Pub Date : 2023-10-17DOI: 10.1163/18786561-bja10043
Roanna McClelland
Abstract Climate change presents a risk to drinking water, water supply for industry, energy, and agriculture, and to water-related ecosystems broadly. Parties to the unfccc focused attention on water issues in the 2022 Sharm el-Sheikh Implementation Plan of cop 27, recognizing the critical role of ‘protecting, conserving and restoring water systems and water-related ecosystems in delivering climate adaptation benefits and co-benefits’ and urging the integration of water considerations into adaptation efforts. At the same time, water norms are emerging around rivers and bodies of water, prompting a radical rethinking of the way we manage freshwater. This commentary examines an evolving transnational water norm – rights or personhood for rivers – and considers the limits and possibilities of this norm in a climate change context. Drawing on case law in domestic jurisdictions, it shows that recognizing the limits and possibilities of emerging transnational water norms is a crucial part of the climate-water nexus.
{"title":"Rights of Rivers in a Changing Climate","authors":"Roanna McClelland","doi":"10.1163/18786561-bja10043","DOIUrl":"https://doi.org/10.1163/18786561-bja10043","url":null,"abstract":"Abstract Climate change presents a risk to drinking water, water supply for industry, energy, and agriculture, and to water-related ecosystems broadly. Parties to the unfccc focused attention on water issues in the 2022 Sharm el-Sheikh Implementation Plan of cop 27, recognizing the critical role of ‘protecting, conserving and restoring water systems and water-related ecosystems in delivering climate adaptation benefits and co-benefits’ and urging the integration of water considerations into adaptation efforts. At the same time, water norms are emerging around rivers and bodies of water, prompting a radical rethinking of the way we manage freshwater. This commentary examines an evolving transnational water norm – rights or personhood for rivers – and considers the limits and possibilities of this norm in a climate change context. Drawing on case law in domestic jurisdictions, it shows that recognizing the limits and possibilities of emerging transnational water norms is a crucial part of the climate-water nexus.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136038207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-17DOI: 10.1163/18786561-bja10045
Rebecca McMenamin
Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj ’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.
{"title":"Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies","authors":"Rebecca McMenamin","doi":"10.1163/18786561-bja10045","DOIUrl":"https://doi.org/10.1163/18786561-bja10045","url":null,"abstract":"Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj ’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"184 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136038209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-17DOI: 10.1163/18786561-bja10046
Margaret A. Young, Markus W. Gehring
{"title":"The Climate Regime and Other Areas of Law","authors":"Margaret A. Young, Markus W. Gehring","doi":"10.1163/18786561-bja10046","DOIUrl":"https://doi.org/10.1163/18786561-bja10046","url":null,"abstract":"","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136038208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-17DOI: 10.1163/18786561-bja10044
Ella Vines
Abstract This commentary assesses legal constraints on coal-mining in Australia in the context of developments in the climate regime. There is a growing global consensus that unabated coal-power must be phased down, yet executive branches of government at the national and subnational levels in Australia continue to approve new coal mines. This commentary looks to litigation that has challenged the approval of new coal mines on climate change grounds. I analyse how the Paris Agreement is being used in these claims. The Agreement provides background and context to the climate impacts of coal use in several cases. However, in a few cases, decisions to refuse coal mines are underpinned by substantive engagement with the Agreement’s global warming limitation goals. These refusals are significant in an Australian legal context that is otherwise weighted in favour of coal mining.
{"title":"Legal Constraints on Australian Coal Mining: The Role of the Paris Agreement","authors":"Ella Vines","doi":"10.1163/18786561-bja10044","DOIUrl":"https://doi.org/10.1163/18786561-bja10044","url":null,"abstract":"Abstract This commentary assesses legal constraints on coal-mining in Australia in the context of developments in the climate regime. There is a growing global consensus that unabated coal-power must be phased down, yet executive branches of government at the national and subnational levels in Australia continue to approve new coal mines. This commentary looks to litigation that has challenged the approval of new coal mines on climate change grounds. I analyse how the Paris Agreement is being used in these claims. The Agreement provides background and context to the climate impacts of coal use in several cases. However, in a few cases, decisions to refuse coal mines are underpinned by substantive engagement with the Agreement’s global warming limitation goals. These refusals are significant in an Australian legal context that is otherwise weighted in favour of coal mining.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"244 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136038370","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-15DOI: 10.1163/18786561-13020001
Alexander Zahar, Laely Nurhidayah
Abstract Agricultural regulation in Indonesia is almost entirely focused on adaptation and food security. Mitigation of emissions from the sector is not presented as an obligation in the country’s body of agricultural law. This situation, which emphasizes autarky, does not facilitate a strong agricultural mitigation policy in the country; and, in fact, Indonesia’s policies and planned actions on greenhouse-gas-emission reduction in agriculture are narrow, vague, and lacking in ambition. The emphatic adaptation focus of Indonesia’s body of agricultural regulation may reflect entrenched values about the role of agriculture in society. An alternative explanation is that the regulatory emphasis on adaptation is an instance of regulatory inertia, sustained by a tradition of agricultural protectionism that deflects risky reforms. Inertia is problematic in itself, as it closes off the sector to innovation. But inertia is not as serious as a values-based resistance in the country to the mitigation of greenhouse gas emissions from agriculture. A government’s mandate in a democratic society to act ambitiously on climate change, in a climate-treaty context that demands little more than “national determination” of ambition, must necessarily be obtained from, in large part, those most directly affected by a regulatory change – in this case, farmers. An inquiry that seeks to elicit their opinion in this respect is overdue. A survey of farmers’ views on their willingness to support mitigation of emissions from their sector would add to our understanding of the risks that our slow response to climate change entails, for it is a response that presumes that a significant mitigation contribution will eventually be made by each and every economic sector, including agriculture. If the issue is mere inertia, the outlook is more optimistic than if the issue is active resistance. Because agriculture is still a closed sector, not only in developing but also in developed countries, this article contributes to our understanding of research priorities for climate law around the world. The article is the first in a series this journal will publish under our co-editorship on climate change law in Indonesia.
