3. Distribución sintáctica
4.4. Textos de contrecto56
• Difficulties with traditional model of dispute settlement:
o a) Difficulty in identifying an “injured State” with standing (All States?
No States? Specially affected States?).
o b) Is it possible that obligations under environmental treaties are obligations “erga omnes”, giving all States standing?
o c) Difficulty in identifying a “responsible State”, which has caused the damage (industrialised States? All States?).
o d) Even if it possible to identify a State with standing, what would be the purpose of that State’s claim?
• What would be the purpose of the claim?
o – Remedies under international law:
Restitution?
Compensation?
Satisfaction?
• Do you want to “punish” the offending State?
• How to ensure that the State complies with its obligations?
• Methods of ensuring compliance with environmental agreements o Creation of institutional machinery
– COP / MOP (UNFCCC, Art 7)
– Secretariat (UNFCCC, Art 8)
– Subsidiary bodies (UNFCCC, Arts 9‐10) o Regular reporting by States parties to the regime
– UNFCCC, Art 4(1)(a), (b)
– UNFCCC, Art 4(2)(b)
– UNFCCC, Art 12
o Fact‐finding and research function of the institutional machinery;
– E.g., subsidiary bodies under UNFCCC;
– Obligations to support research efforts (Art 5) o Possibility of inspections to verify compliance
• Non‐compliance procedures
• Designed to provide a “softer” system to address non‐compliance than traditional dispute settlement procedures
• Designed to assist the defaulting State in returning to compliance, not necessarily to incriminate States for non‐compliance
• They are multilateral, rather than bilateral; consultative, rather than adversarial; facilitative of compliance, rather than punitive for any noncompliance.
Contemporary Issues
• Kyoto Protocol NCP
• See Procedures and Mechanisms relating to Compliance under the Kyoto Protocol: Decision 27/CMP.1 – see especially p y consequences of action by the Enforcement Branch
• Practice of the Kyoto Protocol NCP:
o – Complaints about non‐compliance by Greece, Croatia, and Canada o – Sanctions have been implemented The Climate Change Regime
• UN Framework Convention on Climate Change opened for signature at Rio Summit in June 1992
• Objective – “to achieve … stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Art 2)
• Principles: – The Convention recognised the principles of intergenerational equity, and the principle of common but differentiated responsibilities (Art 3(1))
• – developed States should take the leading role in combating climate change (Art 3(1))
• – Specific needs and special circumstances of developing countries to be given full consideration, especially those that are particularly vulnerable (Art 3(2))
• – States parties to take precautionary measures (Art 3(3))
• – States parties should promote sustainable development (Art 3(4))
• – States parties should cooperate to promote an open international economic system (Art 3(5))
• All parties, taking into account their common but differentiated responsibilities, have certain qualitative duties, such as:
o – To develop, periodically update and publish national inventories of anthropogenic GHG emissions and removals by ‘sinks’ (Art 4(1)(a));
o – To have national and regional programmes on measures to mitigate climate change (Art 4(1)(b));
o – To develop and transfer technologies to p g reduce GHG emissions in all relevant sectors (Art 4(1)(c));
o – To promote sustainable management Art 4(1)(d);
o – To cooperate and prepare for adapting to the impacts of climate change (Art 4(1)(e));
o – To take climate change considerations into account in the
formulation of social, economic and environmental policies (Art 4(1)(f))
…
• GHGs were defined as being: carbon dioxide (CO2); methane (CH4); nitrous oxide (N2O); hydrofluorocarbons (HFCs); perfluorocarbons (PFCs); sulphur hexafluoride (SF6).
• Developed countries (listed in Annex I) have other obligations:
o – To adopt national policies and implement measures to limit GHG emissions and to protect and enhance sinks and reservoirs to modify trends in anthropogenic emissions, “recognising that the return by the end of the decade [the 1990s] to earlier levels of anthropogenic
emissions of carbon dioxide and other GHGs … would contribute to such modification.” (Art 4(2)(a)).
o – To engage in information sharing, as well as on their projected anthropogenic GHG emissions by sources, and removals by sinks of GHGs, “with the aim of returning individually or jointly to their 1990 levels these anthropogenic emissions of carbon dioxide and other GHGs” (Art 4(2)(b)).
o But: no specific emission reduction or limitation targets agreed
• Parties listed in Annex II (being developed OECD member States) had specific obligations:
o to provide financial resources to assist developing States with their reporting requirements (Art 4(3));
o to assist developing countries which are particularly vulnerable to meet the costs of adapting to climate change (Art 4(4));
o to assist in the transfer of environmentally sound technologies to other parties to enable them to implement the Convention (Art 4(5)).
