climate change justice and human rights report (1)

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Achieving Justiceand Human Rights

in an Era ofClimate Disruption

International Bar AssociationClimate Change Justice and Human Rights Task Force Report


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International Bar Association4th Floor, 10 St Bride Street

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CLIMATE CHANGE JUSTICEAND HUMAN RIGHTS TASK FORCE CO-CHAIRS

David Estrin and Baroness Helena Kennedy, QC

IBA LEADERSHIPPresident Michael Reynolds

Vice President David W RivkinSecretary-General Martin ŠolcExecutive Director Mark Ellis

EDITORIAL AND DESIGNCreative Director Tim Licence

Content Editor Hannah CaddickTypesetter Will Fox

Indexer Pauline Fothergill


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Contents

Task Force Members xiiAcknowledgements xiv

Foreword by Mary Robinson, UN Secretary-General’sSpecial Envoy for Climate Change xvii

Glossary of Acronyms xix

Executive Summary and Recommendations 1Recommendations 8

Action Matrix 25

Introduction 33

Chapter 1. Understanding Climate Change and ClimateChange Justice 37

1.1 The science of climate change 38

1.2 The impact of climate change on natural resources 40

1.3 The impact on individuals, communities and states 411.3.1 Individuals 42

1.3.2 Communities and cultures 43

1.3.3 States 43

1.4 The UN Framework Convention on Climate Change 44

1.5 The importance of climate change justice 45

1.6 Justice implications of mitigation and adaptation measures 481.6.1 Justice implications of mitigation 48

1.6.2 Justice implications of adaptation 51

1.7 Moving from understanding to action 52


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Chapter 2. Current Legal Challenges in ClimateChange Justice 61

2.1 Environmental law regimes 62 2.1.1 International environmental law framework 62

2.1.2 Constraints of international environmental treaties 63

2.1.3 Constraints of customary international law 65

2.2 Human rights law regimes 66 2.2.1 Framework of human rights treaties and customary

international law 66

2.2.2 Constraints of human rights law 67

2.3 Trade law regimes 69 2.3.1 Framework of international trade law 69

(i) WTO non-discrimination disciplines under GATT and the TBT 71

(ii) Process and production methods (PPMs) under WTO Law 72

(iii) General exceptions to WTO obligations 73

(iv) Constraints of Subsidies and Countervailing Measures Agreement 74

(v) Summary: constraints of WTO Law 75

2.3.2 Framework of regional trade and bilateral investment law 75

2.4 State responsibility and climate change liability 76 2.4.1 Domestic climate change litigation 76

(i) United States 77

Federal regulatory litigation 77

Public trust litigation 78

Public nuisance litigation 78

(ii) Canada 78

(iii) South America 79

(iv) Australia 80

(v) Asia 81

(vi) Europe 82

(vii) Africa and the Middle East 83


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vii

2.4.2 State responsibility in international law 84

2.4.3 Constraints of the International Court of Justice 84

2.4.4 Constraints of an International Court for the Environment 85 2.5 International law on climate change adaptation 87

2.5.1 Framework of international law relating to climatechange adaption 87

2.5.2 Constraints for climate-change related migration 88

2.5.3 Constraints for food security 92

2.5.4 Constraints on technology transfer and accessto information 94

Chapter 3. Enhancing Legal Regimes to Achieve ClimateChange Justice 115

3.1 Legal measures 1163.1.1 Climate change justice measures for individuals

and communities 117

(i) What rights are available for individuals and communities? 117

(ii) Clarication of human rights obligations relating toclimate change 118

‘Greening’ existing human rights obligations 119

Developing a minimum core of rights and duties 120

Recognising a freestanding right to a safe, clean, healthy andsustainable environment 124

Adopting optional protocols to incorporate a free-standing rightinto human rights treaties 125

Adopting optional protocols to enhance access to justice 125

Strengthening regional human rights bodies 126

(iii) Model Statute on Legal Remedies for Climate Change 127

Enhancing litigation rights and remedies 127

Substantive and procedural issues 128Actionable rights 128

Standing 129

Contents


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Causation 130

Knowledge 132

Relief 133

Liability 134

Interrelationship of claims 135

Limitation periods 135

Disclosure and discovery 135

Costs awards 136

Jurisdictional reach 136

3.1.2 Climate change justice measures for states: internationaldispute resolution 137

(i) What rights are available for states? 137

(ii) Applicable fora to determine international claims against states 138

(iii) The Permanent Court of Arbitration 139

PCA reach and expertise in environmental litigation 140

Drawing on the PCA in existing treaty frameworks 142

Adoption of the PCA model arbitration clauses 144

(iv) Other international arbitral fora 144

(v) Transparency and precedent in international arbitration 145

(vi) International Tribunal for the Environment 145

3.1.3 Climate change justice and corporate responsibility 147

(i) Implementation of UN Framework on Corporate Responsibility

to Respect Human Rights in the context of climate change 148(ii) Reporting by corporations 149

