Transcript what is climate change?

CLIMATE CHANGE AND ADAPTATION
CLIMATE CHANGE LAW
ENVIRONMENTAL LAW AND POLICIES PERTAINING TO
CLIMATE CHANGE
TREATY LAW
BY DR. PETER ONYANGO ONYOYO
ASSOCIATE LECTURER AT THE ICCA
DR. PETER ONYOYO O. LECTURE NOTES
BACKGROUND ANALYSIS
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SCIENTIFIC TRUTH / LEGAL PROCESS
WORLD AWARENESS
HARD & SOFT LAW
HISTORICAL REVIEW OF ENVIRONMENTAL LAW
UNITED NATIONS COMMITMENTS
DEVELOPING INTERNATIONAL LEGAL INSTRUMENTS
TO COUNTER CLIMATE CHANGE – CONSENSUS
7. RIO – KYOTO I & II
8. COP – FROM BALI 2007 TO PARIS 2015
DR. PETER ONYOYO O. LECTURE NOTES
CATEGORIES OF LAW
• INTERNATIONAL LAW – INTERNATIONAL JUSTICE
SYSTEM / GLOBAL JUSTICE/ GLOBAL JURISDICTION
– SOFT LAW – LEX SPECIALIS
• REGIONAL LAW
• FOREIGN LAW
• NATIONAL/DOMESTIC/MUNICIPAL LAW – HARD
LAW….
DR. PETER ONYOYO O. LECTURE NOTES
CRIMINAL V CIVIL LAW
• CRIMINAL LAW – PUBLIC/ ADMINISTRATIVE
LAW/ CRIMINAL LAW/ CONSTITUTIONAL LAW
• PRIVATE LAW / PRIVATE PARTIES
• PUBLIC VERSUS PRIVATE LAW
DR. PETER ONYOYO O. LECTURE NOTES
DEFINITION OF LAW
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JURISPRUDENCE
DIFFERENT DEFINITIONS OF LAW
JUDICIAL PROCESS / COURTS /
LAW MAKING BODY (LEGISLATURE)
LAW ENFORCING BODY (EXECUTIVE)
LAW INTERPRETING BODY (COURT)
DR. PETER ONYOYO O. LECTURE NOTES
CLIMATE JUSTICE
• WHAT IS JUSTICE?
• WHY IS JUSTICE IMPORTANT FOR CLIMATE
CHANGE?
• THE COURT HAS THE BURDEN OF JUSTICE
DR. PETER ONYOYO O. LECTURE NOTES
COMMON LAW SYSTEM AND
ADJUDICATIVE APPROACH
• ADVERSARIAL APPROACH
• PARTIES INITIATE THE LAW-SUIT AND NOT THE
COURT
• CIVIL LAW SYSTEM HAS INQUISITORIAL
APPROACH – THE COURT CAN TAKE INITIATIVE OR
ASK FOR INVESTIGATION
DR. PETER ONYOYO O. LECTURE NOTES
LAW OF CONSENSUS
INTERNATIONAL LAW
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CUSTOMARY INTERNATIONAL LAW
GENERAL PRINCIPLES OF INTERNATIONAL LAW
(JUS COGENS)
TREATY LAW / CONVENTIONS- NEGOTIATIONS/
AGREEMENTS/SIGNATURES/ RATIFICATION
• BINDING FORCE OF THE LAW – OBLIGATIONIS
LEGIS
• SOFT LAW / HARD LAW
DR. PETER ONYOYO O. LECTURE NOTES
KEY CONCEPTS
• RIGHTS – LAW CONFERS RIGHTS
• OBLIGATIONS – LAW IMPOSES OBLIGATIONS
• EG. CONTRACT LAW
DR. PETER ONYOYO O. LECTURE NOTES
WHAT IS CLIMATE CHANGE?
• Climate change, also sometimes called
"global warming“ or the "greenhouse
effect", is caused by the emission of
gases into the atmosphere as a result of
• human activity.
DR. PETER ONYOYO O. LECTURE NOTES
WHAT IS HAPPENING?
• Certain gases emitted during industrial or
agricultural activity, such as carbondioxide (CO2),
methane, nitrous oxide and ozone, known as
greenhouse gases (GHGs) collect in the
atmosphere and lead to changes in the climate
system which have led to the 1990s being the
warmest decade since records began.
DR. PETER ONYOYO O. LECTURE NOTES
SCIENTIFIC JUDGMENT/ PROOFS/
EVIDENCE
• Scientific projections predict that concentrations
of carbon dioxide in the atmosphere, global
average surface temperature and sea levels will
rise during the 21st century.
