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Achieving Sustainable Development in Africa through the Clean Development Mechanism: Legal and Institutional Issues Considered

Document Cited in Related
Vincent
Pages270-301
Published date01 September 2009
Date01 September 2009
AuthorDamilola S. Olawuyi
DOI10.3366/E0954889009000401
INTRODUCTION

One of the most talked about sustainability concern facing the earth's current inhabitants is the issue of climate change. With emerging signs of temperature change, it is now widely accepted that climate change is real, that human emissions of green house gases are a cause; that if left unchecked, climate change may lead to extreme weather events; threaten food security and may lead to ill health and an unprecedented level of global economic decline.1

The Intergovernmental Panel on Climate Change (IPCC) in its 4th Assessment Report titled Climate Change 2007: Climate Change Impact, Adaptation and Vulnerability has maintained that climate change is human induced and that unless something urgent is done to reverse the current level of green house gas emission, its danger may be permanent and irreversible. The report also concludes that: a) The world's average surface temperature has increased by around 0.74 °C over the past 100 years (1906–2005), a figure higher than the 2001 report's 100-year estimate of 0.6 °C due, to the recent series of extremely warm years, with 11 of the last 12 years ranking among the 12 warmest years since modern records began around 1850. A warming of about 0.2 °C is projected for each of the next two decades. b) The amounts of carbon dioxide and methane now in the atmosphere far exceed pre-industrial values going back 650,000 years. Concentrations of carbon dioxide have already risen from a pre-industrial level of 280 ppm to around 379 ppm in 2005, while methane concentrations have risen from 715 parts per billion (ppb) to 1,774 in 2005. c) If atmospheric concentrations of greenhouse gases double compared to pre-industrial levels, this would ‘likely’ cause an average warming of around 3 °C (5.4 °F), with a range of 2–4.5 °C (3.6–8.1 °F); c) A GHG level of 650 ppm would ‘likely’ warm the global climate by around 3.6 °C. while 750 ppm would lead to a 4.3 °C warming, 1,000 ppm to 5.5 °C and 1,200 ppm to 6.3 °C d) The best estimates for sea-level rise due to ocean expansion and glacier melt by the end of the century (compared to 1989–1999 levels) have narrowed to 28–58 cm, versus 9–88 cm in the 2001 report, due to improved understanding. However, larger values of up to 1 m by 2100 cannot be ruled out if ice sheets continue to melt as temperature rises. The last time the Polar Regions were significantly warmer than at present for an extended period (about 125,000 years ago), reductions in polar ice volume caused the sea level to rise by 4 to 6 m. e) Sea ice is projected to shrink in both the Arctic and Antarctic regions. Large areas of the Arctic Ocean could lose year-round ice cover by the end of the 21st century if human emissions reach the higher end of current estimates. The extent of Arctic sea ice has already shrunk by about 2.7% per decade since 1978, with the summer minimum declining by about 7.4% per decade. d) Snow cover has decreased in most regions, especially in spring. The maximum extent of frozen ground in the winter/spring season decreased by about 7% in the Northern Hemisphere over the latter half of the 20th century. The average freezing date for rivers and lakes in the Northern Hemisphere over the past 150 years has arrived later by some 5.8 days per century, while the average break-up date has arrived earlier by 6.5 days per century. e) It is ‘very likely’ that precipitation will increase at high latitudes and ‘likely’ it will decrease over most subtropical land regions. The pattern of these changes is similar to what has been observed during the 20th century. f) It is ‘very likely’ that the upward trend in hot extremes and heat waves will continue. The duration and intensity of drought has increased over wider areas since the 1970s, particularly in the tropics and subtropics. The Sahel, the Mediterranean, southern Africa and parts of southern Asia have already become drier during the 20th century. g) Future GHG concentrations are difficult to predict and will depend on economic growth, new technologies and policies and other factors. See IPCC, available at http://www.ipcc.ch/meet/meet.htm.

According to James Hansen, a renowned United States scientist

The earth's climate is nearing, but has not passed a tipping point beyond which it will be impossible to avoid climate change, with far ranging, undesirable consequences. These consequences would constitute practically a different planet. If we do not take urgent and immediate action to stop global warming, the damage could become irreversible.2

J. E. Hansen, ‘Defusing the Global Warming Time Bomb’ 3 Sci. Amer. (2004): 68–77.

 The British Government's Chief Scientist, Professor David King, was making the same point when he said that

Antarctica is likely going to be the world's only habitable continent by the end of this century, if global warming remains unchecked… the earth is now entering the first hot period since 60 million years ago when there may be no ice on the planet and when the rest of the globe may not sustain human life.3

G. Lean, ‘Global Warming could soon make Antarctica the only place to live, says Chief British Scientist’ The Independent on Sunday (2 May 2004).

