INTERNATIONAL ENVIRONMENTAL LAW

CODE: BLW 3204

JUNE 16, 2022

MD. MOGENI H. SHIRO
EVENING CLASS
GROUP MEMBERS

1. ERIC NGANGA WANJIRU BLAW/2020/63023

2. HALIMA KADZO BLAW/2020/63116
3. ESTHER MUNYI BLAW/2019/59053
4. APIYO MAWUT BLAW/2020/
5. MERCY NJUGUNA BLAW/2020/61573
6. EMMA KIBIRO BLAW/2020/
7. JOSPHAT MASILA BLAW/2019/52562

QUESTIONS

1. Legal Status of the Atmosphere

2. Transboundary Air Pollution
3. Climate Change
4. International Instruments
5. Kenyan Context
6.
THE LEGAL STATUS OF THE ATMOSPHERE

An atmosphere is a layer of gas or layers of gases that envelope a planet, and is held in place by
the gravity of the planetary body. The atmosphere of Earth is composed of nitrogen (78%),
oxygen (21%), argon (0.9%), carbon dioxide (0.04%) and trace gases.

Illustration of the atmosphere1

The atmosphere is not a distinct category in international law. Because it consists of a fluctuating
and dynamic air mass, it cannot be equated with airspace which, above land, is simply a spatial
dimension subject to the sovereignty of the subjacent states.

UNEP has referred to ‘airsheds’ as examples of shared natural resources, and this status is
consistent with regional approaches to the control and regulation of transboundary air pollution
adopted in the 1979 Geneva Convention on Long-range Transboundary Air Pollution, and in
regional seas agreements limiting air pollution of the marine environment.2

The shared-resources concept is much less useful in relation to global atmospheric problems
such as ozone depletion or climate change. The same objection applies to the use of ‘common
heritage’ in this context, with the additional difficulty that this concept has so far been applied
only to mineral resources of the deep seabed and outer space and that its legal status remains
controversial.

1
https://www.worldatlas.com/r/w1200/upload/e4/22/16/shutterstock-1697221522.jpg
2
https://www.eea.europa.eu/publications/92-9157-202-0/3.4.pdf
TRANSBOUNDARY AIR POLLUTION

Introduction

The Convention defines air pollution as “the introduction by man directly or indirectly of
substances or energy into the air, resulting in deleterious effects of such a nature as to endanger
human health, harm living resources and ecosystems and material property, and impair or
interfere with amenities and other legitimate uses of the environment …”3

Long-range Transboundary air pollution means air pollution whose physical origin is situated
wholly or in part within the area under the national jurisdiction of one State and which has
adverse effects in the area under the jurisdiction of another State at such a distance that it is not
generally possible to distinguish the contribution of individual emission sources or groups of
sources.4

Long Range transboundary air occurs through mixture of smog and acid rain.

Acid Rain

Sulphur dioxide (“SO”) and nitrogen oxide (“NO”) are the primary causes of acid rain. Although
some quantities of SO and NO are also produced by nature, human activities generate the
majority of these gases and the resulting environmental problems.

Formation of Acid Rain5

3
https://globalpact.informea.org/sites/default/files/documents/Unit%201%20_%20 Transboundary%20Air%20Pol
ution.pdf
4
https://www.state.gov/key-topics-office-of-environmental-quality-and-transboundary-issues/convention-on long-
range-transboundary-air-pollution/
5
https://i0.wp.com/forestrypedia.com/wp-content/uploads/2019/06/Acid-Rain-1.jpg?fit=787%2C524&ssl=1
Emissions of SO and NO originate from stationary sources, such as: coal-fired and oil-fired
power stations, mobile sources, such as cars and trucks, ships, and aircrafts.

Acid rain occurs when SO and NO react in the atmosphere with water, oxygen, and other
chemicals, forming various acidic compounds. Sunlight increases the rate of most of these
reactions. The result is a mild solution of sulphuric acid and nitric acid that is deposited back
onto land through wet dispositions like rain, fog or snow, as well as through dry disposition.6

The atmosphere’s acidity is carried by wind, which blows these particles and gases onto
buildings, plants and water. Large quantities of acid rain have detrimental consequences for
wildlife, forests, soils, freshwater, and buildings. Rain containing SO and NO acidifies the soil
and water, killing plants and animals.

Smog

Smog is a mixture of carbon monoxide, ground-level ozone, and particulate matter. Carbon
monoxide is a poisonous gas emitted by vehicles and released by forest fires and open burning.

