Enhancing climate resilience of transboundary water allocation agreements: the impact of shortening the agreement’s lifetime on cooperation stability

Efficient use of transboundary rivers under climate change requires periodic adaptation of their governing regime to the hydrological realities of the basin. Applying a short-term time horizon to an agreement on water allocation can make it easier for the riparian states to update the terms of their cooperation periodically, and thus, adapt them to changes in water availability resulting from climate change. However, agreements with a pre-agreed termination date can only increase the efficiency of water use if they lead to a stable cooperation. In this paper, I analyze how riparian states’ previous knowledge of the termination date of a water allocation agreement affects the agreement’s stability. The results show that when riparian states are aware of the agreement’s termination date, there is a higher chance for them to free-ride. However, certain cases may occur in which previous knowledge of the agreement’s termination date can contribute to the stability of an agreement by enforcing compliance.     

论发达国家的国际气候环境保护责任简

依据国际环境法的“共同但有区别的责任”原则,发达国家应当承担应对气候变化的率先的和主要的国际气候环境保护责任.但是,在实践中,由于综合国力等因素的影响,发达国家迟迟不与发展中国家就气候环境保护的核心条款达成协议,甚至推行单边主义和争夺国际环境公共权力,导致发达国家国际气候环境保护责任未能有效实现.制度上的完善设计和广大发展中国家的团结协作,是实现发达国家国际气候环境保护责任的必然选择.     

中国在国际气候谈判中面临的新挑战及其应对

德班平台建立后,国际气候谈判由“双轨制”变为单轨,发达国家和发展中国家自此将在一个共同的平台上就未来国际气候机制展开谈判,过去相对稳定的国际气候谈判格局发生演变.在这种情况下,中国面临着发展中国家身份的集体认同的变化,以及中国所一贯坚持的“共同但有区别的责任”原则的重新解读,这些变化将给中国的身份定位及国家利益带来影响.因此,中国一方面要把握在未来国际气候机制制定中的话语权,积极参与全球气候治理体系的改革与建构,使其适应中国国内中长期发展目标;另一方面也要承担相应的减排责任,做负责任的大国,为全球气候治理贡献力量.     

The Devilish Details: Key Legal Issues in the 2015 Climate Negotiations

The ongoing UN negotiations for a 2015 climate agreement have yet to resolve two fundamental legal issues on which its effectiveness will hinge. The first is the precise legal form this agreement will take. Parties had agreed to work towards a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. This leaves scope for a range of possible legal forms, only some of which are legally binding. Second, they have yet to determine the legal nature of the ‘nationally determined contributions’ submitted by Parties. This article addresses these two critical issues: on ‘legal form’, it identifies the instruments that could form part of the Paris package, focussing on their legal status, significance and influence; and on the ‘legal nature’ of nationally determined contributions, it considers their nature and scope, the range of options for ‘housing’ these contributions as well as their relationship to the core 2015 agreement.     

Parliaments as changing institutions and as agents of regime change: Evolving perspectives and a new research framework

In this review, the scholarly literature dealing with the role and dynamics of parliaments as institutions that undergo change within themselves and that support and enhance change in the larger regime is considered. One central theory of scholarship dealing with parliamentary change, that of legislative institutionalisation, is examined and found wanting as an explanation of change in mature parliamentary institutions. In discussion of analyses of five instances of parliamentary change, it is shown that parliaments can change in a wide variety of contexts and conditions ‐ including such well‐established legislatures as the United States Congress after over 200 years of evolution. There is no ‘end of history’ in parliamentary change, only the possibility of sometimes startling change from what has gone before. The examination of five instances of parliamentary change also supports the thesis that parliamentary institutional change, and regime change enhanced by parliamentary change, are inexorably linked. Finally, a tentative research framework is evolved from the above analyses and proposed as a means for considering the role of parliaments as changing institutions and as institutions enhancing systemic change.     