• SEA LEVEL SHALL RISE
• ICE SHALL MELT
• BIODIVERSITY SHALL BE AFFECTED
• RAIN PATTERNS SHALL CHANGE
• FOOD PRODUCTION SHALL BE AFFECTED
• IRREVERSABLE HUMANITARIAN DISASTERS
DR. PETER ONYOYO O. LECTURE NOTES
• This is likely to have an adverse effect on human health,
biodiversity and ecological productivity, although the
global impacts of a rise in Temperature are not all
negative.
• The greater the increase in temperature, the greater the
adverse effect. 4 Of particular concern is the impact on
water supply in water-scarce areas and on human
populations in low lying areas.
• Climate change presents new and difficult issues for
• environmental regulators to solve. CO2, one of the
• primary causes of climate change, is an unavoidable
• by-product of economic activity and inevitably rises
• with prosperity.6 Much of this comes from the burning
• of fossil fuels, of which the planet still has a significant
• stock.
DR. PETER ONYOYO O. LECTURE NOTES
WHAT IS CLIMATE CHANGE? SCIENTIFIC
TRUTH
DR. PETER ONYOYO O. LECTURE NOTES
HUMAN ACTIVTIES – ANTHROPOGENIC
GAS EMISSION FACILITIES
DR. PETER ONYOYO O. LECTURE NOTES
HUMAN ACTIVITIES
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SCIENTIFIC FACTS: THEORY OF HARM
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GLOBAL WARMING
EFFECTS OF GLOBAL WARMING
CLIMATE CHANGE
MITIGATION AND ADAPTATION ISSUES
LAW AS ONE OF THE APPROACHES TO COUNTER
MEASURE GLOBAL WARMING / CLIMATE
CHANGE
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MYTH & FACTS
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CHANGING ECOSYSTEM
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THE CONFERENCE OF THE PARTIES (COP)
• COP IS THE SUPREME BODY OF THE UN
FRAMEWORK CONVENTION ON CLIMATE
CHANGE (UNFCC)
• MEMBERS ARE KNOWN AS PARTIES TO THE
CONVENTION
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CLIMATE JUSTICE CONFERENCE
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CONFERENCE OF THE PARTIES
ANNUAL MEETINGS
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COP 13 – Bali, Indonesia – 2007
COP 14 – Poznan, Poland – 2008
COP 15 – Copenhagen, Denmark – 2009
COP 16 – Cancun, Mexico – 2010
COP 17 – Durban, South Africa – 2011
COP 18 – Doha, Qatar – 2012
COP 19 - Warsaw, Poland - 2013
COP 20 - Lima, Peru - 2014
COP 21 - Paris, France - 2015
DR. PETER ONYOYO O. LECTURE NOTES
EARTH SUMMIT
RIO DE JANNAIRO 1992
• UNITED NATIONS CONFERENCE ON
ENVIRONMENT & DEVELOPMENT HELD IN RIO:
• 2 CONVENTIONS – ON THE FRAMEWORK
CONVENTION ON CLIMATE CHANGE & ON
BIOLOGICAL DIVERSITY
• ORGANISED BY UNCED (UNITED NATIONS
CONFERENCE ON ENVIRONMENT &
DEVELOPMENT)
DR. PETER ONYOYO O. LECTURE NOTES
UNITED NATIONS
INTERNATIONAL LAW PERSPECTIVE ON
CLIMATE CHANGE
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HOW IT WORKS –
UNITED NATIONS GENERAL ASSEMBLY
INTERNATIONAL LAW COMMISSION
ADOPTING THE DRAFT BY ILC
ADOPTING THE RESOLUTION BY THE UNITED
NATIONS GENERAL ASSEMBLY
• DIPLOMATIC CONFERENCES FOR DISCUSSIONS –
ADOPTING, SIGNING CONVENTIONS BY STATE
MEMBERS OF THE COP – PLEDGES - COMMITMENTS
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DR. PETER ONYOYO O. LECTURE NOTES
BILATERAL V MULTILATERAL TREATIES
• LAW MAKING TREATIES
• BINDING COMPONENT OF THE LAW
• JURISDICTION (ICJ – JUDICIAL ORGAN) –
