Published online by Cambridge University Press: 09 September 2016
The regulation of short-lived climate pollutants (SLCPs) is widely seen as an important dimension of global atmospheric pollution control and climate change governance. SLCPs emitted outside the Arctic influence the Arctic atmosphere, Arctic communities, and the rate of ice melt. As an intergovernmental forum that brings together three of the world’s major petroleum producers (Russia, the United States, and Canada), the Arctic Council has a pivotal role in reducing the rate of Arctic warming through SLCP mitigation. This article explores the Arctic Council’s approach to SLCP mitigation. It begins by addressing the current status of black carbon and methane in international legal instruments, and goes on to explore the important regime linkages that are set in place through the Arctic Council’s Framework for Action on Enhanced Black Carbon and Methane Emission Reductions. The article suggests that the Arctic Council provides an experimental platform that may catalyze SLCP regulation not only in Arctic jurisdictions but also in Arctic Council observer states, such as China and India. The transnational and inclusive character of the Arctic Council’s constitutional framework and knowledge-generating mechanisms enables new pathways for global action on climate change and air pollution governance.
The author thanks Kati Kulovesi, Harro van Asselt and Yulia Yamineva for their comments on an early draft. She also expresses her gratitude to the anonymous TEL reviewers for their time and valuable remarks.
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7 HFCs are factory-produced SLCPs that have replaced ozone-depleting substances in air conditioning and refrigeration systems, among other industrial applications.
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13 IPCC, Climate Change 1995: The Science of Climate Change. Contribution of WGI to the Second Assessment Report of the Intergovernmental Panel on Climate Change (IPCC, 1996).
14 Geneva (Switzerland), 13 Nov. 1979, in force 16 Mar. 1983, available at: http://www.unece.org/env/lrtap.
15 IMO, ‘Environment Meeting Completes Packed Agenda’, Marine Environment Protection Committee, 62nd Session, 11–15 July 2011, 2011. Briefing 43, 19 July 2011, available at: http://www.imo.org/en/MediaCentre/PressBriefings/Pages/43%20MEPC62ENDS.aspx#.VrIfNhFaFU0.
16 Bond et al., n. 5 above.
17 IMO, Sub-Committee on Pollution Prevention and Response, 2nd Session, 19–23 Jan. 2015, Meeting Summary, 23 Jan. 2015, available at: http://www.imo.org/en/MediaCentre/MeetingSummaries/PPR/Pages/PPR-2.aspx.
18 The possibility of ‘institutional interplay’, in relation to the global and sub-global regulation of SLCPs, remains an open and relevant question for prospective research. As elaborated by Young, the notion of institutional interplay refers to interactions and linkages between institutions and regimes, both intentional and unintentional, that impact upon their individual performance and effectiveness: Young, O.R., Institutional Interplay: Biosafety and Trade (UN University Press, 2008)Google Scholar, and Stokke, S. & Oberthür, O.S., ‘Institutional Interaction in Global Environmental Change’, in S. Stokke & O.S. Oberthür (eds), Managing Institutional Complexity: Regime Interplay and Global Environmental Change (The MIT Press, 2011), pp. 1–23 Google Scholar. In particular, there is room for greater understanding as to the degree of interplay that exists in SLCP regulation, if any.
19 Art. 1(a), Declaration on the Establishment of the Arctic Council, Ottawa, ON (Canada), 19 Sept. 1996.
20 Declaration on the Establishment of the Arctic Council (ibid.), Arctic Council Rules of Procedure, and Arctic Council Observer Manual for Subsidiary Bodies, adopted at the 8th Arctic Council Ministerial Meeting, Kiruna (Sweden), 15 May 2013.
21 These include Canada, China, the European Union (EU), India, Japan, Russia, and the US.
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24 Arctic Council, An Assessment of Emissions and Mitigation Options for Black Carbon: Technical Report of the Task Force on Short-Lived Climate Forcers (Arctic Council, 2011); and Arctic Council, Recommendations to Reduce Black Carbon and Methane Emissions to Slow Arctic Climate Change, Task Force on Short-Lived Climate Forcers (Arctic Council, 2013).
25 Arctic Council, ‘Framework for Action on Enhanced Black Carbon and Methane Emission Reductions’, Annex 4, Iqaluit [NU (Canada)] 2015 SAO Report to Ministers (Arctic Council, 2015) (Framework), available at: https://oaarchive.arctic-council.org/handle/11374/610.
26 N. 14 above.
27 N. 9 above.
28 As Hickman remarks, the involvement of new (non-state) actors in global negotiations is conditioned by state-determined rules, norms and existing frameworks for international cooperation: Hickman, T., Rethinking Authority in Global Climate Governance: How Transnational Climate Initiatives Relate to the International Climate Regime (Routledge, 2016), p. 191 Google Scholar.
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30 See the discussion by McCaffrey, Shelton and Cerone of the post-Second World War evolution of the definition of international law to include non-state actors. In particular, they point to Phillip Jessup’s 1948 definition: ‘[I]nternational law or the law of nations must be defined as law applicable to states in their mutual relations and to individuals in their relations with states … [It] may also be applicable to certain interrelationships of individuals themselves, where such relationships involve matters of international concern’: Jessup, P., A Modern Law of Nations (Macmillan, 1948)Google Scholar, cited in McCaffrey, S.C. Shelton, , D. & Cerone, J., Public International Law: Cases, Problems and Texts (Lexis Nexis, 2010), p. 552 Google Scholar. Even in his 1912 Treatise, Oppenheim admits his understanding of international law is not without contestation: Oppenheim, ibid., p. 20, n. 1.
