Nigeria's Climate Change Act,conditional and unconditional nationally determined contributions,and the principle of common but differentiated responsibilities

Abstract

The commitments outlined in Nigeria's Nationally Determined Contribution (NDC) are crucial for fulfilling the country's obligations under the Paris Agreement. The updated NDC reaffirms the Nigerian government's pledge to achieve a 20 per cent unconditional reduction and a 47 per cent conditional reduction in greenhouse gas emissions by 2030. To implement these commitments nationally, the Nigerian government enacted the Climate Change Act of Nigeria in 2021. However, the Climate Change Act does not explicitly incorporate the 20 per cent unconditional and 47 per cent conditional reduction targets from Nigeria's NDC. This article examines the implications of the Climate Change Act not directly recognizing these NDC targets and explores the legal status of NDCs at the national level. The assessment reveals that, despite the absence of explicit recognition in the Climate Change Act, the Nigerian government is legally obligated to achieve 20 per cent unconditional emission reduction by 2030. This is because the 20 per cent unconditional obligation is grounded in the principle of Common but Differentiated Responsibility (CBDR). Conversely, the Nigerian government does not have a legally binding obligation to the 47 per cent conditional emission reduction targets, as achieving this reduction depends on international support.

Introduction

Nigeria, as a member of the United Nations and a participant in key international climate change agreements such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement, has demonstrated its commitment to addressing climate change. The Nigerian government, represented by the President, signed the UNFCCC in June 1992, ratified it in August 1994, ¹ signed the Kyoto Protocol in December 2004, ² and signed the Paris Agreement in September 2016, officially ratified it in May 2017. ³

Under the Paris Agreement, Nigeria pledged to achieve a 20 per cent unconditional reduction and a 47 per cent conditional reduction in greenhouse gas (GHG) emissions by 2030. ⁴ This commitment was made through its Nationally Determined Contribution (NDC), which represents voluntary actions and targets undertaken by member states to address climate change and fulfil the objectives of the Paris Agreement. ⁵ By making this pledge, Nigeria assumes obligations under the international climate change regime. According to Article 4(2)(a) of the UNFCCC, each participating party is required to adopt national policies and corresponding measures for mitigating climate change. Article 4(2) of the Paris Agreement emphasizes the pursuit of domestic measures to achieve the objectives outlined in the NDCs. ⁶ Consequently, Nigeria is internationally obligated to incorporate climate change measures into its national policies, including the enactment of laws to fulfil its climate change commitments.

Six years following the establishment of these targets under the Paris Agreement, the Nigerian government passed the Climate Change Act of Nigeria in 2021, aiming to implement its climate change commitments at the national level. ⁷ However, a notable omission is the explicit recognition of the specific commitments regarding the 20 per cent unconditional reduction of GHG emissions and the 47 per cent conditional reduction by 2030 in the Climate Change Act of Nigeria. This raises crucial questions about whether the Nigerian government has a legal obligation to implement these commitments, especially considering arguments that NDCs are soft law and voluntary commitments not legally binding. ⁸ As a result, this article examines the consequences of the Climate Change Act's failure to explicitly include the commitments outlined in Nigeria's NDC.

The article is organized into distinct sections. ‘The Paris Agreement and the nationally determined contributions’ section provides an overview of NDCs and outlines Nigeria's specific commitments under the Paris Agreement. It elucidates the differences between conditional and unconditional contributions within Nigeria's NDC, laying the foundation for the subsequent assessment of Nigeria's Climate Change Act in relation to the NDC commitments. Moving on to ‘The Climate Change Act of Nigeria’ section, the focus shifts to the assessment of the Nigeria Climate Change Act, recognized as the primary legislation enacted by the Nigerian parliament to attain conditional and unconditional NDC targets by 2030. Key provisions of the Act are highlighted and discussed. ‘The incorporation of Nigeria's NDC into the Climate Change Act’ section evaluates the compatibility of the Nigeria Climate Change Act with Nigeria's NDC. The examination aims to determine whether the legal commitments outlined in Nigeria's NDC are embedded within the provisions of the Climate Change Act of Nigeria. The central focus of this assessment revolves around the legal standing of the NDC.

‘Legal obligations concerning the 20 per cent unconditional NDC targets and CBDR’ section progresses the discussion on the legal responsibilities binding the Nigerian government to fulfil both conditional and unconditional NDC commitments. Within this section, an exploration of the Common but Differentiated Responsibility (CBDR) principle is conducted to evaluate Nigeria's capability to meet the unconditional and conditional NDC targets. This scrutiny is rooted in the provisions of the Paris Agreement, which mandates the implementation of NDCs in accordance with the CBDR principle. The key focus of this examination lies in the unconditional NDC, formulated based on a country's capacity and resources in harmony with CBDR. ‘Legal obligation concerning the 47 per cent conditional NDC targets and CBDR’ section briefly examined certain challenges encountered by the Nigerian government in the implementation of the NDCs. It also explored the potential for citizens and non-governmental organizations to hold the Nigerian government accountable, given that the NDC commitment is not acknowledged in the Climate Change Act. The conclusion in ‘Challenges in enforcing the NDCS’ section emphasizes that the lack of specific incorporation of NDC targets into national legislation raises concerns about the clarity and enforceability of these commitments at the domestic level.

The Paris Agreement and the nationally determined contributions

The primary objective of the Paris Agreement is to limit the global temperature increase to below 1.5 °C above pre-industrial levels. ⁹ This ambitious goal prompted the introduction of a flexible element within the agreement known as the NDC. ¹⁰ The NDC allows all parties, irrespective of their development status, to autonomously commit to specific mitigation targets and implement domestic measures to achieve the Paris agreement's objectives. ¹¹ The following discussion addresses the NDCs and the rationale behind their adoption.

