Abstract

Keywords

BRICS; BRICS+; climate change; climate change law; nationally determined contributions; NDC; fossil fuels.

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1 Introduction

BRICS (an acronym for Brazil, Russia, India, China, and South Africa) is a forum of major developing economies – countries that play a significant role in the world market environment and in formulating the global agenda and response to critical issues of our time, such as sustainability. 1

* Maksim Lavrik. Specialist in Jurisprudence (Irkutsk State University) Candidate of Law Sciences (Omsk State University) MICL (UEF) LLD (Wuhan University). Post-Doctoral Fellow, Department of Public, Constitutional and International Law, College of Law, University of South Africa, South Africa. E-mail: lavrim@unisa.ac.za. ORCiD: https://orcid.org/0000-0003-2364-4100. I am grateful to the UNISA Department of Criminal and Procedural Law, where I presented initial thoughts on the topic, and to Aleksandr Kogan for the discussions. Both authors are grateful to the reviewers for their comments, which helped us to improve the manuscript.

** Amos Saurombe. LLB LLM Med LLD. Professor, Head of the Department of Criminal and Procedural Law, College of Law, University of South Africa, South Africa. E-mail: sauroa@unisa.ac.za. ORCiD: https://orcid.org/0000-0002-9393-0789.

1 BRICS Information Portal date unknown http://infobrics.org/page/history-of-brics/ ; Ruppel 2014 https://www.youtube.com/watch?v=YXglRcBvtoY .

One of the crucial issues of our time is climate change, which is caused primarily by greenhouse gas (GHG) emissions. GHGs absorb infrared radiation that is released from the Earth's surface and turn it back to Earth, thus contributing to the greenhouse effect. 6

6 Mann 2023 https://www.britannica.com/science/greenhouse-gas.

MtCO₂), Russia (1712 MtCO₂), Japan (1012 MtCO₂), Iran (688 MtCO₂), Germany (679 MtCO₂), Saudi Arabia (631 MtCO₂), South Korea (616 MtCO₂), and Indonesia (616 MtCO₂). 8

8 Global Carbon Atlas date unknown https://globalcarbonatlas.org/emissions/carbon-emissions/ .

Considering the significant share of GHG emissions from the BRICS countries, the bloc's role in mitigating climate change is critical. However, BRICS consists of emerging developing economies whose historical contribution to climate change was marginal or at least debatable, depending on how one calculates historical emissions. Excluding land use from the calculation, among the largest emitters historically are the United States of America (USA) and the European Union (EU), for example. 10

10 Ekholm and Lindroos 2015 https://publications.vtt.fi/julkaisut/muut/2015/VTT-R-00139-15.pdf 1.

Different forms of GHG emissions calculations serve different purposes. Thus, calculating emissions in terms of the percentage of gross domestic product allows a comparison of similar-sized economies concerning their climate change impact. 13

13 Hargrove, Qandeel and Sommer 2019 Global Transitions 194.

an increase in emissions. At the same time, BRICS cooperation should facilitate a climate-friendly mode of development and a reduction of GHG emissions in the bloc wherever possible. Hargrove, Qandeel and Sommer 15

15 Hargrove, Qandeel and Sommer 2019 Global Transitions 193, 195.

Climate justice considerations require drawing attention to the following. Many of the BRICS countries suffer more from it while contributing less than non-BRICS countries to the climate problem. These include the new BRICS members from the most water-scarce region in the world - Egypt, Ethiopia, Saudi Arabia and the UAE. 16

16 Terink, Immerzeel and Droogers 2013 Int J Climatol.

In this article we will identify differences and similarities in the nationally determined contributions (NDCs) of the BRICS countries committed to implementing the Paris Agreement 19

19 Paris Agreement (2015).

Besides the NDCs of the BRICS nations and the literature on climate law, we will assess the situation pertaining to the energy sources of the

countries. In 2021 the BRICS Energy Research Cooperation Platform (ERCP) prepared the BRICS Energy Report, which, according to the Minister of Mines and Energy of the Federal Republic of Brazil Albuquerque, 21

21 BRICS Energy Research Cooperation Platform 2021 https://brics 2021.gov.in/brics/public/uploads/docpdf/getdocu-41.pdf.

First this paper will provide an overview of the international climate legal regime. Then it will integrate BRICS into the climate agenda by discussing recent developments in the bloc, based on the Johannesburg II Declaration. We will evaluate the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) as one of the key elements of the international climate regime which BRICS also supports. Then the paper will assess these countries' NDC commitments and outline a comparative perspective on the climate laws and policies of the BRICS countries. The article then provides recommendations specific to the BRICS countries and concludes that BRICS cooperation can contribute positively to climate change mitigation and adaptation. However, the implementation of the NDCs of the BRICS countries and the further development of common climate law and policy are needed for this opportunity to be used productively.