 It was in an attempt to respond to these danger signs and warnings that the world community came together under the United Nations Framework Convention on Climate Change (UNFCCC), to build a roadmap on how to tackle climate change. This roadmap led to the Kyoto Protocol of 1997, the first legally binding agreement which advocates taking concrete steps and binding commitments to reduce greenhouse gasses (GHG) that contribute to global warming.4

M. Doelle, From Hot Air to Action? Climate Change, Compliance and the Future of International Environmental Law, Carswell Publishers (2005): 10.

 Under this Protocol, industrialised countries have committed themselves to an aggregated reduction of CO2 emissions to 5% below 1990 levels. To achieve these, industrialised countries will have to implement measures to reduce GHG emissions according to their pre-defined country commitment levels.5

Industrialised countries are listed in Annex B of The Kyoto Protocol, available at http://unfccc.int/resource/docs/convkp/kpeng.html.

At the heart of the Kyoto Protocol, lie its three flexible mechanisms which allow industrialised countries to pursue their goals of GHG reduction by investing in emission reduction projects elsewhere, mostly in non annex I and II countries, where emission reduction can be achieved at cheaper costs.6

Non Annex I and II countries under UNFCCC include developing countries like China, India and Nigeria amongst others. Ibid.

One of them is the Clean Development Mechanism (CDM).7

The other flexible mechanisms are emissions trading and Joint Implementation (JI). See the United Nations Framework Convention on Climate Change, available at http://unfccc.int/resource/docs/convkp/kpeng.html.

 The CDM was designed to provide an incentive for governments and companies in industrialised countries to invest in GHG reduction projects in developing countries and be credited for GHG reduction achieved through these projects through the issuance of Certified Emission Reductions (CERs).8

Certified Emission Reductions refer to one metric tonne of carbon dioxide or its GHG equivalent reduced from the atmosphere by a mitigation activity. CERs are standardised GHG reduction credits that are becoming a commodity that can be bought and sold on the global market, and in some cases banked for the future. See UNCTAD Earth Council, ‘A layperson's Guide to the CDM’, available at www.unctad.org/ghg.

 Thus, while the CDM allows developed countries investing in such projects to achieve their emission reduction commitment with much flexibility and at much lower costs, it promotes sustainable development in developing countries hosting such projects. The CDM thus offers developing countries the opportunity of achieving progress in environmental issues such as cleaner air and water, reduced deforestation, soil conservation, and biodiversity protection. It would also offer them social benefits such as rural development, employment, and poverty alleviation; while encouraging private investment and public-private partnerships in economic development.9

FIELDS, CDM Glossary, Foundation for International Environmental Law and Development, available at www.field.org.uk/climate_2.php (accessed 12 May 2008).

 Estimates indicate that by 2010, foreign investments through CDM projects could reach US$4752 Million annually.10

G. Guangshen, ‘Clean Development Mechanism in China; Taking a Sustainable and Proactive Approach’ 2 Sino Sphere Journal (2004): 3.

However, the CDM being a market-based mechanism allows governments of developed countries to decide on which developing country they wish to pursue their emission reduction activities.11

Due to the fact that the CDM process involves the trading of CERs and the reduction of emission on a project basis, it is often colloquially referred to as the CDM Market. See e.g., S. Dhakal, ‘CDM Market: Size, Barriers and Prospects’, available at http://www.iges.or.jp/en/ue/pdf/dhakal/dhakal_CDM.pdf.

Consequently, developed countries, like prudent investors, are often in search of investment locations which guarantee high emission reduction at the least cost and with the least investment risks. Thus, a country with high mitigation potential, a safe and conducive investment climate and an appropriate legal framework on CDM implementation will often be considered as a very attractive spot for CDM investments.12

M. Jung, ‘Host Country Attractiveness for CDM non-sink projects’, Energy Policy (2006): 2174.

Unfortunately, due to the distinct economic, social and administrative conditions among developing countries, 67% of developing nations have so far been unable to meet up with these requirements and have consequently been unable to attract prospective CDM investors.13

See A. Silayan, ‘Equitable Distribution of CDM Projects Among...

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