ADVISORY OPINION / CONTENTIOUS ISSUES
DR. PETER ONYOYO O. LECTURE NOTES
CLIMATE CHANGE & THE RULE OF LAW
• BRITISH EXPERIENCE – CARTA MAGNA
(COMMON LAW WORLD)
• CLIMATE AGREEMENT IN PARIS (MAGNA CARTA
1300) – UN FRAMEWORK CONVENTION ON
CLIMATE CHANGE
• COMMITMENTS MUST HAVE LEGAL FORMS –
THE ROLE OF THE COURTS TO ADMINISTER THE
CLIMATE JUSTICE
• WE NEED PREPAREDNESS TO HELP JUDICIAL
OFFICERS
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SOME OF THE INTERNATIONAL ACTORS
ON CLIMATE CHANGE & ADAPTATION
COMPONENTS
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CLIMATE CHANGE LAW
• ICJ
• INTERNATIONAL
ENVIRONMENTAL LAW
• ICL
• CIVIL SOCIETY
• DIPLOMATS
• IPCC- INTERGOVERNMENTAL
PANEL FOR CLIMATE CHANGE
UNEP
WORLD BANK
GOVERNMENTS (UK & USA)
IFM
UNESCO
WHO
UNICEF
FAO
IFAD
WFP
UNCEP
WMO – WORLD
METEOROLOGICAL
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ORGANIZATION
INTERNATIONAL COURT OF JUSTICE
• THE COURT MAY NOT BE WELL PLACED TO GIVE
AN OPINION ON THE CLIMATE CHANGE LAW –
SCIENCE
• ADVISORY OPINION IS UNLIKELY PROSPECT
• THE COURT (ICJ) – “COURT DECLINES TO DEAL
WITH SCIENTIFIC PROBLEMS”
• ADVISORY OPINION ON CLIMATE CHANGE MAY
NOT BE THE CASE – THE COURT DECLINES TO
TAKE DECISION
DR. PETER ONYOYO O. LECTURE NOTES
THE NATURE OF INTERNATIONAL LAW
AND ITS LIMITATIONS
• THE INTERNATIONAL TRIBUNAL OF THE LAW OF THE
SEA MAY BE BETTER IDEAL OTHER THAN THE ICJ
• INTERNATIONAL TRIBUNALS ARE MORE IDEAL
• CHANGES OF INTERNATIONAL PUBLIC OPINION – THE
POPE’S ENCYCLICAL LETTER USES MORAL APPROACH
TO CLIMATE CHANGE
• COLLECTIVE COMMITMENT
• NATIONAL COURTS ARE STARTING TO ACT ON
CLIMATE CHANGE – SCIENTIFIC EVIDENCE USED –
THE NETHERLANDS
DR. PETER ONYOYO O. LECTURE NOTES
INTER-GOVERNMENTAL ORGANIZATIONS
• JUNE 1992 THE RIO CONVENTION WAS ADOPTED
– ARTICLE 2
• 1997 KYOTO PROTOCOL
• CONCUNI IN MEXICO – DEEP CUT – REDUCING
GREENHOUSE GAS EMISSION BELOW 2 DEGREES
CELCIUS
• SOME EMISSIONS HAVE BEEN AVOIDED – SOME
POLICIES AND ACTIONS HAVE BEEN TAKEN
• BUT MUCH MORE IS NEEDED
DR. PETER ONYOYO O. LECTURE NOTES
• 2014 INTER-GOVERNMENTAL MEETING /
CHANGES HAVE BEEN NOTED/ SEA LEVEL HAS
RISEN/ ICE-MELTING HAS BEEN
REDUCED/SEVERE PERVASIVE AND IRREVERSIBLE
CHANGE
• PRECIPITATION EVENTS WILL BE FREQUENT/ THE
OCEAN WILL CONTINUE TO WARM AND IT WILL
CONTINUE FOR CENTURIES
• MAGNITUDE OF WARMING INCREASES
• HIGH RISKS WILL BE SEVERE
• LEGAL PROOF IS REQUIRED – STAND OF
REASONABLE DOUBT/ SWISS LAW
DR. PETER ONYOYO O. LECTURE NOTES
• THE EARTH IS AT RISK ACCORDING TO SCIENTIFIC
EVIDENCE – SOMETHING IS HAPPENING AND MUST
BE ADDRESSED BY SOME LEGAL FRAMEWORK
• INTERNATINAL LEGAL ORDER – SOVEREIGNTY OF
STATES
• CLIMATE CHANGE PERMEATES NATIONAL
BOUNDARIES – JURISDICTION
• OZONE LAYER
• OCEANS
• CLIMATE CHANGE IS THE SOURCE OF PROBLEMS
THAT ARE BROAD AND EXPANSIVE
• EACH PERSON IS CONTRIBUTING TO CLIMATE
CHANGE AND EACH ONE WILL BE AFFECTED BY THE
DESTRUCTION OF OZONE LAYER
• ROWLAND – AN AMERICAN SCIENTIST (CHEMISTRY)
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• ELUSIVE EFFORTS FROM THE INTERNAITONAL
COMMUNITY AND THE INTERNATIONAL COURTS
AND TRIBUNALS
• INTERNATIONAL COURTS AND TRIBUNALS ARE
ALMOST 40 WHOSE CONCERN WITH
INTERNAITONAL DISPUTES
• TRIALS – USA SUPREME COURT – JUDGMENT OF
LAW IS CONSIDERING THE SCIENTIFIC EVIDENCE
