L1 The science of climate change: a legal perspective on the IPCC Duncan F Benjamin Pontin The Intergovenmental Panel on Climate Change (IPCC) was etblisbed to ase the idence of human-induced cliate change, a wel as oases isinpoct and oor vl abit and to make scene judgements on mitigation and adaptation. As scent debts on limate change increasingly atetion bi taal set-up eral process and mays of working. Desp ties o have pivotal le in thee tecture on in LI Introduction eure fo the peeptation, review, accent, adoption, pp Tis Th reformed assent feline eno Ls Gonchsions Tie ltreoteremcsat Panel on Climate Change (PCC) was exalshed n1988 Unie Nations Enviromental Pranane (UNE), One tr math prosesume Fclimate change law wirommental law: 10. Encyclopedia of confidence? As discussed below. Fing that relating to the IPCC 9s an be foreseen with 501 of human intervention can vonfigenee’ has many layers in tis conte casas confidences pager examines rom legal perspective such of governance and ‘hor monitors climate data, but rather seeks {0 asses vate the cuenta of Gro 1 OWGH (Coe pies and tmulang and coordinating targeted reste 9 ening he es eerie ume api to he ort of te gsr IMFO ng Groups concerued with impacts and adaptation (WGI) and nee a Convention on Climate Change (FCC fo suing le ‘ 7 ‘emissions just from the developed group." But it carefully avoids ‘The principal work of th ‘September 2013 and November fusofar as they require Tho + ontpats, there ave othe element 1 is work (6 fn 2015 neon Clit ss nes the InergovermentalF thi by far de ain "Mon recent the Paris Deon. ae global warming of 1.5 °C Gh ee el at weno gemini FCCC DSL Tad pe Pol mca fhe Ghuige Sor Miigation of Ci af the TEC Civ sanmenn Report of the PCC Cambie Unies ts Report IPCC 201 4 Kyoto Protocol (A AnD ty Press 201 Cline 152) im conjneton with Framework Climate Changs Conve rotoeol Annex on of Cnet Change 04) 385 he sac of mins rom Kyoto F owes as ein rom 0 Ane ofthe Kyte Protos TH mee ee 108 recat stom, ny ark 4th Ps ABCEDEN (SN ea The scence of imate change 1 any avowed politial postion, or gcneralized statement of normative principle. In par ticular, its notable that principles suchas the preventative or precautionary principles have historically been absent from the ork ofthe IPCC, or only broadly considered Working Group MI in its 2007 Fourth Assessment Report, for instance, noted that there is no single agreed definition of precautionary decision-making in the scientific Tterature’? Nevertheless in the 2015 report of Working Group IIT, there does seem Further willingness to engage with the precautionary principle ~ cited here with reference to Principle 15 of the Rio Declaration. * thus also raising the prospect ofa more reflexive {if stl cautious) approach in the future to contemporaneous and emerging normative ‘debates. lis achieving this tripartite balance between scientific authority, scientific injunc- tion to action whilst avoiding the polities of climate change thatthe TPCC has sought to secure in its evolution and operation and a measure against which it ean be judged objectively 1.1.2 Institutional characterization of the TPCC The establishment of the IPCC was endorsed by the UN General Assembly at its forty third session in 1988 asa ey clement in its resolution onthe ‘protection of global climate for present and future eneratious of mankind’. The global nature of the Pane! means it is ‘open’ for ‘participation’ by all WMO and UN member countries, presently totaling "This terminology of ‘participation’ as will be explained later ~is significant both within the ordinary context of international organizations and how the IPCC operates, in particular. The Panel is described both as an“ntergovernmental body” and as ‘scientific body Such duality reflects the scenifi nature ofthe work of the IPCC and the involvement fof governments in its work. AS the Principles Governing IPCC Work (hereinafter ‘the Principles)! a document approved by the Pan! iself ~ makes clear, {sine the IPCC is an intergovernmental body, review of IPCC documents should involve both peer Feview and review by governments Ensuring the work ofthe IPCC i scientifically credible is, o course, pivotal. However, fas the Principles make apparent, being indepondent and policy-neutral in terms of oth fssessment of choices made, and choices 10 be made, cannet prevent the IPCC from having to ‘deal objetively with scieaifi, technical and socio-economic factors relevant to the application of particular polices." And as as been shown at various points in