FEATURE: What legal form should a global climate change deal take?
On 22 March CDKN and the Legal Response Initiative (LRI) co-hosted an event on the controversial question: what legal form should a global climate change deal take, and how much does it matter? Dan Hamza-Goodacre, CDKN’s Head of Negotiations Support, reports.
As part of our work to support the least developed and most climate vulnerable countries in the international climate change negotiations, CDKN and LRI convened a crowd of legal professionals, NGOs, businesses, UK and international government representatives and academics to debate the optimal legal form of a new international climate deal. Simon Maxwell, CDKN Executive Chairman, chaired a panel discussion with Philippe Sands QC, Sam Duffett (UK Government international climate change lawyer) and Achala Chandani (IIED, legal expert on climate change and advisor to the LDC group). Simon set the framing question: what is the difference between a protocol, a compact, a convention an accord or any other legal instrument or an instrument with legal force and are any of them really enforceable?
The discussion uncovered some of the legal history of the international climate change negotiations and threw up some fascinating avenues for progress as well as some sobering reflections on the slow pace of change.
Panellists and attendees were divided about the importance of a legal agreement. Some thought a legally binding deal was essential to underpin progress. Others argued that the need for a high level of consensus required for a formal treaty would simply produce a lowest common denominator agreement, with little impact. Would it be better to focus on the outcome (emissions reductions) not the form (binding or not)? After all we’ve made good progress on the MDGs without a whiff of legal form. Whether we could have made even more progress if the MDGs were legally binding is a question confined to speculation, but one worth reflecting on as we work towards a legally binding international climate change deal. Might a combination of soft international law, global consensus and accountability (NGO and business pressure and national climate change targets) result in quicker, perhaps even more ambitious progress?
Experiences were drawn on from other international legal battles, notably the law of the seas. Here, the question became: how might insurance companies require big emitters to comply with emissions reductions, much as they require ship owners to comply with environmental rules? The insurance companies are broadly united in support of ambitious action as they can see the mounting costs of business as usual.
There’s also the question of whether other international fora, such as the International Tribunal of the Law of the Sea, could prove directly complementary to a legally binding international climate change deal. The International Tribunal of the Law of Sea is sensitive to environmental issues, and might rule that not tackling sea level rise was a transgression of international law. Another existing entity whose force could come to bear is the International Court of Justice (ICJ). A ruling that found climate change to be a material breach of international law could create the basis for litigation against high emitting countries. However, it was argued that this was a high risk strategy. It was not clear whether the ICJ would reach such a verdict, in fact its history and current membership suggest otherwise. And even if it did, then the political ramifications would make a global deal even harder to reach
These ideas, using a combination of soft law and accountability or use of other international fora to make legal process on climate change, can be complementary to the UNFCCC rather than competition. For example, the Copenhagen Accord was at best soft law which is now part of the UNFCCC process of institutionalising emissions reductions targets. Civil society and businesses have been using the Accord to hold governments to account, though perhaps not as vigorously as the science demands. The use of alternative fora for international agreements needs more careful handling to avoid rulings that might set international climate change agreements back, perhaps by many years, And more thought is needed regarding what can be done to strengthen the case for positive rulings by these other fora. This is where lawyers, working with organisations like the Legal Response Initiative (LRI), can help, by exploring legal precedents, interrogating the facts and softening the ground for legal bodies to rule in favour of ambitious action on climate change.
In parallel we need to continue to put our efforts into the UNFCCC by streamlining processes and avoiding over-complicating discussions. A global climate change deal requires consensus and yet some countries can barely afford to attend the growing number meetings, let alone stay on top of the wide range of issues under discussion. Through the Climate Window of the Advocacy Fund, a CDKN initiative, we are supporting negotiators to overcome these barriers, so that a deal, when it is finally struck, better reflects the interests of the least developed and most climate vulnerable countries, which have the most to lose from a weak international climate change agreement.
CDKN is supporting the LRI to provide legal support to least developed and most climate vulnerable countries so that they can engage more effectively in international climate change negotiations. LRI do this through the provision of pro-bono real time legal advice at UNFCCC meetings, legal briefings and capacity building for negotiators.
Image: UNFCCC negotiations in Bangkok – Department of Energy and Climate Change