Ecosystem-based approaches to climate change adaptation: progress and challenges

Resilient ecosystems are vital to human well-being and are increasingly recognised as critical to supporting communities’ efforts to adapt to climate change. The governing bodies of the Convention on Biological Diversity and the United Nations Framework Convention on Climate Change are encouraging parties to adopt ‘ecosystem-based adaptation’ (EbA) approaches, which utilise biodiversity and ecosystem services to support climate change adaptation. These approaches are wide ranging and include mangrove restoration to buffer against storm surges; watershed management to protect against droughts and floods; rangeland management to prevent desertification; and sustainable management of fisheries and forests to ensure food security. This article examines the emergence of EbA in international legal frameworks for climate change and biodiversity and progress towards implementation. The EbA concept is potentially powerful in catalysing international and national commitments to act due to its key defining features of a focus on societal adaptation rather than ecocentricism, and a targeting of the immediate adaptation needs of the poorest and most vulnerable communities who are adversely affected by climate change. However, examination of national policy and practice in two least developed countries, Samoa and Cambodia, reveals that institutional and legal barriers at national level can pose significant challenges to operationalising EbA to achieve adaptation objectives.     

气候变化法律应对实证分析——从国际公约到国内法的转化

气候变化问题的全球性决定了构建应对气候变化对策必须集合各领域的通力合作的,法律应对机制是必不可少。以往,我们常常将关注点放在气候变化国际法律制度领域的基本问题研究上,而未真正对气候变化国际法律制度进行认真剖析,找出其目前和未来发展阶段的不足之处;更没有在国际实证分析的基础上,结合我国目前的实际情况,做出完整的法律构架,实现国际法的国内法转化,使气候变化的应对能真正落到实处,毕竟《京都议定书》的实现需要各国知之践行;尽管有必要强调共同但区别原则,但是中国作为负责任的大国,有必要提升“道义责任理念”,从自身内部法律实践做起,为温室气体的减排落实真正尽一份力。     

National institutional response to climate change and stakeholder participation: a comparative study for Asia

Asian countries are building domestic institutions in response to climate change at both the international and domestic levels. Many countries have adopted the inter-agency coordination mechanism (IACM) as a national institutional approach to adjust the functions of various governmental agencies to tackle climate change. This article compares and contrasts national IACMs in four countries: Japan, the Republic of Korea, China and India. It examines (1) the structure and function of an IACM; (2) agencies and their specific roles in IACMs; (3) measures to empower the participation of other stakeholders including local governments, private sector, civil society and academia; and (4) changes in IACMs and reasons for such changes. Four success factors drawn from our comparative study suggest that an effective IACM should feature (1) strong overall coordination by the President/Prime Minister; (2) empowerment of the industry and environment agencies as joint lead agencies coordinating mitigation and adaptation; (3) involvement of all major sectoral agencies related to mitigation and adaptation; and (4) maximisation of the use of the comparative advantages of other stakeholders. The article highlights successful practices in Asia that can be emulated by other governments considering reform of their own domestic institutions in response to climate change.     

What drives national support for multilateral climate finance? International and domestic influences on Australia’s shifting stance

The fulfilment of wealthy countries’ commitment to mobilise $100 billion a year in climate finance by 2020 will hinge on maintaining domestic political support in contributor countries. Predictability in flows of climate finance is likely to enhance the overall stability of the climate finance system and the broader climate regime. However, at present it remains unclear how the 2020 target will be achieved and little is known about what drives fluctuations in support among contributor countries. This article explores domestic and international factors that may explain fluctuations in national support through a case study of Australia’s climate finance from 2007 to 2015. Drawing on documentary analysis and interviews with officials and stakeholders, the paper tracks two domestic factors that may influence support for climate finance—the government’s political orientation and public concern about climate change—and two international factors—commitment to multilateral agreements and international peer pressure. While some accounts view climate policy choices as being driven primarily by domestic factors, we find that the government’s political orientation on domestic climate policy and aid explains some but not all variations in Australia’s stance on climate finance. International peer group effects have moderated the positions of two governments that were otherwise reluctant to act on climate change. National policy reforms combined with improved multilateral oversight and more established replenishment cycles could bolster support in contributor countries and thereby strengthen the capacity of the climate finance system.     

