It is undeniable that the effects of climate change will be experienced by the world's estimated 8 billion population. World leaders, governments, corporations and individuals globally are becoming more aware of the crisis humanity is facing and international and domestic laws and regulations are being formulated to assist in tackling the problem.

The United Nations estimates that ‘the world’s cities occupy just 3 per cent of the Earth’s land, but account for 60-80 per cent of energy consumption and 75 per cent of carbon emissions.’1

Across the globe environmental issues such as pollution, sea level rise, bushfires and other extreme weather events are beginning to have unprecedented impacts on Earth and there is a real threat that inaction can lead to the extinction of human life.

Although these issues are of considerable importance, the problems do not have simple solutions. People often underestimate how tough it can be to formulate and draft policies and legislation that create the desired impact, let alone implement change globally.

After recently listening to a podcast about the ways in which politicians and world leaders are frequently humiliated in their attempts to affect change and advocate a specific policy position, I couldn’t help but feel a little saddened by the fact that ignorance and anger often leads to animosity that does nothing but serve for entertaining, yet unproductive media stories that essentially detract from productive forward movement and amplify mass confusion.

Working across various levels of the Australian government, the biggest lesson I have learnt is that seemingly simple solutions are never actually so. Believe it or not, most of the time, ministers, governments and their employees are actually well-intentioned, frequently altruistic and dedicate years of their lives trying to shape outcomes that will have some benefit for future generations. While it is true that politicians and political parties advocate different views, the reality is, they are just coming up with alternate approaches towards addressing enormous and challenging problems.

A huge problem most people fail to consider when it comes to addressing climate change is that most solutions also have serious consequences for domestic and global economies. Additionally, there is also an incredibly intricate legal framework (with multiple interpretations) and convoluted history that needs to be reviewed and considered by people who want to make a meaningful and balanced contribution to the discussions taking place.

To demonstrate this point and aid more informed discussion, I have pulled together some helpful facts about the evolution of the climate change debate, including an overview of some of the critical agencies involved, their roles and the treaties and legislation that continue to be of relevance. It should be noted that this article focuses on the international context and that further consideration needs to be given to domestic policies and legislation by anyone interested in this topic.

From fiction to legislation

Climate change law is a very new and quickly evolving area of law.2 It is incredibly political and intersects with various other areas of law such as international, business, energy and environmental law. It raises serious administrative questions about responsibilities across the public sector and requires consideration to be given to governance issues across the various tiers of government.2

It requires consideration of complex social, economic, scientific and governance issues. The current legal and policy frameworks have been the product of significant and ongoing debate in both domestic and international contexts.3 Competing interests are at play and risks need to be cautiously managed given associated human rights, security, geopolitical and economic implications.

Since the late 1980s, the international community has been conducting significant scientific research with a view to demonstrating climate change is real and figuring out potential mechanisms to address it in a practical and efficient manner.3 Additionally, it has required significant consideration to be given to complex equity issues – whilst greenhouse gas emissions impact the earth in the same manner regardless of where they are released into the atmosphere, the locations they are emitted from are often very different economically, politically and culturally.3 As such, setting mandatory greenhouse gas emissions targets for developed countries, voluntary targets for developing countries, and mechanisms for transferring funding from wealthy to poorer scheme participants have been important issues at the centre of the international community discussions.3 Further, the extent to which developed nations are more technologically innovative than developing nations has required consideration to be given to how developed nations can assist developing nations with the funding and implementation of other green technologies. These topics have had an enormous impact on the ways in which climate change legislation and policy have developed and the obligations and requirements now imposed.

The role of the intergovernmental panel on climate change, United Nations Environment Program and World Meteorological Organization

In taking a bird’s eye view, it is integral to understand who the key players are that sit at the core of climate change action and the role they’ve played in the development, implementation and review of legislation and agreements. The three most significant international bodies are the Intergovernmental Panel on Climate Change (IPCC), The United Nations Environment Program (UNEP) and the World Meteorological Organization (WMO).

