I.INTRODUCTION
The most international problem of all time in the world might be climate change because the greenhouse effect, which leads to climate change, affects the whole of the world’s alive environment and every creature inhabiting. Such that, climate change was defined as a ‘common concern of mankind’ by United Nation General Assembly. Due to the reason’s being an environmental problem for all nations, there have been lots of attempts which were led by the states which is the one of the key actors to hinder this problem in the international arena. These activities were called as treaties or protocols which are deduced between states in written form, sometimes legally binding sometimes not, and conducted by international law, finally, adopted by states in national level. However, a framework treaty is mostly chosen for making law for these kind of problems, because, framework treaty generate the basic arrangements or procedures for the adoption of protocol which consists of detailed obligations to the parties in order to get the aim of treaties. One of the most advantages of framework treaty is to give a litheness by allowing legal amendment or other changes related to political, scientific or economic developments. In the field of climate change, it is rational because climate change policies mainly depend on the scientific data.
The problem of global climate change was firstly identified by the World Meteorological Organization (WMO) and the United Nations Environment Programme (UNEP) in global and they set up the Intergovernmental Panel on Climate Change (hereinafter IPCC) in 1988. After that time, states have tried to respond to climate change under The United Nations Framework Convention on Climate Change (hereinafter UNFCCC) several times. The most recent response is Paris Agreement also called 21st Conference of the Parties to the United Nations Framework Convention on Climate Change or COP21 (hereinafter Paris Agreement). This paper will examine the effects of Paris Agreement on climate change in the respect of the case of Urgenda Foundation v the State of the Netherlands.
II.EVIDENCE OF CLIMATE CHANGE
The factors of the climate change are natural causes which are volcanic activity, glaciations, solar output, and the Earth's orbit around the Sun and human causes which are the burning of fossil fuels and the transformation of land for forestry and agriculture. These factors’ effects are researched by a large number of organisations in the world and the IPCC is one of them. Five assessment reports were published by the IPCC so far and these report prepared by different working groups. The reports were divided into three-part as follows the physical science basis of climate change; impacts, adaptation, and vulnerability; and mitigation of climate change. The work of the IPCC has been carried out by 1,800 scientists over 20 years, and it is possible to say that this work is the most extensive and long-time scientific study so far. The fifth assessment report shows the evidence of climate change on the part of physical science basis of climate change very briefly as follows;
Observed changes: Warming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen.
Changes in atmosphere: Each of the last three decades has been successively warmer at the Earth’s surface than any preceding decade since 1850. The period from 1983 to 2012 was very likely the warmest 30-year period of the last 800 years in the Northern Hemisphere, where such assessment is possible and likely the warmest 30-year period of the last 1400 years.
Changes in ocean: On a global scale, the ocean warming is largest near the surface, and the upper 75 m warmed by 0.11 [0.09 to 0.13] °C per decade over the period 1971 to 2010.
Changes in cryosphere: Over the last two decades, the Greenland and Antarctic ice sheets have been losing mass. Glaciers have continued to shrink almost worldwide. Northern Hemisphere spring snow cover has continued to decrease in extent. There is high confidence that there are strong regional differences in the trend in Antarctic sea ice extent, with a very likely increase in total extent.
Changes in sea level: Over the period 1901–2010, global mean sea level rose by 0.19 [0.17 to 0.21] m. The rate of sea level rise since the mid-19th century has been larger than the mean rate during the previous two millennia.
Beyond this scientific evidence confessed by the IPCC, there is various kind of evidence of climate change such as the rise in tropical storm numbers, hurricane numbers or power dissipation in the Atlantic.
III. BACKGROUND OF 21ST CONFERENCE OF PARTIES
The Kyoto Protocol, which had a significant role as a legally binding global response to climate change was held as 3rdCOP in December 1997. The protocol aimed to reduce greenhouse gas emission in the world with thirty-seven developed countries and the European Union. However, the world’s biggest greenhouse gas emitters, the United States, China and India, were never adopted the Kyoto Protocol and other some of the world's largest emitters which are developing countries who have no binding commitments under the Kyoto Protocol, brought a failure. Besides, the Kyoto Protocol’s compliance mechanisms were very ineffective. According to one critic, ‘If cutting global carbon emissions was [the Kyoto Protocol's] aim, the UN scheme has failed.’ Because of the implementation failure of Kyoto Protocol and after the diplomatic failure of COP15 in Copenhagen, Paris Agreement has become more important.