ON CLIMATE CHANGE
• JURISPRUDENCE
• SOME COURTS ARE STRONG BUT SOME ARE
WEAK IN THE AREA OF CLIMATE CHANGE
DR. PETER ONYOYO O. LECTURE NOTES
EXPECTATIONS
• COURTS OF LIMITED JURISDICTION
• COURTS OF GENERAL JURISDICTION
• INTERNATIONAL COURT – RAISES
CONSCIOUSNESS ON THE MATTER AND ON WHAT
NEEDS TO BE DONE/ THEY ENHANCE
CONSCIOUSNESS AND PROMOTES LEGITIMACY
• THE ISSUE OF CLIMATE CHANGE HAS HANDLED
LIMITED CLIMATE CHANGE ISSUES
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RIGHTS TO LIFE
RIGHTS OF MIGRATION
REFUGEE RIGHTS
HUMAN RIGHTS TO ACCESS FOOD/ HEALTH
LIVELIHOOD
ECONOMIC DEVELOPMENT
DR. PETER ONYOYO O. LECTURE NOTES
VIOLATIONS OF CLIMATE CHANGE
LAWS
• WTO – ISSUES OF CLIMATE CHANGE DISPUTES
SHALL COME ADVERSLY TO ARBITRATIONS
• CLIMATE CHANGE ARISES AS A SUBJECT OF
VIOLATIONS OF HUMAN RIGHTS
• INTERNATIONAL COURT WITH MORE GENERAL
JURISDICTIONS
• THE INTERNATIONAL TRIBUNAL OF THE LAW OF
THE SEA AT HUMBURG (GERMANY) – MORE
LIMITED ISSUES RELEVANT TO OCEANS/
PREVENTING SEA LEVEL RISE
DR. PETER ONYOYO O. LECTURE NOTES
ICJ
• THE ICJ LOOKS AT A BROADER SCOPE ON WHICH
CONSCIOUSNESS IS FORMED –
• THE INTERNATIONAL COURT HAS PLAYED THIS
FUNCTION – THE ENVIRONEMT IS NOT AN
ABSTRACTION BUT A REAL SPACE WHICH PROVIDES
SPACE FOR HUMANS… A STATE MUST RESPECT THE
ENVIRONMENT OF OTHER STATES (1996) –
ADVISORY OPINION IS MEANT TO PLAY A USEFUL
ROLE IN CONTRIBUTING TO GENERAL
CONSCIOUSNESS USED BY STATES, CORPORATES,
NGOs, GOVERNMENTS AND INDIVIDUALS/
DR. PETER ONYOYO O. LECTURE NOTES
• SUCH ADVISORY OPINIONS JUDGMENTS HELP TO
CHANGE THE BEHAVIOUR – FOR INSTANCE,
WHALING IN JAPAN.
• 2004 – ICJ CASES = WHALE MEAT PRODUCTS
DR. PETER ONYOYO O. LECTURE NOTES
CLIMATE CHANGE
• THE QUESTION OF STANDING- WHO CAN BRING
A CASE BEFORE THE INTERNATIONAL COURT (ICJ)
STARE DECISIS
• CLIMATE CHANGE BROUGHT TO BE HEARD BY AN
NGO IN THE NETHERLANDS WAS HEARD
BECAUSE THE ORGANIZATION HAD INTEREST.
• AT INTERNATIONAL LAW, AN NGO OR ANY
PRIVATE BODY CANNOT BRING A CASE BEFORE
THE COURT FOR CONSIDERATION
DR. PETER ONYOYO O. LECTURE NOTES
CONTENTIOUS CASE
• STATE VERSUS STATE =
• ANY STATE CAN BRING A PROCEEDING AGAINST
ANOTHER STATE PARTY
• CUBA AND THE NETHERLANDS ACCEPTED THE
JURISDICTION OF THE COURT TO BRING A CASE
ON CLIMATE CHANGE
• AUSTRALIA V JAPAN ON WHALING (ICJ) … IT
WORKED
• THE RULING GIVES A CASE FOR CAUSE FOR
ACTION
DR. PETER ONYOYO O. LECTURE NOTES
• SUCH ADVISORY OPINION PROVIDE TITLES FOR
NEGOTIATIONS –
• CONTENTIOUS CASES CAN AS WELL PROVIDE
TITLES FOR NEGOTIATIONS AT INTERNATIONAL
PLATFORM
• E.G. LAW OF THE SEA CONVENTIONS (UNCLOS)
OF 1982 – AFRICAN SUB-REGION FISHING
REQUIREMENTS / REQUESTS FOR ADVISORY
OPINION
• THE ICJ CAN REJECT ANY REQUEST OR FAIL TO
RESPOND/
DR. PETER ONYOYO O. LECTURE NOTES
LEGAL FACTS
• CASE OR QUESTIONS BROUGHT TO THE COURT MUST
HAVE IN ESSENCE MATERIAL ISSUES OF SCIENTIFIC OF
TECHNICAL NATURE/ JUDGES HAVE THE EXPERTISE
ON THIS
• ANTHROPOGENIC GREENHOUSE GAS EMISSIONS IS A
SCIENTIFIC OPINION/ BUT IT IS ANOTHER ISSUE FOR
THE ICJ TO GIVE ITS LEGAL ADVISORY OPINION
• THERE IS A BROAD CONSENSUS FOR THE COURT TO
PROVIDE ADVISORY OPINION ON SCIENTIFIC FACTS
BUT THIS IS NOT FREE FROM DISPUTES
DR. PETER ONYOYO O. LECTURE NOTES
• THE CONDUCT OF THE INTERNATIONAL COURT
CAN PROVIDE A PLATFORM FOR FUTURE OPINION
