Climate change justice - achieving justice and human rights (IGI)

The showcase session to debate the IBA report, Achieving Justice and Human Rights in an Era of Climate Disruption, brought together presidents, vice presidents and other highly influential figures. Global Insight brings you the highlights from Al Gore, Mary Robinson and Mohamed Nasheed.

‘We are paying the cost of carbon every hour of every day...’

Al Gore

Without immediate action to solve the climate crisis […] injustices will become more intense and more common. Our continued reliance on dirty fossil fuels is clearly unsustainable and unjust. We are paying the cost of carbon every hour of every day; we must internalise that cost into our market system. We need to put a price on carbon in markets and we need to put a price on denial in politics. Fortunately, the way forward is now becoming clear [… it's] towards clean, sustainable, renewable energy that’s already available and is spreading rapidly. Many are surprised to learn that now, in the fourth quarter of 2014, solar photovoltaic electricity is equal to or cheaper than the grid average from all other sources in 79 countries, and within six years, at the end of this decade, more than 80 per cent of all the world’s people will live in regions where solar electricity is competitive with fossil fuels – indeed, is equal to or cheaper than electricity from these other sources.

The importance of this trend simply cannot be overstated. Wind energy is already by far the cheapest source of electricity in many parts of the world. In my own country during the first half of this calendar year zero per cent of the new electric generating capacity came from coal; the majority of it came from solar and wind. This is the path forward. It leads us away from a dangerous and polluted world and towards one that is simultaneously sustainable, just and prosperous.

Fossil fuels are still receiving from governments around the world annual subsidies that are 25 times larger than the meagre subsidies that are given to renewable energy. Those subsidies for dirty energy must be halted, because a continued subsidy of dirty fossil fuels simply fuels climate injustice. It cannot continue.

‘We risk designing climate policies that undermine human rights...’

As a lawyer myself, I have felt for quite some time that the legal profession worldwide has been behind the curve on the negative impacts of climate change.[…] We face the prospect of millions of climate-displaced people who are not recognised as refugees, and for whom there is as yet no international convention. We’re told that by 2050 there could be 200 million climate-displaced people. […] What might be the implications for rule of law when large cities are flooded, or people are displaced by persistent drought?


I am surprised at the number of people who say to me,what on earth i[climate justice]? They have no idea what climate justice is about because they have no idea of the injustice of climate’


Mary Robinson
UN Special Envoy on Climate Change

The significance of this report lies firstly in its assessment that current law is inadequate to meet the challenges of climate change. As a result, the legal profession has a critical role to play in strengthening and creating the laws, norms, regulations and policies needed to ensure an effective and equitable response to climate change. We cannot solve the climate crisis without you, the lawyers of the world. The report is also significant for its legal treatment of the impacts of climate change on human rights, and the proposal of practical ways of using and strengthening legal frameworks and human rights law to ensure climate justice. For too long climate change has been seen as an environmental issue and as a result the focus of only a small pool of the legal profession specialising in environmental law at domestic or international level. What this report shows is that climate change is an issue of justice with repercussions for all aspects of law, from corporate law to litigation, human rights law to trade law. Whether you work to protect the interests of business, citizens or states, climate change is part of your portfolio.

2015 is the year that will define our response to climate change through the new climate agreement, the Post-2015 Development Agenda, including the Sustainable Development Goals, and new initiatives for financing development. […] We have a short window of a number of years only to make a fair transition to a carbon neutral world. […] Law plays a role in shaping and informing these policies and in regulating the resulting actions to make sure they deliver justice. Climate justice is about protecting those with least capacity to protect themselves and who bear least responsibility for the causes of the problem.

Human rights play a role in all aspects of climate action, from procedural rights such as participation and access to information, to the substantive rights, such as the rights to food and to health that we seek to protect from the impacts of climate change.

Q&A on carbon justice the common law

Pauline Wright, Treasurer, New South Wales Law Society: What can be done to address […] party politicking around this very important issue?

Mary Robinson: […] Politicians do respond to pressure and Australia is going to be very vulnerable, as we know, is already very vulnerable, to climate shocks. […] I think it’s a case of keeping the voices for progressive policies heard.

