Journal of Energy & Natural Resources Law

Published quarterly, the Journal of Energy & Natural Resources Law is the journal of the International Bar Association’s Section on Energy, Environment, Natural Resources and Infrastructure Law.

Editor, Don C Smith

JERL was launched in January 1983, under the editorship of Professor Terence Daintith, now a Professional Fellow at the Institute of Advanced Legal Studies in London.

The Journal's current Editor is Professor Don C Smith (pictured left), Director of the Environmental and Natural Resources Program at the University of Denver (US) Sturm College of Law where he teaches Comparative Environmental Law and Contemporary Issues in Oil and Gas. He is assisted by the Journal Board and Editorial Advisory Committee, comprised of members of the Academic Advisory Group (AAG) of IBA SEERIL. Together, they bring to the journal an unsurpassed expertise in all areas of energy and natural resources law.

Featuring contributions written by some of the finest academic minds and most successful practitioners in this area of study, JERL is a highly respected journal committed to reflecting contemporary issues that face the energy and natural resources sectors. 

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Current issue – Vol 34 No 1, February 2016

The Journal's editor, Don Smith discusses the achievements made at the Paris COP 21 UN Climate Change Conference and the challenges and opportunities that will arise in the future. The articles within this special issue these articles and commentaries should be of enormous value to policy makers, businesses and the legal and financial communities who serve them. Each contributor has offered cogent and thoughtful advice that will benefit a world seeking to address climate change and realise the promises of the Paris COP21 agreement.

David W Rivkin, President of the International Bar Association, introduces the special issue of the Journal, focused on climate change justice and human rights. The IBA has taken a leading role in the development of international and domestic legal responses to climate change, in particular with the publication of its flagship report, Achieving Justice and Human Rights in an Era of Climate Disruption. Climate change justice recognises that climate change will affect most those who have contributed least to climate change – those in poorer and developing countries who will feel the full force of climatic changes, sea-level rises, food shortages and climate change related migration.

This article surveys the key recommendations in the IBA's 2014 report, Achieving Justice and Human Rights in an Era of Climate Disruption. The author highlights the report's focus on creative and practical ideas for developing international law's response to the challenge of climate change, with particular attention to the importance of recognising 'climate change justice' – considering those who have contributed least to climate change, but who will be the most affected. The report contains over 50 recommendations spanning international environmental law, human rights law, international trade and investment law, and the law of state responsibility, as well as providing recommendations for the UN, the UNFCCC negotiations, the Office of the High Commissioner for Human Rights, the International Maritime Organization (IMO) and the World Trade Organization (WTO) together with corporations, states and individuals. The article also reviews the IBA's work in the 12 months since the report was released on developing and implementing some of the key recommendations and invites environmental and human rights lawyers to join the IBA's work in this area.

The Paris Climate Change Conference was tasked to set the world on a path to address the greatest challenge to ever face humankind, by adopting a new climate agreement. The outlook for the conference was rather bleak. The laborious and increasingly frequent meetings of the body entrusted to draft the text of the Paris Agreement, the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), had made limited progress. These negotiations had eloquently demonstrated the futility of technical negotiations, without political consensus on the core elements and features of the new agreement. Yet, to the surprise of many, the Paris Conference concluded on 12 December 2015, with the adoption of a new climate treaty. This article reflects on the Paris Conference and on its outcome. First, it collocates the conference in the history of the climate regime. Then, it explains what Parties were expected to deliver. Finally, it assesses the outcome of the conference against these expectations. The article concludes with a reflection on where the climate regime is likely to head next, and where the Paris Agreement leaves Parties in their efforts to tackle climate change.

Despite growing evidence that projects undertaken to combat climate change currently produce human rights concerns, legal and institutional frameworks for addressing such impacts have not been exhaustively explored and communicated. A 2014 report of the International Bar Association (IBA), Achieving Justice and Human Rights in an Era of Climate Disruption, takes a commendable step in filling this gap. It puts forward a functional rights-based risk management approach, through which corporations can be mandated to protect, respect and fulfil human rights in the execution of climate actions and projects. This article evaluates the key contributions of the IBA report to debates on the legal obligations of private actors to integrate human rights principles into the design, financing and implementation of climate projects. The article also considers practical and logistical concerns that must be clarified and addressed to further enhance the utility and relevance of the IBA proposal on corporate risk management in climate actions.

The adequacy of current international and national laws regulating the causes and consequences of climate change can be evaluated by examining the extent to which they achieve climate change justice. Climate change justice includes at least three concepts: distributive justice, procedural justice and justice as recognition. The article outlines these justice concepts and illustrates their application by examining mitigation of and adaptation to climate change through the lens of distributive justice.

Climate change is a complex problem touching on a range of bodies of international law, yet international lawyers – with a few exceptions – have tended to focus only on the limited United Nations framework. The IBA's recent report on climate change justice takes initial steps toward recognising the broader set of international law challenges thrown up by the human cost of climate change, including in the areas of trade law and human rights, and offers practical recommendations to improve the international legal environment.

