Climate law in Canada: international law's role under environmental federalism.

• Author: Metcalf, Cherie
• Position: The Impact of International Law on Canadian Law

INTRODUCTION

The Intergovernmental Panel on Climate Change has recently stated that "[w]arming of the climate system is unequivocal" and that "many of the observed changes are unprecedented over decades to millennia." (1) With its Fifth Assessment Report, the IPCC confirms that human induced changes to the earth's climate system are likely to pose one of the most significant global policy challenges in the coming years. (2) For more than 20 years, most countries in the world, including Canada, (3) have participated in efforts to create an international legal regime that can address this challenge. The result has been the creation of two main international instruments, the UN's Framework Convention on Climate Change (FCCC) and its companion Kyoto Protocol. (4) Canada has been a party to both the FCCC and Kyoto Protocol. Although Canada withdrew from the latter in 2012, the country remains a party to the FCCC and is engaged in the process of negotiating a successor instrument to the Kyoto Protocol. (5)

The effectiveness of the international climate regime has been questioned and Canada's withdrawal from the Kyoto Protocol appears to vindicate concerns about the impact of the international regime. Although Canada did face criticism in the international setting for its withdrawal from Kyoto and its failure to abide by its prior commitments, it faced no consequences under the international climate law regime. (6) However, international law can have important impacts beyond its formal legal reach and potential for direct sanctions to produce compliance.

Scholars have identified a variety of theories of international law, each suggesting mechanisms through which international law can influence state behaviour. International law is regarded by some as merely the outcome of state interests; states comply or not as it suits their interests. However, international law can still serve as a means to coordinate state policy and facilitate cooperative outcomes. (7) Others ascribe normative significance to international law; international law plays a role in "constructing" norms against which state behaviour can be measured and judged, inducing compliance. (8) Recent research has begun to uncover mechanisms through which international law can penetrate states domestically. While early work focused on networks of government actors and opinion-shaping elites, more recently the focus has shifted to the role of international law in more directly driving domestic public opinion. (9) International law can influence public perceptions of policy by providing information on choices made by other states, causing voters to shift their opinions and generating pressure on domestic governments. (10) The process of international treaty-making forces domestic governments to reveal their positions on issues; gaps between domestic policy and international law can induce domestic mobilization and public pressure. (11) The existence of international law and treaty obligations can exert an influence on individuals' evaluation of government policy choices. (12) Scholars have also begun to dismantle the state, recognizing that the impact of international law can vary depending on which domestic actors are "supplying" compliance. (13)

In this paper, I will argue that the influence of the international climate regime in Canada cannot be determined simply by the formal status of Canada's participation and obligations at international law. Consistent with the theory above, the impact of the international climate regime is more complex. In particular, the decentralized nature of Canada's domestic environmental competence under Canadian federalism leads to a diverse and uneven penetration of international climate law and its norms into our domestic environmental law. Provinces may lead where the federal government does not follow in incorporating international obligations into domestic law. A review of Federal and Provincial climate law and policy illustrates a number of means through which the international regime may be considered influential. In particular, the international regime's potential influence is apparent in enhanced transparency on climate change and governments' responses, a move toward accountability in the form of setting targets and timetables, coordinated and cooperative methods of attacking climate change, and through a shift toward climate change adaptation planning. While the review does not serve as a causal test of the influence of international climate law, it is suggestive of an important role for the international regime.

The broad-based, multilateral nature of the UN climate instruments lends normative force to the commitments contained in the agreements, making them a reference point for acceptable climate policy. In addition, the mechanisms developed under the international climate regime provide a natural coordination point for climate policy choices. Even without any direct formal legal obligations under the FCCC or Kyoto, provinces appear to be influenced by the international regime in setting their policies. Beyond this, international climate law also helps shape the normative assessment of the behaviour of governmental actors and exerts an influence on public opinion, both within Canada and in other jurisdictions, opening up an additional channel through which international climate law is domesticated. International climate law is an important influence on Canada's domestic climate policy, and Canada's continued participation is vital to shaping the international regime as it evolves.

To develop these arguments in more depth, I will first briefly review the main components of the UN Framework Convention on Climate Change and the Kyoto Protocol to draw out the major normative and procedural aspects of these international instruments. I will then turn to a review of Canada's domestic climate policy to trace the influence of the international regime, considering actions at the federal, and provincial levels.

INTERNATIONAL CLIMATE LAW

1. The UN Framework Convention on Climate Change

   The UN Framework Convention on Climate Change (FCCC) was one of a number of key multilateral environmental agreements originating at the Rio Conference in 1992. (14) As a framework convention, the FCCC was not intended to finalize the details of substantive international climate regulation, but rather to create a framework within which countries would work together to address the problem of global climate change. With its nearly universal membership, the FCCC continues to serve as the main coordination point for international action to address climate change. (15)

   The FCCC stands as a powerful consensus recognition that anthropogenic climate change is a global threat and sets a shared normative goal to engage in collective action to mitigate the problem. The FCCC identifies climate change as "a common concern of humankind" 16 and establishes an objective to stabilize greenhouse gas concentrations and "prevent dangerous anthropogenic interference with the climate system." (17) While the FCCC leaves the specifics of this threshold to be determined, it does call for action within a timeframe that will "allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner." (18)

   To achieve this goal the FCCC commits state parties to measures to mitigate climate change, focusing on anthropogenic emissions from sources and removals by sinks. (19) The principle of "common but differentiated responsibilities" (20) requires a more substantial commitment from developed country parties; their policies are to demonstrate that "developed countries are taking the lead" in changing the trend in emissions in line with the objective of the Convention. (21) While the FCCC's substantive mitigation obligation is highly qualified, even for developed countries, the norm is that all parties will endeavor to advance the objective of the Convention, by reducing emissions and enhancing sinks. All parties are also to develop measures to facilitate adaptation to climate change, cooperating to prepare for climate change. (22) In establishing these substantive goals, the FCCC explicitly promotes cooperation, and joint implementation of the Convention. (23)

   A key aspect of the FCCC framework is state commitments to generate and share information. All parties agree to generate national inventories of their emissions and make them available to the Conference of the Parties (COP). (24) Parties similarly commit to formulating and publishing their mitigation programs. (25) Developed country parties have enhanced reporting commitments, periodically providing detailed information on their mitigation policies with corresponding projections of anthropogenic emissions--allowing the effectiveness of these parties' measures to be assessed. (26) The FCCC promotes cooperation in research related to climate change, including scientific, technological, and socio-economic research. (27) Parties also agree to "[p]romote and cooperate in education, training and public awareness" related to climate change. (28) These FCCC measures promote more informed dialogue about climate change and help foster transparency and accountability of state parties in meeting their FCCC commitments.

   Addressing the distributive effects of climate change and mitigation and adaptation efforts is another key prong of the FCCC. In addition to the principle of "common but differentiated" responsibilities, the FCCC incorporates financial and technological transfers to assist less developed and particularly vulnerable states with the costs of climate change. (29) The FCCC puts the onus on developed countries to facilitate developing country success in meeting the Convention objectives. (30)

2. The Kyoto Protocol to the UN Framework Convention

   The FCCC sets out normative goals for climate change mitigation...