Background

The United Nations Framework Convention on Climate Change (UNFCCC) was established to reduce GHG emissions to prevent adverse consequences of climate change. The UNFCCC was adopted at the United Nations Conference on Environment and Development, held in Rio de Janeiro in June 1992 and entered into force in March 21, 1994.²⁸ All the African Union members have ratified the UNFCCC, with the sole exception of the Sahrawi Arab Democratic Republic, which has not been recognised by the United Nations (UN) as a sovereign state.²⁹ In the preamble of the UNFCCC, all the states that have signed and ratified the framework treaty acknowledge that climate change is a factual threat and ‘common concern to humankind’.³⁰ Furthermore, the parties have obligated themselves to the stabilisation of GHG emissions to a level that will not lead to a dangerous disturbance in the climate system, in a time frame sufficient to allow ecosystems to adapt naturally and according to the principles of no harm, intergenerational equity, sustainable development, precautionary measures and common but different responsibilities. These principles are important as they guide the international climate change regime by providing a basis for

28 UNFCCC ratification status, available at:

http://unfccc.int/essential_background/convention/status_of_ratification/items/2631.php [20/03/2017].

29African Union member status, available at:

http://www.au.int/en/member_states/countryprofiles [20/03/2017]. The Convention only accepts states that are members of UN or parties to the International Court of Justice. (UNFCCC. Note 27 above. Art. 20). The Sahrawi Arab Democratic Republic has only been recognised by some countries, with majority of them African Union member states. The Sahrawi Arab Democratic Republic is better known as a part of Western Sahara.

30 UNFCCC. Note 27 above. 1^st paragraph of the preamble.

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climate change negotiations as well as tools of interpretation for courts in case of climate change litigation. These principles are widely used to guide national environmental and climate change policies.

The no harm principle is referenced in the preamble of the UNFCCC but not in its Article 3, which establishes the obligations. However, preambles are recognised under international customary law as part of the treaty for purposes of interpretation.³¹ Furthermore, the no harm principle is considered as customary rule, and hence should apply in all international conduct.³² The no harm principle prohibits any state from causing significant transboundary damage and it requires every state of origin to take adequate measures to control and reduce such damage in advance.³³ In the context of climate change and human rights, this should mean that any emitting country should limit their emissions to a level that does not lead to adverse effects of climate change resulting in human rights violations elsewhere. Some scholars argue that it is possible to establish such extraterritorial responsibilities between major emitting countries and countries suffering from the adverse impacts.³⁴

The UNFCCC acknowledges the risk of climate change to future generations by requesting parties to protect the climate system ‘for the benefit of present and future generations’.³⁵This principle is also known as an intergenerational equity principle, and it is central to the concept of sustainable development. Generally, however, intergenerational equity is not recognised as a binding legal rule in international environment law.³⁶ However, some national constitutions include this principle making it more enforceable.³⁷

The principle of sustainable development is widely referred in international law, but the exact definition of it seems to be unclear.³⁸ In December 2015, the parties to the UNFCCC adopted

31 Mayer, B. (2016). Human Rights in the Paris Agreement. Climate Law. p.113.

32 Caddick, H, ed. (2014). Achieving Justice and Human Rights in an Era of Climate Disruption. London.

International Bar Association. p. 45.

33 Beyerlin, U. and Marauhn, T. (2011). International Environmental Law. Kindle Edition. Oxford: Hart Publishing. pp. 40-41.

34 Knox, J. (2014). Climate ethics and human rights. Journal of Human Rights and the Environment (5). pp. 32-33. Voigt, C. (2008). States Responsibility for Climate Change Damage. Nordic Journal of International Law.

(77). pp. 7-9 Burkett, M. (2009). Climate Reparations. Melbourne Journal of International Law. (10). pp. 9 and 22. 35 UNFCCC. Note 27 above. Art. 3.1.

36 Anstee-Wedderburn, J. (2004). Giving a Voice to Future Generations. Australian Journal of Environmental Law. 1 (1). pp. 39-42.