Incorporation of ISO technical specication 149

Promoting access to information through mandatory requirements 149

Institutional monitoring of corporate actors 151

(iii) Regulation of corporations, at home and abroad 152

(iv) Sector-specic initiatives: nance and banking 153


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ixContents

3.2 Capacity building and transparency 1553.2.1 Knowledge and skills transfer 155

(i) IBA and IBAHRI climate change initiatives and network ofclimate change counsel 155

(ii) Increase technical assistance in UPR Reports 156

(iii) Use UPR Reports to highlight climate change justice issues 157

3.2.2 Transparency 158

(i) The Aarhus Convention 159

(ii) Encouraging the adoption of international and regional

instruments guaranteeing environmental procedural rights 160(iii) Enforcing the duty to promote the principles of transparency

in international negotiation 161

(iv) Environmental impact assessments 161

(v) Transparency in international arbitrations 162

3.3 Institutional measures 1633.3.1 WTO reforms 163

(i) Enhancing the WTO’s Committee on Trade and Environment 163(ii) Greening the WTO disciplines: reconciling existing provisions

with climate change measures 164

Appellate Body jurisprudence 165

Clarication of the scope of Article XX exceptions 166

(iii) Amending the WTO agreements 166

Clarify the denition of a subsidy and facilitate the procedure forchallenging subsidies 167

Establish a category of ‘non-actionable’ subsidies 167

Adopt an agreement on climate change, the environment orsustainable energy 167

3.3.2 Bilateral and regional trade agreements 168

(i) Clauses supporting environmental and non-derogation measures 169

(ii) Environmental chapters and side agreements 170

(iii) Supporting existing obligations under multilateralenvironmental agreements 171


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3.3.3 UNFCCC negotiations 171

(i) Endorsing the UNFCCC process and a 2015 agreement 171

(ii) Tracking states’ climate change prevention and mitigationcommitments 172

(iii) Expanding aid for domestic migration adaptation programmes 173

(iv) Improving the UNFCCC process: REDD+ and the CDM 173

(v) Regulation of global fossil fuel reserves and the cumulativecarbon budget 175

3.3.4 Multilateral adaptation measures 176

(i) Increased regulation of emerging carbon engineeringtechnologies 176

(ii) Engaging UN expertise on challenges posed by rising sea levels 179

(iii) IBA Working Group on the Legal Aspects of ClimateChange Adaptation 180

Climate change-related migration 180

Food security 183

Technology transfer 185

Index 209


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xiContents


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IBA Climate Change Justice and Human RightsTask Force Members

Co-Chairs

David Estrin Chair IBA Environment, Health and Safety Law Committee; Partner/Certie Environmental Law Specialist, Gowling Laeur Henderson, Toronto; Visiting Professor, OHall Law School; Senior Research Fellow, Centre for International Governance InnovationInternational Law Research Program Baroness Helena Kennedy QC House of Lords; Co-Chair International Bar Association’sHuman Rights Institute (IBAHRI); Chair, JUSTICE, UK; Doughty Street Chambers, LondPrincipal, Manseld College, Oxford

Vice-Chairs

Catherine M Amirfar Partner, Debevoise & Plimpton LLP, New York; IBA ArbitrationCommittee IBAArb40 Co-Chair; Vice-President & Executive Committee member, Americof the International Law Association Conor Linehan Regional Representative Europe, IBA Environment, Health and Safety LawCommittee; Partner and Head of Environmental Law, William Fry, Dublin; Irish Governmeappointee to the International Panel of Environmental Law Expert Arbitrators, PermanentCourt of Arbitration, The Hague. Adjunct Lecturer in Climate Change and Law, School of Trinity College, Dublin Roger R Martella, Jr Secretary, IBA Environment, Health and Safety Law Committee;Partner, environmental practice group, Sidley Austin LLP, Washington, DC; former GeneraCounsel, US Environmental Protection Agency; former Chair, American Bar Association,International Environmental Law Committee; editor, International Environmental Law: Th

Practitioner’s Guide to the Laws of the Planet

Academic Advisor

Stephen Humphreys, PhD Associate Professor of International Law, London School of Economics; editor, Human Rights and Climate Change (Cambridge University Press, 2009); formerly Research Director, International Council on Human Rights Policy, Geneva


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xiiiIBA Task Force Ofcers, Members, Advisors and Secretaries

Secretaries to the Task Force

Nwamaka Genevieve Ejebe Associate, Debevoise & Plimpton LLP (New York)

Nicola Leslie Associate, Debevoise & Plimpton LLP (London)Carolina Henriquez-Schmidt (former Secretary)

Task Force Members

Olanrewaju Fagbohun, PhD Director of Research, Nigerian Institute of Advanced LegalStudies & Director, Environmental Law Research Institute, Lagos, Nigeria Guy S Goodwin-Gill Senior Research Fellow, All Souls College, Oxford; Professor of

International Refugee Law; Barrister, Blackstone Chambers, Temple, London Tomoaki Ikenaga Partner, Anderson Mori & Tomotsune, TokyoKoh Kheng-Lian, PhD Emeritus Professor, Faculty of Law, National University of SingaporHonorary Director, Asia-Pacic Centre for Environmental Law; Chair, APCEL Specialist Gon Adaptation to Climate Change

