By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is The African ADR Practitioner of the Year 2022, The African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*
The concept of low carbon development has its roots in the United Nations Framework Convention on Climate Change (UNFCCC) adopted in 1992. The objective of the UNFCCC is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. According to the UNFCCC, 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. The UNFCC further provides that policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.
The UNFCCC therefore envisions low carbon development through states pursuing economic development while integrating climate change mitigation and adaptation measures in their national development programmes. It further stipulates several commitments by state parties which are vital in realizing low carbon development such as promoting and cooperating in the development; application and diffusion, including transfer, of technologies; practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases; promoting sustainable management, and promoting and cooperating in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases; cooperating in preparing for adaptation to the impacts of climate change and taking climate change considerations into account, to the extent feasible, in relevant social, economic and environmental policies and actions; and employing appropriate methods, for example impact assessments towards confronting climate change. Achieving the commitments stipulated under the UNFCCC is vital in enhancing low carbon development at the global level.
Fostering low carbon development was also a major point of concern under the Kyoto Protocol to the UNFCCC which sought to operationalize the United Nations Framework Convention on Climate Change by committing industrialized countries and economies in transition to limit and reduce greenhouse gases emissions in accordance with agreed individual targets. The Protocol required these countries to implement measures and policies geared towards low carbon development by achieving their emission limitation and reduction commitments. These measures include enhancement of energy efficiency; promotion of sustainable forms of agriculture in light of climate change considerations; research on, and promotion, development and increased use of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies and cooperation between states to enhance the individual and combined effectiveness of their policies and measures adopted towards confronting climate change.
The Kyoto Protocol also required member states to formulate, implement, publish and regularly update national and, where appropriate, regional programmes containing measures to mitigate climate change and measures to facilitate adequate adaptation to climate change. Among the salient provisions of the Kyoto Protocol geared towards fostering low carbon development is the idea of clean development mechanisms. According to the Protocol, the purpose of a clean development mechanism is to assist parties in achieving Sustainable Development and in contributing to the ultimate objective of the UNFCCC by achieving compliance with their quantified emission limitation and reduction commitments.
The Clean Development Mechanism (CDM) was aimed at enabling parties to benefit from project activities resulting in certified emission reductions and using the certified emission reductions accruing from such project activities to contribute to compliance with part of their quantified emission limitation and reduction commitments. The Clean Development Mechanism set out under the Kyoto Protocol was vital in enhancing low carbon development by stimulating Sustainable Development and emission reductions, while giving industrialized countries some flexibility in how they meet their emission reduction or limitation targets. The Kyoto Protocol established the first global, environmental investment and credit scheme of its kind, providing a standardized instrument for offsetting emissions, known as certified emission reductions.
The Kyoto Protocol was vital in fostering low carbon development at the global level until the adoption of the Paris Agreement. The Paris Agreement was adopted to strengthen the global response to the threat of climate change, in the context of Sustainable Development and efforts to eradicate poverty. It seeks to achieve this goal through measures such as holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change; increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production and making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
A key provision of the Paris Agreement aimed at fostering low carbon development is the requirement of state parties to communicate and maintain successive Nationally Determined Contributions (NDCs) that they intend to achieve. The Paris Agreement further requires parties to pursue domestic mitigation measures, with the aim of achieving the objectives of such NDCs. Nationally Determined Contributions envisaged under the Paris Agreement are vital in combating climate change and unleashing national actions and investments towards a low carbon and sustainable future. States through their NDCs have set out ambitious targets towards reducing greenhouse gas emissions through measures such as investments in renewable energy, adopting sustainable agricultural practices and fostering green transport and infrastructure.
The Paris Agreement is therefore of utmost importance in enhancing low carbon development. There is need for developed countries which are the largest contributors to global greenhouse emissions to comply with their climate commitments under the Paris Agreement. Countries such as the United States of America (USA), which accounts for 12.74% of global greenhouse gas emissions have committed to reducing their net greenhouse gas emissions by 50-52 % below 2005 levels by the year 2030. Further, China which accounts for 27.79% of global greenhouse gas emissions has set various targets under its NDC including having CO2 emissions peak before 2030; achieving carbon neutrality before 2060 and lowering CO2 emissions per unit of GDP by over 65% from the 2005 level. It is important for developed countries to comply with their commitments under NDCs in order to foster Climate Justice.
*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.
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