Climate change and international law - Opinion - Al-Ahram Weekly - Ahram Online

Climate change is the defining global crisis of the world today. Recent humanitarian crises such as droughts, famines, floods, heat waves, natural disasters and sea-level rise, which are either attributable to or exacerbated by climate change, highlight the urgent need for a swift and resolute international response.

Such a response should include the collective efforts of all states and their readiness to carry out their commitments in accordance with international treaties and legal principles.

In view of the importance of the legal aspects relating to climate change, the UN International Law Commission, of which I am a member, recently examined a number of these issues such as sea-level rise, the protection of the environment in armed conflicts, and the protection of persons in the event of disasters.

During the last session of the commission, I seized the opportunity to declare to the meeting that owing to the importance of the COP27 Climate Conference in Sharm El-Sheikh in November and the legal issues it will address, Egypt is inviting all members of the commission as international legal experts to participate in this historic conference and contribute to its adoption of effective measures to overcome climate change.

In an assessment of the International Climate Treaty regime, the first major international treaty to directly address the problem was the UN Framework Convention on Climate Change (UNFCCC) signed in 1992 and entering into force in 1994. The convention commits states to report on national greenhouse-gas emissions, to publicise domestic and regional mitigation and adaptation programmes, to share emission-reduction research and technology and to coordinate adaptation efforts.

It further commits the developed states to adopt policies that limit greenhouse-gas emissions and to provide financial support to the developing countries that is necessary to attain compliance.

Although the convention has met some criticism for the vagueness of its mandates, it may be considered to be a major achievement since it confirms the application of international law to climate change, creates structures to facilitate future international climate action, affirms the importance of both international and domestic policy reform, and serves as a springboard for future treaties with stronger commitments.

Subsequently, the conference of Parties (COP) in 2015 adopted the Paris Agreement under the auspices of the UNFCCC. The agreement was intended to serve as a long-term framework for coordinating climate action with the aim of facilitating climate mitigation, adaptation, and transnational financial assistance.

It called on each party to unilaterally set its own national commitments including the reduction of greenhouse-gas emissions and the development of renewable energy. It further set as a goal a limit to the increase of world temperature so as not to exceed 1.5 degrees Celsius. This would be a responsibility shared by all states, while taking into account the differentiation between developed and developing states.

The most recent development in the UNFCCC regime was the Glasgow Climate Pact adopted in 2021 and counting nearly 200 signatories. It called upon the parties to take decisive action to reduce several specifically enumerated high-emissions activities, while stipulating explicit targets and prescribing ambitious timelines. It further expanded the universe of the participants by garnering commitments from civil society actors and private sector entities.

However, most of the Glasgow provisions, like many previous COP meetings, fall short of binding commitments. Moreover, the drafting of the final communique of the Glasgow Conference contained weaker language than previous versions as a result of the pressure of some developed states. For their part, the latter expressed some disappointment over the absence in the communique of a reference to the financial means of compensation for the losses caused by climate change in the developing world.

The coming COP27 Climate Conference will therefore be a landmark moment, providing a first look at the parties' progress towards implementing their Glasgow pledges.

While treaties may be the main source of the international climate law regime, there are also rules of customary international law that are applicable in the field. Among these we may mention the "no harm principle," according to which states must prevent their activities from causing harm to other states, the principle of sustainable development, the precautionary principle, the polluter-pays principle, and the principle of cooperation, an emergent concept in international environmental law.

Moreover, in recognition of the dangerous consequences of climate change, a number of international law experts have recently suggested amending the Rome Statute of the International Criminal Court and adding the crime against the environment to the other crimes over which the Court has jurisdiction. A number of states have already begun supporting that proposal.

A further important environmental development took place in July this year when the UN General Assembly adopted a resolution declaring for the first time that the right to a healthy environment is a human right and calling upon states and non-state actors to take steps to protect that right.

Despite the international community's ongoing efforts to respond to the threat of climate change, there is an urgent need for states to adopt new multilateral conventions and amend existing ones in order to coordinate climate-mitigation and adaptation efforts.

Thus, a Convention on Sea-Level Rise should aim at the protection of persons displaced by climate-induced sea-level rise, which has become a real threat to many islands and coastal states. A second climate change-related threat that has begun to materialise is desertification and water scarcity. Therefore, the existing Convention on Desertification should be amended or supplemented by an additional one, so as to provide effective protection to persons affected by water scarcity.

We may conclude by reaffirming the importance of the coming COP27 Climate Conference under Egyptian chairmanship and its vital role in enhancing the international community's collective efforts to overcome the threat of climate change.

Admittedly the conference will meet at a time when the world is facing serious political, economic, social and financial problems. However, that should not deter the participants from reaching a common vision in response to climate change. Thus, the COP27 is an opportunity to assess what has been achieved so far in the field, supplement it, and build upon it with new initiatives, agreements, and legal frameworks for cooperation, coordination, and innovation.

The success of the participants in achieving the ultimate goal of climate justice is enhanced by the increasing support of civil society and the private sector in a shared vision on protecting the environment and responding to climate change. All these collective efforts should be praised.

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The writer is a former assistant foreign minister and a member of the UN International Law Commission.

*A version of this article appears in print in the 27 October, 2022 edition of Al-Ahram Weekly.

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