Jolene Lin Associate Professor, Faculty of Law, The University of Hong Kong Stuart Pimm, PhD Doris Duke Chair of Conservation, Duke University, North Carolina, USA

Jane McAdam Scientia Professor of Law, Faculty of Law, University of New South Wales, AustrThe Honourable Justice Brian J Preston SC Chief Judge of Land and Environment Courtof New South Wales, Adjunct Professor of Sydney Law School, University of Sydney, Aus

Anne Ramberg Secretary General, Swedish Bar Association Catherine Redgwell Chichele Professor of Public International Law, University of Oxford; Fellow of All Souls College, Oxford; and Co-Director of the Oxford Geoengineering Progrthe Oxford Martin School Peter J Rees QC Thirty Nine Essex Street Chambers, London Dinah L Shelton Manatt/Ahn Professor of Law, George Washington University Law SchooWashington, DC; member and President 2010–2013, Inter-American Commission of HumaRights; editor, The Oxford Handbook of International Human Rights Law Gauthier van Thuyne Partner, head of Belgian and EU Environmental and RegulatoryLaw Group and co-head Human Rights Interest Group, Allen & Overy, Brussels; membeeditorial board, Business and Human Rights Review (BHHR)


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Acknowledgements

The concept for this Task Force report originated as the IBA’s response to the ‘New JusticeChallenge for the IBA’, proffered byMary Robinson , formerly President of Ireland andUnited Nations High Commissioner for Human Rights, at the IBA Annual Conference2012 in Dublin. There, Mary Robinson – who in 2014 became the UN Secretary-General’sSpecial Envoy for Climate Change – introduced the concept of climate justice andproposed that the IBA convene a working group to provide leadership in shaping theglobal response to climate change.Michael Reynolds , then newly elected IBA President, accepted the challenge, with the keensupport of the newly elected IBA Vice-President,David W Rivkin , and Michael Greene ,IBA Legal Practice Division (LPD) Chair. In early 2013Baroness Helena Kennedy QC ,Co-Chair of the International Bar Association’s Human Rights Institute (IBAHRI), andDavid Estrin , Chair of the IBA Environment, Health and Safety Law Committee, wereappointed as Task Force Co-Chairs, together with three Vice-Chairs:Catherine M Amirfar ;Conor Linehan and Roger R Martella, Jr .Task Force members were also appointed, comprised of prominent legal and humanrights experts, experienced legal practitioners and a senior environmental jurist. Theymade important contributions by providing guidance on key issues that the report

should address, and reviewing various components of report drafts in order to offercritiques and advice.In October 2013 the Task Force arranged a Showcase Session on Climate Change Justice and Human Rights at the IBA Annual Conference in Boston and invited leadingexperts on climate change law, diplomacy, and human rights to speak. This sessionalso provided an opportunity for IBA members to offer their advice on issues theTask Force report should address. The experts speaking at the Boston session were:Michael B Gerrard , Director, Center for Climate Change Law, Columbia Law School,

New York;Bianca Jagger , Founder and Chair, Bianca Jagger Human Rights Foundation,London; Koh Kheng-Lian , Emeritus Professor, Faculty of Law, National University ofSingapore;Professor John H Knox , UN Independent Expert on Human Rights and theEnvironment, Professor of International Law, Wake Forest University School of Law, Winston-Salem, North Carolina, USA; andSir Crispin Tickell , author ofClimate Changeand World Affairs , former President, Royal Geographic Society, adviser on climate changeto successive British Prime Ministers, diplomat, academic, London, England. Task ForceMembers offering comments at that session wereProfessor Olanrewaju Fagbohun andHonourable Justice Brian Preston . The lmed Showcase Session is available to watch at

www.ibanet.org/Conferences/boston_climatechange.aspx .


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xv Acknowledgements

The Task Force offers its profuse thanks to lawyersNwamaka Genevieve Ejebe andNicola Leslie of Debevoise & Plimpton LLP, current Secretaries to the Task Force, andCarolina Henriquez-Schmidt , former Secretary, for their dedication in producing thisReport. The Task Force would also like to thank Debevoise & Plimpton LLP for makingpro bono arrangements for these lawyers to devote their professional time and talentsto this project, as well as the time of Associates who assisted in researching and draftingthis Report: James Amler ; Morgan Davis ; Bernardo Becker Fontana ; Christopher Ford ;Corina Gugler ; Jing Kang ; Noelle Lyle ; Ciara Murphy ; Angus Ni ; and Peter Ross .The Task Force also thanks the following for their assistance in reviewing, commentingon, or drafting contributions to sections of the Report:Pablo Alliani (Alliani & Bruzzon,Buenos Aires);Lourdes Breuer (Berkemeyer, Asunción);Lina Pimentel Garcia (MattosFilho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo);Michael B Gerrard (Director, Centre for Climate Change Law, Columbia Law School, New York); SarahGrimmer (Senior Legal Counsel, Permanent Court of Arbitration. The Hague);Sébastien Jodoin (Yale School of Forestry and Environmental Studies, New Haven);Sarah Kieran (Mary Robinson Foundation – Climate Justice);Els Reynaers Kini (MV Kini,Mumbai); John H Knox (United Nations Independent Expert on Human Rights and the

