Climate change: A critical look at the concept of equity in the international legal regimes

TABLE OF CONTENT

LIST OF ABBREVIATIONS

LIST OF FIGURES

1. INTRODUCTION

2. MEANING OF EQUITY IN LAW
2.1 Meaning of Equity in Law.
2.2 Meaning of Equity in International Law
2.3 Equity and International Environmental Law

3. THE CONCEPT OF EQUITY IN THE CLIMATE CHANGE DISCOURSE
3.1 Equity in the Climate Change instruments
3.2 Implementation of Equity
3.3 Critical Analysis

4. CONCLUSION

REFERENCES
PRIMARY SOURCES
1.1 International Legal Instruments
1.2 International Decisions
SECONDARY SOURCES
2.1 Books
2.2 Articles
IN A BOOK
IN A PERIODICAL
2.3 OTHER
Internet

LIST OF ABBREVIATIONS

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LIST OF FIGURES PAGE

TABLE 1: IPCC- TOTAL GHG EMISSIONS

TABLE 2: US ENVIR. PROTEC. AGENCY
ESTIMATE OF FUTURE GHG
EMISSIONS

1. INTRODUCTION

Scientific evidence in recent times is indicating that the global climate is rapidly changing than was previously thought. This has made world leaders and policy makers to take action so as to avert environmental disaster^[1]. As the table below will show, global greenhouse gas emissions have been on a steady increase over the decades.

FIGURE 1

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Source: ipcc-www.greenfacts.org/en/climate-change-ar4/fig table boxes/figure-20.htm - 6k –

How best to achieve success in reducing greenhouse gas emissions is the focus of a substantial body of literature. Furthermore, the design and implementation of a regulatory scheme is not an easy task.^[2]

The question raised in this paper is a critical look at the inclusion of equity in the international climate change regime. This is in view to critically assess the rationale, nature, implementation, success and limitations of equity as it has been provided for by the legal regimes.

Our findings will demonstrate that the inclusion of equity as a cardinal strategy for the reduction of greenhouse gasses and protecting the earth’s atmosphere from environmental degradation in general is a noble idea. However, certain loopholes exist in the law as well as the implementation process. The major weakness of the climate change regime is that the United States which is the largest pollutant is not a signatory to the Kyoto Protocol. Also, as will be shown in this paper, the blanket exclusion of developing countries from emissions reduction commitment based on equitable concerns is not neither ideal nor pragmatic; this is because some developing countries are classified as being responsible for global warming due to industrial activities.

2. MEANING OF EQUITY IN LAW

2.1 Meaning of Equity in Law.

To a layperson, equity simply means fairness or reasonableness. As a branch of legal system, equity can indeed be said to be governed by fairness. However, there are some distinguishing features to the concept of equity as it applies in the context of an aspect of law.^[3] In the legal sense, Equity refers to a set of legal principles applied in jurisdictions that follow the English Common Law, which serve to supplement strict legal rules (common law) where there application would be seen to be harsh, so as to bring about natural justice.^[4]

In modern practice, the most significant distinction between Common Law and Equity is in the remedies offered by each. Equity grants remedies such as injunction, declaratory judgment and specific performance; whereas the most widely used civil remedy in Common Law is the award of monetary damages.^[5]

Equity in national law applies certain “maxims” which can be described as a set of general principles which govern the manner in which equity operates. These maxims have Latin origins^[6].

2.2 Meaning of Equity in International Law

As a source of international law, the concept of equity does not have a uniform meaning.^[7] The principles of equity can be said to be part of the basic moral notions for rule of law. In this regard, equity may be seen as a material source of legal norms, but not as a formal source, thereby constituting a legal rule. It is in this sense that equity bears significance in international law.^[8]

The ICJ Statute^[9] requires the court to apply certain principles of law which include international conventions, international custom, as evidence of general practices accepted as law, general principles of law which have been recognised by civilised nations, juridical decisions and juridical writings as subsidiary means to be applied in determining rules of law.

The general principles of law referred to above can be said to include legal principles which are common to a significant number of municipal systems of law.^[10] By this provision, the concept of equity has been employed in adjudicating international disputes. For instance, a state, which, by its conduct, encourages another state to believe in a certain factual or legal situation, and to act on that belief, may be stopped from portraying a contrary situation in its subsequent affairs.^[11]

However, the concept of equity as applied in international law should not be accorded same connotation as it applies under common law. The reference under international law is to general principles. Principles of municipal law are, therefore, to be regarded as inspirational rather than sources of direct application of rules.^[12]

In international law, equity as a concept usually refers to creation of balance between opposing interests.^[13] The key issue is about distribution of benefits and corresponding obligations amongst concerned actors, interests and parties. It is all about rightness and justifiability. As an international principle of law, equity leads the international community to take into consideration factors such as fairness and justice in establishing and operating rules of international law.^[14]

2.3 Equity and International Environmental Law

The concept of equity is significant to modern practice of international environmental law in many respects. First there is the principle relating to equitable burden sharing between equal partners. According to this principle, costs and burdens of environmental protection are to be allocated amongst states on the basis of reasonable criteria and not to be done arbitrarily. Secondly, there is also the principle of equitable use, which implies that different states should be accorded equal rights and access to shared resources. Therefore, the principle of equity imposes a duty upon countries and the international community to assist developing states financially and technology wise.^[15]

[...]

^[1] Tim, S., Birch, G., A Slow Burn: The Emergence of Climate

Change Law in Australia (Sydney, Australia: Sydney Univ. Press, 2007).

^[2] Feaver, D., Durrant, N., A Regulatory Analysis of International Climate

Change Regulation, 30(4) Special Is on Gl. Warm., Govern. & the Law, Law & Pol., 394-419 (2008).

^[3] Duddington, J., Essentials of Equity and Trust Law p 3-10 ( Essex England: Pearson Education Limited, 2006).

^[4] ibid

^[5] Alastair, H., Equity and Trusts (5th ed.) (London,UK: Routlege-Cavendish, 2007).

^[6] Edward, R., Stockwell, N., Trusts and Equity p 35-39 (8th ed.) (Essex England: Pearson Education Limited, 2007).

^[7] Lauterpacht, A., the Development of International Law by International Court, p 23-25 (London, UK: Longmans, Green, 1958).

^[8] Jennings, R., Walls, A., (eds) Oppenheim’s International Law , p.43-45 (9th ed) (Essex, England: Longman group UK limited, 1992).

^[9] Article 38(1) of the ICJ Statute (1946).

^[10] Amarasinghe, C., the Law of International Civil Service, p. 151-158 (2nd ed.) (Oxford, UK: Clarendon press, 1994).

^[11] Case concerning Temple of Preah, Cambodia vs Thailand, ICJ Reports, 6, @ p. 32-33, (1962).

^[12] International Status of South/West Africa, (Advisory opinion) ICJ Reports, 128, @ 148 (1950).

^[13] Akehurst, M ., Equity and General Principles of Law, Law Quart., 809 (1976).

^[14] Melkas, E., Sovereignty and Equity within the Framework of the Climate Regime, 11(2), Reciel, p. 120

(2002).

^[15] Ibid at p. 121.