Climate challenges for Nicaragua Legal and economic context

Preface &
Acknowledgements

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

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

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

Thank you, may God bless you.

María José Centeno
Fonseca

Chapter 1:

International and
regional legal framework for climate change

Introduction

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

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

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

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

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

International legal framework for climate
protection

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

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

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

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

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

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

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

Treaties concerning climate
change

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

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

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

The objective of the convention is to achieve
"stabilization of greenhouse gas concentrations in the atmosphere
at a level that would prevent dangerous anthropogenic
interference with the climate system (…) within a time
frame sufficient to allow ecosystems to adapt naturally to
climate change, to ensure that food production is not threatened
and to enable economic development to proceed in a sustainable
manner" (art 2).

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

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

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

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

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

Kyoto Protocol[5]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regional convention on climate
change.[12]

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

Chapter 2:

The general
Nicaraguan Legal and Institutional Framework

Introduction

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

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

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

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

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

National Framework for Climate
Change

National Legal Framework for Climate
Change

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

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

In 2001, five new policies were introduced:

• The National Environmental Policy

• National Environmental Action Plan

• Forest Development Policy

• Land Use Policy (Política de Ordenamiento
  Territorial)

• Hydraulic Resources Policy

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

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

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

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

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

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

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

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

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

Social climate change movements