20 December 2019

COP25 Negotiations Fail: Can Climate Change Litigation, Adjudication, and/or Arbitration Compel States to Act Faster to Implement Climate Obligations? (EJIL Talk)”

Reflecting on the failure of the recent negotiations in Madrid, Prof. Dr. Diane Desierto considers the possibility of enforcing the customary obligation of negotiating in good faith against parties to the Paris Agreement:

The impasse over whether to permit the carryover of existing carbon credits (around 4 billion CDRs) in designing the Article 6(4) mechanism turns on the question of whether permitting this carryover would defeat the Article 6(2) obligation to ensure robust accounting in a manner that avoids double counting (e.g. counting the same emission reduction more than once to achieve climate mitigation targets). The relevant question, for the purpose of ascertaining the possible breach of the good faith duty to negotiate, is whether this impasse from holdout positions fails to make further negotiations truly meaningful (e.g. with a true intention to conclude agreement on how to implement Article 6 of the Paris Agreement). In my view, it is highly questionable if insisting on the carryover affirms the objects and purposes of the Paris Agreement, especially when it emphasizes the need for an effective and progressive response to climate change”. How is maintaining the existing credits from the failed and flawed Clean Development Mechanism a progressive response to climate change” envisaged as one of the key objects and purposes of the Paris Agreement, especially when the same CDM has been found to result in problematic double counting sought to be avoided in Article 6(2) of the Paris Agreement?

This comes in the context of a recent sweep of litigation related to climate change and environmental protection in multiple jurisdictions around the world, helpfully summarised in this paragraph (click through to the post itself to explore the links):

While some might see the proliferation of coercive legal enforcement as perhaps anathema to the deliberate design of the Paris Agreement, the last few years have witnessed a sharp rise in climate change-based domestic litigation; climate change-based petitions at human rights treaty bodies; a recent 2019 Philippine Constitutional Commission on Human Rights report concluding that the Carbon Majors (47 of the world’s biggest fossil fuel firms) could be held legally liable for violating human rights; and various opinions (see here, here, here, here, here, here, among many others) on how international arbitration could be used for climate change-based or climate change-related disputes, especially on challenging the adequacy or appropriateness of the multiple individual mitigation and adaptation policies and strategies of States and businesses and the impacts of those policies and strategies on populations.

These few years have seen quite a shift towards such climate litigation, for better or for worse. It seems that international law is exactly the right instrument for this problem — cross-boundary, complex, and, fundamentally, correcting negative externalities. I’m reminded of the international environmental court that the Martians set up in KSRs Green Mars. We’re not there yet, but as anger and frustration at major polluters grows, constant litigation over this issue might become a reality and a viable strategy.

Climate Change Ecology Climate Litigation International Law Environmentalism

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