Smog is formed from the reaction of sunlight, volatile organic compounds (VOCs) and NO.
VOCs come from a variety of sources including industrial operations, vehicles and area sources
(e.g., gas station refilling, open burning, paints and solvents in households, incomplete
combustion in home heaters, etc.).7

Formation of Smog8

6
https://naei.beis.gov.uk/overview/issues?issue_id=2
7
https://www.sciencedirect.com/science/article/pii/S1674987121001031
8
https://www.google.com/search?q=smog+formation&tbm=isch&ved=2ahUKEwigiZquyq34AhUZ-
xoKHV87AIkQ2
Transboundary air pollution is a particular problem for pollutants that are not easily destroyed or
react in the atmosphere to form secondary pollutant. These are cross boundary pollutants that can
be generated in one country and felt in others; these require international actions and
collaboration to control their formation and effects.

Atmospheric Air pollution pathway9

Transboundary air pollutants can survive for periods of days or even years and can be
transported 100s or thousands of miles before they affect the air we breathe, soils, rivers, lakes
and/or our food. Transboundary air pollutants cause a number of different problems: formation
of particles, ground level ozone which are hazardous to health, the formation of acid rain which
can damage buildings and sensitive ecosystems and some that are toxic to human health and the
environment.10

It is well established that air pollutants such as SO2 and NO, which are often emitted through
factory smokestacks, can travel hundreds or even thousands of kilometers. Consequently, the
environmental impacts from air pollution may occur in areas far from their sources.

9
https://unece.org/convention-and-its-achievements
10
https://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-0290.xml
Trail Smelter Arbitration11

In the nineteenth century, fumes emitted by a smelter located in Trail, Canada, near the United
States border, raised a problem of transboundary air pollution and led to claims of compensation
for the harm caused. Some decades later, in 1941, the Trail Smelter Arbitration articulated the
“no-harm obligation” for the first time: countries are obligated to avoid causing transboundary
air pollution that leads to environmental damage in other nations.

The court held that “under the principles of international law...no state has the right to use or
permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of serious consequence and the
injury is established by a clear and convincing evidence.”

The Trial Smelter case12

The 1979 Geneva Convention on Long-Range Transboundary Air Pollution 13

In the 1960s, scientists demonstrated the interrelationship between Sulphur emissions in

continental Europe and the acidification of Scandinavian lakes, confirming that air pollutants
travel several thousands of kilometers and setting the basis of study of long-range transboundary
air pollution.

11
https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-18/trail-
smelter-arbitration-united-states-v-canada/
12
https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf
13
The 1979 Geneva Convention on Long-Range Transboundary Air Pollution
In 1972, the United Nations Conference on the Human Environment signaled the start for active
international cooperation to combat the problem of air pollution. In November 1979, a
ministerial meeting was held in Geneva within the Framework of the United Nations Economic
Commission for Europe (UNECE) on the Protection of the Environment.

This meeting resulted in the signature of the Convention on Long-Range Transboundary Air
Pollution by 34 governments and the European Community. The Convention entered into force
in 1983 and currently has 51 Parties, including the United States and Canada.

The Convention created the framework for controlling and reducing the damage to human health
and the environment caused by Transboundary air pollution.

Objective

The Convention outlines the general principles of international cooperation for the abatement of
air pollution and provides an institutional framework linking science and policy.

Its overall objective is to protect human health and the environment from air pollution. The
Convention seeks to coordinate Parties’ efforts by means of increased research, monitoring and
information exchange on air pollution and its effects and developing emission reduction
strategies.

The Convention designates a Secretariat and sets up an Executive Body.

As stipulated in article 11 of the Convention, the Executive Secretary of UNECE provides the
secretariat for the Executive Body for the Convention. It does so within the UNECE
Environment Division, based in Geneva.

The Executive Body consists of representatives of the Parties and meets annually to review the
implementation of the Convention and its Protocols and assess the effectiveness of national
policies.

Protocols to the Convention

The Convention has provided the basis for the development of several protocols addressing
transboundary air pollution. Within the framework of the Convention eight protocols have been
adopted. These include: 1985 First Sulphur Protocol, 1994 Second Sulphur Protocol, 1988 NOX
Protocol, 1991 VOC Protocol, 1998 POPs Protocol, 1998 Heavy Metals Protocol, 1999 Ozone
Protocol, 1984 EMEP Protocol.

CLIMATE CHANGE.

What’s the difference between weather, climate, climate variability and climate change?

