Switzerland does not rank as one of the main emitters of greenhouse gases in the world today: According to official data reported in 2015, it is only responsible for around 0.1% of today’s global greenhouse gas emissions, which amounts to approximately 6.4 tons per capita per year.Footnote 1 In spite of this, the effects of global warming are felt to a greater degree in Switzerland than in many other countries, both in terms of the raw increase in temperature and in terms of the life-threatening ramifications of that increase. Thus, according to Proclim (Akademie der Naturwissenschaften Schweiz)/IPCC Switzerland,Footnote 2 the average annual temperature in Switzerland has, in the last 150 years, risen about twice as much as the global mean, with a global mean temperature increase of about 0.85 °C, as compared to a mean increase of 1.8 °C in Switzerland.Footnote 3 These significant rises in temperature over such a short period of time—considerably more rapid than the relatively gradual temperature changes of pre-industrial times—are suspected of causing deadly natural events, such as mudslides and landslides in mountainous areas of Switzerland.Footnote 4
Despite not being a major greenhouse gas emitter, Switzerland has reacted sensitively to the global problem of climate change. It has ratified the UNFCCC, the Kyoto Protocol, and the Paris Agreement. All of these agreements impose greater obligations and expectations on Switzerland and other developed countries than the corresponding obligations they impose on developing countries. The following three subsections review and compare the respective agreements.Footnote 5
2.1 The United Nations Framework Convention on Climate Change (UNFCCC)
2.1.1 Overview and Main Purpose
The UNFCCC was opened for signature at the 1992 Rio Conference and has been in force since 1994, with 195 parties. The UNFCCC is a framework convention, in the sense that it sets the most important guidelines but does not impose any substantive targets.
According to Art. 2 of the Convention, preventing dangerous human interference with the climate system is the aim of the UNFCCC. The primary objective is “to achieve (…) stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. 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.”
2.1.2 Main Principles
In their actions to achieve these aims, the Parties to the UNFCCC are to be guided by four main principles (Art. 3 UNFCCC).
First, the Convention states that the 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. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof” (Art. 3 para. 1 UNFCCC). This distinction between the obligations of developed countries and those of all countries in addressing the problem of climate change is an example of the principle of “common but differentiated responsibilities.”
Second, the UNFCCC incorporates a version of the precautionary principle, obligating state Parties to take “precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects” (Art. 3 para. 3 UNFCCC).Footnote 6 Significantly, Article 3 also makes clear that, where there is a threat of serious or irreversible damage, the absence of full scientific certainty should not be considered a reason to postpone the precautionary measures.
Third, according to the integration principle, “The Parties have the right to, and should, promote sustainable development. Policies and measures to protect the climate system … should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change” (Art. 3 para. 4). This principle attempts to strike a careful balance between, on the one hand, the right of countries—especially developing countries—to pursue their own economic development and, on the other hand, the expectation that these countries will take steps to ensure that this development proceeds in such a fashion that it does not impede the achievement of climate protection goals.
And fourth, the principle of cooperation states that “[t]he Parties should cooperate … to address the problems of climate change” (Art. 3 para. 5). Climate change is a global problem, and this provision recognizes that it requires a global solution, involving cooperation among all parties, with each party doing its fair share. As we shall see below, this principle gains in significance when climate change is viewed from a human rights perspective.Footnote 7
The first principle—the principle of “common but differentiated responsibilities”—is perhaps the most important of the four. The principle finds expression not only in the UNFCCC but also in the Kyoto Protocol and the Paris Agreement. And it also provides a key to understanding the substantive obligations these conventions impose on developed and developing countries, respectively.
The differing responsibilities imposed on developed and developing countries are a reflection of the fact that the former countries are the source of most past and current greenhouse gas emissions.Footnote 8 Therefore, industrialized countries are expected to contribute the most to cutting emissions on home ground, in this way taking the lead in modifying anthropogenic emissions of greenhouse gases consistent with the objective of the UNFCCC (Art. 4 para. 2 subpara. a UNFCCC). These countries are called Annex I countries, which are those belonging to the Organization for Economic Cooperation and Development (OECD), including Switzerland, as well as 12 countries considered to be “economies in transition.”