The United Nations Environment Program

The United Nations Environment Program (UNEP) was established in 1972.4 Its key objective is to ‘provide leadership and encourage partnership in caring for the environment by inspiring, informing and enabling nations and peoples to improve their quality of life without compromising that of future generations.’4 The organisation works with United Nations Member States and various representatives from a diverse range of sectors to find solutions to environmental challenges.4 It addresses challenges through the UN Environment Assembly which is the highest global authority for making decisions about the environment.4 It is charged with the responsibility of setting the global environmental agenda.4

The World Meteorological Organization

The World Meteorological Organization is an intergovernmental organisation committed to enhancing international cooperation and coordination in relation to the Earth’s atmosphere including its interactions with the oceans, land and weather and climate.5 It assesses the distribution of water resources based on these factors.5 It has 193 Member States and was established on 23 March 1950 through the ratification of the WMO Convention.5 It is based in Geneva and is a specialized agency within the United Nations.

The organisation has several key focus areas of work including making observations about the earth, weather and climate, providing information exchanges, conducting research, offering early warnings of weather, providing weather forecasts and assisting with capacity development.5 Importantly in the context of this research, it monitors greenhouse gasses in the earth’s atmosphere and supports the development of climate policy by making recommendations and preparing advice relating to climate adaptation and mitigation.5 It supports the IPCC and UNFCCC by providing scientific data and technical inputs, offering advice about climate risks and mitigation and is responsible for preparing the statement on the State of global climate and the greenhouse gas bulletin.5 It has had a significant role in persuading governments to take action to address climate change. It also co-sponsors and hosts the IPCC, World Climate Research Programme (WCRP) and Global Climate Observing Systems (GCOS).5

The Intergovernmental Panel on Climate Change

In 1988, the Intergovernmental Panel on Climate Change (IPCC) was established by the United Nations Environment Program (UNEP) and the World Meteorological Organization (WMO).5The IPCC's role is to provide government at all levels with scientific data that can be used for the purpose of developing climate change policy.5 The governments associated with the IPCC are also members of the United Nations or the WMO. The organisation conducts research, publishes reports, and explores the drivers of climate change and future risks. Often, it does so with the assistance of scientists who volunteer their time to research specific problems related to their area of expertise.6 It also proposes effective measures for dealing with global challenges and climate adaptation.6

The IPCC is the United Nations body responsible for assessing the science related to climate change and preparing advice and reports for the international community about how to respond to climate change challenges.6 Broadly speaking, there are 4 categories of options for managing climate change: emissions control (i.e., direct reductions to greenhouse gas emissions compared to traditional means of pollution control), reducing greenhouse gas emissions from fossil fuels through use of more energy-efficient technology, carbon sequestration and climate change adaptation.3 The options and scientific data it compiles are used to assist in developing various domestic and international legislation and policies to address climate change.3

International Climate Change Legislation

Now that we have assessed the validity and expertise of the key authorities that are responsible for driving policy and scientific research, we can explore the key legal agreements that currently make up the international climate change legislative framework.

The United Nations Framework Convention on Climate Change

The first significant international treaty on climate change was the United Nation Framework Convention on Climate Change (UNFCCC). The Convention provides the framework for legislation which addresses climate change.7 It was negotiated between February 1991 and May 1992. The UNFCCC was ratified by 197 parties and is essentially the parent treaty of more recent agreements such as the Kyoto Protocol and Paris Agreements (discussed in the proceeding paragraphs).8 It was adopted by most countries in May 1992. At that time, the UNFCCC Secretariat was established to assist with the ongoing management and enforcement of climate change treaties.8

The UNFCCC entered into force on 21 March 1994.9 It is important to recognize that it does not in itself contain any commitment to reduce greenhouse gas emissions by set quantifiable amounts, rather, it establishes an international structure to address climate change, including mechanisms for reporting, conducting annual meetings on the conference of parties and scientific and technological research. 9

Pursuant to Article 2 of the Convention, its key objective is to stabilize ‘greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’10 Additionally, Article 2 specifies it aims to achieve ‘such a level 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.’ 10

