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" "AN ENABLINGLEGAL ENVIRONMENT,UNDERPINNED BY GOOD GOVERNANCE AND RESPECT FOR THE RULE OF LAW, IS A PREREQUISITEFOR CLIMATECHANGE ADAPTATION ANDMITIGATIONo other international negotiation processunder an environmental treaty hascreated so much debate, tension,emotion and press coverage as thenegotiations under the United Nations FrameworkConvention on Climate Change (UNFCCC) have. Thequestion is why? There are many possible answers, butthe one which appears to be the most fundamental isthe fact that we might have unrealistic expectationsabout its possible outcomes. The UNFCCC has the potential to address some of the key aspects of the international response to climate change, however, it will not be expansiveenough to solve comprehensively the underlyingeconomic issues in which climate change mitigation isrooted. Anthropogenic climate change is mainly amanifestation of unsustainable consumption andproduction patterns. It is recognised that climatechange mitigation and adaptation will require radical changes in current development models. Atransition towards a global low-carbon economy isrequired. However, such a transition will havesignificant economic costs and could challenge theeconomic stability of many countries. In the SouthAfrican context, the Minister in the Presidencyresponsible for the National Planning Commission,Trevor Manuel, recently indicated that: "South Africaneeds to focus on changing its energy intensity, as wellas diversifying its sources of energy to a moresustainable mix". Governments are very conscious of the potentialeconomic impacts of taking on emissions reductioncommitments or actions under the UNFCCC or theKyoto Protocol. Many countries will only assume suchcommitments if they can see that the globalagreement creates a "level playing field" in which allcountries have proportional mitigation commitments.The political challenges related to climate change arecomplex and need to be carefully considered. It isimportant to understand that whilst the general publicwants to see governments take commitments in termsof climate change at the international level, the samegeneral public does not necessarily want suchinternational commitments to impact on the cost ofliving or doing business. It is time to be realistic about the stakes at play toaddress climate change. This is not going to be easy, thisis a major undertaking and progress so far has beenrather slow. We have not entirely grasped all possiblesolutions to the challenge of climate change. Mitigationrequires a shift in economic policy development, whichis not going to happen overnight and which is not goingMANAGINGREALISTIC EXPECTATIONS024SOUTH AFRICA SHOWCASEDR MARIE PARRAMON, SENIOR SUSTAINABILITY LEGAL CONSULTANT, IMBEWU SUSTAINABILITY LEGAL SPECIALISTS (PTY) LTD N

SOUTH AFRICA SHOWCASE025Below: Dr MarieParramon (left) andCatherine Warburtonto be addressed exclusively by an internationalenvironmental treaty. Minister Trevor Manuel recentlysaid in this context that: "We must understand that it isunsustainable and change must happen, but werecognise that it is not going to be straightforward and itis not going to be easy. In fact, it will be painful andinvolve some pretty serious costs too...These changeswould likely be painful and take place in an environmentwhere there was a lot of anger about rising costs."Therefore, we need to be more pragmatic about COP17 and the related international negotiation process.One needs to have a clear understating about what canrealistically be achieved with these internationalenvironmental legal instruments. We are likely to seeprogress at COP17 on the following matters: theAdaptation Framework, the Technology Mechanism,the Green Climate Fund and REDD+ (ReducingEmissions from Deforestation and Forest Degradationin Developing Countries). However, we will mostprobably not achieve a global agreement on climatechange mitigation at COP17 that could lead to afundamental and legally binding shift towards a low-carbon and more sustainable development path.It is also important to acknowledge some of theintrinsic limitations related to the climate changenegotiations and international environmental treaties,and manage our expectations accordingly. Thepractical implementation and enforcement of theUNFCCC and the Kyoto Protocol is an enormouschallenge, referred by some experts as the "Achillesheel" of many environmental treaties. The International Development Law Organisation(IDLO) also states that the effectiveness of theinternational response to climate change, as well asnational climate change adaptation and mitigationstrategies, ultimately depends upon the legal toolsavailable within countries to ensure theirimplementation. IDLO also highlights that an enablinglegal environment, underpinned by good governanceand respect for the rule of law, is a prerequisite forclimate change adaptation and mitigation, and forrealising the benefits of the international climateregime in support of adaptation and mitigation. Therule of law is also instrumental to ensure an equitabledistribution of benefits and the realisation ofeconomic, social and cultural rights. It is time to seriously consider our legal approach to theissue and the legal instruments to address climatechange at an international and national level. The UNFCCC itself will not provide the solution; itshould only be seen as one of the legal instruments toaddress the issue. We need to have a more integratedand holistic approach, we need to look at the efficientmainstreaming of climate change considerations in all sectoral international and national legalinstruments, especially trade and economically relatedinstruments. nABOUT THE AUTHOR Dr Marie Parramon is Senior Sustainability Legal Consultant at IMBEWU Sustainability Legal Specialists (Pty) Ltd. Through her academic and practical experience, Dr Parramon has developed specific knowledge and expertise in national as well as international environmental law and management, including in the areas of climate change, EIA, waste management and marine and coastal law. Since joining IMBEWU in April 2007 she has primarily worked on Climate Change and CDM Legal Projects. Dr Parramon is an extraordinary lecturer for the Climate Change Law and Governance Module at the North West University. She is also the Programme Director at the Wits Business School for their Climate Change and Carbon Markets Management Programme. ACKNOWLEDGEMENTThis article has been reviewed by Catherine Warburton,the Managing Director of IMBEWU SustainabilityLegal Specialists (Pty) Ltd. Ms Warburton practised asan attorney, concentrating on environmental legalissues for two and a half years before joining the AngloAmerican Group as an environmental legal advisoruntil the end of 2000. Thereafter she establishedIMBEWU Sustainability Legal Specialists (Pty) Ltd andhas been acting as its Managing Director for more thanten years. Ms Warburton has fifteen years of practicalexperience in the relatively new field of sustainabilitylaw in South Africa with specific expertise in the areaof climate change. She has attended UNFCCCmeetings as a South African business representativeand has worked on the development of CDM projects inSouth Africa. For more information on IMBEWUSustainability Legal Specialists (Pty) Ltd please call:+27 11 214 0660/1, e-mail: visit: