Pub Date : 2019-12-11DOI: 10.1163/18786561-00904003
B. Mayer
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Pub Date : 2019-12-11DOI: 10.1163/18786561-00904002
Thomas Leclerc
The search for a global market-based measure to reduce greenhouse gas emissions from international civil aviation has faced legal obstacles. One of these is linked to the basis of such a measure: the polluter pays principle. The application of the principle in the aviation legal regime has resulted in a conflict of norms. As a solution, the International Civil Aviation Organization, in 2016, adopted a market-based measure in the form of the Carbon Offsetting and Reduction Scheme for International Aviation (corsia). This article will address the following two questions: By adopting corsia, and by negotiating its implementation, has icao produced a successful integration of the polluter pays principle in a sectoral legal regime of norms and institutions? If yes, could icao’s success provide arguments for a sectoral application of the polluter pays principle more broadly in public international law?
{"title":"A Sectoral Application of the Polluter Pays Principle: Lessons Learned from the Aviation Sector","authors":"Thomas Leclerc","doi":"10.1163/18786561-00904002","DOIUrl":"https://doi.org/10.1163/18786561-00904002","url":null,"abstract":"The search for a global market-based measure to reduce greenhouse gas emissions from international civil aviation has faced legal obstacles. One of these is linked to the basis of such a measure: the polluter pays principle. The application of the principle in the aviation legal regime has resulted in a conflict of norms. As a solution, the International Civil Aviation Organization, in 2016, adopted a market-based measure in the form of the Carbon Offsetting and Reduction Scheme for International Aviation (corsia). This article will address the following two questions: By adopting corsia, and by negotiating its implementation, has icao produced a successful integration of the polluter pays principle in a sectoral legal regime of norms and institutions? If yes, could icao’s success provide arguments for a sectoral application of the polluter pays principle more broadly in public international law?","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00904002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43829801","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 : 2019-06-26DOI: 10.1163/18786561-00903002
John H. Knox
This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.
{"title":"Bringing Human Rights to Bear on Climate Change","authors":"John H. Knox","doi":"10.1163/18786561-00903002","DOIUrl":"https://doi.org/10.1163/18786561-00903002","url":null,"abstract":"This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43527106","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 : 2019-06-26DOI: 10.1163/18786561-00903003
L. Rajamani
In the wake of the disappointing outcome of cop 24/cma 3.1 in relation to human rights, this article asks whether the Paris Agreement’s preambular recital on human rights is the outer limit of what the regime can countenance, as the text appears to suggest, or whether it is a hook for the gradual mainstreaming and expansion of human rights protections in the climate regime, as many human rights advocates hope. To address this question, the article explores the contest over the manner and extent to which human rights law applies in the climate change regime, as well as the context in which it is set in relation to the evolution of the climate regime from a prescriptive to a facilitative regime. The article concludes that procedural rights and commitments, which leave considerable discretion to states in relation to outcomes, slot neatly into the Paris Agreement’s architecture, and will likely be progressively mainstreamed and expanded. However, a significant expansion of substantive human rights protections in the climate regime will need to await its moment.
{"title":"Integrating Human Rights in the Paris Climate Architecture: Contest, Context, and Consequence","authors":"L. Rajamani","doi":"10.1163/18786561-00903003","DOIUrl":"https://doi.org/10.1163/18786561-00903003","url":null,"abstract":"In the wake of the disappointing outcome of cop 24/cma 3.1 in relation to human rights, this article asks whether the Paris Agreement’s preambular recital on human rights is the outer limit of what the regime can countenance, as the text appears to suggest, or whether it is a hook for the gradual mainstreaming and expansion of human rights protections in the climate regime, as many human rights advocates hope. To address this question, the article explores the contest over the manner and extent to which human rights law applies in the climate change regime, as well as the context in which it is set in relation to the evolution of the climate regime from a prescriptive to a facilitative regime. The article concludes that procedural rights and commitments, which leave considerable discretion to states in relation to outcomes, slot neatly into the Paris Agreement’s architecture, and will likely be progressively mainstreamed and expanded. However, a significant expansion of substantive human rights protections in the climate regime will need to await its moment.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42498543","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 : 2019-06-26DOI: 10.1163/18786561-00903005
M. Wewerinke‐Singh
The right to a remedy is central to a human rights approach to climate change. However, a range of obstacles inhibit access to justice for victims of human rights violations caused by climate change. This article considers two elements of the right to a remedy: access to justice and substantive redress. In relation to access to justice, it considers the potential of domestic courts, as well as regional and international bodies, to offer redress for human rights violations caused by climate change. In relation to substantive redress, it examines international jurisprudence on remedies and discusses its applicability in the context of climate change. Together, these discussions provide an insight into the obstacles to justice for human rights violations caused by climate change and the ways in which these may be overcome.