In line with this, Art. 4 of the Convention sets up a system of differentiated commitments applying to developed countries and developing countries respectively. For example, the industrialized countries listed in Annex I are required to adopt national policies to mitigate climate change by limiting greenhouse gas emissions through the protection and enhancement of greenhouse gas sinks and reservoirs (Art. 4 para. 2 subpara. a UNFCCC).Footnote 9 The aim is to individually or jointly return to their 1990 level of anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by the Montreal Protocol (Art. 4 para. 2 subpara. b UNFCCC). However, it must be noted that the Convention does not contain any information on concrete measures, nor does it include a binding definition of the reduction target (level of 1990 until the year 2000). Concrete legal implications come only with the Protocols.
According to Art. 4 para. 2 subparas. a and b UNFCCC, industrialized countries shall individually or “jointly” return to their 1990 level of anthropogenic emissions of carbon dioxide and other greenhouse gases. The concentration of greenhouse gases in the atmosphere does not depend on where they are emitted or reduced. Industrialized states may therefore implement the required measures “together with other states,” and measures can be taken where the marginal cost is the lowest. This clause has opened the Convention to criticism on the part of developing countries, as it allows the most powerful industrial states to find ways around their duties of reduction.
Annex II of the Convention deals with new financial resources. The UNFCCC directs new funds to climate change activities in developing countries as a duty of countries listed in Annex II, which is a shorter list, also including Switzerland. Thus, industrialized nations listed in Annex II agree to support climate change activities in developing countries by providing new financial support for action on climate change, above and beyond any financial assistance they already provide to these countries (Art. 4 para. 3 UNFCCC). Furthermore, a system of grants and loans has been set up through the Convention and is managed by the Global Environment Facility (Art. 21 para. 3 UNFCCC). Developing countries are to be supported with regard to costs of adapting to the adverse effects of climate change (Art. 4 para. 4 UNFCCC). And industrialized countries agree to share environmentally sound technologies and know-how with developing countries to enable the implementation of the Convention (Art. 4 para. 3, Art. 4 para. 5, Art. 4 para. 8 UNFCCC).
Despite the more stringent duties imposed on the developed countries, the UNFCCC also imposes some duties on developing countries, such as establishing inventories of anthropogenic emissions by sources and removals by sinks, and developing and implementing national/regional programs to mitigate climate change and to communicate information related to implementation (Art. 4 para. 1 subparas. a, b and j UNFCCC).Footnote 10
Such duties, however, are subject to a relationship of conditionality vis-à-vis the developed countries’ fulfillment of their duties. Art. 4 para. 7 UNFCCC states:
The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.
2.1.3 Conference of the Parties
The Conference of the Parties (COP) is the supreme body of the Convention, as provided for by Art. 7 UNFCCC. The COP is charged with the following responsibilities:
regular review of the implementation of the convention, that is, periodic examination of the Parties’ obligations (Art. 7 para. 2 let a UNFCCC);
providing and facilitating exchange of information on measures adopted by the Parties to address climate change (Art. 7 para. 2 subpara. b UNFCCC);
making recommendations on matters necessary for implementation (Art. 7 para. 2 subpara. g UNFCCC).
Ordinary COPs are to be held every year (Art. 7 para. 4 UNFCCC). All states that are Parties to the Convention are represented at COP meetings, and the admission of observers (agencies of the UN, NGOs) is also possible. Meetings of the COP are numbered in the order in which they are held. For example, “COP 13” represents the thirteenth Conference of the Parties.