Weather is the temperature, humidity, precipitation, cloudiness and wind that we experience in
the atmosphere at a given time in a specific location.

Climate is the average weather over a long time period of 30 to 50 years in a region.

Climate variability refers to natural variation in climate that occurs over months to decades. El
Nino, which changes temperature, rain and wind patterns in many regions over about 2 to 7
years, is a good example of natural climate variability, also called natural variability.

Climate change is a systematic change in the longterm state of the atmosphere over multiple
decades or longer. Article 114 defines Climate change as a change in the climate system which is
caused by significant changes in the concentration of greenhouse gases as a consequence of
human activities and which is in addition to natural climate change that has been observed during
a considerable period.

What Causes Climate Change? At its most basic, climate change is caused by a change in the
earth’s energy balance how much of the energy from the sun that enters the earth and its
atmosphere, and how much is released back into space.15 Some of the causes include;

Greenhouse Gases.

Since the Industrial Revolution started over 200 years ago, human activities have added very
large quantities of greenhouse gases (GHG) into Earth’s atmosphere. 16 These GHG act like a
blanket to trap the sun’s energy and heat, rather than letting it reflect back into space. There are
many GHG, each with a different ability to trap heat known as its global warming potential.
14
The UN Framework Convention on Climate Change, 1992.
15
Climate Change 101: climate science basics; page 2.
16
The climate change international legal Regime; by UN Environmental programme; UN institution for training and
research.
GHG are sometimes called climate active pollutants because most have additional effects,
notably on human health.

Greenhouse gases are therefore thought to be the main contributor to climate change. They are
very efficient in trapping heat into the atmosphere therefore, it results in the greenhouse effect.17

18

Other important GHG include methane, nitrous oxide, black carbon, and various fluorinated
gases.19 Although these gases are emitted in smaller quantities than CO2, they trap more heat in
the atmosphere than CO2 does.

20

a) Carbon dioxide has increased from fossil fuel use in transportation, building heating
and cooling and the manufacture of cement and other goods. Deforestation releases CO2

17
Climate Change: Causes, Effects, and Solutions(2016) by Jameel R. Kaddo
18
https://images.app.goo.gl/DRsB9bAp3hArSSfk7; the greenhouse effect.
19
Module1: Theory and Concepts of Climate Change and Cities: UNHabitant For A Better Urban Future.
20
https://images.app.goo.gl/m8nkAQgUmjGr72oN7; carbon cycle.
 and reduces its uptake by plants. Carbon dioxide is also released in natural processes such
as the decay of plant matter.
b) Methane has increased as a result of human activities related to agriculture, natural gas
distribution and landfills.
c) Nitrous oxide is also emitted by human activities such as fertilizer use and fossil fuel
burning. Natural processes in soils and the oceans also release nitrous oxide.
d) Halocarbon gas concentrations have increased primarily due to human activities.
Principal halocarbons include the chlorofluorocarbons.
e) Ozone is a greenhouse gas that is continually produced and destroyed in the atmosphere
by chemical reactions.21
f) Water vapour is the most abundant and important greenhouse gas in the atmosphere. For
example, a warmer atmosphere contains more water vapour.
g) Aerosols are small particles present in the atmosphere with widely varying size,
concentration and chemical composition.

Natural Contribution

According to Holli Riebeek, the author of “Global Warming,” stated that nature also contribute
to climate change by emitting CO2 from volcanos. Don Wuebbles, a coordinating lead author
and contributor to a number of the reports of the International Intergovernmental Panel on
Climate Change (IPCC). However, the amount of CO2 they emit is relatively small if we
compare it to the amount of CO2 that is being released by human activities, and the major
eruption was in 1991 of Mt. Pinatubo.22

Human Contributions

Scientists believe human activities contribute to climate change because we depend on fossil
fuels for our energy needs.23 Don Wuebbles had started that a large amount of climate change
happens widely because we are burning fossil fuels and that increases gases such as CO2,

21
https://www.eea.europa.eu/themes/climate/ozone-depleting-substances-and-climate-change
22
Climate Change By Kishan Kumarsingh Coastal Zone/Island Systems Management CDCM Professional
Development Training, 2001
23
Causes of Climate Change." Causes of Climate Change. Environmental Protection Agency U.S., n.d. Web. 06
May 2016.
methane, and some other gases in the atmosphere, the world depends on fossil fuels such as oil,
coal, and natural gas for 80% of its energy needs.

