“Legal Dimensions of Climate Justice” discussed at 27th Meeting of Legal Advisers, UNGA, NY 25 October 2016

The Sixth Commitee of the UN General Assembly is currently meeting at the UN Headquarters in New York. One of the panel discussions during the informal meetings of chief legal advisors of Ministries of Foreign Affairs on October 25th 2016 focused on the “Legal dimensions of the concept of climate justice”. For the first time, this topic was taken up at the meeting, with about 150 legal advisors present.

Panellists were Prof. Michael Gerrard (Columbia University, Sabin Center for Climate Change Law), Prof. Cymie Payne (Rugter University), Prof. Katrina Kuh (Hofstra Law School) and myself. In my talk, I analysed how the concept of climate justice is reflected in the Paris Agreement (climate-justice-in-the-paris-agreement).

The discussions – informed by the imminent entry into force of the Paris Agreement on 4 November 2016 – aimed at clarifying the content of the concept and at highlightening its various dimensions, such as human rights as a core value of the global order and distributive justice in terms of allocation of burdens and efforts of climate actions.

On the Paris Agreement’s imminent entry into force

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!

Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.

It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.

How was it possible? Part of the answer lies in the very architecture and content of the agreement. It basically has been purpose-built to make it easy for states to come on board. By letting Parties come forward with their nationally determined contributions, the agreement managed to “pick up” every state where it is at this point of time, preserving the sovereign space. Without being overly prescriptive or intrusive, it brings states together under the same goals and principles, such as progression and highest possible ambition. Importantly, it aims at increasing collective ambition over time and through iterative, quinquennial processes to where ambition needs to be in order to achieve those goals – thereby creating a place for learning, experience, reflection and permanent political attention to climate change. Unsurprisingly, the legally binding obligations in the agreement are few and of purely procedural character. The effect of this is that most Parties – if not all – do not need to change their national laws in order to implement the agreement. Such “weightless burden” eases and accelerates domestic ratification procedures.

But the Agreement is no paper tiger. It is deferential to sovereign interests, yes. It had to. At the same time, it gives a sense of direction and of collective purpose. It combines international normative “pull” with meaningful international cooperation and coordination, with horizontal peer “pressure”, and with repetitive national processes which will demand the continuous work on effective and ambitious climate policies, despite changing governments or economic circumstances.

Another reason for this “rush to ratification”, is the unwavering support of the UN Secretary General, Ban Ki-moon. In what might become his administration’s greatest legacy, he brought significant climate momentum to the UN system in organising high level events on climate change; the latest being the “special ratification event” on 21 September 2016 at which 31 states alone deposited their instruments of ratification or acceptance, crossing the first threshold for entry into force and jumping close to the bar on the second.

And, of course, there is the unprecedented alignment of political will of the world’s super powers; the US and China. In terms of political leadership, the Paris Agreement is one of the legacy projects for US President Barack Obama. His administration—along with China—has worked hard in recent months to ensure that the agreement takes effect. No doubt, the fact the US and China moved together created momentum, hope, expectation on others and a powerful surge to do the same. Importantly, the joining by the US and China also gave the necessary comfort to smaller emitters that the “big ones” are on board.

Yet, it is no G2-deal. 195 Parties to the UNFCCC adopted the agreement in Paris, 191 have signed it since, 74 have ratified or accepted so far. This means that the consensual scope is much broader than only between major powers. It is a truly multilateral deal. The obligations and entitlements are allocated fairly, in accordance with responsibilities and capacities. The agreement left the bifurcated approach of the Convention behind, which divided the world in Annex and non-Annex countries. It appeals to the vulnerable as well as the powerful, the economically advanced as well as to those that are least developed. Yet, across the large spectre of countries, it spans the normative canvas on which each and every Party can find its place in the common quest of avoiding dangerous anthropogenic climate change.

Moreover, the agreement itself has created a center of gravity. It draws in its force field the scientific community, a large and diverse array of stakeholders, civil society, private actors, companies, banks, insurances, all economic sectors, education, constituencies, voters. Science has never been as conclusive as now. Technology has seen rapid advances. Climate change has started to move from a burden to an opportunity – putting more emphasis on “change” and transformation of societies along low-greenhouse gas emission pathways. This, also, creates pressure and expectations; expectations which seem to compel states to ratifying the agreement. Pressure axes run vertically as well as horizontally (i.e. among states).

