We recommend that those Parties most at risk from the impacts of climate change require the COP21 agreement to preserve expressly their legal position on future claims for loss and damage.
After 8 months of attempting to work with an 80 + page negotiating text, the recently emerged 9 page draft lays bare the lack of ambition. The last negotiating session before Paris begins on 19 October.
The co-chairs have invited Parties to contact them directly with any concerns at email@example.com.
When the political process fails, the courts may provide next the port of call. The 'no harm principle' (or 'principle of prevention') is the foundation of international environmental law (i.e there's no sovereign right to exploit natural resources in a way which harms your neighbours). International lawyers increasingly agree that it applies to climate change (see, for example, the International Law Association principles and Oslo principles). As a result states have a duty to ensure (with due diligence) that greenhouse gas emissions under their jurisdiction or control do not cause harm to the environment of other states or in areas beyond national jurisdiction.
If there's an assumption that climate change litigation faces insurmountable hurdles then Parties may wish to consider two milestone cases from this year:
Also relevant is the judgement of the US Court of Appeals from 2009, which accepted the viability of a claim brought by 8 US States + New York City against 6 power generation companies for climate change damage (following a change of circumstances the judgement was partially reversed by the US Supreme Court).
Links to all the materials mentioned above can be found here:
Such cases (and general principles of law) indicate the potential for individuals, organisations and governments to bring legal action for climate change loss and damage.
Signing up to the Paris agreement may imply that pre-existing legal rights have been given up:
lex specialis derogat legi generali ('specific law overrides general law').
In other words, in the event your government or your people were to bring a claim for climate change loss and damage at some later date, it might be argued:
a) But you have expressly agreed that levels of emissions should be 'nationally determined'; and
b) You have agreed that climate change loss and damage should be addressed through mechanisms under the UNFCCC.
To avoid the risk of compromise to your country's legal position we advise you consider writing to the co-chairs along the following lines:
Thank you for your non-paper of 5 October, containing a radically simplified 'basis of negotiation'.
We will be unable to support any agreement that risks compromising our pre-existing legal position in relation to potential legal claims for loss and damage (i.e. the 'no harm' principle). As there has been no suggestion that an agreement is intended to reduce protections for vulnerable and developing Parties we see no difficulty in inserting an express provision for the avoidance of doubt. We propose a clause along the following lines for inclusion in the Preamble:
This agreement shall take effect without prejudice to existing principles of international law [including the no harm principle, the precautionary principle and the polluter pays.]'
Equity was always first and foremost about sharing the remaining carbon budget consistent with the temperature target. No Party should be expected to compromise its legal position on account of the collective failure to come to terms with this fundamental aspect of UNFCCC compliance.
>>>>> Depress economic growth and increase poverty
>>>>> Cause food and water scarcity
>>>>> Leave large parts of the world uninhabitable
>>>>> Force mass migrations
>>>>> Cause national and international conflict.
Analysis and resources to support the UNFCCC's ultimate objective