objecive of holding temperature Hse to + Secon 226 Climate Change 2007: Working Group I: Mitigation of Cimate Change (hp hpubcanne ad aaa gtevenase2- hm Mian of Cina Chage 2) won 55 The prewationary nnn los pi o bun prdct or substances it sittions wher thee the possiblity of thr eusing Mar andor whore extensive sete Fnoedge on ter risks is lacking, These actions can Be feed ony fare scat ngs ees ot prove sand eens tat no arn wk etigade above pre indus Principles Governing IPCC Wark adopted in 1998, amended various, most 2013 (ats: nw pce hip ps-prinilesips-pnsipls pa. Pipes, sb, partraph 2.2 Encyclopedia of environment ic neutrality and com ce that i both ci d processes is not easy and can be problematic; ‘bale calatives of gaveraments within ene by the presence ofthe representatives of tebution te ps ‘weakened and sien the work of the IPCC Before considering the g0¥ zit against. Ase ‘on what erteria to measure it aga fc ec revi SR IPCC lise in its conflict of interest policy, which notes eg Ame PC se yo he IPCC ae fart Sach pnp ar, of oust sy rast and rei ery mh dependent upon the coset. Neves, thers sete open he TBC mse or sans, estimate in he eo ot ar so cho community and scene conamuntis ut ness the views of interested evil society Following discussion of the Pane’ vill elect om these eriteta of I in light ofthe paramet nanos of the TPCC in further detail itis worth reflecting {summary of such entra is provided by ays, and then its assessment proce Tatcgrity, trust and credibility In in wich the IPCC is required to Whe IPCC has achieved much, hon stl farter the independ. ends rete and en any emt ne ates also give to the process, 113. Legalstats ofthe IPCC Lio Lats about oto asl theTPCC, whether a5 0°0 Therefore debe race beeen thee ts x pechaps more mantel a a ot eats to this debates unectainty 2 1 he a ‘ational law. There is no mention of the Panel in Bower's asm ch UNEP is groupe under the heading "UN Stn and et bodies’, whist the WMO i ON spi tions in intrnational aw aceptng that UNEP i stigma ae LIN). and each was established by a formal constitutional Iy been established by a formal cow (C,whether as anor semantic than real In sof the body within inte Lav of International Is ‘nsiramet By cont leat not one which s easly accessible — nor wast etal Sa esx whole, nce he role ifany ofthe WMO and UNEP. Be adn i Sa procedures hat exs develope incrementally andy These “pa level ean be added regime. Fot seks at 10 ‘cooperate closely 11, acne in 2006 (two pe hl {PCC Cont of Iter Poi ated in. beer ta to the workin ee ascssion the petal the retin Gale (019. ad The scence of climate change 13 with the IPCC (Article 21.2) Tt makes no mention ofthe content of the IPCC’ powers, ‘duties and procedures. Similarly, inthe text of the Kyoto Protocol there is a reference tothe IPCC as the body which ‘acceps" methods of verifying greenhouse pas emissions (Astle 5.2, but again there is no reference to how the Punel goes about - or ought to fg0 about this task. The climate regime thus presupposes, rather than provides for, the PCC, In these respects the IPCC can be compared to the Global Environment Facility (GEF), which is similar to the extent that i i an entity established by interational brganizations, in that case UNEP, the UN Development Programme (UNDP) (both {under the broader auspices ofthe UN) and the World Bank. Similarly, as wth the PCC States ‘participate in the GEF, rather than being constituted as fll members. The GEF however, has @ formal constitutional instrument, and “niember countries’ have 10 for mally enter into participation (which they do not inthe eas ofthe IPCC). The GEF has tibo entered into various memoranda of understandings with various entities, including he implementation work of the conventions which it supports financially. The reation- Ship between the IPCC and the UNFCCC is by contrast lid (¢he UNFCCC Secretariat, is viewed asa crucial ‘lien’ of the Panel” and participates inthe IPCC annual plenary sessions but no pursuant to any formal mandate and with any formally privileged voice in relation to other participants), ‘What is clears that despite ~or perhaps because ofthis flexibility, the Pane! through its (usually) annual plenary sessions has evolved administrative rules for undertaking fssessments which have changed overtime and are largely addressed to the criteria of legitimacy ete above, These procedures are the focus of some ofthe legal analysis ofthe IPCC, albeit with the caveat that the law ere is ofa sof’ character." Tadeo, the Panel as an entity has been described asa “soft nstitution’.