• Further provisions:
o – Flexibility given to Annex I parties which are economies in transition (Art 4(6));
o – Extent to which developing countries implement their obligations will depend on the effective implementation by developed countries of their obligations (Art 4(7));
o – Full consideration for position of vulnerable countries (Art 4(8));
o – Full consideration for position of least developed countries re funding and technology transfer (Art 4(9)).
• “Individually or jointly”
o The aim is for the Annex I parties to return, “individually or jointly”, their GHG emissions to 1990 levels by the year 2000 (Art 4(2)(b))
• What is “joint implementation”?
o “The Conference of the Parties, at its first session, shall … take decisions for criteria regarding joint implementation” (Art 4(2)(d)) o COP‐1 (1995) – set out to strengthen the obligations on Annex I parties
in Art 4(2)
• Kyoto Protocol agreed at COP‐3 (1997); this contained quantified emission limitation and reduction obligations (Art 3): – “The Parties listed in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of [GHGs] … do not exceed their assigned amounts [in Annex B] … with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.”
• Difficulties re entry into force (double requirement) – did not happen until February 2005
• Annex B targets – principle of “differentiation” was applied
• Some States permitted to increase GHG emissions: Australia (108%), Iceland (110%) and Norway (101%)
• Some States had to keep GHG emissions at 100% of 1990 levels: New Zealand, the Russian Federation, and the Ukraine
• Others had to reduce GHG emissions: e.g., all EU States (92%)
• Flexibility Mechanisms
o “Joint Implementation” emissions reduction projects between Annex I States (Art 6): – “For the purpose of meeting its commitments under Article 3, any Party included in Annex I may transfer to, or acquire from, any other such Party emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy, provided that:
a) Any such project has the approval of the Parties involved;
b) Any such project provides a reduction in emissions by sources, or an enhancement of removals by sinks, that is additional to any that would otherwise occur.”
o “Clean Development Mechanism” projects between Annex I States and developing countries (Art 12): – “The purpose of the [CDM] shall be to assist Parties not included in Annex I in achieving sustainable
development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.”
o CDM projects generate certified emission reduction units (“CERs”) o Emissions trading (Art 17): – “The Parties included in Annex B may
participate in emissions trading for the purposes of fulfilling their commitments under Article 3. Any such trading shall be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments under that Article.”
o Further details of the three flexibility mechanisms agreed at COP‐7 in 2001 (the “Marrakesh Accords”)
o Many such projects are ongoing:
– Well over 2000 CDM projects, e.g., World Bank and NovaGerar EcoEnergia Ltd landfill gas capture project in Brazil
– Over 150 JI projects – there are “Track 1”, and “Track 2” JI projects
– There is a very active market in carbon emissions, worth billions
• Compliance with the Kyoto Protocol
• “Non‐compliance procedure” (discussed earlier) – whose aim is “to facilitate, promote and enforce compliance with the commitments under the Protocol”.
o – Facilitative Branch – offers advice and assistance to parties in order to promote compliance
o – Enforcement Branch – decides on sanctions in the case of non‐
compliance with Kyoto obligations (such sanctions may include a declaration of non‐compliance; suspension of that State party’s eligibility to participate in the flexibility mechanisms; and applying penalties to future ‘assigned amounts’ for future commitment periods)
• Unfinished business …
• The Kyoto Protocol:
o – only places obligations on Annex I States;
o – only places obligations on those States for the first Kyoto
“commitment period” of 2008 – 2012;
o – does not include some key industry sectors – such as international aviation (responsible for 3.5% of emissions contributing to global warming), and maritime transport
o – Some States are not going to meet their targets: Australia, New Zealand and Canada have each increased GHG emissions by 25%; but overall compliance might be possible
• Copenhagen Accord (Dec 2009)
o Para 1: – “We underline that climate change is one of the greatest challenges of our time. We emphasise our strong political will to urgently combat climate change in accordance with the principle of common but differentiated responsibilities and respective capabilities”
o – To achieve the ultimate objective … we shall, recognizing the
scientific view that the increase in global temperature should be below 2 degrees Celsius, on the basis of equity and in the context of
sustainable development, enhance our long‐term cooperative action to combat climate change. …”
o Para 2: – “We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth
Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius.”
o Para 3: – “Adaptation to the adverse effects of climate change and the potential impacts of response measures is a challenge g faced by all countries … We agree that developed countries shall provide
adequate, predictable and sustainable financial resources, technology and capacity‐building to support the implementation of adaptation action in developing countries.”
o Para 6: – “We recognize the crucial role of reducing emission from deforestation and forest degradation and the need to enhance removals of greenhouse gas emission by forests and agree on the need to provide positive incentives to such actions through the immediate establishment of a mechanism including REDD‐plus, to enable the mobilization of financial resources from developed countries.”
