Panel 9B: The International Law(s) of Climate Change
November 19, 2014
Oceans and Environmental Law Division, DFATD
Victoria University of Wellington, New Zealand
McGill University Faculty of Law
University of Ottawa
2018 JD/MA Candidate
The first speaker, Jeffrey Smith, focused on how to implement international environmental law (IEL) to get desired results through the better use of treaties and treaty-making. IEL arose from events that increased public consciousness that forced governments to respond and culminated in the Stockholm Conference in 1972. There was considerable change following this conference, after which many treaties were created in an attempt to deal with issues pertaining to IEL. While recognizing the limits and normative constraints of relying on conventions and treaties to deal with environmental issues, we must have a clearer comprehension of risks, the multilateral arena in which IEL is employed in order to have cross-synthesis of treaties for a more efficient implementation of IEL. Energy is an essential underlying dimension to be grappled with, and we must leverage sustainable energy sources in order to make existing treaties better at a broader IEL level and for climate change in particular.
The second speaker, Alberto Costi, proposed that we use the existing framework of treaties in order to deal with climate change, and focus on the enforcement of these treaties while finding mitigation strategies that work in practice. We must focus on dealing with affected people as a collective and not as individuals. The idea of statehood is put into jeopardy when territory is gradually lost due to climate change (e.g. rising sea levels) and forces populations to move. There is a presumption of continuity of the state once it is established in international law, therefore we must interpret principles of international law and treaties to help states in the face of migrating populations. The Kyoto protocol and other treaties need to be adapted to find ways to help these disappearing states so they have a future, and not simply through the usual trilogy of monetary assistance, technology and capacity building. The example of a recent high court decision in New Zealand was explained, which rejected a family’s attempts to claim refugee status from the nearby Kiribati island due to poor health standards caused by climate change. This highlights the need to understood happens to communities and indigenous values when people migrate due to climate change. Finally, there are two contentious issues that have arisen: i) we are moving slowly to customary recognition that law of statehood needs to be enforced with these principles of resolution in mind; and, ii) whether there is an emerging duty to assist, which has various political and legal implications.
The third speaker, Carla Sbert, focused on the Earth Charter as providing a framework in which to deal with mining issues, which raises many important elements that can also be applied to the issue of climate change. The assumptions of the analysis included the fact that the global society is currently facing and ecological crisis and that we must agrees it as soon as possible, and that while mining is a key component to economic growth its environmental practices need to be reformed. The Earth Charter’s principles propose three main concepts: too minimize depletion, to cause no serious environmental damage, and to protect the rights of people. These concepts can be implemented with significant reforms in governance, corporate mining practices and property law in order to describe minerals as commons and allow for collaboration amongst all stakeholders and effective enforcement of the Earth Charter rules. This would mean that there would be less mining, that it would be focused on satisfying needs instead of profit, would prioritize ecology and people’s rights. Although this will be very difficult to put into practice, there is a growing awareness in terms of the need to change ideas about consumption and an opportunity to implement change in the near future.
The chair, John Burnett, concluded the panel by emphasizing growing consensus globally on he need to address climate change, although asymmetries of power persists in the international law system. The question that remains is how can international law and the international legal system be used to facilitate and take into account views of various actors involved in these problems, including non-state actors. The panel built on this concept and reinforced the importance of non-state actors and indigenous communities being involved in the decision-making process of these issues, and the urgency with which the global community should work together to deal with climate change since all states will be effected and time is of the essence.