Environment);Mary Robinson Foundation – Climate Justice ; Dr Constance McDermott (University of Oxford Environmental Change Institute, Oxford);Professor EmeritusShinya Murase (Chair, International Law Association Committee on Legal PrinciplesRelating to Climate Change); Angeles Murgier (Brons & Salas Abogados, Buenos Aires);Patricia Nuñez (Nuñez, Muñoz, Verdugo, Santiago); Joost Pauwelyn (GraduateInstitute of International and Development Studies);Lavanya Rajamani (Rapporteur,International Law Association Committee on Legal Principles Relating to ClimateChange); Ian Sampson (Shepstone & Wylie, Durban); Associate Professor Sara Seck (University of Western Ontario, Ontario);Tara Shine (Mary Robinson Foundation –Climate Justice);Henry Shue (University of Oxford, Oxford); Allison Silverman (Centrefor International Environmental Law, Washington DC); and José Antonio Urrutia (Urrutia & Cia, Santiago).The Task Force is grateful to lawyer Yuriko Kanematsu , of the Tokyo law rm Momo-o,Matsuo and Namba, for her valuable contribution in supervising the translation of theReport’s Executive Summary into Japanese.


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Achieving Justice and Human Rights in an Era of Climate Disruptionxvi


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xviiForeword


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Achieving Justice and Human Rights in an Era of Climate Disruptionxviii


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xixGlossary of Acronyms

Glossary of Acronyms

ACCC Aarhus Convention Compliance Committee

ADP Ad Hoc Working Group on the Durban Platform for Enhanced Action

APEC Asia-Pacic Economic Cooperation

ASEAN Association of Southeast Asian Nations

BITs bilateral investment treaties

CAF Cancun Adaptation Framework

CARIFORUMCaribbean Forum of African, Caribbean and Pacic States

CDM Clean Development Mechanism

CEC Commission for Environmental Cooperation

CEDAW Convention on the Elimination of all Forms of Discrimination against Women

CJEU Court of Justice of the European Union

CMP Governing Body of the Kyoto ProtocolCOP UNFCCC Conference of the Parties

CTE The WTO’s Committee on Trade and Environment

ECAs export credit agencies

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EGS environmental goods and services

EIA environmental impact assessment

EPA US Environmental Protection Agency

Espoo Convention on Environmental Impact Assessment in a Transboundary Context

EU ETS EU Emissions Trading Scheme

EU European UnionFAO Food and Agriculture Organization of the United Nations

FTA free trade agreement


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GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

HCAs Host Country Agreements

IACHR Inter-American Commission on Human Rights

IBA International Bar Association

IBAHRI International Bar Association’s Human Rights Institute

ICC International Chamber of Commerce’s International Court of Arbitration

ICCPR International Covenant on Civil and Political Rights

ICE International Court for the Environment ICEF International Court of the Environment Foundation

ICESCR International Covenant on Economic, Social and Cultural Rights

ICHRP International Council on Human Rights Policy

ICJ International Court of Justice

ICSID International Centre for Settlement of Investment Disputes

IFPRI International Food Policy Research Institute

ILA International Law Association

IMO International Maritime Organization

IPCC Intergovernmental Panel on Climate Change

ISO International Organization for Standardization

ITLOS International Tribunal on the Law of the Sea

LCIA London Court of International Arbitration

LDCs least-developed countries

MEAs multilateral environment agreements

NAAEC North American Agreement on Environmental Cooperation

NAFTA North American Free Trade Agreement

NAPAs national adaptation programmes of actionsNGO non-governmental organisation

OAU (Organization of African Unity ) Convention


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OHCHR Ofce of the High Commissioner for Human Rights

PCA Permanent Court of Arbitration

PPMs process and production methods

PRI Principles of Responsible Investment

REDD+ Reducing Emissions from Deforestation and Forest Degradation

RGGI US Regional Greenhouse Gas Initiative

RTA regional trade agreement

SCM Agreement on Subsidies and Countervailing Measures

SEA strategic environmental assessment TBT Agreement on Technical Barriers to Trade

TPP Trans-Pacic Partnership Agreement

TRIPS Trade-Related Aspects of Intellectual Property Rights

TTIP Transatlantic Trade and Investment Partnership

UN United Nations

UNCITRAL United Nations Commission on International Trade Law

UNCLOS United Nations Convention on the Law of the Sea

UNCTAD United Nations Conference on Trade and Development

UNDP United Nations Development Programme

UNECE United Nations Economic Commission for Europe

UNEP United Nations Environment Programme

UNFCCC United Nations Framework Convention on Climate Change

UNGA General Assembly of the United Nations

UNCHR United Nations Commission on Human Rights

UPR Universal Periodic Review

WTO World Trade Organization

Glossary of Acronyms


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Executive Summary, Recommendationsand Action Matrix


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Achieving Justice and Human Rights in an Era of Climate Disruption2

Global climate change is a dening challenge of our time. Dramatic alterations to theplanet’s climate system are already having an impact on the world’s inhabitants and its naturalenvironment. Extremes abound. In recent years, a number of countries have experienced the

hottest temperatures since records began. This summer, record or near-record temperatures were recorded throughout Central and Eastern Europe, North Africa, and Southeast Asia. An unprecedented heat wave struck Russia and parts of Europe in May 2014. Japanand Hong Kong each witnessed their hottest ever summers, while Canada and New Yorksuffered exceptionally freezing winters. The United States, Canada and Mexico are currentlyundergoing the worst droughts on record. The single largest storm ever to make landfall inrecorded history, Typhoon Haiyan, devastated the Philippines in late 2013.