What do the NDCs entail?

In the course of negotiating the Paris Agreement, COP 19 (2013) advocated for a bottom-up approach to achieving the agreement's objectives. ¹² An instrumental method to realize the goals of the Paris Agreement was to enhance national preparation for ‘Intended Nationally Determined Contributions (INDCs)’ with the aim of fulfilling the agreement's objectives. ¹³

The term INDCs was initially introduced to convey that the contributions envisaged by member states were preliminary intentions, awaiting validation upon the adoption of the Paris Agreement. ¹⁴ The primary purpose of INDCs was to ensure that the Paris Agreement would not be adopted without ambitious targets from participating parties concerning the reduction of GHG emissions. ¹⁵ INDCs functioned as the initial plans developed by the parties to curtail GHG emissions. ¹⁶ Before the Paris Agreement was adopted, almost all member states had presented their INDCs, demonstrating their dedication to reducing emissions. ¹⁷ The adoption of the Paris Agreement brought about a notable shift in the classification of INDCs, elevating them to the status of NDCs. ¹⁸ This transition indicated that the initial plans and targets outlined in the INDCs to reduce emissions evolved into benchmarks for the parties post-adoption of the Paris Agreement. As emphasized in the 21st session in Paris, the first NDC of each Party would be considered its INDC at the time of ratification of the Paris Agreement unless the Party decided otherwise. ¹⁹

NDCs are crucial components of the Paris Agreement, recognized in its Articles 3 and 4. They afford each member the flexibility to craft commitments and targets suited to their specific circumstances, resources and capabilities. ²⁰ By doing so, NDCs collectively contribute to fulfilling the overarching objectives of the Paris Agreement. Serving as a representation of the joint endeavours of participating nations at the national level, NDCs address both the mitigation and adaptation aspects of climate change. Their central role in advancing the long-term goals of the Paris Agreement has led to their characterization as the heart of this international climate accord. ²¹

Approximately 191 countries submitted their first NDCs, outlining specific areas where parties intended to concentrate their efforts at the national level. ²² Nigeria, for instance, submitted its NDC on 28 November 2015, outlining a specific commitment to domestically reduce GHG emissions, with a benchmark of a 45 per cent conditional reduction and a 20 per cent unconditional reduction by 2030. ²³

The conditional and unconditional NDC targets

The distinction between ‘unconditional’ and ‘conditional’ contributions has been introduced primarily within the context of developing countries, also referred to as lower-income countries. ²⁴ In practical terms, many developing nations have presented two sets of NDC targets, classified as ‘conditional’ and ‘unconditional’ targets. Unconditional NDC targets represent commitments that countries can implement without any external conditions, relying solely on their resources and capabilities. ²⁵ On the other hand, conditional NDC targets are commitments that countries will undertake only if they receive international support. ²⁶

In simpler terms, unconditional contributions are commitments made based on a country's capacity, while conditional contributions are commitments contingent upon the support of developed countries. For example, Argentina's NDC outlines an unconditional contribution of 15 per cent by 2030, whereas the conditional contribution is set at 30 per cent. ²⁷ Similarly, Colombia has unconditional targets of 20 per cent and conditional targets of 30 per cent, while Mexico's unconditional target is 25 per cent, and conditional targets stand at 40 per cent. ²⁸ Other examples include Bangladesh with unconditional targets at 5 per cent and conditional targets at 15 per cent, and Nigeria with unconditional targets at 20 per cent and conditional targets at 45 per cent as of 2015. ²⁹

A critical examination of the NDCs reveals that the conditional targets are more ambitious than the unconditional targets, and many developing countries anticipate or require international support, particularly from developed nations, to achieve the conditional targets. ³⁰ Almost all developing countries express the need for ‘financial support’ from developed nations to meet their conditional targets. ³¹ The rationale behind conditional targets in the NDCs of developing countries is rooted in the principle of equity. ³² A significant justification for providing support lies in the concept of solidarity between wealthier or more capable countries and those that are economically disadvantaged or possess limited capacity to combat climate change. ³³ Another substantial justification is the moral responsibility of historically high-emitting countries to address the adverse impacts caused by their emissions. ³⁴ This is because evidence shows that developed countries are the cause of the major source of emissions of GHGs both in the past and the present. ³⁵

Nigeria's conditional and unconditional NDC targets

As previously mentioned, the Nigeria NDC outlines a specific commitment to reduce GHG emissions domestically. This commitment includes a concrete benchmark of a 45 per cent conditional reduction by 2030 and an unconditional 20 per cent reduction by the same year. ³⁶ The unconditional contribution implies that Nigeria is committed to achieving a 20 per cent reduction in GHG emissions below the business-as-usual scenario, relying solely on the existing development trends and current policies within the country to combat climate change. ³⁷ This means that Nigeria will only attain a 20 per cent reduction in GHG emissions by 2030 if the government does not receive any aid, including financial support, technology transfer and capacity building, from developed countries. ³⁸

Conversely, Nigeria's conditional contribution signifies a commitment to reducing GHG emissions by 45 per cent below the business-as-usual scenario, contingent upon receiving international support in the form of finance, technology and capacity building. ³⁹ The Nigerian government did not specify the 45 per cent conditional contributions in the NDC document. It only states that the achievement of the conditional commitment is dependent on international support. ⁴⁰ However, in the case of the unconditional contributions, the Nigerian government clearly outlined key areas of the 20 per cent unconditional contributions to be achieved by 2030. These key areas include:

▪ Work towards ending gas flaring by 2030.

▪ Work towards off-grid solar PV of 13 GW (13,000 MW).

▪ Efficient gas generators.

▪ 2 per cent per year energy efficiency (30 per cent by 2030).

▪ Transport shifts from car to bus.

