Title of paper

3.2 Climate change law in the African Union and the Southern African Development Community

The Constitutive Act of the African Union provides provisions that are a clear mandate to address climate change as a matter of priority. One of the AU’s initiatives with regard to climate change is the New Partnership for Africa’s Development. NEPAD’s Climate Change and Natural Resource Management Programme focuses on three key areas: environment, water and energy. The programme aims to assist countries in integrating climate change responses with their national development processes (Ruppel, 2013: 267).
SADC does not have a specific agenda on climate change per se, though several of its provisions address climate change either directly or indirectly and the current institutional structure supports climate change related action to a certain extent. One climate change relevant instrument is the SADC Protocol on Energy. The SADC protocols are instruments through which the SADC Treaty is implemented. They have the same legal force as the treaty itself. The SADC Protocol on Energy outlines ways of cooperation in the development of energy to ensure the security and reliability of energy supply and energy cost reduction (Ruppel, 2013: 271).

3.3 Montreal Protocol

Apart from the above mentioned, there are more international law regimes relevant to climate change, such as the Montreal Protocol on Substances that deplete the Ozone layer, which is a protocol to the Vienna Convention for the Protection of the Ozone Layer.
The Montreal Protocol, introduced back in the eighties, is a series of effective steps to phase out the global production and thus consumption of ozone-depleting substances. 97% of almost 100 ozone-depleting substances (ODCs) were phased out under the Montreal Protocol. Spray-cans, for example, no longer contained chlorofluorocarbon (CFC). Thereby, the provisions of the Montreal Protocol have placed the ozone layer on a path to recovery.
Because many ozone-depleting substances are also greenhouse gases, their phasing out, under the Montreal Protocol, also helped to mitigate climate change impacts. In only a couple of years, the Montreal Protocol will have done more to climate change mitigation than the Kyoto Protocol reduction target to reduce emissions in terms of carbon dioxide. Thus, the Montreal Protocol and its successor are regarded as highly successful examples of international environmental regulatory cooperation. Kofi Annan is even quoted as saying that it is “perhaps the single most successful international agreement to date”.

4. Application of international climate change law in Namibia

In the previous paragraph, the most important UN-Conventions and other international agreements with regard to climate change were introduced, but questions remain as to how they can become applicable domestically? What needs to be done so that Namibia is obliged to conform to the objectives and obligations stated in the various environmental covenants, treaties, conventions and protocols?
Generally, it is a two-stage process until international agreements are applicable in their respective countries.
International agreements are usually negotiated at international conferences like for example COPs. The executive is responsible for entering into national agreements. The president, assisted by the cabinet, is empowered to negotiate and sign international agreements. Such power can also be delegated to any representatives of Namibia who attend these conferences and are then part of the negotiating process.
Once the document is completed, each party has to express its consent to be party to the treaty. This is done in a formalised manner. Such consent is shown by signature and subsequent ratification. The ratification is done in the respective home country. Ratification especially is of importance as this requires the national assembly to approve the international agreement. Once a prescribed number of parties have ratified an international agreement, it can come into force.
As to the application of international agreements, different approaches are taken throughout the world. According to the Namibian Constitution, a promulgation of international agreements, in order for them to become part of the law of Namibia, is not necessary. This is a very modern approach in as much as no additional steps on the national level, like a subsequent legislative act or other form of transformation, are required. International agreements become Namibian law when they come into force for Namibia. The Constitution explicitly incorporates international law and makes it part of the law of the land.

Article 144 of the Constitution provides that

“(u)nless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”

4.1 Challenges of developing countries in international climate negotiations

Although developed and developing countries act as equal partners at the various climate conferences, the evolution in international law poses some specific challenges for developing countries which lead to an imbalance between developed and developing countries in the negotiation process.
The right to development by developing countries is sometimes at odds with the need of emission reduction and protection of the environment. This is potentiated by the reluctant behaviour of developed countries to adopt far-reaching emission targets to make room for the emissions of the developing countries.
Although the knowledge of developing countries has increased in the last two decades, since climate change became a hot topic, it has not kept pace with that of developed countries. Developing countries often have poor knowledge of national costs and benefits of participation in certain agreements. They often have outdated information and suffer from poor negotiation preparation. This is often due to a lack of skilled personnel in the home ministries and agencies. Negotiators can often only participate in the COPs to the different treaties but not in the sequential steps taken in the preparatory sessions. Furthermore, the resources developing countries dedicated to climate change related issues are often low.
There is also a structural imbalance in the bargaining process. Although the developing countries negotiate together, they often do not share the same opinion. Therefore, they have difficulties in shaping a uniform position, especially when faced with a well prepared delegation from the United States or the European Union who speak with one voice. This is not just in terms of substantive positions, but also in terms of procedural and practical issues, like for example, numerous side events and sessions where English is often the only language. The changing dynamics of development in the South have also meant that developed countries might isolate a few large rapidly growing developing countries and try to reach agreements with them, while omitting the majority of poorer developing countries (see Gupta, 2011: 318 – 320).