Article 3 of the convention outlines its key principles.10 Significantly, the treaty has its foundations in equity and therefore distinguishes between developing and developed countries.10 The rationale behind this is that developed countries produce more emissions both historically and in contemporary times than developing countries and so, should do more to address its consequences.3 This principle is reflected in more recent international climate change agreements and translates to different emissions reduction targets being applicable to different States depending on their categorization as either developed or developing under the convention.3 It is the reason funding mechanisms have been introduced into the convention which essentially requires developed nations to contribute monetarily and assist developing nations in addressing climate change.3 In addition, Article 3 stipulates that ‘parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects’, promote sustainable development, standards for international cooperation and also sets requirements for parties to create and implement measures and national programs to address climate change. 11The UNFCCC also outlines the requirement imposed on nation-states to create, implement and monitor national plans seeking to mitigate climate change.3

The UNFCCC Secretariat is responsible for making arrangements for the meeting of the Conferences of the Parties.12 It is essentially the body charged with responsibility for supporting the global response to climate change.12 The Secretariat facilitates intergovernmental negotiations amongst them, supports a variety of bodies that aim to advance the implementation of the Convention, Kyoto Protocol and the Paris Agreement, maintains the registry for Nationally Determined Contributions (NDCs) under the Paris Agreement, provides expert advice on climate change information, hosts up to four negotiations a year and organizes the annual Conference of the Parties.12 The Green Climate Change Fund (GCF) created at the 16th COP is not administered by the Secretariat; the GCF’s administrative responsibility is owned by the World Bank.13

The Kyoto Protocol

The second key agreement which forms part of the international legal framework is the Kyoto Protocol. In April 1995, its foundations were developed at the first Conference of the Parties (COP1) in Berlin.9 Essentially the terms of the UNFCCC were considered inadequate to meet the Convention's key objectives.9 The Kyoto Protocol was thus developed and became the first agreement intended to reduce greenhouse gas emissions through a tangible measure. It was unanimously adopted at the third conference of the parties on 11 December 1997.9

The treaty deals with emissions of six greenhouse gases; Carbon Dioxide (CO2), Methane (CH4); Nitrous Oxide (N2O); Hydrofluorocarbons (HFCs); Perfluorocarbons (PFCs); and Sulphur hexafluoride (SF6). It ultimately shared the same goals as the UNFCCC however, it included an Annex that specifies binding commitments for developed countries to reduce emissions in line with the agreement.14

The Protocol came into force on 16 February 2005 and comprised commitments in Articles 2, 10 and 11 that aim to ensure alignment between domestic and international policy, and GHG reduction measures and also impose obligations upon developed countries to provide funding to developing countries to assist with implementing measures and technology to combat climate change.15 It required parties to cooperate in several key areas to address climate change.16

Article 3 of the Protocol is the most significant as it requires each party to the protocol to ensure ‘its total emissions from GHG sources listed in Annex A to the Kyoto Protocol over the commitment period(s) do not exceed the allowable level of emissions.’16 In short, the Protocol operationalizes the UNFCC by forcing countries to limit GHG emissions in accordance with agreed individual targets and requiring countries to report periodically on their progress and achievements towards the set targets.17 The Kyoto Protocol resulted in all parties to the treaty having to prepare domestic policies which enabled them to meet emissions reduction targets. It developed and introduced market-based mechanisms including international emissions trading, clean development mechanisms and joint implementation which could be used to assist countries in meeting their targets. 2

These mechanisms were heavily routed in the idea that the global aim was to reduce overall emissions and remove toxins from the atmosphere.2 All parties to the agreement had to track and record their emissions in accordance with the requirements of the agreement’s registry system. The overall emissions of the globe are recorded in the international transaction log which is maintained by the UN Climate Change Secretariat.

The Paris Agreement

The Paris Agreement is the most recent legally binding treaty - it was adopted by 196 countries at COP21 in Paris on 12 December 2015.18 The Agreement entered into force on 4 November 2016 and seeks to limit global warming to below 2 but preferably 1.5 degrees Celsius compared to pre-industrial levels.18 The Agreement establishes a framework for global climate change action including its mitigation and adaptation, reporting, means of strengthening climate goals and guidance with respect to supporting developing nations.19 It builds upon the UNFCCC, Kyoto Protocol and Doha Amendment.

