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Abstract(s)
A tese aborda as alterações climáticas e os esforços internacionais para enfrentá-las,
destacando a Convenção-Quadro das Nações Unidas sobre Alterações Climáticas (CQNUAC)
como um marco fundamental. Desde sua implementação, o regime climático internacional busca
uma estrutura normativa autônoma para enfrentar a crise climática. Atualmente, o regime inclui
também o Protocolo de Quioto (PQ) e o Acordo de Paris (AP), que juntos formam o regime
internacional das alterações climáticas das Nações Unidas.
A investigação baseia-se na análise de documentos e decisões das Conferências das Partes
da CQNUAC, do PQ e do AP, além de instâncias de julgamento do Direito Internacional Público
(DIP). Tendo como referência a teoria da governança policêntrica de Elinor Ostrom, a tese
explora como o regime se ajusta para lidar com desafios de coordenação entre múltiplos atores.
A principal conclusão é que o modelo punitivo não se mostrou eficaz no regime climático.
Os Estados aderiram ao AP com a premissa de que não seriam punidos pelo descumprimento de
metas. Portanto, decisões externas que alterem a natureza nacionalmente determinada dos
compromissos de mitigação ou imponham sanções de indenização e compensação podem levar
à retirada de países, ameaçando a integridade do regime. O estudo argumenta que, apesar das
imperfeições, o regime da CQNUAC é atualmente a melhor ferramenta para coordenar a resposta
global à crise climática.
Assim, é essencial que, à medida que outras instâncias do DIP sejam chamadas a julgar
casos de inadimplemento de obrigações estabelecidas pelo regime da CQNUAC, a atuação dessas
instâncias deve respeitar o arcabouço principiológico desses tratados, de modo a incentivar o
cumprimento dos compromissos sem, entretanto, desestruturar o regime, mantendo e
aprimorando os meios de cooperação internacional para enfrentar as mudanças climáticas de
forma eficaz e inclusiva.
This thesis addresses the issue of climate change and international efforts to tackle it, highlighting the United Nations Framework Convention on Climate Change (UNFCCC) as a key milestone. Since its inception, the international climate regime has aimed to create an autonomous normative structure to address the challenges posed by climate change, with a primary focus on reducing greenhouse gases emissions and adapting to its consequences. The regime began with the UNFCCC and now includes two additional treaties: the Kyoto Protocol and the Paris Agreement. Together, these three agreements form the international framework for addressing climate change, establishing governance norms and arrangements to coordinate global action. Over time, the UNFCCC has played a significant role in promoting international cooperation, but it faces challenges such as the disparity in countries' mitigation and adaptation capacities and the absence of mechanisms to ensure compliance with established goals. This research seeks to understand how the climate regime, based on the UNFCCC, is organized internally and how it interacts with Public International Law. The central hypothesis of the thesis is that the climate regime, although designed to operate autonomously, faces vulnerabilities when interacting with other external norms and institutions, which can destabilize its structure. The research methodology is based on document analysis and decisions from the Conferences of the Parties (COP) to the UNFCCC, the Kyoto Protocol, and the Paris Agreement, as well as a review of literature on topics like environmental geopolitics, international law, polycentric governance, and the role of international courts in climate litigation. The theoretical framework is grounded in Elinor Ostrom’s ideas on polycentric governance, which are applied to understand how the climate regime adjusts to the complexities of coordinating multiple actors. In Chapter 1, the thesis analyzes the geopolitical implications of climate change and how these implications influence power relations between states. The concept of the Anthropocene, which describes humanity’s impact on the Earth’s ecosystems, is explored alongside the evolution of geopolitics, from territorial disputes to resource conflicts, military technologies, and the effects of climate change on global power structures. In this chapter, Elinor Ostrom's theory of polycentric governance is also highlighted. This approach seeks to understand how different levels of governance, through the interaction of multiple actors, can interact more effectively to address climate challenges. Ostrom identifies five main challenges for effective climate governance: emission leakage, inconsistent national policies, inadequate certification, system manipulation, and free-riding behavior. The thesis also reflects on how international mechanisms like the UNFCCC, Kyoto Protocol, and Paris Agreement have addressed these challenges over time. While progress has been made, the international climate regime still faces significant obstacles, such as the lack of effective sanctions and the continued rise of global emissions. Additionally, Chapter 1 examines the impact of climate change on international security, including debates in the United Nations Security Council and issues surrounding climate migration, particularly the concept of "climate refugees," which remains unrecognized in international law. This chapter draws heavily from the literature on environmental geopolitics, international law, and climate governance to support its theoretical and critical analysis. Chapter 2 examines the decisions adopted by the COPs of the UNFCCC, the Kyoto Protocol (CMP), and the Paris Agreement (CMA), analyzing how international commitments have evolved and how the regime has addressed issues of compliance and transparency. The analysis is divided into four periods: 