either. Developing countries have consistently maintained that developed countries should repay their climate debt and be held responsible for their historic contribution. The United States, for example, accounts for approximately onequarter of all greenhouse gases. Although China overtook the US as the highest emitter of carbon dioxide in 2007, its per capita emissions are still quite low. If emissions from deforestation are factored in, Indonesia will rank as the fifth highest emitter of carbon dioxide. While the common but differentiated responsibility (CBDR) principle seeks to give effect to the disparity in the global community and takes into account the historic contribution to the problem (although the principle avoids any reference to historic responsibility), emissions from emerging economies are fast increasing and must be factored into the postKyoto legal regime. States that are particularly vulnerable to climate change – small island states – formed themselves into an alliance to better lobby at the international level. Faced with possible extinction, these countries, together with low-lying states such as Bangladesh which are particularly vulnerable to sea-level rise associated with climate change, have consistently advocated for deep cuts in emissions82. At the other extreme were the oil-producing states which stood to lose from any restrictions on fossil fuel consumption and reduced prices. They demanded the establishment of a compensation fund – to compensate them for 81 Oberthur, S. and Ott, H. E. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century, Berlin: Springer, p. 13; Wold et al., supra note 3, p. 135 (hereinafter Oberthur and Ott). Available at: https://books.google.com/books?id=qp7Wt9GvccC&printsec=frontcover&hl=ru&source=gbs_ViewAPI#v=onepage&q&f=false (accessed 10 April, 2017). 82 Oberthur, S. and Ott, H. E. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century, Berlin: Springer, p. 13; Wold et al., supra note 3, p. 135. Available at: https://books.google.com/books?id=qp7Wt9GvccC&printsec=frontcover&hl=ru&source=gbs_ViewAPI#v=onepage&q&f=false (accessed 10 April, 2017). 38 financial losses from reduced demand for oil83. Moreover, countries with considerable forest cover had their own concerns. The United States in particular wanted forest conservation included in the climate change regime as carbon sinks. However, Brazil and other Amazon states objected to the “internationalization” of the Amazon, fearing that the burden will shift from developed countries to the forested countries to protect their forest cover as carbon sinks, diverting attention from developed countries to reduce their GHG emissions. Other forest-rich countries, on the other hand, saw this as an opportunity to obtain significant financial support to protect their forests and were in favor of such a scheme 84. Eventually, this would lead to the adoption of the REDD (Reducing Emissions from Deforestation and Forest Degradation) and REDD+ program85. The only other industrialized country not to have ratified Kyoto was Australia, but the US lost its ally in 2007 when Australia ratified Kyoto in the run-up to the Bali conference. Canada, although a party to Kyoto, made it quite clear that it had no intention of fulfilling its obligations under it and in December 2011 gave notice that it was formally withdrawing from the Protocol 86. The United Nations Framework Convention on Climate Change was opened for signature at the Rio Conference on Environment and Development in 1992. The Convention embodies several noteworthy features: it specifically embodies principles that should guide the parties; obligations are based on the CBDR principle and states are categorized as all parties, Annex I countries and non-Annex I countries; it established an institutional framework to implement the provisions of the convention – a Conference of Parties (COP), a subsidiary body on scientific and technological advice, a subsidiary body for implementation and a secretariat. 83 Ib. Oberthur, S. and Ott, H. E. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century , Berlin: Springer, p. 13; Wold et al., supra note 3, p. 135 (hereinafter Oberthur and Ott). Available at: https://books.google.com/books?id=qp7Wt9GvccC&printsec=frontcover&hl=ru&source=gbs_ViewAPI#v=onepage&q&f=false (accessed 10 April, 2017). 85 Ib. 86 Government of Canada, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act, 2012. Available at: www.ec.gc.ca/Publications/default.asp?lang=En&n=EE4F06AE-1&xml=EE4F06AE-13EF453B-B633-FCB3BAECEB4F&offset=3&toc=show (accessed 14 April 2017). 84 39 The convention does not permit reservations, although parties can withdraw from the treaty three years after the convention has entered into force for that party after giving notice of such withdrawal87. The Convention identifies several categories of states which will be especially vulnerable: “low-lying and other small island countries, countries with low-lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification, and developing countries with fragile mountainous ecosystems” 88, those countries whose economies are dependent on fossil fuel production, use and exportation. Article 4 which embodies commitments contains another list in addition to those identified above: countries with forested areas and areas liable to forest decay; countries with areas prone to natural disasters; countries with areas of high urban atmospheric pollution; countries with areas with fragile ecosystems; and land-locked and transit countries. Least developed countries are identified as another category which requires special consideration. The main objective of the Convention is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” 89. While Article 2 provides some guidance, the Convention does not define “dangerous anthropogenic interference: “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” 90. Clearly, this is an instance where law depends on science to set the threshold of dangerous interference. This limit was not settled in legal texts until the Copenhagen Accord was adopted in 2009, although scientists were long in agreement that global average temperature should not increase more than two degrees Celsius, above which there would be catastrophic consequences for human 87 UNFCCC, adopted on 9 May, 1992, Preamble. Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 14 April 2017). 88 Ib. 89 Ib. 90 Ib., Art. 4 40 beings, biodiversity and life on the planet as a whole 91. The broad commitments of all parties were established as follows: develop national inventories of sources of emissions and removal by sinks of all GHGs not controlled by the Montreal Protocol; formulate measures to mitigate climate change; cooperate in the development and transfer of technology “in all relevant sectors, including the energy, transport, industry, agriculture, forestry and waste management sectors”92; promote sustainable management of all sinks and reservoirs including biomass, forests and oceans; cooperate in preparing for adaptation to climate change impacts; take climate change into consideration in all social, environmental and economic policies and actions; promote and cooperate in scientific research; exchange scientific, legal and other information; promote public awareness and education relating to climate change; and inform the Conference of Parties of measures taken to implement the Convention. In addition to these general obligations, Annex I parties (developed countries) have further obligations: adopt national policies and measures on climate change mitigation including limiting emissions and protecting sinks; communicate, within six months after the Convention enters into force, the measures it intends to take to bring the anthropogenic emissions of GHGs to the 1990 levels individually or jointly. The COP is required to evaluate the adequacy of these plans at its first session. Furthermore, developed country parties are required to provide new and additional funding to developing countries to meet their obligations under Article 12. They are also required to help those developing countries that are particularly vulnerable to the adverse impacts of climate change to meet the cost of adaptation and to facilitate the transfer of technology. Relying on the CBDR principle, the Convention ties the fulfillment of obligations by developing countries to the provision of financial resources and transfer of technology to them by developed countries. This is a new development in “Two degree Celsius climate change target ‘utterly inadequate’, expert argues,” ScienceDaily, 27 March 2015. Available online at: http://www.sciencedaily.com/releases/2015/03/150327091016.htm (accessed 2 April 2017). 92 UNFCCC (1992) United Nations Framework Convention on Climate Change, Art.4. Available online at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 14 April 2017). 91 41 international environmental law and reflects the extent to which North–South issues have influenced the legal architecture. While the international community always comprised of both rich and poor countries, for purposes of the law they were all equal93 and the law did not differentiate between them vis-à-vis their legal obligations. However, of late, differential norms are being increasingly adopted in order to reflect the disparity among states in the global society and to ensure that every state participates in the legal regime. While, on the face of it, UNFCCC seems vague and broad, it does embody fairly precise obligations for all states and more specifically for developed countries94. It provided a good foundation for states to collect relevant information, promote further research, help developing countries with both mitigation and adaptation, compile national inventories of emission sources by sector as well as sinks, and evaluate climate impacts of all activities. Of course, the international community knew that this was the first step and that more stringent obligations with regard to emission reductions were necessary. The Convention, as a whole, is rather silent on the impact of climate change on human beings: it refers to human health in relation to adverse effects of climate change95 and recognizes the need to protect the climate for the benefit of present and future generations. It also refers to the obligation of Annex I countries to help developing countries and those that are vulnerable to climate change to adapt. While it refers to states, rather than individuals, the beneficiaries of adaptation programs are necessarily human beings. However, the Convention can be characterized essentially as an environmental treaty, seeking to protect interests of states, particularly those who are especially vulnerable to climate change. 93 The UN is based on the principle of sovereign equality of all its members, Article 2(1) of the UN Charter. Available online at: www.un.org/en/documents/charter (accessed 2 April, 2017). 94 Oberthur, S. and Ott, H. E. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century, Berlin: Springer, p. 13; Wold et al., supra note 3, p. 135. Available at: https://books.google.com/books?id=qp7Wt9GvccC&printsec=frontcover&hl=ru&source=gbs_ViewAPI#v=onepage&q&f=false (accessed 2 April, 2017). 95 “Adverse effects of climate change” means changes in the physical operation of socio-economic systems or on human health and welfare, UNFCCC, Art. 1, adopted on 9 May, 1992. Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 27 March, 2017). 42 The Kyoto Protocol was adopted in 1997 96. Under the Protocol, Annex I countries agreed to reduce the emissions of GHGs included in Annex A by 5 percent below their 1990 levels within the first commitment period (2008–12)97, with demonstrable progress to be made by 2005. The parties can fulfill their commitment either individually or jointly, and the Protocol embodies four flexibility mechanisms:  Joint Implementation;  emission trading;  the bubble; and  the Clean Development Mechanism. While the Kyoto Protocol has been criticized for not going far enough and traversed a very rocky road, the fact that industrialized countries agreed to cut their GHG emissions at all is a significant achievement. These emissions are tied to activities that are economically lucrative and cutting emissions by 5 percent below 1990 levels signaled the fact that the international community was willing to take action to protect the environment, even if some uncertainties still remained, most notably in relation to the scale of the problem and the timelines involved. Moreover, the first commitment period gave time for the international community to conduct further research and consolidate international support for more stringent action for the second commitment period. The withdrawal by the US from the Kyoto Protocol in 2001 dealt a severe blow to the legal regime not just environmentally but also politically. Here was the highest contributor to the problem opting out of the legal regime, giving rise to grave concerns about the future of the legal regime. Moreover, developing countries that were becoming significant emitters themselves questioned why they should accept emission reduction obligations when the highest emitter has not 96 Oberthur, S. and Ott, H. E. (1999) The Kyoto Protocol: International Climate Policy for the 21st Century, Berlin: Springer, p. 13; Wold et al., supra note 3, p. 135 (hereinafter Oberthur and Ott). Available at: https://books.google.com/books?id=qp7Wt9GvccC&printsec=frontcover&hl=ru&source=gbs_ViewAPI#v=onepage&q&f=false (accessed 21 March, 2017). 97 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Article 3, December 11, 1997. Available at: http://www.kyotoprotocol.com/resource/kpeng.pdf (accessed 21 March, 2017). 43 accepted any obligations and is outside the treaty regime. The US contended that there was scientific uncertainty surrounding climate change and that it was unfair that developing countries such as China and India did not have binding obligations under Kyoto. Unfortunately, this finger-pointing continues to the present. The only ally that the US had – Australia – ratified Kyoto in the run up to the Bali conference in 2007. Similar to the UNFCCC, the Kyoto Protocol contains no reference to human rights. While environmental and economic considerations have been central to the climate change legal regime, the same cannot be said for its human rights aspects. While vulnerability may provide the conceptual framework to address human rights within Kyoto, vulnerability is mainly mentioned in relation to states, not individuals. Equity may provide the link to human rights, but that is also utilized in relation to states, not individuals. Given the close link between climate change and human rights, it is rather surprising that the language of rights is totally absent in the early documents on climate change. While it is not proposed to discuss each and every document adopted by the Conference of Parties, in this section we propose to flag some milestones after the Kyoto Protocol was adopted in 1997. The Bali Action Plan remains an influential document, while the Copenhagen Accord signified the move towards the demise of the multilateral negotiating process. At Doha, parties extended the Kyoto Protocol to a second commitment period and agreed to adopt a legally binding document by 2015. The negotiators agreed in May 2006 that there should be no gap between commitments under the first commitment period and the second commitment period. However, the US initially refused to commit to any substantial cuts, and emerging emitters such as India and China refused to commit to any reductions if other developed countries refused to do so. The EU called for a 20 percent reduction by 2020 if no global agreement is reached and 30 per cent if there is agreement. The 20 percent reduction is binding on all EU states. After much drama, the Bali Action Plan was adopted by the parties. It is essentially 44 an agreement to agree, but scholars concur that it is a crucial document that sets the parameters and goals for the negotiations. The Bali Action Plan identified four main themes for future negotiations: mitigation, adaptation, financing and technology. For the first time, developing countries agreed to adopt nationally appropriate mitigation measures and developed countries agreed to adopt measurable, reportable and verifiable mitigation measures which became a contentious issue for some countries, most notably China. The Bali Action Plan also refers to vulnerability assessments and the need to take into account the immediate and urgent needs of developing countries that are particularly vulnerable to climate change, especially the least developed countries and small island developing states, as well as those in Africa affected by drought, desertification and floods. Despite these references, rights language is largely absent from the text, except in the limited context discussed below. The Bali Action Plan is the first document in the climate change legal regime to bring a human rights focus, albeit limited, into the discussion. It affirms that action on adaptation should follow: a country-driven, gender-sensitive, participatory and full transparent approach, taking into consideration vulnerable groups, communities and ecosystems; and be based on and guided by the best available science and, as appropriate, traditional and indigenous knowledge; with a view to integrating adaptation into relevant social, economic and environmental policies and actions, where appropriate98. Although the language here is soft, with many qualified statements, the fact that it refers to the need to be gender-sensitive, the need to be guided by traditional and indigenous knowledge, and to ensure the participation of relevant stakeholders is evidence that human rights language is slowly creeping into the climate change regime. The Bali Action Plan further refers to climate change-induced displacement, migration and planned relocation. It also requests developing country parties, when 98 Bali Action Plan, adopted at a December 2007 conference in Bali, Indonesia by parties to the United Nations Framework Convention on Climate Change and the Kyoto Protocol, para 12. Available online at: http://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf (accessed 14 April, 2017). 