International Climate Change Law Research Articles

Uncertain, unstable and unequal: Can regime interaction help international fisheries law address anthropocene challenges?

The term “Anthropocene” has become ubiquitous within debates on the future of international environmental law. While contested, it can generally be understood to refer to the fundamental idea that the world has entered a new era in which human activities, more than any other factor, are the driving force for change within the Earth system. This concept has inspired a rethinking of traditional international environmental law in line with the challenges that are expected to result from human-induced environmental impacts. This article explores how the Anthropocene will challenge international fisheries law and how understanding the role of regime interaction as a central characteristic of international law will be a necessary part of addressing these challenges. In order to determine what might be said to constitute Anthropocene conditions the article explores the effects of human activities on two core planetary boundaries, climate change and biosphere integrity, in the context of the world’s oceans. Through examining the human-induced threats to these boundaries, common themes of uncertainty, instability and inequality within the Anthropocene ocean are identified, highlighting broadly the ways in which the current international fisheries legal regime alone is inadequate to achieve its goals in the Anthropocene context. This article proposes that enhanced regime interaction, between related regimes such as international fisheries law, international climate change law and international biodiversity law could allow international fisheries law to be more readily able to meet the uncertain, unstable and unequal Anthropocene context.

Carbon Leakage and International Climate Change Law

AbstractCarbon leakage – the increase of greenhouse gas emissions in foreign jurisdictions following the introduction of domestic or regional climate mitigation measures – raises key questions in the climate change debate. This includes whether carbon leakage constitutes a threat to the environmental integrity of climate policies and, if so, how this could be mitigated. Through the use of four hypothetical models of international climate change regime, this article argues that international climate change law is a key factor in answering this two-part question. Firstly, the article demonstrates that the architecture of international climate change law affects whether carbon leakage can be considered as undermining the mitigation objective of climate policies. Secondly, it draws attention to the interaction – and potential tension – between carbon leakage prevention measures and international climate change law.

Public Participation in International Climate Change Law: Analysis of the Impacts of Uncertainty Related to Climate Response Measures on the Public

Public Participation in International Climate Change Law: Analysis of the Impacts of Uncertainty Related to Climate Response Measures on the Public

Shaping Global Public Spheres Through International Law: An Investigation Into International Climate Change Law

<p>This article makes three arguments to contribute to this thematic issue’s intention of examining the role of public spheres in global politics. To begin with, it attempts to develop the concept of “strong” public spheres to include plenary organs of international institutions. It believes in the potential of this concept as a heuristic fiction. The study then examines the role of international law in shaping global public spheres and their role in global politics. International law’s characteristics have contributed to the current incomplete manifestations of global publics. Not only has international law constructed the institutional frameworks of the “strong” public sphere within international institutions, but it has also integrated civil society actors into the deliberative processes of will formation of these institutions. Finally, this research turns to international climate change law as a case study. The institutional structures created by international climate change law have not only created one “strong” public sphere in the form of the conference of the parties but rely on a second “strong” global public, the Intergovernmental Panel on Climate Change, which aims to institutionalise the global climate science community without abandoning an intergovernmental structure. What is more, the paradigm shift accompanying the Paris Agreement has made global climate change governance increasingly reliant on an active transnational global public sphere.</p>

International Legal Responses for Protecting Fishers’ Fundamental Rights Impacted by a Changing Ocean

Abstract Climate change directly impacts the marine landscape where fishers operate. Most fishers rely on fishing for food, income and/or employment. A changing ocean can therefore significantly impact fishers’ lives and hinder the full exercise of their rights of access to fisheries resources, rights to fish, to food, to work, to culture, and to a healthy, clean and sustainable environment. This article questions whether international law supports the protection of fishers’ fundamental rights in the changing ocean context. The authors begin by elucidating what such context means to fishers and their rights, taking special account of small-scale fishers and vulnerable groups. The obligations of States Parties to key instruments under the law of the sea and international climate change law, vis-à-vis States’ obligations under human rights treaties and other relevant international guidance, are explored with a view to furthering the protection of fishers impacted by a changing ocean.

