Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
Written by Toh Zhee Qi, a second-year law student of the Faculty of Law, University of Malaya.
Edited by Ahmad Muntazar bin Ali.
The rising sea level and global temperature led to the inexorable rise of climate movement. Being a signatory of the Paris Agreement, Malaysia has pledged allegiance towards the global collective commitment of cutting climate-altering pollution. Nonetheless, this fight remains a challenging feat.
The global climate movement has begun to gain momentum. However, the race against the global warming clock is almost shoulder to shoulder. Climate change can severely impact human life. Extreme weather threatens water supply and food security, which consequently leads to human migration and health implications. This is essentially a cycle that needs to be put to rest or at least slowed down until alternatives are found.
In response to the threats of global warming, international bodies have started to take action. To understand the start of the international environmental movement, we need to backtrack to 1992, when the Rio Earth Summit took place. Three international environmental conventions were tabled — United Nations Convention on Combatting Desertification (UNCCD), the United Nations Framework Convention on Climate Change (UNFCCC), and the United Nations Convention on Biological Diversity (UNCBD).
The pertinent framework which eventually led to the formation of the Paris Agreement is the UNFCCC. Since its establishment, its goal of stabilising greenhouse gas concentrations in the atmosphere has been laid down. Within the UNFCCC, there are key principles which function to govern its state members. The said principles can be summarised as follows:
Aside from these fundamental principles, the central body to the UNFCCC is the Conferences of Parties (COP) where most negotiations take place. COP meetings take place annually in different cities of its state parties.
In COP3 (1997), the birth of the Paris Agreement’s predecessor — Kyoto Protocol took place. The goal of the Kyoto Protocol was to reduce the emissions of the six major greenhouse gases in industrialised countries. At first glance, this seemed to be a positive approach. Nevertheless, the Kyoto Protocol was halted due to several complications. One of the major problems was that developing countries had no commitment to lower their carbon emissions. In contrast, developed countries needed to keep their emissions within target while supplying funds to developing countries. Apart from that, the carbon market was unstable because developed countries were trading amongst themselves. Thus, developing countries were unable to sell their carbon credits.
To resolve this, negotiations began under COP from 2011, and the Paris Agreement came into formation at the year of 2015. The key goals of the Paris Agreement can be condensed as follows. First and most importantly it aims to hold the increase in the global average temperature increase within the range of 1.5 to 2°C above pre-industrial levels. Second, it intends to increase state parties’ ability on adapting to the impacts of climate change without threatening the food production chain. Last, it commits to ensure finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient developments.
Signatories to the Paris Agreement are required to submit their National Determined Contributions (NDC). These NDCs are dependent on the countries’ capability to fulfil the said commitments. As a signatory to the Paris Agreement, Malaysia has committed to a reduction of greenhouse gases by 45% by 2030. This consists of 35% of unconditional basis and 10% conditional basis upon the receipt of climate finance, technology transfer, and capacity building from developed countries.
The Paris Agreement is an extensive document, like any other legal framework. Thus, this article aims to shed some light on the key areas of the agreement and its implications towards Malaysia’s policies and legal framework. Further, it also expounds on the international assistance received. A segment of this article aims to address the problematic carbon market that is still in negotiation, culminating with an analysis of how Malaysia can improve and make our mark in the global climate scene.
II. DOMESTIC INITIATIVES, POLICIES, AND LEGAL FRAMEWORK
Malaysia’s commitment towards the Paris Agreement extends beyond the four corners of the agreement. As stated above, all parties to the agreement are required to submit communications on their NDCs. This is very much in line with the enhanced transparency framework and the global stocktake initiative laid down respectively in Article 13 and 14 of the Paris Agreement. In compliance with that, Malaysia has submitted two biennial reports to the UNFCCC respectively in 2015 and 2018. The focal points on this part shall be adaptation and mitigation measures taken by Malaysia.