These events, their causes and consequences, raise questions of justice and humanrights. Climate change affects everyone, but it disproportionately strikes those whohave contributed least to it and who are also, for a variety of reasons, least well placedto respond. By contrast, the main contributors to climate change – those with thelargest carbon footprints, living and working in the world’s wealthier regions – arealso, by virtue of their wealth and/or access to resources, most insulated from it. Thisfundamental justice concern is exacerbated by the fact that climate change will strainthe ability of many states, especially the poorest among them, to uphold their humanrights obligations. Climate change poses an effective obstacle to the continued progressof human rights, which translates directly into a worsening of the existing inequities that

afict a world already riven with inequality, poverty and conict. As the voice of the global legal profession, the International Bar Association (IBA)recognises the importance of being at the vanguard of the legal and institutional reformneeded to reduce the impacts of climate change and deal with its consequences. With thisin mind, in November 2012, Michael Reynolds, then incoming IBA President, launchedthe Task Force on Climate Change Justice and Human Rights (the ‘Task Force’) with theobjective of supporting the IBA in assessing the challenges to the current national andinternational legal regimes on climate change, with a focus on their justice implicationsand deciencies, and to make recommendations accordingly. The Task Force adopted

the following denition of climate change justice:‘To ensure communities, individuals and governments have substantive legal andprocedural rights relating to the enjoyment of a safe, clean, healthy and sustainableenvironment and the means to take or cause measures to be taken within their nationallegislative and judicial systems and, where necessary, at regional and internationallevels, to mitigate sources of climate change and provide for adaptation to its effectsin a manner that respects human rights.’

As dened, climate change justice or climate justice is a concept that recognises climate

change will disproportionately affect people who have less ability to prevent, adapt orotherwise respond to increasingly extreme weather events, rising sea levels and new


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3Executive Summary, Recommendations and Action Matrix

resource constraints. A climate-justice agenda embraces a conscious recognition of thedevelopment imbalances brought into relief by climate change. Climate justice seeks tocombine the climate change discussion with human rights in a way that is equitable for the

most climate-vulnerable groups. With this Report, the Task Force has endeavoured to present a critical comprehensivesurvey of existing international, regional and domestic legal frameworks relevant to climatechange, and identify, using a justice-centred perspective, opportunities for legal, regulatoryand institutional reforms at multilateral, state, corporate and individual levels to enhancemitigation and adaptation to climate change. By adopting a justice and human rights-centred approach, the IBA intends to shift the focus of much-needed reform from purelyeconomic and scientic considerations to the human rights and equity consequences ofclimate change. In doing so, the IBA hopes to advance equity and justice by listening tothe human rights concerns of the communities most vulnerable to climate change. TheReport reminds its audience that failure to address the challenges posed by climate change will have devastating consequences for hundreds of millions around the globe, in boththe industrialised and developing world, and that, in the drive to confront this potentiallyexistential threat to our civilisation, not a moment should be lost.

A summary of actionable Task Force recommendations for states, internationalorganisations, domestic legislative, executive and judicial bodies, corporations,communities and individuals is provided in the Action Matrix onpages 25–31.

The recommendations are designed to be practical, manageable and politically feasible.The Task Force presents this Report in a spirit of promoting governance and legalreform, with a view to assisting in global efforts to mitigate climate change and, wherethat fails, adapting to its effects. The Task Force calls upon world leaders, governments,policy-makers, human rights, judicial and other dispute resolution bodies, barassociations, corporate leaders, legal practitioners, businesses, NGOs and individualsto embrace and implement these recommendations, and urges continued engagementand discourse from all stakeholders to explore how enhancements to climate changelaw can be used to achieve climate change justice.

Chapter 1 – Understanding climate change and climate change justice At its broadest, climate change justice encapsulates rights and obligations spanninggenerations, across political entities, and implicates state, corporate and individualresponsibilities. More practically, as described recently by the Mary Robinson Foundation,climate justice ‘links human rights and development to achieve a human-centred approach,safeguarding the rights of the most vulnerable and sharing the burdens and benets ofclimate change and its resolution equitably and fairly.’ To translate such an aspiration intoconcrete recommendations requires that actions be grounded in the certainties of climatescience and the realities of international climate policy.


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This Report relies in particular upon the cumulative work of the IntergovernmentalPanel on Climate Change (IPCC), representing the consensus view of climate scientists andother experts. The IPCC warns in its most recent Fifth Assessment Report that warming of

the climate system is ‘unequivocal’ and that atmospheric concentrations of carbon dioxidehave increased to levels unprecedented in the past 800,000 years. Most notably, the IPCC hasconcluded that it is ‘extremely likely’ (ie, with a 95 to 100 per cent probability) that humaninuence has been the dominant cause of the warming since the mid-20th century.