The COP also has the power to adopt related legal instruments. Thus, “the Conference of the Parties may, at any ordinary session, adopt protocols to the Convention” (Art. 17 para. 1 UNFCCC). ProtocolsFootnote 11 can contain regulations concerning specific air pollutants or groups of air pollutants as well as provisions on concrete quantitative reduction targets. The most important related instruments are the Kyoto Protocol to the UNFCCC (Kyoto Protocol) and recently the Paris Agreement.
2.2 The Kyoto Protocol
The first meeting of the Conference of the Parties (COP 1) took place in Berlin in 1995. There, the Parties agreed to produce a Protocol containing quantitative measures and reduction targets. Two years later, COP 3 in Kyoto adopted a Protocol to the UNFCCC, containing legally binding reduction targets and imposing time limits on industrialized states concerning greenhouse gases (Art. 3 in conjunction with Annexes A and B Kyoto Protocol). The Protocol entered into force on 16 February 2005.
Recognizing again that developed countries are principally responsible for the current high levels of greenhouse gas emissions in the atmosphere as a result of more than 150 years of industrial activity, the Protocol places a heavier burden on developed nations under the aforementioned principle of “common but differentiated responsibilities.” The Kyoto Protocol currently has 192 Parties, including Switzerland.Footnote 12 The negotiations were difficult, and some major countries have still not become parties to the Protocol, including the United States and Canada.
2.2.2 Emission Reduction Mechanisms
Art. 3 para. 1 of the Protocol states:
The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.
States listed in UNFCCC Annex I must therefore individually or jointly ensure that they do not exceed the emission limitations listed in Annex B of the Kyoto Protocol. The industrialized states listed in UNFCCC Annex I are required to achieve different quantitative reduction targets listed in the Kyoto Protocol’s Annex B in order to achieve the aim of the Protocol.
According to Art. 2 para. 1 subpara. a of the Protocol, industrialized states must develop and implement national measures to reduce CO2 emissions, adopting policies of energy efficiency, reforestation, and sustainable agriculture, and to phase out fiscal incentives, tax exemptions, and subsidies that run counter to the aims of the UNFCCC and the Kyoto Protocol.
But the Protocol also offers additional means to meet emission reduction targets. These include joint implementation and fulfillment, the Clean Development Mechanism, and international emissions trading.
Art. 3 para. 10 and Art. 3 para. 11 of the Protocol, in conjunction with Art. 6, foresee joint implementation, allowing states listed in UNFCCC Annex I to transfer emission reduction units to other states listed in Annex I. When financing emission reductions in another state, the respective emission reduction units are attributable to their own reduction targets.
The Protocol also provides for joint fulfillment. According to Art. 3 para. 1, in conjunction with Art. 4 of the Protocol, states can meet reduction targets in groups (the sum of individual reduction targets can be met by the whole group of states), e.g., the countries of the European Union.
The Kyoto Protocol’s Clean Development Mechanism is delineated in Art. 12. It allows a country with an emission reduction or emission limitation commitment (Annex B country) to implement an emission reduction project in a developing country. Such projects can earn saleable certified emission reduction credits, which can then be counted towards meeting the Protocol’s targets.
The Clean Development Mechanism represents the first global environmental investment and credit scheme of its kind. It might involve, for example, a rural electrification project using solar panels or the installation of more energy-efficient boilers. The mechanism stimulates sustainable development and emission reductions, while giving industrialized countries some flexibility in meeting their emission reduction or limitation targets.
2.2.3 Emissions Trading
As indicated above, another major innovation of the Kyoto Protocol is emissions trading, covered under Art. 17: “The Parties included in Annex B [industrialized states] may participate in emissions trading for the purposes of fulfilling their commitments under Art. 3 [compliance with their reduction targets].”
Emissions trading allows countries that have emission units to spare—i.e., permitted emissions left unused—to sell this excess capacity to countries that are over their targets. Art. 17 rests on two main premises: (1) emissions trading is open to states subject to the commitments in Annex B; and (2) trading must be supplemental to domestic actions. Since carbon dioxide is the principal greenhouse gas, emissions trading is often referred to as the “carbon market.”
