International Law

New Zealand is party to multi-lateral international agreements. These agreements are directly enforceable where their provisions have been incorporated in domestic legislation. However, international agreements are significant even when they are not incorporated into domestic legislation as there is considerable political and moral force on governments to act in accordance with international obligations.  In addition, the Courts will interpret domestic legislation consistent with international agreements so far as the wording of the legislation allows.

The United Nations Framework Convention on Climate Change (UNFCCC)

The UNFCCC obliges governments to mitigate climate change through general and specific measures aimed at reducing greenhouse gas emissions. However, it does not include binding targets and there are no compliance mechanisms. 

Objective

The UNFCCC aims to stabilise greenhouse gases “at a level that would prevent dangerous anthropogenic (human-induced) interference with the climate system”.  The notion of dangerous is subjective and is only partially able to be answered by science. ⁵⁰¹⁰  While no specific timeframe is prescribed stabilisation must occur “within a time-frame sufficient to 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”. ⁵⁰¹¹

Principles  

The UNFCCC contains five key principles: ⁵⁰¹²

1. Common but differentiated responsibility: countries have a common responsibility for the protection of common resources, but differentiated responsibility due to substantive inequality (arising from different historical contributions and current capacity).
2. Consideration of the disproportionate burden on countries vulnerable to adverse effects of climate change.
3. The precautionary approach:  Measures must be taken to diminish the adverse effects of climate change despite scientific uncertainty regarding the risks (although scientific uncertainty has significantly diminished since the signing of the Convention).
4. The right to promote sustainable development.
5. Ensuring climate change mitigation efforts do not damage free trade and promote supportive and open international economic development. 

Parties 

The UNFCCC has an almost universal membership, 195 countries have ratified the agreement by incorporating the provisions in legally binding domestic legislation and are called Parties to the Convention. There are three party types:

1. Annex I Parties:  Industrialised countries within the OECD in 1992 and countries with economies in transition.
2. Annex II Parties: Annex I parties excluding the countries with economies in transition.
3. Non-Annex Parties:  Predominately developing countries.

In addition, 49 Parties classified as Least Developed Countries are given special consideration due to limited adaptation capacity. New Zealand is an Annex I and II party. The recognition of party types allows for differential commitments based on the principle of common but differentiated responsibility. 

Conference of the parties 

The Conference of the Parties is comprised of all Parties to the Convention and is the highest decision-making authority of the Convention. It is responsible for keeping international efforts on track through fulfilling the following tasks:

• Periodic re- examination of Convention obligations given experience and knowledge advances
• Reviewing national communications
• Assessing progress in reaching objectives through considering the overall effect of measures taken
• Promotion and guidance in the development of comparable methodologies for emissions inventory preparations in aid of evaluation of the effectiveness of measures.
• Deciding on the basis of available information to make Annex amendments affecting party-type, with party approval.
• Where multiple parties wish to co-ordinate measures the COP is responsible for facilitation of such measures.
• Seeking to mobilise financial resources
• Agreeing and adopting by consensus rules of procedure and financial rules for itself and subsidiary bodies.
• Exercising functions required for achieving  assigned functions and the Convention objective

The Conference of the Parties is required to meet annually.

Commitments 

All parties: ⁵⁰¹³

Informational and educational commitments:   

All parties commit to:

1. Developing, periodically updating and publishing national emission inventories, excluding gases controlled by the Montreal Protocol, based on comparable methodology. This includes provision of this information and other implementation information to COP. 
2. Promotion and co-operation in full, open and prompt exchange of relevant scientific, technological, technical, socio-economic and legal climatic information and of socio-economic consequences of response strategies.
3. Promote education, training and public awareness to encourage widest participation in processes, including of non-governmental organisations. 

Policy commitments 

All parties commit to:

1. Formulate, implement, publish and regularly update national and if applicable regional programmes including mitigation measures and adaptation facilitation;
2. Promote sustainable management and co-operate in conservation and enhancement of sinks and reservoirs of gases not controlled under the Montreal Protocol;
3. Co-operate in climate change adaptation, through developing appropriate integrated plans on coastal zone management, water resources and agriculture, and in protection and rehabilitation of affected areas.
4. Account for climate change to a feasible degree in socio-economic and environmental policy action plans employing appropriate methods to minimise adverse effects on economy, health and environmental quality in projects.