Strategies to address climate change take two major forms. The rst strategy is mitigation,by which is meant measures to limit greenhouse gases (GHGs) either by reducing theirsources or by enhancing the planet’s capacity to absorb them (in, for example, forestsor oceans, also known as ‘carbon sinks’). The second strategy isadaptation , which is theadjustment of natural or human systems to a new or changing environment, to moderateharm or exploit benecial opportunities.

The global response to these dangers has to date largely been conducted under theauspices of the United Nations Framework Convention on Climate Change (UNFCCC) andits implementing mechanism, the Kyoto Protocol. Every year, States Parties to both treatiesmeet with a view to progressing negotiations, though success has proved famously elusive. Attime of writing, states are aiming to achieve a global agreement on mitigation and adaptationat the UNFCCC negotiations in Paris in late 2015.

The UNFCCC recognises the global climate as a ‘common concern of humankind’. Both

the UNFCCC and the Kyoto Protocol incorporate the principle of ‘common but differentiatedresponsibilities’ (CBDR) by which is meant that the Convention’s principal obligations, whilecommon to all parties, are also subject, pursuant to Article 4(1), to ‘specic national andregional development priorities, objectives and circumstances.’ The UNFCCC makes specicconcessions to the needs of developing and least developed countries under Article 4(7),taking ‘fully into account that economic and social development and poverty eradication arethe rst and overriding priorities of the developing country Parties’. Nevertheless, there ismuch to be done to actually implement climate justice within the UNFCCC process.

Mitigation and adaptation policies both raise justice issues. The central goal of mitigation

policies, for example, is to limit GHG emissions, but efforts to do so must take into accountdevelopment goals in poorer countries. Moreover certain measures designed to assist mitigation,such as the Clean Development Mechanism (CDM) developed under the Kyoto Protocol and theUN’s programme of Reducing Emissions from Deforestation and Forest Degradation (REDD+)have raised their own human rights concerns in practice. And while many least developedcountries (LDCs) have now drafted national adaptation programmes of actions (NAPAs) underthe UNFCCC process – identifying activities to address their most urgent adaptation needs –the needed funding from other nations has been slow to appear. Resources devoted to bothmitigation and adaptation strategies therefore need to be allocated with an understanding of,and appreciation for, the ways in which they impact human rights. Indeed, the parties to theUNFCCC themselves stated, in a 15 March 2012 report on the Cancun conference, that they‘should, in all climate change-related actions, fully respect human rights’.


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Given the number and complexity of possible ‘climate change justice’ concerns, the TaskForce has undertaken to analyse the objective of climate change justice in the specic contextof human rights. Indeed, understanding the human rights implications of climate change

allows for a fuller appreciation of the impact of climate change mitigation and adaptationpolicies. This approach claries policy-making by illustrating the true harms climate changecauses – harms felt in all communities across every continent, but with devastating impactsfor the most vulnerable.

Chapter 2 – Current legal challenges in climate change justiceThe climate change justice landscape is fragmented and decentralised, due partly to thedifculty of achieving international agreement on addressing climate change itself, and partly

to the many areas of relevant international legal activity, but also due to the breadth andcomplexity of international development and economic activity. Many areas of internationallaw are relevant to the problems raised by climate justice but the law as it stands was notcreated with the challenge of climate change in mind and is not always well suited to address it.The Report examines relevant international legal regimes dealing with the environment,human rights and trade and investment law, as well as those touching on dispute resolution,state responsibility and certain adaptation measures, including migration, food security andtechnology transfer. Chapter 2 focuses in particular on the difculties in relying on any orall of these regimes in their current form to mitigate sources of climate change, provide foradaptation or ensure climate change justice.

2.1 Environmental law regimes

Domestic, regional and internationalenvironmental law is necessarily central to the goalof achieving climate change justice. On the domestic front, a growing number of countrieshave integrated cap-and-trade schemes and/or carbon taxes into their national climatepolicies. Regional arrangements have also been established to combat climate change, withthe leading example undoubtedly being the complex of regulations and policy targets

set within the European Union, and extending to its Emissions Trading Scheme. As tointernational environmental law, there are, in addition to the UNFCCC andKyoto Protocol, a number of other treaties and, in particular, widely agreed principles that areof relevance to climate change. In addition to CBDR, these include the ‘no-harm’ principle,the ‘precautionary principle’ and the principle of sustainable development. The progressiveacceptance of these principles doubtless marks a long-term trend in international law.However, the Report concludes that international law has not yet developed to a point thatit might, on its own and in its current state, provide a rm basis for limiting the degree to which states may release harmful greenhouse gas into the atmosphere.