45 developing their national strategies and action plans, to address, inter alia, drivers of deforestation and forest degradation, land tenure issues, forest governance issues, gender considerations, “ensuring the full and effective participation of relevant stakeholders, inter alia, indigenous peoples and local communities” 99. Annex I lays down guidelines for the REDD program and specifically refers to the UN Declaration on the Rights of Indigenous Peoples and the need to respect the knowledge and rights of indigenous people and members of local communities. It also refers to the need to get full and effective participation of all relevant stakeholders, particularly indigenous and local communities. It also requires parties to take into account the need for sustainable livelihoods of indigenous and local communities and their interdependence on forests. However, the REDD program and indigenous rights have become rather controversial, with some arguing that the REDD program does not adequately take indigenous rights into consideration. Much anticipation surrounded the climate conference in Copenhagen as the world looked for states to adopt a framework governing the post-Kyoto regime after 2012, as agreed by them in Bali. However, what transpired at Copenhagen disappointed the global community, particularly those who are already experiencing adverse impacts of climate change. Copenhagen was a failure diplomatically and legally. Although many in the United States heralded the outcome as a diplomatic success that freed the climate issue from the chains of an unworkable UN process, by almost any measure the Copenhagen summit has to be viewed as a disappointment 100. Rather than a detailed, binding framework for furthering global climate cooperation, the parties left Copenhagen with a general political statement that privileges the voluntary actions of states and devalues the role of international law and global climate governance 101. 99 Ibid., par. 72. Copenhagen Conference and the Accord have attracted considerable literature. See, generally, Muller, B. (2010) Copenhagen 2009: Failure or Final Wake-up Call for Our Leaders? Available online at: www.oxfordenergy.org/2010/03/copenhagen-2009-failure-or-final-wake-up-call-for-our-leaders (accessed 13 April, 2017). 101 www.indiaRajamani L., Neither Fish nor Fowl. Available online at: seminar.com/2010/606/606_lavanya_rajamani.htm (accessed 24 April, 2017). 100 46 The Accord was drafted by a handful of states led by the US and was adopted without being referred to the Conference of Parties, angering many negotiators. In the end, due to objections by a number of states, the COP merely “took note” of the Accord. Thus, in the hierarchy of soft law instruments, the Copenhagen Accord probably falls on to the lowest rung. States are to commit to voluntary reduction targets and many states, both Annex I and non-Annex I countries, deposited their voluntary commitments with the UNFCCC secretariat. They chose their own reduction amounts, the baseline year and target year, leading to the question whether bottom-up, voluntary commitments were better than topdown, binding obligations. It also raised questions about diluting the legal standards and whether lack of uniformity would lead to incoherence in the legal framework. Whether a bottom-up approach or a top-down approach is better remains to be seen, but the fact that so many states made pledges under the Copenhagen Accord is itself significant. Moreover, the fact that non-Annex I countries made commitments is also significant. However, the consensus seems to be that these pledges, taken together, do not take us close to the levels necessary to avoid a temperature increase of two degrees Celsius. Furthermore, there is no mechanism for non-compliance as they are voluntary commitments only. The parties referred to climate change as “one of the greatest challenges of our time” and stated that “deep cuts in global emissions are required according to science”102. Annex I countries have agreed to quantified economy-wide emission targets for 2020 and non-Annex I parties will implement mitigation actions to be submitted to the Secretariat by 31 January 2010. As of 10 February 2010, 67 countries representing more than 80 percent of global emissions have made submissions to the UNFCCC Secretariat. The Accord recognized the special situation of least developed countries and small island developing countries as well as the crucial role played by forests. The 102 UNFCCC (2009), Copenhagen Accord, par. 1, The Conference of the Parties (COP), at its fifteenth session, took note of the Copenhagen Accord of 18 December 2009 by way of decision 2/CP.15 (hereinafter Copenhagen Accord). Available online at: http://unfccc.int/documentation/documents/advanced_search/items/6911.php?priref=600005735#beg (accessed 15 April, 2017), 47 parties agreed to establish a mechanism including REDD+ to provide positive incentives for developing countries to protect their forest cover. A Copenhagen Green Climate Fund was established and developed countries pledged to provide “scaled up, new, additional, predictable and adequate funding as well as improved access” to the tune of US $30 billion for the period 2010–12 with balance allocation between adaptation and mitigation 103. It is not clear whether even a fraction of these funds was allocated to developing countries. Although a promising start was made in the Bali Action Plan, rights language is totally absent in the Copenhagen Accord, despite the publication of the report of the UN Office of the High Commissioner for Human Rights on the link between climate change and human rights 104. This is similar to the adoption of the UN General Assembly resolution on the right to development in 1986 105 without any reference to sustainable development at a time when the World Commission on Environment and Development (WCED) was putting together its own report. North–South issues continue to plague climate change negotiations: on the one hand, developed countries insisted that the post-Kyoto legal regime should include all states, and, on the other, developing countries continued to insist that they were not responsible for the emissions historically, have less capacity to respond and therefore should not have binding emission reduction obligations. The legal form for the post-Kyoto regime was left unresolved. Labeling the Copenhagen Accord as “rotten,” Rajamani notes that not only is it weak but it also faces procedural and legal challenges to its operationalization 106. It was reached among 29 states, and although it included all major emitters and economies and those representing the most vulnerable and the least developed, it left all the other states out. Rajamani points out that if the Accord was a 103 Ib. Human Rights Council (2008) Resolution 7/23 Human rights and climate change, A/HRC/RES/7/23, United Nations. Available online at: http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_23.pdf (accessed 17 April, 2017). 105 Declaration on the Right to Development adopted by General Assembly, A/RES/41/128, 4 December 1986. Available at: http://www.un.org/documents/ga/res/41/a41r128.htm (accessed 17 April, 2017). 106 Rajamani, L. Neither Fish nor Fowl. Available online at: www.indiaseminar.com/2010/606/606_lavanya_rajamani.htm (accessed 24 April, 2017). 104 48 multilateral treaty among 29 states, it would have had much force. It was drafted on the basis that it would be adopted as a COP decision. The legal status of the Accord is uncertain. It is neither a COP decision nor an independent agreement 107. Different states referred to it differently, with the US characterizing it as “a consensus package with landmark outcomes”108. Rajamani is of the view that it is a political rather than a legal document; however, it is not clear what level of significance should be attached to it. While clearly this falls within the category of soft law, the fact that the COP never adopted it means that even within soft law instruments its status is very low. Writing after the conclusion of the Copenhagen conference, some have argued that the CBDR principle is the single largest obstruction to a new climate change treaty and is, in broad terms, the focal point of the divide between the northern developed countries and the southern developing countries on the climate change issue. They identify two major obstacles to the negotiations: growing pressure to include additional measures such as trade; and the inclusion of particularly vulnerable states such as small island states and southern states in Africa which are facing the prospect of desertification. This position is contrary to the notions of fairness and justice. It is hard to understand why these countries should be excluded from negotiations as they stand to lose the most from climate change. Without their voice and without the urgency they bring to the negotiations, Annex I countries will drag their feet even more. They have every right to participate in the negotiations as other countries do – some may even argue that their participation is crucial to the negotiations. While it is true that emerging economies such as China, India and Brazil must assume binding emission reduction obligations similar to Annex I countries, moving the negotiations to a different forum such as G-2085 would run the risk of excluding the voice of victims and most vulnerable states and communities. Rajamani, L. (2010) ‘The Making and Unmaking of the Copenhagen Accord,’ International and Comparative Law Quarterly , vol. 59, Available at: https://www.cambridge.org/core/journals/international-and-comparative-lawquarterly/article/iii-the-making-and-unmaking-of-the-copenhagenaccord/2B36C776916CF3CBBD545C049B1C8157 (accessed 24 April, 2017). 108 Ib. 107 49 The highlights of the Cancun conference include: commitment to a temperature increase of not more than two degrees Celsius above pre-industrial levels and to consider lowering it to an increase of 1.5 degrees Celsius; commitment to make a technology mechanism fully operational and to establish a green climate fund; and the adoption of the Cancun adaptation framework. The Cancun agreement is significant because it was the first time that specific reference was made to human rights. It affirmed that climate change is one of the greatest challenges of our time. Similar to the Copenhagen Agreement, it noted that deep cuts in global GHG emissions are required with a view to reducing emissions to hold the increase in temperature below two degrees Celsius above pre-industrial levels. The parties also agreed to work towards substantially reducing global emissions by 2050. The agreement recognized the need to engage a broad range of stakeholders and that “gender equality and the effective participation of women and indigenous peoples are important for effective action on all aspects of climate change” 109. For the first time in the UNFCCC documents, it emphasized that “Parties should in all climate change related actions, fully respect human rights” 110. It recognized that addressing climate change requires a paradigm shift towards building a low-carbon society. The Cancun Adaptation Framework (CAF) reiterated the principles identified in the Bali Action Plan: that adaptation should follow a country-driven, gender-sensitive, participatory and fully transparent approach. It requires parties to take into account vulnerable groups, communities and ecosystems, guided by best available science and traditional and indigenous knowledge 111. According to the UNFCCC, CAF comprises five clusters: implementation, support, institutions, principles and stakeholder engagement. The most relevant for the present 109 UNFCC (2011) Report of the Conference of the Parties on its Sixteenth Session, FCCC/CP/2010/7/Add.1, para 7. Available online at: http://unfccc.int/meetings/cancun_nov_2010/session/6254/php/view/documents.php (accessed 24 April, 2017). 110 Ib. 111 UNFCCC (2011) Cancun Adaptation Framework. Parties adopted the Cancun Adaptation Framework (CAF) as part of the Cancun Agreements at the2010 Climate Change Conference in Cancun, Mexico (COP 16/ CMP 6). Available online at: http://unfccc.int/adaptation/items/5852.php (accessed 17 April, 2017). 50 discussion are the principles included in CAF: follow a country-driven, gendersensitive, participatory and transparent approach; take into consideration vulnerable groups, communities and ecosystems; be guided by the best available science and traditional and indigenous knowledge; and obtain the relevant stakeholders’ participation in relation to adaptation programs. Parties are also required to undertake impact, adaptation and vulnerability assessments and to establish an international center to enhance adaptation research and coordination in a developing country. The Cancun decisions invite all parties to increase action on adaptation including enhancing disaster risk-reduction strategies related to climate change; and measures to enhance understanding with regard to climate changeinduced displacement, migration and planned relocation at various levels. The recognition of the increased importance of adaptation is a positive development because previously much of the focus has been on mitigation. Mitigation alone is not sufficient as the emissions that are already in the atmosphere will cause considerable damage to the present and the next generation. However, the international community was not any closer to reaching a decision on the post-Kyoto framework and the possibility of a legal vacuum beyond that date was looming large. The 17th COP was held at Durban112 where parties agreed to work towards a legally binding instrument by 2015 which will then become operational by 2020. They agreed to launch a new round of negotiations aimed at developing a protocol or another legal instrument113. An ad hoc working group was established on the Durban Platform for Enhanced Action to launch a process to develop a “protocol, another legal instrument or a legal outcome” under the Convention 114. It is not clear what “a legal outcome” is, if it is not a protocol or another legal instrument. 112 Macey, A. (2010) ‘The Road to Durban and Beyond: The Progress of International Climate Change Negotiations,’ Policy Quarterly , vol. 8, no. 2, p. 23- 28. Available at: http://nzcgs.org.nz/wpcontent/uploads/2013/11/A-Macey-PQ-article-Climate-Change.pdf (accessed 17 April. 2017). 113 Bodansky, D. (2012) ‘The Durban Platform Negotiations: Goals and Options,’ Harvard Project on Climate Agreements, Belfer Center for Science and International Affairs. Available online at: http://www.belfercenter.org/sites/default/files/legacy/files/bodansky_durban2_vp.pdf (accessed 17 April. 2017). 114 UNFCCC (2011) Ad Hoc Working Group on the Durban Platform for Enhanced Action, FCCC/CP/2011/l.10. Available online at: http://unfccc.int/bodies/body/6645.php (accessed 11 April, 2017). 51 The compromise language here is obvious 115. The decision referred to climate change as an urgent and potentially irreversible threat to human societies and the planet, and to the need to have the widest possible cooperation by all countries. It also noted with grave concern the significant gap between the aggregate effect of mitigation pledges and the emissions reductions necessary to hold the increase in temperature below two degrees Celsius above pre-industrial levels. The Working Group is to complete its work as early as possible, but not later than 2015, in order to adopt that instrument at the 21st session of the COP so that it can become operational by 2020. It also decided to launch a work plan to identify and explore options for a wide range of actions that can close the ambition gap and requested the parties to submit their views on such options by 28 February 2012. Again, deep divisions among various groups were visible during the Durban conference. The US made it quite clear that it would accept a mandate to negotiate a legally binding outcome only if developing countries were also included in it 116. The BASIC (Brazil, South Africa, India and China) group, on the other hand, displayed divisions too: China did not want to accept legal commitments prior to 2020, while India resisted the EU’s proposal to adopt a new legally binding instrument. The EU, supported by small island states and least developed countries, wanted a new legally binding instrument that applied to all countries as a condition for accepting a second commitment period. Pursuant to Durban platform’s promise to launch a legally binding outcome, the EU agreed to extend the Kyoto Protocol for a second commitment period117. Because of the ambition gap, small island states and least developed countries insisted that the Durban platform launch a work plan to ensure the “highest possible mitigation effort by all Parties” 118. Bodansky is of the view that the Durban platform is significant not only for what it Bodansky, D. (2012) ‘The Durban Platform Negotiations: Goals and Options,’ Harvard Project on Climate Agreements, Belfer Center for Science and International Affairs. Available online at: http://www.belfercenter.org/sites/default/files/legacy/files/bodansky_durban2_vp.pdf (accessed 17 April. 2017). 116 Bodansky, D. (2012) ‘The Durban Platform Negotiations: Goals and Options,’ Harvard Project on Climate Agreements, Belfer Center for Science and International Affairs. Available online at: http://www.belfercenter.org/sites/default/files/legacy/files/bodansky_durban2_vp.pdf (accessed 17 April. 2017). 117 Ib. 118 Ib. 115 52 says but also for what it does not say: it makes no reference to the Bali Action Plan which had a two-track negotiating process; nor does it refer to equity or the CBDR principle; moreover, it is silent on the content of what should be negotiated: “In effect, it is an empty vessel that can be filled with whatever content the parties choose”119. The fact that the Durban platform is silent on the CBDR principle or equity by itself does not mean that the parties have discarded that principle. UNFCCC incorporates both those as principles that should guide action on climate change; thus, too much should not be read into their non-inclusion. With the Doha conference 120, 2012 looming and with it the expiration of the first commitment period under Kyoto, hopes for the adoption of a post-Kyoto protocol fast receded. After Copenhagen, states – particularly those that are especially vulnerable to the consequences of climate change – had given up hopes of adopting a binding document. Many had lost faith in the UN process after the debacle at Copenhagen where it was undermined by a handful of states. With obligations under Kyoto about to expire, the parties took the last-minute decision to extend the Kyoto Protocol for a second commitment period 121. While this fulfilled the decision taken in Bali that there will be no gap between the commitments 122, in effect it froze the status quo for another eight years. This means that the broad distinction between developing and developed states, which was adopted in 1992 and consolidated in 1997 by the Kyoto Protocol, was retained for another eight years. The amendment, however, sought to raise the emission reduction level to at least 18 percent below 1990 levels. This is below the 119 Ib. Campbell, D. (2013) ‘After Doha: What Has Climate Change Policy Accomplished?’ Journal of Environmental Law, vol. 25, no. 1, p. 125. Available at: http://www.academia.edu/18019139/What_is_Climate_Change_Policy_Now_Trying_to_Achieve (accessed 18 April, 2017). 121 Doha Amendment to the Kyoto Protocol (2012). Available online at: http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf (accessed 30 March 2017). 122 Bali Action Plan, para 12, supra note 63. 106 See Quantified Economy-wide Emissions Targets for 2010. Available online at: http://unfccc.int/meetings/copenhagen_dec_2009/items/5264.php (accessed 14 March 2017). 120 53 voluntary commitments that many states made under the Copenhagen Accord 123 and is insufficient to keep the temperature increase below two degrees Celsius 124. Drama seems to be part and parcel of climate conferences and Warsaw (which was held in 2013) was not the exception. During negotiations, environmental, labor and other social justice groups walked out in protest at the slow pace of negotiations and the excuses made by northern countries. Similarly, small island states lamented that the poor cannot afford to wait for 2015 for a climate deal. The press release issued after the conclusion of COP 19 in Warsaw in December 2013 stated that governments are on track towards a universal climate agreement in 2015 and new decisions were adopted relating to reducing emissions from deforestation and to loss and damage125. Parties resolved to close the pre2020 ambition gap and to establish an international mechanism to protect vulnerable populations from loss and damage caused by extreme weather events and slow-onset events. Work on the “Warsaw International Mechanism for loss and damage” was set to begin in 2014 126. The Executive Secretary of the UNFCCC noted that the international community is witnessing “ever more frequent, extreme weather events, and the poor and vulnerable are already paying the price” 127. In addition, decisions were made to help developing countries to reduce GHG emissions from deforestation and forest degradation – the US, the UK and Norway 123 Ib. World Bank (2014) Turn Down the Heat: Confronting the New Climate Normal . Available online at: http://documents.worldbank.org/curated/en/317301468242098870/pdf/927040v20WP00O0ull0Report000English.pd f (accessed 21 April, 2017). The report predicts a four degree Celsius increase in global temperature. 125 UNFCCC (2013) UN Climate Change Conference in Warsaw keeps governments on a track towards 2015 climate agreement. Press release. Available online at: http://unfccc.int/files/press/news_room/press_releases_and_advisories/application/pdf/131123_pr_closing_cop19.pd f (accessed 14 March 2017). 126 See Doelle, M. (2014) ‘The Birth of the Warsaw Loss and Damage Mechanism: Planting a Seed to Grow Ambition?’ Carbon and Climate Law Review. Available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389851 (accessed 24 March 2017). 127 UNFCCC (2013) UN Climate Change Conference in Warsaw keeps governments on a track towards 2015 climate agreement. Press release. Available online at: http://unfccc.int/files/press/news_room/press_releases_and_advisories/application/pdf/131123_pr_closing_cop19.pd f (accessed 14 March 2017). 124 54 pledged US $280 million for the Warsaw Framework for REDD+ 128. Furthermore, 48 of the poorest nations finalized a comprehensive set of plans to address the impacts of climate change. Several developing countries pledged more than US $100 million to add to the adaptation fund. The Warsaw International Mechanism for Loss and Damage seeks to address damage resulting from “extreme events and slow onset events in developing countries that are particularly vulnerable to the adverse effects of climate change”129. An executive committee has been established to guide the implementation of this decision. At Lima, 2014, the Conference of Parties referred to the Durban Platform for Enhanced Action where the parties agreed to adopt a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” 130. They decided that this document would address, in a balanced manner, mitigation, adaptation, finance, technology development and transfer and capacity building, and transparency of action and support. The COP 20 document also referred to the CBDR principle and respective capabilities, in light of different national circumstances. The parties expressed their grave concern about the significant gap between the aggregate effect of mitigation pledges and the reductions necessary to hold the increase in global temperature below two degrees Celsius above pre-industrial levels. Except for a reference to countries that are particularly vulnerable to climate change and the need to provide enhanced financial support, the document does not contain rights language. The only section that even comes close to rights language is the section on providing meaningful and regular opportunities for the effective engagement of experts from, inter alia, parties, international organizations, civil society, women, indigenous peoples and 128 UNFCCC (2014), Lima Call for Climate Action, 1/CP.20. Available online https://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf (accessed 24 April, 2017). 129 Ib. 130 UNFCCC (2014) Lima Call for Climate Action, 1/CP.20. Available online https://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf (accessed 24 April, 2017). at: at: 55 youth. In a surprising move, however, the parties adopted a separate work program on gender131. While lack of reference to human rights did not come as a surprise to anyone and reflects almost all COP documents, the real surprise came from the Annex to the Lima Call for Climate Action which included the elements for a draft negotiating text for COP 21. While there is no guarantee that the text in the Annex will ultimately make its way to the final instrument, it is heartening to note that the draft negotiating text refers to human rights: stressing that all actions to address climate change and all the processes established under this agreement should ensure a gender-responsive approach, take into account environmental integrity/the protection of the integrity of Mother Earth, and respect human rights, the right to development and the rights of indigenous peoples 132. Reference is also made to the historic responsibility of developed countries, climate change education, training, public awareness, public participation and access to information. Adaptation plans are to be country-driven, gender-sensitive, participatory and fully transparent, taking into account vulnerable groups and ecosystems, and be based on science and traditional and indigenous knowledge. In an even more surprising twist, reference is made to climate migration 133 in the context of the mechanism for loss and damage. It refers to the need to establish a climate change displacement coordination facility to assist in providing organized migration and planned relocation, undertake compensation measures and provide 131 UNFCCC (2014) Lima work programme on gender, 18/CP 20. Available online at: http://unfccc.int/resource/docs/2014/cop20/eng/10a03.pdf#page=35 (accessed 11 April, 2017). 132 UNFCCC (2014) Annex, Elements for a Draft Negotiating Text, Lima Climate Change Conference. Available at: https://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf (accessed 24 April, 2017). 133 Nansen Initiative (2014) Lima Climate Change Conference: Norway and Switzerland Call for Commitments to Adaptation Measures. Press release. Available online at: www.nanseninitiative.org/norway-and-switzerland-call-forcommitments-to-adaptation-measures (accessed 2 April, 2017). 56 support for emergency relief134. It also refers to the need to establish mechanisms, inter alia, for REDD+, climate resilience and sustainable development135. After the COP 21, which was held from 11th of November 2015 till 11th of December 2015 in Paris, the Draft Decision -/CP.21136 was agreed. The event, which lasted for two weeks, ended in a somewhat unexpected and almost unanimous signing of a joint treaty to combat global warming - it was adopted by 195 countries out of 198 participants. The COP21 is the first successful environmental conference since 1992 in comparison with the 2009 Copenhagen conference, where it ended with chaos and counter accusations. The agreement contains provisions to hold countries accountable to their commitments and mobilize greater investments to assist developing countries in building low-carbon, climate resilient economies. The agreement in Paris 137 was built on the foundations of the United Nations Framework Convention on Climate Change (UNFCCC) and the Copenhagen and Cancun Agreements. This new agreement has set countries’ minimum obligations, implemented mechanisms to spur additional action in developing countries, supported the most vulnerable countries in addressing climate change, and established systems to hold countries to their commitments. The Paris Agreement will be strengthened over time using its solid framework. Countries responsible for more than 80 percent of global greenhouse gas emissions made specific commitments to reduce their emissions by 2020 as a part of the Copenhagen and Cancun agreements. The Paris agreement includes commitments that go beyond 2020, reflecting a greater level of ambition than in the previous commitments. 134 UNFCCC (2014) Annex, Elements for a Draft Negotiating Text, Lima Climate Change Conference. Available online at: https://unfccc.int/files/meetings/lima_dec_2014/application/pdf/auv_cop20_lima_call_for_climate_action.pdf (accessed 24 April, 2017). 135 Ib. 136 Adoption of the Paris Agreement, Draft decision -/CP.21, Conference of the Parties Twenty-first session Paris, 30 November to 11 December 2015, FCCC/CP/2015/L.9. Available at: http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf (accessed 24 April, 2017). 137 UN, Paris Agreement, adopted at COP21 on 12 December 2015., entered into force on 4 November 2016. Available at: https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf (accessed 21 April, 2017). 57 The 187 countries responsible for more than 97 percent of the world’s climate pollution have announced specific reduction plans also known as Nationally Determined Contributions (NDCs). As part of the Paris Agreement, countries will formally enshrine their climate action plans in the coming months once they formally join the agreement. Countries will need to re-visit their current pledges by 2020 and, ideally, strengthen their 2030 targets because they discovered that they can achieve more aggressive action than they envisioned at this moment. This will start a process in which countries outline their next set of commitments every five years—setting a framework for continuously ratcheting down emissions over time toward a longterm target of emissions neutrality. Beginning in 2018 and every five years thereafter, countries will have a chance to take stock of the aggregate effort of all national pledges to determine whether the world is on a path to keep the global average temperature to well under a 2 degrees Celsius rise from pre-industrial levels. The global nature of climate change calls for broad international cooperation in building resilience and adaptive capacity to its adverse effects, developing sustainable low-carbon pathways to the future, and accelerating the reduction of global greenhouse gas emissions. On 22 April 2016, 175 Member States signed the Paris Agreement under the United Nations Framework Convention on Climate Change. The new agreement aims to reduce the pace of climate change and to accelerate and intensify the actions and investments needed for a sustainable lowcarbon future. Climate change often exacerbates disasters. Between 1990 and 2013, more than 1.6 million people died in internationally reported disasters, with annual deaths trending upwards. As a result, more countries are acting on the imperative to implement national and local disaster risk reduction strategies. In 2015, 83 countries had legislative and/or regulatory provisions in place for managing disaster risk. 58 Parties to the United Nations Framework Convention on Climate Change are responsible for providing a range of national reports on their efforts to implement the agreement. As of 4 April 2016, 161 intended nationally determined contributions, from 189 of the 197 Parties to the Framework Convention (the European Commission submitted one joint intended determined contribution) had been recorded by the secretariat of the Framework Convention, providing insights into the efforts many countries are taking to integrate climate change measures into national policies, strategies and planning. Among those countries, 137 parties included an adaptation component in their intended nationally determined contributions. Some countries stressed that adaptation was their main climate change priority, with strong linkages to other aspects of national development, sustainability and security. In order to help countries move forward on climate action, a global stocktaking was established, in the context of the Paris Agreement, to assess collective progress every five years. The process will begin in 2018, with a facilitative dialogue to review the efforts of parties towards emissions reductions and to inform the preparation of final nationally determined contributions. As parties scale up climate change action, enhanced cooperation, capacitybuilding and access to financial and technical support will be needed to help many countries realize their priorities, including those identified in intended nationally determined contributions and national adaptation plans. Developed countries have committed to mobilizing, by 2020, $100 billion a year in climate financing from a wide variety of sources to help address the needs of developing countries. By 2025, parties to the United Nations Framework Convention on Climate Change will set a new collective goal of at least $100 billion per year. The Green Climate Fund, a mechanism within the Framework Convention created to assist developing countries in adaptation and mitigation practices, is an important delivery vehicle for this financing. As of May 2016, the Green Climate Fund had mobilized $10.3 billion. Climate change is already affecting the most vulnerable countries and populations, in particular the least developed countries and the small island 59 developing States. The preparation of national adaptation programs of action under the United Nations Framework Convention on Climate Change is helping the least developed countries address urgent and immediate needs, with support from the Least Developed Countries Fund and the Least Developed Countries Expert Group. In addition, the implementation of national adaptation programmes of action will help the least developed countries prepare and seek funding for comprehensive national adaptation plans, thereby reducing their risk of being left behind. Prior to the Paris climate conference, countries submitted their proposed climate commitments, including specific targets for emissions reductions. So far, 187 countries—accounting for 97 percent of global greenhouse gas emissions— have submitted their climate pledges. These commitments can now be formally submitted as part of the Paris agreement. China: peak carbon emissions no later than 2030, increase non-fossil fuels to 20 percent of the energy mix, and reduce carbon emissions per unit of GDP by 60 to 65 percent from 2005 levels by 2030. India: reduce emissions intensity by 33 to 35 percent from 2005 levels by 2030, increase cumulative electric power installed capacity from non-fossil fuel energy resources to 40 percent by 2030, and create additional carbon sequestration of 2.5 to 3 billion tons of carbon dioxide equivalent by 2030. Mexico: cut greenhouse gas and short-lived climate pollutants 25 percent below business-as-usual (BAU) by 2030, implying a reduction of 22 percent for greenhouse gas emissions and 51 percent for black carbon. European Union: reduce emissions to at least 40 percent below 1990 levels by 2030 through only domestic measures. Brazil: reduce economy-wide greenhouse gas emissions by 37 percent below 2005 levels by 2025, increasing renewable resources to 45 percent of the energy mix by 2030, and increasing the share of non-hydropower renewables in the electricity mix to 23 percent by 2030. 60 South Korea: reduce greenhouse gas emissions by 37 percent from BAU levels by 2030 across all economic sectors. Indonesia: cut emissions by 29 percent from BAU levels by 2030. Japan: reduce greenhouse gas emissions by 26 percent from 2013 levels by 2030. Australia: reduce economy-wide greenhouse gas emissions by 26 to 28 percent below 2005 levels by 2030. Since the 2009 Copenhagen Accord, nations have rolled up their sleeves and implemented domestic actions to move toward low-carbon economies, including renewable energy targets, cap-and-trade programs, and sector-specific policies. For example, more than 160 countries now have renewable energy targets and policies138. China has just announced a new set of domestic actions including plans for a national cap-and-trade program, and climate policies have been adopted in the vast majority of the world’s major economies. Countries have realized that it is in their own interest to cut their carbon pollution. They have concluded that, far from destroying the economy, domestic climate action produces real benefits for their citizens, including new jobs, reduced poverty, and lower mortality rates. And as natural disasters increase in frequency and intensity, they have seen that not addressing climate change has real and lasting consequences. Climate change law now spans two decades. Whether it can be considered a success is a nuanced question and depends on who you ask. While some may argue that it is a complete failure since GHG emissions have increased overall, rather than decreased, just the fact that states are willing to reduce their emissions is a reason for optimism. True, the international community has not delivered the promises it made and there are many disappointments, but climate change law has developed so much within a short period of time that people have started specializing not only in climate change law but also within its sub-branches such as REDD, CDM, carbon trading and carbon taxes. This, by itself, is quite remarkable. 