The search for a ‘legally binding’ climate response

Legal experts claim that even without a new global deal in Paris, governments and companies have legal obligations to avert dangerous climate change. King's College London research fellow Stephen Minas explores these Oslo Principles on Global Climate Change Obligations.

As December’s Paris climate change summit draws close, key elements of the new global climate regime are still in play. The question of whether the Paris climate deal will be ‘legally binding’ is one ongoing controversy.

There is division even within the broad negotiating blocs of developed and developing countries. For example, while the European Union wants a binding deal, the United States remains committed to a ‘hybrid’ approach that includes both legal and political commitments. (The issue of a ‘legally binding’ deal is well explained in this paper by Fergus Green.)

While the debate continues, a diverse group of legal experts have come together to make a simple but powerful claim: that even without a new global deal, governments and private enterprises have sweeping legal obligations to avert dangerous climate change.

The Oslo Principles on Global Climate Change Obligations are the product of the Expert Group on Global Climate Obligations – a panel of judges, lawyers and academics that includes former High Court justice Michael Kirby. In late March, the Principles were launched at the Dickson Poon School of Law, King’s College London.

What the law requires?

The Principles draw on ‘well-established law’ (including both international and domestic sources) to set out the Group’s view of climate obligations as they exist today. What distinguishes the Principles from other policy proposals is the authors’ claim that compliance is already ‘legally required’. Many of the principles would be familiar to followers of climate policy, including:

  • A precautionary principle requiring greenhouse gas emission reductions.
  • The prevention of an average global temperature increase of 2 degrees above pre-industrial levels.
  • ‘Common but differentiated’ obligations of developed and developing countries.
  • Other principles are more novel, or at any rate more specific. These include:
  • Prohibitions on ‘starting new activities that cause excessive GHG emissions’, like building a coal-fired power plant, and on providing subsidies or other state assistance to facilities with ‘unnecessarily high’ emissions.
  • A requirement for countries that fail to meet their obligations to invest in emission reduction research.
  • A rule that countries must submit to the jurisdiction of ‘independent courts or tribunals’ so that compliance with climate obligations can be challenged.

The Principles also claim that private enterprises have broad legal obligations, including to assess their own financial vulnerability to climate change and their exposure to future limitations on fossil fuel extraction, and to make those assessments available to the markets.

Principles versus politics

Despite its purpose as a statement of existing law, the Oslo Principles will feed into the ongoing debate over how to fairly differentiate between the responsibilities of countries at different stages of development, which is the central sticking point in the UN climate talks.

Despite its purpose as a statement of existing law, the Oslo Principles will feed into the ongoing debate over how to fairly differentiate between the responsibilities of countries at different stages of development, which is the central sticking point in the UN climate talks.

The Principles define a country’s ‘permissible quantum of GHG emissions’ by dividing emissions during a given year on a per capita basis, consistent with the 2 degrees goal. But a global carbon budget allocated on a simple per capita basis would be unacceptable to multiple countries, not least because the budget is ‘already largely depleted’. Moreover, the per capita emissions of major diplomatic players like the United States, China and the EU all exceed the global average.

Economists Aaditya Mattoo and Arvind Subramanian have identified four distinct principles for allocating emissions equitably, including equal per capita emissions, historic responsibility, ability to pay and preserving development opportunities. The same country receives different emissions allocations depending on which principle is applied.

Mattoo and Subramanian note that poorer countries like Indonesia and India would worse off under the per capita principle compared to the historical emissions principle. Law professors Eric Posner and Cass Sunstein have argued that a per capita approach would actually hurt some poor countries, because ‘some rich nations are highly populated, and some poor nations are not’.

In contrast to the Oslo Principles, a recent paper from Australia’s Climate Change Authority suggests that accounting for ‘historical, current and projected’ per capita emissions would be a ‘useful measure of responsibility for comparisons across countries’. Other proposals include the convergence of per capita emissions decades into the future, taking accumulated or historical emissions into account.

No alternative to a climate treaty

Much like any deal that emerges from Paris, the key test of the Oslo Principles will be not how ‘binding’ they are but how effective they are. The authors of the Principles will be hoping that they influence governments through reputational pressure, legal decisions and within the climate negotiations.

On reputation, the claim that governments (and companies) are falling short of actual legal obligations is likely to be taken up by NGOs and other activists already campaigning on climate. As Berkeley law professor Andrew Guzman has observed, ‘developing a reputation for compliance with international law allows states to capture larger gains from international cooperation’.

In courtrooms, the Principles could be used to support claims such as the current test case challenging the lawfulness of the Dutch government’s climate stance. Speaking at the launch of the Principles, Richard Lord QC was surely right in contending that climate change ‘cries out for legal solutions, but the courts shy away from it’.

But it is also the case that the hit-and-miss nature of lawsuits, with often-lengthy appeals to higher courts, is out of step with the urgency of the climate challenge. At the launch of the Principles, Baroness O’Neill, the philosopher, put it succinctly: ‘I’m afraid we do need a climate treaty’.

Jaap Spier, the Expert Group on Global Climate Obligations’ rapporteur, has expressed a hope that the Principles will be used by governments both to support their positions in the negotiations and to explain the need for more action to voters. If the Oslo Principles can be used in this way, then their most direct impact on state behaviour could be through the crafting of a treaty, whether ‘legally binding’ or not.

Stephen Minas is a research fellow at the Transnational Law Institute, King’s College London. This post is republished from Climate Spectator.

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