Technological and research-based commitments

All parties commit to:

1. Promote and co-operate in developing and transferring technologies, practices and processes which control, reduce or prevent emissions in all relevant sectors.
2. Promote and co-operate in scientific, technological, technical, socio-economic and other research.  Further, including systematic observation and development of data archives related to climate systems to further understanding and minimising uncertainty in such research.

Annex I Parties:

Annex I Parties are required to adopt national policies and measures to limit anthropogenic emissions and protect greenhouse gas sinks and reservoirs, with the aim of jointly or individually returning to 1990 anthropogenic emission levels for gases not controlled under the Montreal Protocol.

These parties are encouraged to take the lead in modifying longer-term emissions trends having regard is to be given to the starting point, resource differences, and the need to maintain sustainable economic growth. Annex I Parties are required to communicate progress including information on policies, measures and emissions projections within six months of entry into force of the UNFCCC.

Annex II Parties:

Annex II parties are required to provide financial resources and aid technology transfer to enable developing country compliance, taking into account the need for adequate, predictable funds and based on the principle of common but differentiated responsibility. Least Developed Countries must be given particular consideration.

Non-Annex parties:

Non-Annex Parties are required to comply with the commitments applicable to all parties. 

The Kyoto Protocol 

Few countries made legitimate efforts to reduce emissions under the UNFCCC due to the lack of specific targets and compliance mechanisms. A more focused, specific and binding document was required.

The Kyoto Protocol was adopted in Kyoto, Japan on 11 December 1997. It entered into force on 16 February 2005. There are currently 192 parties to the Kyoto Protocol however it was not ratified by key countries including the United States of America. The Kyoto Protocol set binding greenhouse gas emission reduction targets for 37 countries and the European community over its first commitment period (2008-2012). However, a number of countries, including China and India, were specifically exempt from binding targets. The absence of these nations and their rising level of emissions ⁵⁰¹⁴ gave rise to political criticism of the principle of differentiated responsibility applying under the UNFCCC and the Kyoto Protocol. 

Calculating targets

The Protocol aimed to reduce emissions of six specified gases during the 2008 to 2012 period (‘the commitment period’). ⁵⁰¹⁵ New Zealand committed to limiting emissions to 1990 levels and therefore had a base level of 100% of 1990 emissions. This emission target was divided into “Assigned Amount Units” (AAUs). These represented allowable emissions which with each unit being one tonne of ‘carbon dioxide equivalent’ (a relative value based on the amount of carbon dioxide that would generate the same environmental repercussions as a given level of another specified gas). In New Zealand the initial assigned amount was 309,564,733 AAUs (around 309.6 million tonnes of carbon dioxide equivalent). This is five times the 1990 emission level in order to allow for emissions over the five-year commitment period. ⁵⁰¹⁶

Achieving targets 

Parties were to achieve targets by remaining within their allocated AAUs. This could be done in two ways:

1. Through meeting or exceeding required reductions at the national or regional level. This is shown by verifiably measuring net changes in greenhouse gas emissions: the difference between source emissions (where the greenhouse gases are released e.g. vehicle exhausts) and removal from sinks (e.g. the conversion of carbon dioxide by trees into energy via photosynthesis).

2. Parties may counteract an exceedance of their allocated AAUs through purchasing units under market-based mechanisms. This is discussed further below.

Mechanisms 

The Kyoto Protocol provided two key mechanisms: a reporting and verification process and flexible market-based mechanisms. 

The reporting and verification process involved parties giving transparent and verifiable emissions reports to the Conference of the Parties. ⁵⁰¹⁷ The Protocol included specific methods for creating greenhouse gas inventories and estimating nation emissions reductions. ⁵⁰¹⁸ Expert review teams reviewed the information submitted. ⁵⁰¹⁹

The flexible market-based mechanism involved:

1. International Emissions Trading - parties could purchase excess AAUs from countries that have spare emission units. A country had spare units if they exceeded required emissions reductions. This is referred to as the “carbon market”. 

