Climate challenges for Nicaragua Legal and economic context

Preface & Acknowledgements

Revolutions, blood, heartache and sadness have tormented Nicaragua in the decade of the eighties. But was is tormenting Nicaragua now? The lack of healthy ground to run on, the lack of a future for our grandchildren. Nicaragua in the last 15 years has changed its social and political structure, and the changes that the nation has gone through and the course it has taken have not permitted the sustainable development of the climatic processes and agreements that Nicaragua ratified. In this study international agreements are the red thread to look at the concrete realization of Nicaragua"s national plans. Nicaragua is a very poor country and with this study we try to visualize the legal and economic framework in which the country finds itself nowadays.

Every nation must guarantee the rights of the poor and the search for democratic balance, climate change is and will be in the future a huge source of income; it will depend on Nicaragua if they will benefit of this situation.

I thank my husband ing. David Dionys for the unconditional support he has given to me during this time, and for the time we spent discussing both environmental themes and those related to international politics, as I consider this a marvelous intellectual enrichment. I thank my daughters for inspiring me day after day and for teaching me values in life. I thank CERIS and professor Willy Stevens for the opportunity they have given me to realize this study with such a prestigious institution.

Thank you, may God bless you.

María José Centeno Fonseca

Chapter 1:

International and regional legal framework for climate change

Introduction

The environment is and will be a primary key to human development. Central America has a number of resources, which houses a high biodiversity in the form of an immense quality of rivers, volcanoes, and oceans. Historical conditions have limited the development of the countries and prevent them nowadays from competing with countries like Europe and United States.

In this chapter the various conventions, protocols and agreements will be examined which relate to the conservation and promotion of the environment. Relevant treaties are analyzed and contextualized; also its relevance for the situation in Nicaragua is indicated.

This chapter will help to provide an overview of the international institutions that are internationally involved with Nicaragua and to explore the bigger framework for the ensuing national legal and political framework.

In the next chapter, the Nicaraguan legal framework and the structure of involved ministries will then be examined together with the action plans as proposed (and implemented) by the Nicaraguan government.

In the final chapter, current international climate change events are set off against Nicaragua"s negotiating position.

International legal framework for climate protection

Over the years, Nicaragua has become a signatory to a broad range of conventions and protocols protecting the environment. These international agreements were generally promoted by the United Nations and their dependent organisms, which remain the most important actors on the global environmental agenda up to now.

Is Nicaragua enforcing laws to protect the air quality? What does the legal framework provide as options? Unfortunately, the Nicaraguan citizen does not always ask himself these questions as he is preoccupied with survival and subsistence. Nevertheless, information on climate threats is present, it can be observed in the media, both nationally and internationally. Like it or not, common sense dictates that climate change is a problem that should be recognized by all, as it affects the future quality of life; as a result of the changes, diseases will be present ever more and the conditions of life will become harsher.

The study here presented focuses on climate change only. As such, conventions related to protected areas and species (CITES, RAMSAR, …), marine environment (UNCLOS, …), contamination by chemicals (Stockholm, …) and protection of world heritage by UNESCO are not taken into account as they do not contribute directly to action directed towards climate change.

Other treaties may have more relevance for the climate change theme. New treaties concerning climate start from a holistic point of view; these include the so called Rio conventions, include the Convention on Biological Diversity (Basel convention, commonly referred to as CBD), the United Nations Framework Convention on Climate Change and the United Nations Convention to Combat Desertification. While UNFCCC is obviously at the core of our investigations, the other conventions will only be mentioned briefly, e.g. to compare the trends in climate change negotiations with those in other delicate areas such as desertification and biodiversity conservation.

The Montreal protocol on substances that deplete the Ozone layer, reached within the framework of the 1985 Vienna Convention for the Protection of the Ozone Layer, is related to climate change due to its policy implications. The replacement of CFCs by HCFCs has effectively slowed down the depletion of the Ozone layer, but at the cost of inserting more GHGs into the atmosphere. The relation between ozone layer depletion and climate change will be discussed separately in Annex I.

The description of the conventions is always focused on the relevancy for the Nicaraguan environment, and as such omits or only briefly discusses information regarding economy, trade, international law and sovereignty, to name just a few.

This chapter deals with both international and regional conventions, as the regional agreements are often a reflection of what happens in the global environment and produces more specific actions and supervisory organs. Within each category, the international conventions are discussed first, followed by the regional conventions.