2 International climate change law

In 1992 the United Nations Framework Convention on Climate Change (UNFCCC) was adopted. This was the first global treaty on the issue. The UNFCCC enshrines principles that guide parties towards achieving the stabilisation of the concentration of GHGs in the atmosphere. These principles include, among others, the precautionary principle and the CBDR-RC principle. The latter will be discussed in more detail in Section Four of this article.

Despite its significance as a milestone in forging an international legal framework for coping with the climate change challenge, the UNFCCC did not provide specific measures to address climate change. That is why the next step in developing a legal mechanism for climate change was needed.

The expectations that there would be such an instrument materialised in the Kyoto Protocol of 1997.

The success of the Kyoto Protocol was limited, on the one hand by the fact that it had binding emission reduction targets not for the whole community of states but only for developed countries, and on the other hand because even the participation of developed states was not overarching. Thus, the United States did not ratify the Protocol 25

25 See Hovi, Skodvin and Andresen 2003 Global Environmental Politics 1-23.

Currently the legal hopes of the international community concerning climate change are focussed on the Paris Agreement of 2015. This treaty is equally binding for developed and developing nations, and all of them have made pledges under the Agreement. Article 3 of the Paris Agreement establishes one of the key elements of the international legal regime on climate change - NDCs - ambitious efforts that all parties to the Agreement are to undertake and publish. 27

27 Article 3 of the Paris Agreement (2015).

The formation of climate change law is complex. It concerns legal arrangements such as the transition from the idea of the top-down binding norms for developed countries of the Kyoto Protocol to the more inclusive bottom-up approach of the Paris Agreement. Complexity is visible in the uneasy relationships of this legal domain with other fields of law such as with its counterpart, environmental law. 28

28 See Zahar "Climate Law, Environmental Law, and the Schism Ahead" 488-500.

At the time of the adoption of the Kyoto Protocol, the USA was the main emitter and it was critical to have them on board. 29

29 Carlarne, Gray and Tarasofsky "International Climate Change Law" 8.

Not only single states but groups of states, international organisations and non-state actors played critical roles in the development of climate change law. Among them were small island developing states, civil society activists, the IPCC, courts and tribunals, for example. 32

32 Carlarne, Gray and Tarasofsky "International Climate Change Law" 20-23.

3 Johannesburg II Declaration

The consideration of the role of BRICS in climate change law leads to a discussion of the relevant scholarly literature. 33

33 See Gladun and Ahsan 2016 BRICS Law Journal 8-42; Kıprızlı and Köstem 2023 TWQ 1192-1210; Leal-Arcas et al "Climate Change Mitigation Law and Policy in the BRICS" 196-239; Leal-Arcas et al "BRIC and Climate Change Mitigation" 229-280; Petrone 2019 Ethics and Global Politics 19-30; Rinaldi and Martuscelli 2016 Meridiano 47; Ruppel and Ruppel-Schlichting "The BRICS Partnership" 549-570; Tripathi and Bhattacharya 2023 Env Pol'y & L 181-196.

The Johannesburg II Declaration illustrates, among other things, that there is currently a common vision of climate change law and policy in the bloc. 36

36 Johannesburg II Declaration.

recognises the role of fossil fuels in supporting energy security (paragraph 70), states that climate change adaptation initiatives are critical for disaster risk reduction (paragraph 72), and emphasises the role of climate change education and training (paragraph 73).

This vision is backed by the iteration of general principles shared by the BRICS countries such as the importance of inclusive multilateralism (paragraphs 1, 3, 14, 90 of the Johannesburg II Declaration), fair international governance (paragraphs 2, 6), the right to development (paragraph 6), and the need for the greater representation of emerging markets and developing countries (paragraph 90). Such ideas attract countries of the Global South to BRICS membership (paragraph 90).

Back in 2001, when O'Neill coined the term "BRIC", his approach was to integrate the emerging economies of Brazil, Russia, India and China into the G7 or other Western settings. 37

37 O'Neill 2001 https://www.goldmansachs.com/pdfs/insights/archive/archive-pdfs/build-better-brics.pdf.

4 The principle of common but differentiated responsibilities and respective capabilities (CBDR-RC)

Article 3(1) of the UNFCCC states that Parties to the Convention should protect the climate system in accordance with their common but differentiated responsibilities and respective capabilities (CBDR-RC). The

Article then adds that the developed country Parties should take the lead in combatting climate change and the adverse effects thereof. Articles 3(2) and 4(1) mention the specific needs and special circumstances of developing country Parties and specific national and regional development priorities, objectives and circumstances.

