Professor Marie-Claire Cordonier Segger1 is an Affiliated Fellow of the Centre, and Leverhulme Trust Visiting Professor in the University of Cambridge with the Bennett Institute for Public Policy, the Centre for Environment, Energy and Natural Resources Governance (C-EENRG) and other partners. She also serves as Senior Director of the Centre for International Sustainable Development Law (CISDL) in Montreal, Canada; Executive Secretary of the Climate Law and Governance Initiative (CLGI) with the United Nations Framework Convention on Climate Change (UNFCCC) in Bonn, Germany; and a Full Professor of International Law for the University of Waterloo in Waterloo, Canada. She is Law Fellow and Director of Studies for the LLM/MCL at Lucy Cavendish College, University of Cambridge; and laureate of the Justitia Fundamentum Regnorum Award (2016) and the Weeramantry International Justice Award (2020), among other distinctions.
In 2020, countries are facing critical global challenges which will define the next decades, perhaps centuries, of our civilizations on this Earth. The risks are real, and the science which interprets them is well-recognised. For years, even as globalisation gained speed, delivering equivocal benefits to millions, we have also been warned of emerging vulnerabilities. Scientists and others in World Health Organization (WHO) circles underlined serious risks of a global pandemic – now a reality with the emergence of a novel coronavirus and the deadly COVID-19 outbreaks. Scientists, journalists and others in nature conservation circles, including the Convention on Biological Diversity (CBD) regime, have highlighted the risks and realities of a global biodiversity crisis, with thousands of entire species, their natural habitats and ecosystems on the brink of collapse due to our development choices. Students have joined scientists and many others in climate action circles, including the UN Framework Convention on Climate Change (UNFCCC) regime, and underscored the risks and realities of a global climate crisis, with extreme weather events increasing, glaciers melting, sea-levels rising, corals bleaching, droughts and desertification spreading famine, and humanity’s capacity to adopt and implement sustainable energies, carbon negative infrastructure, technology and lifestyle transformations and nature-based solutions in time still very far from certain.
When countries celebrated the passage of the Paris Agreement on climate change under the United Nations Framework Convention on Climate Change (UNFCCC) in December 2015 in Paris, France,2 and its rapid entry into force a year later in Marrakesh, Morocco, a certain sense of constrained optimism permeated the plans of government authorities, international organizations and business communities, even the academic and civil society circles.
However, implementation of the Paris Agreement is not just an environmental or economic challenge, it is a development challenge, responding directly to the world’s Sustainable Development Goals (SDGs). Concluded at the UN in September 2015, pre-dating the Paris Agreement by mere months, the 17 SDGs and their 169 associated targets for implementation recognise in SDG 13 on climate change that the UNFCCC as the key forum to coordination global response to climate change. In the SDGs, ambitious targets also cross a wide range of legal and policy challenges implicated and impacted by climate change, including SDGs 2 and SDG 3 on zero hunger, and good health and well-being; SDGs 6 and 7 on securing access to clean water and sanitation, and to affordable and clean energy; SDGs 9 and 11 and 12 on industry innovation, infrastructure, sustainable cities and communities and sustainable consumption and production; SDGs 14 and 15 on life below water and on land; as well as SDG 4 on quality education and SDG 16 on peace, justice and strong institutions. The SDGs may be soft law, aspirational voluntary targets adopted to facilitate more coordinated international and domestic action, but a circle of international treaties and organizations – including the UNFCCC, its Paris Agreement and implementing entities such as the Green Climate Fund (GCF), as well as myriad national regulatory bodies across all spheres of human activity – are struggling to meet each target. National progress on implementing the SDGs is monitored through country submission of Voluntary National Reviews (VNRs). These VNRs underline the importance of high ambition, carbon neutrality and markets, progress on nature-based solutions, disaster risk reduction and resilience, loss and damage and robust climate change legislation and dispute settlement systems to implement the Paris Agreement in a manner that helps to achieve the SDGs.