The characteristic of Paris Agreement was given by Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) as ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’ in 2011 at COP17. Firstly, the agreement will be ‘under the Convention’ which means it will coincide with the principles and objectives of the UNFCCC, for instance, the main goal of the UNFCCC is to hold warming below 2 degrees and Paris Agreement will follow this principle. Secondly, the Paris Agreement will be ‘applicable to all’, so, wide participation is essential because of the nature of climate change and it is consistent with the principle of common but differentiated responsibilities and respective capabilities under the UNFCCC. Related to this, parties submitted their commitments before the Paris Agreement was held in order to support the principle of common but differentiated responsibilities. Thirdly, the Paris Agreement will be a ‘multilateral, rules based regime, grounded in a protocol, an other legal instrument or an agreed outcome with legal force’ which means the Paris Agreement’s form will be a treaty.
IV. 21ST CONFERENCE OF THE PARTIES
UNFCCC is a global pioneer for reducing these emissions and hazards from anthropogenic climate change. The main target of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) is to mitigate greenhouse gas emission and emission from land-use and forestry. The aim of UNFCCC was also stated as ‘stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ by United Nations in 1992. To achieve this target, twenty-one conferences have been held by UNFCCC so far and the latest one is 21st Conference which was held in Paris in 2015 with 195 countries. Beside these states, the role of the non-governmental organisations can be seen in Paris Agreement, such that there are various groups like the Group of 77 and China, the Umbrella Group, the Environmental Integrity Group, the Like Minded Developing Countries and the Alliance of Small Island States. Non-state actors have been playing a central role which is significant for developing of international environmental law. Non-governmental organisations can be the only actor of international environmental law who stay away from the politics which is one of the obstacles of international environmental law.
After two weeks from the beginning, 195 countries involved to reach the significant deal on climate change agreed in Paris and Laurent Fabius, foreign minister and president of Paris Agreement, announced that ‘I hear no objection in the room, I declare the Paris climate agreement adopted.’ The agreement was defined as an ‘ambitious and balanced agreement’ by the European Commission and as a ‘historic moment’ by President Obama. It is possible to categorise milestone conclusions of Paris Agreement as follows;
Mitigation: Reducing emissions fast enough to achieve the temperature goal.
A transparency system and global stock-take: accounting for climate action.
Adaptation: Strengthening ability of countries to deal with climate impacts.
Loss and damage: Strengthening ability to recover from climate impacts.
Support: Including finance, for nations to build clean, resilient futures.
States agreed on 29 Articles which comprise landmark conclusions and some of the articles related to these milestone conclusions of Paris Agreement have certain significant outcomes which need to be highlighted.
A) Mitigation (Article 2) One of the important point need to be highlighted is Article 2 which is related to mitigation. According to this article, parties agreed on to hold the increase in global average temperature ‘well below 2°C above pre-industrial levels’ and pursue efforts to ‘limit the temperature increase to 1.5°C’. Holding the increase below 2°C is remarkable because according to the IPCC reports, there will be dangerous effects in the world such as an increase in the number of extreme climate events, if global average temperature is more than 2°C. The Alliance of Small Island States has insisted parties on implementing the solutions required to meet the below 1.5°C temperature goal, the effect of non-governmental organisations can be clearly seen in this article. On contrary to the Article 2, Professor James Hansen of Columbia University et al. addressed that the dangerous effects of climate change appear with the rise of 1°C, so, the aim of keeping under 2°C temperature rise is a dangerously inadequate target. According to Article 4 ‘parties aim to reach global peaking of greenhouse gas emissions as soon as possible’ and to hold under 2°C serves this aim as well, however, using a phrase as soon as possible is thoughtful because to reach this aim might take longer according to the state’s developing level. According to scientists to hold the temperature under 2°C which means release lower global greenhouse gas emission by 40 to 70 percent compared with 2010 by mid-century and to near-zero by the end of this century.
