合作与牵制:气候变化的国际法律机制及其应对

全球气候变化问题是当前的热点话题,各国在参与实施《联合国气候变化框架公约》及《东京议定书》中都在积极寻求制高点。因此在全球气候变化的控制和实施方面,国际社会体现出合作与牵制两种表现,牵制是在谈判中的牵制,谈判是相互牵制的谈判,这两种表现中,合作是目的,牵制是手段。发展中国家要在2012年之前做好充分准备具有一定的挑战性,需要处理好合作与牵制的关系,我国面临的问题具有一定的独特性,处理好控制全球气候变化方面的合作与牵制的关系,积极应对全球气候变化问题。     

Elements for a Robust Climate Regime Post-2012: Options for Mitigation

This article addresses the current state of negotiations within the international climate change regime (including the United Nations Framework Convention on Climate Change and its Kyoto Protocol) and options to be included in a post-2012 carbon market framework, such as sectoral agreements, soft targets for developing countries and a larger consideration of sinks. The article reviews the different options focusing on their potential to spur mitigation of greenhouse gases in key areas such as energy production. The size and depth of the carbon market, as well as the stringency of the cap and the stabilization path chosen, are variables affecting the effectiveness of different options. The article thus makes a clear case for all large emitters to agree on a long-term stabilization goal to guide further negotiations on medium-term carbon market frameworks, and notes that options related to the consideration of sinks, for example, should maintain proportionality with the size of the carbon market to ensure that a sufficient 'pull' for technological developments in energy-related activities is maintained.     

Challenges and Outcomes at the Ninth Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change

From 1 to 12 December 2003, the Ninth Session of the Conference of the Parties to the United Nations Framework Convention took place in Milan, Italy. This conference continued the laborious effort of developing an international climate regime by preparing for the Kyoto Protocol’s entry into force. Some two dozen decisions were adopted on a wide range of options for responding to climate change. This paper assesses the progress achieved at the conference on a number of issues. Among these were operational details for implementing forestry projects under the Convention’s Clean Development Mechanism, and guidelines for reporting on greenhouse gas emissions and removals from agriculture, forestry and land-use change. Parties also decided on rules with respect to two funds, the Special Climate Change Fund and the Least Developed Country Fund. With respect to developing countries, Parties continued discussions on rules for building response capacity in light of the expected adverse effects of climate change and transferring environmentally sound technology. They also discussed how to incorporate scientific advice from the Third Assessment Report of the Intergovernmental Panel on Climate Change into the negotiations. Although Russia did not ratify the Kyoto Protocol prior to the conference, Milan demonstrated momentum and interest among Parties to support the climate regime. Nevertheless, it is doubtful whether the detailed discussions were able to contribute to preparing for the long term. To this end, this paper concludes that more discussion and leadership is required to bridge the North/South gap if a post-2012 climate regime is to stand.     

More Twists, Turns and Stumbles in the Jungle: A Further Exploration of Land Use, Land-Use Change and Forestry Decisions within the Kyoto Protocol

This article traces the history of decisions relating to land use, land-use change and forestry (LULUCF) under the United Nations Framework Convention on Climate Change and the Kyoto Protocol, for the period from 2001 until the present. It follows from an earlier article written by the author. As times progress, matters relating to LULUCF become more convoluted and complex. The article explores such issues as the definition of a forest, what constitutes 'Kyoto land', modalities for afforestation and reforestation under the Clean Development Mechanism, greenhouse gas inventories, reporting and reviews, and possible actions to reduce emissions from deforestation. The article also looks at the role of the Intergovernmental Panel on Climate Change and its input into the science and policy-making process relating to LULUCF.     

The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making

The climate change problem, or global warming, has gained a prominent place on the international political agenda, since the mid-1980s, when it first attracted political attention. The problem was initially perceived mainly as an environmental problem that could be resolved by technological solutions, its current perception, this essay argues, is best characterized as that of an enviro-economic problem. A perception that is exemplified by the ongoing negotiations for the development of economic mechanisms to tackle the problem. The climate change arena is a complex one, involving dichotomies between developed and developing countries, between fossil fuel producing and importing countries and between small island developing states and other states. This essay outlines the interests that play a role in the climate change negotiations and discusses the international climate change regime as contained in the United Nations Framework Convention on Climate Change and its Kyoto Protocol. It concludes that the climate change negotiations are complicated by the fact that the negotiators, in addition to developing new substantive rules for a complex problem, are involved in developing new systemic rules for the international legal system. These new systemic rules have more in common with rules of national systems of public or administrative law than with traditional rules of international law, which have many similarities with national systems of contract law.     

