5 - Climate Change

Paris Agreement Overview

• Date and Context: Adopted during the United Nations Climate Change Conference (COP21) in 2015, known as the Paris Agreement.

Objectives and Recognition

Objective of the Agreement

• Aimed at combating climate change and building resilience while pursuing sustainable development.

Recognition of Needs

• Recognizes the specific needs and vulnerabilities of developing countries, especially the least developed and those most at risk from climate impacts.

Principles of Action

• Reflects the principles of equity and common but differentiated responsibilities, acknowledging different national circumstances.

• Emphasis on safeguarding food security and ending hunger.

• Highlight the intrinsic relationship between climate actions and sustainable development.

Articles Focused on Mitigation

Article 2: Global Temperature Goals

• Aims to keep the global temperature rise below 2°C and pursue efforts to limit it to 1.5°C to reduce climate change risks.

• Encourages increasing resilience to climate impacts without compromising food production.

• Seeks consistency in financial flows toward low greenhouse gas emissions and climate-resilient development.

Article 3: Nationally Determined Contributions (NDCs)

• All Parties are to submit ambitious NDCs and report on progress every five years.

• Parties’ commitments should reflect their capacities and responsibilities, supporting one another, especially developing nations.

Article 4: Emission Reduction Targets

• Parties aim to peak global greenhouse gas emissions as soon as possible and to undertake rapid reductions thereafter.

• Emphasizes the importance of support for developing nations to enhance their involvement in climate actions.

Adaptation and Support

Article 8: Loss and Damage

• Addresses loss and damage from climate change, including extreme events and slow onset situations.

• Establishes the Warsaw International Mechanism for enhanced understanding and support related to loss and damage.

Article 9: Climate Finance

• Developed nations are obligated to provide financial resources to help developing nations mitigate and adapt to climate change.

• Encourages a progressive mobilization of climate finance from varied sources beyond conventional public funds.

Technology and Capacity Building

Article 10: Technology Development

• Emphasizes the importance of technology in implementing climate action.

• Establishes a framework to promote cooperative technological development and transfer.

Article 11: Capacity Building

• Focused on enhancing the abilities of developing countries to respond to climate change through various forms of support, including education and technical assistance.

Transparency and Accountability

Article 13: Transparency Framework

• Sets guidelines for transparency in actions and support to build mutual trust among Parties.

• Parties must regularly communicate their emissions, progress, and needs for support.

Article 14: Global Stocktake

• Periodic assessment of collective progress towards the Agreement’s goals and objectives, set for the first assessment to occur in 2023.

Governance and Institutional Arrangements

Article 16: Conference of the Parties

• The governing body for Parties to the Agreement, ensuring ongoing reviews and decisions for effective implementation.

Article 19: Subsidiary Bodies

• Established bodies under the Convention will also serve this Agreement, ensuring continuity and expertise in discussions and implementation.

Final Provisions

Article 20: Signature and Ratification

• The Agreement was open for signature from April 22, 2016, to April 21, 2017.

Article 21: Entry into Force

• The Agreement enters into force 30 days after 55 Parties account for at least 55% of global greenhouse gas emissions ratify it.

Article 27: No Reservations

• No reservations may be made to the Agreement, ensuring unified commitment.

Judicial Policy and International Law

• A state’s judicial policy toward international law is connected to its public policy.

• Understanding a state's public policy is essential to evaluate its judicial policy.

• China’s public policy goal over the last three decades has been to rise as a great power.

  • The Beijing Consensus emphasizes:

    • Economic growth over political freedom and social justice.

    • Maintenance of an authoritarian regime with strong executive authority.

China’s Judicial Policy Methodology

• China tailors its judicial policy methodology based on its rise as a power and its identity.

• Navigates constitutional silence on international law through case-by-case decisions:

  • This can lead to fragmentation and unpredictability.

  • However, it grants flexibility in applying international law.

• Judges apply one of two methods for treaties:

  • Automatic incorporation or transformation based on context.

• Historical application of international law by Chinese courts includes:

• Limited application of human rights treaties.

• No application of relaxed immunity rules.

• Rare extension of jurisdiction by international law.

• Increasing likelihood of involvement in foreign affairs and international law as China rises.

  • Potential for greater engagement with relaxed immunity rules.

Constraints in Judicial Policies

• In spite of increased involvement,

  • Chinese courts face limitations due to:

    • Desire to maintain authoritarian control.