▪ Improve electricity grid.

▪ Climate-smart agriculture and reforestation. ⁴¹

According to Article 4(9) of the Paris Agreement, nations that are parties to the agreement have a duty to submit their NDCs every five years. ⁴² The expectation is that countries will revise their NDCs to showcase their utmost ambition, keeping in mind the principles of common but differentiated responsibilities and respective capabilities, and acknowledging diverse national circumstances. ⁴³

After the initial five-year period, Nigeria submitted its updated NDC on 27 May 2021. ⁴⁴ In this revised commitment, Nigeria reaffirms its unconditional contribution of a 20 per cent reduction below the business-as-usual scenario by the year 2030. ⁴⁵ Additionally, Nigeria has elevated its conditional contribution from a 45 per cent to a 47 per cent reduction below the business-as-usual baseline by 2030. ⁴⁶ Therefore, Nigeria's current NDC stands with a 47 per cent conditional contribution and a 20 per cent unconditional contribution to emissions reduction by the year 2030. ⁴⁷

The attainment of Nigeria's unconditional 20 per cent and 47 per cent conditional reduction targets outlined in the NDCs is set to be accomplished by the year 2030. ⁴⁸ There is a limited timeframe within which Nigeria aims to realize these emissions reduction goals, specifically from 2021 to 2030, encompassing approximately nine years. Being a developing country, Nigeria faces a significant task in meeting these targets within the stipulated timeframe. Article 4(2) of the Paris Agreement underscores the responsibility of each participating Party to ‘pursue domestic measures’ to achieve their respective NDCs. This necessitates that the Nigerian government take proactive steps at the national level, including the initiation of laws and the incorporation of NDC targets into domestic legislation.

How can the NDCs be attained on a national level?

The achievement of NDCs relies on governments incorporating these commitments into their national policies. Integrating climate change actions into national policies entails that contracting parties bear the responsibility of implementing the agreed-upon measures at the national level. ⁴⁹ The most effective approach to achieve this integration is to embed NDC targets within domestic laws, regulations, policies and plans. This obligation of integration is explicitly outlined in Article 4(1)(f), Article 4(2)(a) of the UNFCCC and Article 6(1) of the Paris Agreement. Article 4(2)(a) stipulates that ‘[E]ach of these Parties shall adopt national policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs’. ⁵⁰

This article argues that the incorporation of NDCs is a crucial obligation for members of the Paris Agreement. The fulfilment of NDCs is dependent upon domestic governments taking proactive steps to include these obligations and enforce them. In essence, the realization of the Paris Agreement's goal, namely, to limit global temperature rise to below 2 °C above pre-industrial levels, relies directly on the actions of national governments to formulate policies and integrate NDCs. ⁵¹ This underscores the duty of contracting parties, particularly the legislative and executive branches, which hold the authority to enact new laws and policies, and enhance existing laws and policies to incorporate the NDCs.

The prospect of achieving Nigeria's NDC targets seemed promising with the long-anticipated passage of the Climate Change Act by the Nigerian government in November 2021. ⁵² The crucial question is whether the Climate Change Act supports Nigeria's NDC targets. The following assessment scrutinizes the Nigeria Climate Change Act to determine whether it incorporates the country's NDC targets.

The Climate Change Act of Nigeria

The Climate Change Act of Nigeria was initially proposed in 2007 during the 6th and 7th National Assembly but remained stalled until 2010 when it was sent for presidential approval. ⁵³ Unfortunately, it was not granted assent by the president. ⁵⁴ In 2017, the 8th National Assembly revived the Act with certain modifications. ⁵⁵ Although the Act reportedly passed through both the Senate and the House of Representatives, it once again awaited presidential approval. Surprisingly, the president did not give assent to the Climate Change Act ⁵⁶ until November 2021. ⁵⁷

In 2007, the Climate Change Act of Nigeria was introduced, coincidentally the same year the United Kingdom (UK) Climate Change Act was presented to parliament. The UK Climate Change Act swiftly became law within a year. In stark contrast, Nigeria struggled with a prolonged delay of about 14 years before the Climate Change Act was eventually passed into law. This extended timeframe underscores the undue delay experienced by the Nigeria Climate Change Act in the parliamentary process.

The explicit reasons for the notable delay in the passage of the Climate Change Act through both the Parliament and the Executive arms of the Nigerian government are not provided. However, one explanation offered by the professional services is that the legal department identified errors in the draft Act. ⁵⁸ Consequently, the Act underwent a process of correction and was sent back to the National Assembly for necessary adjustments. ⁵⁹ Additionally, the annual recess of the legislators was acknowledged as a contributing factor to the delay in the Act's passage. ⁶⁰

Nevertheless, despite encountering challenges during its legislative journey, the Climate Change Act has successfully transitioned into law. Consequently, it now stands as the primary instrument governing Nigeria's response to climate change, addressing concerns such as the reduction of GHG emissions and the mitigation of climate change impacts to fulfil both national and international climate change commitments. As articulated in the Act's objectives, the framework aims to achieve low GHG emissions. ⁶¹ In essence, the enactment of this Act marks a crucial step in shaping the future trajectory of Nigeria's climate change policies and actions.

Key provisions of the Climate Change Act

The Climate Change Act comprises 36 sections distributed across eight parts. Part I delineates the objectives and scope of the Act. ⁶² Part II articulates the structure, roles and notably, confers legal status upon a commission named ‘The National Climate Change Council (NCCC)’. Part III initiates the formation of the Council's Secretariat and outlines its functions. ⁶³ Part IV details the funding mechanisms for the NCCC to effectively pursue the Act's objectives. Meanwhile, Part V encompasses provisions related to the carbon budget, national climate change action plan and various other aspects.