138 REN21, Renewables 2015 Global Status Report, REN21 Secretariat, 2015. Available at: www.ren21.net/statusof-renewables/global-status-report/ (accessed 22 April, 2017). 61 Of course, its complexity is also its drawback. Climate change law has become so complex that a general international lawyer looking at the legal regime will be able to understand only the general principles and not the complex legal architecture governing these specialized areas. These developments have taken place at all levels and transcend all actors. Thus, indigenous groups have begun to play a role in relation to the REDD regime, while carbon trading has implications for the trade regime, prompting scholars to look at the WTO as a possible forum to address climate change at least with regard to carbon trading. Despite these developments, one piece has been missing from the legal regime which is the subject of this book. The human face of climate change is largely absent in the legal regime. If one were to analyze the legal documents emanating from climate conferences year after year, one big missing piece is a reference to human rights, despite the work done by the Office of the UN High Commissioner for Human Rights on the link between climate change and human rights. The Cancun conference was the first clear instance where reference was made to human rights: “Parties should, in all climate change related actions, fully respect human rights” 139. The human impact of climate change, in particular, is becoming significant and will in some instances, assume catastrophic proportions. This will be the case with regard to small island states and those who are forced to move as a result of both slow-onset events and severe weather events as recognized by the COP in Warsaw, when it was agreed to establish a mechanism for loss and damage caused by such events. Despite these developments and the close relationship between climate change and protected rights, rights language remains largely absent from these documents. Given the experience with the Inuit case 140, it could be because parties are afraid of similar lawsuits in the future if such language is used in these 139 UNFCC (2011) Report of the Conference of the Parties on its Sixteenth Session, FCCC/CP/2010/7/Add.1, par 7. Available online at: http://unfccc.int/meetings/cancun_nov_2010/session/6254/php/view/documents.php (accessed 24 April, 2017). 140 The Center for International Environmental Law (2005) Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warning Caused by Acts and Omissions of the United States. Available online at: www.ciel.org/Publications/ICC_Petition_7Dec05.pdf (accessed 28 April, 2017). 62 instruments. Despite the rather sterile language of the UNFCCC documents which lacks a human face, the impact of climate change on human rights is now well documented. 63 CHAPTER MITIGATION 2. OF INTERNATIONAL CLIMATE LAW CHANGE CONCERNING AND HUMAN THE RIGHTS PROTECTION 2.1 Measures by international organizations and States to protect human rights At the first site, the climate change is an environmental problem, but its determinants and implications transform it in a complex issue with social and economic sides. If we analyze the implications on the long term, the climate change is a challenge for the development. The climate changes are caused by natural factors like solar variability, volcanic eruptions and human factors. On one hand, the climate models set up by specialists have estimated that the human activities like the burning of fossil fuels or deforestation have a major impact on climate change. On the other hand, the climate change affects human activity. So, there is a strong connection between climate change and human activity. The public authorities are awarded about the climate change implications in economy and human life. The weather and climate change influence a lot agriculture, tourism activity, infrastructure, constructions industry and so on. In mind of above mentioned, many steps have been done at international, regional and national levels. At first stage, since the early 1990s, many countries have implemented climate change-related policies and many international organizations like the Organization for Economic Co-operation and Development and the World Bank also are implicated in the straggle against climate change. There are many instruments used in order to control the climate change: energy or carbon taxes, tradable permit schemes and the project-based flexibility mechanisms. The Kyoto Protocol of the United Nations Framework Convention on Climate Change (UNFCCC) set up two project-based flexibility mechanisms: Clean Development Mechanism (CDM) and Joint Implementation (JI). The companies from developed countries have the possibilities to gain emission credits by investing in emission 64 reduction projects in other countries. The value of investments in these projects is huge, for example, public authorities and private companies have allocated over USD 11 billion for CDM funding to 2012 141. The most vulnerable subjects to climate change are the developing countries and the poorest populations: water scarcity, sea-level rise, food insecurity, spread of diseases, damage from floods, desertification of arable land. Addition problems in these countries are determined by the great dependence on natural resources, the lack of financial resources and the limited implication of public institutions in this field. So, climate change is a global issue, but the developed countries must take the leader role in order to cut the emissions, mitigate the consequences of climate change and to assist the developing countries in fight against the global warming and its consequences. In addition, the public authorities and companies try to find new alternative resources in order to meet their sustainable development objectives142. The modern economies were built on oil, gas and coal. For example, in the European Union, 80% of the primary energy supply is provided by fossil fuels. The main challenge of climate change and the key ambition of authorities is the development of a low carbon economy. For these reasons, many steps must be taken in some fields of science like materials, chemistry, physics, nanotechnology or biotechnology in order to find new way of producing and consuming energy. In the European Union, the Strategic Energy Technology Plan (SET-Plan) promotes the clean, efficient and low carbon technologies that are the motor of prosperity and development143. 141 The Mechanisms under the Kyoto Protocol: Clean development mechanism, joint implementation and emissions trading. Available at: http://unfccc.int/kyoto_protocol/mechanisms/items/1673.php (accessed 25 April, 2017). 142 Mirela Matei, Cătălin Popescu, Irina Gabriela Rădulescu, The Consequences of Climate Change and Social Responsible Behavior, WSEAS TRANSACTIONS on BUSINESS and ECONOMICS, Vol. 9, Jan. 2012, available at: http://wseas.org/multimedia/journals/economics/2012/53-465.pdf (accessed 25 April, 2017). 143 Clean Development Mechanism and Joint Implementation, New Instruments for Financing Renewable Energy Technologies, January, 2004, available at: http://www.ren21.net/Portals/0/documents/irecs/renew2004/Clean%20Development%20Mechanism%20and%20Joi nt%20Implementation.pdf (accessed 25 April, 2017). 65 For the implementation of this plan, the European authorities have drawn up Technology Roadmaps 2010-2020144 and European Industrial Initiatives for wind energy, solar energy, energy networks, bio-energy, CO2 capture, transport and storage, nuclear fission, fuel cells and hydrogen145. All these initiatives have a major financial side, so, to achieve these goals a huge public and private investments are needed. For example, the use of bio-energy implies the set up of 30 pilot plants and a long-term research program; so in this field, EUR 9 bn of the public and private investment in the next ten years are needed. The results of this investment will consist in a 14% contribution of bio-energy to European supply of energy and 200 000 local jobs until 2020. The carbon capture, storage technologies and the research programs will require EUR13 bn both public and private investment in the next ten years. In conclusion, the investment patterns will change in order to mitigate and adapt to climate change. In addition, the most dramatic shifts of investment are taking place in power supply sector, but some changes in investment comportment are requiring by adaptation and mitigation measures in fields like infrastructure, agriculture forestry and fisheries. The investment shift must be sustained by financial incentives that cover the risks assumed by companies, and by set up of the carbon market. Another challenge is the increase of funding that is needed to mitigate and adapt to climate change. Besides the international financial institutions implicated in financing various projects (like International Bank for Reconstruction and Development or International Financial Corporation), there are many private and public-private funds that finance and catalyze important investments in low carbon projects. For examples, carbon funds like the Prototype Carbon Fund, the Spanish Carbon Fund, 144 European Comission, Energy Topics: https://ec.europa.eu/energy/en/topics/energy-strategy-and-energyunion/2020-energy-strategy , https://www.energycommunity.org/portal/page/portal/ENC_HOME/DOCS/324184/0633975AA77A7B9CE053C92FA8C06338.PDF (accessed 25 April, 2017). 145 European Parliament, Policy Department, European Renewable Energy Network, 2012, available at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/itre/dv/renewable_energy_network_/renewable_en ergy_network_en.pdf (accessed 25 April, 2017). 66 Italian Carbon Fund or the BioCarbon Fund finance projects 146 like afforestation of 20,000 hectares of degraded and eroded state-owned and communal agricultural lands throughout Moldova, afforestation of 6,852 hectares of public land in Romania or soil conservation in Moldova. These funds are set up by public authorities from developed countries, but private companies participate to gather the money necessary for investments. These funds are only one instrument used by public authorities in order to reach emission reduction targets imposed through Kyoto Protocol. The private sector investments constitute the largest share of investment and financial flows (86 per cent) that will sustain the future adaptation and mitigation measures for climate change. So, the financial markets contribute to reach the climate policy goals. According to Kyoto Protocol, the financial institutions like pension's funds and banks can play seminal role in the transition to a low carbon economy, because they act like brokers for carbon trading or as financiers for low carbon investment projects. In addition, in accordance with climate policy, the concept of social responsible investment gains new dimensions: companies and financial institutions must be ethical investors that track not only to maximize their profits but also to invest socially and ecologically. So, the climate change have determined many changes:  the public policies have been modified in order to cope with this challenge; for example, the European authorities have been integrated the climate change issue in the policies regarding the energy, poverty reduction, sustainable development etc.  a new industrial revolution has been started because new types of energies are used and new energy production ways appeared;  the dramatic adjustment of our stile life;  the behavior of consumers is changing because many clients buy intelligently; 146 Carbon Finance at the World Bank: List of Funds. Available https://wbcarbonfinance.org/Router.cfm?Page=Funds&ItemID=24670 (accessed 27 April, 2017). at: 67  new markets have been established: the market for eco-friendly technologies or market of social responsible products;  a new economy is set up: the low carbon economy. On June 24, 2015, the civil section of the District Court of The Hague issued a decision according to which the Netherlands violated standards of due diligence, in accordance with this it is necessary to reduce carbon dioxide (CO2) emissions by 25% by 2020 in comparison with emissions in 1990. Such policy of the Netherlands in order to avoid dangerous climate change was insufficient and moreover, it was illegal from the point of view of the non-governmental organization Urgenda, and the claimants who activated this process were 886 citizens of the Netherlands. The court ruled that the state undertakes to reduce the level of carbon dioxide emissions by 25% by 2020 from the 1990 level. The Dutch, whose country is located below sea level, have reasons to worry about climate change. But they have the resources necessary for adaptation. People in poorer countries that are less conducive to climate, but also less prepared, are likely to suffer much more. The report on climate change and human rights, published by the International Council on Human Rights Policy in Geneva in 2008, notes: "As a rule of law, the human rights of individuals should be considered within the framework of state obligations"147. But the world community has long been struggling with the difficulties of recognizing such obligations by international agreements; The maximum efforts of the Kyoto Protocol of 1997 148, the multiple Conferences of the Parties and the UN Framework Convention on Climate Change, were unsuccessful, mainly because real actions did not keep pace with these promises. In November 2012, Urgenda wrote a letter to the Government of the Netherlands that there is scientific evidence that the European Union's promise to reduce emissions by 20% compared to 1990 is not sufficient to avoid dangerous 147 Climate Change and Human Rights: A Rough Guide, 2008 International Council on Human Rights Policy. Available at: http://www.ohchr.org/Documents/Issues/ClimateChange/Submissions/136_report.pdf (accessed 27 April, 2017). 148 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997. Available at: http://www.un.org/ru/documents/decl_conv/conventions/kyoto.shtml (accessed 27 April, 2017). 68 climate change and that the Dutch reduction goals are equally inadequate , As well as European goals in this regard. Urgenda urged the Netherlands to do more. The government's response to the letter was unsatisfactory. Therefore, in November 2013, Urgenda sued the District Court of The Hague, according to which the state was responsible for the dangerous change in the global climate 149. The suit claimed that the state will act illegally if it does not reduce annual greenhouse gas emissions by 40% by 2020, or by at least 25%, compared to 1990 emissions. Moreover, Urgenda requested the court to demand from the state to reduce the total amount of annual greenhouse gases in the country by 40% by 2020, or at least by 25%. Any delayed emission reduction process will not be sufficient to prevent dangerous climate change and should be considered illegal. At the same time, the applicants did not demand payment of compensation. In their defense, the Netherlands argued that the state has committed itself to mitigating climate change and, in this regard, is implementing appropriate policies. The state also agreed that the current efforts to prevent climate change by 2020 will reduce greenhouse gas emissions by only 17%. Also, the state argued that, according to national or international law, there is no legal duty of the Netherlands to take measures to reduce the targets declared by Urgenda. Moreover, the decision of any court to change the policy to mitigate the effects of climate change violates the prerogative of the state on environmental policy and interferes with the system of separation of powers. In the Civil Code of the Netherlands there is a corresponding provision to this case, in Article 162, Book 6. This provision states that an individual may be held liable if there is a violation of personal rights, a breach of duty prescribed by law or violation of unwritten standards of due care that must be respected in society150. RHJ Cox, ‘The Liability of European States for Climate Change’ (2014) 30 Utrecht J Intl Eur L 125 and RHJ Cox, Revolution Justified (Planet Prosperity Foundation 2012). Urgenda has made available an English translation of their legal documentation, see http://www.urgenda.nl/en/climate-case/legal-documents.php (accessed 28 April, 2017). 150 Civil Code of the Netherlands, adopted in 1992. Available at: http://www.twirpx.com/file/820084/ (accessed 28 April, 2017). 149 69 Urgenda stated that the Netherlands acted contrary to the obligations that are set forth in article 21 of the Constitution of the Netherlands. This provision states that "public authorities should take care of the preservation of the population, protection and improvement of the environment" 151. This duty gives considerable freedom of action to the government in how it should be carried out, and also, in particular, it follows whether the relevant international and European provisions entail the obligation of the state or the applicants' personal right to do so. The court decision touches on the provisions of international agreements such as the UNFCCC and the Kyoto Protocol and concludes that their binding force applies only to obligations between states. Even if the Netherlands does not fulfill one of its international obligations, this will not mean that it acted illegally with respect to Urgenda. In accordance with the law of the Netherlands, this conclusion can be interpreted in different ways. According to articles 93 and 94 of the Constitution of the Netherlands, Dutch nationals may obtain the right from any written or unwritten rule of international law if the relevant provisions of the treaty or resolution are considered obligatory for all people. However, the court for understandable reasons noted that there are no relevant provisions in relevant international instruments. The Court also considered Article 191 of the Treaty on the Functioning of the European Union and such EU mechanisms for mitigating the effects of climate change, as the EU Program on Trade in Greenhouse Gas Emission Authorization Units 152. Despite the fact that EU law does not directly affect Articles 93 and 94 of the Constitution of the Netherlands, the court considered that the conclusion on the state's obligations with respect to Urgenda may derive from the relevant provisions in international law, which also affects EU legislation. Therefore, the court did not answer the question whether in fact the state violated the norms of international law. 151 Constitution of the Netherlands, adopted in 1983. Available at: http://www.uznal.org/constitution.php?text=Netherlands&language=r (accessed 20 April, 2017) . 