Acknowledging the dichotomy between the developed and developing countries the UNFCCC establishes two lists of parties as Annex I and Annex II. Annex I includes developed country parties, countries that are undergoing the process of transition to a market economy and the European Economic Community (currently the EU). Annex II is a list of developed country parties and the European Economic Community that have enhanced financial commitments towards assisting developing countries. Russia is included in Annex I as a country with an economy in transition. Annexes do not include other BRICS countries. The Kyoto Protocol also clearly distinguishes between the commitments of developed and developing countries.

In the 1990s when the UNFCCC and the Kyoto Protocol were adopted such a dichotomy was quite clear and the group of developing countries was quite homogeneous. 42

42 Hey and Paulini "Common but Differentiated Responsibilities".

The Johannesburg II Declaration uses the wording of the Paris Agreement and reemphasises the CBDR-RC principle that national obligations are expected to relate to “different national circumstances" (paragraphs 56-63). The Declaration uses the CBDR-RC principle not only in relation to climate change but also relative to states’ biodiversity commitments (paragraph 55). Most of the provisions of the related paragraphs concern financial and technical support by developed countries to the energy transition in developing countries and other means of implementing states’ climate commitments.

However, there is a difficulty that arises from the categorisation of BRICS members such as China and India as on the one hand they are rising powers, but on the other hand they wish to express solidarity with the other

countries of the Global South. 45

45 See Cooper 2021 TWQ 1945-1962.

5 The BRICS countries

In this section we will outline key features of the BRICS and we will illustrate that the problems that the BRICS countries face in setting and implementing their climate change mitigation laws and policies are diverse, which is why establishing a common response of the bloc to the climate change challenge is a complex task that requires consideration different from and sometimes contradicting the priorities of the bloc's member states.

Understanding the composition of the sources of energy in the BRICS countries is critical to setting their climate goals and implementing their NDCs. In 2019 the share of the BRICS nations in world energy consumption was 38,25%: China - 24.27%, India - 5.83%, Russia - 5.11%, Brazil - 2.12%, and South Africa - 0.92%. 46

46 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/ brics/public/uploads/docpdf/getdocu-41.pdf 45.

We have already mentioned that Argentina is not a BRICS country. However, Argentina's government has been invited to join the bloc, so we include Argentina in our analysis. Argentina's economy depends on natural resource extraction. 49

49 Dorn, Hafner and Plank 2022 Extractive Industries and Society.

development but also as against coping with climate change, which is inextricably linked with sustainable development transition in Argentina. 52

52 Dorn, Hafner and Plank 2022 Extractive Industries and Society.

The Brazilian energy sector is one of the least carbon-intensive in the world, with a share of renewables of almost half of the total energy supply (48.4% in 2020). 53

53 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/brics/ public/uploads/docpdf/getdocu-41.pdf 6.

China is the largest developing country in the world. 56

56 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/brics/ public/uploads/docpdf/getdocu-41.pdf 38.

Egypt is a developing country with a fast-growing population. 63

63 Egypt 2023 https://unfccc.int/sites/default/files/NDC/2023-06/Egypts%20Updated% 20First%20Nationally%20Determined%20Contribution%202030%20%28Second%20Update%29.pdf 4.

marginal. 64

64 Egypt 2023 https://unfccc.int/sites/default/files/NDC/2023-06/Egypts%20Updated% 20First%20Nationally%20Determined%20Contribution%202030%20%28Second%20Update%29.pdf 45.

Ethiopia is one of the least developed countries in the world, 67

67 UNCTAD 2022 https://unctad.org/topic/least-developed-countries/list.

India focusses on the rapid economic growth which is needed for poverty eradication. 72

72 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/brics/ public/uploads/docpdf/getdocu-41.pdf 33.

exports refined oil. 76

76 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/brics/public/uploads/docpdf/getdocu-41.pdf 25, 26.

Iran is one of the largest CO₂ emitters globally. 79

79 Global Carbon Atlas date unknown https://globalcarbonatlas.org/emissions/carbon-emissions/.

Russia is a country with vast hydrocarbon resources. 86

86 Leal-Arcas et al "Climate Change Mitigation Law and Policy in the BRICS" 226.

countries, BRICS, and the Association of Southeast Asian Nations (ASEAN). 89

89 Russian Federation 2020 https://unfccc.int/sites/default/files/NDC/2022-06/NDC_RF_eng.pdf 4.

Saudi Arabia is a developing country with historically low GHG emissions contributions. 95

95 Kingdom of Saudi Arabia 2021 https://unfccc.int/sites/default/files/resource/ 202203111154---KSA%20NDC%202021.pdf 11.

South Africa is one of the world's most fossil fuel-dependent countries. 98

98 Leal-Arcas et al "Climate Change Mitigation Law and Policy in the BRICS" 231.

economic growth, the negative impacts of climate change such as increasing numbers of forest fires, the COVID pandemic, and its status as a developing country. 103

103 South Africa 2021 https://unfccc.int/sites/default/files/NDC/2022-06/South% 20Africa%20updated%20first%20NDC%20September%202021.pdf 3, 30.