    • Need to protect executive authority.

• The Chinese judicial stance thus appears conservative regarding individual rights, applying international law only when it does not threaten authority.

The Paris Climate Change Agreement

Introduction

• Popular adage: "Know your limits."

• The Paris Agreement follows many false starts in climate negotiations over twenty years.

• It sets a modest foundation compared to the Kyoto Protocol.

Challenges of Climate Change

• Climate change presents immense difficulties on global and local scales.

• Examples of state's challenges include:

  • U.S.: Climate science is politically contested.

  • India: Electricity access for millions overshadows climate concerns.

Structural Elements of the Paris Agreement

• Aim of Agreement:

  • Balances being strong enough to prompt action but weak enough for acceptance.

  • Bottom-up approach: Align with national policy instead of imposing external standards.

• Nationally Determined Contributions (NDCs):

  • Self-defined commitments from each country, reinforcing progressive actions and accountability standards.

Historical Context of Climate Change Conference

• The Paris Agreement can be seen as a response to the failures of earlier frameworks, particularly the Copenhagen Accord.

• Notable Features of the Agreement:

  • Legally binding aspects with non-binding elements.

  • Global applicability covering all producing parties, unlike prior agreements which focused mainly on developed countries.

  • Common obligations for all countries, eliminating strict separations based on developmental status.

Implementation and Additional Elements

Global Commitments and Reporting

• Each country must submit updated NDCs every five years.

• Transparency and accountability are crucial:

  • Political pressure drives compliance with commitments.

  • Enhanced transparency and accountability mechanisms aim to achieve long-term goals.

Mechanisms for Adaptation and Mitigation

• The agreement emphasizes a dual focus:

  • Both mitigation of GHG emissions and adaptation efforts.

  • Calls for financial resources to balance adaptation and mitigation funding.

Mechanism for Loss and Damage

• Recognizes the difference between retrospective responses to climate impacts (loss and damage) versus proactive adaptation efforts.

• The inclusion of loss and damage in the agreement is a notable milestone despite resistance and limitations imposed by developed nations.

Analysis of the Paris Agreement

Reception and Future Outlook

• Views of the Paris Agreement vary, with some considering it historic while others regard it as another instance of ambition exceeding practicality.

• The agreement is projected to affect global emissions positively, albeit not radically aligning with temperature goals adopted.

Innovations of the Agreement

• Represents a shift to a more common global approach for mitigation and adaptation as opposed to rigid categorizations.

• The role of nations significantly evolved from prior frameworks, fostering an approachable atmosphere for negotiations.

• The flexibility of new provisions allows for changes in national circumstances and recognizes that political will can drive future implementations.

Conclusion

• While the limitations and challenges in tackling climate change remain, the Paris Agreement marks progress and sets higher expectations for global cooperation in future efforts.

Summary of Climate UN negotiations

Introduction

• Summary of UN climate negotiations and outcome in Katowice, Poland (Dec 2018).

• Paris Rulebook adoption seen as a diplomatic success amid political tensions (e.g., U.S. withdrawal).

• Unresolved issues, particularly on market mechanisms under Article 6.

Significance of the Paris Rulebook

• The Rulebook aims to create rigour and clarity in commitments made under the Paris Agreement:

  • Prescriptiveness: Detail and specificity of rules.

  • Legal Bindingness: Identification of binding vs non-binding commitments.

  • Differentiation: Approaches accommodating Party variances.

Elements of the Paris Paradigm

• Shift from Kyoto Protocol’s binding commitments to the Paris Agreement's flexible, self-determined contributions (NDCs).

• Highlights of the Paris paradigm:

  1. Nationally determined contributions (NDCs): Self-defined, with no legal obligation to achieve at the outset.

  2. Procedural obligations: Internationally negotiated to ensure collective transparency and accountability.

  3. Ambition cycle: Periodic NDC updates aimed at enhancing efforts over time.

  4. Nuanced differentiation: Flexibility based on country-specific needs and capacities.

Challenges Ahead

• Importance of ambitious targets against IPCC findings on necessary GHG reductions.

• Need for comprehensive monitoring and strategic responses.

Implementation and the Role of the Paris Rulebook

• Details on operationalizing Paris Agreement elements:

  • Extensive discretion for Parties in designing their NDCs while ensuring comprehensive transparency requirements.