152 The European Union Emission Trading Scheme (EU ETS), major pillar of EU climate policy. Available at: .http://www.chemeurope.com/en/encyclopedia/European_Union_Emission_Trading_Scheme.html (accessed 20 April, 2017). 70 Moreover, Urgenda argued that, according to articles 2 and 8 of the European Convention on Human Rights, the state has positive obligations to take precautionary measures concerning its citizens. Urgenda stated that the state acted contrary to articles 2 and 8 of the European Convention on Human Rights, these actions amounted to a violation of the human rights of each of the applicants, which in turn falls under the article 162 of Book 6 of the Dutch Civil Code. However, the court found that Urgenda does not have the status of a potential victim under Article 34 of the European Convention on Human Rights, and thus can not invoke these provisions (paragraph 4.45)153. One of the important requirements for determining the responsibility of the state in the Dutch law is the existence of a link between the wrongful act of the offender on the one hand, and on the other hand, the existence of harm to the victim. This requirement is an important obstacle, since it must be proved that negligence of the state caused climate change. The state put forward a number of arguments against the recognition of the cause-effect relationship. The Dutch government argued that it can not be a causal factor in climate change, since it does not produce greenhouse gases by itself. In turn, the court replied that control over the emission of greenhouse gases is within the competence of the State and this is an established fact. In connection with the need to ensure the interests of citizens, including Urgenda, the state requires a high level of responsibility. Moreover, the court found that the Netherlands took responsibility for the overall level of national emissions, as well as the obligation to reduce them, by signing and ratifying the Kyoto Protocol and the United Nations Framework Convention on Climate Change. The court rejected the state's argument that Urgenda has its interest for the claim, because the current "contribution" of the Netherlands to the global greenhouse gas emissions is only 0.5%, which will not allow the Urgenda suit to be effective to avoid dangerous climate change. The state also argued that these claims will not be effective on a global scale, since the objectives of the court will 153 Ib. 71 lead to very insignificant, if not negligible, reductions in greenhouse gas emissions. The Government of the Netherlands specifically noted that reducing greenhouse gas emissions in other states where emissions is high would be much more effective. Thus, they argued that the Netherlands should not be responsible for the consequences of greenhouse gas emissions by other countries. The court stated that because of the fact that the decision to reduce emissions in the Netherlands was taken by the state itself, the state can not deny its possible responsibility, stating that its contribution to global emissions of gases was negligible. Also, the court did not consider the state's argument that other EU countries would neutralize the reduced emissions in the Netherlands, and that greenhouse gases in general would not be decreased (the so-called "water-bed effect"). The court denied all the arguments against the recognition of the causeeffect relationship. The court referred to the jurisprudence of the Supreme Court of the Netherlands about joint and several liability. It provides that, when a part of the damage by one participant is insignificant, it does not relieve from it the responsibility. In the words of the court: "It is an established fact that climate change is a world problem and therefore global control is required. [...] This forces all countries, including the Netherlands, to take measures to reduce emissions in full. Despite the fact that emissions in the Netherlands are much lower than in other countries, this does not affect the state's obligation to take precautionary measures in accordance with its obligations" 154. The Court also confirmed that the Netherlands has committed itself to implementing measures to prevent climate change, which will make a commensurate contribution to reducing greenhouse gas emissions. Given these reasons, the court decided that there is "a reasonable link between actions of State, greenhouse gas emissions, global climate change and its consequences (in the present and in the future)"155. 154 The Hague District Court, case number: C/09/456689 / HA ZA 13-1396, Judgment of 24 June 2015. Available at: http://www.urgenda.nl/documents/VerdictDistrictCourt-UrgendavStaat-24.06.2015.pdf (accessed 27 April, 2017). 155 Ib. 72 At international level, the public authorities from developed and developing countries are preoccupied about their impact on the environment and their possibilities to have a friendly behavior to the environment and a contribution in the fight against the climate change. In fact, some preoccupations belong to international organizations like OECD 156 that adopted a Recommendation on green public procurement157 in 2002. After that, many countries like USA, Japan, Canada, Australia, South Korea, China, Thailand and Philippines launched sustainable procurement policies. In European Union, the public authorities spend large amounts of money around 16% of the Gross Domestic Product- to buy products and services. Because they have an important economic power, they can have a dramatic contribution to the development of markets for environmentally friendly products and services and to the stimulation of innovation in eco-technologies. The promotion of a Green Public Procurement Policy have additional effects on the whole supply chain and, in the end, the private companies will be stimulated to use green standards in their procurement activity. The European officials have initiated a harmonization process in order to promote unique environmental criteria for products and services in order to avoid the distortion on the single market and the reduction of EU-wide competition. In this respect, the main instrument used by the EU to establish and develop environmental criteria and to use the GPP in the fight against climate change is the Action Plan on Sustainable Consumption and Production and Sustainable Industrial Policy158. In addition, European Commission recommended to the member states to adopt national action plans for GPP by the end of 2006 in order to reduce the 156 The Organisation for Economic Co-operation and Development (OECD), available at: http://www.oecd.org/about/ (accessed 27 April, 2017). 157 Commission of the European Communities, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the regions, Jul.2008, available at: http://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008DC0400&from=EN (accessed 27 April, 2017). 158 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan, Jul. 2008, available at: http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52008DC0397&from=EN (accessed 27 April, 2017). 73 negative impact of public authorities on the environment and to promote the use of environmental technologies, products and services. Until June 2010, 21 of members adopted these plans and Bulgaria, Estonia, Greece, Ireland, Hungary, Romania were in the process of set up of these framework. In the European Union, the preoccupations regarding the social policy are very intense, and aspects like employment opportunities, social and labor rights, decent work, social inclusion, accessibility and design for all, ethical trade, promotion of corporate social responsibility, protections against human rights abuse, promotion of SMEs are issues present in the main policies run by European officials in order to design the European social model. The European social model has two major objectives: sustainable economic growth and improvement of living and working conditions. In order to achieve this model, the public authorities can use their purchase's capacity and promote a policy for socially responsible public procurement. Social responsibility is a concept that has attracted the attention of international organizations such as United Nations or the OECD, but also led to increased private initiatives by corporations or other organizations. Among the most important private initiatives is the Caux Round Table 159, which was founded in 1968. Global Compact (GC)160 is an initiative of former UN General Secretary Kofi Annan, who in a speech at the 1999 World Economic Forum, launched the idea of a partnership between the United Nationals and worldwide companies to achieve sustainable development objectives that were established by this organization. In practice, the Global Compact is a network between the various entities that have interests in social responsibility: companies, unions, government agencies, cities, civil society organizations, business associations, academic organizations, etc. 159 160 Caux Round Table. Available at: http://www.cauxroundtable.org (accessed 27 April, 2017). Global Compact. Available at: https://www.unglobalcompact.org (accessed 27 April, 2017). 74 Global Compact is a public-private initiative that offers companies a framework for developing, implementing and promoting sustainability principles and practices related to four major areas of concern: human rights, labour standards, environment and fighting against corruption. The management of risks and opportunities of these four areas is considered a way to create long term value, which is beneficial for both companies and society in general. Commitment to the principles of business supported by the Global Compact is demonstrated by the large number of participants, about 9,269 companies and stakeholders from over 164 countries. There are 10 main principles of GC: 1. Businesses should support and respect the protection of internationally proclaimed human rights; 2. make sure that they are not complicit in human rights abuses; 3. businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; 4. the elimination of all forms of forced and compulsory labour; 5. the effective abolition of child labour; 6. the elimination of discrimination in respect of employment and occupation; 7. businesses should support a precautionary approach to environmental challenges; 8. undertake initiatives to promote greater environmental responsibility; 9. encourage the development and diffusion of environmentally friendly technologies; 10. businesses should work against corruption in all its forms, including extortion and bribery161. The adoption of GC principles is voluntary, but companies that are members of the Global Compact network assumes a commitment to implement and promote these principles and in this sense, they must introduce specific measures: 161 The Ten Principles of UN Global Compact, On June 24, 2004, during the first Global Compact Leaders Summit, Kofi Annan announced the addition of the tenth principle against corruption in accordance with the United Nations Convention Against Corruption adopted in 2003. Available at: https://www.unglobalcompact.org/what-isgc/mission/principles (accessed 27 April, 2017). 75  GC principles become a part of business strategy, daily operations and organizational culture;  GC principles are integrated into decision-making for the highest leadership;  companies must contribute to the dissemination of development goals (including the Millennium Development Goals) through partnerships.  companies are required to insert in the annual report a description of how it was done to implement these principles and how they are supported development objectives (communication progress).  promotion of responsible practices and GC principles among partners, customers, consumers and society in general. Due to the importance of education on training of future managers and specialists in areas such as social responsibility, business ethics or societal marketing, academic organizations are an essential component of the Global Compact platform. Furthermore, academia has brought some constructive criticism on the operations carried out by GC and by available resources and infrastructure, this sector contributes to the knowledge and understanding of corporate citizenship and social responsibility, but also to the promotion of GC principles at local and international level. As social responsibility is not the exclusive prerogative of the companies, Global Compact has promoted since 2007, The Principles for Responsible Management Education (PRME)162 which creates the framework to promote social responsibility by incorporating in the research and teaching plans of universal values of social responsibility. Even if the notions of corporate social responsibility and sustainability are promoted in academia, they have not become the priority in the education of economists, for this reason, the universities and the business schools will gradually improve curricula and research and teaching methodologies and institutional strategies through the promotion of these principles. 162 The Principles for Responsible Management Education. The PRME were developed in 2007 by an international task force of sixty deans, university presidents and official representatives of leading business schools and academic institutions. Available at: http://www.unprme.org (accessed 21 April, 2017). 76 In late 2010, these principles were shared by more than 340 academic institutions that form the managers, one third of whom are located in Western Europe and North America. In addition, an educational institution specializing in this field was even founded. The Responsible Investment Academy is an Australian governmentfunded institution that works with the Secretariat of PRI (Principles for Responsible Investment)163 to support institutional investors who have signed the Principles for Responsible Investment to provide educational resources for training specialists in the field of responsible investment. This institution offers courses on the implementation of Responsible Investment Principles, the commitment of investors as shareholders, voting policies, sustainable development, climate change and the transition to low carbon economy, human rights, labour standards, water and energy security. Because cities can make a significant contribution to creating a sustainable society, which requires integrating economic, social, political and environmental, the principles developed by GC for corporations can be translated to the administrative entities (cities) in terms of governance and urban management. GC program for cities was launched in 2003 and supposes the adoption of the 10 principles of social responsibility developed for companies by cities. To accommodate the 10 principles in the towns, GC program aimed at close cooperation between companies, public authorities, universities and civil society so that towns face very complex problems so that they also have a contribution positively to the sustainable development of national economies. This program was designed on three levels of commitment so as to achieve a progressive involvement of cities in terms of commitment, recognition and tools used. 163 Principles for Responsible Investment. , The Principles for Responsible Investment were developed by an international group of institutional investors reflecting the increasing relevance of environmental, social and corporate governance issues to investment practices. The process was convened by the United Nations SecretaryGeneral. Available at: available at: https://www.unpri.org/about (accessed 21 April, 2017). 77 Cities program is a component of the Global Compact initiative, which focuses on urban component, and it is based on Melbourne methodology 164. This methodology involves the inter-relationships between companies, public authorities and civil society. First steps taken towards the creation of this program were done by Melbourne city, whose authorities have sent a letter to the originator of the UN Global Compact - Kofi Annan, in 2001, expressing their support for the ten principles developed and promoted, and asked to join this platform. Given the purpose of creating the UN Global Compact Platform, Melbourne city has been refused, but Kofi Annan has agreed to initiate a pilot project (Utility Debt Spiral Project165) to demonstrate the usefulness of involving cities to promote social responsibility. In conclusion, the cities are responsible to entities operating in their area of action and can have a significant contribution to the promotion of social responsibility and sustainable development. In general, GC principles for cities are similar to those promoted for companies, the guidelines being labour standards, human rights, the environment and fighting corruption. The impact of climate change on financial market is developing each day, because the financial innovation is very intense and the participants are very active. Many financial organizations, public authorities, portfolio investors and private companies are implicated on the carbon market in order to set up the legal framework, to find money to finance environmental friendly projects or to make transactions with carbon credits for hedging or speculative purpose. At international level, the European authorities made sustained efforts and established a legal framework and set up the European Union Emissions trading Scheme (EU ETS) in order to fulfill its international commitments according with the Kyoto Protocol. The key role in financing environmental friendly investment is played by the European Investment Bank. Besides the activities of the European 164 Melbourne methodology. Available at: https://handbook.unimelb.edu.au/subjects/educ90070 (accessed 22 April, 2017). 