Treaties concerning climate change

UN Framework Convention on Climate Change (UNFCCC)[1]

Nicaragua signed in 1992, ratified in 1995 and UNFCCC entered into force in January 1996[2]It was in this post civil war environment that president Violeta Chamorro de Barrios[3]took the first steps towards environmental protection in Nicaragua.

This convention[4]focuses on the issues that climate change raises with its effects on the ecosystems and the global temperature rise, endangering the environment for humanity, due to the increasing levels of greenhouse gases in the atmosphere produced by human activities (mainly from the energy and transport sector, industry, agriculture, waste management and forestry activities). Historical emissions of greenhouse gases are mainly generated by developed countries and that per capita emission in developing countries remain low. The role of ecosystems as sinks for greenhouse gases is recognized.

The objective of the convention is to achieve "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system (…) 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" (art 2).

To accomplish this, a set of guiding principles is established (art 3); developed country Parties should take the lead in combating climate change and its adverse effects. The importance of precautionary measures is underlined, indicating that if a threat of serious damage is perceived, the lack of scientific certainty should not be used as a reason for postponing such measures (art 3.3). Furthermore, a sustainable development should be promoted, in an international system that would lead to sustainable economic growth for all but specifically the developing country parties.

Art 4 translates these principles into concrete commitments. In the first place, all parties need to provide data inventories of anthropogenic emissions by sources (industry, transport, agriculture, etc) and removals by sinks (forests and ecosystems that absorb greenhouse gases) of all greenhouse gases. They must also implement programs to mitigate climate change by reducing emissions, and provide activity reports (art 12). Technology transfer, sustainable resource management and scientific research are essential support strategies.

An essential characteristic of the convention is the division between developed countries and others. Developed countries are perceived to be responsible for the current situation, and should therefore be more committed, as each country is supposed to make equitable and appropriate contributions to the process. Annex I defines the list of developed countries that should lead by example in implementing mitigating programs.

Annex 2 makes a further distinction, specifying the developed nations which should provide financial resources to meet the cost of climate change mitigation measures on a global scale (leaving out those countries of Annex I that face a transition period towards a market economy, mainly the European former communist countries). Not only financial contributions should be made but also technology transfer and technical assistance, focusing especially on vulnerable developing countries. Further articles of the convention discuss the need for research and systematic observation (art 5), the organization of education and the enhancement of public awareness of the problem (art 6).

In general, UNFCCC provides an institutional Framework and a platform (the COP) for the parties to meet and discuss climate change action, whether relating to drinkable water, food security, fishing and use of natural resources as petroleum, with the overall goal to sustainable develop the global economy.

Kyoto Protocol[5]

Nicaragua signed on 7 July 1998 after internal deliberation, and ratified by November 1999.

The Kyoto protocol[6]implements the principles laid out by UNFCCC. Here, the specific points of focus are more clearly defined: energy efficiency, protections and enhancements of sinks and reservoirs, promotion of sustainable agriculture, research on renewable forms of energy (and CO2 sequestration as focused on in REDD), removing unwished fiscal barriers (fiscal incentives, tax exemptions for polluting industry), a reform of existing institutions, transport sector emissions and waste management (art 2.a). Annex A describes the sectors that are sources of greenhouse gases in detail, defining as categories Energy, Industrial processes, Solvent and other product use, Agriculture and Waste. It also explicitly enumerates the greenhouse gases that the protocol takes into account[7]

The most crucial part of the protocol, emission reductions, is discussed in article 3. Here it is stated that for Annex I Parties the "aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases" should not exceed the levels defined in Annex B (reduction commitment). For each of the countries listed, a percentage of the 1990 emissions is defined as a limit to what can be emitted during the commitment period 2008-2012. Most European countries committed to the reduction of their emissions to 92 % of the emissions in 1990. The ultimate objective is to "reduce the overall emissions of (greenhouse) gases by at least 5 % below 1990 levels in the commitment period 2008 to 2012".[8] Net changes in greenhouse gas emissions should be sought in sinks resulting from land-use change and forestry activities.

Article 6 introduces the principle of trade in emission reduction units that are "resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases in any sector of the economy".

Financial aid must be made available by Annex II parties to help advance developing countries (art 11). Article 12 then introduces the Clean Development Mechanism (CDM), which is intended to assist non Annex I parties help achieve sustainable development. The idea is that developing countries propose and develop projects that combat climate change by reducing emissions. The developing countries receive emission reduction certificates that they can sell to Annex I parties for them to comply with their commitments under the protocol.