37 Constitution of South Africa. Note 25 above. Section 24.

38 Humphreys. Note 8 above. pp. 73-74.Caddick. Note 32 above. p. 66.

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the Paris Agreement, which entered into force on 4 November 2016.³⁹ The Paris Agreement is a global effort by the parties to fight against human-induced climate change after 2020 and to stabilize global mean temperature rise ‘well below 2°C’.⁴⁰ The commitments under the Paris Agreement are to be implemented in the context of sustainable development.⁴¹ The International Law Association has clarified the meaning of sustainable development in its Declaration of Legal Principles Relating to Climate Change as a requirement which balances economic and social development with the protection of the climate system. This declaration also supports the realisation of the right to adequate living standard and equitable distribution of benefits of all human beings. It further explains that where economic and social development may result in significant emission or environmental damage, the states have the duty to prevent such damage, or at least to employ due diligence in efforts to mitigate such impacts.⁴² However, the principle lacks effect as a legal rule and should rather be seen as a political goal in the context of the UNFCCC.⁴³ Again some national constitutions include this principle which makes it more enforceable.⁴⁴

The principle of precautionary measure, also called the precautionary approach, is similar to sustainable development, in that it is widely referenced in international law, but its exact definition is disputed.⁴⁵ Article 3.3 of the UNFCCC states that precautionary measure should be applied to prevent or to minimise the adverse effects of climate change.⁴⁶ The lack of full scientific certainty should not be used as a motivation for postponing such action and the policies and measures implemented should take into consideration the different socioeconomic contexts of the parties.⁴⁷ Therefore, the concept of precautionary measure provides the basis for early action to address climate change damage in cases where there is scientific uncertainty regarding these damages or threats. In the context of human rights, this principle should require action to prevent human rights violations due to the impacts of climate change, even in cases where the exact impacts are unknown. However, the

39 On 5^th of October 2016, 73 of the 197 parties to the treaty, accounting for 56.87 % of the world’s GHG emissions, deposited their instruments of ratification, which lead to automatic entry into force 30 days later. In February 2017, 129 parties had ratified the agreement. Ratification status available at:

http://unfccc.int/paris_agreement/items/9444.php.

40 Paris Agreement. Note 1 above. Art. 2 and Art. 21.

41 Paris Agreement. Note 1 above. Art. 2, 3, 5-8.

42 The International Law Association, Declaration of Legal Principles Relating to Climate Change. April 2014.

Resolution 2/2014.Art 3.3 and 3.5.

43 Beyerlin. Note 33 above ,p. 78.

44 Constitution of South Africa. Note 25 above. Section 24.

45 Rajamani. Note 12 above. p 432.

46 UNFCCC. Note 27above. Art. 3.3.

47 Ibid. Art. 3.3.

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precautionary approach is an emerging rule in international environmental law and uncertainties remain regarding its legal effect. There are no examples in the treaty which infer that this principle imposes a duty of action on states. Furthermore, the international courts have shown reluctance to apply this principle.⁴⁸

Common but differentiated responsibilities is a principle of international environmental law, which has shaped the developed – developing country relations especially in terms of cooperation, solidarity and mutual aid.⁴⁹ The principle was first referred as Principle 7 in 1992 in the Rio Declaration on Environment and Development.⁵⁰ Both the 1992 UNFCCC and the thereto related 1997 Kyoto Protocol explicitly refer to common but differentiated responsibilities.⁵¹ In terms of climate change this principle means that mitigating climate change and adapting to it is a common global responsibility. However, due to historically different contributions of GHG emitted, the extent of responsibilities is also different.

Nevertheless, this principle does not create a legal obligation in itself, but it should be used as legal and philosophical basis to interpret existing obligations.⁵² This means that the principle requires a consideration of differential treatment between the parties in applying the obligations of the UNFCCC.

In 1997 the parties to the UNFCCC adopted the Kyoto Protocol. For the first time in the history of environmental law the Kyoto Protocol applied the common but differentiated responsibilities principle in its most extensive form, by imposing GHG emission reduction obligations only on industrialised countries (the so-called annex I countries) and further requesting these countries to ‘promote, facilitate and finance’ relevant technology and know-how transfer to developing countries (so-called non-annex I countries).⁵³ The Paris Agreement also pursues the principle of common but differentiated responsibilities. However, it ends the era of dividing countries into industrialised and non-industrialised states, as the Paris Agreement requires climate action by all parties based on their Intended Nationally

48 Beyerlin. Note 33 above. pp.50-51.

49 Ibid. p. 61.

50 Rio Declaration on Environment and Development. Rio de Janeiro. 3-14 June, 1992. (Rio Declaration).

51 UNFCCC. Note 27 above. Art 3.1 and 4. Kyoto Protocol. Note 16 above. Art. 10.

52 Rajamani, L. (2000). The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime. Review of European, Comparative & International Environmental Law. 9 (2) pp. 124. Beyerlin. Note 33 above. p. 70.

53 Kyoto Protocol. Note 16 above. Art. 3, 10 and 28.

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Determined Contributions.⁵⁴ Voigt and Ferreira describe differentiation in the Paris Agreement as ‘amalgamation of country specific responsibilities, capabilities and circumstances’ which differ in regards to each climate action: mitigation, adaptation, support and transparency.⁵⁵