165 Utility Debt Spiral Project, Published by the Committee for Melbourne, November, 2004. Available at: http://cuac.org.au/research/external-research/180-utility-debt-spiral-project/file (accessed 22 April, 2017). 78 Investment Bank, we remark the implication of International Bank for Reconstruction and Development that established many environmental funds and sustained the process of innovation on capital market through the launch of different types of bonds like green bonds or cool bonds. On capital market, a new commodity - the carbon - is traded on specialized exchanges, like Chicago Climate Exchange 166. The spot, futures and options contracts on carbon credits are available on these exchanges and many companies, universities, counties and cities are members of such exchanges. In fact, exchanges are the main promoters of social responsible investment on the capital markets. The behavior of investors on capital market is changing. The exchanges, portfolio investors and consultant firms made efforts to promote the ESG principles167 for investment. In this way, the universe of social responsible investment is expanding. The importance of the ESG issues for portfolio investors is demonstrated by the official figures regarding the dimensions of the social responsible investment market: in USA, around 11% of the assets under professional management are involved in socially responsible investment and in Europe, the share is 17% . The interest of investors for ESG issues is demonstrated by the set up of the PRI - a voluntary framework supported by UNEP Finance Initiative and UN Global Compact. Over 830 asset owners, investment managers and professional service partners are signatories of these principles. The survey conducted by PRI Initiative in 2010 demonstrates the high implication of investment institutions in ESG promotion and integration: over 95% of asset owners and 87% of investment managers promote an investment policy that incorporates the ESG issues; and around 50% of respondents have a dedicated ESG specialist in their organizations 168. 166 Chicago Climate Exchange. Available at: https://www.theice.com/ccx (accessed 27 April, 2017). Principles for Responsible Investment. The Principles for Responsible Investment were developed by an international group of institutional investors reflecting the increasing relevance of environmental, social and corporate governance issues to investment practices. The process was convened by the United Nations SecretaryGeneral. Available at: available at: https://www.unpri.org/about (accessed 21 April, 2017). 168 United Nations Global Compact, UNEP Finance Initiative, Annual Report of the PRI Initiative, 2010, p.4 167 79 Dynamics of social responsibility concept is closely linked to the emergence and evolution of the concept of sustainable development. Intense environmental concerns, pressures from the public, globalization and the promotion of strict legal measures have changed the way of doing business. For example, the transnational company ExxonMobil has experienced the negative reaction of European consumers' reaction to the company's refusal to sign the Kyoto Protocol on preventing global warming. Therefore, we are seeing to the shaping and development of social initiatives such as environmentalism and consumerism that have led companies to become more socially responsible, and have determined legislative changes to protect the environment and consumer protection. Globalization and technological progress have led to an increase in ethical consumerism, more and more consumers taking the product purchase decisions based on social or environmental criteria aimed at companies. From the perspective of social responsibility, the competitive pressures of globalization focus not only on transnational corporations, but also on companies that are in the supply chain, for this reason, large companies have initiated programs to promote social responsibility for subcontracting firms or supplier firms in developing countries. 2.2 The impact of transnational organizations (TNCs) on climate change and human rights The expansion of transnational corporations generates many conflicts with the societies where they activate. These conflicts are determined by the discrepancies between private and social costs and benefits and the different visions regarding what is fair for corporations and society. The climate change is an important issue for transnational corporations because they are important carbon emitters and low carbon investors. In fact, transnational corporations generate problems and solutions to climate change. 80 The impact of transnational corporation on environment is dramatic because they are major global industrial players in many fields like: power, oil and gas, cement, iron and steel, transport, waste management, chemicals etc. According with UNCTAD169, the global efforts to reduce GHG emissions must begin with the power sector, taking into account the effect of power production on the environment. In this field, the transnational corporations can have an important role through the low carbon investment in environmental friendly process, products and services. For example, the CEZ Group 170 is a transnational corporation based in the Czech Republic, but present in 10 countries of Central and Southeastern Europe. In 2008, the CEZ Group bought a 600 megawatts wind farm project in Romania. The implications of this deal are important for Romania and the foreign investor:  this is the largest onshore wind farm in Europe, until the end stage at the end of 2010;  the energy production from this wind farm accounts around 10% of the renewable market in Romania;  for Romania , it is the most important project for wind energy production;  through this project, the CEZ Group have strengthened their position in Romania;  this initiative is a way to meet the targets of reducing CO2 emissions and to respond to the energy-climatic policy of the EU. There are many drivers of foreign direct investment, but the environment and climate change cause the appearance of new determinants for low carbon foreign investment. For example, the investors' pressure, the stakeholders' expectations and business trends play an important role in the low carbon activities of transnational corporations. 169 United Nations Conference on Trade and Development, World Investment Report 2010, Investing in a Low Carbon Economy, Jun. 2010, p.99. Available at: http://unctad.org/en/Docs/wir2010_en.pdf (Accessed 21 April, 2017). 170 CEZ Group. Available at: https://www.cez.cz/en/cez-group/cez-group.html (Accessed 21 April, 2017). 81 In 2008, the village of Kivalina in Alaska, sued several large energy companies, claiming that global warming reduced the sea formation of ice, which forced the village to relocate. The case was dismissed on the basis of a court order stating that decisions on permissible levels of greenhouse gas emissions should be taken by executive and legislative authorities, not by judicial ones 171. However, the courts were not so categorical in the refusal to prosecute. Between 2006 and 2007, Massachusetts sued the US Environmental Protection Agency, which refused to recognize carbon dioxide as a pollutant under the 1970 Clean Air Act. The agency argued that any attempt to regulate greenhouse gas emissions could impede the potential strategies of the White House. The Supreme Court did not agree. This was an important result - the court has not established a new practice, it just indicated that this is the work of the Environmental Protection Agency172. The transnational corporations have many possibilities to support the low carbon economy:  the creation and promotion of low carbon products and services like electric cars, power-saving electronics or renewable energy equipment;  the local suppliers of transnational corporations can be persuaded or supported to use low-carbon technologies and local customers can be assisted in order to reduce the GHG emissions;  the launch of social responsibility programs in order to change the behavior of customers regarding the environment protection and climate change. According with UNCTAD, low-carbon FDI flows in major low-carbon business fields (renewables, recycling and low-carbon technology manufacturing) amounted to $90 billion in 2009 173. 171 Climate Law Blog, 9 T H C I RC UI T A F F I RM S D I S M I S S A L I N K I V A L I N A V E X X O N M O BI L , Posted on September 26th, 2012 by Anne Siders. Available at: http://blogs.law.columbia.edu/climatechange/2012/09/26/9th-circuit-affirms-dismissal-in-kivalina-v-exxonmobil/ (accessed 23 April, 2017). 172 The United States Department of Justice, Massachusetts vs. EPA, May 14, 2015. Available at: https://www.justice.gov/enrd/massachusetts-v-epa (Accessed 23 April, 2017). 173 United Nations Conference on Trade and Development, World Investment Report, Investing in a Low Carbon Economy, Jun. 2010, p.99. Available at: http://unctad.org/en/Docs/wir2010_en.pdf (accessed 21 April, 2017). 82 In order to support the efforts of transnational corporations, the public authorities must play the catalyst role in order to move towards low carbon economy. The public authorities must integrate "green and responsible" elements in the foreign investment promotion strategies. The strategies that are used are different because the main objectives are different: climate change adaptation and mitigation, the development of the renewable energy or green energy sector, the development low carbon sectors like services. The public authorities have many instruments for use to achieve these goals. For example, in countries like China, India and Korea, low-carbon special economic zones have been set up and some GHG mitigation targets are imposed for companies that profit by sustainable infrastructure and incentives framework. The financial innovation is a reality o f the last twenty years and the climate change determined the launch of the many products and the set up of many investment strategies. The climate change related products and investment strategies are considered to be a part of "green investment" which is classified as a part of social responsible investment world. The results of climate change impact on financial market are amazing: many over-the-counter products or exchange-traded instruments like catastrophe bonds, green bonds, ethical indices, derivatives contracts on weather are available. These products are used for speculative purpose or hedging strategies by companies, institutional investors, public authorities or small investors. The universe of indices is huge, but every day, new indices are set up. In order to offer ethical financial instruments for portfolio investors, a new type of indices - ethical indices are available on financial market. These indices consist of shares issued by blue chips companies traded on exchange that meet certain criteria regarding environment protection, human right and business ethics. The first global indices that track the performance of sustainability drive companies were Dow Jones Sustainability Indices launched in 1999. In addition, the Dow Jones Sustainability World Index is used as underlying asset for futures contracts traded 83 on Chicago Climate Futures Exchange 174. Another leader in index world - FTSE index company175, that calculates indices that measures the performance of enterprises that meet the corporate social responsibility standards. The innovation is very intense on bond market. For example, the catastrophe bonds or catastrophe bonds are issued by insurance companies, re insurers, corporations and public authorities in order to transfer the catastrophe risk to investors like institutional investors, hedge funds, pension's funds, bond funds or companies from insurance field. The issue of this type of bonds is an alternative to traditional insurance / reinsurance. So, the capital market offers instruments for insurance industry and cover events like earthquake, windstorms, river floods, hurricanes or tornados. Another impact of weather and climate change on bond market is the issue of green bonds. In the year 2008, the International Bank for Reconstruction and Development made a major innovation on capital market: the launch of green bonds. The capitals raised by these securities are used for financing mitigation and adaptation measures implicated by climate change. The first issue was done in November 2008 and the loan was denominated in Swedish Krona (SEK) and it was a response to a demand of Scandinavian investors. Since then, other three issues of green bonds have been launched. The recent event was at the beginning of 2010, when World Bank and Daiwa Securities Group launched, for Japanese investors, green bonds. This issue raised funds (over USD 110 million) for projects financed by International Bank for Reconstruction and Development in countries in order to meet the criteria of low carbon development. Through new financial instruments, the institutional investors that normally do not participate in carbon market can buy these bonds and became an indirect player on emissions trading. Taking in account their face value, these bonds are affordable for institutional investors. 174 Chicago Climate Future Exchange. Available at: https://www.theice.com/ccx (Accessed 23 April, 2017). The Financial Times Stock Exchange 100 Index (FTSE 100 Index). Available at: http://www.londonstockexchange.com/exchange/prices-and-markets/stocks/indices/summary/summary-indicesconstituents.html?index=UKX (Accessed 23 April, 2017). 175 84 The climate change imposed a new merchandise: the carbon and a new market has been set up: the carbon market. The carbon market has two segments: the regulation-driven market established under the rules of Kyoto Protocol and the voluntary market, created earlier by the conservation organization in order to find new ways to finance their projects. The regulated carbon market has three fundamental mechanisms: Emissions Trading, Joint Implementation and the Clean Development Mechanism 176. The specialists of the World Bank consider that the engine, perhaps even the laboratory of the carbon market is the EU ETS177. Under the Kyoto Protocol, every country must fulfill its emissions reductions commitments and can purchase and sale carbon credits. Because of that, the European authorities have set up since 2005 a trading scheme for its members. From 2008, this scheme is used by 31 countries 28 EU members' states, Norway, Iceland and Liechtenstein and covers over 11,000 installations in the energy and industrial sectors. Due to the dramatic efforts of European authorities in order to fulfill its international commitments, this trading scheme is strictly regulated and has been improved. The EU ETS was designed with three periods. In the first and second periods, according with national allocations plans, every installation in the member states receives emissions allocations units. An EUA represents a permit to emit 1 000 tons of CO2. If an installation makes investments in environment friendly technologies and cut its carbon emissions, the surplus units are sold 178. In these periods, some drawbacks have been observed: in the first stage (2005-2008), the lack of verified emissions data determined an excessive allocation of allowances in some member states and some sectors; the allocation of 176 UNFCCC, The Mechanisms under the Kyoto Protocol: Clean development mechanism, joint implementation and emissions trading. Available at: http://unfccc.int/kyoto_protocol/mechanisms/items/1673.php (Accessed 25 April, 2017). 177 European Commission, EU ETS Handbook, European Union, 2015, p.4. Available at: https://ec.europa.eu/clima/sites/clima/files/docs/ets_handbook_en.pdf (Accessed 25 April, 2017). 178 Communication from the Commission on guidance to assist Member States in the implementation of the criteria listed in Annex III to Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, and on the circumstances under which force majeure is demonstrated /* COM/2003/0830 final */ , Brussels, 7.1.2004. Available at: http://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52003DC0830&from=EN (Accessed 25 April, 2017). 85 allowances by installations was made according with different national methods and that threaten fair competition in the internal market. Because of that, after public consultation and discussions, the European legal framework for trading scheme has been improved for the third period (2013-2020). The numbers of allowances will decrease annually and the allocation will be done at European level, so the national allocation plans will not be needed anymore. Taking into account the principle "the polluter pays", more than half of emissions allowances will be auctioned compared with less than 4% in the phase two. In order to respect the rules of the internal market, each member state will set up and develop its own auctioning infrastructure or will cooperate with other states to develop regional or EU-wide platform of auctions. The result consists in the development of carbon market: 1.3 billion EUAs will be auctioned each year, potentially raising from 25 to 40 billion annually. Other countries like Australia, Japan and several states US have set up their own regulations and legal mandatory programs in order to reduce greenhouse gas emissions associated with the economic activities. In the USA, there is not available a national program, only regional programs like Regional Greenhouse Gas Initiative 179 or The Western Climate Initiative 180. The voluntary carbon market is the place where the companies, the NGOs and the individuals buy carbon credits for purposes other than meeting compliance targets. On this market, institutions and companies can buy carbon credits to offset their emissions, companies or individuals can purchase carbon credits for retirement or sale or they can donate GHG reduction projects in exchange for credits. The high interest of companies, institutions and portfolio investors for carbon trading has generated the establishment and development of exchanges like Chicago Climate Exchange or segments for carbon credits at stock and commodity exchanges. The exchanges are important players on social responsible investment market because they have the power to promote ESG principles among the listing 179 180 Regional Greenhouse Gas Initiative (RGGI). URL: https://www.rggi.org (Accessed 25 April, 2017). The Western Climate Initiative. URL: http://www.wci-inc.org (Accessed 25 April, 2017). 