2. The Clean Development Mechanism ⁵⁰²⁰ - This mechanism allowed nations to create an emissions-reduction project within a developing country to obtain a Certified Emission Reduction credit. Each credit, equivalent to 1 tonne of carbon dioxide, can be counted towards meeting Kyoto targets. There have been over 1,650 projects registered. An example of one such project is the Bus Rapid Transit System which provides clean and efficient transportation within Bogotá in Colombia. ⁵⁰²¹

3. Joint Implementation Projects - A country which exceeded its AAUs could earn emissions reductions units through joint involvement in an overseas project which resulted in a reduction in source emissions or increases removals of emissions. New Zealand was involved in a range of joint implementations projects. For example, Meridian Energy Limited’s wind farm at Te Apiti reduces emissions through cleaner energy generation and, provided all the eligibility criteria are met, Meridian was  able to sell the resultant emissions reductions units to the project participant, in this instance a company based in the Netherlands.

Under the Kyoto Protocol accounting rules applicable to New Zealand in the first commitment period, certain land-use change and forestry activities provided credits that were added to allowed GHG emissions, excluding LULUCF (Land use, land-use change and forestry), during this commitment period. In the first commitment period, these activities resulted in extra emission allowances for New Zealand of, on average, 14 MtCO₂e per year (equivalent to about 23% of base year emissions in 1990). As a consequence of its large volume of LULUCF credits, New Zealand had a substantial surplus of unused emission units at the end of the first commitment period. As explained below, New Zealand proposes to use these surplus emission allowances from the first commitment period, which are derived, in part from Kyoto LULUCF credits and acquired emission units from other countries, to meet its 2020 reduction target under the UNFCCC. ⁵⁰²²

The Doha Amendment to the Kyoto Protocol 

The Doha Amendment resulted from the United Nations Climate Change Conference in 2012. This agreement established a second commitment period (2013-2020) under the Kyoto Protocol. The amendment replaced Annex B of the Kyoto Protocol outlining emissions reduction commitments.  In 2015, New Zealand chose not to take a commitment under the Protocol for the second commitment period; instead it has taken a voluntary target under the UNFCCC for the same period. Nonetheless, New Zealand remains a Party to the Protocol, has some ongoing obligations under it, and has stated domestically and internationally that it will apply the broad Kyoto Protocol framework of rules to its target.

New Zealand’s unusual decision to adhere to the Kyoto rules and subsequently ratifying the Doha amendments without signing up to the second commitment period raises a number of legal issues, as the Protocol provides certain benefits only to Parties that have emission reduction commitments for the second commitment period. The Kyoto rules New Zealand seeks to apply, broadly relate to:

• The carry-over of surplus emission units and allowances from the first commitment period;
• The ability to generate LULUCF credits during the second commitment period;
• The ability to purchase and sell Kyoto emissions units from other Kyoto Parties during the second commitment period; and
• Provisions relating to the carryover of any surplus from earlier commitment periods to the post-2020 period. ⁵⁰²³

The amendment will only come into force when 144 parties under the UNFCCC have accepted it. As of 9 August 2017, 90 parties have accepted the Doha Amendment.  

 The Paris Agreement 

The Paris Agreement is the new global agreement on climate change. It can be viewed here. It was adopted by Parties under the United Nations Framework Convention on Climate Change (UNFCCC) on 12 December 2015. It commits all countries (developed and developing) to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so. The Paris Agreement entered into force on 4 November 2016 and will take effect from 2020. This means New Zealand’s mitigation commitments (our Nationally Determined Contribution) will apply from 2021. ⁵⁰²⁴

Its purpose is to: ⁵⁰²⁵

• keep the increase in global average temperature to well below 2° C above pre-industrial levels, while pursuing efforts to limit the temperature increase to 1.5° C, with an aim to reach peaking of global greenhouse gas emissions as soon as possible and to reach net-zero emissions by the second half of the century;
• enhance the ability of countries to adapt and reduce vulnerability to the adverse impacts of climate change;and
• make sure that financial flows support the development of low-carbon and climate-resilient economies. 

The agreement provides a framework for the global response to climate change. It does not prescribe the means for achieving a 2° C or 1.5° C degree ambition.  Detailed rules, including those rules about the use of markets and the accounting for the land sector, will be negotiated in the period leading up to 2020. ⁵⁰²⁶

Ratification

New Zealand ratified the Paris Agreement on 4 October 2016.