Nearly five years have passed since Paris, however, and while the grand majority of signatory countries have embarked with determination on the difficult tasks of designing and registering their Nationally Determined Contributions (NDCs) and mobilizing domestic reforms, discovering both pitfalls and plateaus, national experiences to date offer cause for both cautious optimism and increasingly profound concern. Civilization has reached a crossroads, with the global economy, nature and humanity depending on ambivalent capacity for compliance with our climate commitments.
A carefully crafted compromise intended to generate global participation, the Paris Agreement is predominantly a procedural ‘pledge and review’ commitment, with a core triangle of obligations: (1) nationally determined contributions to the global response to climate change, backed by (2) significant new and additional climate finance, secured by (3) transparent monitoring and reporting, which permits collective stock-taking and public awareness leading to pressure for higher ambition. Proceedings under the Paris Agreement Compliance and Implementation Committee are initiated where a Party has failed to submit and maintain an up-to-date NDC in accordance with Article 4; failed to provide reports related to emissions reductions and technology transfer as per Article 13(7, 9) and financial contributions as per Article 9(5, 7); or refused to participate in the facilitative dialogue.3 Despite the carefully crafted agreement, however, implementation of the Paris Agreement across all Party countries remains a critical challenge, particularly since each facet of these requirements demand imbedded domestic capacity which remains limited in many jurisdictions. At present, it remains unclear whether domestic (or international) law could be described as part of the problem, or part of the solution in this struggle.
167 of the 186 NDCs explicitly prioritize legal and institutional reform in their plans to contribute to the global response to climate change for the first round of NDCs registered to the UNFCCC Secretariat by Parties, according to findings in July 2020 by the Centre for International Sustainable Development Law (CISDL) for the global Climate Law and Governance Initiative in partnership with the UNFCCC Secretariat, to which LCIL fellows and several brilliant Cambridge graduates contributed.4 Future climate law and governance reforms prioritized in these NDCs are mainly linked to mitigation of GHG emissions which includes legal and institutional reforms on energy, forests/land use change and agriculture, waste, industrial processes, and water; or to adaptation and resilience to the impacts of climate change, which includes early warning assessment and risk reduction; but many countries also need legal measures for implementation steps such as monitoring, reporting, and verification (MRV), finance, technology and sustainable development more broadly. Generally, initial NDCs especially focus on new legal and institutional reforms in energy and technology, in climate finance, and in agriculture, forests and land use change.
It may be a priority, but the drafting, adoption and enforcement of national policy, regulatory and institutional frameworks to achieve higher ambition on climate change remains an ongoing challenge. Courts are not unwilling to resolve disputes – indeed, as litigation on climate change in domestic courts across over fifty countries, including as decisions such as the Urgenda case in the Netherlands,5 the Rocky Hill Mine case in Australia,6 the Leghari case in Pakistan,7 and the Heathrow Airports case in the UK 8 suggest, courts can and will consider climate change imperatives if presented with reasoned arguments.9 Studies have identified over 1,821 law and policies set in place to address climate change,10 and there is a great deal to be learned from recent innovations. The UK Climate Act (2008) targets carbon neutrality by 2050, and a progressively diminishing national carbon budget for each five-year term from 2008-2012, 2013-2017 and 2018-2022.11 Drawing on advice from the International Development Law Organization (IDLO), the International Fund for Agricultural Development, the UN Environment Programme and partners, with support from CISDL Mexican and other jurists, Mexico introduced in 2012 the General Law on Climate Change, which established an administrative mechanism for creation of a carbon market, created a National Strategy on Climate Change, and put in place a Climate Change Fund for investment in mitigation and adaptation activities.12 In 2018, Mexico became one of the first developing country Parties to try to bring their domestic framework into alignment with the Paris Agreement.13