{"title":"Remedies for Human Rights Violations Caused by Climate Change","authors":"M. Wewerinke‐Singh","doi":"10.1163/18786561-00903005","DOIUrl":"https://doi.org/10.1163/18786561-00903005","url":null,"abstract":"The right to a remedy is central to a human rights approach to climate change. However, a range of obstacles inhibit access to justice for victims of human rights violations caused by climate change. This article considers two elements of the right to a remedy: access to justice and substantive redress. In relation to access to justice, it considers the potential of domestic courts, as well as regional and international bodies, to offer redress for human rights violations caused by climate change. In relation to substantive redress, it examines international jurisprudence on remedies and discusses its applicability in the context of climate change. Together, these discussions provide an insight into the obstacles to justice for human rights violations caused by climate change and the ways in which these may be overcome.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45804945","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 : 2019-06-26DOI: 10.1163/18786561-00903006
A. Savaresi, Juan Auz
The adoption of the Paris Agreement has prompted a flurry of climate change litigation, both to redress the impacts of climate change and to put pressure on state and non-state actors to adopt more ambitious action to tackle climate change. The use of human rights law as a gap-filler to provide remedies where other areas of the law do not is not new, especially in the environmental context. It is therefore not a surprise that human rights arguments are increasingly being made, and human rights remedies increasingly being sought, in climate change litigation. While relatively few cases have been argued on human rights grounds so far, the trend is continuing and accelerating, with some striking results. This article takes stock of human rights arguments made in climate change litigation to date to gauge what they reveal about the evolving relationship between human rights and climate change law—and about possible future developments.
{"title":"Climate Change Litigation and Human Rights: Pushing the Boundaries","authors":"A. Savaresi, Juan Auz","doi":"10.1163/18786561-00903006","DOIUrl":"https://doi.org/10.1163/18786561-00903006","url":null,"abstract":"The adoption of the Paris Agreement has prompted a flurry of climate change litigation, both to redress the impacts of climate change and to put pressure on state and non-state actors to adopt more ambitious action to tackle climate change. The use of human rights law as a gap-filler to provide remedies where other areas of the law do not is not new, especially in the environmental context. It is therefore not a surprise that human rights arguments are increasingly being made, and human rights remedies increasingly being sought, in climate change litigation. While relatively few cases have been argued on human rights grounds so far, the trend is continuing and accelerating, with some striking results. This article takes stock of human rights arguments made in climate change litigation to date to gauge what they reveal about the evolving relationship between human rights and climate change law—and about possible future developments.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44618549","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 : 2019-06-26DOI: 10.1163/18786561-00903001
A. Savaresi, Joanne Scott
{"title":"Implementing the Paris Agreement: Lessons from the Global Human Rights Regime","authors":"A. Savaresi, Joanne Scott","doi":"10.1163/18786561-00903001","DOIUrl":"https://doi.org/10.1163/18786561-00903001","url":null,"abstract":"","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42949528","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 : 2019-06-01DOI: 10.1163/18786561-00903004
Sébastien Duyck
The adoption of the Paris Agreement in 2015 constituted an unprecedented step in the recognition by states of the importance of ensuring that their action on the climate is informed by human rights: for the first time a global environmental legal instrument referred explicitly to human rights. However, whether this provision will contribute to the shaping of climate policies depends significantly on the extent to which it is integrated into further guidance regarding the implementation of the Agreement. The adoption by states of guidance on most aspects of the Paris Agreement, at cop 24/cma1.3, in December 2018, is a litmus test on whether the implementation of the Agreement is likely to reflect a higher level of integration of human rights concerns into climate governance. Having noted the absence of explicit reference to human rights in the guidelines, this article reviews key aspects of the guidelines from the perspective of principles related to human rights, such as public participation, gender equality, and respect for the rights and knowledge of indigenous peoples. This review includes an analysis of the final provisions in key chapters of the guidelines. It is informed by the positions put forward by countries throughout the drafting process as well as by the evolution of negotiating texts prior to the finalization of the guidelines. The review finds that cop 24/cma1.3 failed, for the most part, to uphold the principles laid out in the preamble to the Paris Agreement, particularly in relation to human rights; the guidelines make only a few references to human-rights-related principles.