The UAE hosted the 28th Conference of the Parties (COP-28) to the UNFCCC in November 2023. 105

105 UN Climate Change 2023 https://www.cop28.com/.

6 Mitigation of climate change

In this section we will discuss the specific commitments and developments of old and new BRICS members concerning climate change mitigation. Firstly, we will observe the mitigation targets expressed in the NDCs of the BRICS countries. Secondly, we will outline the processes of energy transition in the bloc. Finally, we will briefly express the role of forests, afforestation and reforestation in climate change mitigation in the countries discussed.

6.1 Mitigation targets of the BRICS countries

This section will examine how the BRICS countries articulate in their NDCs their targets to decrease their GHG emissions. The NDC Synthesis Report

observes NDCs of the various parties to the Paris Agreement and identifies common features in their approaches towards fulfilling their climate commitments. 110

110 Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement Nationally Determined Contributions Under the Paris Agreement: Synthesis Report by the Secretariat FCCC/PA/CMA/2022/4 (4th session, Sharm el-Sheikh, 26 October 2022).

In December 2020 Argentina communicated its second NDC 113

113 Argentina 2020 https://unfccc.int/sites/default/files/NDC/2022-06/Argentina_ Segunda%20Contribuci%C3%B3n%20Nacional.pdf.

emissions in 2025 by 37% compared to 2005; in 2030 by 50% compared to 2005. 119

119 Federative Republic of Brazil 2022 https://unfccc.int/sites/default/files/NDC/2022-06/Updated%20-%20First%20NDC%20-%20%20FINAL%20-%20PDF.pdf.

Among China's NDC goals are to have CO₂ emissions peak before 2030 and achieve climate neutrality before 2060; before 2030 to lower CO₂ emissions per unit of GDP by over 65% from the 2005 level. 120

120 China 2021 https://unfccc.int/sites/default/files/NDC/2022-06/China%E2%80%99s %20Achievements%2C%20New%20Goals%20and%20New%20Measures%20for%20Nationally%20Determined%20Contributions.pdf 2.

The reference year for Egypt is 2015; the reference period is 2020 to 2030. 127

127 Egypt 2023 https://unfccc.int/sites/default/files/NDC/2023-06/Egypts%20 Updated%20First%20Nationally%20Determined%20Contribution%202030%20%28Second%20Update%29.pdf 35.

2030. 128

128 Egypt 2023 https://unfccc.int/sites/default/files/NDC/2023-06/Egypts%20Updated %20First%20Nationally%20Determined%20Contribution%202030%20%28Second%20Update%29.pdf 35.

In its NDC, India commits to reducing the emissions intensity of its GDP by 45% by 2030 from the 2005 level. 132

132 Government of India 2022 https://unfccc.int/sites/default/files/NDC/2022-08/India%20Updated%20First%20Nationally%20Determined%20Contrib.pdf 2.

Saudi Arabia aims to reduce, avoid, and remove GHG emissions by 278 million tons of CO₂-eq annually by 2030. 138

ensure maximum transparency and measurability. 139

.

There is a great diversity in the measurement of GHG emissions and approaches towards climate mitigation targets among the BRICS members. However, if the bloc aims to have a common climate policy, it would be beneficial to synchronise the climate goals of the countries. 144

144 This article suggests that the UAE target formulation and measurement could be a synchronisation model. The country uses a base year and fixed-level target in MtCO₂-eq. For synchronisation, for example, Egypt and Ethiopia should reformulate their targets from the BAU model to base year and fixed-level targets.

Table 1 showcases the key points of current commitments and approaches that could be starting points for such synchronisation. Iran has not adopted an NDC, thus the further analysis will concern all BRICS country members except this country. Nevertheless, Iran's admission to BRICS paves the way for the inclusion of Iran to develop an approach to climate in accordance with the general BRICS policy. By doing this, Iran joins in the existing global climate mitigation endeavours even if it is not a Paris Agreement party, which in turn could increase the significance of the bloc in the global climate regime.