FORMING
• JUDGMENTS GIVEN CAN BE OF SCIENTIFIC
INTEREST
• THE ICJ CAN AS WELL DECLINE NOT TO GIVE AN
OPINION
• CROSS EXAMINATION BY SCIENTIFIC EXPERTS
FROM AUSTRALIA AND JAPAN – SCIENTIFIC
EXPERTS ACTING AS COUNSELS IN COURT TO
PROVIDE EVIDENCE – THE CONCLUSION TAKEN BY
THE COURT HAS PROVED THAT THE COURT HAS
POTENTIALLY ROLE TO PLAY IN CLIMATE CHANGE
DR. PETER ONYOYO O. LECTURE NOTES
THE LAW
• THE WHOLE TRUTH WILL DEPEND ON THE
WORDING OF THE LAW WHETHER IT CAN BE
INTERPRETED BY THE COURT OR NOT
• IT WILL BE USEFUL TO DWEL SO MUCH IN THE
PAST OR HISTORICAL REALITY
• ADVISORY OPINION IS TO BENEFIT THE
INTERNATIONAL COMMUNTIY ON WHAT IS TO BE
DONE OTHER THAN WHAT WAS DONE
DR. PETER ONYOYO O. LECTURE NOTES
INTERNATIONAL JUSTICE
• WHAT IS THE LAW APPLICABLE TO THE MATTER?
CLIMATE CHANGE
• THE COURT MAY BE INVITED TO PROVIDE AN
OPINION ON FUTURE DUTY AND OBLIGATIONS
OF THE GOVERNMENTS
• THE COURT COULD BE ASKE DTO DEAL WITH THE
OBLIGATIONS UNDER TREATY SUCH AS KYOTO
PROTOCOLS
• THE STATES HAVE A DUTY TO ACT IN A WAY TO
PREVENT THE CLIMATE CHANGE AND REDUCE
GLOBAL WARMING
DR. PETER ONYOYO O. LECTURE NOTES
INTERNATIONAL WRONGFUL ACT
• RATIFICATION SHALL ASSIST IN HOLDING
STATES LEGALLY RESPONSIBLE.
• THE ISSUE OF STATE RESPONSIBILITY RAISES
MANY QUESTIONS
• MANY STATES MAY CONTRIBUTE TO
INTERNATIONAL WRONGFUL ACT
• WHAT IS EQUITABLE IN THAT ACT? THE COURT
IS CONCERNED WITH WHAT IS EQUITABLE.
DR. PETER ONYOYO O. LECTURE NOTES
• LAW CAN PLAY A ROLE IN CLARIFYING SOME
DOUBTS AND CONVINCING THE INTERNATIONAL
ACTORS
• THE INTERNATIONAL COURT / TRIBUNAL CAN
ADD VALUE TO THE STRUGGLE TO MITIGATE
CLIMATE CHANGE AND ENHANCE ADAPTATION
• FOR INSTANCE – FISHERY CONSERVATION /
LIABILITY – ADVISORY OPINION HAS BEEN WELL
RECEIVED AND SHARED
• THE COURT TRACK RECORD IS CLEAR – WHALING
CASE
• PROLIFERATION OF WEAPONS OF MASS
DESTRUCTION
DR. PETER ONYOYO O. LECTURE NOTES
• CHINA AND USA COMING TOGETHER
• INTERNATIONAL TRIBUNAL FOR THE LAW FOR
THE SEA
• THE COURT CAN MAKE A POSITIVE
CONTRIBUTION TO THE DEVELOPMENT OF THE
CLIMATE CHANGE LAW
DR. PETER ONYOYO O. LECTURE NOTES
CHALLENGES POSED BY THE CLIMATE
CHANGE
• DISPUTES LINKED TO CLIMATE CHANGE
• WORKABLE AND EFFECTIVE SOLUTION FOR THE
CLIMATE CHANGE LAW
• BUILDING ON DOMESTIC COUNTERPARTS –
• WORKABLE SOLUTIONS RATHER THAN POINTING
FINGERS AND BLAMES
• MATTERS RELATED TO OBLIGATIONS OF STATES TO
CONDUCT THEMSELVES WITHIN THE LAW – THE
JUDICIAL ORGANS ARE WELL PLACED TO DEAL
WITH LEGAL QUESTIONS
DR. PETER ONYOYO O. LECTURE NOTES
THE SUPREME COURT OF THE USA
• THE JUDGMENTS AND OPINIONS OF THE COURT
ARE VERY ESSENTIAL IN SUPPORTING
NEGOTIATIONS ON CLIMATE CHANGE EFFECTS
AND HOW TO MITIGATE SUCH EFFECTS
• FAILURE TO HAVE A PROPER FRAMEWORK IN
PLACE CAN HAVE TERRIBLE CONSEQUENCES
DR. PETER ONYOYO O. LECTURE NOTES
LEGISLATIVE MEASURES IN USA
CLIMATE SECURITY ACT 2007
• JOSEPH LIEBERMAN & JOHN WARNER
(SENATORS) – SPONSORED THE BILL IN THE
SENATE
• FEDERAL CAP & TRADE SYSTEM IN THE USA –
FEDERAL CLIMATE CHANGE LAW
• THE BILL DID NOT PASS
DR. PETER ONYOYO O. LECTURE NOTES
ELEMENTS OF THE ACT
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The primary features of the CSA:
" Cap on greenhouse gases ("GHG") emitted by
many sectors of the US economy applying from
2012 to 2050.