Apart from the primary sections of the Act, several other crucial provisions within the Climate Change Act of Nigeria are poised to assist the government in fulfilling its global commitments. Notably, the Act institutes the NCCC and empowers it to formulate policies and resolutions pertaining to all aspects of climate change in Nigeria. ⁶⁴ Aligning with the UNFCCC, which emphasizes the establishment and reinforcement of national institutions, ⁶⁵ the NCCC, as outlined in the Climate Change Act, is anticipated to play a pivotal role in realizing the nation's climate change obligations.

Moreover, Section 26 of the Act facilitates collaboration between the NCCC and relevant ministries, departments and agencies (MDAs). It urges these entities to incorporate climate change across diverse educational disciplines and integrate it into the national education curricula at all levels. ⁶⁶ This aligns with the obligations outlined in Article 12 of the Paris Agreement, which encourages member nations to enhance climate change education and engage their citizens at the local level. Many countries, including Italy ⁶⁷ and the USA (New Jersey), ⁶⁸ have already taken steps to embed climate change topics into educational curricula. Consequently, Section 26 of the Act is poised to make a significant contribution to advancing climate education in Nigeria.

Additionally, the Climate Change Act expands the responsibility for reducing emissions to both public and private entities. The Act stipulates that any private organization with a workforce of 50 or more must implement measures to decrease carbon emissions. ⁶⁹ Failure to meet emission targets by private entities will result in fines imposed by the NCCC. ⁷⁰ Moreover, public entities, including ministries, departments and government oil corporations, are obligated to reduce GHG emissions. ⁷¹ This comprehensive approach emphasizes the broader involvement of both public and private sectors in emission reduction efforts.

Furthermore, the Climate Change Act fosters cooperation between the NCCC and diverse entities, including MDAs, civil society organizations, women, youths and others. ⁷² This collaborative approach aims to oversee plans, programmes and projects while actively engaging in climate advocacy and related initiatives. The Act encourages MDAs to establish a carbon budget and places significant emphasis on public participation. ⁷³ In a clear directive, the Act explicitly instructs the secretariat to involve the general public ⁷⁴ in the development and implementation of the Action Plan for climate change. ⁷⁵ This strong emphasis on collaboration and public involvement underscores the pivotal role of collective efforts in effectively addressing the challenges posed by climate change.

This suggests that the Climate Change Act of Nigeria includes provisions to promote climate change education and encourage the participation of NGOs and citizens in addressing climate change issues at the national level. However, the focus of this study is on Nigeria's NDC commitments as outlined previously. The question is whether the Climate Change Act of Nigeria aligns with the provisions of Nigeria's NDC commitments. Therefore, the next topic involves examining the acknowledgment of the Nigeria NDC targets within the Climate Change Act.

The incorporation of Nigeria's NDC into the Climate Change Act

There are four sections in the Climate Change Act that make reference to Nigeria's NDC. Firstly, Section 4 stipulates that the NCCC should coordinate with the Nigeria Sovereign Green Bond to fulfil the country's NDC. ⁷⁶ This section highlights the significance of a collaborative effort between the NCCC and the Nigeria Sovereign Green Bond. However, Nigeria's green bond programme is relatively new, lacking comprehensive information from the Ministry of Environment, the programme's implementing body. ⁷⁷ The available data suggests potential ineffectiveness and the actual impact of the green bond initiative remains uncertain. For instance, the 2019 Nigeria Green Bond, spanning seven years, is valued at just ₦15 billion ($49 million). ⁷⁸ There is no confirmation that this target has been reached. Even if achieved, this amount is significantly inadequate when considering the substantial costs associated with fulfilling Nigeria's NDCs. The unconditional 20 per cent component of Nigeria's NDC outlines ambitious goals across six key areas, including ending gas flaring by 2030, achieving 13 GW (13,000 MW) from off-grid solar PV, enhancing energy efficiency by 2 per cent annually (30 per cent by 2030) and many others. ⁷⁹ The estimated funding requirement for Nigeria's NDC is approximately $304 billion, far surpassing the limited funds projected by the Nigeria green bond programme. ⁸⁰ Moreover, there is a concern that green bond funds may occasionally be diverted to non-green projects. ⁸¹ Consequently, Section 4 of the Climate Change Act, which mentions collaboration with the green bond, may not sufficiently address the concrete measures needed to fulfil Nigeria's NDCs.

The second section addressing the NDC within the Climate Change Act is Section 15. This section just expressed the need for financial support from international organizations to achieve the NDC targets. ⁸² Moving on, the third relevant section is Section 19 of the Climate Change Act. Section 19 focuses on the periodic revision of the carbon budget in alignment with Nigeria's NDCs. ⁸³ ‘A carbon budget refers to the total quantity of carbon dioxide (CO2) emissions allowed within a specified timeframe to stay within a particular temperature threshold.’ ⁸⁴ Proper implementation of the carbon budget could assist the Nigerian government in meticulously tracking and reporting emissions, promoting accountability.

