Hong Kong enjoys a high degree of autonomy as a Special Administrative Region of China. Unlike China itself, Hong Kong is not a party to international climate change agreements. While China has declared that the Paris Agreement and other climate change agreements apply to Hong Kong, the implementation measures for Mainland China in fact do not apply to Hong Kong. Its unique position under the ‘one country, two systems’ principle has frequently led to Hong Kong being left out of international cooperation on climate change mitigation. Nevertheless, as this article recounts, the government of Hong Kong has shown increasing interest in promoting climate change mitigation—or at least in being seen to do so. In January 2017, Hong Kong adopted the ‘Climate Action Plan 2030+’, which is, in essence, a regionally determined contribution to mitigation.
In December 2018, cop 24/cma 1.3 adopted the Modalities, Procedures and Guidelines for the Transparency Framework under Article 13 of the Paris Agreement. Commenting on this decision, this article reviews and assesses the rules on transparency in the unfccc regime as they will apply during the coming years. Two main themes are identified: differentiation and progression. With regard to differentiation, while the Transparency Framework seeks to apply the same rules to all countries, bifurcation remains in place in some important respects. With regard to progression, the article identifies four aspects in which the adoption of a uniform set of rules has come at the expense of the stringency of the rules applicable to Annex i parties.
In his essay on the thesis of my book, Alexander Zahar objects to my characterization of customary international law as one of the sources of the international law on climate change and, in particular, to my conclusion about the relevance of the no-harm principle. I disagree. In the first part of his essay, Zahar’s analysis of the no-harm principle is limited to arguments by analogy, but a valid international legal argument can be based on deduction from axiomatic premises of the international legal order. In the second part of his essay, Zahar claims that the UNFCCC regime excludes the application of the no-harm principle when, in reality, the UNFCCC regime really seeks to facilitate the implementation of general international law.
What are we trying to achieve through our scholarship? It appears that most scholarship in climate law seeks to describe ongoing developments by using, inter alia, doctrinal and comparative methodologies. This article argues that, in addition to these ‘mainstream’ scholarly interventions, a critical scholarship in climate law should be, and is, developing. By questioning the assumptions on which climate law is developed, assessing the relations between law and power, or revealing long-overlooked paradoxes, among other topics, critical scholarship broadly conceived could provide innovative and interesting insights that help to achieve a more complete understanding of climate law.
The discussions on loss and damage associated with climate change that opened up within the unfccc in recent years constitute the latest attempt of developing states to obtain something akin to compensation from major greenhouse gas emitters for the adverse social impacts of climate change. These discussions generally contemplate a mechanism financed by developed states that would provide direct support to individuals, corporations, and governments in developing countries (‘vertical’ approach), for instance, through insurance. This article argues that, for practical as well as normative reasons, a loss-and-damage mechanism should instead support vulnerable developing states, in a states-to-states ‘horizontal’ approach. Accordingly, financial support would be provided to developing states that incorporate vulnerable populations and are responsible for protecting them. Three sets of arguments are developed in support of this proposition. First, attributing loss and damage at the individual level is particularly challenging, whereas horizontal approaches allow consideration of probabilistic harm and compensation through bundle payments. Second, horizontal approaches are more suitable for pursuing goals such as economic efficiency, the reduction of loss and damage, the creation of an incentive for climate change mitigation, and broader goals of social justice. Third, vertical approaches go against prevailing principles of international law and involve unjustified interference in the domestic affairs of developing states.
This is a response to Alexander Zahar’s article in the previous issue of Climate Law. Zahar argued that ‘the principle of prevention is neither applicable nor of relevance to the problem of climate change.’ Firstly, I discuss Zahar’s scepticism toward state responsibility in the context of climate change. Secondly, I engage critically with Zahar’s claim that the preventive principle only applies to the type of environmental damage that occurs in a short timeframe and in a confined space. I show that some sources of international law do recognize the applicability of the preventive principle to damage to the global environment. Lastly, I dissent with Zahar’s qualification of the climate regime as a derogation to the principle of prevention. I argue that the principle of prevention is a necessary corollary of the rights of states to territorial integrity, although the modalities of application of the principle need to be refined.