" Financial incentives for deployment of new
technologies to address climate change.
" Utilization of an emission trading program.
Under the CSA each covered facility is required to
surrender at the end of each year the number of
emission allowances equalling the CO2 equivalents
that the facility emitted in that year. The cap on
emissions will affect a number of facilities that emit
DR. PETER ONYOYO O. LECTURE NOTES
THE EU EMISSIONS TRADING SCHEME
DR. PETER ONYOYO O. LECTURE NOTES
PREVENTION
• AGENDA CASE – THE NETHERLANDS COURT
RULING – CONTROLLING THE TEMPERATURE
TO BELOW 2 CELSIUS DEGREES TARGET HAS
BEEN MET
• CARBONDIOXIDE
• CARBON EMISSIONS
DR. PETER ONYOYO O. LECTURE NOTES
PLAYERS / ACTORS IN THE CLIMATE
CHANGE
• (PREVENTION AGENDA BASED ON THE NEED OF THE
NETHERLANDS)
• ICJ – HAS A ROLE TO PLAY IN SCIENCE – OBLIGATIONS TO
REDUCE EMISSIONS/ CO2/CFC
• GOVERNMENTS
• CORPORATES
• MULTINATIONALS
• ORGANIZATIONS / NGOs
• OTHER PRIVATE ACTORS ARE INVOLVED
• (LORD ARTKIN) – “IN CLASH OF ARMS THE LAWS ARE NOT
SILENT) – 1941.
• INTERNATIONAL COURTS SHOULD NOT BE SILENT ON THIS
ISSUE…
DR. PETER ONYOYO O. LECTURE NOTES
COMMENTS
• THERE IS DIFFICULTY ON THE PROBLEM WHICH
GLOBAL WARMING AND CLIMATE CHANGE
PRESENT
• THE OZONE LAYER IS THE ISSUE AT HAND –
DEPLETION OF THE LAYER REQUIRES COLLECTIVE
ACTION/ ANTHROGENIC GREENHOUSE GAS
EMISSION REQUIRES JOINT EFFORT AND
CONSENSUS
• WE SHOULD NOT EXPECT SO MUCH FROM THE
INTERNATIONAL COURTS
DR. PETER ONYOYO O. LECTURE NOTES
CASE LAW
• DOMESTIC JURISDICTIONS
• DIFFERENT LEGAL TRADITIONS IN DIFFERENT
SOCIETIES
• CLIMATE CHANGE NEGOTIATIONS IS VERY MUCH
WORK IN PROGRESS – WHAT IS AT STAKE IS THE
SPIRIT
• LEGAL DEVELOPMENT IS FACED WITH CRITICAL
POLITICAL ISSUES/ GOVERNMENT POLICIES
(AUSTRALIA) … IT DEPENDS ON THE
GOVERNMENT AND ITS LEADERSHIP
DR. PETER ONYOYO O. LECTURE NOTES
AMERICAN SUPREME COURT
CONNECTICUT CASE
• THE POSITION OF THE COURT ON SCIENTIFIC
DECISIONS
• COAL MINING / COAL EXTRACTION OPERATIONS
• GREENHOUSE GAS EMISSIONS
• COAL MINING / CHINA
• IS REFERENCE TO INTERNATIONAL COMMUNITY A
REFERENCE TO INTERNATIONAL COURT?