{"title":"Legal Constraints on Policymaking for the Reduction of Greenhouse Gas Emissions from Agriculture in Indonesia","authors":"Alexander Zahar, Laely Nurhidayah","doi":"10.1163/18786561-13020001","DOIUrl":"https://doi.org/10.1163/18786561-13020001","url":null,"abstract":"Abstract Agricultural regulation in Indonesia is almost entirely focused on adaptation and food security. Mitigation of emissions from the sector is not presented as an obligation in the country’s body of agricultural law. This situation, which emphasizes autarky, does not facilitate a strong agricultural mitigation policy in the country; and, in fact, Indonesia’s policies and planned actions on greenhouse-gas-emission reduction in agriculture are narrow, vague, and lacking in ambition. The emphatic adaptation focus of Indonesia’s body of agricultural regulation may reflect entrenched values about the role of agriculture in society. An alternative explanation is that the regulatory emphasis on adaptation is an instance of regulatory inertia, sustained by a tradition of agricultural protectionism that deflects risky reforms. Inertia is problematic in itself, as it closes off the sector to innovation. But inertia is not as serious as a values-based resistance in the country to the mitigation of greenhouse gas emissions from agriculture. A government’s mandate in a democratic society to act ambitiously on climate change, in a climate-treaty context that demands little more than “national determination” of ambition, must necessarily be obtained from, in large part, those most directly affected by a regulatory change – in this case, farmers. An inquiry that seeks to elicit their opinion in this respect is overdue. A survey of farmers’ views on their willingness to support mitigation of emissions from their sector would add to our understanding of the risks that our slow response to climate change entails, for it is a response that presumes that a significant mitigation contribution will eventually be made by each and every economic sector, including agriculture. If the issue is mere inertia, the outlook is more optimistic than if the issue is active resistance. Because agriculture is still a closed sector, not only in developing but also in developed countries, this article contributes to our understanding of research priorities for climate law around the world. The article is the first in a series this journal will publish under our co-editorship on climate change law in Indonesia.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135485539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-14DOI: 10.1163/18786561-bja10041
Sek Lun Cheong
The concept of human rights due diligence (hrdd) of businesses under the United Nations Guiding Principles on Business and Human Rights (ungps) is an important milestone in the standards of business conduct. The responsibility of businesses to conduct hrdd is focused on the human rights risks to, or impacts on, communities from business activities. Recent developments highlight the increasing convergence and integration between the ungps’ framework of hrdd and climate change. This synergy contrasts starkly with the state of the international investment regime, which has traditionally been characterized as operating in isolation from other fields in international law, notably human rights and environmental law. Given that international investment law is now increasingly featuring the human rights responsibility of foreign investors – in particular with respect to the ungps’ framework of hrdd or its public-interest aspect – the intersection of human rights and international investment law serves as a potential pathway to advancing investor responsibility for the climate-related harm that investment activities may cause.
{"title":"Human Rights Due Diligence and the Climate Change Dimension: Implications for Investor Responsibility in International Investment Law","authors":"Sek Lun Cheong","doi":"10.1163/18786561-bja10041","DOIUrl":"https://doi.org/10.1163/18786561-bja10041","url":null,"abstract":"\u0000The concept of human rights due diligence (hrdd) of businesses under the United Nations Guiding Principles on Business and Human Rights (ungps) is an important milestone in the standards of business conduct. The responsibility of businesses to conduct hrdd is focused on the human rights risks to, or impacts on, communities from business activities. Recent developments highlight the increasing convergence and integration between the ungps’ framework of hrdd and climate change. This synergy contrasts starkly with the state of the international investment regime, which has traditionally been characterized as operating in isolation from other fields in international law, notably human rights and environmental law. Given that international investment law is now increasingly featuring the human rights responsibility of foreign investors – in particular with respect to the ungps’ framework of hrdd or its public-interest aspect – the intersection of human rights and international investment law serves as a potential pathway to advancing investor responsibility for the climate-related harm that investment activities may cause.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49345848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-08-07DOI: 10.1163/18786561-bja10040
A. Mills
The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. Given the importance of the planning system for a transition to a more sustainable future, including seeking to reduce and avoid greenhouse gas emissions, the nppf is a highly significant document. The nppf refers to the ideas of sustainable development and intergenerational equity, important in international environmental law. However, intergenerational equity has scarcely featured in the many legal challenges regarding the interpretation of the nppf. Having considered the extent to which the nppf achieves the aspirations set out in the instruments to which it refers, this article suggests potential changes to policy so as to provide greater support to the aim of reducing greenhouse gas emissions.