Table 1 Key features of the mitigation targets of the BRICS countries

Table 1 illustrates that all BRICS countries except China use CO₂-eq (GHG emissions) in defining their climate targets while China expresses its

commitment in carbon dioxide. The UAE also clarified that its climate target concerns CO₂, CH₄, N₂O except for fluoridated gases. All countries except Egypt express their commitments in economy-wide terms, while Egypt defines its targets separately for electricity, oil and gas, and the transportation sectors. Some countries set their net-zero targets. Brazil and the UAE aim to achieve their climate neutrality by 2050, China by 2060, and India by 2070.

All BRICS countries define 2030 as the year by which they hope to achieve their emission reduction targets. Brazil and South Africa also set their preliminary targets for 2025, which increases their transparency and makes it easier to measure the progress of these countries. South Africa, Argentina, Egypt, Saudi Arabia and the UAE express their emissions in the reference year in absolute numbers rather than in percentages, or in addition to percentages, which also increases transparency and clarity. Brazil, Russia and the UAE express their commitments in the percentage of reduction concerning a previous year. Thus, for Brazil, the reduction by 2030 should be 50% compared to 2005; for Russia it is 70% compared to 1990, and for the UAE it is 19% below 2019. This suggests the possibility of developing synergies, but the countries use different years as base years, which makes comparison difficult.

Egypt and Ethiopia articulate their targets in relation to BAU scenarios. The UAE used this model in the past but transferred from this model to a reduction in absolute numbers using a base year emissions calculation, which is a welcome development for the sake of clarity and transparency. India and China set their targets as the reduction of the emissions intensity of their GDPs. A comparison of the goals of these two countries is possible. However, it is worth considering that China expresses its targets in CO₂ emission reduction while India calculates it for all GHG emissions.

The various states also note whether they are going to consider asking for international finance for the implementation of their NDCs. Thus, for example, South Africa, Egypt and Ethiopia’s programmes are contingent on receiving international finance. The approach of Ethiopia in this regard seems to be a welcome development. Ethiopia commits to achieving 20% of its climate targets based on its domestic finance (unconditional), while 80% will depend on international support (conditional). Such a distinction would help in measuring the progress of the country as well as for calculating overall progress under the Paris Agreement regime.

The New Development Bank (NDB), an institution established by the bloc, could play a critical role in the implementation of the BRICS nations' NDCs. Thus, according to the NDB General Strategy for 2022-2026, 40% of its approvals should be for projects contributing to climate change mitigation

and adaptation. 146

146 New Development Bank date unknown https://webapp-newwebsite-prod-hk.azurewebsites.net/about-ndb/general-strategy/ 20.

6.2 Energy transition

Paragraph 70 of the Johannesburg II Declaration highlights the importance of all energy sources and recognises the role of fossil fuels in supporting energy security. The balancing of climate change mitigation targets with this principle is one of the key features of BRICS. Nevertheless, cooperation on energy issues in the bloc, while critical for BRICS, has its obstacles. Thus, countries have different positions in the energy market. For example, Russia, South Africa and Brazil are mainly energy-exporting countries while India and China are energy-importing countries. 149

149 Barykina, Chernykh and Na 2022 IOP Conference Series.

The improvement of the use of energy sources in a way that reduces GHG emissions requires complex measures including developing new laws and regulations. The energy sector involves multiple interactions between energy producers, consumers and authorities at different levels. Their interests sometimes differ. Thus, investor-owned energy utilities have an interest in increasing energy consumption, while the reduction of GHG emissions requires the consumption of less energy by increasing energy efficiency. 151

151 Rábago and Valova "Introduction to Energy Law" 52-71.

buildings could, in turn, increase the cost of buying such buildings and lead to social tensions. 154

154 Rábago and Valova "Introduction to Energy Law" 63-65.

Although the shares of renewable energy in the energy production and consumption of the BRICS countries are increasing, hydrocarbons remain dominant in 2040. 156

156 Barykina, Chernykh and Na 2022 IOP Conference Series.

The Indian Government is taking steps towards achieving a smooth energy transition. 161

161 BRICS Energy Research Cooperation Platform 2021 https://brics2021.gov.in/brics/ public/uploads/docpdf/getdocu-41.pdf 33.

province, 165

165 China 2021 https://unfccc.int/sites/default/files/NDC/2022-06/China%E2%80%99s %20Achievements%2C%20New%20Goals%20and%20New%20Measures%20for%20Nationally%20Determined%20Contributions.pdf 16.

South Africa emphasises its development challenges and the need for a just transition to renewables, which means a transition which leaves no one behind. 171

171 South Africa 2021 https://unfccc.int/sites/default/files/NDC/2022-06/South%20Africa %20updated%20first%20NDC%20September%202021.pdf 3, 5.