Climate change and national laws across Commonwealth countries

This paper furthers the Commonwealth agenda on climate action by exploring the kinds of ‘practical and swift action’ that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide ‘co-benefits’ in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.     

Seizing the opportunity: tackling fossil fuel subsidies under the UNFCCC

Analyses from international and nongovernmental organizations have pointed to the negative environmental, economic and social implications of the sizable subsidies handed out by governments for the production and consumption of fossil fuels. Given their relevance for achieving climate policy objectives, it is perhaps surprising that the climate regime established by the United Nations Framework Convention on Climate Change (UNFCCC) does not address fossil fuel subsidies. This article discusses the possible role of the UNFCCC in tackling fossil fuel subsidies. It suggests that the UNFCCC could enhance the transparency around fossil fuel subsidies and put in place incentives for countries to undertake subsidy reform. However, the possibilites under the UNFCCC will be limited by political barriers to subsidy reform at the national level and will need to be carried out in coordination with other international institutions active in the field.     

Conceptual History of Adaptation in the UNFCCC Process

While adaptation has, in the last 3 years, become the most fashionable item on the climate policy agenda, this was not always so. Since the early 1990s, numerous scientists and policy makers have been making the case that adaptation has been the overlooked cousin of greenhouse gas mitigation. As both are seen to be of equal importance, the lack of policy on adaptation is interpreted as a political strategy by developed countries to avoid admitting liability and the financial consequences of this admission. A tension between those in favour of mitigation over adaptation activities has strongly characterized the discourse on climate change policy. However, a closer look at the history of the concept of adaptation as applied in the United Nations Framework Convention on Climate Change (UNFCCC) process underscores the original intention that the treaty should focus on reducing the source of climate change, rather than on adapting to the changes. Adaptive capacity was considered to be an indicator of the extent to which societies could tolerate changes in climate, and was not seen as a policy objective. As a result of events that have unrolled since the inception of the UNFCCC, needs and perceptions have shifted. Today, there are strong grounds for having adaptation as a policy goal, but it must be recognized that the UNFCCC, and its Kyoto Protocol in particular, are first and foremost about abating greenhouse gas emissions. Thus, adaptation policy may find a more appropriate home beyond the existing climate change regime.     

The Current Status and Prospects of the 'Strategic Partnership' between the EU and China: Towards the Conclusion of a Partnership and Cooperation Agreement

Abstract: This article aims to evaluate legal aspects of the content and implementation of the ‘strategic partnership’ between the EU and the People's Republic of China. In the absence of a category of ‘emerging countries’ in international economic law, the Union must adapt its foreign policy with regard to this major economic and commercial power. Relations between the European Community and China are currently governed by a second‐generation agreement from 1985. However, a new dynamic has been set in motion since 2003, by the drawing up of preparatory documents by both parties and joint declarations at annual summits bearing on the ‘strategic partnership’. Seen in a long‐term perspective, this partnership helps provide a measure of predictability in relations between the two partners, through combining elements of ‘soft law’ and ‘hard law’. If the insertion of political dialogue into the strategic partnership seems to alter the coherence of the Union, notably with regard to the difficulties of implementing the dialogue on human rights, the added value of the partnership lies essentially in its economic and commercial aspects, through not only the putting into place of non‐binding ‘economic dialogues’ which cover a large spectrum of the relationship, but also by the multiplication of sector‐based accords in numerous areas (maritime transport, customs cooperation, etc.). This constant development has thus allowed parties, at the last annual summit, to envisage the conclusion of a new framework agreement: this is the origin of the mandate given to the Commission in December 2005 to conclude a partnership and cooperation agreement. This article will sketch out a forecast of the legal framework, measured against the yardsticks of Asiatic regional reconfigurations and the law of the World Trade Organisation (WTO). The commercial risks of the relationship could imply the integration of the domains known as ‘WTO plus’ into the future agreement, notably in the field of investments and intellectual property rights, which would introduce a greater variety into the agreement. That being the case, the negotiations risk being equally fragile at the political level, in particular concerning the insertion of a clause of democratic conditionality in the future agreement. Also, any clash between the values and the interests of the EU would be uncomfortably highlighted during negotiations.     