David Estrin: I sympathise, I’m from Canada and we have a prime minster that withdrew Canada from the Kyoto Protocol. […] We from the British common law tradition have a problem, we don’t have a constitution that actually talks about the environment and the right to have a safe, clean, healthy environment; [approximately] 100 countries in the world do. Those who got their constitution, if you like, […] from the British mould are the lesser off. […] Citizens are able to go to courts in Chile, in Africa, in Europe even and say, we have a right to a safe, clean, healthy environment. […]  So I think we have to work in these former Commonwealth countries to at least get the same level of legal [and] constitutional protection.

***

Helena Kennedy: Many of our membership in the IBA are commercial lawyers advising commercial entities, often advising […] fossil fuel companies, and will seek to […] hold back the tide of law that is likely to infringe upon the profitability of their clients. […] Many commercial lawyers might be very sympathetic with what [climate change] means ultimately, but they know that when they’re giving advice to their own client base, there will be other imperatives that will be coming into contest. […] The phrase that Al Gore used was that this is a challenge to our moral imagination, but it’s also a challenge to our legal ingenuity.

David Estrin: [When] you’re acting for companies, [advising] on what the legal risks are, and the [company’s] exposure and [the necessary] due diligence, [consider that] due diligence looking down the road means you cannot continue current practices as they are carried out today. The resources, the materials that you’ve got racked up in your inventory, as Al Gore said, may well not be the resources you think they are. So assess the viability of those [resources] and think carefully about [whether it is] in your own best interest to try and use other means to generate [energy, or] whatever you’re doing. […] that will, I think, help turn corporations around.

Helena Kennedy: Reputational threat, the risk of litigation, those are the things that we as lawyers are going to have to raise with our clients on this subject matter.

The evidence presented [in the IBA task force report] shows that poorly designed policies and actions can have negative impacts on people’s human rights and can contribute to unfair and unjust outcomes. If we get climate policies wrong they risk furthering the injustice already encountered due to climate impacts. […] If we design climate policies with human rights and fairness in mind, they will be more effective and benefit people and the planet. […] Research commissioned by my foundation reveals that […] only 12 countries made the link between human rights and climate change in reports both to the UNFCCC and the Human Rights Council. This demonstrates a lack of coherence and a lack of collaboration between experts working on climate change and human rights. Clearly this has to change, or we risk designing climate policies that undermine human rights.


It is very much a plan, indeed a first priority of my upcoming presidency of the IBA for the two years of 2015 and 2016, to continue the work of this task force’


David W Rivkin
Incoming IBA President 2015

The task force report shows us that the current system of international law is not well-suited to addressing climate justice. This is deeply troubling. […] The fragmented nature of the relevant legal regimes and their origins, in most cases in a world before climate change, means that reforms are needed to enable them to respond effectively and to deliver climate justice. More effective and coherent use of existing laws, rules and norms would inform better climate responses at the international and national level, and the legal reforms required to ensure fair and effective climate policies and actions. As a result, the final chapter of this [IBA task force] report is critical, spelling out many of the steps needed to revise and strengthen the legal system.

[…] I absolutely encourage the IBA to establish an international network of climate change counsel to raise awareness of climate justice among attorneys, judges and lawmakers in developed and developing countries and to build their capacity to use international law more effectively to respond to climate change, while realising rights.

‘What becomes of a people without a territory…?’

This year the question of climate justice has taken on a new urgency. […] We have watched New Zealand grant residency to a family who fled their homeland because of climate change and we have seen Kiribati become the first climate vulnerable nation to purchase territory in another country in preparations for the floods that will submerge their islands. Every week brings more evidence that climate change is already changing lives. The drumbeat is growing stronger, but so is the grunting sound of dissent from mouthpieces of polluting economies.

[…] To break with our tradition of inaction, we need people from outside the movement to speak out. Business and professionals are essential advocates for progressive climate policy. Every time a respected financial or security institution talks about climate risk the case for climate action grows louder. Governments are sensitive to risks, and that includes legal risk. So the legal profession will play a key role in driving climate policy.

By drawing attention to specific consequences of inaction you can make the implication of climate change a little more real. The law is, as you know, a living thing. Its evolution reflects the forces changing society, from human rights to equal opportunity. But the legal fraternity itself can also shape these forces. In the United Kingdom slavery was abolished by legislation, but only after the courts ruled that slavery had no place in England. […] Lawyers and the law have had a profound effect on the way things are done in society.

