Binding unilateral declarations on mitigation NDCs?

7 June 2021

A slightly shorter version of this commentary was initially published on 27 May through the Climate Law Blog of the Sabin Centre for Climate Change Law at http://blogs.law.columbia.edu/climatechange/2021/05/27/should-countries-issue-binding-unilateral-declarations-on-ghg-emission-targets/

In 1978, during a phase of the Cold War when relationships between East and West began to relax, the United States and 4 other nuclear powers (China, France, the Soviet Union and the UK) made unilateral declarations granting security assurances to non-nuclear- weapon states. Speaking on behalf of the US president, the US Secretary of State at the time, Cyrus Vance, said:

“The United States will not use nuclear weapons against any non-nuclear–weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable internationally binding commitment not to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies…”

In the Nuclear Test case (Australia v. France), the International Court of Justice (ICJ) recognized the legally binding nature of such a unilateral declaration under international law, where the statement clearly indicates an intention for that state to be bound. The International Law Commission’s Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations provide further general guidance on when such a statement by a state or government official can be considered legally binding.

The adverse effects of climate change are of course very different from the impact of a nuclear strike. It is, however, increasingly recognized that the planet is in a state of emergency – that human rights, biodiversity and the territorial integrity of many states are already affected or directly threatened. To avoid a “climate break down” the international community has to close the gap between countries’ collective emission reduction targets and the Paris Agreement’s goal to limit global warming to between 1.5 and “well below” 2°C.

The upcoming UN climate conference in Glasgow in November 2021 may be the last opportunity for parties to sufficiently up the mitigation targets contained in the Nationally Determined Contributions (NDCs) to meet this challenge. But while the Paris Agreement is formally a legally binding international treaty, it is generally recognized that (similar to many other multilateral environmental agreements) it only creates procedural obligations: to submit and maintain an NDC and subsequently report on performance. There is no obligation to actually meet a mitigation target.

Making emission reduction commitments part of a unilateral declaration would add a new element of substantive legal bindingness and also strengthen the robustness of states’ individual and collective efforts in responding to climate change. Those who argue that it is precisely the voluntary nature and flexibility of commitments under the Paris Agreement that encourages parties to make increasingly ambitious nationally determined contributions are of course likely to disagree with this assessment.

To make national mitigation targets legally binding some countries are integrating their pledges at the international level into domestic law. The European Union (EU) – one of the proponents of a more binding approach in the negotiations leading up to the Paris Agreement – has internal legislation that requires its member states to meet agreed contributions to an overall EU target. Germany has enshrined a 55 per cent greenhouse gas reduction target by 2030 in relation to 1990 levels in binding federal legislation (the “Klimaschutzgesetz”), and the UK has included the target to achieve net-zero carbon emissions by 2050 (100% relative to 1990 levels) in the 2008 Climate Act. Other countries that have or are planning to capture their mitigation goals in legislation include Canada, Chile, Japan and Mexico.

While a unilateral declaration may create additional peer pressure and accountability (in relation to other states but also domestic civil society) it does not guarantee subsequent compliance and the successful implementation of pledges. So maybe the most significant impact such declarations would have at this point in time is to show goodwill and rekindle trust between parties to the climate negotiations. If one party starts, it will be difficult for others not to follow and join a new path based on international solidarity and cooperation that has been invoked innumerable times during the Covid pandemic.

The Paris Agreement for your mobile phone

21 May 2021

You can download the App for Android phones from Google Play and for Apple phones from the App Store.

To make it easier for negotiators and other climate policy makers to access and understand the content of the Paris Agreement in these virtual times we have developed an App. It is largely based on our Guide on the Paris Agreement published under the umbrella of the European Capacity Building Initiative (ecbi). The Guide is now also available in French.

Developing an App was uncharted territory for us and please forgive any shortcomings and glitches this new tool may still have. We very much appreciate any feedback!

We hope it will also help delegates to follow the virtual meeting of UNFCCC subsidiary bodies from 31 May to 17 June. Please get in touch should you have any legal queries.

Policy Brief on Legislating the Paris Agreement in Africa

31 March 2021

With the adoption of the Paris Agreement over five years ago and its implementing guidelines in 2018, countries’ focus is gradually shifting from the international arena to domestic implementation of their climate commitments. In practice, countries will pursue a range of approaches, depending on national circumstances and priorities, that are likely to include a combination of policies, laws and regulations. The sharing of information on these approaches, their advantages and disadvantages, lessons learnt as well as good practice can drive efficient and successful implementation and ultimately ambition.

The new LRI paper “Legislating the Paris Agreement in Africa” (https://legalresponse.org/wp-content/uploads/2021/03/National-Climate-Legislation-.pdf) published under the umbrella of the European Capacity Building Initiative (ecbi) considers the experience of four countries in sub Saharan Africa with one of these approaches: the development of climate change framework laws. Kenya was the first country in Africa to adopt framework legislation; Eswatini, Nigeria and Uganda are still working their way through this process but already some lessons have been learnt and initial observations can be made.

