FEATURE: Legal community to bolster Paris Agreement implementation
CDKN’s Sam Unsworth, with Sam Bickersteth, Mairi Dupar and Kiran Sura, report on how the legal community is mobilising to ensure that the ambitious Paris climate agreement gets translated to into action.
“Rapid ratification at the international level now needs to be translated in to domestic legislation, regulation and policies to avoid locking the world in to even greater warming. We need action at scale and pace on reducing emissions and our exposure to climate risks.” — Sam Bickersteth, CDKN Chief Executive
“The Paris Agreement has shattered previous records to become the fastest international agreement to come in to force. This should give us hope that need for urgent and ambitious action is finally being taken seriously. Government, societies and business all now have a part to play in putting us on path to avoid dangerous climate change. But we also have a duty to help each other deliver the Paris Agreement, and now more than ever we need to see finance, technology and support flowing quickly to developing countries and those on the front line of climate change to help them manage the impacts of climate change and transition to a low carbon future.” — Kiran Sura, CDKN Head of Negotiations Support
The Paris Agreement last December was hailed as a lifeline for the most poor and climate vulnerable countries. Since then, countries have had to seek domestic approval in order to ratify the agreement and enable it to enter into force, with approval processes depending on each country’s national constitution and legal framework. It is clear that we are moving into a new era of action, with both developed and developing countries ratifying far faster than expected. The Agreement will enter into force less than a year after it was agreed, in contrast with the 6 years that the Kyoto Protocol took to enter into force.
However, the Agreement will only provide this lifeline for poor and climate vulnerable countries if it is well implemented. Legislation can be an enabler for the implementation of the commitments made in Paris, but it can also be a barrier, when outdated laws restrict low carbon investments. The Legal Response Initiative (LRI) supports developing countries to understand how to use legislation to implement the Paris Agreement. CDKN supports LRI to meet developing countries’ increasing demand for this service.
On 27-28 September, CDKN and LRI hosted an event for legal experts from developed and developing countries and representatives of governments and civil society groups to explore the specific needs of developing countries in ‘Legislating the Paris Agreement’. The event combined an evening panel featuring UNEP, UNFCCC and developing country representatives with a workshop the following day to discuss approaches in detail.
The Paris Agreement is the best chance we’ve got, even if it’s not perfect
The Paris Agreement could be stronger in protecting the interests of poor and climate vulnerable countries. Dr Chuks Okerere felt that its treatment of climate justice was disappointing, given the scale of historic emissions by developed countries. However panellists recognised that the Agreement still offers an important vehicle for transformational change if parties now work to establish a strong set of rules with which to implement what they have agreed. Michael Burger explained that “For the Paris Agreement to succeed, parties will need to develop national legislation that ensures that they live up to the commitments made through the Paris process”. Dr Seth Osafo raised concerns about the challenges for some poor and climate vulnerable countries to deliver on the promises they made through their voluntary commitments, emphasising how crucial it is to get climate finance moving quickly.
One size doesn’t fit all for climate change law
A key theme in the workshop was the need for development partners such as ourselves to avoid being narrow and prescriptive in supporting the development of climate change legislation in developing countries. Participants favoured a tailored approach reflecting individual developing country needs and circumstances, and building the capacity and capabilities of local lawyers to draft legislation – which was acknowledged as a gap. Suggested approaches by legal experts included developing a toolkit of legislative best practice examples and support offerings, or developing a model law with a shopping list of options which countries can pick according to their priorities. This builds the case for training lawyers from developing countries to develop their own laws, in line with the capacity building and mentoring for developing country lawyers that has been provided by LRI to date.
Countries may not need to enact new laws to implement the Paris Agreement
Workshop participants stressed the potential benefits of laws and regulation, such as their ability to lock in a specific development pathway, improve accountability, ease budgeting and provide certainty to the markets. However they also recognised that it can be politically and ethically challenging for developing countries to implement new laws on climate change. Laws focused on other priorities besides climate change can still contribute significantly towards decarbonisation efforts, a point highlighted by participants as part of a popular ‘patchwork’ approach to implementation. For instance an existing waste management law can reduce methane emissions substantially if properly enforced and/or incentivised with policy measures. Professor Michael Burger observed that enforcement of relevant existing legislation in the human rights, labour and environmental sectors could all contribute very significantly to achieving the objectives of the Paris Agreement, alongside changing laws that undermine climate ambition. It was also recognised that in some contexts, framework legislation for sectors and guidance combined with incentives may be more appropriate for tackling climate change.
Developing countries can take practical steps now
Discussion throughout the event was focused on immediate, tangible next steps for developing countries. Mapping the existing legislative environment in a country was agreed to be a critical next step in this process. Besides this, a host of other actions were identified. These included coordination between a country’s Ministry of Justice and those ministries responsible for implementing nationally determined contributions. Emphasis was also placed on meaningfully engaging with indigenous peoples during the development or adaptation of climate-relevant legislation, taking into account local decision-making processes. This is crucial for key issues such as land use, with tokenistic engagement likely to lead to ineffective legislation.
Participants at this event advocated maximising the positive impacts of low carbon transitions and creating an enabling environment for change. To achieve this, legal experts from developed and developing countries now need to join efforts with country governments to build their capacity and capabilities around legal processes. Through these partnerships, such as the LRI, domestic legislation can help to translate the Paris Agreement into real action on the ground.
The Legal Response Initiative provides free legal advice on a rapid response basis and legal capacity building to poor and climate vulnerable countries. It is now broadening its services to offer legal advice to countries as they look to implement their voluntary commitments under the Paris Agreement. Visit http://legalresponseinitiative.org/legaladvice/pocket-guide-to-the-paris-agreement/ to view the LRI’s pocket guide to the Paris Agreement, which can help national-level stakeholders to understand what the Agreement means for national-level implementation.
 A model law is a hypothetical law drafted with a general rather than country focus, which can then serve as a guide for subsequent legislation in specific countries.