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2.2 Human rights law regimes

International human rights law may provide an avenue for individuals and communities toseek redress for harms caused by global climate change. There is little doubt that climatechange affects peoples’ human rights directly. Rights to life, health, food, shelter and waterare all plainly affected by the ravages of climate change. These effects can be characterisedas ‘rights violations’ (rather than mere bad luck) because climate change is a preventableman-made phenomenon. Nevertheless, it is not easy, as a matter of law, to join up the dotsbetween those emitting excessive greenhouse gases and those suffering the consequences– the law is not designed to that end, and difcult questions of causation and standingarise. Possible avenues of redress may include class actions, targeting major groups ofemitters or holding public ofcials responsible for failures of due diligence. Many of these

strategies are currently being explored. Another possible avenue may be the developmentof ‘environmental rights’, now recognised in a number of national constitutions.

2.3 Trade law regimes

International trade law , centred on the widely ratied and relatively effectively enforced WorldTrade Organization (WTO) agreements, is another area that could be used to addressglobal climate change. The WTO has been criticised for failing to progress discussionson trade and climate change, with many seeing the recent Doha round negotiations asa missed opportunity for progress on environmental issues. The principal question thatarises under WTO law is whether states considering low or carbon-neutral trade policiesmight be in breach of their WTO obligations. Scholars are generally agreed that it shouldbe possible to devise carbon-light trade policies that are compatible with WTO rules butthey are also agreed that to do so is likely to impose cumbersome design and negotiationcosts, and the shadow of possible adverse rulings by the WTO’s panels or its Appellate Body will tend to dilute enthusiasm and create regulatory chill.

Similar issues arise with respect to whether international investment law – networks ofinterlocking bilateral and regional investment protection agreements with binding dispute

settlement provisions – facilitates or hinders climate change justice. 2.4 State responsibility and climate change liability

Holding states accountable under international law face signicant practical obstacles.The fora involved in considering such disputes vary widely, from the International Court of Justice (ICJ) to the Permanent Court of Arbitration (PCA) and the International Tribunalfor the Law of the Sea. These tribunals only have jurisdiction based on the consent of theparties who appear before them; their expertise in environmental issues varies and theirapproach tends to be conservative: absent clear progress in treaty or customary law, few ofthese fora are well-placed to sound the clarion call for action that climate justice requires.Recently, the idea of an exclusive international tribunal with an environmental law mandate(an International Court for the Environment) has garnered attention.


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2.5 International law on climate change adaptation

Adaptation measures are necessary to grapple with varioushuman securitythreats createdby climate change, including threats to global security, territorial sovereignty, healthsecurity, food security and environmental security. Climate change adaptation law aimsto ‘increase the capacity of humans, other species, society and the ecosystem’ to adapt tothe continual transformation of our environment. Politically, economically and sociallymarginalised groups within developing states have the lowest adaptive capacity, requiringconcerted international action to enable them to adapt to the effects of climate change. Although Article 4 of the UNFCCC recognises the necessity of adaptation, the developmentof multilateral adaptation law and policy has thus far lagged behind that of mitigation. Forexample, there are no international law instruments directly applicable toclimate change-

related migration . International refugee law and domestic immigration and asylum law are ill-suited to address this foreseeable problem. While the international community has outlinedprinciples to address general internal displacement within states – the most common sourceof climate change-related migration – these principles remain non-binding and add littlein practice to accepted international law obligations. And while international human rightslaw guarantees a right to food, human rights institutions and international mechanismsto oversee food supply have largely failed to address food securityin the context of climatechange. Finally, the international community has not established concrete obligations withregard to technology transfer . In fact, international intellectual property protections may insome cases impede the development and diffusion of badly needed adaptation technologiesto developing countries.

Chapter 3 – Enhancing legal regimes to achieveclimate change justice: Task Force recommendations

Existing legal mechanisms addressing mitigation, adaptation and remediation of climatechange are failing to cope with the scale of the global issue and its wide-ranging impact onindividuals, leaving many climate change justice issues unaddressed.

International and domestic laws must be used to strengthen, not stie, climate change justice. It is too easy, as shown in Chapter 2, to list the reasons why current legal systemscannot cope with emerging climate issues or why existing laws were not designed to solveglobal climate change. Drawing on the challenges identied, we consider the need forgreater legal responsibilities that not only states but also multinational corporations andorganisations must adopt to reduce greenhouse gas emissions and promote climate change justice. In Chapter 3, the Task Force explores the most promising opportunities for legalreforms, including using international and regional human rights bodies and instruments

to clarify rights, creating a Model Statute on Legal Remedies for Climate Change and greateruse of the existing PCA Optional Rules specic to environmental disputes.


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Based on its ndings and recommendations, the IBA Task Force calls on world leaders,policy-makers, lawyers, legislators, advocates and scientists to take joint, bold action aimed atachieving climate change justice.

Each of the Task Force’s recommendations is summarised in the Action Matrix on pages 25–31 . The recommendations are identied across short-, medium- and long-termtimeframes for states, international organisations, domestic legislative, executive and judicialbodies, corporations, communities and individuals.