• THE COURT SEEKS TO GRAPPLE WITH THE
SCIENCE – OF LATE THERE IS CONSENSUS BY THE
COURT TO ADMIT EXPERT EVIDENCE AS PROOF
DR. PETER ONYOYO O. LECTURE NOTES
• LEX SPECIALIS PRINCIPLE
• THE NEGOTIATIONS – THE COURT CANNOT
INVENT THE INTERNATIONAL LAW BUT RELIES ON
WHAT HAS BEEN RATIFIED AND IS BINDING
DR. PETER ONYOYO O. LECTURE NOTES
CONTEXTUALIZATION
• APPLICATION OF GENERAL INTERNATIONAL LAW
TO MITIGATE CLIMATE CHANGE
• THE NATURE OF OBJECTIONS TO CLIMATE
CHANGE THEORIES
• NEGOTIATIONS ARE EFFECTIVE – PARIS
NEGOTIATION DEC 2015 / MANY MORE
NEGOTIATIONS
• VULNERABLE NATIONS / NEGOTIATIONS ARE
LACKING MORLA AND LEGAL ASPECTS – THERE IS
NO SENSE OF OBLIGATIONS (LEGAL) AND
CONCERN FOR THE VULNERABLE (MORAL).
DR. PETER ONYOYO O. LECTURE NOTES
• BOTTOM UP ARCHITECTURE
• REGIONAL ECONOMIES – SOUTH AFRICA AND
BRAZIL HAVE MADE THEIR CONTRIBUTIONS TO
AGREED TEMPERATURE LIMIT
• CONTRIBUTIONS FROMS STATES ARE NOT
NEGOTIATED BUT AGREED/
• THERE IS AMBITION
• THERE IS DISCRETION RELATED TO NATIONAL STATES
AUTONOMY IN MITIGATION AND ADAPTATION TO
CLIMATE CHANGE
• EQUITABILITY – CONSIDERATION OF VULNERABLE
STATES / BOTTOM UP MUST TAKE INTO ACCOUNT IF
THE AGREEMENT IS FAIR OR NOT
DR. PETER ONYOYO O. LECTURE NOTES
• PROBABILITY V CERTAINTY OF THE CLIMATE
CHANGE CONSEQUENCES
• CUSTOMARY INTERNAITONAL LAW / GENERAL
INTERNATIONAL LAW/ LEX SPECIALIS
• THE COURT CAN CLARIFY THE LEGAL
FRAMEWORK INVOLVED IN CLIMATE CHANGE
• OBLIGATIONS UNDER DISCUSSION MUST BE
CLEARER AND LESS AMBIGUOUS OR TOO
SCIENTIFIC
DR. PETER ONYOYO O. LECTURE NOTES
CONCEPT OF OFFENCE IN THE CLIMATE
CHANGE AND ADAPTATION PROGRAMME
• HAS ANYBODY DIED DUE TO CLIMATE CHANGE?
DISCUSS –
• HAS ANY TERRITORY BEEN LOST DUE TO RISE OF
THE SEA LEVEL OR NOT?
• HAS GLOBAL WARMING CAUSED ANY DAMAGE OR
LEGAL INJURY?
• IS THERE ANY LEGAL CLARITY IN THE AREA OF
CLIMATE CHANGE?
• WHAT IS THE STAND-POINT OF INTERNATIONAL
HUMAN RIGHTS LAWYERS ON CLIMATE CHANGE?
DR. PETER ONYOYO O. LECTURE NOTES
CRIMINAL & CIVIL PROCEEDINGS ON
CLIMATE CHANGE JUSTICE SYSTEM
• IS THERE ANY OFFENCE UNDER THE CRIMINAL
PROCEEDINGS OF CLIMATE CHANGE? DISCUSS
• WE USUALLY TALK OF DAMAGES AND PROBABLE
RISKS TO HUMANITY AND NATURE IN GENERAL –
ARE THERE INJURIES?
DR. PETER ONYOYO O. LECTURE NOTES
KENYAN ENVIRONMENTAL LAW &
POLICIES
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EMCA 1999
ENVIRONMENTAL IMPACT ASSESSMENT POLICIES
NEMA
HIGHT COURT OF ENVIRONMENT AND LAND
KENYAN SHOW CASE OF CLIMATE CHANGE DAMAGES
/ LAND LAW (LAND USE/ WATER/ IRRIGATIONS/
DIGGERS/ RIVERS/ FORESTS CONSERVATIONS)
• REDUPLICATION OF ROLES AND DUTIES – TOO MANY
INSTITUTIONS DEALING WITH SIMILAR MANDATES
ON ENVIRONMENTAL ISSUES – TOO MANY PLAYERS
DR. PETER ONYOYO O. LECTURE NOTES
CHALLENGES ON ADJUDICATION ON
CLIMATE CHANGE ISSUES
• GLOBAL BROKERAGE – DOMESTIC CONTEXT/ ISSUES/
CANADA/ AMERICA/ AUSTRALIA
• CLEAN ENERGY IMPLEMENTATION (KYOTO
PROTOCOL)
• BIGGER SYSTEMIC ROLE ISSUES – INTERNATIONAL
JUDGES MUST BE TO THE TASK TO PROVIDE
SOLUTION
• THE NATURE OF THE INSTITUTION WHICH IS
ADJUDICATING MATTERS IN DISREGARD TO
WHETHER IT IS INTERNATIONAL OR NATIONAL – THE
BOTTOM LINE IS WHAT EXTENT WILL THE COURT
DECISION GIVE EFFECT?