The occurrence of floods is no stranger to Malaysia. There are a total of 191 river basins. Out of those, roughly 140 of them are flood-prone basins. Thus far, studies have only been conducted on 15 flood-prone basins which are all located in Peninsular Malaysia, despite Sabah and Sarawak also being largely covered with basins. Under the Tenth Malaysia Plan (2011-2015), 184 flood structural measures have been carried out. For the Eleventh Malaysia Plan (2016-2020), an additional 70 new flood mitigation projects are to be implemented. The sector of infrastructure has also been improved for flood adaptation and approximately 7,632 flood relief centres have been established across Malaysia.
Although it rains all year round in Malaysia, it does not make the land immune to the impacts of dry spells. Dry spells have been occurring all across the Asia Pacific. This can be attributed to the El Niño condition — abnormal weather caused by the warming of the Pacific Ocean. It was predicted that the dry spell severity will gradually increase in the years of 2025-2035 in Peninsular Malaysia and later 2045-2055 at the Borneo region. In response to that, the National Water Balance Management System has been implemented to tackle water availability issues through a water auditing system.
Climate impacts are heavily interlinked. The occurrence of such environmental happenings will affect the country’s food security and agriculture. To tackle this, Malaysia developed the seasonal projected dry spell for vulnerability assessments. Besides, the National Agro-Food Policy (2011-2020) was adopted in 2011 to ensure food security.
Being a country bordered by the ocean, 29% of Malaysia’s coastlines are threatened by erosion. Nevertheless, the Integrated Shoreline Management Plans and the National Coastal Vulnerability Index have been developed. Detailed sea level rise studies had also been conducted at some of the vulnerable coastal areas to project future vulnerabilities in a 20-year sequence from 2020 to 2100.
One of the major implications of the Paris Agreement for Malaysia would be the development of a National Adaptation Plan. This plan has been tabled within the Intended Nationally Determined Contribution (INDC) submitted to the UNFCCC. However, said details of the adaptation plan have not been furnished yet. Even so, with such a vision in mind, this can be seen as a huge leap forward in the Malaysian climate scene.
The pinnacle of Malaysia’s mitigation measures is the National Policy on Climate Change. This policy recognises the need for both mitigation and adaptation measures to be carried simultaneously and in a balanced manner. Its key actions include the development of national climate projection models to identify vulnerabilities, the promotion of renewable energy, and sectoral policies. These initiatives are very much in line with the two Biennial Update Reports submitted to the UNFCCC.
The sectoral policies are related to transport, energy, waste, land use, forestry, and agriculture. In the transportation sector, initiatives have been taken to control emissions from motor vehicles with higher usage of energy-efficient vehicles and biofuels. The B10 programme which has a 10% palm oil blend in diesel fuel was launched in 2019. This implementation has reduced emissions by 1.6 million tonnes per year. A potential 15% blend has been tabled for 2020, however, there has been no announcement of the actual roll-out. Furthermore, the Land Public Transport Master Plan aims to achieve 40% of public transport modal share in all cities by 2030.
With energy production being a massive contributor to the country’s carbon emission, the renewable energy sector has occupied the forefront. The National Renewable Energy Policy aims to achieve a 20% renewable energy capacity mix by 2025. This policy has initiated programmes to expand the national accessibility of renewable energy. As of 2019, Malaysia has approximately 2% of its energy coming from renewable energy generation sources compared to the total generation mix and targets. It remains quite a stretch from our target, however such calculations are dependent on the rate of renewable energy penetration into the grid as well as the growth in electricity demand within the Asia region.
Moreover, the Renewable Energy Act 2011, implemented the Feed-in Tariff mechanism to accelerate renewable energy growth in Malaysia. It offers long-term agreements to renewable energy producers to sell electricity to the grid at premium prices. Companies generating energy from renewable sources have the choice to apply for incentives. Those incentives include income tax exemption, investment tax allowance, import duty, and sales tax exemption on equipment used to generate renewable energy. As of 2013, this initiative has reduced greenhouse gas emissions by 432,000 tonnes of carbon dioxide.
Moving forward, there are also plans for future improvements. For instance, the Climate Change Act which was due to be implemented after 4 years of collaboration with the United Kingdom. Malaysia aims to use the United Kingdom’s Climate Change Act 2008 as a model reference for our potential Climate Change Act. The highlight of the United Kingdom’s Climate Change Act 2008 is its incorporation of the targeted carbon emission reduction. An enactment to this effect makes it compulsory for the country to comply with its commitment to emission reduction. Globally, it is the very first legally binding climate change mitigation target that has been set by a country.