Climate Change Impacts

Impacts on natural systems

a) Changes in the global water cycle (hydrologic cycle): Over the past century there have
been distinct geographical changes in total annual precipitation, with some areas
experiencing severe and longterm drought and others experiencing increased annual
precipitation.
b) A decline in snow cover and glacier extent in mountain areas; across the globe, nearly all
glaciers are decreasing in area, volume and mass.
c) Warming temperature of the earth’s surface and the oceans: Leading to a greater
variability, with more frequent and severe extreme heat events such as more severe
droughts, more intense precipitation, such as severe rains, winter storms and hurricanes.
d) Progressive acidification of oceans and coral bleaching; Oceans absorb about 25% of
emitted CO2 from the atmosphere, leading to acidification of sea water.24
e) Rising sea levels and coastal erosion; warmer water expands, so as oceans warm the
increased volume of water is causing sea level rise. Melting glaciers and snowpack also
contribute to rising seas and sometimes severe floods.
f) Longer wildfire seasons and worse wildfires.
g) Accelerated extinction of plant and animal species

Physical Climate Change Impacts25

a) Changes to crop productivity due to changing temperatures and rainfall patterns

b) Inundation of coastal settlements due to sea level rise
c) Increased vulnerability of people most dependent on climate-sensitive resources, such as
water and food
d) Increased deaths, disease and injury due to heatwaves, floods, storms, fires and droughts
e) Increased burden of diarrhoeal disease

24
Module1: Theory and Concepts of Climate Change and Cities: UNHabitant For A Better Urban Future.
25
Climate Change 101: climate science basics: page 4.
 f) Changes in the spatial distribution of infectious diseases

Measures To Overcome Climate Change

Mitigation: Mitigation refers to measures to reduce the amount and speed of future climate
change by reducing emissions of heat trapping gases or removing carbon dioxide from the
atmosphere. By way of implementing policies to reduce greenhouse gas emissions and enhance
sinks as per the IPCC 2007.26

The mitigation aim of the Article 427 is for Parties to reach global peaking of greenhouse gas
emissions as soon as possible, and to undertake rapid reductions thereafter so as to achieve a
balance between anthropogenic emissions by sources and removals by sinks in the second half of
this century.

Adaptation: Adaptation refers to measures taken to reduce the harmful impacts of climate
change or take advantage of any beneficial opportunities through adjustments in natural or
human systems. There are two commonly used definitions of climate change adaptation:

According to UNFCCC of 1997, refers to ‘Adjustment in natural or human systems in response

to actual or expected climatic stimuli or their effects, which moderates harm or exploits
beneficial opportunities’.

As per the IPCC of 2007, it defines adaptation as, 'Initiatives and measures to reduce the
vulnerability of natural and human systems against actual or expected climate change effects’.

Resilience: Resilience means the capability to anticipate, prepare for, respond to, and recover
from significant threats with minimum damage to social well being, the economy, and the
environment. Resilience refers to the capacity of social, economic and environmental systems to
cope with a hazardous event or trend or disturbance, responding or reorganizing in ways that
maintain their essential function, identity and structure, while also maintaining the capacity for
adaptation, learning and transformation.28

26
IPCC AR4. Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change
27
The Paris Agreement was adopted on 12 December 2015, at the 21st session of the Conference of the Parties
(COP 21) of the UN Framework Convention on Climate Change (UNFCCC) in Paris.
28
(as per the IPCC, 2014, AR5 Glossary).
THE UN FRAMEWORK CONVENTION ON CLIMATE CHANGE (1992)

The UNFCCC entered into force on 21 March 1994 afterits establishmentin 1992. The UNFCC
is the central focus of global action on climate change. The objective of the UNFCCC is to
stabilize greenhouse gas concentrations in the atmosphere at a level that allows ecosystems to
adapt naturally to climate change so that food production is not threatened, while enabling
economic development to proceed in a sustainable manner under article 2.

All Parties to the Convention have general commitments regarding: The establishment of
national inventories of greenhouse gas emissions and sinks, the formulation and implementation
of policies and measures to mitigate and adapt to climate change, the sustainable management of
forests, oceans and ecosystem and the integration of climate change considerations in national
social, economic and environmental policies.

Article 4 of the Convention includes important provisions dealing with financial support, access
to and transfer of technology and capacity building to assist developing country Parties in
implementing their commitments. A range of measures is identified, including the provision of
new and additional financial resources, access to and transfer of technology, and support for
national reporting.

The Conference of the Parties (COP) is the governing body of the Convention and meets
regularly to review the adequacy of commitments, progress in implementation and effectiveness
of the Convention and any related instruments it may adopt such as the Kyoto Protocol.

