3 minute read
Is the UN all talk and no walk? How International Law Can Address the Climate Crisis – By Annika Reynolds
The most prominent voice at the 2019 UN Climate Change Summit was the raw fury of a sixteen-year-old. Greta Thunberg said, with the righteous anger of future generations robbed of everything:
Advertisement
She spoke to a room of world leaders. She spoke to a room of people that gathered under the auspices of the UN –the apotheosis of our modern international legal system. She spoke to a room of people that should have been the guiding light of humanity’s future.
Yet Thunberg’s anger was validated over the rest of the Summit, as leaders were more preoccupied with externalising blame for emissions than achieving concrete strategies.
By the end of the Summit, it is fair to ask if the limited commitments made will even offset the carbon produced by world leaders traveling to New York.
Is this a signal that the international legal system is too weak, too amorphous, to ensure climate action? More predisposed to finger-pointing between countries than real change?
Ironically, I imagine Jair Bolsonaro, the current President of Brazil, would say yes to this question and equally, Trump. Certainly, our current Prime Minister, Scott Morrison, has indicated his derision of international norms with his snubbing of the Summit altogether.
I suspect they would say yes because of their nationalist leanings. For nationalism is the rhetoric of isolationism and, in the context of climate change, the process of externalising one’s emissions and their impact. It is easy to close borders to climate refugees, to keep producing excess emissions and mining coal in a disengaged international community.
As disappointing as the 2019 UN Climate Summit has been, it is not the total sum of international law’s contribution to climate action. International climate law has the potential to have critical impacts on the fight for climate justice: it provides a means of global coordination to meet world emissions targets and develops legal obligations that may come to bind State behaviour.
The most famous developments in international climate law to date, the Kyoto Protocol 1992 and the Paris Agreement 2015, are the only major global coordination mechanisms to ensure we constrain global warming to 1.5 - 2ᵒC.The Paris Agreement is a commitment to minimise global warming (Art 2). Moreover, it creates obligations to ensure the globe peaks its greenhouse gas emissions as soon as possible to begin the long-term process of global decarbonisation (Art 4) and creates a system of ‘nationally determined contributions’ (NDCs) for States to commit to reduction targets.
This framework is evidently not perfect. Trump is signalling a US withdrawal (although he has not initiated the legal process of withdrawal), and the 2018 Emissions Gap Report published by the UN Environmental Program indicates that even if all signatories to the Paris Agreement met their NDCs, these targets would have to be tripled to limit global warming to scientific recommendations.
But it is disingenuous to treat the Paris Agreement as a waste of time. Morocco is currently outpacing its NDC targets because of renewable energy investment from the Paris Agreement’s funding program. Equally, increased international scrutiny because of the Paris Agreement has resulted in India exponentially increasing its renewable energy investment and reliance. India, one of the largest carbon emitters in the world, will produce 60% of its energy via renewables by 2027.
This demonstrates that global coordination is critical and possible. It enables shared funding for decarbonisation projects and pressures large polluters to take responsibility rather than simply externalising their emissions. The failings of the Paris Agreement are not a product of its international status, but because the agreement does not go far enough in invoking international law norms and enforcement mechanisms.
It is critical that international climate law continue to build momentum to establish legally binding obligations on States. An internationally wrongful act is when a State breaches its legal obligations, giving rise to an obligation to cease the breach and provide reparations. It is the second part of this mechanism that is critical, the capacity of third-party States to force large emitters to reform. This system of accountability augments diplomatic pressure and coercive tactics, legitimising third-party condemnation and reinforcing these obligations to the rest of the international community.
We are on track to establishing responsible emissions as an international legal obligation. Seminal domestic cases, like the Netherland’s Urgenda Case, have recognised excess emissions as a violation of human rights. Furthermore, key international cases like Portillo Caceres v Paraguay, where the UN Human Rights Committee recognised environmental degradation as a breach of the right to life, also reflect this trajectory.
We will likely one day see a case where Tuvalu brings an action against Australia for its emissions, and we will one day see a case where it succeeds.
Thunberg was rightfully blistering of our world leaders, but do not mistake her condemnation of them for a renouncement of the international community. International coordination, legitimised by international law, is a critical element of climate justice and it will remain so long after the 2019 UN Climate Summit is relegated to the footnotes of history.