Allocating climate adaptation finance: examining three ethical arguments for recipient control

Most agree that large sums of money should be transferred to the most vulnerable countries in order to help them adapt to climate change. But how should that money be allocated within those countries? A popular and intuitively plausible answer, in line with the strong standing of the norm of ownership in development aid circles, is that this is for the recipient country to decide. The paper investigates the three most important types of ethical arguments for such ‘recipient control’: the epistemic argument, the entitlement argument, and the legitimacy argument. It is argued that there is a good case for recipient control in democratic countries, because such countries can be expected to act in the name of the people to whom adaptation finance is ultimately owed. However, the three arguments do not support, even if taken jointly, recipient control in nondemocratic countries. This is a significant result seeing as the majority of the most vulnerable countries are nondemocratic.     

Policing protest,security and freedom: the 2014 G20 experience

This article examines the policing of a major international political event (the G20 Meetings in Brisbane, Australia in 2014) from the perspective of the police and representatives of demonstrator groups who participated in the event. The article locates the policing of the 2014 G20 meetings within the history of the policing of major international political meetings in other countries. It analyses the legal framework within which the policing of the Brisbane G20 meeting was undertaken, comparing and contrasting these with legal frameworks developed for similar meetings and associated demonstrations in other jurisdictions. In the case of the Australian G20 Act, the legislation prioritized security over human rights, including the freedoms of expression and peaceful assembly. The strategies and planning processes applied by police in the lead up to the G20 are discussed, including the efforts made to ensure policing responses were respectful of the democratic rights of protesters. Drawing on interview and other data, the article reveals a diversity of perspectives on the ‘human rights’ policing and dialogue models, and provides an assessment of ‘Operation Southern Cross’ based on the post-event review of the G20 legislation undertaken by the Queensland Crime and Corruption Commission. The authors conclude that the policing of G20, based on extensive dialogue and minimization of coercive public order strategies, fostered a peaceful G20 event. The article concludes with observations about the perceived success of G20 policing in Australia, and indicates some lessons learned for best practice policing for future global events.     

Exploring the agency of Africa in climate change negotiations: the case of REDD+

Emerging climate change regimes, such as the mechanism for reducing emissions from deforestation and forest degradation (REDD+), are increasingly aiming to engage developing countries such as those in Africa, in sustainable development through carbon markets. The contribution of African countries to global climate negotiations determines how compatible the negotiated rules could be with the existing socioeconomic and policy circumstances of African countries. The aim of this paper is to explore the agency of Africa (African States) in the global climate change negotiations and discuss possible implications for implementing these rules using REDD+ as a case study. Drawing on document analysis and semi-structured expert interviews, our findings suggest that although African countries are extensively involved in the implementation of REDD+ interventions, the continent has a weak agency on the design of the global REDD+ architecture. This weak agency results from a number of factors including the inability of African countries to send large and diverse delegations to the negotiations as well lack of capacity to generate and transmit research evidence to the global platform. African countries also perceive themselves as victims of climate change who should be eligible for support rather than sources of technological solutions. Again, Africa’s position is fragmented across negotiation coalitions which weakens the continent's collective influence on the REDD+ agenda. This paper discusses a number of implementation deficits which could result from this weak agency. These include concerns about implementation capacity and a potential lack of coherence between REDD+ rules and existing policies in African countries. These findings call for a rethink of pathways to enhancing Africa’s strategies in engaging in multilateral climate change negotiations, especially if climate change regimes specifically targeted at developing countries are to be effective.     

Good Climate Governance: Only a Fragmented System of International Law Away?

Fragmentation is the hallmark of international environmental law—it is both the key to its success and the pathway to its unraveling. Recognizing that law is an essential component of systems of supranational climate governance, addressing gaps between international legal systems is fundamentally important to the legitimacy of international law and to on‐going attempts to use international law as a central component in efforts to address climate change. This article analyzes developments in international environmental law with a view towards suggesting how efforts to develop an international climate change legal regime—and a broader system of global climate governance—highlight the pressing need to look more closely at the linkages between climate change and other areas of international law and to begin thinking about ways to minimize gaps and maximize cooperation among international environmental institutions and between international environmental law and other spheres of international law.     