® OF course this is ‘oft law has considerable advantages and is an indispensable way of formulating inter- national environmental policies and standards L1.4 Procedures for the preparation, review, acceptance, adopt publication of IPCC reports ‘The Principles contain a numberof provisions bearing on “governance and procedure ‘They are formally set out in the main text to which are appended three codes, the most Pertinent of which is Procedures for the Preparation, Review, Accep Approval and Publication of IPCC Reports (hereafter “the Procedures’) Others are Financia! Procedures for the IPCC (the body is funded by a rust administered by the WMO and UNEP) and Election ofthe IPCC Bureau and Task Force Bureau. Among the ost recent reforms tothe Principles and the Procedures are those initiated bythe thirty third and tiry-fourth plenary sessions of 2010 and 2011, at which an additional entice, of interest policy was approved (and, atthe fortieth session, futher modified). These Teforms are based on the recommendations of an independent review ~ the Shapiro approval and 1 Report ofthe Thirty-Thid Sesion of the [PCC (2011) 7 dtp pce chietings owitna port 3. Sc eacraly Peel (2010; Sands and Pes Gals . The Pocedares were more recently ameaded in Batu in 2013 4,24 & Cali 0The science of clave change 15 cyelpeta of envromena aw: vole Tefiate lange ing the risks, or conserva a, The Sh mbrella of r0UP think” of any Report is bigee than ever, nt 1,536 pages fong and containing over a milion words eee etal cm a fname Ay Report 5 ee te egurement ofan author chor that of repressive Kind extreme oF moderate We of specif reforms othe assent POSS Trperise, given tha there has been a substantial growth in the literature since the prov. d assessment of climate scien che physical science underpinning the ‘climate hiatus sotwithstanding differences of sesame atl ated” tis ecommendaon. Te Principles (Annex A, Tee her band, the geographical representation of experts in the WG sea 5) were amended at the tity fourth IPCC et in 201 vo cota UP a tp ptable to the assessment zuhors, Sans The thee Working, Groups Si ogre oom at gap. Te a ot and tful that it provides for UN Secretary General review ~ which wa oily comiinsoned bythe TPCC ap = Ih obraary 20102 Fee Revi was commision 0 nes ep that ave sounded the of aston 0 gpd mcd. The lbs aia POS oi a ao cane te eo te oe atizing the problem. The Shi jro Review Coma vise on how best to restore Lost conf ie imatogate’, a well 8 allegations care penctally The allegations ens mostly on te objection ut there appears fowards downpl ce (hereaRer not eek to provide a systematic Tow hart! ae eetpalyis of key challenges. Reference for a detailed deserip ‘The remainder of this contsbution do andemtending ofthe [PCC's procedure unde be had tothe excellent IPCC website tion of how the TPCC operates “among other sOUrees Lia The reform ut ehecion "To Com La att wee once the he he criticism was less that the selection Bross ae iy some willing Ppa te TPC publish a cleat jb dei crconmene a gpd, esi fuse Lnsst stage the wh it lacked tanspare twas unclear. The tion in which selection eit Pte most important decisions i th oe ont depends argely onthe participa Wa IS 3, para 12, As pe the rsommendation ofthe Shapiro Review (bi $3), the ote to aval ets svolved inthe [POC process, neuding tbe HPCC Buca a thor and Gs-time author in parscular, is Beeved to guard saint Fa re tse pions. See Sit Bter Wilts (who was a member of the Shapira axpertse; and second, i terms of Theat furehe elaboration i is doubt Course very genera, and Wi —.. S J Procedures of the IPCC Commit), Q'130, House of Commons Energy and Environment Commitee, Fist Ret Tamu Gang ass Rew of the Paces onde? aia Souion 2004.15, Inergonermmontl Pare! on Climate Chnge ith Assen QnterAcademy Courel 2010 vain of ater from ke OF Woking Grou Conarduton (HC Paper 7) 1 ofthe dseinatio "Th Hous of Corman n ts lagury (bi, para 49) beard evidence from Prof Pi 1 ember 2009 ou tas ra ‘Climatic Research Unit, University ‘of East Anglity 2 Re among sien. For 38 Or Th. Dislsoe of Sete eighth Report of Sess ‘Cima pose Pal Jones of he ca acre gal warning 8 St Senne se Ho erg Un aC ty of East A Sos 2010 iC 387. 