Climate Justice in International Law

UN Framework Convention on Climate Change
The case for climate justice was formally recognised over 25 years ago in the UN Framework Convention on Climate Change (UNFCCC). This landmark Convention was signed at the Rio de Janeiro “Earth Summit” in 1992 with the ultimate objective of “stabilization of greenhouse gas concentrations in the atmosphere.”

The first of the UNFCCC “Principles” stipulates that countries “should protect the climate system…….on the basis of equity and in accordance with their common but differentiated responsibilities.” This Principle would be observed by calling on 37 of the richest countries (plus the European Union) to take the lead in decisive cuts in emissions, allowing space within the carbon budget for poorer countries to exercise their right to development.

The richer group also committed to providing finance and technology to poorer countries, both for adaptation to the damaging effects of climate change and for the transition to a low carbon economy.

This key equity principle of common but differentiated responsibilities has been dutifully restated in the two subsequent international agreements forged within the UNFCCC, the Kyoto Protocol (1997) and the Paris Climate Agreement (2015). However, its tenets have been chipped away over the long years of negotiations dominated by the large delegations assembled by major economic powers. Poorer countries feel that recognition of the case for climate justice has been grudging and inadequate.

The US and other rich countries deny historic responsibility for global warming on grounds that the science emerged only recently. However, this argument overlooks the long years of denial of peer-reviewed science that, until very recently, has pervaded even the upper echelons of US business and government.

Kyoto Protocol
The Kyoto Protocol was the first global legal framework for implementing cuts in greenhouse gas emissions. It was negotiated in 1997 and eventually came into force in 2005.

Historic 1997 footage of US President Clinton – announcing the successful outcome of climate negotiations in Kyoto. Despite his enthusiasm, the US Congress never ratified the Protocol.

Consistent with the climate justice principles of the parent Convention, the Protocol established that the designated group of richer countries would be subject to legally binding targets for cutting emissions, across the first “commitment” period 1990-2012. Poorer countries would have no specific targets.

A number of factors undermined the ambitions of the Kyoto Protocol. The US refused to ratify it and allowed its own greenhouse gas emissions to increase over that period. Furthermore, the detailed rules excluded emissions from aviation and shipping, sources which have risen exponentially and which are substantially attributable to richer countries. And the outsourced manufacturing of consumer goods to China, and other regions excused from Kyoto Protocol targets, has devalued claims of success in reducing emissions by countries such as the UK.

These shortcomings allowed global emissions to mushroom by 38% over the commitment period. By 2020, the global average temperature had increased by 1.2 degrees Centigrade since pre-industrial times. The concentration of carbon dioxide in the atmosphere is now at its highest level for at least 800,000 years.

Paris Climate Agreement
Continued tension over the principle of climate justice contributed to chronic misunderstandings at the 2009 UN climate conference in Copenhagen. Negotiators were forced to reschedule the timetable for a successor to the Kyoto Protocol, eventually reaching agreement at the Paris climate conference in 2015, six years later than originally intended.

The six-year delay indicates how fundamentally the new agreement differs from its predecessor. The targets-based, legally binding rigour of the Kyoto Protocol totally unravelled.

In its place has emerged a “pledge and review” system in which every country offers its Intended Nationally Determined Contributions.  These are independent targets for cutting emissions up to 2030, according to each country’s circumstances and inclination. Even the poorest countries are required to participate, by articulating their plans for performing better than “business as usual.”

These pledges are not legally binding. And the Paris Climate Agreement fails to provide a clear roadmap for securing the $100 billion of annual climate finance promised at Copenhagen in 2009.

What Is The Paris Climate Change Deal? – explaining the historic Paris Climate Change deal and what it means for the world
from The Daily Conversation

The Paris Agreement therefore sets aside the concept of equitable division of a science-based “carbon budget”, reserving sufficient for poorer countries to grow their economies and achieve the Sustainable Development Goals.

Statistics that question such an approach are stark in their evidence of injustice. According to the Netherlands Environmental Assessment Agency, in 2018 the average US citizen was responsible for emissions of 16.0 tonnes of carbon dioxide. The comparable figure in most countries of sub-Saharan Africa was significantly less than 1.0 tonne. In China per capita emissions were 7.8 tonnes and India 1.9 tonnes.

Divorcing pledges from science has had the predictable result that they are inadequate to deliver the Agreement’s headline goal of “holding the increase in the global average temperature well below 2 degrees”.  The UN Environment Programme’s 2020 Emissions Gap Report concludes that “the world is still heading for a temperature rise in excess of 3°C this century”

The Paris climate agreement, explained – five years on, with the US rejoining
from Grist

The one consolation for climate justice in the Paris Agreement was the unexpected inclusion of a resolve “to pursue efforts to limit the temperature increase to 1.5 °C …. recognizing that this would significantly reduce the risks and impacts of climate change.” Whilst many scientists doubted the feasibility of this ambition, the subsequent 2018 report, Global Warming of 1.5C, by the Intergovernmental Panel on Climate Change has unleashed public pressure on governments to be more decisive on climate action.

It has also inspired the “net-zero” articulation of emissions targets, with many national timetables of 2050 consistent with the science of a 1.5 degree limit to warming. US President Joe Biden has not only overturned the Trump administration’s withdrawal from the Paris Agreement, but aims to join other countries in pursuing a 2050 deadline for net-zero.

Just as global warming has the greatest impact on the poorest countries, in turn they will benefit most from any acceleration in the stabilisation of greenhouse gas emissions.


more Climate Justice briefings (updated May 2021)
The Case for Climate Justice
Climate Justice Finance
Climate Displacement
Climate Litigation
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