In 2016, Canada announced the Pan-Canadian Framework on Clean Growth and Climate Change to fuel green growth while fulfilling Canada’s 2030 climate target of a 30 percent reduction in emissions below 2005 levels.14 The Pan-Canadian Framework is grounded in four pillars (i) carbon pricing, (ii) removal of barriers to enhanced ambition, (iii) resilient infrastructure and communities, and (iv) fostering development of clean technology and innovation, and buttressed by the Greenhouse Gas Pollution Pricing Act which, among other things, sets a price on carbon that ratchets upward from $10/tonne in 2018 to $50/tonne by 2022.15 After a lengthy regulatory reform process supported by the IDLO, the UK’s Department for International Development (DFID) and others, advised by Kenyan CISDL jurists, Kenya aimed to mainstream climate change responses into the broader policy framework through passage of the Climate Change Act (2016), which, among other things, provided pathways for climate policy formulation, integration of gender and intergenerational equity factors, incorporation of sustainable development into climate policy priorities, incentivization of investment in low carbon technologies and private sector involvement in climate activities, and enhancement of avenues for building of domestic awareness, public participation, and technical capacity.16 An inter-ministerial body, the Climate Change Council, is created to coordinate national adaptation and mitigation efforts which includes representatives of civil society, holders of Indigenous traditional knowledge (TK), and academia.17 Citizens are also empowered to apply to the Environment and Land Court to prevent/stop practices which have an adverse impact on climate change goals, and seek redress for violations.18 With legal guidance and support from IDLO, building on advice of CISDL and other jurists, the Vietnam National Climate Change Strategy (2019) works to interweave climate change and sustainable development priorities to ensure the approach in mutually supportive.19 Specific objectives include assuring food, water and energy security, poverty eradication, improving community health, while advancing a low carbon economy, green growth, and capacity to respond to climate change.20 While these efforts offer useful lessons, there is a danger of making legal interventions too little, too late. More diverse, carefully tailored policy and legal measures are needed to address widely differing national circumstances, and to move towards a carbon negative economy, particularly in the context of post-pandemic economic stimulus.21
Despite progress both internationally in advancing post-Paris ambition and nationally to develop climate responses which respond to domestic pressures, as seen in the UK, Canada, Mexico, Kenya and Vietnam, there remain critical capacity limitations to effective implementation of Paris Agreement in a manner that secures the world’s SDGs. Recent policy, legal and institutional innovations may illustrate the relevance of the law and governance approaches available, and ongoing climate litigation may underline the importance of access to justice and fair, reliable dispute resolution, but further efforts are necessary to actualize implementation of climate change commitments on all levels. Effective, accountable national and international law on sustainable development, especially to support Paris Agreement implementation, has never been more important, especially as countries struggle to set measures in place to speed economic recovery from the global COVID-19 pandemic. The enormity of the challenge for the law, and indeed for all disciplines and professions, is clear. With 167 UNFCCC Parties requiring urgent legal and institutional reform to implement their Paris Agreement commitments, and only a few qualified lawyers available to assist in each country, as discussed in the December 2019 UNFCCC 25th Conference of the Parties, a ‘capacity chasm’ is gaping in our path ahead. As the UK and the world prepare for the decisive 26th Conference of Parties, which will focus on implementation challenges above all, across all fields and professions. Indeed, in each country and region of the world, hundreds, perhaps thousands of capable, informed jurists specialised in climate change are desperately needed to bridge the gaping chasm. The best and brightest of our law students from all countries, and the world’s leading centres of legal education and research face a critical opportunity to make a decisive contribution to the highest possible ambition in our global response to climate change.
1 With warmest possible thanks are due to Freedom-Kai Phillips, doctoral candidate, coordinator for my Leverhulme Trust Visiting Professorship in the University of Cambridge, for his outstanding research and substantive insights, and also to Professor Alexandra Harrington, Fulbright Special Fellow and Chair in Global Governance (2018-2020), Balsillie School of International Affairs, for her advice and ideas.
2 United Nations Framework Convention on Climate Change, Decision 1/CP.21: Adoption of the Paris Agreement (29 January 2016) UN Doc CP/2015/10/Add.1, Annex Art. 2.1(c), (Paris Agreement).
