climate change: ripple effects on international law ____________ m.j. mace 17 october 2008 london...
TRANSCRIPT
Climate Change:
Ripple Effects on International Law
____________
M.J. Mace17 October 2008
LondonBritish Institute of International and Comparative Law
Annual Conference 2008: “Climate Change and its challenges for the international legal system”
Climate change now affecting…
• implementation of a range of existing treaties, creating– practical challenges to their successful implementation– political challenges to their successful implementation– Substantial threat to past accomplishments
• development of existing treaties– climate concerns reflected in decisions taken by a range of
convention bodies– calls for plugging of new-found ‘gaps’ in existing regimes– calls for expedited implementation of existing mandates– calls for new instruments, tools, funding approaches
• Rapid expansion of interest and expertise• Opportunities for synergies, and for conflicts• Collision of environmental, economic, social, political
concerns
No end to the areas of law that will be affected
• Air pollution• Water pollution • Marine pollution• Law of the sea• Biodiversity / conservation• Species protection • Energy frameworks• Human rights • Security • International Economic Law• Investment• Intellectual property
• Trade • Financial regulation• Insurance• Accounting• State aid• Cultural protection• Indigenous rights• Refugee and migration law• International transport• Rights and duties of States• Dispute settlement
• Etc, etc, etc
Big Picture New Challenges: Arctic and Small Island States?
UNCLOS: Establishment of new boundaries?
• Denmark, Russia, Canada, US, Norway claims under UNCLOS Art.76
• Canada/US/EU disputes over Northwest Passage
Defense of boundaries at risk due to rising sea levels
Defense of statehood and where territory at risk of loss
EU Parliament has called for a new Arctic treaty!
What is at stake?
Economic/Commercial Interests• Offshore oil and gas reserves• Offshore fisheries• Mineral deposits on the seabed• Shipping lanes
Political/Strategic Interests• Military • GPS Navigation
Human dimension?
• Displacement, migration? • New visa categories under
existing migration laws?• Amendments to 1951
Refugee Convention?• New Convention on the
Protection of Environmentally Displaced Persons?
• Protocol to UNFCCC on recognition, protection and resettlement of climate ‘refugees’?
Photo © Gary Braasch
Undermining and Enabling? Biodiversity and species protection
• CBD, CMS, CITES, Forest protection agreements (TTA)
• Biodiversity has declined by 25% in last 35 years (WWF)
• EEA reports half its conservation sites are failing to protect vulnerable species and habitats
• But…new interest, new tools, new funding• ‘Reducing Emissions from Deforestation’ • ‘Adaptation’ under the UNFCCC as a
funding lever • Sustainable forest management,
conservation, forests may get instruments get a new lease on life
Revisiting the law?London Dumping Convention / OSPAR
• Carbon capture and storage identified as a potential mitigation tool
• 1972 London Convention prevents the pollution of the sea by the ‘dumping’ of waste; specifically the dumping of industrial waste ‘generated by manufacturing or processing operations’ was specifically prohibited.
• Proponents of carbon capture and storage underneath the sea bed sought amendment of marine pollution conventions…
• In 2006, the 1996 London Protocol was amended to specifically allow the ‘storage’ of CO2 streams from capture processes for sequestration beneath the seabed.
• EU waste and water legislation – as ‘barriers’ to the storage of CO2 underground.
Perverse Incentives and Conflicts? Montreal Protocol
• Montreal Protocol aims to phase out ozone-depleting substances– KP’s CDM creates incentive for reduction of
HFC-23 (good) – But created incentive for production of
additional HCFC-22 (bad)– Value of CDM credits greater than the cost
of HCFC production, creating an incentive to build HCFC plants despite the phase-out
• September 2007, Parties agreed to accelerate phaseouts of HCFCs from 2009:– Developed countries to reduce production
and consumption 10 years earlier, with final phase out in 2020.
– Developing countries to cut production and consumption by 10% in 2015 with a final phase-out in 2030, also 10 years sooner than planned.
The Nitty Gritty of Implementation?: International Accounting Standards
• With the creation of the EU ETS, differences in how countries and companies account for allowances
• IASB in the process of answering questions:
• Is an allowance an asset? Does it depend where allowances are acquired from? What is the nature of an allowance? A license to emit? A form of emission currency? If assets, when are they recognised and how are they valued?
• What is the book entry where allowances are received from the government for free? Is there a liability? What is the nature of the liability? How is it valued initially?
• How should allowances be accounted for subsequently? As under IAS 38 Intangible Assets? Under IAS 39 Financial Instruments? If not, how?
Tools for Enforcement? UNESCO
• UNESCO World Heritage List• 2005 decision by the World
Heritage Committee to start studying impact of climate change on World Heritage sites.
• Report features case studies, including Tower of London, Kilimanjaro National Park, Great Barrier Reef - representative of dangers faced by the 830 listed sites (Westminster Palace, Greenwich, Tower of London)
• UNESCO rejected efforts to have 5 sites added to the ‘sites in danger list’, based on exposure to climate change impacts.
Competing principles?: Emissions from International Transport
• UNFCCC, IMO, ICAO, MARPOL and Chicago Convention
• KP provides emissions from international aviation and maritime shipping to be addressed by developed countries working through ICAO and IMO.
• UNFCCC principle of common but differentiated responsibilities and respective capabilities
• IMO – MARPOL – principle of equal applicability - standoff
• ICAO – Chicago Convention• EU going ahead with integration of
aviation into EU ETS
