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OPINION: Climate compatible development – a legal view

By Mairi Dupar, CDKN Global Knowledge Management Coordinator

Discussions in the negotiating rooms of CoP17 are focused on new forms of international agreement to drive climate action.  Many discussions in the side events are looking at how existing national laws and policies – many of which do not address climate directly – can help promote climate compatible development.

Existing laws on human rights and environment can accelerate climate compatible development

The Conference on Climate Law and Governance in the Global South, co-sponsored by CDKN on 3-4 December, highlighted the substantial body of human rights law which, if properly enforced and enabled, can make development more climate compatible. Speakers highlighted rights-based approaches to development: people’s rights to fresh water, to shelter, to health services. Such approaches focus decision-making on the fulfilment of people’s basic human needs and make trade-offs among stakeholder groups explicit in decision-making.  “Human rights is at the heart of pursuing low carbon, climate resilient development,” said Edward Cameron of WRI – fulfilment of these rights strengthens people’s ability to tolerate the gradual increase in climate change impacts as well as the shocks of climate-related disasters.

Dr Tom Okurut, the Director of Uganda’s National Environment Management Authority, spoke up for the enforcement of existing environmental laws.  At the Government of Kenya’s side event, he argued: “if all the environmental laws in Africa were properly implemented, Africa would have done 70% of what it needs to do to prepare for climate change.” Such a claim is, of course, only a ballpark estimate. However, it throws the spotlight on the potential for environmental protection to deliver climate adaptation and mitigation benefits – as well as to underpin sustainable economic development.

Existing laws on human rights and environment can slow climate compatible development (but deliver better results in the end)

Enforcement of laws to protect human rights and ecosystems can not only act as an accelerator for climate compatible development.  Enforcement of such laws can also slow the delivery of climate policies, mitigation policies in particular – although fairer and more truly sustainable development outcomes are likely to result.

Take the Indian government’s aspirations for solar power, wind power and jatropha plantations (jatropha is produced as a source of biodiesel) – outlined by Mohammed Shawahiq Siddiqui of Indian Environment Law Offices in his ‘Climate Law and Governance’ presentation. In India, initiatives to develop solar and wind farms or biofuel plantations in the name of climate mitigation could jeopardise local people’s land and natural resource use rights, if designed with poor regard for national and customary law.

Tree planting schemes meant to lock in carbon and/or produce low carbon fuels (biofuel feedstocks) have the potential to undermine biodiversity with detrimental effects on local livelihoods. What is the point in achieving emissions-related  goals for a better tomorrow, if social justice and a healthy environment, today, are undermined? Indeed, these are exactly the points on which the REDD+ (Reducing Emissions from Deforestation and Degradation) debates hinge.

Embrace of rights-based approaches to climate compatible development takes time. Respect for human rights and environmental law take time. Good process leads to better outcomes but doesn’t happen overnight.

Such legal frameworks can, in reality, slow climate action even as science tells us that humankind must act swiftly to cut emissions and build resilience to climate change.  Yet without such frameworks, the fundamentals of sound development are lost.

Climate change litigation: the new legal frontier?

The Conference on Climate Law and Governance in the Global South closed with a spotlight on climate litigation: a relatively new legal instrument, which is still to be fully tested. Former President Mary Robinson of Ireland, now head of the Mary Robinson Foundation – Climate Justice, and Dr Kumi Naidoo, Executive Director of Greenpeace International, called for expanding the use of litigation to fight climate injustices.

As yet, litigation is rarely attempted to force greenhouse gas reductions. In 2005, the Arctic Circumpolar Commission lodged a petition against the United States in the Inter-American Court on Human Rights for abusing Inuit human rights. Inuit peoples are gravely affected by warming temperatures and polar ice melt, which are damaging their livelihoods. The petition was lodged against the U.S. on account of its status as the (then) largest greenhouse gas emitter. Although later declined a full hearing by the IACHR, the Commission’s spokeswoman received wide media attention for the claim.

Dr Naidoo said there are increasing grounds for peoples of climate- affected regions – such as low lying coastal settlements and atoll nations – to take similar actions; the urgency of forcing action on climate change makes litigation an interesting, prospective tool. ‘Lawyers have not yet done enough to wake up to climate change,’ said President Robinson – to broad approval by the lawyers present. ‘But now is the time.’

Meanwhile, during this second week of CoP17, GLOBE International, the association of parliamentarians, has released a report heralding a recent trend in national climate legislation. Few states have as yet established a domestic legal basis for emissions reductions but now that is changing. The United Kingdom, which in 2008 passed its Climate Change Act was a leader: the UK parliament approves a carbon budget covering five-year cycles and the Committee on Climate Change reports annually to parliament on progress against this carbon budget.

This Tuesday (6 December) Mexico’s Senate passed a Climate Change Act, which now goes to the Chamber of Deputies for a vote. GLOBE calls Mexico’s latest measures emblematic of a new trend of ‘game changing’ climate legislation. In addition to the UK and Mexico, its report cites Australia, Brazil, China, EU, Germany, Indonesia, South Africa and South Korea as other ‘ones to watch’.


Image credit: The Barefoot Photographers of Tilonia.

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