Last month, one of our CTRL-Z bloggers attended the United Nations Framework Convention on Climate Change (UNFCCC) twenty-fourth Conference of the Parties (COP24) in Katowice. Achieving an outcome at COP24 was a diplomatic milestone. However citizens’ action, including through legal channels, is more important now than ever before.*
“The gap is big; the gap is big.” Those were the words of the Head of the UN Environment Chief Scientist as he presented the Emissions Gap Report 2018 during the 24th Conference of the Parties (COP24) in Katowice, Poland.
He was not exaggerating. To limit global warming to 1.5°C – which is essential for vulnerable
countries like those in the Pacific – global greenhouse gas (GHG) emissions must halve by 2030. To limit global warming to even the upper temperature limit of 2°C requires reducing GHG emissions by a quarter. The world (or states) therefore has just over a decade to radically transform their economies. But transformation appears to be a long way off.
The Paris Agreement, signed in 2015, aims to limit global warming to 1.5°C or “well below” 2°C. It leaves it up to states though to set national commitments to achieve this goal. Based on states’ present commitments (which many are not on track to achieve), global warming is expected reach around 3.2°C by 2100. Indeed, global GHG emissions increased in 2017 after three years of stagnation.
The door is still open to achieve the Paris Agreement’s goals, but it’s closing fast. As noted in the UN Emissions Gap Report: “Now more than ever, unprecedented and urgent action is required by all nations”.
Last month, representatives from each country met in Katowice to negotiate the ‘rulebook’ for the Paris Agreement. In order to operationalise the broad obligations in the Agreement, it was necessary to agree on a set of guidelines: a process of adding ‘meat to the bones’ so to speak.
Given the enormity of this task and the vastly different negotiating positions of some countries, the negotiations were at times tense. The end of the first week saw certain countries refuse to “welcome” a Special Report prepared by the Intergovernmental Panel on Climate Change on global warming of 1.5°C – a refusal which was widely criticised. And when after more than a week of negotiations there were still many unresolved issues, the COP President was forced to change the mode of negotiations to a more results-driven process – pressing countries to move beyond differences and present new solutions.
The Paris rulebook
Consensus at times seemed unattainable. How could Kiribati, the very existence of which is imperilled by climate change, be expected to agree with the US – the largest historical emitter of GHG emissions and which “strongly believe[s] that no country should have to sacrifice economic prosperity or energy security in pursuit of environmental sustainability” (as noted by an advisor during COP24)?
But consensus was indeed achieved. After negotiations were extended for one day, the President of COP24 announced that countries had reached agreement. The final decision, which extends over 133 pages, contains painstakingly negotiated details on how countries will operationalise the Paris Agreement. While such details may seem mundane insofar as they relate to procedure and mechanisms, they are essential for the success of the Paris Agreement — the provisions of which lack specificity.
Was COP24 therefore a success? Achieving consensus in Katowice was a considerable diplomatic achievement. By agreeing on a set of rules, the outcome will breathe life into the Paris Agreement. Current commitments by countries are still however woefully insufficient to avoid dangerous climate change. It is also far from certain whether the COP24 rules will be enough to pressure countries to make the necessary changes to their commitments.
And time is running out. The consequences of failing to avoid dangerous climate change do not to be rehashed here. The science is widely accepted and clear: global warming above 1.5°C presents severe dangers to all forms of life on this planet — but the dangers are not evenly spread: vulnerable communities and species are suffering, and will continue to suffer, the most.
So in the absence of sufficiently ambitious commitments by countries, citizens are taking action into their own hands.
School students went on strike in Australia and Sweden, while protests by Extinction Rebellion outside the BBC in London placed it under lockdown last month. Action is also being taken through the courts. From the Netherlands to Pakistan, citizens are filing climate-related law suits. Many have of course suffered defeat, but some have succeeded. Last year, a court in the Hague upheld on appeal a decision requiring the Dutch Government to increase its 2020 GHG emissions reduction target. A Court in Colombia similarly ordered the Government there to halt further deforestation in the Amazon to protect current and future generations’ right to life and a healthy environment, which is imperilled by rampant emissions of carbon dioxide into the atmosphere. Greenpeace has released a People’s Guide to holding governments to account through the courts to encourage more of this type of legal action.
Citizens groups have also indicated an intention to file, or have filed, lawsuits against corporations — for instance in France, Germany and the US. Vanuatu, for its part, has announced its intention to explore legal action against the world’s most polluting fossil fuel corporations and countries. It has also called on the International Criminal Court to “extend its outreach to the Pacific island nations” that “suffer from climate atrocities” — pointing to a role for international criminal law in relation to the harm caused by climate change.
Many hurdles remain, but the increasing impacts of climate change and scientific developments will continue to propel these lawsuits along.
Climate change has been referred to as the ‘mother of all’ policy, security, and social challenges. It is also the ‘mother of all’ legal challenges. But while unique in proportion and complexity, the legal challenges presented by climate change are not unknown to our legal systems. In order to use the law to prevent dangerous climate change or ascertain liability for its harms, bold and creative legal thinking is required. This blog aims to aid in this quest.
CTRL-Z [undo] Climate Change: Creative Thinking of Responses in Law against Climate Change.
* This is an amended version of an article prepared for Newsroom NZ.