The Convention also contains relatively standard international dispute settlement provisions
under article 14, which are similar to those found under the 1985 Vienna Convention of 1987
Montreal Protocol. In the case of a dispute between any two or more parties concerning the
interpretation or application of the 1992 UNFCCC, the Parties concerned are to seek a settlement
of the dispute through negotiation or any other peaceful means of their own choice. Recourse can
also be taken in certain circumstances to arbitration or the International Court of Justice. Article
14 of the Convention applies also to the Kyoto Protocol.
Flexible Mechanism under Kyoto protocol (Economic background/ clean development
mechanism/ joint mechanism/ international emission trading)

It is an international treaty to reduce greenhouse gas emissions. Kyoto Protocol applies to 6

greenhouse gases; 29
carbon dioxide; methane; nitrous oxide; hydrofluorocarbons;
perfluorocarbons; and sulfur hexafluoride.

It was adopted in Kyoto, Japan on 11 December 1997. It entered into force on 16 February 2005.
Currently, there are 192 Parties to the Kyoto Protocol.
THE FIRST COMMITMENT PERIOD
In Annex B, the Kyoto Protocol sets binding emission reduction targets for 37 industrialized
countries and economies in transition and the European Union.30 Overall, these targets add up to
an average 5 percent emission reduction compared to 1990 levels over the five-year period
2008–2012.
SECOND COMMITMENT PERIOD
DOHA AMENDMENT
In Doha, Qatar, on 8 December 2012, the Doha Amendment to the Kyoto Protocol was adopted
starting in 2013 and lasting until 2020.

The amendment includes:

 New commitments for Annex I Parties to the Kyoto Protocol who agreed to take on
commitments in a second commitment period from 1 January 2013 to 31 December
2020;
 A revised list of GHG to be reported on by Parties in the second commitment period; and
 Amendments to several articles of the Kyoto Protocol which specifically referenced
issues pertaining to the first commitment period and which needed to be updated for the
second commitment period.
The Kyoto Mechanisms

29
https://byjus.com/free-ias-prep/kyoto-protocol/
30
Kyoto Protocol established flexible market mechanisms, which are based on the trade of
emissions permits. Under the Protocol, countries must meet their targets primarily through
national measures.

The Protocol offers them an additional means to meet their targets by way of three market-based
mechanisms:31

The importance of mechanisms under the Kyoto Protocol:

 Stimulate sustainable development through technology transfer and investment
 Help countries with Kyoto commitments to meet their targets by reducing emissions or
removing carbon from the atmosphere in other countries in a cost-effective way
 Encourage the private sector and developing countries to contribute to emission reduction
efforts
Eligibility requirements
To participate in the Kyoto mechanisms, Annex I Parties must meet, among others, the following
eligibility requirements:
 They must have ratified the Kyoto Protocol.
 They must have calculated their assigned amount in terms of tonnes of CO2-equivalent
emissions.
 They must have in place a national system for estimating emissions and removals of
greenhouse gases within their territory.
 They must have in place a national registry to record and track the creation and
movement of ERUs, CERs, AAUs and RMUs and must annually report such information
to the secretariat.
 They must annually report information on emissions and removals to the secretariat.

A. The Clean Development Mechanism

The Clean Development Mechanism (CDM)32, defined in Article 12 of the Protocol 33, allows a
country with an emission-reduction or emission-limitation commitment under the Kyoto Protocol
31
https://unfccc.int/process/the-kyoto-protocol/mechanisms
32
https://unfccc.int/process-and-meetings/the-kyoto-protocol/mechanisms-under-the-kyoto-protocol/the-clean-
development-mechanism
33
https://unfccc.int/sites/default/files/resource/docs/cop3/l07a01.pdf#page=24
(Annex B Party) to implement an emission-reduction project in developing countries. Such
projects can earn saleable certified emission reduction (CER) credits, each equivalent to one
tonne of CO2, which can be counted towards meeting Kyoto targets.

B. Joint implementation

The mechanism known as "joint implementation", defined in Article 6 of the Kyoto Protocol,
allows a country with an emission reduction or limitation commitment under the Kyoto Protocol
(Annex B Party) to earn emission reduction units (ERUs) from an emission-reduction or
emission removal project in another Annex B Party, each equivalent to one tonne of CO2, which
can be counted towards meeting its Kyoto target.34

C. Emissions Trading

Parties with commitments under the Kyoto Protocol (Annex B Parties) have accepted targets for
limiting or reducing emissions. These targets are expressed as levels of allowed emissions, or
assigned amounts, at over the 2008-2012 commitment period. The allowed emissions are divided
into assigned amount units (AAUs).

