Climate change in the dock: Rethinking the role of international law

By Joy Hyvarinen

Climate change raises many justice-related issues.

At the global level two questions are particularly important.

One concerns justice in sharing the global effort to reduce greenhouse gas emissions, taking into account the historical responsibility of developed countries for climate change and growing emissions in developing countries.

The other concerns managing the consequences of unavoidable climate change impacts on poor and vulnerable countries and communities.

Current emission reductions are insufficient to limit average warming to the 2˚C global goal agreed by governments or the 1.5˚C that many vulnerable nations say is needed to avoid very damaging impacts on their countries.

The Doha Climate Change Conference in 2012 reached a weak compromise. Prospects are not good for the new climate change agreement which is to be negotiated by 2015.

As a consequence vulnerable countries and communities are facing growing threats to human security from increasing climate change impacts.

The law could perform a similar role for climate change as it does for countries overcoming conflict and political upheaval, says Hyvarinen (Copyright: CJUE/G.Fessy)

International discussions

What can be done? At the international level options include: the UN Framework Convention on Climate Change (UNFCCC), international legal claims and the UN’s post-2015 [development] agenda.

Negotiations under the UNFCCC include a work programme on loss and damage, but it is not clear how much progress will be possible.

For example, some developed countries are very wary about agreeing to anything that could be interpreted as accepting liability for damage, which could create a right to compensation.

The possibility of a damaged country making an international legal claim against a country that is a large emitter of greenhouse gas emissions had drawn interest from academics and others.

If a greenhouse gas emitting country was found liable the damaged country would have a right to reparations, for example financial compensation.

Making a legal claim would be complicated and even if one country succeeded it might not help others. The possibility of legal claims for climate change damage within countries – for example from marginalized groups against a government – could also hold back some potential international claims.

Discussions have started about the UN’s development agenda after 2015, the target year for the Millennium Development Goals (MDGs).

Following the Rio+20 Conference in 2012 proposals for new sustainable development goals are under discussion. Several UN processes are shaping the post-2015 agenda, including a high-level panel appointed by UN Secretary-General Ban Ki-moon.

The panel is co-chaired by the UK Prime Minister David Cameron and the Presidents of Indonesia and Liberia, Susilo Bambang Yudhoyono and Ellen Johnson Sirleaf respectively.

Climate change is now recognized as a major development challenge. The Foundation for International Environmental Law and Development (FIELD) believes that climate change impacts on poor and vulnerable countries and communities must be a priority in the UN’s post-2015 agenda. So far, little attention has been paid to this in the discussions.

UN Secretary-General Ban Ki-moon’s post-2015 development plan could provide some ideas for international law’s role in combating climate change (Source: UN/Mark Garten)

New ideas needed

Where does the current state of international discussions leave poor and vulnerable countries?

Prospects in the UNFCCC negotiations are not good, with countries locked in their political positions. An international legal claim could potentially be an option in some cases, but not an easy one.

The possibilities for poor and vulnerable countries to get help to tackle climate change impacts through the UN’s post-2015 agenda are unclear.

New ideas and approaches are needed to achieve greater emission cuts and to address impacts on poor and vulnerable countries and communities. Could lessons be learnt from transitional justice?

Transitional justice refers to approaches and mechanisms used in countries that are recovering from violence and large scale human rights abuses.

The global climate policy situation is not the same as the situation of countries that have been torn apart by conflict and gross human rights abuses – but could some of the thinking about transitional justice inform international approaches to climate change?

Transitional justice involves components such as criminal prosecutions, truth-related processes – such as Truth and Reconciliation Commissions – and reparations for victims. Its aims include reconciliation and transformation that will make a stable future possible.

New international approaches are needed to tackle climate change. They need to deliver global justice, but also make reconciliation and cooperation possible. They need to involve help for countries and communities damaged by climate change and perhaps also other approaches – for example elements of truth processes.

Climate change is an unprecedented challenge. It has taken us to the limit – perhaps already beyond the limit – of humankind’s ability to govern its own impact on the planet. International law can and should help to meet this challenge.

Sometimes it is the task of international law to decide who is right and who is wrong or to punish wrong-doers, but international law is greater than that: it can and should help to make global reconciliation and unity in the face of climate change possible.

This article is based on a speech by FIELD Executive Director Joy Hyvarinen at the Berlin International Economics Congress 2013

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