DR. PETER ONYOYO O. LECTURE NOTES
INTERNATIONAL COURT/ TRIBUNALS ARE
BETTER PLACED THAN DOMESTIC COURTS
• IT IS NECESSARY TO LOOK AT IMPLEMENTATION
STRATEGIES ADOPTED BY DIFFERENT STATES –
• OTHER PARTS OF LEGISLATION ARE EQUALLY
IMPORTANT WHEN WE CONSIDER CLIMATE
CHANGE ISSUES
• FOR INSTANCE – AIR, WATER AND LAND
POLLUTIONS/
DR. PETER ONYOYO O. LECTURE NOTES
LEGISLATIONS: CIVIL LAW
• CIVIL OFFENCES – OFFENCES DIRECTED TO
PRIVATE INDIVIDUALS
DR. PETER ONYOYO O. LECTURE NOTES
• LAW OF CONTRACT
• LAW OF TORT (NUISANCE/
CARELESSNESS/NEGLIGENCE)
• LAW OF TRUST
• INTELLECTUAL PROPERTY LAW (IPL)
• LAW OF EQUITY
• PROPERTY LAW
• BUSINESS / COMMERCIAL LAW
• MARITIME LAW
• ADMINISTRATIVE LAW
(POLICIES/REGULATIONS/BYLAWS/ PERMITS AN
LICENCES/ ASSESSMENTS/ INSTITUTIONS)
DR. PETER ONYOYO O. LECTURE NOTES
CRIMINAL ASPECT OF VIOLATIONS OF
CLIMATE CHANGE LAWS
• THE MAIN TOPIC SHOULD BE ON HUMAN RIGHTS
LAW – “COMMON HUMANITY”
• NATURAL LAW THEORY AND CONCEPTS
• PUBLIC INTERNATIONAL LAW – GENERAL
PRINCIPLES OF INTERNATIONAL LAW (JUS
COGENS / PACTA SUNT SERVANDA); CUSTOMARY
INTERNATIONAL LAW/ TEATIES
(CONVENTIONS/PROTOCOLS/ACCORDS/PACTS)
• LAW OF INTERNATIONAL ORGANIZATIONS (UN)
DR. PETER ONYOYO O. LECTURE NOTES
REGIONALIZATION OF THE CLIMATE
CHANGE TREATIES
• AFRICAN UNION AND ITS STAND ON CLIMATE
CHANGE
• IGAD
• COMESA
• EAC
• MAGREB
• ECOWAS
DR. PETER ONYOYO O. LECTURE NOTES
TRANSNATIONAL CORPORATIONS
•
•
•
•
•
•
MULTINATIONALS COMPANIES
WORLD TRADE ORGANISATION
G7 – WORLD ECONOMIC FORUM
G20- WORLD ECONOMIC FORUM
WORLD SOCIAL FORUM (INGOs & NGOs)
DR. PETER ONYOYO O. LECTURE NOTES
POLICIES, REGULATIONS,
DOMESTICATION
• RATIFICATION PROCESS (TREATY LAW)
• DOMESTICATION PROCESS (LEGISLATIONS) –
EACH MEMBER STATE TO IMPLEMENT THE
TREATIES
• UN – REGULATORY MECHANISM / MONITORING
/ ASSESSMENT/ REPORTING
DR. PETER ONYOYO O. LECTURE NOTES
SANCTIONS
•
•
•
•
•
•
INTERNATIONAL SANCTIONS (SOFT LAW)
EMBARGOES – ECONOMIC EMBARGO
POLUTER PAYS – PRINCIPLE AND ITS EFFECTS
PRECAUTIONARY PRINCIPLE –
EARLY WARNING
AWARENESS CREATION
DR. PETER ONYOYO O. LECTURE NOTES
ROLE OF THE ARBITRATIONS IN CLIMATE
CHANGE
CONFLICT OF LAWS
• INTERNATIONAL COMMERCIAL ARBITRATION (ICA)
• INTERNATIONAL CHAMBERS OF COMMERCE (ICC)
• ARBITRATIVE JUSTICE AND ITS RELEVANCE TO
CLIMATE CHANGE
• CONTRIBUTION OF WORLD TRADE IN CLIMATE
CHANGE (WTO)
• INTERNATIONAL CODE OF ARBITRATION (ICA)
• RIGHT TO DEVELOPMENT AND ITS CHALLENGES
DR. PETER ONYOYO O. LECTURE NOTES