{"title":"Delivering on the Paris Promises? Review of the Paris Agreement’s Implementing Guidelines from a Human Rights Perspective","authors":"Sébastien Duyck","doi":"10.1163/18786561-00903004","DOIUrl":"https://doi.org/10.1163/18786561-00903004","url":null,"abstract":"The adoption of the Paris Agreement in 2015 constituted an unprecedented step in the recognition by states of the importance of ensuring that their action on the climate is informed by human rights: for the first time a global environmental legal instrument referred explicitly to human rights. However, whether this provision will contribute to the shaping of climate policies depends significantly on the extent to which it is integrated into further guidance regarding the implementation of the Agreement. The adoption by states of guidance on most aspects of the Paris Agreement, at cop 24/cma1.3, in December 2018, is a litmus test on whether the implementation of the Agreement is likely to reflect a higher level of integration of human rights concerns into climate governance. Having noted the absence of explicit reference to human rights in the guidelines, this article reviews key aspects of the guidelines from the perspective of principles related to human rights, such as public participation, gender equality, and respect for the rights and knowledge of indigenous peoples. This review includes an analysis of the final provisions in key chapters of the guidelines. It is informed by the positions put forward by countries throughout the drafting process as well as by the evolution of negotiating texts prior to the finalization of the guidelines. The review finds that cop 24/cma1.3 failed, for the most part, to uphold the principles laid out in the preamble to the Paris Agreement, particularly in relation to human rights; the guidelines make only a few references to human-rights-related principles.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00903004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41619467","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 : 2019-04-27DOI: 10.1163/18786561-00901007
S. Andresen
The aim of this article is to assess and explain the effectiveness of the international climate regime in a problem-solving perspective, with a focus on mitigation. As CO2 emissions have increased by more than 60 per cent since the start of the climate negotiations, effectiveness is exceedingly low. In explaining the performance of the regime, the main focus is on its problem-solving ability, defined as a function of power, leadership, and institutional design. ‘Negative’ power and a lack of leadership constitute important reasons for low effectiveness. In this broader perspective, the role of institutional design, exemplified by the Paris Agreement and its Rulebook, is fairly modest, and its significance should not be exaggerated. The Agreement and Rulebook score high in terms of ambition, but whether the rules will ever realize those ambitions remains to be seen. Domestic interests and priorities of the most important emitting countries will be decisive in this regard.
{"title":"The Paris Agreement and its Rulebook in a Problem-Solving Perspective","authors":"S. Andresen","doi":"10.1163/18786561-00901007","DOIUrl":"https://doi.org/10.1163/18786561-00901007","url":null,"abstract":"The aim of this article is to assess and explain the effectiveness of the international climate regime in a problem-solving perspective, with a focus on mitigation. As CO2 emissions have increased by more than 60 per cent since the start of the climate negotiations, effectiveness is exceedingly low. In explaining the performance of the regime, the main focus is on its problem-solving ability, defined as a function of power, leadership, and institutional design. ‘Negative’ power and a lack of leadership constitute important reasons for low effectiveness. In this broader perspective, the role of institutional design, exemplified by the Paris Agreement and its Rulebook, is fairly modest, and its significance should not be exaggerated. The Agreement and Rulebook score high in terms of ambition, but whether the rules will ever realize those ambitions remains to be seen. Domestic interests and priorities of the most important emitting countries will be decisive in this regard.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00901007","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47439599","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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