It is noteworthy that the CDM establishes a business environment of its own. The certification process is critical, as emission reduction units represent an economic value that comes as an incentive to realize some activities that otherwise might not take place. Both private and/or public entities may participate in the CDM projects. In order to stimulate the trade in emission reductions from the beginning, it is stated that any certificates from the years 2000 – 2007 can be used to "assist is achieving compliance in the first commitment period", i.e. 2008-2012. Annex I countries can thus buy emission reduction certificates to meet their obligations.

Nicaragua as a ratifying party is obliged to provide, update and publish both at least one inventory of the greenhouse gas emissions, specifying sources and drains, as well as a national environmental plan specifying the measures taken to mitigate climate change. It also is bound to implement the different measures specified in the same protocol. However, as developing country, it has no obligation whatsoever to mitigate the GHG emissions.

Constitutive convention of the Central American Commission of Environment and Development (CCAD)[9]

The first Central American[10]agreement on climate change recognizes the "necessity to establish regional cooperation mechanisms for the rational use of natural resources, the control of contamination and the restoration of ecological balance". The outcome was the constitution of the CCAD.

It is led by a president (alternating yearly between the member countries), supported by an executive secretariat. Ad hoc technical commissions will be formed to deal with specific tasks. The commission is mainly paid for by the contribution of the member states (depending on donations, contributions and profits made by the commission"s activities for the remainder of the budget).

CCAD has been active to coordinate climate action on a Central American level, and has updated its regional climate change strategy in September 2010.[11] As discussed in Chapter 2, Nicaragua is an integral part of SICA, and aligns its environmental strategies with CCAD. The new strategy regarding climate change has been developed in order to identify the most important priorities that will be lobbied for at the UNFCCC COP XVI at Cancun.

The regional strategy was developed basing itself on national consultations with important stakeholders. The ERCC expressed the strong commitment existing at the highest political levels in the different Central American countries to face together the threats of this global challenge

For all SICA countries, the biggest obstacle to come to an efficient and effective implementation of climate action is funding; without external funding, no project would be feasible in the short or medium term. While sustainability is a goal that is subscribed, it will take years before the impact of climate change action will be translated into behavioral changes at a social level through more ecological conscience, use of energy saving methodologies, etc.

I subscribe the importance given by the strategic plan 2010 to the equal rights of women; the role they have in changing the attitude regarding climate change is very important, as good stewards and aesthetics. Women, often the main cost winner of the family in a machisto state as Nicaragua, are the ones that face on a regular basis the challenges that a mere subsistence imposes upon them. Being mothers, they realize how important it is to take care of the environment.

Challenges that Nicaragua faces as a nation are the implementation of national plans, the reduction of the vulnerability of the nation confronted with natural disasters, as well as the promotion of a culture of adaptation and mitigation of climate change. In the end, poverty reduction will be the most effective method of ensuring a sustainable progress towards environmental protection. As Nicaragua is the second poorest country in Latin America, the returns of its feeble economy are directed towards basic needs. Climate change action as protection against deforestation requires the setup of an elaborate control and inspection system which is both capital and human resource intensive. Funds to finance these actions should come from the international community of developed nations, as well as from the private sector. Following the principle that the polluter should pay, it would not be unreasonable to demand a special climate tax from the petroleum companies, aviation and chemical enterprises.

At a Central American level, agricultural, energy and transport sectors are undoubtedly the largest emitters of greenhouse gases. The agricultural sector emits huge quantities of methane, and is responsible for the deforestation because of the moving agricultural frontier, establishing dangerous trends of LULUCF (which will be discussed in more detail in Chapter 2). The energy and transport sectors rely heavily on the use of petroleum.

According to the ERCC document, the current global CO2 concentration is about 385ppm, but the overall GHG concentration is greater than 400ppm of CO2 equivalent. The SICA strategic plan defines the acceptable level of CO2 equivalent on 350 ppm to avoid a temperature increase of more than 1.5 ºC. The urgency to undertake climate action is thus very clearly defined. SICA countries are responsible for only 0.5 % of the total global GHG emissions. Nevertheless, it is one of the regions that are most vulnerable to the effects of climate change, when relating to physical, social and economical security.