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Related to mitigation aim, 161 intended nationally determined contributions (hereinafter INDCs) which held by Paris Secretariat were submitted by 188 countries which include EU countries joint and these INDCs is covering 98.7 percent of global emission by this time. The temperature will be hold between 2.7-3.7°C by 2100 with current INDCs. So, it is obvious that these INDCs are not efficient to reach the aim of 2°C.
B) A transparency system and global stock-take (Article 13 and 14) According to Article 14, ‘parties shall present take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals (referred to as the “global stocktake”) and Paris Agreement shall undertake its first global stocktake in 2023 and every five years.’ Five-year reviews are important for the development of UNFCCC, in other words, according to Jos Delbeke, who is a director general for climate at the European Commission, ‘we will analyse how far we are in reaching the 2-degrees Celsius goal; then will have an update of our policy plans’ and ‘if we have that cycle repeated every five years we’re going to reach the target.” The way to make Paris Agreement an equate, solid and dynamic response to climate change, transparency has a important role; so parties agreed to establish framework for transparency. According to Article 13 ‘in order to build mutual trust and confidence and to promote effective implementation, an enhanced transparency framework for action and support, with built-in flexibility which takes into account Parties’ different capacities and builds upon collective experience is hereby established.’ Related to this, with global stocktake, countries have to indicate the target of mitigation which is coherent with INDCs are accomplished every five years. As seeing here, global stock-take as a form of INDCs also serve to be transparency.
C) Adaption (Article 7) Under Paris Agreement, no adaption mechanism is designated. To reach the main goal of “enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change”, parties need to show their adaptation planning and implementation of actions as national adaptation communications on global stock-take reviews. According to Article 7(7) parties need to share their scientific knowledge, institutional arrangements and effective adaptation practices each other to reach the the main aim.
D) Loss and Damage (Article 8) The UN Framework Convention on Climate Change (UNFCCC) defines loss and damage as “the actual and/or potential manifestation of impacts associated with climate change in developing countries that negatively affect human and natural systems.” The mechanism is important to deal with impacts of climate change specially for in favour of developing countries and poor countries, sometimes, they may not answer the impact of events immediately because of the financial conditions. Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts was established at the 19th Conference of the Parties meeting of the UNFCCC in 2013 in Warsaw, Poland.At COP20 which was held in Lima, Peru this mechanism known as ‘Warsaw International Mechanism’ was accepted, however, implementation is different for Paris Agreement. Under Paris Agreement this mechanism took place as a category, because, it was a subcategory of adaption. So, it can be accept as a development for Paris Agreement.
E) Support (Article 9/3) According to Article 9/3, ‘As part of a global effort, developed country Parties should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels, noting the significant role of public funds, through a variety of actions, including supporting country-driven strategies, and taking into account the needs and priorities of developing country Parties. Such mobilization of climate finance should represent a progression beyond previous efforts.’ So, developed countries will help developing or poor countries in the field of finance, mitigation and adaption. Financial help covers $100 billion USD annually by 2020 to build capacity and cleaner energy sources. Developed countries were obligated to submit quantitative and qualitative information for future supports, however, other countries were not which means voluntarily to do this. According to wording it is a collective goal, however, it can be seen that main responsibility in on developed countries.
According to Article 21, ‘this Agreement shall enter into force on the thirtieth day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 percent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession.’ The Agreement will be opened for signatures for a year on 22 April 2016 until 21 April 2017 at the UN in New York. After the adoption into national law, Paris Agreement’s core part will be legally binding in international arena due to be a legal instrument which is hard law but Paris Agreement has also non-binding provisions such as INDCs or commitments. These INDCs are likely to be an external documents of the core part of Paris Agreement.
