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
adp.chair.email@gmail.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:


  • The Urgenda Case in which a citizen's platform brought a successful claim against the Dutch government for failing to take sufficient steps to protect the people from the effects of climate change (with reference being made to fundamental human rights principles including the right to life).


  • The Leghari Case in which a farmer brought a case against the government of Pakistan for failing to implement its climate change strategy, resulting in the Court ordering the establishment of a new Commission.


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:


'Dear Co-chairs

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.

....'




Essential context


  • Over the course of 21st C there is a high risk that average global warming will reach 4 degrees Celsius.


  • Temperature rises on this scale would


                        >>>>>   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.


  • Researchers from Columbia University have identified climate change (leading to a drought between 2007 and 2010) as a contributory factor in the outbreak of Syria's civil war.


  • CO2 emissions are acidifying the oceans, further jeopardizing food security and economic well-being.


  • The IMF estimates that global subsidies of fossil fuels currently amount to $3.5 trillion p/a (ie $10million per second).


  • Urgent, coordinated political action is required to limit warming to 1.5 or 2 degrees (the ‘long-term goal’).


  • International leaders first agreed to take action to limit greenhouse gases (GHGs) in 1992 (the UNFCCC).


  • In the absence of a treaty setting binding emissions limits and mechanisms directing the market to invest in clean energy, GHG emissions have continued torise, driven by economic and population growth.


  • Following failures to reach consensus on meaningful mitigation actions at COP3 (Kyoto) and COP15 (Copenhagen), COP21 needs to deliver.


  • The essential elements of the agreement might be expressed in a form that is ‘strong’, ‘soft’ or ‘hybrid’. The essence of a ‘soft’ agreement is one in which Parties exercise exclusive determination over their financial and mitigation commitments.


  • In the event of a soft agreement, the Parties should address the questions: ‘What if doesn’t work? What if it fails to send a clear and strong signal to capital investors? Would we have time to negotiate a whole new agreement? Or should we provide for a ‘B Plan’ within the original agreement?’


Analysis and resources to support the UNFCCC's ultimate objective