1995-2004, 2005-2009, 2010-2014, and 2015-2023. The initial period (1995-2004) focused on laying the groundwork for implementing the UNFCCC, while negotiations on the Kyoto Protocol were ongoing, culminating in its enforcement in 2005. Discussions during this time centered on the concept of common but differentiated responsibilities between developed and developing countries, and mechanisms for monitoring and enforcement were established. From 2005 to 2009, negotiations focused on the flexibility mechanisms of the Kyoto Protocol, including the Clean Development Mechanism and emissions trading. However, the withdrawal of key emitters, such as Canada, weakened the protocol, and the United States’ refusal to ratify it created further challenges to its effectiveness. This period failed to produce a new binding agreement, which was expected to emerge during COP 15 in 2009. This failure was largely due to a lack of consensus between developed and developing countries on how to distribute responsibilities for mitigation and adaptation. The period from 2010 to 2014 saw the resumption of negotiations, ultimately leading to the adoption of the Paris Agreement in 2015. During this time, discussions on transparency and compliance matured, particularly with the introduction of the global stocktake mechanism to track progress. From 2015 to 2023, the focus shifted to a more inclusive governance model, with the Paris Agreement adopting a bottom-up approach, allowing countries to submit their own Nationally Determined Contributions (NDCs) and set their own climate commitments. Chapter 3 delves into the processes of compliance within the UNFCCC regime and examines cases of climate litigation and advisory opinions in other international jurisdictions. The chapter first outlines cases of non-compliance under the Kyoto Protocol, including actions taken against Greece, Canada, Ukraine, and other countries that failed to meet their targets or other obligations. These cases were managed by the Enforcement Branch of the Kyoto Protocol’s Compliance Committee. Beyond the internal compliance processes, the chapter also discusses international climate litigation cases brought before bodies like the International Tribunal for the Law of the Sea, the International Court of Justice, and the European Court of Human Rights. These cases often deal with issues such as state responsibility for climate change and the protection of human rights affected by climate impacts. The thesis suggests that international bodies are increasingly being called upon to adjudicate climate-related disputes, which could help strengthen compliance with climate obligations if these interactions are well-coordinated. However, the growing involvement of external legal institutions also presents challenges, as it could potentially undermine the autonomy of the UNFCCC regime. Chapter 4 discusses the strengths and weaknesses of the international climate regime, drawing on the analyses from the previous chapters. A central theme in this discussion is the shift from the top-down approach of the Kyoto Protocol, where emissions targets were imposed by the treaty itself, to the bottom-up approach of the Paris Agreement, where countries have the autonomy to set their own emissions targets through NDCs. The thesis points out that, while the regime has shown flexibility in adapting to different historical and geopolitical contexts, it still faces major challenges. Among these are the absence of effective enforcement mechanisms and the ongoing need to increase the ambition of NDCs to prevent dangerous levels of global warming. The importance of transparency and accountability is emphasized throughout the thesis, with the Global Stocktake mechanism playing a key role in assessing collective progress towards the goals of the Paris Agreement. The interaction between the climate regime and other international legal frameworks is also analyzed. While such interactions have the potential to strengthen climate governance, the thesis warns that they must be managed carefully to prevent the fragmentation or collapse of the UNFCCC regime. International climate litigation is another growing trend discussed in the thesis, reflecting the increasing judicialization of climate issues. While these legal interventions can help enforce climate obligations, there is a risk that external decisions could challenge the foundational principles of the Paris Agreement, such as the premise of non-punishability, potentially causing some countries to withdraw from the agreement. The thesis concludes by reaffirming the hypothesis that the international climate regime, while striving for autonomy, remains vulnerable to external pressures. The research confirms that the UNFCCC regime has been successful in creating a specialized framework to address climate change, keeping major emitters engaged in international negotiations. However, the punitive approach has proven ineffective, and countries joined the Paris Agreement based on the understanding that they would not be punished for non-compliance. In light of the growing trend of climate litigation, it is essential that international legal bodies respect the principles of the Paris Agreement to avoid undermining its effectiveness. The thesis warns that if external decisions impose sanctions or require compensation for non compliance, key countries could withdraw from the agreement, destabilizing the global climate regime. Therefore, while the UNFCCC regime must continue to improve its mechanisms for ambition, transparency, and accountability, it is crucial that external legal institutions support, rather than undermine, this essential international framework. Despite its many imperfections, the UNFCCC regime remains the best tool the international community currently has to address the climate crisis cooperatively.