III. INTERNATIONAL ASSISTANCE
Malaysia’s pledge to reduce emission by 45% is with 10% being conditional upon the receipt of assistance from the developed countries. Assistance is given through the sectors of climate financing, technology transfer, and capacity building.
On the part of climate financing, the Green Climate Fund (GCF) was set up by the UNFCCC. In 2017, the GCF has channelled funding to Malaysia through a collaboration with the Carbon Trust. This project includes work in the distinct areas of the energy sector and low carbon cities.
Even before the GCF, Malaysia has already been receiving international funding for low carbon cities from the Global Environmental Facility and the United Nations Development Programmes. The low carbon cities project was under the then Ministry of Energy, Science, Technology, Environment, and Climate Change and Sustainable Energy Development Authority. This project was known as the Green Technology Application for the Development of Low Carbon Cities (GTALCC) project. The GTALCC aims to facilitate and promote low carbon initiatives among Malaysian cities. The five pilot participating cities are Putrajaya, Cyberjaya, Iskandar Malaysia, Petaling Jaya, and Hang Tuah Jaya.
In the light of the current pandemic outbreak, the GCF has made a press release in response to the COVID-19, acknowledging its impact on both developed and developing countries. They are pursuing to provide flexibility to the partners. Based on the meeting report, they are also encouraging contributing countries to confirm their pledges. As of February 2020, 12 countries have confirmed all or part of their pledges. Thus, Malaysia should be ready to receive grants from the GCF to improve current projects and for further implementation.
As for the external capacity building, Japan has been hosting its annual Workshop on Greenhouse Gas Inventories in Asia (WGIA) since 2003. Its goal is to aid countries in Asia in developing and improving their greenhouse gas inventories and provide opportunities to exchange information between countries. As for the United States, the USAID Low Emissions Asian Development (LEAD) Training Programmes have been established to assist in greenhouse gas inventories and mitigation measures. Countries involved will then share their knowledge in the Asia LEDS Partnership programme.
Through these avenues of assistance, the past and the future, one can envision the prospects of the Malaysian climate scene in a hopeful light.
IV. CARBON MARKET
Although the Paris Agreement is set to fully enter into force in 2020, the rules of the carbon market have yet to be finalised. Through international cooperation in the carbon market, carbon trading can ensure climate financial flow and flexibility to reduce emissions. The carbon market could potentially reduce carbon emissions by twofold, at no additional cost. Carbon trading is a double-edged sword. It can potentially prevent dangerous levels of global warming or allow countries to escape from their commitments.
The general idea of the carbon market is that countries which struggle to meet their NDCs can purchase carbon credits from other countries to remain within their target. In exchange, the money paid can be used by the latter country to further improve infrastructure on reducing carbon emission. However, the negotiation on this point has been unsuccessful for two consecutive years in COP held respectively in Katowice and Madrid.
The continuous failure in negotiations is nonetheless, not entirely surprising. Ever since the Kyoto Protocol, there have been many underlying issues with the carbon market, which was then known as the Clean Development Mechanism (CDM). Most projects involved in development in renewable energy technologies have been criticised for their negative impacts. There are also ethical concerns that the production of palm oil may affect the environment, wildlife, and native communities.
As for COP25 in Madrid, pressing current issues that surfaced in the Paris Agreement have been discussed. The issues include double-counting, additionality, the carry-over of pre-2020 Kyoto Protocol proceeds, and the share of proceeds. The issue of double-counting can arise when the country that sells carbon credits also count those credits as their reduction. Thus, this may lead to a counterproductive result. The issue of additionality and carry-over are also deeply rooted in the premise of counter-productivity. The point of carbon credit sale would not be achieved if countries are not held accountable for the exact amount of emissions they produce. Thus, all of this ultimately boils down to the country’s integrity in accounting for their carbon emission.
Although the negotiations at the most recent COP at Madrid have not come to a perfect conclusion on the carbon market, however, there was still a positive outcome. 32 countries have pushed for the implementation of the San Jose principles to ensure accounting integrity. These principles include the prohibition of pre-2020 Kyoto Protocol units, avoidance of double counting, and a publicly accessible transparent accounting system.