The key objective of the Paris Agreement is to reduce greenhouse gas emissions globally so that by mid-century a climate-neutral world is achieved. Article 2 of the Agreement specifies that it seeks to enhance the implementation of the UNFCCC, ‘strengthen the global response to the threat of climate change in the context of sustainable development and efforts to eradicate poverty, by:

Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change.

Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production. Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.’20

Article 2 acknowledges that the Agreement is underpinned by the principles of equity and ‘common but differentiated responsibilities and respective capabilities, in light of different national circumstances.’20 Under the Agreement, all parties are required to establish and communicate NDC plans that outline the contribution they intend to achieve with respect to addressing the climate crisis.20 Special provisions are made for developing and least developed countries to reflect their circumstances.20

The Agreement outlines the role of the Conference of the Parties and requires participating nations to provide any information necessary for clarity and transparency. It stipulates measurement and verification methods for tracking emissions so as to monitor achievements in the context of NDCs.21 The Agreement also requires countries to review and update their NDCs and targets progressively every 5 years so as to ensure net zero emissions are achieved pursuant to Article 4.22 Article 9 of the Agreement identifies that developed countries have an obligation to provide support to developing countries to support them in achieving their targets.20

Agenda 2030

Agenda 2030 can best be described as soft law. It was agreed to in September 2015 by 193 Member States in New York at the Sustainable Development Summit.23 The Agenda responds to the key challenges facing the world at present and aims to integrate the social, environmental and economic aspects of sustainable development.32 17 Sustainable Development Goals make up Agenda 2030 alongside the Addis Ababa Action Agenda on Financing Development and it is both an international and domestic agenda. 23 The Addis Ababa Action Agenda on Financing Development comprises seven action areas and over 100 measures in total – it offers a framework for financing sustainable development.8

In writing this article, my intent is not to discourage discussion, but rather highlight the need for participants in this important debate to be more informed and do their research. This will ensure realistic and practical solutions can be discussed through media channels rather than a piece of cake being thrown at the Mona Lisa.

References

1 United Nations ‘Goal 11 – Make Cities Inclusive, Safe, Resilient and Sustainable’ .
2 Dernbach J and Seema K ‘Climate Change Law: An Introduction’ 2008 29 1 Energy Law Journal.
3 Climate Literacy ‘Introduction to global climate change policy’ 4 February 2014 accessed 18 October 2021.
4 UNEP.
5 World Meteorological Organisation ‘What we do?’ 2021.
6 The Intergovernmental Panel on Climate Change (IPCC).
7 MHRD ‘Environmental Science: UNFCCC, Kyoto Protocol and Paris Agreement 2 April 2019.
8 Department of Foreign Affairs and Trade ‘International Cooperation on Climate Change’ Australian Government 2021 accessed 17 October 2021.
9 United Nations Framework Convention on Climate Change ‘UNFCCC – 25 years of effort and achievement Key Milestones in the Evolution of International Climate Policy’ 2021.
10 United Nations Framework Convention on Climate Change 1992, open for signature 09 May 1992 1771 UNTS (entered into force 21 March 1994).
11 United Nations Framework Convention on Climate Change 1992.
12 UNFCCC ‘About the Secretariat’ 2021.
13 MHRD ‘Environmental Science: UNFCCC, Kyoto Protocol and Paris Agreement’ 2 April 2019.
14 United Nations Framework Convention on Climate Change ‘UNFCCC – 25 years of effort and achievement Key Milestones in the Evolution of International Climate Policy’ 2021.
15 United Nations Framework Convention on Climate Change 1992, art 2, 10 and 11.
16 United Nations Framework Convention on Climate Change ‘Kyoto Protocol Reference Manual: On accounting of emissions and assigned amount’.
17 UNFCCC ‘What is the Kyoto Protocol’ 2021.
18 UNFCCC ‘What is the Paris Agreement’ 2021.
19 NRDC ‘Paris Climate Agreement: Everything You Need to Know’ 19 February 2021.
20 Paris Agreement 2015.
21 Department of Industry, Science, Energy and Resources ‘Reporting progress to the UNFCCC’.
22 Button Jillian ‘The Big Picture: Australia’s commitments under the Paris Agreement’ accessed 26 September 2021.
23 2030 Agenda for Sustainable Development and the Sustainable Development Goals.