Legal Research On Intergovernmental Cooperation In Dealing With Climate Change

As a global issue, the climate change exerts profound influence on human well-being and development, and hence entails joint efforts of all countries in the world to deal with. The intergovernmental cooperation in dealing with climate change could be traced back to as early as the 1970s and made remarkable achievements represented by a series of international legal documents established by international community, such as United Nations Framework Convention on Climate Change (UNFCCC) and Kyoto Protocol. The increasingly urgent situation of climate change and cliamate negotiations ending with a little success provokes reflections on the legal problems standing in intergovernmental cooperation in dealing with climate change. Based on the general jurisprudence in connection with the intergovernmental cooperation in dealing with climate change, this paper makes analyses of issues such as the legal principles of intergovernmental cooperation, its legal patterns and content, and dispute settlement with the attempt to render legal advice on the future intergovernmental cooperation on response to climate change.This paper is divided into five parts:Part one is titled the general jurisprudence in connection with the intergovernmental cooperation in dealing with climate change. With characteristics of environment as well as resource, the climate is always changing. The concept of"climate change"defined by UNFCCC built the legal basis for the intergovernmentalcooperation in dealing with climate change. Despite the standing controversy about the climate change in scientific circles, people still find it necessary to take the path of sustainable development by mitigate the excessive reliance on energy.The factual damages to human common interest as well as threats thereto causedby the climate change makes the foundation of reality of the intergovernmental cooperation. The"inter-governmental cooperation"in this paper refers to the cooperation in dealing with the climate change amid governments representing sovereign states, including bilateral cooperation as well as multilateral cooperation, and cooperation featuring states'acts as well as that conducted by organizations. Apart from above foundation of reality for cooperation and the role governments play as the provider of public services, the intergovernmental cooperation in dealingwith climate change is also built on the diverse bases of environmental ethics, e cological politics, environmental sociology, sociology of biology and so on. Nevertheless, such cooperation is to an extent restricted by state's differences in economic and political interests causing externality problems, the plight of collective action, the divergence between the developed countries and the developing ones, and some current systems.Part two is titled legal principles of the intergovernmental cooperation in dealing with climate change. Highlighted in the process of the intergovernmental cooperation in dealing with climate change, these principles serve as the norms of guiding, promoting and conducting such intergovernmental cooperation, including principles of state sovereignty, common but differentiated responsibility, sustainable development, pacta sunt servanda and precaution. The principle of state sovereignty refers to that all countries have supreme rights to deal with respective internal affairs concerning the climate change and may independently and equally participate in international affairs in connection therewith. Both common responsibility and differentiated responsibility are two cores in the principle of common but differentiated responsibility and shall be strengthened and realized in practice. Featuring the basic principle of resolving global environment and development problems, the principle of sustainable development shall be implemented in an innovative way in the intergovernmental cooperation in dealing with climate change. The principle of pacta sunt servanda is the important resolution to the problems of the intergovernmental cooperation and shall be realized through building and better the mechanism promoting performance of promises. The principle of precaution is viewed as the positive response to the uncertainty of climate change. The status and role of principles aforesaid are not quite the same and the principle of state sovereignty is basic one.Part three is about the legal pattern of intergovernmental cooperation in dealing with climate change. The legal pattern of intergovernmental cooperation, represented by the"hard law"and"soft law"as well as organizations, constitutes the implement basis of the inter-governmental cooperation in dealing with climate change. UNFCCC and Kyoto Protocol, with characteristics of multilateral instruments and binding force, are of critical importance among sources of"hard law"applied to the intergovernmental cooperation in dealing with climate change."Soft law"of the intergovernmental cooperation in dealing with climate change, with its unique systematic value, complements the functions of"hard law". In the long run, compared with"soft law"in other fields, the"soft law"of the intergovernmental cooperation is showing more tendency to be hardened, which is realized by (1) being internalized as domestic laws or (2) adopted as other sources of international law, or(3) upgraded in part or in whole to"hard law". Besides traditional organizations bound by agreements organizations of intergovernmental cooperation in dealing with climate change also include ones featuring the forum, joint institutions or projects and multilateral treaties with respective characters.Part Four, focuses on the legal content of intergovernmental cooperation in dealing with climate change from the prospective of UNFCCC. Bali Action Plan, adopted at COP13 of UNFCCC, put four themes on the agenda strengthening global response to the climate change, that is, mitigation, adaptation, technology and financing. The four themes, overlapping while independent, cover the basic scope of intergovernmental cooperation in dealing with climate change. Mitigation refers to taking measures, including economical and administrative ones, to decrease the density of greenhouse gases. The core of intergovernmental cooperation project of mitigating as of 2012 lies in the appropriate balance between the climate equity and the climate efficiency. As the other necessary policy choice complementing with mitigation in functions, adaptation refers to taking measures to mitigate the adverse effects caused by the climate change. Technology may provide critical support for response to the climate change and specialized agencies shall be established to help the developing countries with obtaining climate-friendly technology from developed countries. Financing is the core factor in the intergovernmental cooperation in dealing with climate change, measures shall be taken to facilitate and guarantee the performance of promises made by developed countries to provide stable and predictable funds, and improve the operation and management mechanism thereof.Part five is about the dispute settlement arising out of the intergovernmental cooperation in dealing with the climate change. It is also unavoidable to encounter international disputes in the process of the intergovernmental cooperation in dealing with the climate change. Some disputes are restricted to the scope of dealing with the climate change, and others are extended to other fields. Accordingly, the disputes of the intergovernmental cooperation in dealing with the climate change shall be classified into fundamental dispute and derivative dispute. On the basis of the difference in the involved specific fields, derivative dispute also shall be classified into the environment derivative dispute and other derivative disputes. The former, such as ocean derivative dispute, water derivative dispute, biodiversity derivative dispute, and the latter, such as human rights derivative dispute, trade derivative dispute and peace and security derivative dispute. The traditional international dispute settlement shall be deemed as an ordinary solution to dispute settlement in intergovernmental cooperation in dealing with the climate change. At present, the specific measures of resolve the fundamental dispute in intergovernmental cooperation in dealing with the climate change are mainly embodied in UNFCCC. Because the climate change is just one of the factors which can bring dispute out, the natures of environment derivative dispute and other derivative dispute have no material change. Thus, it shall apply the legal resource of the usual dispute settlement, or on the basis of the legal resource of the usual dispute settlement, appropriate adjustment shall be applied.Our country has a relatively weak capability in dealing with climate change. It is predicted that our country will face a stronger climate warming trend in the future. The climate change has seriously challenged and will keep seriously challenging in our existing economy development model, energy structure, innovation of science and technology, protection and development of forest resources, and utilization and protection of water resources and so on. China has implemented a series of domestic policies and actions, at the same time, has actively participated in intergovernmental corporation in dealing with climate change. It preliminarily forms up an all-dimensional, multi-leveling, and wide-ranging, wide-forming international corporation pattern. Thus, our country has made an important contribution in dealing with global climate change. At the same time, we must be clear that our country is still weaker in intergovernmental cooperation in dealing with the climate change we have participated in, which can not satisfy the objective requirement of dealing with the global climate change and development of our social economy. In the future, our country shall insist on legal status of UNFCCC and Kyoto Protocol in inter-governmental cooperation in dealing with climate change, insist on the principle of common but differentiated responsibility and basic framework of sustainable development, unite the mass developing countries, actively participate in and promote international negotiations on climate change, boost to carry out the existing corporation results, and keep a further international communication and corporation in dealing with climate change.