This thesis addresses the issue of climate change and international efforts to tackle it, highlighting the United Nations Framework Convention on Climate Change (UNFCCC) as a key milestone. Since its inception, the international climate regime has aimed to create an autonomous normative structure to address the challenges posed by climate change, with a primary focus on reducing greenhouse gases emissions and adapting to its consequences. The regime began with the UNFCCC and now includes two additional treaties: the Kyoto Protocol and the Paris Agreement. Together, these three agreements form the international framework for addressing climate change, establishing governance norms and arrangements to coordinate global action. Over time, the UNFCCC has played a significant role in promoting international cooperation, but it faces challenges such as the disparity in countries' mitigation and adaptation capacities and the absence of mechanisms to ensure compliance with established goals. This research seeks to understand how the climate regime, based on the UNFCCC, is organized internally and how it interacts with Public International Law. The central hypothesis of the thesis is that the climate regime, although designed to operate autonomously, faces vulnerabilities when interacting with other external norms and institutions, which can destabilize its structure. The research methodology is based on document analysis and decisions from the Conferences of the Parties (COP) to the UNFCCC, the Kyoto Protocol, and the Paris Agreement, as well as a review of literature on topics like environmental geopolitics, international law, polycentric governance, and the role of international courts in climate litigation. The theoretical framework is grounded in Elinor Ostrom’s ideas on polycentric governance, which are applied to understand how the climate regime adjusts to the complexities of coordinating multiple actors. In Chapter 1, the thesis analyzes the geopolitical implications of climate change and how these implications influence power relations between states. The concept of the Anthropocene, which describes humanity’s impact on the Earth’s ecosystems, is explored alongside the evolution of geopolitics, from territorial disputes to resource conflicts, military technologies, and the effects of climate change on global power structures. In this chapter, Elinor Ostrom's theory of polycentric governance is also highlighted. This approach seeks to understand how different levels of governance, through the interaction of multiple actors, can interact more effectively to address climate challenges. Ostrom identifies five main challenges for effective climate governance: emission leakage, inconsistent national policies, inadequate certification, system manipulation, and free-riding behavior. The thesis also reflects on how international mechanisms like the UNFCCC, Kyoto Protocol, and Paris Agreement have addressed these challenges over time. While progress has been made, the international climate regime still faces significant obstacles, such as the lack of effective sanctions and the continued rise of global emissions. Additionally, Chapter 1 examines the impact of climate change on international security, including debates in the United Nations Security Council and issues surrounding climate migration, particularly the concept of "climate refugees," which remains unrecognized in international law. This chapter draws heavily from the literature on environmental geopolitics, international law, and climate governance to support its theoretical and critical analysis. Chapter 2 examines the decisions adopted by the COPs of the UNFCCC, the Kyoto Protocol (CMP), and the Paris Agreement (CMA), analyzing how international commitments have evolved and how the regime has addressed issues of compliance and transparency. The analysis is divided into four periods: 1995-2004, 2005-2009, 2010-2014, and 2015-2023. The initial period (1995-2004) focused on laying the groundwork for implementing the UNFCCC, while negotiations on the Kyoto Protocol were ongoing, culminating in its enforcement in 2005. Discussions during this time centered on the concept of common but differentiated responsibilities between developed and developing countries, and mechanisms for monitoring and enforcement were established. From 2005 to 2009, negotiations focused on the flexibility mechanisms of the Kyoto Protocol, including the Clean Development Mechanism and emissions trading. However, the withdrawal of key emitters, such as Canada, weakened the protocol, and the United States’ refusal to ratify it created further challenges to its effectiveness. This period failed to produce a new binding agreement, which was expected to emerge during COP 15 in 2009. This failure was largely due to a lack of consensus between developed and developing countries on how to distribute responsibilities for mitigation and adaptation. The period from 2010 