2.3 The Paris Agreement
In terms of effectiveness, the Kyoto Protocol had the advantage of a top-down prescriptive nature, as well as an implementation clause. However, in the end it proved not to be as effective as initially hoped. This is in large part due to the fact that, as noted above, it has failed to gain the support of some of the countries that contribute the most to worldwide greenhouse gas emissions.
In December 2015, the 21st Conference of the Parties to the UNFCCC adopted the “Paris Agreement,” a new collective treaty to fight anthropogenic climate change. The Agreement is an instrument linked to the UNFCCC. After 25 years of UN climate diplomacy, the Paris Agreement was the first treaty to envisage climate action by all nations. Notably, the Agreement’s preamble makes an explicit link between climate change and the fulfillment of human rights obligations.Footnote 13
2.3.2 The 2 °C Limit
Article 2 of the Paris Agreement proposes some ambitious objectives. The long-term goal of the Agreement is to keep global temperature rise “well below 2°C” (Art. 2 Paris Agreement). This is a strengthened goal in comparison with earlier language. According to recent science (IPCC), the 2 °C limit would probably—though not certainly—prevent the most severe effects of climate change. Article 2 also contains the aim to “pursu[e] efforts to limit the temperature increase to 1.5°C above pre-industrial levels”, as proposed by small island states and least developed countries. This will be a challenge, especially for countries that have yet to lift the majority of their citizens from poverty.
How, then, can the “well below 2°C” goal be reached? First, Parties aim to reach “global peaking of greenhouse gas emissions as soon as possible” (Art. 4 para. 1 Paris Agreement). However, no peaking dates and no percentage reductions are mentioned, recognizing that peaking will take longer for developing countries. Second, rapid reductions are foreseen thereafter: achieving a balance between anthropogenic emissions by reducing the emission of greenhouse gases during the second half of the century (Art. 4 para. 1, Art. 5 para. 1 Paris Agreement). Third, Parties shall formulate and implement long-term low greenhouse gas emission development strategies (Art. 4 para. 19 Paris Agreement). And fourth, stronger mitigation is provided for through so-called Nationally Determined Contributions (NDCs; Art. 3 Paris Agreement).
2.3.3 Nationally Determined Contributions
Let us take a closer look at this last mechanism, the Nationally Determined Contributions (NDCs). The Paris Agreement states that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions” (Art. 4 para. 2 Paris Agreement). The Agreement contains no binding concrete contribution—only an expectation. It is, however, binding in the sense of an obligation of conduct in good faith (Parties are required to “prepare,” “intend to achieve,” etc.).Footnote 14 The NDC scheme therefore represents a “bottom-up approach,” unlike its predecessor, the Kyoto Protocol.
According to the Agreement, developed countries should continue to take the lead by undertaking an “absolute emission reduction target”; developing countries are to continue enhancing mitigation (Art. 4 para. 2, Art. 4 para. 4 Paris Agreement).
Furthermore, each successive NDC is to represent a progression beyond the previous and to reflect the “highest possible ambition.” This means that adjustment of the contributions is possible only in the direction of enhancing the level of ambition (see Art. 4 para. 3 Paris Agreement; “ambition” or “ratchet mechanism”). But again, the “highest possible ambition” is left to national determination. The efforts of all Parties are to represent a progression over time (Art. 3 Paris Agreement; collective requirement).
2.3.4 International Linkage and Adaptation
Article 6 of the Paris Agreement provides for a Sustainable Development Mechanism. International linkage under this provision gives the Parties a “green light” to develop carbon markets to promote the mitigation of greenhouse gas emissions while fostering sustainable development. Thus, similar to the Kyoto Protocol, emission reductions occurring outside of a Party’s territory can be counted toward achieving the Party’s Nationally Determined Contribution (Art. 6 para. 4 subpara. c Paris Agreement). This enables both the formation of coalitions and bottom-up heterogeneous linkage.Footnote 15 Different forms of emissions trading, explicitly provided for in the Kyoto Protocol, are therefore also possible under the Paris Agreement.
