Abstract
The climate change issue arose in the late eighties, once the available scientific evidence started suggesting that the progressive increase in the greenhouse gases concentrations in the atmosphere may contribute to a large extent to the greenhouse effect. The greenhouse effect is a natural phenomenon, caused by a range of different gases including water vapour and CO2. It makes the heat emitted from the earth’s surface to be retained within the earth’s atmosphere.1 The progressive increase in the concentration of CO2 in the atmosphere happening since the industrialization era2 has increased the natural greenhouse effect. As a consequence, the earth is becoming warmer.3 This gives rise to the so-called climate change phenomenon.
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Notes
- 1.
The earth’s average temperature is at the moment around 14°. If the natural greenhouse effect did not exist, the average temperature would be around minus 19° (Source: 2007 IPCC Report).
- 2.
On the basis of the data included in the 2007 IPCC Report, the global atmospheric concentration of CO2 raised up to 379 ppm in 2005, with respect to the pre-industrialisation value of 280 ppm.
- 3.
For instance, according to the 2007 IPCC Report, the earth’s average temperature has risen by 0.74° in the period from 1906 to 2005. The warming is stronger over land areas than over the sea and accordingly it is strongest in the north. At the same time occurrences of heat waves and violent downpours have also increased, the oceans have risen, and the ice at the world’s poles and on its mountains has begun to melt.
- 4.
On the climate change regime in general see F. Yamin, J. Depledge (2004) The international climate change regime. Cambridge University Press; D. Victor (2004) The collapse of the Kyoto Protocol and struggle to slow global warming. Princeton University Press; R. Verheyen (2005) Climate change damage and international law. Martinus Nijhoff Publishers; D. Freestone, C. Streck (2005) Legal aspects of implementing the Kyoto Protocol mechanisms. Oxford University Press; M. Bothe, E. Rehbinder (2005) Climate change policy. Eleven International Publishing; B. Metz, M. Hulme (eds) (2005) Climate policy options post 2012: European strategy, technology and adaptation after Kyoto; M. Peeters, K. Deketelaere (eds) (2006) EU climate change policy: the challenge of new regulatory initiatives; W. Th. Douma, L. Massai, M. Montini (eds) (2007) The Kyoto Protocol and beyond: legal and policy challenges of climate change. T.M.C. Asser Press.
- 5.
See resolution United Nations General Assembly (UNGA) 43/53 (1988).
- 6.
See the IPCC reports on the web site www.ipcc.ch
- 7.
See Resolution United Nations General Assembly (UNGA) 43/212 (1990).
- 8.
See UN Framework Convention on climate change (UNFCCC), New York 1992, in International Legal Materials, vol. 31 (1992), p. 849 or in the web site www.unfccc.int
- 9.
- 10.
The differentiation between obligations of result (aiming at a concrete result) and obligations of conduct (aiming at a particular conduct), originally contained in the Draft Articles on State Responsibility of the International Law Commission in 1997 and later withdrawn in the final Draft of 1999, has been applied to the present case by R. Verheyen, Climate Change Damage and International Law, cit., p. 80.
- 11.
On the most relevant environmental legal principles see M. Montini (2008) The role of legal principles for environmental management. In: C. Clini, I. Musu, M. L. Gullino (eds) Sustainable development and environmental management – experiences and case studies. Springer, p. 17 ff.; F. Yamin, J. Depledge, The International Climate Change Regime, cit., p. 66.
- 12.
See UNFCCC, article 4(1)(a) on inventories and 4(1)(b) on national programmes.
- 13.
It should be noted that such a commitment is mandatory on all Annex I Parties, including the European Community, which is at present the only non-state Party to the UNFCCC.
- 14.
The Parties to the Convention assigned the operation of the financial mechanism to the Global Environment Facility (GEF) on an on-going basis, subject to review every four years. The financial mechanism is accountable to the Conference of the Parties (COP), which decides on its climate change policies, programme priorities and eligibility criteria for funding, based on advice from the Subsidiary Body of Implementation (SBI). The Kyoto Protocol also recognizes, under its Article 11, the need for the financial mechanism to fund activities by developing country Parties. In addition to providing guidance to the GEF, Parties have established three special funds: the Special Climate Change Fund (SCCF) and Least Developed Countries Fund (LDCF), under the Convention; and the Adaptation Fund (AF), under the Kyoto Protocol (source: www.unfccc.int).
- 15.
See Annex B to the Kyoto Protocol.
- 16.
The EU Burden Sharing Agreement reached within the European Council of 16–17 June 1998 (EC Council Conclusions DOC 9702/98 of 19 June 1998) was then included in the EC Council Decision 2002/358 of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder (OJ L130 of 15 May 2002, p. 1).