OVERVIEW OF THE 1987 MONTREAL PROTOCOL

Montreal Protocol is related to the regulation of ozone-depleting substances. 35 The Protocol was
signed in 1987 and entered into force in January 1989. The protocol gives provisions to reduce
the production and consumption of ODSs to protect the ozone layer.36
The Vienna Convention for the Protection of the Ozone Layer was signed in 1985 under which
UN member countries recognized the importance of curbing damage to the ozone layer. As per
the Convention’s provisions, countries agreed to adopt the Montreal Protocol to further the goals
of the Vienna Convention.

Montreal Protocol – Important Points

1. It phases down the use of ODSs in a stepwise, time-bound manner.
2. It gives different timetables for developing and developed countries.

34
https://unfccc.int/process/the-kyoto-protocol/mechanisms/joint-implementation
35
BYJU’S EXAM PREP https://byjus.com/free-ias-prep/montreal-protocol/
36
https://www.unenvironment.org/ozonaction/who-we-are/about-montreal-protocol
 3. All member parties have specific responsibilities related to the phasing out of various
groups of ozone-depleting substances, controlling ODS trade, reporting of data annually,
controlling export and import of ODs, etc.
4. Developing and developed countries have equal but differentiated responsibilities.
5. However, both groups of nations have time-bound, binding, and measurable
commitments under the protocol, making it effective.
MONTREAL PROTOCOL – SUCCESSES
1. With universal ratification and a time-bound binding framework, the Montreal Protocol
has been largely successful in setting out to achieving its mission of reversing the damage
done to the ozone layer.
2. It has been considered the most successful international environmental action taken by
countries.
3. The Protocol has been successful in levelling off or decreasing the atmospheric
concentrations of the most important chlorofluorocarbons and related chlorinated
hydrocarbons.
4. Although halon concentrations have gone up, their rate of increase has come down, and
their concentration is expected to decline by 2020.
5. The Protocol has successfully sent clear signals to the global market.
6. Parties to the Protocol have been able to phase out 98% of ODSs compared to levels in
1990.
7. The Protocol is also helping fight climate change because most of the ODSs are also
greenhouse gases. 

THE KENYAN CONTEXT OF CLIMATE CHANGE

In Kenya, climate change is progressively affecting the environment, as well as the lives of the
citizens37. It has resulted in more prevailing extreme weather events such as unpredictable and
irregular rainfall, droughts that last longer than usual, as well as flooding and rising
temperatures.38
37
Climate Change Profile: Kenya – Kenya. ReliefWeb. Retrieved 14 June 2022 Climate Change Profile: Kenya -
Kenya | ReliefWeb
38
Salih, Abubakr, Baraibar, Marta, Mwangi, Kenneth Kemucie and Artan, Guleid 2020. Climate change and locust
outbreak in East Africa. Nature Climate Change. 10 (7): 584–585
The hot and dry conditions in the Arid and Semi-Arid Lands render flooding or droughts
resulting from extreme weather changes more grievous. The Coast is already experiencing rise in
sea level and related challenges such as saltwater intrusion. Lake Turkana, Lake Victoria, s well
as other lakes have experienced a significant rise in size between 2010 and 2020 39 thus flooding
the lakeside communities40.
The Impact of Climate Change
i. Temperature and weather changes
Climate trends analysis in Kenya's Arid and Semi-Arid areas demonstrates a rise in temperature
and a reduction in rainfall between the years 1977 and 2014 41. Raised temperatures, variability in
rainfall, as well as strong winds linked to tropical cyclones have created conducive conditions for
the breeding of insects and pests.
ii. Sea level rise
About 17 percent of Mombasa would be endangered by a rise in sea level of 30 centimeters42.
iii. Water resources
There is a threat to the replenishment of groundwater reservoirs, which is a key source of
drinking water in Africa, by a reduction in precipitation. The rainfall levels between March and
May/June reduced in Eastern Africa from the 1980s onwards, and monsoon rain reduced
between 1948 and 2009 in the Horn of Africa43.
iv. Ecosystems
Climate change may cause a significant disruption of the ecosystem services that are key in
agriculture, such as effect on distribution of species, inter-species relationships, as well as the
alteration of the effectivity of management regimes44. The wildlife species in Kenya are expected
to be impacted in a number of ways as the climate changes, with changes in rainfall and
temperature affecting seasonal events and species ranges45.