2 Txbove m2 it » Bide Darra i 7 ls 7 fu his andeabe tate pvse bas come as surprise a context where anthop> Feces pecan, cre ty Ts bos Moplsstiberon ctor tha are no propery taken ato account in the climate models As suck Mee sical stay suing as prope vaation ofthe uncetaatisatached so pred Age Twas expen Fn xls ore WS hove nf. 1 canter expansion natal dceaal variably, which the Panel at sedis cote’ tag then explana), See urher below n 37 and associated tt.16 Encyclopedia of environmental ly explie: Though wis the participation of Liat Bs Report The Shapio Review Repeat the obj of Hina Tee he hacking of IPCC ath ee om passage inthe Re ‘hich was later corrected, But at ound that the error had been ov and the majority Assessment Report Tee Committe recommended dressed and that debate att te publically selected i the mai tbove, the problem identified by rere dey equired to (by the rev Ur the reviewer who pointed t0 “The revised Procedures have futhor expertise above parryi they are relevant reited by name and affiliation © become publically retrieval Fifth Assessment Report (under ). adams Above Tec quote bid 2. ‘Shapiro Review ‘boven 11,42 (Europe contributed 98 (38 per rhe Committee had importan pert review pro Sereoding faster than in any other part of ‘all except 0 The riiisms were largely not acted on ual cv eters would bein 8 position ‘Sarseed te at the review tage (betwen aul Strated that Himalayan glaciers we make reference to the need forthe preparation of the a yh sve ers (para 43.) Fash (and led 1 oe Fosvanomic. Views on a Subd troversial) scientii, technical, and so : {possibly controversia c jve on lel imate change las le: able in terms of the Principles and isc it may seem tha ofthe authors, and North Ame This issue has a ET would be inposble for Sane indus nations 7 of advan t he conden of developing sid i using the term ‘sa ayan or emails (Leading port in which the world Treat cout to the Pane!’ reputation. The Comm tis stated that pacers in the Himaloy This was in fact an error ‘developed countries continue to and This is one teas0n up + recommendations to make tae erpinang the Fourth ASME se tenn scandal to deseribe the WGTT cet, which was among the principal cats The controversy sereaed by all six expert roviewers ofthe first deal pers wo reviewed the second drat after the IPCC had published the Fourth the reform of the procedure for review to ensure that re innst on their comments being adequately thors and reviewers) would Roa of the Assessment.» In relation to the example : thors id 0 "he Sapir Comte was tha Sap ed the Pane), dsl with the Kye re a remmmendation onboard uly. Ts e prep {final draft to ber and inked tothe ted that “it is impor (She poi debate” Interesting xo Far pot into th review and rating Do ne ee Ml oi webs ater publication sieheading af and review materials). Ths the IPCC Response Srateies, Tale 1.9 and esos mat peer-reviewed arte that demon tundertaeen ‘in ve of ofthe distances The science of climate change 17 the review process from a classic scholarly one involving anor ‘Commons fs ikened the process ‘open public comment’ 2* ‘Some 50,000 seview comments w rod and responded to in the WGI contribu- tion to the Fifth Assessment Report, One of the more ‘naysaying reviewers had this to say about the treatment by the Panel of his comment that none of the models relied 0 had captured the latest decade's slowdown in elobal warming sity. The UK House af The IPCC responded inthe pre-final drat sent o governments, by inserting statement othe List hat mos sd not genealy represented he sands a global warming ove the pa ‘decide and a bale However, a the osstene ofthe pial represen aves of Germany and Hungary, th statement was moved oa te round that it would indicate tat the IPCC ha hot pes een sores inte protons (whieh it had OO his leads onto the question ofthe role of governments in sessment process. LIAL4 Government review Governments play a “cradle to grave role in the assess ment ofseienoe within the IPCC. Through their participation inthe IPCC “executive for instance, they determine the themes thatthe assessments are to cover and play 2 key part in identifying who the lead authors of the assessments are to be. Thoy comment fubstantively on the edited draft reports of the Working Groups for their ‘acceptance’ are responsible ‘approval’ and ‘publication’, ax well as the process of correcting errors, Ths sto a greater or lesser extent done transparently, in accordance with the Principles and the Prooedues, ‘Commentators are divided on the role of national governments in the drafting o reports." On the one hand isthe concern that "government science’ involves dangerous. ‘contradictions. Tha is to say (the argument goes), government is fundamentally abou policy, which swalue laden, whereas sence is objective. On the other hand is optimism that a balance ean be found