Finally, Section 35 of the Climate Change Act serves as the interpretation section, providing clarification on the meaning of the NDC. However, the preceding sections within the Act merely acknowledge and reference Nigeria's NDC. These sections underscore the importance of collaboration, highlight the necessity of conducting carbon budget calculations and offer a definition of NDC. While these provisions recognize the significance of NDCs, they do not explicitly integrate the specific objectives of Nigeria's NDC, particularly the GHG emission reduction targets before 2030, into the legal framework. ⁸⁵ Consequently, the Act lacks provisions for Nigeria's 47 per cent conditional contribution to emissions reduction and 20 per cent unconditional emissions reduction. These targets encompass initiatives such as ending gas flaring by 2030, achieving 13 GW (13,000 MW) from off-grid solar PV, promoting efficient gas generators, attaining 2 per cent annual energy efficiency (30 per cent by 2030), transitioning from cars to buses in transportation, enhancing the electricity grid and implementing climate-smart agriculture and reforestation. ⁸⁶

The significance of incorporating specific targets into national legislation

At the national level, where governments frequently demonstrate superficial commitment to climate change initiatives, it becomes essential to include explicit legislative support for emission reduction commitments for various reasons. Firstly, when precise climate change targets are codified in national legislation, they assume the status of legally binding obligations for the government. This affords citizens and NGOs a clear legal framework to hold governments accountable for meeting their commitments. ⁸⁷ Legal provisions empower citizens and NGOs to challenge government actions or inactions that deviate from established climate targets. ⁸⁸

Secondly, the incorporation of climate change targets into national law enables citizens and NGOs to pursue judicial remedies in cases of government failure to fulfil its obligations. ⁸⁹ Legal frameworks offer avenues for citizens and NGOs to initiate legal proceedings or petitions in courts, seeking the enforcement of climate targets or redress for environmental harm resulting from government actions. Access to judicial remedies bolsters accountability mechanisms and ensures government adherence to climate commitments. ⁹⁰ Furthermore, clear and legally binding emission targets provide certainty to investors, businesses and markets, thereby fostering investment in low-carbon technologies and sustainable practices. ⁹¹ This certainty encourages the deployment of capital towards initiatives aligned with climate goals, ultimately driving progress towards emissions reduction and environmental sustainability. ⁹²

This rationale underpins why countries such as the UK, Norway and many others incorporate specific climate change commitment targets into their national laws, recognizing the critical role of legislative backing in advancing climate action and accountability. Take, for instance, the UK Climate Change Act 2008, which established a legally binding target of achieving a minimum 80 per cent reduction in GHG emissions by 2050 relative to the 1990 baseline. ⁹³ Notably, the UK Climate Change Act underwent amendments in 2019, elevating the level of ambition to a 100 per cent reduction of GHG emissions by 2050 in alignment with the Paris Agreement's 1.5 °C objective. ⁹⁴ Similarly, the Norwegian Climate Change Act of 2018 unambiguously outlined a 2050 target for an 80–95 per cent reduction in emissions. ⁹⁵ The crux of the matter lies in the incorporation of these specific targets into national binding laws, empowering citizens to take legal action against the government if it fails to diligently implement the specified targets. This ensures that climate goals transcend mere aspirations, becoming enforceable mandates, and establishes a mechanism for holding the government accountable through legal avenues.

As previously noted, the Nigeria Climate Change Act does not expressly include its NDC targets. The central concern stemming from this omission is the potential implications if the Nigerian government fails to execute the 47 per cent conditional contribution emissions reduction and 20 per cent unconditional emissions reduction by 2030. The key question revolves around whether, given that the NDCs are not directly integrated into the Climate Change Act and considering the legal status of NDCs under international law, Nigeria is bound by the stipulated 47 per cent conditional contribution emissions reduction and 20 per cent unconditional emissions reduction targets by 2030. These issues are examined further below.

The implications of the Climate Change Act's non-incorporation of Nigeria's NDC

The implications of the non-inclusion of Nigeria's specific NDC targets, namely the 47 per cent conditional contribution emissions reduction and 20 per cent unconditional emissions reduction by 2030, in the Climate Change Act hinge on the legal standing of the NDCs. ⁹⁶ Divergent perspectives exist regarding the binding nature of the NDCs, with some asserting that they constitute a unilateral state declaration lacking the inherent intent to be legally binding. ⁹⁷ The prevailing view among many academics is that NDCs represent voluntary commitments, and their achievement does not inherently carry legal obligations. ⁹⁸ This argument presupposes that the binding nature of NDCs emerges only through their incorporation into national laws. For instance, the UK Climate Change Act of 2008 mandated a 100 per cent reduction by 2050 to meet the Paris Agreement's 1.5 °C target, ⁹⁹ while the Norwegian Climate Change Act of 2018 specified targets for an 80–95 per cent reduction in emissions by 2050. Incorporating specific NDC targets into national binding laws transforms them into legally binding obligations for national governments. ¹⁰⁰

It is essential to acknowledge that developing countries often make these commitments precisely because they lack inherent binding conditions. The term ‘nationally determined contribution’ underscores the voluntary nature of these pledges, allowing nations to contribute in a manner aligned with their capabilities and circumstances to realize the goals of the Paris Agreement. In essence, the voluntary nature of NDCs provides flexibility for developing countries to actively participate in global climate initiatives without the strict legal bindings associated with national laws.

Contrary to the assertion that NDCs must be incorporated into binding national laws to be enforceable, this viewpoint is contested by Winkler, who argues that NDCs inherently establish individual legal obligations for member states of the Paris Agreement. ¹⁰¹ The basis for this argument lies in Article 4(2) of the Paris Agreement, which stipulates that ‘Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’. The crucial word in Article 4(2) in this context is ‘shall’, as opposed to ‘should’, indicating a mandatory obligation. In the realm of treaties, the use of ‘shall’ typically denotes an international law obligation. ¹⁰² Therefore, Article 4(2) of the Paris Agreement imposes a clear obligation on its parties to undertake sufficient measures to realize their NDCs. Mayer supports this interpretation, emphasizing that the language of ‘shall’ creates a binding international legal commitment. ¹⁰³ This perspective finds backing from various academics who contend that Article 4(2) establishes a legal obligation for parties to act diligently in fulfilling their NDCs. ¹⁰⁴

Nevertheless, the question remains: does Article 4(2) of the Paris Agreement obligate national governments to implement both conditional and unconditional NDCs? Specifically, in the context of Nigeria, is the Nigerian government obligated to fulfil the 47 per cent conditional contribution emissions reduction and the 20 per cent unconditional emissions reduction, especially considering that the former is contingent on international support? This question is addressed below.