The examination of INDCs is important for Paris Agreement. 195 counties agreed to submit their target in order to reach the main of UNFCCC which is Article 2; ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’ at the COP20 in Lima in 2014. Parties will consider their national capacities in order to reach the main aim, while the submission of these targets. These targets which is INDCs is a good instance of basic principle which is common but differentiated responsibilities of environmental law. This principle emphasised by Christopher as "not all countries should contribute equally … [and] some nations … [should be charged] with carrying a greater burden than others." This commitments depend on the level of development of countries. Under Paris Agreement, there are no criteria which has specified level or exclusive subject related to climate change and every INDCs need to illustrate how the country will achieve the target of keeping temperature rise to well below 2 degrees in light of their national capacities. This idea directly relates to the concept of the “best available techniques.” The “best available techniques” refers to the capacity of the country to achieve environmental protection goals through research, technology and the creation of appropriate infrastructure. As mentioned above 161 INDCs were submitted for Paris Agreement to this time, and the reflection of this principle in Paris Agreement is a significance aspect. Thus, Agreement will be more realistic to reach the main aim, because, all parties can effectively take action against climate change in this way. But as mentioned above, INDCs are not legally binding, they are a part of legally binding Paris Agreement. However, if Paris Agreement is legally binding, after the ratification, INDCs may have a legal effect at national level if they are inadequate or unqualified, because the main aim of Paris Agreement will be accomplished with these individual INDCs. Hence, national courts might force the governments to take sufficient actions, which is accordance with qualified INDCs, about climate change with its decisions. One of aspect of INCDs which serve to be transparency under Paris Agreement, is to have information, that shows country acts according to plans or not, for bringing a case. So they can be a evidence of a case.
The best example of this is the case of Urgenda Foundation v the State of the Netherlands and this case has opened a new chapter in climate change litigation. Very first time, national court has legally required a State to take necessary measures against climate change.
The Urgenda (the name combines the word ‘urgent’ and ‘agenda’) Foundation, which is a non-governmental organisation, presented 900 individuals and brought a case against the Dutch government. They claimed that the Dutch Government breached Article 2 (Right to life) and Article 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR), Article 21 of the Dutch Constitution and Article 6:162 of the Dutch Civil Code. Claiming among these claims Urgenda claimed “the State is in breach of its duty of care for taking insufficient measures to prevent dangerous climate change.” Urgenda also raises, in the summon 4.2.2., the “no harm” principle. Trail Smelter case and the landmark decision of the ICJ in the Corfu Channel Case were used to support this argument. They also argued that the aim of UNFCCC and its conventions should be followed by the government.
Based on these legal grounds Urgenda requested from the court; declare that global warming of more than 2°C will lead to a violation of fundamental human rights worldwide; that the Netherlands is acting unlawfully by not contributing its proportional share to preventing more than 2°C warming; and, to order the Netherlands to reduce CO2 emissions by 40% by 2020 below 1990 levels. In other words, they claimed that the Dutch government should take more action to combat climate change in keeping with its obligations under the UNFCCC.
On 24 June 2015, in the light of duty of care, The Hague District Court decided that; current policies and actions of the Dutch government are insufficient and cannot be justified on the basis of excessive cost or technical impossibility. The Dutch government need to embrace sufficient policies to reduce the emission at least a 25% as compared to 1990 levels by 2020 – as opposed to the current foreseen reduction of 17-20%. It is coherent with its obligations under UNFCCC which insists that the reduction in greenhouse gas emissions by 2020 should be 25 to 40% to reach essential limit of global temperatures to an increase of no more than 2 degrees. Another significant point of the case is Urgenda to act on behalf of future generations of Dutch citizens, and rejected the possibility that it could act on behalf of current or future generations of citizens of countries other than the Netherlands. When the court making this decision started off the aim of Urgenda which is sustainable society and when the interpretation of this context, the court cited 1987 report of the World Commission on Environment and Development of the United Nations (UN), also known as the Brundtland Report for the definition of sustainable development. So, the Dutch government must take actions to mitigate climate change on behalf of its people and globe instantly. Finally, the Court established an extensive duty of care on the part of the Dutch government, which calls for the implementation of ambitious GHG mitigation policies in order to avoid negligence through endangerment under Section 6:162. The Dutch government has intimated that it would file an appeal against Urgenda in the Appeals Court rather than the Supreme Court as it wants to ‘challenge the facts upon which the verdict is based’.