Advisory opinions on climate change: Some preliminary questions

AbstractThe recent requests for advisory opinions from the International Court of Justice, the International Tribunal for the Law of the Sea and the Inter‐American Court of Human Rights are understandable, given the slow pace of the climate change negotiations. But are they a good idea? Will an advisory opinion by an international tribunal be likely to strengthen the international response to climate change and, if so, in what ways? Will it complement or compete with the United Nations climate change negotiations? What are the risks, both to the negotiations and to the court's own legitimacy, and do the potential benefits of an advisory opinion justify these risks? To what extent should international climate change law be developed through negotiations or adjudication, by States or by courts? Before jumping on the advisory opinion bandwagon, this article poses some questions to consider.

The International Investment Regime and Climate Change Goals: Clash of the Existing Systems and Available Balancing Tools

International commitments of states require them to adopt regulatory measures aimed at reducing CO2 emissions to combat climate change. This is likely to trigger a wave of investor-state claims by affected foreign investors, mostly from the fossil fuel industry. As no precedent currently exists, this article seeks to analyse how investment tribunals might approach such claims and balance substantive protections under international investment agreements with host states’ obligations under the international climate change regime. After a brief overview of international climate change law, the article considers whether investor-state dispute settlement may serve as an enforcement mechanism for states’ international climate change commitments, or rather investors’ claims cause a regulatory chill. The article further analyses how international climate change law might be applied in investment treaty disputes and concludes that it is likely to be invoked to interpret standards of investment protection. Finally, the view is adopted that the police powers doctrine defence and invocation of general public policy exceptions, contained in new generation investment treaties, might excuse host states from compensation for regulatory measures adopted in furtherance of climate goals.

Teaching and Learning International Climate Change Law

Teaching and Learning International Climate Change Law

Integrating, Reconciling, and Prioritising Climate Aspirations in Investor-State Arbitration for a Sustainable Future: The Role of Different Players

Abstract There is a pervasive sense of tension between investor-State arbitration (ISA) and international climate change law. Both fields use different rationalities and evolved through completely different treaty systems. The tensions between the regimes are evident in the practice of ISA tribunals that hardly engage in analyses of States’ climate obligations. To mitigate this, this article proposes that climate aspirations must be integrated at various levels of the ISA regime by different players and at various stages. While States can contribute to this by drafting investment treaties better; arbitrators can reconcile the tensions by using pro-climate interpretative mechanisms; arbitration institutes can formulate procedural rules embedding third party participation and allowing counterclaims in ISA. Counsels and disputing parties can adopt best practices in managing arbitrations in a sustainable way, use climate and net zero aligned clauses and empower the arbitration tribunal to interpret and modify applicable law to align it to climate objectives.

China’s Stance on the Normativity of International Climate Change Law: An Interactional Account

Abstract Existing analytical accounts of China’s interactions with international law are underdeveloped. This article proposes the use of an interactional model to explain the normativity of international law from three perspectives: shared understandings, normative qualities of international law, and the reception of individual countries to these normative qualities. Furthermore, the interactional model is used to explain how conceptions of the normativity of international climate change law are developed in China. It finds that China has accepted the common responsibility system under an enhanced transparency framework, while adhering to the facilitative nature of international commitments to accommodate the needs of developing countries and stringently insisting on obligations of support from developed countries being met. In this, China’s position on the normative qualities of international climate change law is influenced by its international identities, power status, national interests, and domestic understandings of anthropogenic climate change. The interactional account that follows implies that future research on China’s interactions with international law should be cautious of both Western centrism and Chinese exceptionalism and consider both the legitimacy of international law and China’s own domestic context.