• Future Action …
o Copenhagen Accord, para 12: – “We call for an assessment of the implementation of this Accord to be completed by 2015.”
o Cancun Agreements (December 2010): – “Urges Annex I Parties to raise the level of ambition of the emission reductions to be achieved by them individually or jointly …”
o – What next?
Topic 5: The Law of International Organisations Introduction and Historical Development
1. International conferences and unions
• Early international conferences – ad hoc (e.g., Congress of Vienna (1815))
• First international organisations – technical, rather than political
(International Telegraphic Union (1865), Universal Postal Union (1874)).
• League of Nations (1919)
• Allied Powers in WW2 – as early as 1941, called themselves the “United Nations”
• Moscow Declaration (1943) – identified “the necessity of establishing, at the earliest practicable date, a general international organisation, based upon the principle of sovereign equality of all peace‐loving States, large and small, for the maintenance of international peace and security.”
• United Nations (1945)
• Types of international organizations
• There is no “typical” international organization o – Universal and general (e.g., the UN)
o – Regional organisations – political cooperation (ASEAN, EU, OAS, African Union)
o – Regional organisations – economic integration (ASEAN, EC, MERCOSUR, Common Market for Eastern and Southern Africa, ECOWAS)
o – Universal and specialised (WTO, WIPO, WMO, World Bank) o – Universal – limited membership (OECD, G‐8)
o – Regional organisations– security cooperation (NATO, WEU, ANZUS, Warsaw Pact, OSCE)
o – Regional organisations – human rights and democracy (Council of Europe, OSCE)
• Functions of international organizations
• Providing a forum for identifying and deliberating on matters of common interest;
• Acting as vehicles for taking action on international or transnational problems;
• Providing a forum for developing rules on matters of common interest;
• Providing mechanisms for promoting, monitoring, and supervising State
compliance with agreed rules and policies as well as for gathering information regarding the practices of States; and
• Providing a forum for the settlement of disputes.
• What is an international organisation?
• International organisations are all different
• ILC currently working on “Responsibility of International Organisations”
• Article 2 of draft Articles:
o – “For the purposes of the present draft articles, the term ‘international organisation’ refers to an organisation established by a treaty or other instrument governed by international law and possessing its own international legal personality.
• International organisations may include as members,in addition to States, other entities.”
• “… any instrument governed by international law …”
o – E.g, Nordic Council (but later a treaty was concluded), OSCE, OPEC o – But not the “Cairns Group” ‐ Argentina, Australia, Bolivia, Brazil,
Canada, Chile, Colombia, Costa Rica, Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, the Philippines, South Africa, Thailand and Uruguay.
o – Not intended to exclude entities other than Statesfrom membership of int’l orgs
• The three criteria distinguish truly “international organisations” from other types of international associations, such as:
o – NGOs (such as Greenpeace); and
o – international public corporations (such as, e.g., “Air Afrique”).
• Is there an “international law of international organisations”?
• Body of general principles covering:
o i. the legal personality of international organisations;
o ii. the powers of international organisations;
o iii. the interpretation of constituent instruments;
o iv. the privileges and immunities of international organisations; and o v. the international responsibility of the organisation and its member
States.
2. League of Nations
• The League of Nations (LON) was an intergovernmental
organization founded as a result of the Paris Peace Conference that ended World War I, and it was the precursor to the United Nations. The League was the first permanent international security organization whose principal mission was to maintain world peace. The League's primary goals, as stated in its Covenant, included preventing war through collective
security, disarmament, and settling international disputes
through negotiation and arbitration. Other issues in this and related treaties included labour conditions, just treatment of native inhabitants, trafficking in persons and drugs, arms trade, global health, prisoners of war,
and protection of minorities in Europe.
• The diplomatic philosophy behind the League represented a fundamental shift in thought from the preceding hundred years. The League lacked its own armed force and so depended on the Great Powers to enforce its resolutions, keep to economic sanctions which the League ordered, or provide an army, when needed, for the League to use. However, they were often reluctant to do so.
• After a number of notable successes and some early failures in the 1920s, the League ultimately proved incapable of preventing aggression by the Axis powers in the 1930s. The onset of World War II showed that the League had failed its primary purpose, which was to avoid any future world war.
The United Nations replaced it after the end of the war and inherited a number of agencies and organizations founded by the League.
3. United Nations
• The United Nations (UN) is an international organization whose stated aims are facilitating cooperation in international law, international
security, economic development, social progress, human rights, and
achievement of world peace. The UN was founded in 1945 after World War II to replace the League of Nations, to stop wars between countries, and to provide a platform for dialogue. It contains multiple subsidiary organizations to carry out its missions.