我国气候变化立法的缺陷及其对策分析

我国气候变化立法存在着一些较为明显的缺陷,这在一定程度上制约着我国温室气体排放控制战略的实施。目前,气候变化问题已经成为威胁人类生存和发展的一大国际环境问题。温室气体的排放控制战略是《气候变化框架公约》所确立的应对气候变化问题的根本举措。我国应当按照《气候变化框架公约》和《京都议定书》的法律要求,健全和完善气候变化立法以进一步控制温室气体的排放量,从而为全球气候变化问题的应对做出更大的贡献。     

The Long Way to the Copenhagen Accord: Climate Change Negotiations in 2009

The Copenhagen Summit did not conclude the 2 years negotiation process initiated in Bali in 2007. Ten official meetings among parties were not sufficient to reach a conclusion on the future of the international climate change regime after 2012. This paper summarizes the main issues addressed by the parties under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol tracks in the course of 2009, the longest year ever for climate change negotiations, and tries to explain the reasons behind the Summit's failures. Furthermore, an overview of the main points of the Copenhagen Accord is provided together with its implications and relation with the UNFCCC process.     

Climate Change,Wildlife Movement and the Law: A Case Study from New Zealand

The United Nations Framework Convention on Climate Change mandates parties to prepare for adaptation to climate change. This is of direct relevance to the management of wildlife. Climate change is likely to alter and/or expand the habitats of wildlife and may make the conditions within existing habitat ranges unsuitable for the continued existence of a species. Of necessity, efficacious adaptation must attempt to address this likelihood. Using New Zealand as a case study, this paper considers the range of present legal instruments that might be utilized within that nation to manage the movement of wildlife and identifies any lacunas that should be addressed. The conclusions will be of interest to any nation wishing to protect wildlife from the adverse effects of climate change.     

The Bonn Agreement to the Kyoto Protocol – Paving the Way for Ratification

This article provides a short account of the international climate negotiations that took place in Bonn from 16 to 27 July 2001. After the Sixth Conference of the Parties to the Framework Convention on Climate Change failed in November 2000, the Parties had decided to suspend the meeting. The ministers present at the resumed session successfully adopted the "Bonn Agreement to the Kyoto Protocol", a set of political compromises for the most contentious issues left open by the Kyoto Protocol. Although many details had been transferred to the Seventh Conference of the Parties, November 2001 in Marrakesh, Morocco, the Bonn Agreement already paved the way for ratification of the Kyoto Protocol and its entry into force. The Marrakesh Accord adopted on 10 November 2001transforms, with a few exceptions, this political agreement into bindinglegal text.     

FROM COPENHAGEN TO DURBAN: ON INTERNATIONAL CLIMATE CHANGE NEGOTIATIONS

Copenhagen Climate Change Conference began with high expectation but ended in despair. It reached the so-called Copenhagen Accord with some dissenters. The Copenhagen Accord calls for deep cuts in global emissions, but it has not reached a binding goal of greenhouse gas emission reduction commitment and is not a legal effective agreement. EU played a limited role in Copenhagen Climate Change Conference, while the US and China were crucial to achieve the Copenhagen Accord. The subsequent Cancun negotiation reached the Cancun Agreements, but many substantial issues remained unsolved, such as the second commitment period of the Kyoto Protocol and other core issues. Durban Climate Summit successfully managed to include the main polluters of the globe, especially the US and the main emerging economies (including India and China), to commit their obligations for the first time to reduce greenhouse gas emission reduction under the international framework, and all the parties of the conference agreed that they would negotiate new mechanisms of greenhouse gas reduction which will be implemented by 2020 before 2015. Durban Climate Summit has also reached a package of agreements on climate change. Among them, an important one is about the Global Climate Fund. But some key issues including quantified GHGs emission reduction goals among countries have not been solved.     

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.     

Increasing Participation and Compliance in International Climate Change Agreements

Scientific and economic consensus points to the need for a credible and cost-effective approach to address the threat of global climate change, but the Kyoto Protocol to the U.N. Framework Convention on Climate Change appears incapable of inducing significant participation and compliance. We assess the Protocol and alternative policy architectures, with particular attention to their respective abilities to induce participation and compliance. We find that those approaches that offer cost-effective mitigation are unlikely to induce significant participation and compliance, while those approaches that are likely to enjoy a reasonably high level of implementation by sovereign states are sorely lacking in terms of their anticipated cost effectiveness. The feasible set of policy architectures is thus limited to second-best alternatives.     

Linkages between the Montreal and Kyoto Protocols – Enhancing Synergies between Protecting the Ozone Layer and the Global Climate

The international treaties for the protection of the ozone layer and the global climate are closely related. Not only has the Montreal Protocol for the protection of the ozone layer served as a useful example in developing the international climate regime, but policies pursued in both issue areas influence each other. This paper gives an overview of the many ways in which both treaty systems are linked functionally and politically. It investigates, in particular, the tension that has arisen with respect to the use of fluorinated greenhouse gases and the potential for drawing on the experience under the Montreal Protocol regarding data reporting and policy design on fluorinated greenhouse gases under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The potentials for enhancing synergy in these areas are explored, and related options discussed. Some initiatives for exploiting these potentials are already underway, aiming in particular at enhancing learning and exchanging of information. However, political choices concerning some of the issues willeventually need to be made, if action at the international level is to contribute to their solution.     