  • The inclusion of capacity constraints faced by developing nations, aiming for equal contributions equitable to parties’ capabilities.

Transparency Framework

• Reporting Obligations: Structured summaries of emissions and NDC progress updating.

• Technical Expert Reviews: Peer assessments of Parties’ submissions ensuring compliance and provision of support.

• Flexibility for Developing Countries: Tailored reporting guidelines recognizing varying capacities.

Global Stocktake

• Core mechanism for assessing Parties' collective progress.

• Focus on emissions, adaptation, and implementation support.

• Equity Considerations: Balancing differing national circumstances and capabilities.

Implementation and Compliance Mechanism

• Establishment of a committee for facilitating compliance without punitive measures.

• Importance of non-binding but transparent approaches allowing collective and individual accountability.

• Balancing stringent procedural obligations with the autonomy of Parties in their commitments.

Conclusion

• The Paris Rulebook encapsulates a careful balance between formal commitments and national flexibility.

• Future state actions will determine the effectiveness of the agreement in combating climate change and achieving the desired temperature goals.

• The path taken by Parties remains an open question.

Shell's Responsibility for Climate Change: An International Law Perspective

Introduction

• On 26 May 2021, the District Court of The Hague issued a groundbreaking ruling in the case Milieudefensie v Royal Dutch Shell.

• This judgment marked the first instance where a multinational corporation has been held partially responsible under international law for its role in climate change.

• The implications of this ruling could significantly affect Shell and similar corporations, although an appeal by Shell is expected.

1. Facts and Holding

• Plaintiff: Milieudefensie (Dutch branch of Friends of the Earth International) represented 17,379 individuals and six NGOs.

• Legal Basis: The court recognized the class action suit under Dutch Civil Code, allowing for collective interest in preventing climate change (par. 4.2.4).

• Claims Rejected: Claims regarding interests of future generations globally were dismissed due to varying impacts of climate change (par. 4.2.3).

• Defendant: Royal Dutch Shell (RDS), a UK-based public limited company, was found to have emissions exceeding those of many states.

• Findings: The Court linked RDS's CO2 emissions to substantial climate risks affecting health and safety in the Netherlands and Wadden region (par. 4.4.6).

• Obligation Established: RDS was ordered to cut CO2 emissions by net 45% from 2019 levels by 2030 (par. 4.1.4).

• Decision Ratio: While the court granted obligations for future emissions reduction, it did not classify current policies as unlawful (par. 4.5.10).

2. Role of International Law in Shell’s Responsibility

• Indirect Application: The judgment was primarily based on Dutch tort law, with international law acting as a context for the decision.

• Applicability of Dutch Law: The court ruled that RDS must comply with Dutch legal standards considering international practice (par. 4.3.6).

• Due Care Standard: RDS's obligations were tied to the unwritten law standard of care, where societal due care may include international norms.

  • The judgment highlighted the company's duty to observe international human rights obligations (par. 4.4.9).

• UN Guiding Principles: The Court cited the UNGP as an influential soft law framework guiding corporate responsibilities in relation to human rights (par. 4.4.11).

• Paris Agreement Influence: The court recognized the Paris Agreement as a relevant framework for determining CO2 reduction obligations (par. 4.4.27).

  • It cited the IPCC reports that inform best practices for emissions reduction (par. 4.4.29).

3. Shared Responsibility

• RDS's Defense Rejected: RDS claimed that it was merely one of many contributors to climate change.

• Court's Finding: The Court emphasized collective responsibility does not absolve individual entities from their obligations to mitigate climate change (par. 4.4.36).

  • Companies must work towards net-zero emissions, regardless of others’ contributions (par. 4.4.37).

• Significance of RDS's Emissions: Cited as among the top contributors, with emissions exceeding those of several states (par. 4.4.37).

Conclusion: Implications of the Judgment

• This landmark ruling propels discussions around corporate accountability in climate change.

• Dutch courts continue to take bold stances in addressing significant legal questions related to climate change responsibility.

• The ruling enhances the interpretation of shared responsibility, underscoring that all actors play a role in exacerbating climate change impacts.

• Essential questions remain regarding compliance strategies, such as improving operational emissions and influencing supply chains and end-user practices.

• The judgment lays the groundwork for future climate change litigation, emphasizing both individual and collective responsibilities.