Legal obligations concerning the 20 per cent unconditional NDC targets and CBDR

This article argues that the 20 per cent unconditional commitment made by Nigeria is binding as it aligns with Article 4(3) of the Paris Agreement. ¹⁰⁵ This provision embodies the principle of CBDR. Article 4(3) of the Paris Agreement stipulates that parties are expected to update their NDC, reflecting their ‘highest possible ambition, reflecting its CBDR and respective capabilities, in the light of different national circumstances’. This signifies that the NDC was crafted based on the principle of CBDR. To substantiate the claim that the 20 per cent unconditional commitment is legally binding on the Nigerian government, we will shift our discussion to explore the principle and binding nature of CBDR in the context of Nigeria's 20 per cent NDC commitment.

The CBDR principle

The CBDR principle underscores that the risks and negative effects of climate change are shared by all nations, necessitating global cooperation to address the issues. ¹⁰⁶ However, the responsibilities or burdens of solving these problems should be differentiated. Wealthier nations bear a larger burden, while poorer nations bear a smaller burden. ¹⁰⁷

The CBDR principle was initially acknowledged under Article 7 of the Rio Declaration before becoming a fundamental concept in the current climate change regime. ¹⁰⁸ Within the climate change regime, Article 3(1) of the UNFCCC establishes the CBDR principle, stipulating that parties to the convention should adopt CBDR according to their respective capacities. ¹⁰⁹ During the negotiations of the climate change agreement, a significant responsibility was placed on industrialized party members to lead the way. ¹¹⁰ This is grounded in the evidence that developed countries have historically been major contributors to GHG emissions. ¹¹¹ As a result, these developed nations are expected to take a leading role in the fight against climate change. ¹¹² This concept is reflected in the emission targets outlined in the Kyoto Protocol, where only industrialized countries made binding commitments to reduce GHG emissions while developing country parties were exempted from taking any binding targets. ¹¹³

The CBDR has evolved beyond merely assigning the responsibility for emission reduction to industrialized countries, taking into account the substantial GHG emissions from developing country parties. ¹¹⁴ There have been proposals that certain developing countries should take on greater commitments to emission reduction, given their significant GHG emissions. ¹¹⁵ This is suggested to address concerns about fairness and effectiveness in global efforts to combat climate change. ¹¹⁶ Such suggestions align with the Intergovernmental Panel on Climate Change (IPCC), which stated that ‘stringent controls in industrialized countries combined with moderated growth of emissions in developing countries could stabilize atmospheric concentrations’. ¹¹⁷

This article contends that the overarching goal of the UNFCCC emphasizes a collective global effort to combat GHG emissions. ¹¹⁸ For instance, Article 4(2)(b) of the UNFCCC specifies that ‘each of these Parties shall communicate, … its policies and measures … as well as on its resulting projected anthropogenic emissions by sources and removals … with the aim of returning individually or jointly to their 1990 levels’. The deliberate use of the phrases ‘each of these parties’ and ‘individually or jointly’ in Article 4(2)(b) underscores the expectation that all parties share the responsibility of reducing GHG emissions, whether undertaken individually or through joint efforts. ¹¹⁹

Upon careful scrutiny, pivotal provisions such as Article 4(1) and Article 3(1) of the UNFCCC, in conjunction with Article 2(2) of the Paris Agreement, indicate the broad applicability of the CBDR principle to all participating parties. Article 4(1) articulates that ‘All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances’. Similarly, Article 3(1) of the UNFCCC mandates parties to incorporate CBDR in alignment with their respective capacities. Article 2(2) of the Paris Agreement underscores the necessity for the agreement's implementation to embody equity and the principle of common but differentiated responsibilities and respective capabilities. These guiding principles find reaffirmation in both Articles 4(3) and (19) of the Paris Agreement.

The collective impact of these UNFCCC and Paris Agreement provisions underscores that all parties contribute to GHG emissions, thereby contributing to the global warming of the atmosphere. However, the level of contribution may vary among nations, and as a result, the distribution of the responsibility for combating climate change is not proportional but based on countries’ capacities, available funds and technological advancements. ¹²⁰ In essence, the CBDR principle implies that developing countries should act in accordance with their capacities, as emphasized in Article 4(3) of the Paris Agreement, where parties are encouraged to formulate NDCs reflecting the CBDR principle. In this context, CBDR signifies that both developed and developing countries should shoulder the responsibility of mitigating GHG emissions according to their respective capacities. ¹²¹

The binding aspect of the CBDR principle

While the CBDR principle has not attained the status of customary international law, it has evolved into a binding element within climate change instruments. ¹²² As outlined earlier, Article 3(1) of the UNFCCC establishes the CBDR principle, mandating parties to the convention to adopt CBDR in accordance with their respective capacities. ¹²³ Similarly, Article 2(2) of the Paris Agreement emphasizes that the implementation of the agreement should reflect equity and the CBDR principle. ¹²⁴ The acknowledgment of CBDR in both the UNFCCC and the Paris Agreement demonstrates the acceptance of this principle under climate change treaties.

International law adheres to the principle of pacta sunt servanda. The principle of pacta sunt servanda holds that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’. ¹²⁵ Nigeria, in accordance with the Constitution of Federal Republic of Nigeria (CFRN) 1999 as amended, has both signed and ratified the UNFCCC and the Paris Agreement. ¹²⁶ Section 12 of the CFRN specifies that no treaty shall have the force of law in the country unless it has been ratified by the National Assembly. This provision aligns with the requirements outlined in climate change agreements, such as Article 22 of the UNFCCC, which emphasizes the necessity of ratification and acceptance by states.