New Zealand had earlier signed the Paris Agreement on 22 April 2016 at a ceremony in New York. The Government initiated the parliamentary process for ratifying the agreement on 17 August 2016. The Paris Agreement with the National Interest Analysis was presented to Parliament. A select committee considered the advantages and disadvantages to New Zealand joining the agreement. The select committee concluded that it is was in New Zealand’s best interest to ratify the Paris Agreement.

On 4 October 2016, New Zealand helped make history by depositing its ‘instrument of ratification’ with the UN Secretary-General and therefore agreeing to be bound by the terms of the agreement. The following day, the threshold for the agreement to enter into force was met (when 55 countries which are responsible for 55 percent of global emissions had ratified the agreement). 168 Parties have ratified of 197 Parties to the Convention.

By ratifying the agreement New Zealand commits to having an emissions reduction target and regularly updating it. 

Ratification also commits us to: 

• continue to regularly report on our emissions and how we’re tracking towards meeting our target
• continue to provide financial support to assist developing countries’ mitigation and adaptation efforts
• plan for adaptation.

The Government has announced it will set up a group of technical experts to look at what more New Zealand needs to do to adapt to climate change, and how our actions will affect our economy and society.  

Nationally Determined Contributions

New Zealand's current target is to reduce greenhouse gas emissions by 30 per cent below 2005 levels by 2030. This target is equivalent to 11 per cent below 1990 levels by 2030. Our target is expressed against 2005 emission levels similar to some of our trading partners.  View a copy of New Zealand’s NDC see here.

New Zealand intends to use international market mechanisms, cooperative approaches and carbon markets to meet its target. New Zealand’s accounting of LULUCF (Land use, land-use change and forestry) remains unclear; New Zealand plans to fully describe its approach in its first communication under the Paris Agreement. ⁵⁰²⁷

Countries will be expected to submit an updated NDC every five years which will represent progression beyond the country’s then current NDC to reflect its highest possible ambition.Based on current emissions levels, New Zealand's net domestic emissions are projected to rise to 100Mt in 2030, from 66Mt in 1990. The official National Responsibility Target indicates a target of 53Mt in 2030. The previous National Party-led New Zealand government proposed a set of measures to reduce New Zealand's emissions by 2030, namely the modelled impacts of the NZ Emissions Trading Scheme (ETS) official afforestation scheme and the National Environmental Standard for landfills. Official projections based on these measures being taken, amount to 0.4% reductions in gross emissions by 2030. If all other countries were to achieve this target in emissions reductions, it would result in a global temperature increase of over 4.3°C, an indubitable path to catastrophic climate change. 

The 2018 outlook 

In 2017, a new Labour-led Government was elected. Their election policy identified climate change as "the greatest challenge facing the world". 

Labour said it would: 

• set a target of net zero for greenhouse gas emissions by 2050, with legally binding emissions reduction targets, and carbon budgets to keep New Zealand on track to this goal 
• establish an independent Climate Commission to recommend interim emissions reduction targets and provide advice on the ramifications of not achieving them 
• encourage young people to take part in the effort to end our climate pollution through a Youth Climate Change Challenge
• show government leadership by requiring state-owned enterprises and other government organisations to actively pursue low-carbon options and technologies including all future purchases of all Government vehicle fleets to be electric vehicles unless there is an exceptional reason otherwise
• restore the Emissions Trading Scheme (ETS), including bringing agriculture into the ETS 
• ensure that farmers operating at best practice are recognised so they can be directly credited for emissions reductions they achieve
• support a just transition for workers in industries that need to reduce emissions and the creation of jobs in sectors that are carbon-free or carbon sinks, such as forestry
• establish a Transitions National Science Challenge to consider the science, research and development required for the transition to a low-carbon economy.

Zero Carbon Bill 

On 18 December 2017, Cabinet agreed to the process to introduce a Zero Carbon Bill to Parliament in 2018. This Bill would set the framework for action on climate change.

Throughout 2018, Ministry for the Environment officials will work on developing what’s in the Bill, including options for:

• a new 2050 target for greenhouses gas emissions
• an independent Climate Change Commission, and setting out its roles, powers and functions.

The Government has said it is committed to a just and effective transition to net zero carbon emissions.

Last updated at 9:07AM on April 9, 2018