{"title":"Meeting Lofty Aspirations? English National Planning Policy, International Law, and Climate Change","authors":"A. Mills","doi":"10.1163/18786561-bja10040","DOIUrl":"https://doi.org/10.1163/18786561-bja10040","url":null,"abstract":"\u0000The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. Given the importance of the planning system for a transition to a more sustainable future, including seeking to reduce and avoid greenhouse gas emissions, the nppf is a highly significant document. The nppf refers to the ideas of sustainable development and intergenerational equity, important in international environmental law. However, intergenerational equity has scarcely featured in the many legal challenges regarding the interpretation of the nppf. Having considered the extent to which the nppf achieves the aspirations set out in the instruments to which it refers, this article suggests potential changes to policy so as to provide greater support to the aim of reducing greenhouse gas emissions.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44704086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-06DOI: 10.1163/18786561-bja10039
Adebayo Majekolagbe, S. Seck, David V. Wright
In this tribute to our friend and colleague, Dr Meinhard Doelle, we bring together three strands of work that we each undertook in collaboration with Meinhard: social cost of carbon, climate change loss and damage, and climate impact assessment. We first introduce social cost of carbon estimates as a form of carbon valuation used in decision-making processes in Canada and the United States. We then introduce legal approaches to climate change loss and damage and related challenges of economic and non-economic valuation. After contemplating the potential for social cost of carbon to contribute to valuation of loss and damage, and vice versa, we examine the integration of climate change in impact assessment law. Ultimately, we tentatively consider whether application of the social cost of carbon for the valuation of loss and damage in impact assessment processes might help to centre justice concerns. In conclusion, we pose questions for future research.
{"title":"Exploring the Application of the Social Cost of Carbon in Loss-and-Damage and Impact Assessment","authors":"Adebayo Majekolagbe, S. Seck, David V. Wright","doi":"10.1163/18786561-bja10039","DOIUrl":"https://doi.org/10.1163/18786561-bja10039","url":null,"abstract":"\u0000In this tribute to our friend and colleague, Dr Meinhard Doelle, we bring together three strands of work that we each undertook in collaboration with Meinhard: social cost of carbon, climate change loss and damage, and climate impact assessment. We first introduce social cost of carbon estimates as a form of carbon valuation used in decision-making processes in Canada and the United States. We then introduce legal approaches to climate change loss and damage and related challenges of economic and non-economic valuation. After contemplating the potential for social cost of carbon to contribute to valuation of loss and damage, and vice versa, we examine the integration of climate change in impact assessment law. Ultimately, we tentatively consider whether application of the social cost of carbon for the valuation of loss and damage in impact assessment processes might help to centre justice concerns. In conclusion, we pose questions for future research.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44726876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.1163/18786561-bja10037
B. Richardson, Sarah Castles-Lynch
The ‘lawscape’ (landscape) of public participation in environmental decision-making in Australia is evolving as climate change has become society’s dominant environmental concern. The traditional modes for citizens to express their concerns through administrative and legislative processes are losing their legitimacy and efficacy. The growth of civil disobedience by climate protesters is a response to this deficit. Rather than viewing such dissent as purely a phenomenon ‘outside’ the legal system, in defiance of the law, climate protest can also plausibly be understood as a shift in the mode of public participation within the legal system as discussions about climate science and action extend to new forums, especially courtrooms hearing criminal prosecutions against climate activists.
{"title":"Trying to Express Climate Concerns through Environmental Law? The Changing Lawscape of Public Participation","authors":"B. Richardson, Sarah Castles-Lynch","doi":"10.1163/18786561-bja10037","DOIUrl":"https://doi.org/10.1163/18786561-bja10037","url":null,"abstract":"\u0000The ‘lawscape’ (landscape) of public participation in environmental decision-making in Australia is evolving as climate change has become society’s dominant environmental concern. The traditional modes for citizens to express their concerns through administrative and legislative processes are losing their legitimacy and efficacy. The growth of civil disobedience by climate protesters is a response to this deficit. Rather than viewing such dissent as purely a phenomenon ‘outside’ the legal system, in defiance of the law, climate protest can also plausibly be understood as a shift in the mode of public participation within the legal system as discussions about climate science and action extend to new forums, especially courtrooms hearing criminal prosecutions against climate activists.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49097453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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