whichis mutually beneficial. The reasoning here is that {good in principle from a scientific perspective for research to have a policy relevance, ‘as much as itis good from a governmental perspective frit policies to be informed by science. Unsurprisingly the Shapizo Committee endorsed the mutual benefit sooo thought here, with appropriate safeguards Tae mance in the balance played by governments is shown in the variations of consent within te Principles as to how assessment reports are agreed at sessions of the Working ‘Groupe and the IPCC plenary isl “Acceptance of IPCC Repose at Season ofthe Working Group or Panel sigs thatthe ‘material hs not been utc to ine ine deusson and araumet, bu nevertheless resis ‘comprehensive, ebjetive and Balanced view of the sujet matter “Adopion” oF TPC Reports i process of ehdorserent section by section (and not Kine by line sed for the longer report ofthe Synthese Report and for Overview Chae of Methodology Repors 2 i Wrisn vdenes Sra by Christophe Wal, Visoun Monckton of Bree "% ety Christopher Waller, acount Moncton of Boe Sethe help overview in Pes, above m1, 320-3618 Encyclopedia ofentrommentl law: volume Ilmate change kv approval of 1PCC Sumario Poeymakrs sista the mail haben sh 1 Bie eby line dscusion and agreement” palance the integrity ofthe science ~ only requiring (or sports o adpran ofthe syhess reports - wth SSounition of the political necessity of s for Policymakers. sseogiton of Oe Dession of how consent i bestowed is neve efi Ts eal draloc or undermining ofthe seni bass inthe sob anie sor themselves. emseles ts continue 10 surround the inlerity of the proces of deaing Se seer policymakers (SPM), which remain paradoxically the most ees Coe samc work, apd the last echnical. This is how the UK Howe of Donsvere ofthe TPO eats Change Commies hus exresed the cone in rear t0 WL put it applies across all SPM In this way, the IPCC secks 10 demanding) general acceptance of the te approval of the Summaries 4p foltowing the eon round of retng and expert review ofthe WG COR nr gnbered wh epresenttive for United Nations ree an hn four-day meting, the 1.536 pags of et un Gumunary for Polymers SPM) and oa va an the note wee not released FllowiOg reat ats winh were pblsbed in ll, The SPD Sea eis unsrpsng that its the focus of In September ‘buon fg ARS the ators ofthe TUN) member governments in Sto UN aT Tasha Report, was reduc bce line bye, The meeting ws hel Senn, for astanee, thee say par of trp ha May eOP Fe theo Pt Os ofthe IPOs alge ER of ranspareoe. fe matter, The TPCC appears committed to maintaining the sesrecy of “This is a deta he process. his the most policy-oriented~ part of LL Conclusions ‘The general media response 10 Tivourable, as appesTs to have been the case a tar ogsoernments, However, cannot be assumed sat he saenes 201 SEEN snl among goyroversy On te contrary, there are ses in the FI Asesso: the oman coriovest siting onto ne ground sething the IPCC 08 Report of or ah cowards eotrovess over mito, revel Ay arth’s climate as @ means of securing ftvergent viewpoints around engineering ofthe oe ere or naman and perhaps wider nature), this ould mean 2a 0 an ny chnes ceasingly on the emedy rented anvscetii Woning spol are the poles of mats change ae es ranted into oF 3882 bythe appearance of, authoritative sence the Fifth Assessment Report in 2014 has been broadly rong the seentific community and c=t- > As regards voting procures the Pini oh ore ate hs bot posible, Tor approval, adoption fn af coment AS al and ape eg, xed, Sie NS en ditering views Sal nom ate ala apron ine ste Ee Pres sent co evomomsJoumet comers. Dieses oe 25 Soa! thei hls apropte ne sone, beret he Reporte SSA Gouna hereby avoids wove 328, para? (above) paragraph 10 sets othe princi ft accepanes of feos, (phasis ade). The scence of climate change 19 teem Carbon dioxide teoval (CDR) A ont trosd srsiegy,saagia fom the ful (ay in esis underground) on the one hand to weletalsbd frestypratces Stvironments to better absotb harmful eels of earbon dioxide, The TPOC has become See ee en eee ee isa discursive process, which requires integrating ee Bibliography Dre a et mente cee eB sth Ta oa Oe ad haa Cc et iin hn cas ST ha an fg ital Panel on Climate Change, Climate Change 201 ss dlptcten ad Poe ik met ger of he eC (Cage Uy i), Neporg eres 1 Coan sma tnt co Clit Chane, Cite Che 06 king Comp ee Fk Arann Ropes afte IPC Cane Cateye Leia Het Somenie U Cabsch YD aa ek nese Rp of te nr cna! Panton Cite Change 38 Si Pd Re Pro tn needa ne Pe 2019) Sin pariular Mean of Clint Chong n$) 44-89.