Title of paper

3. International climate change law

The international legal climate change regime is a product of international law which has been developed over the past few decades.
There are different sources of international law.

This table depicts the source of law and their most relevant international agreements with regard to climate change:

• 
  United Nations Framework Convention on Climate Change (UNFCCC)
  
• 
  United Nations Convention on Biological Biodiversity (CBD)
  
• 
  United Nations Convention to Combat Desertification (UNCCD)
  

• 
  New Partnership for Africa’s Development (NEPAD)
  
• 
  AU Climate Change Policy
  

• 
  SADC Protocol on Energy
  

3.1 UN-Conventions

The UN-Charter, the constituent treaty of the United Nations, by which all members are bound, forms the legal basis for its climate related conventions.
The most relevant United Nations agreements relating to climate change are:

• 
  United Nations Framework Convention on Climate Change (UNFCCC)
  
• 
  United Nations Convention on Biological Diversity (CBD)
  
• 
  United Nations Convention to Combat Desertification (UNCCD)
  

The most famous of the three UN-Conventions is the United Nations Framework Convention on Climate Change. The UNFCCC, as well as the two other conventions, were negotiated at the United Nations Conference on Environment and Development (UNCED), better known as the Earth Summit, held in Rio de Janeiro in 1992. The UNFCCC came into force in 1994. Currently, there are 165 signatories to the UNFCCC, whereof 50 states ratified the treaty.

The objective of the treaty is

“to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”

It is important to remember that the UNFCCC itself sets no binding limits on greenhouse gas emissions and contains no enforcement mechanisms. The UNFCCC rather provides only a framework for negotiating specific international treaties called protocols. One of these protocols is the so-called Kyoto Protocol which came into force in 2005 and shares the objectives and the institutions of the UNFCCC. It is the Kyoto Protocol that establishes legally binding obligations for developed countries to reduce their greenhouse gas emissions and it sets emission targets for developed countries.
Unfortunately, since the First World Conference on Climate Change 1979, followed by the establishment of the Intergovernmental Panel on Climate Change (IPCC) in 1988, the enforcement of the UNFCCC, the adaptation of the Kyoto Protocol, and subsequent Conference of Parties meetings, the parties involved still have difficulties in reaching consensus on climate change issues (Ruppel, 2009: 101).
The United Nations Convention on Biological Diversity (CBD) has three main objectives:

• 
  The conservation of biological diversity.
  
• 
  The sustainable use of the components of biological diversity.
  
• 
  The fair and equitable sharing of benefits arising from the utilisation of genetic resources.
  

Climate change and biodiversity are closely connected. Biodiversity is affected by climate change, but biodiversity also makes a contribution to climate change adaptation and mitigation. Consequently, conserving and sustainably managing biodiversity is critical in addressing climate change (Ruppel, 2013: 293).

The United Nations Convention to Combat Desertification (UNCCD) is of particular interest to African countries. Desertification is land degradation in drylands, resulting from various factors, including climatic variations. The understanding of the linkage of land and soil to climate change is supposed to be an incentive for developing countries to establish adaptation and mitigation scenarios.
Subsidiary bodies established under the regime, such as the Subsidiary Body on Science and Technological Advice, the Subsidiary Body on Implementation, the Executive Board of the Clean Development Mechanism and several such other bodies, are continuously administering the implementation of the climate change agreements through the developments of definitions, elaboration of concepts and subsidiary rules (Gupta, 2011: 309).

3.1.1 COP & MOP

The Conference of the Parties (COP) refers to the parties to the UN-Conventions.

The Meeting of the Parties (MOP) refers to the parties to a protocol (for example the Kyoto Protocol).

The Conference of the Parties can serve as the Meeting of the Parties, and when this occurs, it is known as the COP/MOP. This structure is intended to reduce costs and streamline management of the processes.
The Conference of the Parties to the UNFCCC meets annually while the Conference of the Parties to the UNCCD meets biannually in another country. Windhoek hosted the COP to the UNCCD in 2013. It was the largest international conference that has ever taken place in Namibia.
As to the Conference of the Parties to the UNFCCC, the parties have met annually since 1995 to assess progress in dealing with climate change. As from 2005, the COPs have also served as the Meetings of the Parties of the Kyoto Protocol. Several far-reaching decisions were taken in the past by the annual Conference of the Parties and the Meeting of the Parties to the Kyoto Protocol.
The outcome of COP 16 in Cancún was a voluntary pledge made by 76 developed and developing countries to control their emissions of greenhouse gases. At the Doha climate change talks of 2012, the COP 18, the parties to the UNFCCC agreed to a timetable for a global agreement which will include all countries. In 2011, the South African City of Durban was the host of the global climate negotiations.

Can a member state that is a party to the UNFCCC but not to the Kyoto Protocol, actually participate in the COP? Also, is it possible that a country is only a party to the UNFCCC and not to the Kyoto Protocol, though the binding emission targets are set out only in this protocol?

Due to the sovereignty of states, no country can be forced to be a party to any international agreement. This is also the case for each protocol. The United States for example are a party to the UNFCCC but not to the Kyoto Protocol. Nevertheless, the United States are allowed to attend conferences where the Kyoto Protocol is discussed. However, parties to the convention that are not parties to the protocol can only participate as observers.