For Maldivians these are not abstract problems. They are not distant concerns to be filed away as something we will have to worry about later: they are happening. The inundation of the Maldives is just a generation away. When I was elected president I caused some controversy by saying we would someday have to leave our islands. I was hopeful then that we would be able to change the way our story ends, but I fear it’s too late for the Maldives. The world has lost the window of opportunity to mend its ways. Big emitters have sentenced us. The world temperature will rise and the seas will rise over our nose. The Maldives is home to 400,000 people. We have lived scattered across our distant archipelago for thousands of years. When our islands come to the water we will leave. We will take with us as much of our culture and customs as we can carry, our stories, our history, our food, our distinct language and its beautiful script, but that will be nothing compared to what we will be leaving behind. We will leave behind our homes, our streets, our buildings. We will leave behind the beautiful Friday mosque carved out of coral stone seven centuries ago. We will leave behind the trees we grew up with, the sand we played on, the sounds we hear daily. The sea will claim those things and with it our people. It is hard to put this to words. The feeling of losing what makes us us.


Fossil fuels remain heavily subsidised, but this has not been challenged so far within the World Trade Organization. By contrast, although they’re relatively rare, subsidies for renewable energy have been challenged’


Dr Stephen Humphreys
Associate Professor, London School of Economics

 

IBA Next Steps

David W Rivkin: It is very much a plan, indeed a first priority of my upcoming presidency of the IBA for the two years of 2015 and 2016, to continue the work of this task force. Essentially we have taken every one of [the report’s] recommendations and assigned them to […] the two working groups that are specifically recommended in the task force report. One on a model statute and one on issues regarding legal adaptation, specifically as President Robinson mentioned, defining climate change refugees and setting in place a legal mechanism for that, because that doesn’t currently exist. We will certainly take to heart the recommendations we heard today, including [them] in the discussions about the model statute, and a potential international court on the environment.

In addition, many of the recommendations fall within the scope of existing IBA committees, [in particular] the section on energy, environmental law: SEERIL. We’ve talked about the important role that SEERIL will have in taking forward many of these recommendations. In addition, many of the recommendations fall within the scope of the Arbitration Committee, the Corporate Social Responsibility Committee, the Human Rights Institute, the Bars and our 206 member organisations. Some of you may or may not know that IBA has a small working group, but important, [...] on business and human rights. They will all be involved, and we will assign to them the particular recommendations that fall within their scope, and we will coordinate this work and make sure that it continues.

Most importantly, there are many recommendations aimed at the UN and asking the UN to take various steps, and we look forward to working with President Robinson on those recommendations, and finding the best way to work with UN members. […] Indeed, we’ve talked about and expect that we will send two representatives of our task force to the COP meeting in Lima in December. We’ve been invited because of the importance of our recommendations. We will take them up on that and make sure that that dialogue continues. So we look forward to continuing to report to you at future IBA conferences about our progress. We look forward to the discussions in Lima and in Paris and elsewhere and we look forward to the assistance of all of you. I can promise you that the IBA will be the global voice of the legal profession on this issue.

 


You’ve set high standards for us and encourage us to meet those high standards. I hope you will continue to do that and to, as we say in English, keep our feet to the fire as we go forward into what you’ve said quite rightly is the very critical second stage’


Michael Reynolds
IBA President 2013/2014 [addressing Mary Robinson]

If current trends continue the Maldives will be among the first climate refugees. We will face issues of citizenship, sovereignty and repatriation. If our nation sinks we will be forced to answer questions more familiar to Palestinians, Rohingas and the Kurds. What becomes of a people without a territory? Can you have sovereignty and dignity without land? Can an independent nation exist on a foreign soil? What would happen to the land that we had? And what restitution, if any, can be made for the damage done to us, damage we warned about but did not cause? I fear that these questions will be answered one day not in the abstract, but in a court of law, and I fear that we the people of the Maldives will be the star witness.

So we look to the international community to provide legal protection where it could not provide environmental protection. To build new defences against a changing climate. To help us prosecute those responsible after the fact, if they will not accept responsibilities before it.

[...] Two efforts, building a clean economy and rebuilding our natural defences, are clearly underway. But they can be kick-started by a new consensus on climate action. So we should continue to pursue a strong global agreement on climate change in Peru this year and in Paris next year. For the best part of a decade UN climate negotiations have been stuck in a rut, with countries hiding behind labels and few showing leadership. A comprehensive deal will require developed and developing nations alike to abandon their comfortable entrenched positions and have the courage to find common ground. Ambitious countries should continue to work together and bring along those who are falling behind.


This is an edited excerpt of the filmed session, the full version of which can be viewed at: http://tinyurl.com/IBA-climatejustice