86 companies and to launch ESG related products. The exchanges have many possibilities to act on SRI market through promotion ESG standards for the listing companies; launch of many sustainability indices or the set up of specialized markets for specific social responsible investment or specialized exchanges are established to trade ESG related products. For example, the climate change determines the establishment of dedicated exchanges for carbon products. The most active exchange on carbon market is the Chicago Climate Exchange that has launched in 2003 a cap and trade system for all six-greenhouse gases. The members of this exchange are emitters of greenhouse gases like components of the Dow Jones Industrial Average, 100 companies like Ford, Motorola, International Paper, electric utilities like American Electric Power, two US states (Illinois and New Mexico), several counties and cities like Chicago and Aspen and universities like Michigan State University, University of California, San Diego or University of Oklahoma. All the members have made a voluntary but legally binding commitment to the CCX Emissions Reduction Schedule. Through this reduction schedule, the annual emissions allowances are allocated in order to meet the goal of 6% reduction in GHG emissions from a standardized baseline. The members that reduce their emissions beyond their targets have the possibility to sell the surplus allowances or to bank them for future use. The members who overpass the allowances must purchase additional allowances. In fact, on this exchange, the tradable product is named the Carbon Financial Instrument (CFI) contract, that represents 100 metric tons of exchange allowances or exchange offsets. Besides members, there are offset providers or aggregators, that are owners or offset projects that destroy, sequester or reduce GHG emissions, and liquidity providers like professional traders or hedge funds that do business on this exchange for reasons other than compliance - speculation or hedging. The baselines, annual emissions data and offset projects are verified are reviewed by an independent non-governmental body - the Financial Industry Regulatory Authority (FINRA). The Chicago Climate Exchange has set up two 87 derivatives exchanges: Chicago Climate Futures Exchange (CCFE) and European Climate Exchange. At European Climate Exchange, there are two types of carbon products traded: EU allowances (EUAs) and Certified Emission Reductions (CERs) through spot, futures and options contracts. The interest of investors for these types of contracts is demonstrated be the rise of volume of CO2 traded and the increase of notional value of contracts traded. BlueNext is another European environmental exchange that was set up by NYSE Euronext and Caisse des Dépots in 2007. This exchange is leader on the spot market for CERs and EUAs, but since middle of 2008, futures contracts on CERs and EUAs are available too. The role of this exchange on the spot market for environmental related products is demonstrated by the choose of the World Bank that at the end of last year, decided to begin regular sells CERs through this exchange. In this way, the World Bank, as trustee for the Adaptation Fund, monetizes the CERs obtained through the CDM. The Adaptation Fund was set up in order to finance adaptation projects and programs in developing countries that are parties to Kyoto Protocol. This fund is an instrument for fight against climate change. Globalization and technological progress have led to an increase in ethical consumerism, more and more consumers taking the product purchase decisions based on social or environmental criteria aimed at companies. From the perspective of social responsibility, the competitive pressures of globalization focus not only on transnational corporations, but also on companies that are in the supply chain, for this reason, large companies have initiated programs to promote social responsibility for subcontracting firms or supplier firms in developing countries. 88 2.3 Small island states. Climate migrants. Human rights protection While there is no officially accepted definition of “small island states” and membership of that group is by self-selection, these countries share several characteristics which contribute to their intrinsic vulnerability: small size, remoteness, vulnerability to external shocks, narrow resource base and exposure to global environmental challenges. The following definition of small island states appears in Wikipedia: “Small Island Developing States (SIDS) are low-lying coastal countries that tend to share similar sustainable development challenges, including small but growing populations, limited resources, remoteness, susceptibility to natural disasters, vulnerability to external shocks, excessive dependence on international trade, and fragile environments. Their growth and development is also held back by high communication, energy and transportation costs, irregular international transport volumes, disproportionately expensive public administration and infrastructure due to their small size, and little to no opportunity to create economies of scale”181. Quoting the United Nations Department of Economic and Social Affairs, Wikipedia lists 52 small island developing states, broken down into three geographic regions: the Caribbean; the Pacific; and Africa, Indian Ocean, Mediterranean and South China Sea (AIMS). In addition, most SIDS are members of the Alliance of Small Island States (AOSIS), which performs lobbying and negotiating functions for the SIDS within the United Nations system182. Because no official definition exists and no criteria were adopted by the UN to determine what constitutes a small island state, there are varying numbers of such states – AOSIS has 39 members and five states with observer status183, while SIDSNET (Small Island Developing States Network) lists 39 states.11 181 See Small Island Developing States. URL: https://en.wikipedia.org/wiki/Small_Island_Developing_States (accessed 21 January, 2017). 182 Alliance of Small Island States (AOSIS). URL: http://aosis.org/about (accessed 21 January, 2017). 183 AOSIS, Members. Available online at: http://aosis.org/about/members (accessed 21 January, 2017). 89 Small island states have been at the forefront of action relating to climate change due to their geographical and economic vulnerability to climate change. The Barbados Declaration and Program of Action of 1994 were the first documents that laid down a program of action for the sustainable development of small island developing states. The Declaration affirmed that the survival of SIDS is firmly rooted in their human resources and cultural heritage which are under severe stress and that sustainable development programs must enhance the quality of life of peoples, their health, safety and well-being. It recognized the need to give full attention to gender equity, the important role played by women, and the needs of women, children, youth and indigenous people. It affirmed their sovereign right over natural resources but recognized their vulnerability to natural and environmental disasters. The Declaration recognized the impact of climate change as early as 1994: “While small island developing States are among those that contribute least to global climate change and sea level rise, they are among those that would suffer most from the adverse effects of such phenomena and could in some cases become uninhabitable. Therefore, they are among those particularly vulnerable States that need assistance under the United Nations Framework Convention on Climate Change, including adaptation measures and mitigation efforts184.” Climate change affects millions of people on coral islands and archipelagoes, which are too small to register on scientific maps. Nearly three quarters of island groups, coral islands and archipelagos that are home to over 18 million people are becoming increasingly arid due to climate change. The new study notes a systematic underestimation of the plight of the islanders: the planet is heated because of the rising level of greenhouse gases in the atmosphere, which poses a serious threat to the survival of island communities. 184 UN General Assembly (1994), Report of the Global Conference on the Sustainable Development of Small Island Developing States, Sec. 3, (25 April–6 May 1994), Bridgetown, Barbados (hereinafter Barbados Declaration). Available at: http://www.un.org/documents/ga/conf167/aconf167-9 (accessed 25 April, 2017). 90 Unfortunately, many of the islands are too small to be included in climatic scientific calculations. Thus, communities that historically less than all peoples contributed to global warming, will be the first to suffer. In general, as the planet heats up, some regions will become wetter, and some - much drier. Accordingly, the impact on the islands will be disparate : half of them will receive more rain, and the other half will experience a significant water shortage. But scientists believe that the "verdict" of such forecasts was too inaccurate, since it did not take into account many of the tiny points that always existed on the sea charts. And many of the islands in Polynesia are small for registration on the climate map of the world, therefore, according to estimates, 18 million people do not fall into our field of vision. Even such a famous point on the map, like Easter Island, which is a world heritage in the South Pacific and home to many large mysterious statues indicative of a disappeared culture, can be taken into account. On a climatic map, this island is regarded as an open ocean. The islands of French Polynesia, the Marshall Islands and the Lesser Antilles are part of the "most unprotected waters" on the planet, but they are not registered on relief maps. Coral islands are rarely above two meters above sea level, and, according to forecasts, if the world does not stop burning fossil fuels and massively does not switch to renewable sources of energy, many of them will disappear underwater due to rising sea levels. Moreover, even if more rain falls, evaporation will also increase, so perhaps 73% of the islands may suffer even more from drought as a result of increased evaporation. The islands are already dealing with rising sea levels. For rainwater, they are also vulnerable. The atmosphere becomes more arid, and the maintenance of life requires more fresh water. Scientists-climatologists who track local changes, divide the world into a grid of squares 240 by 210 km. If one of the squares almost completely occupies 91 the ocean, then they consider that part as an ocean and make corresponding forecasts. In general, according to researchers, thousands of islands are too small to appear on climate maps. According to UN estimates, the population of small island developing states in 2010 was 64 million. By 2100, there will be 80 million island residents. Even with a slight increase in sea level, the inhabitants of the islands will face a catastrophe. If, before flooding the settlements, the ocean penetrates into the groundwater and poison the fields, the inhabitants of the islands can technically be qualified as refugees in need of international assistance. The inhabitants of the island of Carteret (Kilinaalau), Papua New Guinea, became the first community that is forced to run from their native places due to climate change. They are the first refugees who are forced to flee from the waters threatening their homes and fields. Already in the near future, the island, which they call home, will be completely flooded. Thus, the forced, but not large-scale resettlement of people whose lives have been threatened due to climate change has begun. Despite the fact that the community has only 40 large families (about 2000 people), the loss of their homes and their usual life is a sad event. The islanders are already building new houses near the village on another, larger and higher island. For now this is the first community, which had to resort to such actions. However, in the future, in conditions of constant rise of sea level and inaction of the governments of countries that promote livestock production and pollute the environment, such defenseless communities will become more. In the flooding of the island, some accuse the movement of tectonic plates, but the Australian Tidal Center recorded an annual increase in water levels on the islands where monitoring was conducted. The data obtained amounted to 8.2 mm, which together with the trend of climate change is becoming a decisive factor in the flooding of the islands in the near future. 92 The carbon footprint of those living on small island states is very small compared with their counterparts in the Global North (and emerging economies in the Global South) who lead a profligate way of life. Despite their minimal contribution to climate change, the inhabitants of small island states are facing the prospect of losing everything they have, including the very territory that their ancestors have inhabited for generations. They are being disproportionately affected by something that they hardly contributed to. They are paying a high price for somebody else’s prosperity. Sea-level rise associated with climate change and increased incidence of severe weather events causes significant damage to the small island states, many of which are barely above sea level. Flooding, salt water intrusion and other severe weather events have increased in both intensity and frequency, causing much hardship to the inhabitants. While some communities have moved inland, this is not an option for others because most islands are only about one meter above sea level. Ultimately, these people will have to be relocated elsewhere. The total submergence of small island states due to sea-level rise associated with climate change raises several legal issues and these will be examined in this chapter. It discusses the nature of the problem, possible disappearance of small island states, right to nationality, statelessness and the right to self-determination, as well as the whole gamut of rights that would be at jeopardy as a result of states disappearing. In his opening statement, the Prime Minister of Barbados, Mr L. Erskine Sandiford noted the need to put an end to “the vicious cycle of environmental degradation, economic decline and social deprivation” that the vast majority of developing countries were locked in185. He stressed that, for small island states, the question of sustainability is a matter that affects the very nature of their existence. For the Marshall Islands in the Pacific and Maldives in the Indian Ocean, the issue of climate change and sealevel rise is not simply a theoretical issue; it is a 185 UN General Assembly (1994) Report of the Global Conference on the Sustainable Development of Small Island Developing States (25 April–6 May 1994), Bridgetown, Barbados, Annex 2, P. 68. Available at: http://www.un.org/documents/ga/conf167/aconf167-9 (accessed 16 March 2017). 93 threat to their continued existence. For a majority of us, natural disasters in the form of hurricanes, cyclones and floods are a seasonal fact of life 186. He identified several principles to guide the states in their substantive discussions: (a) sustainable development will best be achieved under conditions of peace; (b) sustainable development connotes change; (c) a greater flow of resources in the form of foreign direct investment, official development assistance and other assistance from developed countries is needed; (d) new partnerships are needed between small island states and industrialized countries to achieve sustainable development; and (e) improved health and healthy lifestyles, good education, poverty alleviation, greater employment opportunities and good governance are required. Sustainable development in small countries should aim at the full participation in the socio-economic thrust of all social elements, including the poor, the disabled and the disadvantaged, as well as women, youth and indigenous people. This is advanced on the grounds not only of social equity but also of the need for small island States to utilize their human resources to the fullest possible extent187. The population and agricultural land tend to be near the coast, any rise in sea level will have a significant impact on the living conditions of people and the economy. In addition, coral reefs, fisheries and freshwater will be affected as well as vegetation due to saline intrusion. Moreover, because storms will increase in both intensity and severity, small island states will require all available information to enable them to adopt appropriate response strategies. The Program of Action identifies the importance of developing coastal zone management plans, renewable sources of energy and dissemination of sound and efficient energy technologies as 186 Ib. UN General Assembly (1994), Report of the Global Conference on the Sustainable Development of Small Island Developing States (25 April–6 May 1994), Bridgetown, Barbados, Annex 2, P. 68. Available at: http://www.un.org/documents/ga/conf167/aconf167-9 (accessed 16 March 2017). 