Abstract
The starting point of this chapter is an overview of the common obligations for all the Parties established under the United Nations Framework Convention on Climate Change, Article 4.1. These obligations encompass a set of measures to be taken by a responsible State, under normal circumstances, through the adoption of legislations and administrative control, as well as other available means, with a view to respecting the obligations formulated under international law, which is close to the idea of “due diligence”. Moving from the abstract to the concrete, the chapter also focuses on recent policies and legislation on climate change adopted in Brazil, which are fundamental for the implementation of commitments under the UNFCCC. These new developments, including the voluntary quantified goal for reducing emissions announced by Brazil in 2009, encapsulated in its National Policy on Climate Change, demonstrates that the country has moved from “due diligence” measures, with a view to respecting the obligations formulated under international law, towards the goal for real contribution to the combat to climate change.
Haroldo Machado-Filho holds a Ph.D. in International Law from the Graduate Institute of International Studies, Geneva. He is also Lead Author of the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) in Working Group III; Member of the Global Climate Change and International Relations Network at the University of Brasília – UnB; and Brazilian negotiator under the multilateral climate change regime, since 1998. The views expressed by the author in this paper represent his personal opinion and do not necessarily reflect those of the Brazilian government, the UNDP or the IPCC.
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Notes
- 1.
United Nations Framework Convention on Climate Change, United Nations Framework Convention on Climate Change, New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992), 849.
- 2.
Article 4.1 of the UNFCCC.
- 3.
Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, 1st edition (Cambridge: Cambridge University Press, 2004), at 93.
- 4.
Article 4.1 (a) of the UNFCCC. The expression “Montreal Protocol” refers to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, as adjusted and amended on 29 June 1990.
- 5.
Article 4.1 (b) of the UNFCCC.
- 6.
Article 4.1 (f) of the UNFCCC.
- 7.
Article 4.1 (c) of the UNFCCC.
- 8.
Article 4.1 (d) of the UNFCCC.
- 9.
Article 4.1 (e) of the UNFCCC.
- 10.
Article 4.1 (g) of the UNFCCC. See also Article 5 that fleshes out this commitment. It is worth mentioning that international and intergovernmental programmes and organisations play a fundamental role in promoting and co-operating in research and systematic observation under the UNFCCC.
- 11.
Article 4.1 (h) of the UNFCCC.
- 12.
Article 4.1 (i) of the UNFCCC. See also Article 6 that fleshes out this commitment.
- 13.
This is one of the two references to non-governmental organisations in the UNFCCC. The other reference is contained in its Article 7.2 (l) and is related to cooperation and the provision of information to the Conference of the Parties.
- 14.
Xue Hanqin, Transboundary Damage in International Law (Cambridge: Cambridge University Press, 2003), at 163.
- 15.
For instance, Article 194 of the 1982 UNCLOS; Article 2 of the 1979 LRTAP Convention; Article 2 of the 1985 Vienna Convention on the Protection of the Ozone Layer; Article 1 of the 1996 Protocol to the 1972 London Dumping Convention; Principle 21 of the World Charter for Nature. Cf. Patricia Birnie and Alan Boyle, International Law and the Environment, 2nd edition (Oxford: Oxford University Press, 2002), at 113.
- 16.
Ibid.
- 17.
Brazil, Second National Communication of Brazil to the UNFCCC (Brasília: MCT, 2010), volume 1, at 17.
- 18.
Presidential Decree no. 6,263, of 21 November 2007.
- 19.
The GEx is a smaller group, composed of representatives from eight Ministries plus a representative from the Brazilian Forum on Climate Change.
- 20.
Bill no. 3,535, of 10 June 2008. This bill became the basis for negotiations in the National Congress that resulted in Law no. 12,187, which was sanctioned by the President of the Republic on 29 December 2009, as discussed in the next section.
- 21.
The National Conferences on the Environment are part of the Federal Government’s policy for social mobilization in decision-making processes. They have been held since 2003, with the 1st National Conference on the Environment becoming a source of social legitimization and democratic stability.
- 22.
The Brazilian Climate Change Forum (FBMC), chaired by the President of the Republic, was created (Decree no. 3,515 of 20 June 2000) with the objective of including the organized civil society in discussions related to global climate change, as well as educating and mobilizing society to debate, and providing inputs for decision-making on problems resulting from global climate change and regarding the CDM. The FBMC should also assist the government to incorporate global climate change issues in the various levels of public policies. The Forum has the participation of the Ministers as well as civil society personalities and representatives, appointed by the President of the Republic due to their renowned expertise or relevant knowledge on climate change.
- 23.
In the sector dialogues held in this first phase of the Plan, several sectors of society were heard, such as industry, forestry, finance, agriculture, forest and changes in land use, municipal movements, civil society and NGOs.
- 24.
Federal Law no. 12,187, 29 December 2009.
- 25.
Economic instruments are fundamental to implement the strategies contained in the Policy. Approved by the Brazilian Senate in November 2009, and signed by the President on 10 December 2009, Federal Law 1,204 created the National Fund on Climate Change, with the goal of securing resources (part of the revenues from the petroleum and natural gas industry) for supporting projects and studies that are directed toward mitigating climate change and adapting to its impacts.
- 26.
The Interministerial Commission on Global Climate Change is composed by 11 ministries and functions as the Designated National Authority (DNA) for the Clean Development Mechanism (CDM).
- 27.
Available http://unfccc.int/files/meetings/application/pdf/brazilcphaccord_app2.pdf (last accessed on 2 February 2012).
- 28.
Brazil, supra, note 17, volume 1, at 15.
- 29.
Center for Strategic Studies and Management (CGEE), Amazon Environmental Research Institute (IPAM), Secretariat for Strategic Affairs of the Presidency of Brazil (SAE/PR), REDD in Brazil: A Focus on the Amazon. Principles, Criteria, and Institutional Structures for a National Program for Reducing Emissions from Deforestation and Forest Degradation – REDD (Brasília: Center for Strategic Studies and Management, 2011), at 35.
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Machado-Filho, H. (2013). Climate Change Policy and Legislation in Brazil. In: Hollo, E., Kulovesi, K., Mehling, M. (eds) Climate Change and the Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 21. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-5440-9_29
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