Peer pressure might, indeed, be the strongest reason for states to join the agreement. It has become politically correct, even “cool”, almost a competition, to ratify (quickly). Once a critical mass of countries had come forward, there seemed to be a gravitational pull on others. Not to miss the train, both in national and in international politics, created important momentum. Of course, there are also certain privileges to be had: Once the agreement enters into force, its decision-making body – the Conference of the Parties serving as the Meeting of the Parties (or short CMA) – will assume its competences. Only the Parties to the Paris Agreement would – and should – be eligible to participate in decision-making under this body. Now, while the “rule-book” of the Agreement remains largely to be written, a certain fear of missing out started to spread around the world. This in turn caused some side-eying on who else is joining the agreement – and a collective rush to parliamentary ratification procedures, or, for some, submitting an executive letter to the UN Secretary General.

A final, and perhaps not insignificant, reason lies in political “anti-leadership”. A country may only be as strong as its political leader. Because political leaders are a renewable resource, they come and go – with different takes on climate change. Some dedicated and constructive; others the complete opposite. Once the agreement enters into force, a Party can only get out by withdrawing from the Agreement. Withdrawal comes at a political cost – which may or may not prevent some Parties from taking this step – unless they have a leader who does not care or does not know or both. Now, withdrawal from the agreement is only possible after three years from entry into force – and even then will the withdrawal take effect only after one more year has passed. Which means that for four years after entry into force, no Party can leave the agreement. Four years is the duration of most elective periods for presidents and other heads of state. A Trump card, so to say, if it were needed.

With the imminent entry into force, the prophecy of the agreement – at least when it comes to taking effect – becomes self-fulfilling. The gravitational pull created the incentive necessary for others to join the agreement. It is evoking new behaviour, sufficiently influencing states so that their reactions (and actions) fulfil the conditions for entry into force, against all odds.

The hope is that this also extends to the effectiveness of the agreement itself, causing behavioural changes that matter. The first CMA in Marrakesh this November will show whether there is a positive feedback between belief and behaviour – or whether the agreement just enters into “farce”.

IUCN Academy of Environmental Law 2016 Colloquium, Oslo, 22-24 June 2016

Pluricourts, Center of Excellence at the Faculty of Law, University of Oslo, hosted the 14th Colloquium of the IUCN Academy of Environmental Law, 22-24 June 2016. The theme of the colloquium “The Environment in Court – Environmental protection in national and international courts, tribunals, and compliance mechanisms” attracted an unprecedented high number of almost 350 participants from all over the world. The colloquium brought together judges, advocates and scholars working in the field of environmental adjudication with the aim of strengthening the environmental rule of law through access to justice.

Information about the proceedings of the colloquium can be accessed here: http://iucnael2016.no/

Links to the video tapes from the colloquium can be found here:  http://www.jus.uio.no/pluricourts/english/services/podcast/2016/iucn/

 

 

New Research Handbook on REDD+ and International Law

Dear colleagues,

I am delighted to inform you that the “Research Handbook on REDD+ and International Law” has recently been published by Edward Elgar Publishing.

This edited volume explores interlinkages between the UNFCCC guidance for REDD+ and other international legal regimes. The book analyses the interplay of international norms and institutions with regard to reducing emissions from deforestation and forest degradation in developing countries and for channelling financial resources to this end. It aims to examine how and to what extent REDD+ is embedded in the international legal framework.

 Please find more information here: http://www.e-elgar.com/shop/research-handbook-on-redd-plus-and-international-law

 Sample chapters can be accessed here: http://www.elgaronline.com/view/9781783478309.xml

 Best regards,

Christina

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IUCNAEL colloquium “The Environment in Court”

Dear Colleagues,

Registration for the 2016 IUCN Academy of Environmental Law Colloquium which will take place at the University of Oslo, Norway, June 22-24, is now open at: http://iucnael2016.no

The topic of the 2016 Colloquium is “The Environment in Court”. This broad topic seeks to address procedural and substantive aspects of environmental adjudication, both in international, national and regional courts, tribunals and panels as well as compliance mechanisms of multilateral environmental treaties.