Nicaragua faces problems of hydro-meteorological events such as floods, tropical storms and landslides. Each of these events has a high cost for the population and the environment of plants and wildlife. Nicaragua faces major issues in the sectors affected by these storms: water, hydropower, agriculture (food safety) health and aquatic biodiversity. It is important for Nicaragua to prioritize research focused on the analysis of past experiences and future scenarios of climate change. Food safety and mitigation of natural disasters is of the highest importance.

REDD and its mechanisms are important and management of natural resources would detain excessive clear-cutting in the Central American region and nationally.

Regional convention on climate change.[12]

In October 1993 the Central American states convened on climate change, following the efforts of UNFCCC to put climate change on the political agenda.

The general objective is to ensure all measures are taken to conserve the climate. The provision of a legal framework in the different countries is essential. Meteorological institutes should provide a systematic control of the climate parameters (art 10).

On a regional level, collaboration with CCAD and with the CRRH[13]is envisaged. The specific importance of water as a natural resource is thus underlined.

The need to use adequate technology (to measure greenhouse gas emissions, to promote sustainable land use, clean technologies, …) is recognized fully.

Conclusion

Nicaragua is a ratifying party of the most significant treaties that concern its environment. It follows the general existing trends with a peak of conventions around the beginning of the 1990s. After that, on a global scale, attention went towards the implementation of the existing protocols. So it moved from a position of passive signing (providing lists of protected species which were duly registered and formalized into laws) towards an active implementation strategy. What this strategy contains exactly will be revised in detail in the following chapter.

The conventions and related protocols, both on an international and a regional level, provide a good framework for discussion. With the increasing scientific understanding of the dangerous patterns in climate change, the human role has been gradually more recognized. Hence the international community has realized the necessity to take responsibility and look for mitigation efforts. This is by itself an important progress, as earlier on the efforts were almost exclusively focused on adaptation to the effects of natural disasters.

The ratification of the conventions and protocols by the majority of nations puts climate change on the political and economic agenda. The public has acquired conscience about its importance, leading to increased thinking about the environment and possible actions. In the North, scientific and technological innovations have been made possible by the recognition of the urgency to solve the problem or at least mitigate it.

The South has also recognized the opportunity these conventions provide; the financial aid destined towards protecting the environment provides funds that are hard to generate internally. Before Kyoto, it was very difficult for poor countries to justify economically any environment protection efforts, as the undiscrimated use of natural resources always provided a better short term profit than any (costly) protection efforts. The conventions and their protocols have thus provided the necessary incentives to shelter the environment from the negative effects of human activity.

The presence of a convention on a regional Central American level strengthens the negotiation position of the invididual nations. While they can still put particular accents, the common agenda provides a stronger weight when reaching agreements.

Nevertheless, the road towards efficient and effective climate change protection remains a long one. The COP meeting are plagued by technical discussions regarding the real danger of climate change for human existence and its effects. This reduces the efficiency (long hours lost in revising the technical aspects) and effectivity (unability to come to a common goal does not contribute to coordinate action).

Furthermore the stance of the world"s nations regarding climate change is opposite between North and South. The South is most vulnerable as it has less money for adaptation efforts and will suffer the consequences of climate change first, although their responsibility for the problem is very limited. As the South has no strong economy which emits GHGs, their ambition generally is to make economies grow to come to a better quality of life.

The North, considered the main responsible for climate change, wants to maintain its economic and political power to safeguard its hegemony. Growth is the primary credo in the world"s economy, and even though environment friendly alternatives may lessen the effect, economic growth always implies higher emissions of GHGs. Any real mitigation efforts will therefore impact economic growth and competitivity of the countries. As the consequences of climate change are less damaging for the industrialized nations, they do not feel the urgency to do something about it, and might even consider that climate change provides them with a natural factor reinforcing their competitivity. A primary focus on the private sector to sponsor climate change action indicates that the North considers climate change as an opportunity to increase economic power rather than as a means for reaching global well being.

As a conclusion, the existence of the climate change conventions and protocols is a very positive development in the last decades. In order to reach its objectives, i.e. effective climate change adaptation in the short term and mitigation in the long term, there must be a few changes in attitude.

It is important that the climate change problem is recognized and that reasonable targets are set. Industry keeps on pressuring climate change negotiations by defending a very convenient but unreasonably dangerous level of allowable CO2 concentration of over 500 ppm, while the scientific community largely points toward a goal of 350 ppm, which has already been passed.

