By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The main legal instruments on regulation of carbon emissions that guides countries in their efforts towards reduction of carbon emissions include United Nations Framework Convention on Climate Change (UNFCCC), Vienna Convention for the Protection of the Ozone Layer (1985), Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 and the Kigali Amendment of 2016 and Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997).
The United Nations Framework Convention on Climate Change 1992
The United Nations Framework on Climate Change Convention (UNFCCC) was adopted in 1992, entered into force on 21 March 1994 and its ultimate objective and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Notably, such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.
In implementing the UNFCCC, the Parties are to be guided, inter alia, by the following principles: Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities; specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration; Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects; Parties have a right to, and should, promote sustainable development; and Parties should cooperate to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties, particularly developing country Parties, thus enabling them better to address the problems of climate change.
These principles are an acknowledgement that any activities or actions geared towards climate change mitigation including the efforts in the race to zero emissions must take account of the differences between developed countries and developing regions such as Africa. It also follows that African countries must be allowed to come up with tailor made responses to carbon emissions, based on the current challenges and needs. Notably, as they are the source of most past and current greenhouse gas emissions, industrialized countries are expected to do the most to cut emissions on home ground.
Vienna Convention for the Protection of the Ozone Layer (1985)
The Vienna Convention is a framework convention that lays out principles agreed upon by many parties which does not, however, require countries to take control actions to protect the ozone layer unlike the Montreal Protocol. The Convention requires Parties to take appropriate measures in accordance with the provisions of the Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.
The Vienna Convention also requires that the Parties should co-operate, consistent with their national laws, regulations and practices and taking into account in particular the needs of the developing countries, in promoting, directly or through competent international bodies, the development and transfer of technology and knowledge. Such co-operation should be carried out particularly through: Facilitation of the acquisition of alternative technologies by other Parties; Provision of information on alternative technologies and equipment, and supply of special manuals or guides to them; The supply of necessary equipment and facilities for research and systematic observations; and appropriate training of scientific and technical personnel.
Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 and the Kigali Amendment of 2016
The 1987 Montreal Protocol is a global agreement to protect the Earth’s ozone layer though a phase-out plan which includes both the production and consumption of ozone-depleting substances, which was signed in 1987 and entered into force in 1989. The Protocol has been termed as a success especially in reduction and elimination of anthropogenic emissions of ozone depleting substances (ODSs), primarily responsible for stratospheric ozone depletion since around the 1960s. The nearly 100 man-made chemicals referred to as ozone depleting substances (ODS), when released to the atmosphere, damage the stratospheric ozone layer, Earth’s protective shield that protects humans and the environment from harmful levels of ultraviolet radiation from the sun.
In recognition of the special situation of developing countries, Montreal Protocol provides that ‘the Parties undertook to facilitate access to environmentally safe alternative substances and technology for Parties that are developing countries and assist them to make expeditious use of such alternatives’. In addition, ‘the Parties undertook to facilitate bilaterally or multilaterally the provision of subsidies, aid, credits, guarantees or insurance programmes to Parties that are developing countries for the use of alternative technology and for substitute products’.
The Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer which was adopted in Kigali, Rwanda on 15 October 2016 and came into force 1st January 2019 (provided it would have been ratified by at least 20 parties) at the Twenty-Eighth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, held in Kigali from 10 to 15 October 2016. The Kigali Amendment to the Montreal protocol is expected to reduce the projected production and consumption of hydrofluorocarbons (HFCs) by more than 80 per cent over the next 30 years. The Kigali Amendment is also expected to avoid up to 0.4°C of global warming this century while continuing to protect the ozone layer, thus substantively contributing to the goals of the Paris Agreement.
While hydrofluorocarbons (HFCs), given their zero impact on the depletion of the ozone layer, are currently used as replacements of hydrochlorofluorocarbons (HCFCs) and chlorofluorocarbons (CFCs), they are extremely potent greenhouse gases with global warming potentials that can be many times higher than carbon dioxide, hence the need to phase them out in efforts towards climate change mitigation. Key elements of the Kigali Amendment include: Innovative and flexible structure; Ambitious phasedown schedule; Incentive for early action; Broad participation; Enforcement and accountability; and Multiple opportunities to increase ambition.
Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997)
The Kyoto Protocol was adopted at the third session of the Conference of the Parties (COP 3) to the 1992 United Nations Framework Convention on Climate Change (“the Convention”), held at Kyoto (Japan) from 1 to 11 December 1997. It applies the principle of common but differentiated responsibilities and sets binding targets for reducing greenhouse gas emissions for industrialized countries, recognizing them as those primarily responsible for the high levels of emissions currently present in the atmosphere.
*This article is an extract from the Article: “The Race to Zero Emissions from an African Perspective,” (2021) Journal of Conflict Management and Sustainable Development Volume 7(3), p. 1 by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “The Race to Zero Emissions from an African Perspective,” (2021) Journal of Conflict Management and Sustainable Development, 7(3) p. 1.
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