3 UNFCCC, Decision 20/CMA.1: Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement (19 March 2019) UN Doc PA/ CMA/2018/3/Add.2, para 22.
4 Marie-Claire Cordonier Segger et al, ‘167 NDCs of 186 Registered to the UNFCCC Explicitly Prioritize Legal and Institutional Reform in Plans to Contribute to the Global Response to Climate Change’ (Climate Law and Governance Initiative and Centre for International Sustainable Development Law, Cambridge 2020). Warmest possible thanks and recognition are due to Maeve McDermott and Valeria Zambianchi, CISDL Researchers, also Chantalle Byron, Tim Arvan and Pavan Srinivas, CLGI Coordinators and CISDL Associate Fellows, also top University of Cambridge graduates whose contributions to the study, alongside those of Alexandra Harrington, Markus Gehring, Ayman Cherkaoui and Christina Voigt, have proven invaluable. See www.cisdl.org; www.climatelawgovernance.org.
5 Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689.
6 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7.
7 Ashgar Leghari v. Federation of Pakistan [2015] W.P. No. 25501/201.
8 Plan B Earth and Others v. Secretary of State for Transport [2020] EWCA Civ 214.
9 Joana Setzer and Rebecca Byrnes R, ‘Global Trends in Climate Change Litigation - 2019 Snapshot’ (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, London 2019).
10 Michal Nachmany and Joana Setzer, ‘Global Trends in Climate Change Legislation and Litigation’ (Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, London 2018).
11 Climate Change Act 2008 (c 27), s 1(1) and 4(1).
12 General Law on Climate Change 2012 (Mexico), art 3(XV), 7(XX) and 22(III), 80-82 and 91-92.
13 Markus Gehring, Marie-Claire Cordonier Segger & Emily Morrison, ‘Climate Law and Governance Innovations for Sustainable Investment’ (UNFCCC/CISDL, Bonn 2020 forthcoming) at 19.
14 Canada, “Pan-Canadian Framework on Clean Growth and Climate Change” (2016) online <http://publications.gc.ca/collections/collection_2017/eccc/En4-294-2016-eng.pdf> [Pan-Canadian Framework]; Canada, “Nationally Determined Contribution” (2015), online: <https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Canada%20First/INDC%20-%20Canada%20-%20English.pdf>.
15 ibid, Pan-Canadian Framework, at 2-3; Canada, Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s 166, 168 and 174, Sch 4.
16 Climate Change Act (Kenya, No. 11 of 2016), Article 3(2) [Kenya CCA]
17 ibid, Kenya CCA, Article 5-7.
18 ibid, Kenya CCA, Article 23.
19 Vietnam, Decision no 2139/QD-TTga of December 5, 2011, approving The National Climate Change Strategy (2011), Official Gazette Issue No 03-05, at 66-68. [Vietnam NCCS].
20 ibid, Vietnam NCCS, at 69-75.
21 Marie-Claire Cordonier Segger, François Crepeau, Alexandra Harrington, Freedom-Kai Phillips and Nandini Ramanujam, ‘Human Rights, the Sustainable Development Goals and the Law in Post-Pandemic Recovery Strategies and Measures’ (CISDL, Montreal, 15 May 2020) <https://www.cisdl.org/2020/04/19/human-rights-the-sustainable-development-goals-the-law-international-legal-symposium/>; Cameron Hepburn, Brian O’Callaghan, Nicholas Stern, Joseph Stiglitz and Dimitri Zenghelis, ‘Will COVID-19 Fiscal Recovery Packages Accelerate or Retard Progress on Climate Change?’ 4 May 2020 Oxford Smith School of Enterprise and the Environment Working Paper No. 20-02 ISSN 2732-4214 <https://www.smithschool.ox.ac.uk/publications/wpapers/workingpaper20-02.pdf> forthcoming in the Oxford Review of Economic Policy 36(S1).
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