Many of the speakers will focus on various aspects of climate change related litigation. Please find the tentative programme here: http://iucnael2016.no/programme-2

On Tuesday, 21 June 2016, a special pre-colloquium session will be held on: Limiting Dangerous Climate Change: The Emerging Importance of Domestic Courts and Human Rights Tribunals – Especially After Paris

2015 witnessed significant and successful use of domestic courts and a national human rights commission to limit climate change emissions and impacts. This special session will focus on why domestic litigation on three continents has been successful, as well as on the prospects for similar litigation in other jurisdictions, particularly in light of the December 2015 Paris Climate Agreement. Those attending will have a unique opportunity to hear from and discuss these issues with the key jurists involved in these cases:

– from The Netherlands – Roger Cox, the Dutch Attorney who successfully argued the case for the Urgenda Foundation, in which the Court of the Hague found the Dutch government owed a tort duty of care to its citizens requiring the government to rein in carbon emissions by 25% by 2020;

– from Pakistan – Hon. Syed Mansoor Ali Shah, the Lahore High Court Green Bench Judge who, acting on the complaint of one citizen, found that the Pakistan government had a constitutional duty to protect citizens from climate impacts and ordered the government to take concrete measures to do so

– from the United States – Andrea Rodgers, Attorney for Our Childrens’ Trust plaintiffs, who convinced an Oregon state court that the state government had a public trust duty to ensure its greenhouse gas emission standards are sufficiently stringent to protect children from the burden of future GHG emissions;

– from the Philippines – Zelda dT Soriano, an attorney for Philippine citizens who in 2015 succeeded in having the Philippines Human Right Commission agree to investigate their complaint alleging that large private carbon companies located in other countries have responsibility

This special session will be chaired by veteran environmental attorney David Estrin and is being presented by the Centre for International Governance Innovation’s International Law Research Program.

 We look forward to your participation at the 2016 IUCNAEL Colloquium in Oslo!

Professor Dr. Christina Voigt

Chair of the Organizing Committee for the 14th IUCNAEL Colloquium

University of Oslo, Faculty of Law, Department of Public and International Law/ Pluricourts – Center of Excellence

IUCN Academy of Environmental Law Colloquium, 20-25 June 2016, Oslo

PluriCourts, Center of Excellence for the Study of the Legitimacy of International Courts and Tribunals at the University of Oslo, will host the 14th Annual Colloquium of the IUCN Academy of Environmental Law.

This event with the topic “The Environment in Court” will be held in Oslo, the capital of Norway, 20-25 June, 2016.

For more information, please see: http://iucnael2016.no/about/

Deadline for abstracts is 15 January 2016: http://iucnael2016.no/call-for-abstracts/

Historic climate agreement adopted

Yesterday evening, delegates from 195 states adopted a universal climate agreement. The adoption of the agreement marks a new era of multilateralism, bridging the divide between developed and developing countries and uniting them in the common fight against climate change and its adverse effects.

The agreement builds on the notion of diversified differentiation between countries based on different national circumstances. Accordingly, all Parties shall communicate national climate plans (so-called nationally determined contributions) every 5 years and increase their ambition over time according to a new legal principle of “progression”. 

Importantly, all Parties will employ their highest possible level of ambition – a notion resonant of a due diligence standard in international law.

Further, the agreement establishes a transparency system according to which Parties’ efforts will go through a system of reporting and review in accordance with common methodologies (which still need to be established).

For lawyers, attention should also be drawn to the establishment of a mechanism to promote compliance with and facilitate the implementation of the provisions of the agreement. The mechanism will funtion through a committee with 12 members. 

This post is not exhaustive in its description of elements in the Paris agreement. Especially, the articles on the privision and mobilization of financial support, adaptation, loss and damage, response measures etc. would merit deeper legal analysis.

Having been in plenary Le Seine at the UN conference center at Le Bourget last night, feeling the world keeping its breath for a moment, hearing the gavel go down to the thundering applaus of hundreds of delegates, I feel deeply grateful to all those that relentlessly put their efforts behind this cause.

It truly is victory of multilateralism, making the collective effort greater than the sum of the individual parts.

Christina Voigt

Legal advisor to the Norwegian delegation