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Studies On International Climate Law

Posted on:2012-07-15Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y HanFull Text:PDF
GTID:1116330335488473Subject:International law
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Ever since the 1970s the international community had been debating issues on global warming and climate changes. In 1992, the United Nations Framework Convention on Climate Change adopted by the United Nations Conference on Environment and Development (UNCED) held at Rio de Janeiro was the first declaration of the world's stand and determination with respect to their concerted effort in dealing with challenges brought about by climate changes. As such it laid a solid foundation for international climate law. The"Kyoto Protocol"adopted in 1997 signified the transformation of international climate law from a mere legal framework into an international law system with binding legal effects. The Protocol took effect in 2005 following countless rounds of tough negotiations and trading of interest. The timeframe for the commitments under Phase One of the Kyoto Protocols with respect to reduction of carbon emission will soon come to an end. Nevertheless the achievements of international climate law during its initial period do not remove the enormous challenge and obstacles facing it during the post-Kyoto period (after 2012). Given the diametrically-opposite stands of developed and developing nations and diverging interests of nations and individual groups of nations, as well as the unique nature of climate changes as an international environmental issue, international climate law is now at a crucial, sensitive and dangerous era.This thesis contains an analysis of the values; core issues and interconnected issues for international climate law in the context of the history and evolution of international climate law. The author will also set out the forecast and expectations with regard to the development of international climate law after 2012. There will also be certain opinions and suggestions pertaining to China's climate law system. The thesis consists of introductory text and main text, with the latter comprising six chapters. The entire text is more than 210,000 characters.The introductory part describes the selection of this issue as a topic for dissertation and research targets. In addition it devotes considerable length to the scientific background for global warming and climate changes. Climate changes are a natural phenomenon; hence it needs scientific theories and tools to carry out observations; analysis and predictions. Any discussion on climate changes cannot be completely divorced from scientific and technological background. This unique requirement directly affects mankind's knowledge and understanding of climate-related issues. It also indirectly affects the development of international climate law. Although it is said that the human society has admitted that discharge of greenhouse gases as a result of human activities is the main reason for global warming, and climate changes have or are beginning to have an enormous impact on the survival and growth of mankind, there remains considerable disputes and doubts– scientifically– with respect to the forecast of the impact of climate changes. The inability to scientifically determine the impact of climate changes is an unavoidable issue that directly concerns the development of international climate law.The title of Chapter One in the main text is"Development and Evolution of International Climate Law". It describes in details the historical background of United Nations Framework Convention on Climate Change and Kyoto Protocol, along with their contents. While acknowledging their historical implications and roles, the chapter also describes inadequacies in the Convention and Protocol. At the same time, the chapter gives an introduction on post-2007 COPs, including Bali Conference; Poznan Conference; Copenhagen Conference and the recently-concluded Cancun climate change conference. Other than international events held under the aegis of the United Nations, the Inter-governmental Panel on Climate Change (IPCC); the World Bank and non-government organizations (NGOs) all help promote the development of international climate law.The title of Chapter Two is "Value Orientations and Expression of Principles of International Climate Law". It consists of three sections, each of which describes the major value orientation of international climate law, namely equity; benefits and efficiency. Each value is described at length, along with description of the principles that reflect the value. The value of equity vis-à-vis international climate law involves both intra-generational and inter-generational equity. As such the principle of"common but differentiated responsibilities"is the best reflection for this value. The value of benefits under international climate law demands the protection of environmental interest insofar as it does not hinder human economic growth. The principle of sustainable development is a successful integration of the conflicts between the environment and growth into a common concept which satisfies the environmental benefit value in the climate change system. With respect to the efficiency value, international climate law hopes to maximize the benefits from utilizing limited resources by way of economic cost-benefit analysis. Cost-benefit principle as a fundamental concept and one of the means for the design of environmental law systems has received widespread acceptance by most member nations.Chapter Three is entitled"Comments on Core Issues in International Climate Law". The chapter is an extension commentary and discussion on the basic problems and core problems in international climate law system, thus giving it considerable length. It begins with an analysis of the well-known flexible contract-fulfillment mechanisms under Kyoto Protocol, including clean development mechanism (CDM); joint implementation mechanism and emission-exchange mechanism. The European Union's collective contractual fulfillment mechanism (EU Bubble) is also added to the flexible contractual fulfillment mechanism. Section Two of the chapter deals with four column issues in handling climate changes– mitigation; adaptation; funding and technology. It involves dedicated discussion on the relationship as well as interaction between the issues. Mitigation is a traditional content for regulations promulgated under international climate law, while the issue is gradually gaining the attention of contracting nations. Finally, funding and technology are the fundamental conditions for all climate-related work. The third section of this chapter specially describes the contractual fulfillment mechanism under international climate law. The current reality is one of pessimistic outlook for contractual performance under international climate law. Whether or not the unique contractual fulfillment mechanism formulated under Kyoto Protocol will be able to achieve its effect, is a question that attracts the international community's attention.Chapter Four is entitled"Comments on Interconnected Problems between Climate Law and Other Branches of International Law". As a common environmental problem facing humanity, climate changes must surely have a connection with other branches of international law. A joint coordinate mechanism has begun to take shape under the Three Rio Conventions (on climate changes; biodiversity and desertification). Given that climate changes have had significant impact on wetlands; world heritage; forest and conservation of animal and plant life, they have become organically connected to many international environmental pacts. Thus collaboration and coordination of the international environmental pacts will become all the more important in the future. Insofar as it concerns liability under international law, the original culprit for global warming problems should bear the historical responsibility and duty of compensation with respect to climate changes. However the issue of international liability is itself infallible in theory but impossible to enforce in real life. There is substantial difficulty in the practical application of international liability for damages as a result of climate changes. This is unlikely to improve in the near term. Climate changes have seriously damages basic human rights such as the right of survival; health; residence and development, etc. Although internationally there are no dedicated legal documents, one is able to establish from judicial precedents in many countries, the feasibility of suing for those liable for climate changes on the basis of human rights. Thus, notwithstanding the difficulty with respect to the attribution of liability under international law, the door is open for human rights to be relied on as the basis for claims for compensation with respect to climate changes and the resulting damage.The title of Chapter Five is "Outlook of Post-2012 International Climate Law". At present there are numerous challenges with respect to the growth of international climate law, including North-South conflict; enormity of entity; diverse interest and generalization of agenda, etc. In order to drive international climate law to the next stage, one would need to distill key agenda of the system and concentrate resources so as to achieve breakthrough. Examples of the issues involved are funding and technical problems; carbon sequestration and use of market means, etc. Two directions need to be simultaneously undertaken with respect to the development of international climate law after 2012. The first– the top-down approach– involves the continuous construction of a system of general international climate law. Many international organizations and research institutions have table great number of recommendations and proposals worthy of consideration. The other– the bottom-up approach– involves an emphasis on the development of regional international law, including bilateral, multi-lateral and regional cooperation. Although negotiations in the international community with respect to climate changes have stalled at present, development of regional international law has never been more active, with significant results for good measure. Thus, development of international climate law needs to be done on both fronts simultaneously in order to achieve the ultimate aim of meeting climate changes.The last chapter is entitled"Improvement of China's Laws, Policies and Systems on Climate Changes". China is today the world's largest producer of greenhouse gas in terms of discharge volume. As a major developing nation, China has a dual task of economic development and environmental protection. Indeed she is under increasing pressure from the international community. Thus strengthening the development of domestic climate change laws and system is a necessary and urgent work. Despite the fact that China does not possess dedicated climate change law, a preliminary legal system is already in place. In any case perfection of climate change law and system should be undertaken in accordance with the following concepts: Promotion of dedicated legislation that deals with climate changes; amending and supplementing existing laws, including those on energy; industry and economy; environmental protection and resources. As China perfects her climate change legal system, the legislative authority and the government both need to establish scientific development view and adhere to the principle of sustainable development. They should take the initiative with respect to emission-reduction. This is not merely to fulfill China's international duties, but is also in order to provide protection with respect to the environmental interest of future generations.
Keywords/Search Tags:Climate change, International law, Value orientation, Interconnected issues, Regional international law
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