Despite the inherent issues in the carbon market, Malaysia has great potential to expand into it. Since the Kyoto Protocol’s CDM, Malaysia has been closely involved in the efforts of reducing emissions through carbon trading. The most prominent source of renewable energy comes from palm oil. Biomass production accounts for roughly 80% of Malaysia’s CDM pipeline. Biomass energy is generated from waste such as Palm Oil Mill Effluent (POME), wood waste, and agricultural residue. Therefore, if the rules can be fully negotiated in the upcoming COP, it will be favourable for Malaysia to finally partake in the carbon market.
V. ANALYSIS AND SUGGESTIONS
The four internationally recognised crimes which fall within the jurisdiction of the International Criminal Court are genocide, crimes against humanity, war crimes, and crimes of aggression. Until 1996, the drafts of the Rome Statute’s list of international crimes against humanity included the crime of ecocide. Disappointingly, it was dropped later on at the behest of the United Kingdom, France, and the Netherlands. Currently, only a few of the most affected states such as Maldives and Vanuatu are endorsing this.
Due to the dualism approach implemented in Malaysia, international law is not binding upon the state until it is implemented through municipal law. Thus, it is pertinent for Malaysia to enact laws to safeguard the environment. Although the right to a clean environment is said to be implied through the fundamental liberty of right to life, it is not sufficient for such a right to be merely implied and applied through case laws.
Mere commitments towards international treaties are insufficient. There have been cases of non-compliance towards the Kyoto Protocol. For instance, Canada has failed to establish a national registry following the guidelines and modalities. The case was not further pursued as Canada confirmed that the said registry will be established in the following year. Although this case seems to be minute and merely administrative, the non-submission of reports suggest the lack of weightage given towards Canada’s environmental commitments. There are no serious consequences if a country does not comply with its commitments. Serious legislations need to be enacted to ensure that the environment is safeguarded.
Nonetheless, the law has indeed progressed. One of the most well-known climate change cases of today is Lliuya v RWE AG. This is the first lawsuit in Europe in which a person affected by the risks of climate change had brought an action against a private company. The case is yet to be decided but one distinguishing factor was that local German legislation was cited in the motion. The court took a huge step forward through its recognition that a private company may be held liable for the climate change-related damages of its greenhouse gas emissions.
As for cases involving the Paris Agreement, the case of Armando Ferrão Carvalho and Others v The European Parliament and the Council can be referred to. It illustrates the standpoint of the regional court’s view of an individual’s capacity to bring forth an environmental related motion. The court did not rule on the merits, but rather dismissed the case on the grounds of locus standi. The learned judge opined that the plaintiffs could not bring the case as they were not sufficiently and directly affected. Previous case law requires that plaintiffs are affected by the contested act in a manner that is ‘peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually’.
Presently, 149 out of 193 world’s national constitutions include explicit references to environmental rights. The incorporation of environmental protection within national constitutions was spearheaded by Switzerland (1971), then later followed by Greece (1975), Papua New Guinea (1975), Portugal (1976), and Spain (1978). As of today, there are 44 United Nations state members that remain silent on environmental rights within their national constitutions — the most prominent historical background is that the United Kingdom is one of the 44 nations, as are 27 former British colonies, one of them being Malaysia.
COP has been postponed for a year due to the pandemic, thus most negotiations are halted. Even so, there remains an urgent need for countries to further revise their commitments. Although a lot has been planned and implemented, there can never be enough when it comes to climate change prevention. There is a dire need to reach net-zero emissions by 2050 to limit the severity climate change impacts.
On a more positive note, recently, there has been a drop of 2.1% on carbon emissions in the European Union since the switch from coal to renewable energy. The pandemic outbreak and the consequent economic turmoil were likely causes of the sudden drop.
Thus, there is no doubt that more ambitious reductions can be achieved. There are means to move forward albeit the current uncertainties. The question is whether humans are willing to compromise our current wants for our future needs. To that, no words can serve as an affirmation, only through actions can we put out the flames of this burning question.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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