Standards for adjudicating the next generation of Urgenda-style climate cases

Over the past decade, legal norms governing States’ obligations to mitigate climate change, and courts’ review of such efforts, have matured greatly in many jurisdictions around the world. In this article, we examine judicial decisions and consider future developments in Urgenda-style, or ‘systemic mitigation cases’ as we define them, at the national level. Systemic mitigation cases seek to compel a State or one of its organs to increase its overall mitigation efforts. These cases, which are growing in number, can lead to a significant increase in a country’s overall mitigation ambition. Yet a perceived lack of standards by which to assess mitigation efforts has given rise to judicial concerns regarding the separation of powers in adjudicating such cases. In response to these concerns, we present a framework based on international climate change law and best available climate science to assist litigants and courts in human-rights- and tort-based cases. We draw on principles developed by the Dutch courts in Urgenda v the Netherlands and on recent judgments of other national courts, and identify a range of concrete standards by which courts may assess whether a State has met the minimum legal requirements of its duty of care in the ‘next generation’ of systemic mitigation cases. * lucy.maxwell@urgenda.nl ** sarah.mead@urgenda.nl *** dennis.van.berkel@urgenda.nl

Standards for adjudicating the next generation of Urgenda-style climate cases

Over the past decade, legal norms governing States’ obligations to mitigate climate change, and courts’ review of such efforts, have matured greatly in many jurisdictions around the world. In this article, we examine judicial decisions and consider future developments in Urgenda-style, or ‘systemic mitigation cases’ as we define them, at the national level. Systemic mitigation cases seek to compel a State or one of its organs to increase its overall mitigation efforts. These cases, which are growing in number, can lead to a significant increase in a country’s overall mitigation ambition. Yet a perceived lack of standards by which to assess mitigation efforts has given rise to judicial concerns regarding the separation of powers in adjudicating such cases. In response to these concerns, we present a framework based on international climate change law and best available climate science to assist litigants and courts in human-rights- and tort-based cases. We draw on principles developed by the Dutch courts in Urgenda v the Netherlandsand on recent judgments of other national courts, and identify a range of concrete standards by which courts may assess whether a State has met the minimum legal requirements of its duty of care in the ‘next generation’ of systemic mitigation cases.

A continuing mandamus to enforce rights to adequate housing in the era of super typhoons

The era of super typhoons is here and is predicted to linger due to anthropogenic climate change. Disasters triggered by these typhoons have caused not only loss of lives, but also displacements of people who are left without houses, properties and livelihoods. Using the Philippine experience, this article examines the legal standard of right to adequate housing under the international human rights law and international climate change law, and the Philippines' commitments to these regimes. It argues that the Philippine government's post-typhoon responses are fragmented, reactive, and ephemeral, and that there are gaps in the current housing laws. It is then argued that these issues are incongruent with the minimum standards of adequate housing. To ensure that the housing rights of climate displaced persons are protected, the role of domestic courts in enforcing the government's adaptation commitments under the Paris Agreement using the writ of continuing mandamus is considered.

Governing fossil fuel production in the age of climate disruption: Towards an international law of ‘leaving it in the ground’

To achieve the long-term temperature goals set by the 2015 Paris Agreement and avert climate disruption, fossil fuel production cannot continue to proceed unabated. This dawning realisation has led to calls to ‘leave fossil fuels in the ground’. While a growing body of scholarship on ‘supply-side climate policies’ shows how policies curbing fossil fuel production can contribute to climate objective, there has been scarce attention to the role of law in regulating fossil fuel production. With a view to filling this gap, this article investigates the changing role of international law in addressing fossil fuel production to achieve climate change goals. The limitations of the siloed thinking in international law are illustrated with reference to international climate change law, human rights law, and investment law. The normative guidance emerging from these bodies of law for governments and fossil fuel companies regarding the transition away from fossil fuel production is unclear, and at times conflicting. The article thus calls for a rethinking of international law in supporting the shift away from fossil fuel production to achieve climate goals.