- 17.
See Decision 16/CP.7 Guidelines for the implementation of article 6 of the Kyoto Protocol, Decision 17/CP.7 Modalities and procedures for a clean development mechanism as defined in Article 12 of the Kyoto and Decision 18/CP.7 Modalities, rules and guidelines for emissions trading under Article 17 of the Kyoto Protocol; see also F. Yamin, J. Depledge, The International Climate Change Regime, cit., p. 148.
- 18.
For further details, see R. Vlastelica Sutic, The CDM Project Cycle, infra in this volume, and F. Yamin, J. Depledge, The International Climate Change Regime, cit., pp 160–163.
- 19.
The Assigned Amount Units (AAUs) for each Party correspond to the level of its assigned amount established pursuant to Article 3, paragraphs 7 and 8, of the Kyoto Protocol.
- 20.
See COP7 Decision 24/CP.7 (2001) Procedures and mechanisms relating to compliance under the Kyoto Protocol and COPMOP-1 Decision 27/CMP.1 (2005) Procedures and mechanisms relating to compliance under the Kyoto Protocol.
- 21.
For a more detailed analysis of the Compliance Regime of the Kyoto Protocol and the major legal issues related to its implementation and application see M. Montini (2007) The compliance regime of the Kyoto Protocol. In: W. Th. Douma, L. Massai, M. Montini (eds) The Kyoto Protocol and beyond. TMC Asser Press, p 95 ff.
- 22.
On this issues, see amplius M. Montini, cit., p. 105.
- 23.
At the time of COP/MOP-1 the most notable UNFCCC Parties which had not ratified the Protocol were the USA and Australia. Subsequently Australia ratified the Protocol in 2007 and now the United States is the only party with binding reduction commitments written in Annex B which has not ratified the Protocol yet.
- 24.
Communication of the Commission on EU Policies and Measures to Reduce Greenhouse Gases and Emissions, COM(2000)88 final of 8 March 2000.
- 25.
Directive 2003/87/EC of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, in OJ L275 of 25 October 2005, p. 32.
- 26.
Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, in OJ L8 of 13 January 2009, p. 3.
- 27.
Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, OJ L140 of 5 June 2009, p. 63.
- 28.
Communication of the Commission, Winning the Battle Against Global Climate Change, COM(2005)35 final of 9 February 2005.
- 29.
On the issue see L. Kraemer (2006) Some reflections on the EU mix of instruments on climate change. In: M. Peeters, K. Deketelaere (eds) EU Climate Change Policy-The Challenge of New Regulatory Initiatives. Edward Elgar.
- 30.
Communication of the Commission, Limiting Global Climate Change to 2° The way ahead for 2020 and beyond, COM(2007)2 final of 10 January 2007.
- 31.
Communication of the Commission, 20 20 by 2020 Europe’s climate change opportunity, COM(2008)30 of 23 January 2008.
- 32.
Decision No. 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020, OJ L140 of 5 June 2009, p. 136.
- 33.
Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, OJ L140 of 5 June 2009, p. 16.
- 34.
Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide and amending Council Directive 85/337/EEC, European Parliament and Council Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and Regulation (EC) No 1013/2006, OJ L140 of 5 June 2009, p. 114.
- 35.
Communication of the Commission, Towards a comprehensive climate change agreement in Copenhagen, COM (2009)39 final of 28 January 2009.
- 36.
Law No. 65 of 15 January 1994, GURI No. 23 of 29 January 1994, Ordinary Supplement No. 16.
- 37.
All National Communications submitted by Italy are available at www.unfccc.int
- 38.
CIPE Deliberation No. 211 of 3 December 1997 in GURI No. 18 of 23 January 1998.
- 39.
CIPE Deliberation No. 137 of 19 November 1998 in GURI No. 33 of 10 February 1999.
- 40.
Law No. 120 of 1 June 2002, GURI No. 142 of 19 June 2002, Ordinary Supplement. It is to be underlined that the Italian ratification of the Kyoto Protocol was simultaneous to those of the European Community and of all other EC Member States.
- 41.
EC Commission Decision of 25 May 2005.
- 42.
Decision of the Italian Ministry for the Environment, Land and Sea of 23 February 2006 (PNA I).
- 43.
EC Commission Decision of 15 May 2007.
- 44.
Decision of the Italian Ministry for the Environment, Land and Sea of 29 February 2008 (PNA II).
- 45.
CIPE Deliberation No. 135 of 11 December 2007 in GURI No. 301 of 29 December 2007.
References
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Montini, M. (2010). The Kyoto Protocol in the International Environmental Law Context and the Post-2012 Scenario. In: Montini, M. (eds) Developing CDM Projects in the Western Balkans. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3392-5_1
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