The Nigerian government signed the UNFCCC on 13 June 1992, and ratified it on 29 August 1994. ¹²⁷ Similarly, the Paris Agreement was signed on 22 September 2016, and ratified on 16 May 2017. ¹²⁸ The significance of these actions lies in the acceptance of the CBDR principle by the Nigerian government. Consequently, it becomes binding on the Nigerian government to undertake practical measures for reducing GHG emissions based on its capacity.

Application of the CBDR principle in 20 per cent unconditional Nigeria NDC

The essence of the CBDR principle, extending from the UNFCCC to the Paris Agreement, is to encourage parties to take climate action in alignment with their respective capacities. ¹²⁹ Therefore, if parties commit to emission reduction targets based on their capacity and available resources, they are bound by these commitments unless there is evidence that fulfilling such commitments is beyond their capacity. As mentioned earlier, the unconditional contribution is what a country should implement using its resources and capacity. ¹³⁰ In the case of Nigeria, which has pledged an unconditional 20 per cent emission reduction in its updated NDC, this commitment is binding and must be implemented, regardless of whether it is directly incorporated into the Climate Change Act, as it falls within the capacity of the Nigerian government.

The legal consequence of the 20 per cent unconditional contribution is that in the event of substantial evidence indicating that the Nigerian government might fall short of its 20 per cent target by 2030, and such failure is attributed to the government's neglect of its commitments and the non-implementation of the specified targets, citizens, NGOs and other concerned parties have the legal standing to initiate legal proceedings. They can approach the court to compel the Nigerian government to fulfil its 20 per cent NDC commitment as outlined in the NDC.

Recent developments highlight the trend of concerned citizens and NGOs taking legal action in national courts to obtain court orders compelling their national governments to enhance ambitions or implement targets aligned with the Paris Agreement. In the UK, 11 citizens, alongside Plan B – a charitable organization dedicated to realizing the Paris Agreement's goals, filed a lawsuit against the Secretary of State challenging the 80 per cent GHG emission reduction targets set for 2050 in the UK's Climate Change Act. This legal action was prompted by emerging scientific data indicating the need for more ambitious targets to achieve the Paris Agreement's 1.5 °C goal. ¹³¹ Although this case was unsuccessful in both the high and Appeal courts, the UK government subsequently amended the Climate Change Act in 2019, introducing a revised target of 100 per cent reduction in GHG emissions by 2050. ¹³²

Similarly, in the Netherlands, the Urgenda Foundation, an environmental group, collaborated with 900 Dutch citizens to bring legal action against the government, urging it to reduce GHG emissions. The Hague Court of Appeal ruled that the government's existing pledge of a 17 per cent reduction was inadequate and mandated a reduction of GHG emissions by 25 per cent below 1990 levels by 2020. ¹³³ These instances illustrate a growing trend of legal challenges prompting governments to adjust climate targets in response to court decisions.

This article contends that the 20 per cent NDC target constitutes a legal obligation for the Nigerian government. In the event of Nigeria failing to implement its 20 per cent NDC commitment, concerned parties within Nigeria could potentially seek legal recourse by filing a lawsuit to obtain a court order compelling the government to fulfil the 20 per cent GHG emission reduction outlined in the NDC. This argument is further reinforced by the provisions of Section 23 of the Climate Change Act, which stipulates that a court hearing a case related to climate change or environmental matters has the authority to issue an order compelling any public official to take action to prevent or halt activities that are detrimental to the environment.

Legal obligation concerning the 47 per cent conditional NDC targets and CBDR

The Nigerian government is not legally obligated by the 47 per cent conditional targets, as the principle of CBDR does not apply to this commitment. The government explicitly states that the implementation of the conditional targets relies on financial support from international organizations and developed countries, placing it beyond Nigeria's capacity. ¹³⁴ Consequently, CBDR does not have relevance in this context. If the government fails to meet the 47 per cent emission reduction due to a lack of support, Nigeria may be exempted from legal obligations.

However, if there is sufficient evidence indicating that the Nigerian government has received ample funds to implement the 47 per cent commitment, then the Nigerian government could be held liable. For instance, there are several pledges from the international community to aid Nigeria in the fight against climate change. Foreign Secretary James Cleverly, for example, announced a £55 million Propcom + contract and a £2.89 million grant, aimed at supporting the transformation of Nigeria's rural economy. ¹³⁵ In fact, the Nigerian government aimed to secure an initial US$10 billion support package to kickstart implementation. ¹³⁶ If there is evidence demonstrating that the funds were misappropriated and not used for the purpose for which the money was given, then the government could be held responsible.

Challenges in enforcing the NDCS

The point must be emphasized that the fulfilment of Nigeria's NDCs, whether conditional or unconditional, should not be a contentious issue if the government implements its commitments. Unfortunately, this has not been the case. Instances exist where the Nigerian government made commitments but failed to follow through, not necessarily due to a lack of funds but often attributed to reckless spending and a lack of seriousness in keeping promises. ¹³⁷ Historical evidence underscores the consistent failure to implement climate change-related targets. For example, in 2003, Nigeria aimed to integrate solar energy into the nation's energy mix by 2018, yet this target remained unachieved. ¹³⁸ Similarly, the 2003 Renewable Energy Master Plan set ambitious goals for electricity supply, but as of 2024, none of these goals have materialized. ¹³⁹ The failure to achieve these goals underscores the lack of commitment on the part of the Nigerian government to fulfil its targets. This suggests that Nigerians may lack faith in their government's ability to meet the unconditional 20 per cent NDC targets by 2030. Consequently, concerned citizens and NGOs need to consistently pressure the Nigerian government to implement its unconditional NDC commitments. This may involve taking legal action to compel the Nigerian government to act.