39
Tobiko, Keriako 2021. Rising Water Levels in Kenya's Rift Valley Lakes, Turkwel Gorge Dam and Lake Victoria.
Kenya Government and UNDP. Retrieved 14 June 2022.
40
Baraka, Carey 2022. A drowning world: Kenya's quiet slide underwater. The Guardian.
41
Kenya Markets Trust 2019. Contextualizing Pathways to Resilience in Kenya's ASALs under the Big Four Agenda
42
Climate Risk Profile: Kenya. Climatelinks. Retrieved 14 June 2022
43
Climate Change and water. Intergovernmental Panel on Climate Change. June 2008. p. 82
44
Muoki, Chalo, Maritim, Tony Kipkoech, Wyclife Agumba, Kamunya, Samson Machohi and Bore, John 2020.
Combating Climate Change in the Kenyan Tea Industry. Frontiers in Plant Science. 11: 339
45
Ministry of Tourism and Wildlife 2018. National Wildlife Strategy 2030. pp. 32–33
 v. Economic impacts
The most important sectors in the Kenyan economy are agriculture and tourism, which are both
highly vulnerable to the impacts of climate change. A drought lasting from 2008 to 2011 led to
an estimated $12.1 billion in damage. Food insecurity caused by droughts from 2014 to 2022
affected about 3.4 million people while in 2018, about 500,000 people lost access to water46.
vi. Agriculture and livestock
Climate change is already affecting the agricultural sector of the country 47, which is responsible
for over 33 percent of Kenya's GDP and is the basic source of sustenance for 60% of the
population48. Three quarters of Kenya's farming produce comes from small scale farmers. In a
number of areas of Kenya temperatures can go beyond 35°C, at which the heat is detrimental to
maize, a staple crop in Kenya49.
vii. Manufacturing sector
Kenya's manufacturing sector, which produces goods for both domestic use and exports, is one
of the largest in Sub-Saharan Africa. Kenya's National Climate Change Action Plan (NCCAP)
keys out a number of impacts of climate change on the manufacturing sector50.
viii. Health impacts
Different impacts resulting from or exacerbated by climate change, such as heat, drought, and
floods, negatively affect human health51.  The risk of vector and water borne diseases will
increase52.
Mitigation and adaptation
i. Policies and legislation
The National Environmental Management Authority, the National Climate Change Activities
Coordinating Committee, as well as the Kenya Meteorological Department are the key

46
INSIDER: Mainstreaming Climate Adaptation into Development: Three Lessons from Kenya. World Resources
Institute. 2020. Retrieved 14 June 2022
47
Kabubo-Mariara and Karanja, Fredrick 2007. The Economic Impact of Climate Change on Kenyan Crop
Agriculture: A Ricardian Approach. Open Knowledge Repository. The World Bank Group.
48
Ibid n8
49

50
Climate Change and the Energy and Manufacturing Sector. Climate and Development Knowledge Network.
2014. Retrieved 14 June 2022.
51
Ibid n14
52
Climate And Health Country Profile 2015 Kenya. World Health Organization. 2016. Retrieved 14 June 2022.
components of the institutional framework of the government mandated with the day to day
building of climate resilience.
The National Adaptation Plan (NAP) was implemented in 2015 to enhance climate resilience. It
contains the Adaptation Technical Analysis Report (ATAR), which analyzes sectoral economic
vulnerabilities, keys out adaptation needs, and proposes potential adaptation actions in different
counties. It supports the development of local County Integrated Development Plans (CIPDs),
which includes the establishment of County Climate Change Funds (CCCFs).
CLIMATE CHANGE LITIGATION
Climate change litigation covers a range of different proceedings. Generally, it is defined as
claims that expressly raise an issue of fact or law relating to the causes or impacts of climate
change.
Due to increased global urgency to tackle climate change, climate change litigation has
dramatically increased in recent years, particularly in the US and Europe. More than 1,000
climate cases have been filed globally since 2015 (approximately the past six years), compared
to 834 cases filed in 1986 – 2014 (approximately 28 years) 53. Despite this global increase, only a
few cases specifically related to climate change have been filed in Africa.

Figure 1. Total climate change litigation cases recorded (1986-2020)

URGENDA FOUNDATION V. STATE OF THE NETHERLANDS (2015) HAZA C
/09/00456689.