The lack of systematic financing for climate change efforts is without doubt the greatest challenge. The industrialized nations in power do not want to introduce taxes to pay for climate change action in times of financial turmoil. This is nevertheless exactly what should happen. An international fund should be created, sponsored by the Northern countries where per capita GNP is often 10 times higher than in the South to which climate assistance should be directed. It would be reasonable to expect that the main pollutors that have caused the problem and that have good living conditions as a consequence, would now financially contribute to save the relatively innocent Southern nations from further turmoil and disaster.

Chapter 2:

The general Nicaraguan Legal and Institutional Framework

Introduction

This second chapter focuses on the structures, laws, action plans and activities existing in Nicaragua regarding climate change.

The chapter starts with an outline of the ministries involved in the climate change process. The most prominent ministry that works around environment is MARENA. Mention is made of the other ministries and organisms that collaborate with MARENA to protect specific natural resources. After having gained an insight in the state structure, the national legal framework will be shortly revised.

Then the national action plans for the environment will be examined. We will see where the accents lie and what the concrete proposed actions were.

After showing briefly how these actions relate to actions and structures on a regional level, ctions (both planning and reporting) related to the Kyoto protocol will be scrutinized and its outcomes discussed. It thus investigates how Nicaragua puts into practice the treaties discussed in chapter 1. Most of the CDM projects are oriented towards cleaner energy production.

In chapter 3, Nicaragua"s efforts to conserve its forest will be discussed.

National Framework for Climate Change

National Legal Framework for Climate Change

After signing the UNFCCC, Nicaragua developed a National Environmental Plan[14]in 1993 to coordinate the management of the environment.

The General law on the Environment and Natural resources[15]provides the framework for the environmental policy of Nicaragua. It regulates the use of natural resources and preserves the environment, in the spirit of sustainable development. Through other laws, decrees, technical norms, etc, it regulates the process for the GHG inventory[16]

In 2001, five new policies were introduced:

• The National Environmental Policy

• National Environmental Action Plan

• Forest Development Policy

• Land Use Policy (Política de Ordenamiento Territorial)

• Hydraulic Resources Policy

These policies resulted in laws[17]that contributed to the development of CDM projects to support the Kyoto Protocol. Production of clean energy and conservation of forests should allow for a good balance of GHG. Unfortunately, and these results were only made public in 2006, Nicaragua changed from being a net sink of GHG to a net source as will be discussed.

National institutional Framework for Climate Change: Ministry of environment and natural resources

MARENA[18]created in 1994[19]is the Ministry in charge of the conservation, protection and sustainable use of the natural resources and the environment. Therefore, MARENA implements the national environmental politics as well as the norms for climate quality and the sustainable use of natural resources.

MARENA administers the Evaluation System of Environmental Impact and coordinates the local development plans and programs as specified in the National Development Plan. It supervises the National Registry for Physical and Chemical substances that affect or threaten the environment. MARENA also manages the National System of Protected Areas. It coordinates SINIA[20]the entity that systematizes and publishes all environmental information that is collected within Nicaragua. MARENA provides the environmental education programs needed for training, and coordinates environmental projects together with the national communities and NGOs. It also supervises the implementation of international conventions and agreements regarding the environment. As a consequence, it is MARENA that oversees the protection of the ozone layer, the biodiversity, marine wetlands and the regulation of chemical substances that relate to quality of the environment.

It is also the Ministry responsible to provide the necessary reporting concerning the different climate treaties that Nicaragua has signed. The reports written by MARENA (for Montreal, Basel, Kyoto) will be analyzed in the following paragraphs.

To support its activities, other commissions have been created, amongst which the Comisión Nacional de Cambios Climaticos[21]the Oficina Nacional de Desarrollo Limpio (ONDL)[22], funded by UNDP[23]the Comision Nacional de Educacion Ambiental (CNEA)[24] and the Consejo Nacional de Desarrollo Sostenible (CONADES)[25]

ONDL is the main responsible for the implementation of the Kyoto Protocol, and has been installed especially with this purpose.

MARENA collaborates with other state agencies to ensure the sustainable use of soil, mines, hidrocarburates, forests and aquatic reserves.

For the GHG inventory, MARENA communicates with other state institutions[26]which are responsible for the different subsectors. For the energy sector, it is the Ministry of Energy and Mines and the Nicaraguan institute for Energy (INE). The other sectors – agriculture, LULUCF, industrial processes and waste – are jointly managed by other relevant ministries[27]supported by institutes like include INETER[28]MARENA works together with SINAPRED[29]to implement disaster preparedness.

Social climate change movements