International environmental agreements between developing countries only: learning from the Brazil–Uruguay case over the suspicion of acid rain

This article is about the process of negotiation and implementation of a bilateral environmental agreement between two developing countries. It analyzes the case of the Act of Jaguarão between Brazil and Uruguay on assessing the risk of transboundary air pollution by the President Medici (UTPM) coal-powered thermo-electrical facility in the Candiota region of southern Brazil. The article adds to the scarce literature on international environmental conflict resolution and negotiations between developing countries, especially in Latin America. First, it explains that even with the asymmetry of power between Brazil and Uruguay, negotiation was possible due to a series of factors, such as the interest of Brazilian environmental agencies in improving the monitoring of emissions from UTPM and the international scrutiny of Brazil prior to the upcoming Rio-92 Earth Summit. Both states obtained mutual gains from the agreement by developing ‘joint fact finding’ research and monitoring. Second, different from most of the mainstream literature, the research reveals that weaknesses in institutional agreements, such as a lack of sanctions or deadlines, were not an implementation impediment. In fact, the very weaknesses of the agreement actually enabled authorities in both countries to cooperate in the development of an acid rain monitoring program in the Candiota region, and as a result, to improve air monitoring capacities in both countries. Third, this research shows that the implementation process (1991–2003) produced different results and impacts: it helped to develop technical capacities of environmental agencies in both countries, increased the political power of Brazilian environmental agencies to control UTPM, and pushed for behavioral changes to enable UTPM to respond to the demands of both governments.     

Criminal benefit,the confiscation order and the post-conviction confiscation regime

Governments and law enforcement agencies around the world seek to identify and confiscate the ‘proceeds of crime’ on the assertion that doing so will deter offending and symbolise to citizens and communities that ‘crime does not pay’. In the UK such assertions have underpinned the enactment of legislation, the investment in law enforcement agents and the development of wide ranging new technologies to facilitate the identification of assets and their recovery. This paper critically considers two key concepts which fundamentally drive the post-conviction confiscation regime in the UK. First, ‘criminal benefit’ which is the amount that a defendant is adjudged to have made from ‘criminal conduct’. Second, the ‘available amount’ which is the amount that the state hopes to recover from a defendant via the court ordered ‘confiscation order’. In so doing, this paper explores the assumptions at the heart of the 2002 Proceeds of Crime Act and their application in practice, concentrating on the nature of the powers accorded to financial investigators and how these powers have been interpreted and applied. It is argued that far from representing the ‘profit’ generated from crime these values are constructs founded in the relationship between legislation, the discretional practice of police officers and financial investigators, organisational restrictions and constraints and informal negotiation and compromise between the defence and prosecution. This has implications for both conceptualising the nature of the post-conviction confiscation regime as well as for shaping what the state might expect to recover from defendants.     

Environmental Technology Transfer and Dissemination under the UNFCCC: Achievements and New Perspectives

Response to climate change will critically depend on the cost, performance, and availability of technologies that can lower emissions, mitigate, and adapt to climate change. Technological innovation can furthermore lower the cost of achieving environmental objectives. However, and although issues of technology transfer have been central to the United Nations Framework Convention on Climate Change (UNFCCC) since the negotiation of the convention, there is still an urgent need for effective environmental technology diffusion. Building upon lessons learned from technology transfer activities under the Clean Development Mechanism and the Global Environment Facility, the article suggests three possible solutions for enhanced environmental technology diffusion within the UNFCCC regime. First, it advocates in favor of a simplification of the transfer scheme within the convention's bodies, in order to save resources and better allocate responsibilities. Second, it makes some recommendations with respect to technology transfer through the Green Climate Fund. Third, it suggests that the creation of an environmental patents’ pool would help to ensure access to key environmental technologies. To this respect, the article concludes that in order to ensure the full participation of the private sector, right holders should be paid a fair royalty. Therefore, a model where rights would be bought out and then made available to parties through a patent pool is recommended.