53
According to the search engine on https://www.jdsupra.com/legalnews/climate-change-litigation-in-africa-
6294585/ (accessed on 14 June 2022)
Court session Urgenda climate case54
Case Summary:
In this case, a Dutch environmental group, the Urgenda Foundation, and 900 Dutch citizens sued
the Dutch government to require it to do more to prevent global climate change. The court in the
Hague ordered the Dutch state to limit Green House Gas(GHG) emissions to 25% below 1990
levels by 2020, finding the government’s existing pledge to reduce emissions by 17%
insufficient to meet the state’s fair contribution toward the UN goal of keeping global
temperature increases within two degrees Celsius of pre-industrial conditions.
Issue
The Urgenda Foundation was seeking declaratory judgment and injunction to compel the Dutch
government to reduce GHG emissions.
Held
The court did not specify how the government should meet the reduction mandate, but offered
several suggestions, including emissions trading or tax measures.
This became the first decision by any court in the world ordering states to limit greenhouse gas
emissions for reasons other than statutory mandates.
Appeals
The Dutch government however, submitted 29 grounds of appeal and Urgenda submitted a cross-
appeal, contesting the court’s decision that Urgenda cannot directly invoke Articles 2 & 8 of the
European Convention on Human Rights (ECHR) in these proceedings.
On October 9, 2018, the Hague Court of Appeal upheld the District Court's ruling, concluding
that by failing to reduce greenhouse gas emissions by at least 25% by end of 2020, the Dutch

54
According to the search engine on https://www.urgenda.nl/wp-content/uploads/klimaatzaak-credit-urgenda-
chantal-bekker-24.jpg (accessed on 13 June 2022)
government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the
ECHR. The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a
right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home,
and correspondence.55
JULIANA V. UNITED STATES - 947 F.3D 1159 (9TH CIR. 2020)

Juliana v. United States is filed in the U.S. District Court for the District of Oregon56.
In this case, the court considered whether the right to a life sustaining climate system is
fundamental. Some plaintiffs claimed psychological harm, others impairment to recreational
interests, others exacerbated medical conditions, and others damage to property. The complaint
asserted violations of:
(i) the plaintiffs' substantive rights under the Due Process Clause of the Fifth
Amendment;
(ii) the plaintiffs' rights under the Fifth Amendment to equal protection of the law;
(iii) the plaintiffs' rights under the Ninth Amendment; and
(iv) the public trust doctrine.
In the case at bar, the Court held that plaintiffs lacked Article III standing to bring their claims
as they failed to show that the relief they sought was substantially likely to redress their injuries,

55
According to the search engine on https://www.urgenda.nl/en/themas/climate-case/ (accessed o 13/06/2022)
56
According to the search engine on http://www.ourchildrenstrust.org/s/Filing-Juliana-2015.JPG/ (accessed on
13/06/2022)
and regardless, plaintiffs failed to establish that the specific relief they sought was within the
power of an Article III court.57.
MBABAZI AND OTHERS V. THE ATTORNEY GENERAL AND NATIONAL
ENVIRONMENT MANAGEMENT.

In September 2012, four citizens and a Ugandan NGO brought their claim against the Attorney
General of the Republic of Uganda and the National Environment Management Authority
(Ugandan NEMA) before the Ugandan High Court. The claimants alleged that various damage
and loss of life resulting from extreme weather events was linked to climate change inaction on
the part of the government. They argued that:-
1. the Ugandan Constitution makes the government of Uganda a public trustee of the
national resources, including its atmosphere, and imposes a duty to preserve those
resources from degradation for present and future generations; and
2. unless action is taken immediately, the current climatic patterns of prolonged droughts,
floods, hurricanes and crop losses will escalate into human catastrophe for both the
present and future generations58.
Issue:
Whether Ugandan government has an obligation to mitigate climate change pursuant to the
public trust doctrine?
In citing multiple examples of damage and loss of life resulting from extreme weather events, the
plaintiffs alleged that the government had breached its constitutional duty. In addition to asking
the court to declare that the government was violating its public trust duty by not addressing
climate change and thereby failing to prevent present and future harms, the plaintiffs requested
several forms of injunctive relief, such as;
After a preliminary hearing, the High Court ordered the parties to undertake a 90-day mediation
process, but has taken no further action as of October 2017.

57
According to the search engine on https://www.lexisnexis.com/community/casebrief/p/casebrief-juliana-v-united-
states
58
According to https://www.jdsupra.com/legalnews/climate-change-litigation-in-africa-6294585/ (accessed on the
14 June 2022)