The court decided regardless of any international agreement and no harm principle of international law, because do not have a binding force toward citizens (private individuals and legal persons, however, the court cited international climate change agreements such as Kyoto Protocol, UNFCCC, the European Convention on Human Rights, the Dutch Constitution, and domestic Dutch laws and no harm principle under international law. The court combined these laws into duty of care in relation to climate change and build it decisions as the State violated the principle of duty of care. In determining the scope of the duty of care of the State, the court will therefore take account of: (1) the nature and extent of climate change damage; (2) the foreseeability of such damage; (3) the chance that hazardous climate change will occur; (4) the nature of the acts or omissions of the State; (5) the onerousness of taking precautionary measures; and (6) the extent of the discretionary powers of the State, with due regard to public law principles.
In the sense of duty of care, the decision of Urgenda is compatible with Oslo Principles on Global Climate Change Obligations, because, when defining the duty of care under domestic law and weighing facts that evidence breach of it, the Hague district court decision embodies the Oslo Principle’s vision of “a network of intersecting sources” of climate change law. Oslo Principle stated;
“No single source of law requires States and enterprises to [unilaterally fight climate change]. Rather, a network of intersecting sources provides States and enterprises with obligations to respond urgently and effectively to climate change in a manner that respects, protects, and fulfils the basic dignity and human rights of the world’s people and the safety and integrity of the biosphere.”
In other words, regardless of the existing climate change conventions and environmental law, failure to implement measures to avert the most serious consequences equate to a breach of human rights, and of tort and environmental law.
The court also used the Dutch mitigation goals as a evidence of the government’s commitment to mitigate climate change. Approximately half the decision (25 out of 58 pages) comprised of an account of the international law and EU law pertaining to climate change. It is acceptable because, Netherlands has a responsibility under the agreements, conventions and decisions which were signature such as UNFCCC, the Kyoto Protocol and the COP decisions which are Bali Action Plan (COP13, 2007), Copenhagen Accord (COP15, 2009), Cancun Agreements (COP16, 2010) and Durban Decision (COP17, 2011. In other words, if the Dutch government fail its responsibilities under the Paris Agreement, court can force the Dutch government again and the Dutch government need to follow adequate and efficient INDCs to mitigate the climate change. It is obvious that the court wanted to show its decision all the world by publishing English version of verdict, because it not usual that published the translate version of verdict by national Dutch Court. Because this situation can be applied to other states which does not follow its INDCs. Even, a Belgian NGO had filed a suit based on a similar premise against Belgium, and another is anticipated in Norway.
V.CONCLUSION
Paris Agreement is significant, because it is the first attempt which is cover all nations. However, parties need to follow their INDCs to reach the main aim and take more actions to accomplish Paris Agreement and to be different from the Kyoto Protocol. Because of Urgenda parties will take climate change commitments or INDCs, which will be submitted every five years, under the Paris Convention seriously. Because after the Urgenda, there is new pressure mechanism which is national courts in order to take necessary measures. According to the court, there is an adequate scientific consensus the causes and effects of climate change and the court has accepted that the Dutch government has the responsibility to take action against climate change because they also accepted this consensus by signing and ratifying international agreements. Other countries have the same legal duty of care against their own citizens like the Netherlands. Thus, parties tie with commitments, principles underlying the UN Climate Convention, so, every signatory party of the convention should take actions which is consistent with the Convention against climate change within its territory to reach the global aim. If they do not take sufficient actions or follow the Paris Agreement, their citizens might bring a suit against the governments in the light of Urgenda.
There are no doubt the academic, political and judicial discussions following Urgenda will increase the sufficiency of INDCs and next UNFCCC decisions. Besides, the Executive Secretary of the UNFCCC highlighted the crucial role of domestic law in the 2015 agreement by declaring that "nothing is going to be agreed internationally until enough is legislated domestically". There is no doubt that, national courts will help this issue. The decision of The Hague District Court is undoubtedly an interesting one, because it demonstrates how international law may influence domestic law and policy, even if international obligations are not given full effect in national law. (significant-international) parties will be responsible their targets under Paris agreement. Also it reflection of Oslo Principle.