The crosscutting nature of climate change makes coordination of policy and legislative measures necessary if it is to be implemented effectively. Comprehensive framework laws that establish institutions with clear mandates and processes for the implementation of key activities can be conducive to this. An explicit reference to the new reporting requirements of the Paris Agreement may also help ensure countries fully comply with and benefit from its provisions. Framework laws can be a first step, but will need to be supplemented by further sector specific laws and regulations according to national priorities. Other tools, such as fiscal and economic measures, may also be part of the arsenal countries use.

Ensuring consensus and buy-in from all relevant stakeholders, from within and outside government will be key to the success of the legislative development process. Climate change impacts different communities and sections of society differently; having a nationwide consultation process that involves them all will be crucial too. Another important aspect of this process relates to the institutional framework: a review and clarification of the role existing agencies might have and need for new bodies will be necessary if they are to be fit for purpose.

The experience of the countries reviewed showed that the law development process also presents opportunities, e.g. for integrating innovative means of mobilising climate finance from the national budget, and including progressive provisions on, for example, gender and vulnerable peoples.

Finally, the study showed that applying the law, once enacted, can be challenging if there are competing and conflicting interests or priorities at play. Including provisions on timeframes for specific actions in the framework law may help address this to some extent but harnessing the political will to give effect to the provisions of the law will be key.

Virtual workshop participation

1 March 2021

Parties to the Paris Agreement increasingly shift their focus from international diplomacy under the UNFCCC to domestic implementation action. In this connection, we have been working with several developing countries mainly in Sub-Saharan Africa on the review and drafting of climate relevant legislation and other governance arrangements.

One of the initial stages can be a round-table workshop that brings together different ministries, government agencies and other stakeholder to develop ideas and discuss priorities. Here, LRI provides the overview on expectations and opportunities under the Paris Agreement and participants then examine the implications for the national context. As part of breakout groups or other interactive work we try to collectively identify levers of change, ways forward and potential barriers.

But in times of Covid 19 and (perfectly reasonable) travel restrictions world wide, we now have to contribute to physical in-country workshops via Zoom and or other platforms. There have been strange moments when we listened to presentations and did not understand a word, of feedback loops and complete silence, or auto-generated hologram images. But so far the “hybrid” meetings have not resulted in Handforth Parish Council or “cat filter” moments.

Without direct contact the workshops are less efficient, interactive and a lot of effort goes to clarifying statements and contributions. But on the plus side they put the local partner firmly into control, force all contributors to focus and – of course – reduce our carbon footprint. In the past, our partners in developing countries have been rather focused on face-to-face training events and meetings but at the moment this seems to be changing.

The essential lessons we have learned so far are:
– Do not go into a meeting without testing the technology and connectivity beforehand!
– Make contingency arrangements to share and show presentations and/or to call into a meeting (e.g. via Whatsapp).
– Communicate at all times – so that both sides always know what is supposed to happen.

Legal birthday bash for Paris Agreement

14 December 2020

The Paris Agreement to combat climate change was adopted on 12 December 2015. To mark the occasion, LRI held a one-hour Zoom webinar for leading climate lawyers from around the globe who presented their ideas (in 3 minutes each) for the next steps in the UNFCCC process, specifically in the leadup and during COP26 in the UK in 2021. You can watch the recording on youtube at https://www.youtube.com/watch?v=5ayPHNSx8FQ and access a summary report of the event at https://legalresponse.org/legaladvice/putting-the-law-at-the-heart-of-the-paris-agreement/

Speakers included:

• Michael Burger, Sabin Centre for Climate Change Law in the US
• Augustine Njamnshi, Pan African Climate Justice Alliance (PACJA)
• Dennis van Berkel, Urgenda Foundation
• Hitomi Kimura, Otsuma Women’s University
• Megan Bowman, King’s College London
• Rueanna Haynes, Climate Analytics
• Selam Abebe, Legal Adviser African Group of Negotiators, and
• Farhana Yamin Founder Track 0 & and second on the BBC’s Woman’s Hour Power List in 2020, as well as many others.

Some participants suggested new initiatives in the negotiations to, for example, operationalise the global adaptation goal (Selam Abebe) or the establishment of an independent expert group to assess whether NDCs are in line with equity and common but differentiated responsibilities (Dennis van Berkel). Monica Feria-Tinta (a barrister at Twenty Essex Chambers) underlined the need for domestic legal systems that address human rights violations due to climate change. Megan Bowman of King’s College London argued that every public sector investment decision needs to take account of Article 2.1 c) of the Paris Agreement which envisages the redirection of financial flows in line with low carbon development.

Augustine Njamnshi (Pan African Climate Justice Alliance) called for a trust building dialogue amongst parties during the COP in Glasgow to accept past responsibilities and move jointly into a new direction based on empathy. Other issues covered during the event included the role of best available science, intergenerational equity and zero emissions as well as a rights-based ecosystem approach for a just recovery and climate litigation.