However, several challenges may exist. First, at the national level, the absence of explicit incorporation of NDC targets into the Climate Change Act may lead to interpretative challenges regarding the binding nature of these targets within the country. The fact that the Climate Change Act does not specifically outline the NDC targets might be interpreted to mean that these targets are not legally binding at the national level. Second, without clear integration into national legislation, the enforcement and accountability mechanisms for achieving NDC targets within Nigeria may be less robust. Citizens and advocacy groups may find it challenging to hold the government accountable for failing to meet the specific emission reduction commitments. For example, Nigerian courts have introduced significant obstacles in the legal proceedings that appear to hinder the public, including NGOs, from enforcing climate change-related issues. Technical interpretation played a crucial role in cases such as Douglas V Shell, ¹⁴⁰ and Centre for Pollution Watch V Nigeria National Petroleum Corporation. ¹⁴¹ In the former, the Court of Appeal dismissed a suit filed by an NGO on behalf of a community affected by an oil spill, citing that the NGO did not experience any damage or injury. ¹⁴² Similar sentiments were repeated in other cases like Busari V Oseni ¹⁴³ and Shell Pet. Dev. Co. Ltd. V Otoko. ¹⁴⁴ If the court has previously relied on technicalities to dismiss crucial cases that seek to hold the government accountable, there is a likelihood that the court may adopt a similar approach in issues related to NDC enforcement in Nigerian courts, especially considering the absence of explicit provisions in the Climate Change Act.

Therefore, to provide clarity and legal strength to the NDC commitments, there might be a need for legislative amendments or specific provisions in the Climate Change Act that articulate and integrate these targets. Several recommendations could be pursued to enhance the effectiveness of the Climate Change Act in meeting Nigeria's NDC targets. One key recommendation is to amend the Climate Change Act to explicitly include the specific targets outlined in the NDCs. This includes specifying the 20 per cent unconditional emission reduction targets, making them legally binding obligations for the Nigerian government. Such incorporation would ensure that these targets carry legal weight rather than being merely aspirational. Another recommendation involves introducing provisions for effective monitoring and reporting mechanisms within the Climate Change Act. This could entail creating a dedicated body or strengthening existing institutions to regularly assess and report on the progress of NDC implementation. Establishing such mechanisms would ensure transparency and accountability in meeting both conditional and unconditional targets.

Additionally, the Act should include provisions for creating domestic funding mechanisms to support the implementation of NDC targets, especially the 47 per cent conditional targets. This involves outlining clear financial strategies, such as setting up a dedicated fund or exploring innovative financing mechanisms, to ensure that financial resources are available for meeting ambitious climate goals. Furthermore, there should be provisions to create dedicated oversight committees within the Climate Change Act. These committees would be responsible for monitoring, evaluating and reporting on the progress of NDC implementation, ensuring accountability and transparency in the process.

Finally, strengthening the National Office for Technology Acquisition and Promotion (NOTAP) remains essential. While NOTAP has created the Patent Information and Documentation Centre (PIDC) and developed several technology transfer agreements, further facilitation and targeting are necessary to achieve the NDC targets promptly. Enhanced support for NOTAP would help accelerate the transfer and adoption of technologies critical for meeting Nigeria's climate goals. By pursuing these recommendations, Nigeria can ensure that its Climate Change Act is robust, comprehensive and capable of effectively driving the country towards its NDC commitments.

Conclusion comments

This article has conducted a thorough evaluation of Nigeria's NDC targets, and the associated Climate Change Act designed to enforce these targets. The analysis has elucidated Nigeria's renewed commitment to achieving a 20 per cent unconditional reduction and a 47 per cent conditional reduction in emissions by 2030. Notably, the examination of the Climate Change Act of Nigeria has revealed that key provisions of the Act promote climate change education and encourage the participation of NGOs and citizens in addressing climate change issues at the national level. However, the Act does not explicitly integrate the specific objectives of Nigeria's NDC, particularly the 20 per cent and 47 per cent commitments, into the legislative framework.

Even though the specific targets of the NDCs are not directly incorporated into Nigeria's Climate Change Act, this study contends that the 20 per cent unconditional commitment – which includes ending gas flaring by 2030, achieving 13 GW (13,000 MW) from off-grid solar PV, promoting efficient gas generators, attaining 2 per cent annual energy efficiency (30 per cent by 2030) and transitioning from cars to buses in transportation – is binding on the Nigerian government. This is because the 20 per cent unconditional commitment is rooted in Nigeria's capacity, emphasizing the CBDR principle, which has been incorporated into the Paris Agreement and ratified by the Nigerian Parliament. Consequently, it posits that the Nigerian government bears a legal obligation to fulfil the 20 per cent unconditional contribution, even in the absence of direct incorporation into the Climate Change Act of Nigeria.

However, a distinct legal stance emerges concerning the 47 per cent conditional contribution, as this target surpasses Nigeria's independent capacity. The article underscores that the Nigerian government explicitly ties the achievement of the 47 per cent to international support, thereby absolving it of a binding legal obligation at the national level, except in cases where there is sufficient evidence indicating that the Nigerian government has received adequate funds to implement the 47 per cent commitment and subsequently failed to utilize these funds appropriately.

In essence, while the 20 per cent commitment carries legal weight, the 47 per cent remains contingent on external assistance. Despite the legal weight of the 20 per cent unconditional NDC targets, there are shortcomings. Specifically, the absence of explicit incorporation of unconditional NDC targets into national legislation raises concerns about the clarity and enforceability of these commitments at the national level. Therefore, addressing this through legislative measures, such as amending the Climate Change Act to include the specific targets outlined in the NDCs explicitly, would enhance accountability. Specifying the 20 per cent unconditional emission reduction targets, making them legally binding obligations for the Nigerian government, could substantially contribute to achieving the stipulated Nigeria's NDC targets in the future.