Framework for the future? Exploring the possibility of majority voting in the climate negotiations

The United Nations Framework Convention on Climate Change (UNFCCC) is struggling in its attempts to address the threat of anthropogenic climate change and create an effective international climate agreement. A substantial part of the problem is consensus decision-making within the Convention. Majority voting is a potential alternative which is already being discussed within the UNFCCC. A comparative analysis of consensus and majority voting suggests that majority voting is superior in terms of both efficiency and effectiveness by allowing for quicker decision-making and semi-global approaches to a climate agreement (termed here as “Critical Mass Governance”). This paper aims to investigate how majority voting could be implemented in the UNFCCC and to consider politically feasible and effective approaches to voting arrangements for the Convention. There is a legal opportunity to introduce voting through adoption of the draft Rules of Procedure, but this faces political opposition. A type of Layered Majority Voting with larger majorities for financial and substantial matters is considered to be the optimal approach in balancing political feasibility and effectiveness. For now, voting is not politically feasible for the UNFCCC, but could be introduced into future bodies or treaties under the Convention.     

Border carbon adjustments, WTO-law and the principle of common but differentiated responsibilities

This paper considers unilateral border measures, as contemplated by a number of developed states in conjunction with domestic emissions reduction schemes, as they relate to international trade and international environmental law. Specifically, I argue that to the extent that WTO-compliance requires strict adherence to the principle of nondiscrimination, as embodied in the national treatment and most-favored nation provisions in the General Agreement on Trade and Tariffs, there is the potential for conflict with the principle of common but differentiated responsibilities (CBDR), both as a free-standing principle of customary international law and as set out in various multilateral environmental agreements and, in particular in the climate change context, the United Nations Framework Convention on Climate Change and the Kyoto Protocol. This is insofar as the unilateral imposition of BCAs by developed countries shifts costs of compliance with environmental legislation in developed economies onto the developing world. Such allocation may conflict with the principle of CBDR, which recognizes the unequal contribution to environmental degradation of developed countries as well as their enhanced ability to address the challenges presented by such degradation and, as a consequence, requires that they undertake more onerous obligations with respect to climate change mitigation. The paper concludes with a discussion of the extent to which this conflict is illustrative of a deeper tension between efficiency and equity considerations inherent in the intersection of international economic law and international environmental law.     

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.     

Trump's Promise: Withdrawing from the Paris Climate Agreement

On June 1^st, 2017, President Trump announced that the United States will be withdrawing from the Paris Climate Agreement, a move he has promised to make since his early campaign days. This move came as a shock to many people all over the world. The Paris Agreement is the world's first comprehensive climate agreement that aims to take proactive measures towards global warming. In order to fully understand this withdrawal, we must familiarize ourselves with its parent-treaty, the United Nations Framework Convention on Climate Change, and the constitutional precedent involved with such a change.     

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.     

Allocation of aid for adaptation to climate change: Do vulnerable countries receive more support?

Wealthy countries spend increasing amounts of aid to support adaptation to climate change in developing countries and have committed under the UN Framework Convention on Climate Change to prioritize adaptation aid to those “particularly vulnerable” to climate change. While research has started to track this aid, it has not yet examined its allocation across all donor and recipient countries. We thus do not know to what extent vulnerable countries indeed receive more support for adaptation. We address this research gap and ask: how does this commitment to prioritizing particularly vulnerable countries translate into actual adaptation aid allocation? To what extent do vulnerable countries receive more adaptation aid? We address these questions though a quantitative analysis of data from the Organization for Economic Cooperation and Development on bilateral adaptation aid from 2011 through 2014. In contrast to other studies, we find that vulnerability—or more precisely, vulnerability indicators—matter for adaptation aid allocation. Countries that are more exposed to climate change risks, such as extreme weather events or sea level rise, receive more adaptation aid, both on a per capita basis and as a percentage of all adaptation aid. These results indicate that collectively (even if not at the level of each individual donor) donors align their bilateral adaptation aid allocation with global promises.     

Agency in international climate negotiations: the case of indigenous peoples and avoided deforestation

This article examines the agency of indigenous peoples in designing a mechanism for reducing emissions from deforestation and forest degradation (REDD) under the emerging post-2012 agreement to the United Nations Framework Convention on Climate Change. It investigates whether indigenous peoples have agency in international negotiations and specifically the REDD design process and if so, how they have obtained it. Agency refers to the ability of actors to prescribe behaviour and to substantively participate in and/or set their own rules related to the interactions between humans and their natural environment. The aim of this study is to gain understanding of what role non-nation state actors, particularly indigenous peoples, play in shaping the REDD design process under the climate convention and what is shaping their agency. A special emphasis is placed on indigenous peoples as they may be highly vulnerable to the impacts from both climate change and certain policy responses. The article finds that, through REDD, indigenous peoples and forest community alliances are emerging in the climate regime but their agency in designing a mechanism on forest protection in a post-2012 climate regime remains indirect and weak. They are being consulted and invited to provide input, but they are not able to directly participate and ensure that their views and concerns are reflected in the outcome on REDD.