187 94 well as assisting with adapting to the consequences of climate change. Furthermore, while small island states are already prone to extremely damaging natural disasters, the incidence of these events will increase due to climate change. Natural disasters are of special concern because of the small island states’ size and their dependence on agriculture and tourism188. In its 2009 Declaration on Climate Change, the AOSIS expressed its grave concern that climate change poses the most serious threat to their survival and that, despite mitigation commitments made, GHG emissions continue to increase 189. It also expressed profound disappointment at the lack of ambition within the negotiations to protect SIDS and other vulnerable countries, their people, culture, land and ecosystems from the impacts of climate change 190. The Declaration called upon the international community, with developed countries taking the lead, to undertake urgent action to reduce GHG emissions191 and to establish a mechanism to address loss and damage from climate change comprised of a disaster risk component, insurance and compensation funds. The AOSIS Declaration of 2012 called upon the UN General Assembly to declare 2014 as the International Year of Small Island Developing States to raise awareness of their special situation192. They expressed grave concern that climate change poses the most serious threat to their territorial integrity, viability and survival, and threatens their whole existence. The Declaration noted that international action to address climate change continues to be grossly inadequate and expressed alarm that “due to the impacts of climate change people have been forcibly displaced from their homes and entire islands may become uninhabitable or entirely submerged causing mass climate change displacement”193. It referred to the urgent need to consider and address the security implications of climate change, including violation of territorial integrity, forced 188 Ib. 189 AOSIS (2009) Declaration on Climate Change, Available at https://sustainabledevelopment.un.org/content/documents/1566AOSISSummitDeclarationSept21FINAL.pdf (accessed 11 April, 2017). 190 Ib. 191 Ib. 192 AOSIS (2012) Alliance of Small Island States Leaders’ Declaration. Available at: http://aosis.org/wpcontent/uploads/2012/10/2012-AOSIS-Leaders-Declaration.pdf (accessed 11 April, 2017). 193 Ib. 95 displacement, the human dimension of climate change and initiatives for preparing communities for relocation 194. Similarly, the Declaration of Alliance of Small Island States Leaders in 2014 referred to the extreme vulnerability of SIDS to climate change 195. It referred to the IPCC 5th assessment report which underscored that small island states are extremely vulnerable to the effects of climate change, sea-level rise, ocean acidification and extreme weather events. With warming of less than one degree Celsius, SIDS are already experiencing adverse effects. It reiterated yet again that international action to address climate change has been grossly inadequate and emissions continue to rise at an alarming rate. It called upon the international community to ensure that the temperature increase does not exceed 1.5 degrees Celsius above pre-industrial levels 196. It also called for the urgent operationalization of the Warsaw International Mechanism for loss and damage. The UN declared 2014 to be the International Year of Small Island Developing States197. The tone of these Declarations is in stark contrast to the UNFCCC documents. While UNFCCC documents are technical, dry and sterile and lack a reference to the human face of climate change, these Declarations provide a grim picture of what is actually happening in SIDS, how people are being affected and how relocation will soon be necessary. The UNFCCC drafters should take a leaf out of the SIDS book and learn how to draft these documents with more passion and a sense of urgency. All the above mentioned lead to climate refugees. Migration can be divided into several categories – temporary, internal, permanent, cross-border or a combination of these factors. Thus, migration can be temporary and internal, crossborder migration cannot be ruled out, particularly for those who are currently 194 Ibid. AOSIS (2014) Alliance of Small Island States Leaders’ Declaration. Available at: http://aosis.org/wpcontent/uploads/2014/09/AOSIS-Leaders-Declaration-1-September-2014-FINAL-.pdf (accessed 21 April, 2017). 196 Ib. 197 United Nations, International Year of Small Island Developing States, 2014. Available at: http://www.un.org/en/events/islands2014/#&panel1-1 (accessed 21 April, 2017). 195 96 living on small island states. Similarly, the causes of migration are also many: sealevel rise associated with warming temperatures (physical factors), increased population pressures, severe weather events, scarcity of resources, conflicts associated with scarce resources, etc. Those living on small island states will be worse off as they risk losing everything they have, including their state, nationality, culture and identity198. On current predictions, as many as 200 million people may be displaced as a consequence of climate change by the year 2050, that is to say, approximately one person in every fourteen world-wide. Entire nations, such as the Maldives and Tuvalu, are likely, if current GHG emission trends continue, to be lost to sea level rise, rendering their inhabitants stateless. Tuvalu is negotiating agreements with Australia and New Zealand to move its 12,000 strong population, and the Maldives has started saving to buy land to resettle its 400,000 strong population to India or Sri Lanka 199. Australia’s previous government (reportedly) refused Tuvalu’s request twice, while New Zealand agreed to accept 75 immigrants every year. Restrictive definitions in international refugee law, a regime already overburdened due to institutional and resource constraints, will preclude claims arising therein. Discrimination issues are also endemic in forced displacement and refugee law, with the most vulnerable individuals and populations often being least able to migrate, and facing serious protection concerns when they do 200. Given the very possible scale of the human tides to come, and in light of the current state of the existing international refugee regime, some commentators have called for a new international agreement on what are sometimes called “climate refugees,” or on the human rights of those displaced by climate change. The proposals vary in the scale of ambition. A minimalist approach might be the 198 McAdam J., Climate Change, Forced Migration, and International Law, Oxford: Oxford University Press, p. 16, 2012. 199 Crouch, Brad, Tiny Tuvalu in Save Us Plea Over Rising Seas, SUNDAY MAIL, Oct. 5, 2008. 200 United Nations High Commissioner for Human Rights, Executive Committee Conclusion No. 105 (LVI), Conclusions on Women and Girls at Risk (Oct. 6, 2006). Available at: http://www.unhcr.org/excom/exconc/45339d922/conclusion-women-girls-risk.html (accessed 27 April, 2017). 97 revision of the 1951 Convention on the Status of Refugees to include climate (or environmental) refugees and to offer legal protections similar to those for refugees fleeing political persecution. Others have argued for a new convention modelled on human rights principles providing temporary protections for environmental displacement and addressing root causes, while others have argued for regional efforts under the umbrella of the UNFCCC 201. More ambitiously, some scientists have argued for a new climate change refugee legal instrument that draws on multiple areas of the law, including human rights, humanitarian, and international environmental law, to address situations where gradual or sudden disruption “consistent with climate change,” where human activity has “more likely than not” contributed to the disruption, leads to temporary or permanent trans-boundary forced migration202. This proposal would be supported by the establishment of a global fund, a separate coordinating agency, legal enforcement procedures, and a body of scientific experts charged with making independent determinations on the types of environmental disruptions encompassed by the proposed definition of climate change refugee, States parties’ proportionate contributions to the proposed global fund in line with the “common but differentiated responsibility” 203 criterion, as well as conduct general studies about the problem of climate change as it relates to refugee flows. Some other scientists propose a similar scheme but de-link it from the 1951 Refugee Convention framework, arguing that much climate-related displacement is likely to take place within national borders and that those most acutely vulnerable will often not be in a position to migrate internationally204. 201 Williams, Angela, Turning the Tide: Recognizing Climate Change Refugees in International Law, LAW & POLICY, Vol. 30, No. 4, October, 2008. Available at: http://archives.cerium.ca/IMG/pdf/Turning_the_Tide_Recognizing_Climate_Change_Refugees_in_International_Law.pdf (accessed 27 April, 2017). 202 Docherty, Bonnie & Tyler Giannini, Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees, Harvard Environmental Law Review, vol. 30, p. 349, 2009. Available at: http://www.law.harvard.edu/students/orgs/elr/vol33_2/Docherty%20Giannini.pdf (accessed 27 April, 2017). 203 UNFCCC, adopted on 9 May, 1992, Article 9(1). Available at: http://unfccc.int/resource/docs/convkp/conveng.pdf (accessed 27 March, 2017). 204 Hodgkinson, David et. al., Towards a Convention for Persons Displaced by Climate Change: Key Issues and Preliminary Responses, The New Critic, issue 8 (Sept. 2008). Available at: http://www.ias.uwa.edu.au/newcritic/eight (accessed 27 April, 2017). 98 However, proposals linked to the revision of the 1951 Convention must confront the fact of internal resistance to such proposals within UNHCR. In any case, the traditional approach in refugee law of individualized decision-making in accordance with case-by-case application of technical legal criteria appears uniquely ill-suited to the scale and nature of climate-induced displacement. As one commentator has put it, in the current climate of hostility towards asylum-seekers, the “unpleasant politics of definitions” is best dealt with by doing “our utmost to defend the 1951 Convention, while at the same time calling for improved international legal regimes and institutions to protect other kinds of forced migrants”205. However, there are also serious obstacles facing proposals for an entirely new regime. Some of these are conceptual or legal in nature, such as defining “climate induced displacement” or “climate refugee, “given the multiple causes of displacement and slow onset of climate-induced displacement in particular 206. It is worth recalling that on current predictions most people displaced by climate change are likely to remain within their own nation, rather than cross borders. This underscores the importance of ensuring the more widespread enforcement of existing national human rights protections, including the 1998 Guiding Principles on Internal Displacement, which – while not legally binding in and of themselves – constitute a synthesis and reformulation of norms of binding international human rights and humanitarian law of relevance to those displaced within their countries by internal conflict, natural disasters and other situations of forced displacement (including, conceivably, factors related to climate change)207. 205 Stephen Castles, Environmental Change and Forced Migration: Making Sense of the Debate, UNHCR New Issues in Refugee Research, Paper No.70, 10 (Oct. 2002). Available at: http://www.unhcr.org/3de344fd9.pdf (accessed 27 April, 2017). 206 Falstrom, Dana Zartner, Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment, Colo. J. Int'l Envtl. L. & Pol'y, 2001. Available at: http://www.uio.no/studier/emner/jus/jus/JUR5530/v07/undervisningsmateriale/environmental%20refugees%20articl e.pdf (accessed 27 April, 2017). 207 Report of the Representative of the Secretary General, Mr. Frances Deng, submitted pursuant to Commission on Human Rights Resolution 1997/39, U.N.Doc. E/CN.4/1998/53/Add.1 (Feb. 11, 1998). Available at: http://www.undocuments.net/gpid.htm (accessed 27 April, 2017). 99 Pending further research and consensus-building towards specific new norms or institutions, the 1998 Guiding Principles might be seen as “not just a starting point in their own right, but also a model for the process of aggregating and adapting the norms and principles from a wide range of international instruments to protect the rights of the ‘environmentally displaced’. 100 Conclusion. The study showed that the issue of climate change was raised in the late 1980s when it was firstly discussed in the UN General Assembly, it was characterized as “the defining human development challenge for the 21st century”. Furthermore, the clime change was understood as real challenge not only to the enjoyment of human rights and fundamental freedoms but also affecting every country on every continent, as well affecting lives, costing people, communities and countries. The study evaluated the existing legal framework with regard to environment, the Paris Agreement and The UN Framework Convention on Climate. Paris Agreement was adopted12 December 2015, the Agreement entered into force shortly thereafter, on 4 November 2016, while The UN Framework Convention on Climate Change (UNFCCC) was opened for signature at the Rio Conference on Environment and Development in 1992 and entered into force soon afterwards in 1994 When assessing the effects of climate change against the lives of individuals, the study applied human rights approach and environmental approach. The study indicated that among others, the island are the most effected by the climate change, dealing with rising sea levels, warmer and vulnerable for rainfalls. When assessing existing environmental legal protection, the study revealed that, the area of environment law, much attention was not given by the State Members of United Nations and thus less developed on normative and institutional. With regard to commitment and political will, there is less cooperation among member sovereign states of Paris Agreement as well UN Framework Convention on Climate Change. 101 The study also revealed that implementation of existing or future normative rules with regard to the environmental protection is very challenging, giving in to consideration the lack of enforcement and implementation mechanisms. 102 LIST OF ABBREVIATIONS AND CONVENTIONAL SYMBOLS BASIC Brazil, South Africa, India and China BAU Below business-as-usual CAF Cancun Adaptation Framework CCFE Chicago Climate Futures Exchange CCX Chicago Climate Exchange CFCs Chlorofluorocarbons CERs Certified Emission Reductions CBDR Common but differentiated responsibility CDM Clean Development Mechanism COP Conferences of Parties EU European Union EUAs European Union allowances EU ETS European Union Emissions trading Scheme EPA Environmental Protection Agency FDI Foreign Direct Investment FINRA Financial Industry Regulatory Authority GA General Assembly GC Global Compact GDP Gross Domestic Product GHGs Greenhouse Gases GPP Global Poverty Project ICC Inuit Circumpolar Conference ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICESCR International Covenant on Economic, Social and Cultural Rights IGN Intergovernmental Negotiations IPCC Intergovernmental Panel on Climate Change LDCs Least Developed Countries MRVs Measurable, Reportable and Verifiable mitigation measures NDCs Nationally Determined Contributions NYSE New York Stock Exchange OAS Organization of American States OECD Organisation for Economic Co-operation and Development 103 OHCHR Office of the United Nations High Commissioner for Human Rights OWG UN General Assembly’s Open Working Group PRI Principles for Responsible Investment REDD Reducing Emissions from Deforestation and Forest Degradation SIDS Small Island Developing States SDGs Sustainable Development Goals UNCTAD United Nations Conference on Trade and Development UNFCCC United Nat ions Framework Convention on Climate Change UNEP United Nations Environment Programme UNIDO United Nations Industrial Development Organization WCED World Commission on Environment and Development WHO World Health Organization WMO World Meteorological Organization 104 BIBLIOGRAPHY I. 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Available at: http://www.urgenda.nl/documents/VerdictDistrictCourt-UrgendavStaat24.06.2015.pdf (Accessed 27 April, 2017). 4) LITERATURE a) Special literature, books, monography 64. Абашидзе А.Х., Кислицына Н.Ф. Доступ к питьевой воде — неотъемлемое право человека // Обозреватель - Observer. - М: РАУУниверситет, 2004, №7. - С. 86-94 [Abashidze A.Kh., Kislitsyna N.F. Access to drinking water is an inalienable human right // Observer - Observer. - M: RAU-University, 2004, №7. - P. 86-94]. 65. Копылов М.Н., Шевырева Е.А. К вопросу об отраслевых принципах международного экологического права // Вестник российского университета дружбы народов. Серия: юридические науки. - М: РУДН, 2002, №1. - С. 52-57 [Kopylov M.N., Shevyrev E.A. On the issue of sectoral principles of international environmental law // Bulletin of the Russian University of Friendship of Peoples. Series: jurisprudence. - M: PFUR, 2002, №1. - P. 52-57]. 66. Копылов М.Н. Право на благоприятную окружающую среду: процесс становления юридического содержания // Вестник российского университета дружбы народов. Серия: юридические науки. - М: РУДН, 2003, №1. - С. 48-54 [Kopylov M.N. The right to a favorable environment: the process of the formation of the legal content // Bulletin of the Russian University of Peoples' Friendship. Series: jurisprudence. - M: RUDN, 2003, №1. - P. 48-54]. 114 67. Солнцев А.М. Современное международное право о защите окружающей среды и экологических правах человека. Монография - М: Книжный дом «ЛИБРОКОМ», 2015. - 336 с. [ Solntsev A.M. Modern international law on the protection of the environment and environmental human rights. Monograph - M: The book house "LIBROKOM", 2015. - 336 p.]. 68. Солнцев А.М., Сорокина Ю.С. Третья Всемирная конференция по изменению климата-2003 // Юрист-международник. Всероссийский журнал международного права. - М: Современная экономика и право, 2004, №1. - С. 65-67 [Solntsev AM, Sorokina Yu.S. Third World Conference on Climate Change-2003 // International Lawyer. All-Russian Journal of International Law. - M: Modern Economy and Law, 2004, №1. - P. 65-67]. 69. Солнцев А.М., Петрова Н.А. Как заставить государства соблюдать экологические права человека? // Международное право - International Law. - М: РУДН, 2010, №4. - С. 41-49 [Solntsev AM, Petrova NA How to make states comply with environmental human rights? // International law International Law. - M: RUDN, 2010, №4. - P. 41-49]. 70. Agenda 2030 and Settlement Adaptation to Climate Change Impacts, VLADIMÍRA ŠILHÁNKOVÁ, MICHAEL PONDĚLÍČEK, WSEAS TRANSACTIONS on ENVIRONMENT and DEVELOPMENT, vol.13, pp. 181-188, 2017. 71. Bodansky, D. (2012) ‘The Durban Platform Negotiations: Goals and Options,’ Harvard Project on Climate Agreements, Belfer Center for Science and International Affairs. Available online at: http://www.belfercenter.org/sites/default/files/legacy/files/bodansky_durban2 _vp.pdf (Accessed 17 April. 2017). 72. 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