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32 E.g., legal obligations under the recently adopted Paris Agreement, Paris (France), 13 Dec. 2015, not yet in force (in UNFCCC, Report of the Conference of the Parties on its Twenty-First Session, Addendum, UN Doc. FCCC/CP/2015/10/Add.1, 29 Jan. 2016), are essentially informational: communicating nationally determined contributions every five years to a public registry (Art. 4(2)(9)(12)), providing national inventory reports on anthropogenic emissions and carbon sink capacity (Art. 13(7)) and, in the case of developed countries, providing reporting on financial support, technology transfer and capacity building provided to developing countries (Art. 13(9)).
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44 N. 14 above.
45 Canada and the US are parties to the CLRTAP and have implemented their obligations through a bilateral treaty: US and Canada Air Quality Agreement, Ottawa, ON (Canada), 13 Mar. 1991, in force 13 Mar. 1991, available at: https://www.ec.gc.ca/Air/1E841873-E03B-4F16-A8E1-EB2E37095B62/CanadaUSAirQualityAgreement.pdf.
47 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone, Gothenburg (Sweden), 30 Nov. 1999, available at: http://www.unece.org/fileadmin/DAM/env/lrtap/full%20text/1999%20Multi.E.Amended.2005.pdf.
48 1999 Protocol to Abate Acidification, Eutrophication and Ground-level Ozone to the Convention on Long-Range Transboundary Air Pollution, as amended on 4 May 2012, not yet in force except for Annex I (5 June 2013), available at: http://www.unece.org/fileadmin/DAM/env/documents/2013/air/eb/ECE.EB.AIR.114_ENG.pdf.
49 Ibid., Art. 2(2).
50 Ibid., Arts 6(2)(2) and 7(1)(d).
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52 N. 32 above.
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57 Vienna (Austria), 23 May 1969, in force 27 Jan. 1980, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.
58 Prior to the Paris negotiations, UNFCCC parties were invited to communicate their intended NDC towards achieving the objective of the Convention as stipulated under Art. 2 UNFCCC: see Decision 1/CP.19 Further Advancing the Durban Platform, UN Doc. FCCC/CP/2013/10/Add.1, 31 Jan. 2014. As per the Paris Agreement, these communications are now referred to as NDCs. Certain countries (e.g. Mexico) have included BC mitigation measures in their NDCs.
59 For a discussion on contemporary challenges of the UNFCCC regime, see A. Vihma, How to Reform the UN Climate Negotiations? Perspectives from the Past, Present and Neighbour Negotiations, FIIA Working Paper 82 (Finnish Institute of International Affairs, 2014).
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64 Ibid., Annexes A and C. The iterative process is stipulated in Annex A of the Framework. The objective, composition, and working modalities of the Expert Group are outlined in Annex C. Members of the Expert Group include representatives from Arctic states, Permanent Participants, Arctic Council Working Groups and Arctic Council observer states that intend to implement the Framework.
65 Ibid., para. 3.
66 See Van Asselt, Mehling & Siebert, n. 33 above, and Yamineva & Kulovesi, n. 43 above.
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72 Ibid., Annex C, Terms of Reference.
73 Ibid., para.2.
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93 Koivurova & Heinämäki, ibid., p. 104.
95 Koivurova & Heinämäki, n. 92 above, p. 103.
96 Epistemic communities are understood here as Peter Haas has described them: ‘a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’: Haas, P., ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46(1) International Organization, pp. 1–35 CrossRefGoogle Scholar, at 3.
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99 See AMAP, n. 6 above.
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101 Sand, P.H. & Weiner, J.B., ‘Towards a New International Law of the Atmosphere?’ (2015) 7(2) Goettingen Journal of International Law, pp. 1–25 Google Scholar.
102 Dual-impact substances refer to those which have implications for both atmospheric pollution and climate change: ILC, n. 100 above, para. 168(b).
103 Sand & Weiner, n. 101 above, p. 19.
104 While displacement as a result of global warming affects all Arctic inhabitants, the negative outcomes of climate change especially impact upon Arctic indigenous peoples because of their unique cultural, social and economic reliance on the Arctic environment, which is crucial for sustaining their livelihoods and indigenous ways of life: see Nuttall, M. et al., ‘Hunting, Herding, Fishing and Gathering: Indigenous Peoples and Renewable Resource Use in the Arctic’, in Arctic Climate Impact Assessment – Scientific Report (Cambridge University Press, 2005), pp. 649–690 Google Scholar. For a discussion of specific environmental justice claims initiated by Arctic indigenous communities, see Kronk Warner, E.A. & Abate, R.S., ‘International and Domestic Law Dimensions of Climate Justice for Arctic Indigenous Peoples’ (2013) 43 Revue générale de droit, pp. 113–150 CrossRefGoogle Scholar. It is also worth noting that with regard to SLCP emissions specifically, in 2013 the Arctic Athabaskan Council (a Permanent Participant of the Arctic Council, which represents approximately 45,000 indigenous peoples spread across 76 communities in Alaska, Yukon and the Northwest territories) filed a petition against the government of Canada in the Inter-American Court of Human Rights, for undermining the human rights of Athabaskan peoples by failing to implement effective regulatory measures on BC emissions: Arctic Athabaskan Council, Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations of the Rights of Arctic Athabaskan Peoples Resulting from Rapid Arctic Warming and Melting Caused by Emissions of Black Carbon by Canada, 23 Apr. 2013, available at: http://earthjustice.org/sites/default/files/AAC_PETITION_13-04-23a.pdf.