Recent Developments in International Climate Change Law

Abstract This article discusses recent developments in international climate change law, in respect of which Pacific island countries and territories (PICs) have made a particularly significant contribution. PICs have been instrumental in shaping the international climate change treaty regime since its inception in the early 1990s. Since the adoption of the Paris Agreement in 2015, however, progress has stalled – and even more so since the global pandemic. With a focus on the Suva Declaration on Climate Change released prior to negotiations in Paris, this article assesses progress in two areas that have received considerable attention from PIC representatives due to their importance to the region: the long-term temperature goal and the Talanoa Dialogue; and the issue of loss and damage. While PICs have managed to make gains in both areas, climate change science indicates that current global efforts are insufficient to avoid catastrophic climate change impacts for the Pacific region. In light of this, certain PIC leaders are looking outside of the international treaty system for other ways to protect their communities and ecosystems.

Addressing Correlations Between Gender-Based Violence and Climate Change: An Expanded Role for International Climate Change Law and Education for Sustainable Development

Addressing Correlations Between Gender-Based Violence and Climate Change: An Expanded Role for International Climate Change Law and Education for Sustainable Development

The Intersection of International Disaster Law and Climate Change Law

The Intersection of International Disaster Law and Climate Change Law

The State of the Netherlands v Urgenda Foundation: Distilling best practice and lessons learnt for future rights‐based climate litigation

AbstractOn 20 December 2019, the Supreme Court of the Netherlands, in the decision of The State of the Netherlands v Urgenda Foundation, upheld the lower courts’ finding that the State of the Netherlands is legally obliged to reduce its greenhouse gas emissions by a minimum of 25 percent by the end of 2020 compared to 1990 levels. The Supreme Court’s widely acclaimed decision is principally grounded in human rights law, with specific standards deduced from international climate change law and science. This case note analyses the role of international law in the Supreme Court’s reasoning, with attention to both strengths and weaknesses of the judgement. First, it highlights parts of the judgement that represent best practice in adjudicating climate change, such as the operationalization of an integrated approach to international law. Second, it identifies human rights questions resulting from the Supreme Court’s narrow focus on the rights of residents of the Netherlands in determining a specific mitigation target. It concludes with reflections on how the universality of human rights can be safeguarded in rights‐based climate litigation before domestic courts.

Fossil fuel mineral wealth and climate change law: expectations of coal mine development in a time of decarbonisation

International climate change law embodied in the United Nations Framework Convention on Climate Change and the Paris Agreement entails commitments to reduce the emission of greenhouse gases, mainly from the use of fossil fuels. The development of fossil fuel mineral resources, especially coal, is becoming less attractive. Although it can be argued that countries, especially developing countries, should have a right to develop their coal resources, there is no general exception to the international agreements to that effect. The agreements address emissions and do not directly prevent fossil fuel extraction at the present. Emission reduction measures are not the only factors causing uncertainty in international coal markets. No tenable argument can be made for exceptions to the climate change agreements on the basis of the right to development, sustainable development or permanent sovereignty over natural resources; and pressure to reduce the use of fossil fuels, at the corporate level or in international affairs, is legitimate and to be expected. A low-carbon future means changes for mining, and coal mining in particular does not have a legal claim to business as usual operation immune from international efforts to reduce harm to the climate.

A Pathway for Carbon Capture and Storage in Iran: An International Climate Change Law Perspective

Developing countries that are rich in fossil fuels are now designing their climate mitigation plans with carbon capture and storage specifically in mind. These techniques allow them to utilize their fossil fuel-based revenue while also complying with their mitigation commitments. Carbon capture and storage, which are ideally supposed to be deployed in developing countries, with financial support for doing so coming from developed countries, has been proposed by Iran in its intended nationally determined contribution. This article explains the opportunities open to Iran, as a developing country, for the implementation of carbon capture and storage in the event that it ratifies the Paris Agreement. There are number of mechanisms and bodies under the UN climate regime that would help carbon capture and storage get off the ground in Iran, of which the Climate Technology Centre and Network and the Green Climate Fund are the most obvious. Article 6 also has great potential for carbon capture and storage within the Paris Agreement regime. Iran could harness the opportunities available under the Agreement, provided its national Parliament ratifies it: something that has not happened so far due to political controversies.