One of the examples of international cooperation on just transition is the Political Declaration on the Just Energy Transition in South Africa adopted in 2021 by the governments of South Africa, the UK, the USA, France, Germany and the EU. 174

174 UN Climate Change Conference UK 2021 in Partnership with Italy 2021 https://webarchive.nationalarchives.gov.uk/ukgwa/20230106144924/https://ukcop26.org/political-declaration-on-the-just-energy-transition-in-south-africa/.

among other things, the support of workers in fossil fuel industries and communities affected by such a transition. Paragraph 8 of the Declaration identifies mining, energy, manufacturing and transport as sectors that may be negatively affected by the transition. Also, the other states that adopted the Declaration recognise the unprecedented opportunity for South Africa to become a leader in the just energy transition. Similar actions in BRICS would be beneficial both for BRICS member states and for developing the climate policy and identity of the bloc as such.

Argentina articulates the principles it will follow in achieving its mitigation and adaptation goals. 175

175 Argentina 2021 https://unfccc.int/sites/default/files/NDC/2022-05/Actualizacio%

CC%81n%20meta%20de%20emisiones%202030.pdf 2.

Saudi Arabia is ambitious in developing its renewable energy potential, including blue and green hydrogen technologies, and energy efficiency. 178

178 Kingdom of Saudi Arabia 2021 https://unfccc.int/sites/default/ files/resource/202203111154---KSA%20NDC%202021.pdf 4,5. On grey, blue and green hydrogen see DW Planet A 2022 https://www.youtube.com/watch?v= AGTjKJHu99c.

The UAE will focus on new developments such as low-carbon hydrogen (blue, green and pink), and carbon capture and storage. 181

181 UAE Ministry of Climate Change and Environment 2023 https://unfccc.int/sites/default/files/NDC/2023-07/Third%20Update%20of%20 Second%20NDC%20for%20the%20UAE_v15.pdf 5, 22, 23.

actions. 182

182 UAE Ministry of Climate Change and Environment 2023 https://unfccc.int/ sites/default/files/NDC/2023-07/Third%20Update%20of%20Second%20NDC%20 for%20the%20UAE_v15.pdf 51, 61.

The energy transition from fossil fuels to renewable energy sources is a complex issue. While it is a morally correct policy aiming to mitigate climate change and improve air quality, it is difficult to implement in countries dependent on fossil fuels. 184

184 Nazareth et al Equity Dimensions of Anti-Fossil Fuels Norms 4.

In the Preamble to the Paris Agreement, the parties to the treaty take into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities. The legal meaning of the concept of a just transition is still emerging. 186

186 Johansson 2023 JEL 231.

An energy transition requires the integration of new technologies, including those that have emerged as an outcome of the fourth industrial revolution ("Industry 4.0" or "I4.0"). 188

188 Onu, Pradhan and Mbohwa 2023 Heliyon.

energy sources. 189

189 Onu, Pradhan and Mbohwa 2023 Heliyon.

6.3 Forests

It is not only the transition to renewables that is critical for mitigation of climate change, but also developments in other areas such as land use and agriculture or waste management. 191

191 See, for example, Verschuuren "Agriculture, Forestry and Other Land Use (AFOLU)" 433-456.

The development of the common policy of the BRICS countries on forestry in climate change mitigation requires the consideration of different factors, including the different ways of using forests. They can be used, for example, primarily as carbon sinks or as a way of bioenergy production. 198

198 See Romppanen 2020 Journal of Energy and Natural Resources Law 261-287.

circumstances and priorities. In doing so, learning from other jurisdictions, for example from the EU and its member states, would be beneficial. 201

201 See Romppanen 2020 Journal of Energy and Natural Resources Law 261-287.

7 Adaptation to climate change

The impacts of climate change could be either positive or negative, depending on the region. The IPCC 202

202 IPCC "Summary for Policymakers" 7.

The BRICS countries consider climate change adaptation in their NDCs. Besides the negative impact of climate change, Russia sees positive features for the country, such as a reduction of energy consumption during winter, the development of the Arctic including the development of sea routes, a greater potential for agriculture, and the increasing productivity of boreal forests. 204

204 Russian Federation 2020 https://unfccc.int/sites/default/files/NDC/2022-06/NDC_RF_eng.pdf 18.

China promotes proactive adaptation to climate change, including the creation of sponge cities (urban areas with abundant trees, lakes and parks intended to absorb rain and prevent flooding), 205

205 China 2021 https://unfccc.int/sites/default/files/NDC/2022-06/China%E2%80% 99s%20Achievements%2C%20New%20Goals%20and%20New%20Measures%20for%20Nationally%20Determined%20Contributions.pdf 22, 25; Harrisberg 2022 https://climatechampions.unfccc.int/what-are-sponge-cities-and-how-can-they-prevent-floods/.

