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date: 18 November 2019

(p. vi) Foreword

(p. vi) Foreword

Climate change is one of the greatest challenges of our times. It is a challenge at multiple levels. Energy production and use is the primary source of most of the greenhouse gases responsible for global warming. Yet energy production and use is the key driver of economic growth and social welfare. Measures to mitigate climate change raise issues of development needs, economic competitiveness of countries, historical and contemporary responsibility, equity, and fair burden-sharing as well as technological and technical capabilities. Climate change is also a security and existential challenge to many countries. It has adverse effects on economic production systems, ecosystem health, human health and welfare, and the enjoyment of human rights. Projected impacts of temperature rises above 2°C include mass migrations, displacement of populations, and the disappearance of states.

The scale, implications, and global nature of the problem dictate robust international cooperation within a structured framework. International law provides a framework for structured cooperation amongst states on key global challenges. It embodies mutual reassurances and multifarious reciprocal obligations amongst cooperating states. The need for an effective international framework for cooperation was recognized quite early in the diplomatic discourse on responses to climate change. The United Nations General Assembly (UNGA), in its resolution 43/53 of 6 December 1988, the earliest resolution on the issue, recognized that climate change is ‘a common concern of mankind’ and ‘determined that necessary and timely action should be taken to deal with climate change within a global framework’. To this end, in its Resolution 45/212 of 21 December 1990, it decided to establish a single intergovernmental negotiating process under the auspices of the UNGA for the preparation by an Intergovernmental Negotiating Committee of ‘an effective framework convention on climate change, containing appropriate commitments, and any related instruments as might be agreed upon …’.

The United Nations Framework Convention on Climate Change (UNFCCC) was adopted in New York on 9 May 1992 and entered into force on 21 March 1994. It is a framework-legal instrument setting out broad objectives, general principles, and basic obligations. As was presaged in UNGA Resolution 44/207, the intent was that ‘concrete commitments’ would be contained in ‘associated protocols’. Consequently, the normative content of the emergent international climate change regime was significantly augmented through the adoption of the Kyoto Protocol in 1997 which (p. vii) established individual, internationally legally binding emission targets for industrialized countries supported by a robust reporting, review, and compliance regime. Annual meetings of the Conference of the Parties to the Convention and the Conference of the Parties (COPs and CMPs) serving as the meeting of the Parties to the Kyoto Protocol have resulted in an important body of ‘soft law’ rules, implementation guidance, and institutional arrangements established through COP and CMP decisions.

Thus, the UNFCCC with its near-universal membership has become the central focus of global efforts to address climate change. However, the slowness of the process and the apparent dysfunctional nature of its decision-making procedures have at times led to the questioning of its appropriateness as a forum for global solutions. This was acutely demonstrated in the various post-mortems that followed the Copenhagen debacle. The disenchantment has seen calls for fragmentation of the international regime through ‘plurilateralism’. Nevertheless, the UN in general and the UNFCCC in particular remain, in the view of many, the most representative and legitimate locus for international responses to climate change.

The international climate change regime is currently in flux and on the cusp of two competing visions. The current negotiations under the Durban Platform point to a general rethinking of a ‘top-down’ approach of the Kyoto Protocol model with internationally binding quantified commitments supported by a rigorous compliance assessment and enforcement. A more flexible ‘bottom-up’ approach is characterized by nationally determined mitigation contributions, a diversity of mitigation actions, and legal bindingness at the domestic level supported by an international measurement, reporting, and verification system seems to be gaining some currency. The core principles underpinning the regime—that is, the principles of equity and common but differentiated responsibilities and respective capabilities—have come under fresh scrutiny. There is concerted political drive by some countries that the regime should transition from the binary world of 1992 and that there is need to reconceptualize the principle of common but differentiated responsibilities and respective capabilities as a dynamic concept that evolves with changing global economic realities and specific socio-economic circumstances of states. There is also growing interest in the specific role and contribution of non-state actors and of sub-national authorities within the international climate change regime.

As a discipline, international climate change law is still in its infancy. Legal doctrine has always played a significant role in the evolution and development of new areas of law. It plays this role by delineating the province of the new discipline, clarifying its theoretical and conceptual underpinnings, and analysing its substantive institutional and normative content. The Oxford Handbook of International Climate Change Law is an important addition to the growing doctrinal work in this field. It analyses the foundations of international climate change law, its basic principles and concepts, the overlaps and articulation with other areas of international law, the institutional and governance arrangements, and its substantive normative content. (p. viii) The volume is enriched by an examination of existing legal regimes in regions and countries that play key roles in international climate change diplomacy either because of their position as major emitters of greenhouse gases, their historical responsibilities and current capabilities, or their susceptibility to disproportionate adverse impacts of climate change. The Oxford Handbook of International Climate Change Law should be a useful companion to students of international climate change law, legal practitioners, policy-makers, and negotiators.

Dan Bondi Ogolla, Ph.D.

Coordinator and Principal Legal Adviser,

UNFCCC Secretariat (p. ix)