This commentary considers the International Bar Association's recommendations on corporate responsibility in its Task Force Report Achieving Justice and Human Rights in an Era of Climate Disruption. In so doing, this commentary explores the key recommendations in the report relating to corporate responsibility – namely implementation of the UN Framework on Corporate Responsibility to Protect Human Rights, corporate reporting and the regulation of corporations, at home and abroad – which together provide important mechanisms to address the growing calls for corporate responsibility in the quest for climate justice.

Analysing the mining industry's evolving approach to corporate responsibility and human rights sheds light on some of the opportunities and challenges for corporations to play a role in promoting climate change justice. A focus on human rights can create tensions with the corporate social responsibility (CSR) programmes and policies, which are commonly discursively framed as being voluntary. Corporate efforts to respond to critics by adopting human rights policies will be viewed with scepticism without increased standardisation in reporting, and the success of these initiatives will depend on the quality of a firm's engagement with communities to address local concerns aside from greenhouse gas emissions. Strong state regulation, enforcement and democratic politics must accompany the growing panoply of guidelines, principles, codes of conduct and standards to ensure the promotion of human rights.

The 2014 Climate Justice Report by the International Bar Association (IBA) makes many recommendations designed to contribute to the fight against climate change. One important step forward is its explicit recognition of the responsibility of business to respect human rights affected by climate change. This commentary explores the extent to which the IBA's approach to this issue aligns with the business responsibility to respect human rights as described in the 2011 United Nations Guiding Principles on Business and Human Rights. The commentary also considers other international standards that incorporate business responsibilities for human rights in order to determine whether sufficient guidance has yet emerged for businesses to effectively address human rights and climate concerns.

The concept of climate justice links human rights with efforts to address climate change to achieve a human-centric approach, safeguarding the rights of the most vulnerable in the process. In their ongoing efforts to implement the recommendations from the newly published IBA report, Achieving Justice and Human Rights in an Era of Climate Disruption, the IBA working groups should safeguard the human-centric approach that inspired the report in the first place, and be mindful that the human dimensions are always well integrated into efforts to address the environment and climate. Recommendations regarding environmental impact assessments, the environment and international trade, and institutional measures and processes to address the environment or climate change should generally integrate the social and human aspects in their work, in order to ensure that any effort to benefit the environment and climate should not come at the expense of people.

In the context of the International Bar Association report, Achieving Justice and Human Rights in an Era of Climate Disruption, this commentary highlights the challenges in adopting a human rights framework for the REDD+ programme which is designed to reduce greenhouse gas emissions. It identifies the potential inequities involved in mitigation efforts directed toward reducing emissions from avoided deforestation, forest degradation and associated forestry activities in terms of the potential impacts upon indigenous peoples and local forest-dependent communities. The potential impacts upon these communities are now well recognised, and issues of climate justice have been raised. The introduction of safeguards under the REDD+ model, is an important step towards incorporating human rights into the REDD+ framework. Yet even given the emphasis on securing tenure and participatory rights, such as free, prior and informed consent, REDD+ may still entrench inequalities for some indigenous and local communities, in areas such as the utilisation of traditional knowledge in fire management.

If we fail to coordinate a systemic decarbonisation of the global economy sufficient to prevent runaway climate change, no amount of effort put towards adaptation will be sufficient. Our attention to the task of mitigation, which by itself must negotiate enormous geopolitical obstacles, requires priority if we are truly concerned with alleviating the human costs of climate change. This choice of framing of the human challenges we face from climate change, however, is at odds with the standard conception of climate justice, which seeks to provide reforms to the international legal and political order to address increasing systemic inequities. What these two perspectives have in common is the recognition that climate change necessitates systemic reforms to the international order. To the extent that international law can facilitate these reforms, the question seems to be how can we better enforce equitable international obligations. This commentary asserts that the distribution of costs and benefits inherent to international regulatory standards will determine the effectiveness of any subsequent enforcement. The utility of a Climate Court, therefore, will be reflected in the ability of the operative climate treaty to produce sufficiently systemic voluntary commitments.

This commentary engages the International Bar Association's analysis of possible World Trade Organization (WTO) reforms toward mitigating the adverse effects of climate change. Carlson suggests that the IBA's six recommendations could be advanced by the shared allegiance of the IBA and WTO to the notion of sustainable development. The author traces key parts of the history of this term, beginning with its original conceptual formulation in the UN-sponsored 1987 Brundtland Report in order to recover its core principles: intergenerational equity, the inseparability of the environment and development, and a focused concern for the poor. The author contends that Pope Francis' concept of integral ecology enriches our understanding of – and commitment to – this widely shared term. Finally, the author examines William Nordhaus' notion of the climate club concept in relation to the IBA's call for a 'standalone environmental or climate change agreement within the framework of the WTO'.


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