South Africa's NDC articulates that it is not only the mitigation endeavours of the country that are critical but also the adaptation measures, and is

expecting international cooperation and financial and other facilitation from developed countries to help it achieve its climate goals. 208

208 South Africa 2021 https://unfccc.int/sites/default/files/NDC/2022-06/South%20 Africa%20updated%20first%20NDC%20September%202021.pdf 28-30.

In its NDC, Egypt highlights the critical role of adaptation, which is especially significant for water issues. 209

209 Egypt 2023 https://unfccc.int/sites/default/files/NDC/2023-06/Egypts%20Updated %20First%20Nationally%20Determined%20Contribution%202030%20%28Second%20Update%29.pdf 4, 22, 25, 45

Saudi Arabia deals with the topic of adaptation as it is an arid country vulnerable to climate change. 211

211 Kingdom of Saudi Arabia 2021 https://unfccc.int/sites/default/files/ resource/202203111154---KSA%20NDC%202021.pdf 3,6.

For a long time, climate change adaptation was considered to be less important than mitigation. However, as actual changes in the climate occur and GHG emissions continue to rise, adaptation is becoming more important in academia and among policymakers. 214

214 Verschuuren "Introduction to Climate Change Adaptation" 3.

The development of climate change adaptation law and policy in general and in BRICS more specifically is a complex and not an easy task. While mitigation law and policy focus on specific fields of law more or less limited to energy law, forestry and agriculture regulation, climate change adaptation requires pertaining not only to energy, forestry and land use law but also to biodiversity, tourism, city planning, the regulation of marine and coastal

areas, insurance, loss and damage mechanisms, the adaptation of law firms to climate litigation, and compensations from extreme weather events. 216

216 Verschuuren "Introduction to Climate Change Adaptation" 6.

Mitigation action can run counter to climate change adaptation. Thus, building dams for hydropower may negatively affect agriculture and lead to the need for resettlements. The same effect can arise from afforestation and reforestation as climate change mitigation measures. 217

217 Verschuuren "Introduction to Climate Change Adaptation" 8.

What BRICS could do in this context is to become a platform that raises awareness of the challenges of adaptation and shares best practice in the bloc and with other countries, that assists in the distribution of finance, technology and capacity building to the places that are most in need of this, and that becomes an example of a successful adaptation that enhances the livelihoods of people and cares for the ecosystems in BRICS countries and beyond, and that gains political benefits for the bloc as well.

What is critical in this process is to connect local needs with the BRICS strategies. 222

222 On integration of local needs in climate policy see Buck, Sturzaker and Mell 2022 Journal of Environmental Planning and Management 2540.

adaptation to climate change can be spontaneous or planned. 225

225 Verschuuren "Introduction to Climate Change Adaptation" 6.

8 Notes on further research on the BRICS countries' climate laws and policies from a comparative perspective

Because this article aims to define the features of national approaches critical to developing a common BRICS attitude to climate change at present, it focusses mainly on the NDCs' commitments rather than on domestic laws and policies. However, the necessary next step is to look beyond the NDCs. Comparative analysis of the BRICS countries' climate laws and policies would contribute to defining the differences and similarities among these countries' approaches, would lead to better mutual understanding and perhaps to deeper, long-term cooperation in climate matters. Below, we will identify possible pathways for further research on the topic.

Further research could include (1) the role of legislative and executive powers in defining climate laws and policies in the BRICS countries, (2) climate litigation, (3) the role of national and sub-national authorities, (4) specific domestic policy instruments for climate change mitigation and adaptation and their nexus, (5) the integration of doctrinal studies with socio-legal and policy research. The following are a few preliminary thoughts on these issues.

Gundlach and Gerrard 226

226 Gundlach and Gerrard "Climate Change and Energy Transition Policies" 534.

As of 2023, Medici-Colombo and Berros 229

229 Medici-Colombo and Berros 2023 CJEL 176, 177.

Colombo and Berros 231

231 Medici-Colombo and Berros 2023 CJEL 194.

South Africa is a country where a rights-based approach in climate litigation dominates and leads to victories for the plaintiffs in court. 235

235 See Wadiwala 2023 CJEL 227-244.

The role of sub-national authorities in developing and implementing climate change laws and policies is also critical. Thus, as Gundlach and Gerrard 241

241 Gundlach and Gerrard "Climate Change and Energy Transition Policies" 540.

Additionally, further comparative analysis of specific climate policies is needed. Thus, the transition to renewables constitutes a specific challenge because solar and wind energy production, for example, depends on not always predictable natural forces and requires building specific infrastructure. In this context, the relationship between different authorities on the same governmental level or between national and sub-national

authorities in the process of developing and implementing the relevant policies is critical. 242

242 Gundlach and Gerrard "Climate Change and Energy Transition Policies" 540-543, 554-571.

In this context, the further cooperation and sharing of best practices among the BRICS countries' legislative, executive and judicial branches is pivotal. This cooperation should occur not only on the national level but also on sub-national levels. The relevant comparative research should contribute to the stimulation of such cooperation and simultaneously provide critical observations on the advantages and disadvantages of the relevant climate laws and policies in BRICS and in a global context.