Article 7 of the Paris Agreement deals with mechanisms for adaptation, that is, instruments for dealing with the inevitable effects of climate change. The Paris Agreement establishes a global goal on adaptation, including through support for and international cooperation on adaptation efforts (Art. 7 paras. 1 and 6 Paris Agreement). Developing country Parties will receive enhanced support for adaptation actions (Art. 7 para. 7 Paris Agreement). All Parties are expected to engage in adaptation planning and to submit and periodically update an adaptation communication on their priorities, implementation and support needs, plans and actions (Art. 7 para. 10 Paris Agreement).
2.3.5 Loss and Damage and Global Stocktake
Article 8 of the Paris Agreement, concerning loss and damage, provides for yet another mechanism for climate action, in addition to mitigation and adaptation. Thus, the Paris Agreement builds on the Warsaw International Mechanism by providing for formal recognition and comprehensive risk management approaches to address loss and damage associated with the adverse effects of climate change. This new mechanism has not, however, been fully developed and will have to be concretized by future COPs in order to serve as an effective basis for compensation. Most recently, the mechanism was subject to intense negotiations at COP 25, where a key sticking point was the issue of how to finance the mechanism. There was consensus among the Parties that financing to avert, minimize, and address loss and damage must be “scaled up.”Footnote 16 But the Parties could not come to an agreement to obligate developed countries in particular to fund this scaling up.Footnote 17
The Paris Agreement also provides that each Party is to report information on mitigation, adaptation, and support; the agreement requires that the information submitted by each Party undergo international review. A “global stocktake” is slated to take place in 2023 and every 5 years thereafter to assess collective progress toward fulfilling the purpose of the agreement (Art. 14 Paris Agreement). The outcomes of the stocktake will inform Parties in updating and enhancing their own national actions as well as international cooperation.
In 2018, a facilitative dialogue took place in order to encourage collective progress towards the long-term emission reduction goal of Art. 4 Paris Agreement. The dialogue was officially named the “Talanoa Dialogue,” inspired by the Fijian tradition of dialogue in an inclusive and participatory manner. The dialogue culminated in the “Talanoa Call for Action” issued jointly by the Presidents of COP 23 and COP 24. The call was directed towards a wide range of actors and stakeholders, including state institutions, the private sector, and civil society, reiterating the goal of the Paris Agreement “to hold temperature rise well below 2 degrees Celsius and to pursue efforts to limit it to 1.5 degrees.”Footnote 18
2.3.6 Assessment of the Paris Agreement as Compared to Its Predecessors
The Paris Agreement is distinctive in a number of ways as compared to its two predecessors, the UNFCCC and the Kyoto Protocol. The guiding principles stated in the UNFCCC are put into more or less concrete form in the Paris Agreement. But unlike the Kyoto Protocol, the Paris Agreement does not take a top-down, prescriptive approach—an approach that, as noted above, has thus far proved politically unsuccessful in gaining the support of some of the world’s most important countries in terms of greenhouse gas emissions, though it remains to be seen whether this will change in the future.Footnote 19 The Paris Agreement instead takes a bottom-up facilitative approachFootnote 20 as a starting point, with national contributions constituting the bottom, and with rules of transparency, reporting, and so on constituting the top elements.Footnote 21 The Paris Agreement represents a facilitative rather than a prescriptive instrument. It tries to find a balance between, on the one hand, ensuring autonomy for states in the determination of their contributions and, on the other hand, strengthening oversight of these contributions through a robust transparency system, a global stocktake process (leading to the incremental adjustment of Nationally Determined Contributions in service of the long-term goals), and a compliance mechanism. However, the Agreement leaves mechanisms to be finalized by the Parties. And there are no clear and specific goals in relation to finance, technology and capacity-building.Footnote 22