to 2014 saw the resumption of negotiations, ultimately leading to the adoption of the Paris Agreement in 2015. During this time, discussions on transparency and compliance matured, particularly with the introduction of the global stocktake mechanism to track progress. From 2015 to 2023, the focus shifted to a more inclusive governance model, with the Paris Agreement adopting a bottom-up approach, allowing countries to submit their own Nationally Determined Contributions (NDCs) and set their own climate commitments. Chapter 3 delves into the processes of compliance within the UNFCCC regime and examines cases of climate litigation and advisory opinions in other international jurisdictions. The chapter first outlines cases of non-compliance under the Kyoto Protocol, including actions taken against Greece, Canada, Ukraine, and other countries that failed to meet their targets or other obligations. These cases were managed by the Enforcement Branch of the Kyoto Protocol’s Compliance Committee. Beyond the internal compliance processes, the chapter also discusses international climate litigation cases brought before bodies like the International Tribunal for the Law of the Sea, the International Court of Justice, and the European Court of Human Rights. These cases often deal with issues such as state responsibility for climate change and the protection of human rights affected by climate impacts. The thesis suggests that international bodies are increasingly being called upon to adjudicate climate-related disputes, which could help strengthen compliance with climate obligations if these interactions are well-coordinated. However, the growing involvement of external legal institutions also presents challenges, as it could potentially undermine the autonomy of the UNFCCC regime. Chapter 4 discusses the strengths and weaknesses of the international climate regime, drawing on the analyses from the previous chapters. A central theme in this discussion is the shift from the top-down approach of the Kyoto Protocol, where emissions targets were imposed by the treaty itself, to the bottom-up approach of the Paris Agreement, where countries have the autonomy to set their own emissions targets through NDCs. The thesis points out that, while the regime has shown flexibility in adapting to different historical and geopolitical contexts, it still faces major challenges. Among these are the absence of effective enforcement mechanisms and the ongoing need to increase the ambition of NDCs to prevent dangerous levels of global warming. The importance of transparency and accountability is emphasized throughout the thesis, with the Global Stocktake mechanism playing a key role in assessing collective progress towards the goals of the Paris Agreement. The interaction between the climate regime and other international legal frameworks is also analyzed. While such interactions have the potential to strengthen climate governance, the thesis warns that they must be managed carefully to prevent the fragmentation or collapse of the UNFCCC regime. International climate litigation is another growing trend discussed in the thesis, reflecting the increasing judicialization of climate issues. While these legal interventions can help enforce climate obligations, there is a risk that external decisions could challenge the foundational principles of the Paris Agreement, such as the premise of non-punishability, potentially causing some countries to withdraw from the agreement. The thesis concludes by reaffirming the hypothesis that the international climate regime, while striving for autonomy, remains vulnerable to external pressures. The research confirms that the UNFCCC regime has been successful in creating a specialized framework to address climate change, keeping major emitters engaged in international negotiations. However, the punitive approach has proven ineffective, and countries joined the Paris Agreement based on the understanding that they would not be punished for non-compliance. In light of the growing trend of climate litigation, it is essential that international legal bodies respect the principles of the Paris Agreement to avoid undermining its effectiveness. The thesis warns that if external decisions impose sanctions or require compensation for non compliance, key countries could withdraw from the agreement, destabilizing the global climate regime. Therefore, while the UNFCCC regime must continue to improve its mechanisms for ambition, transparency, and accountability, it is crucial that external legal institutions support, rather than undermine, this essential international framework. Despite its many imperfections, the UNFCCC regime remains the best tool the international community currently has to address the climate crisis cooperatively.
Description
Keywords
Direito internacional Alterações climáticas Convenção-Quadro das Nações Unidas sobre Alterações Climáticas Acordo de Paris Litigância Climática