Moreover, as Mehling 243

243 See Mehling 2015 RECIEL 341-352.

Interdisciplinarity can provide the necessary insights for further research on BRICS and climate change law. Not only doctrinal but also socio-legal study and the integration of legal knowledge with political science are needed. Thus, not only legally defined but also the factual allocation of powers among institutions at the domestic level matters are apt for research. For

example, considering that the Parliament in Russia is a much weaker authority than the President, Harrison and Sundstrom 253

253 Harrison and Sundstrom 2007 Global Environmental Politics 9.

Purdon 255

255 Purdon 2015 Global Environmental Politics 12, 13.

9 Recommendations

Table 2 summarises the recommendations made in this paper regarding climate change mitigation and adaptation specific to the BRICS countries.

Table 2 Recommendations

When establishing the common normative framework at the bloc level is required, the adoption of a declaration or another form of soft law or a policy document should be prioritised because BRICS currently does not have an effective legal framework and a mechanism for its implementation. If the bloc develops in the direction of closer cooperation among its member states, the adoption of legally binding documents would be a welcome development.

The role of law in developing the legal response of BRICS to climate change is not limited by the level of the bloc. Marshall and Sterett 257

257 Marshall and Sterett 2019 Oñati Socio-Legal Series 267.

action. 259

259 Marshall and Sterett 2019 Oñati Socio-Legal Series 270, 271.

The diversity of the needs, priorities and resources of BRICS countries means that the creation of a unified approach towards specific mitigation and adaptation policies in the bloc is not always possible and desirable. Thus, as has already been mentioned in the article, the shift towards using electric cars as a climatically beneficial movement requires that attention be paid to the way the electricity for these cars is produced. The implications of such a shift in South Africa would be different from those in Brazil. 261

261 The authors of this article are grateful to an anonymous reviewer for drawing their attention to this.

10 Conclusion

We called this article "BRICS and Climate Change Law: An Opportunity to Save the Planet". The cooperation of the ten countries in the bloc indeed constitutes an opportunity to cope with the challenges of climate change. It is critical to highlight that it is only an opportunity. There is no certainty that BRICS will take and use it to its full potential.

The main takeaways from this article are the following. First, the creation of BRICS took place without climate change mitigation and adaptation in mind. Other factors, particularly the desire to enhance the economies of the BRICS countries, were the driving force for cooperation. However, as the bloc has evolved climate change has become more visible on its policy horizon, and the Johannesburg II Declaration is one of the proofs of this development.

Second, the evolution of BRICS climate change law and policy could both support the implementation of commitments of the BRICS countries under the existing international climate regime and complement it. On the one hand, enhancing cooperation in the bloc could support actions towards the implementation of the NDCs of the individual countries through mutual support, awareness raising and the transfer of technologies, finance and

capacity building. On the other hand, BRICS has visualised its approach to critical issues in the climate change regime. Thus, it holds that all energy sources are important and notes the role of fossil fuels, which is not a common position held by many actors outside the bloc.

Third, BRICS countries are diverse in terms of their status under the UNFCCC regime, their pace of development, their share of historical and current GHG emissions, their abundance of natural resources, their reliance on coal and other fossil fuels and their local needs. This diversity could be both an obstacle and an opportunity for developing the bloc's common climate change framework. We assume that if such a framework develops, this could lead to constructing a unique law and policy framework which could reconcile the different domestic agendas for achieving the same goal, and in this regard become another positive achievement not only for the climate regime but also for creating a better multipolar world where no one is left behind.

In this article we have outlined possible trajectories for the development of political cooperation and academic endeavours in such areas as the climate change mitigation targets of the BRICS countries, increasing the energy efficiency and energy transition based on just transition, and the role of forests, agriculture and land use for the climate regime and climate change adaptation. We believe that the cooperation of researchers from different BRICS countries as well as from different disciplines would enhance our understanding of climate law and policy in the bloc and in broader international settings, and would contribute to finding solutions to the existential threat of our times.

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List of Abbreviations