Recommendation highlights

The Task Force recommendations include:• clarifying and vindicating rights connected with climate change justice under

international and regional human rights law by leveraging and, where necessary,‘greening’ existing rights, outlining a minimum core of rights and duties relevantto climate justice, and recognising free-standing environmental rights;

• creating an IBA working group to develop a Model Statute on Legal Remediesfor Climate Change, drawing on the success of the United Nations Commissionon International Trade Law (UNCITRAL) Model Law on InternationalCommercial Arbitration;

• increasing international recognition of corporate responsibility for humanrights harms stemming from climate change;

• seizing opportunities to accommodate states’ ‘pro-climate’ policies within WTOlaw, and actively recognising and promoting climate change and environmental

objectives within the WTO;• enhancing the UNFCCC process to develop dispute resolution mechanisms for

human rights protections;

• using the UN Universal Periodic Review (UPR) process to highlight climate justiceconcerns for developing countries before a broad audience; and

• creating an IBA Working Group on the Legal Aspects of Adaptation to developeffective and practical solutions for global climate change adaptation problems,including migration, food security and technology transfer.

Chapter 3 sets out recommendations across the following areas:• Legal measures (climate change justice measures for individuals and communities;

states; and corporations);

• Capacity building and transparency ; and

• Institutional measures (the WTO; bilateral and regional trade agreements;the UNFCCC negotiations; and multilateral adaptation measures).


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3.1 Recommended legal measures

3.1.1 Climate change justice measures for individuals and communities

The Report explains which rights are available for individuals and communities to addressclimate change issues and makes three overarching recommendations for the clarication and vindication of environmental rights in international and human rights law.

(i) Clarication of human rights obligations relating to climate change

The Task Force endorses work by scholars and practitioners to ‘green’ existing human rights,by urging human rights bodies to recognise that climate change impedes the full enjoymentof at least some, if not all, human rights. In such a case, ‘greening’ requires the application ofclimate change justice to existing human rights obligations such as the rights to life or health.

Acknowledging these gaps, Professor John H Knox, UN Independent Expert on theissue of human rights obligations relating to the enjoyment of a safe, clean, healthy andsustainable environment, prepared in 2013 a series of ‘mapping reports’, which considerhow international bodies have applied human rights law to environmental issues. Thisanalysis conrms that many fora are ‘greening’ human rights, and that virtually all treatybodies have recognised that human rights are threatened by environmental degradation.The Independent Expert urges human rights bodies to further develop and clarify the

environmental rights contained in the instruments they interpret.The Task Force stronglyendorses the Independent Expert’s 2013 Report and recommends that human rights bodies furclarify and ‘green’ the scope of human rights obligations relating to the enjoyment of a heenvironment. The Task Force also urges human rights bodies to consider not only the human riimpacts of environmental degradation, but also climate change-specic impacts on human righ

In order to clarify and solidify those norms,the Task Force recommends that , withthe requisite state backing,the Human Rights Council adopt a resolution requesting thatthe UN Ofce of the High Commissioner for Human Rights (OHCHR) draft a report outlina ‘minimum core’ of rights and duties implicated by the right to a healthy environme particularly as it pertains to climate change.

Further, scholars and practitioners have been advocating for explicit recognitionof a free-standing right to the environment and, as a result, since 1976, over 90 nationshave included some form of environmental rights in their national constitutions. In his2013 ‘mapping’ report, Professor Knox concluded that states have obligations to adoptlegal and institutional frameworks that protect against, and respond to, environmentalharm that may or does interfere with the enjoyment of human rights. Therefore, as asupplementary long-term goal,the Task Force recommends that states consider recognising free

standing human rights to a safe, clean, healthy and sustainable environment.The most pragmatic way to achieve this would be for States Parties to human rights conventions to adoptoptional protocols incorporating such a right.The Task Force also urges states to ratify optional


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protocols, in particular the Optional Protocol to the Convention on Social, Economic and Cul

Rights, permitting individuals to raise human rights breaches in formal dispute resolution . Severalregional human rights instruments already contain a freestanding right to a healthyenvironment.The Task Force urges states to work together to further strengthen regional humrights bodies and their mechanisms for enforcing the right to a healthy environment, and encoustates to work together to create new regional bodies where they do not exist or are lacking.


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3.1.2 Climate change justice measures for states: international disputeresolution

The Task Force identies legal and procedural rights that states have against other statesand privately controlled emitters under traditional notions of state responsibility (includingthe impact of climate change obligations havingerga omnes character under internationallaw) through regional human rights institutions and formal adjudication. For example,states can bring inter-state disputes before and request advisory opinions from the ICJ;the dispute settlement mechanisms under the UN Convention on the Law of the Sea(UNCLOS); regional human rights treaty bodies (eg, the European Court of Human Rights– ECtHR); commissions established by bilateral or regional investment agreements (eg, theCommission for Environmental Cooperation – CEC, established under the environmental

side agreement to the North American Free Trade Agreement – NAFTA); the WTO DisputeSettlement Body; or Compliance Committees established by multilateral treaties such as theMontreal Protocol.

However, in addition to the challenges of limited actionable rights and indirect causationfaced in climate change cases brought by individuals, these actions face additional challenges,including states failing to accept the jurisdiction of the fora, the absence of regional enforcementmechanisms other than diplomatic or political pressure, and ultimately reliance on the statesthemselves for compliance with recommendations and the execution of judgments.

Although no single forum has emerged as uniquely appropriate or particularly willing

to entertain environmental disputes between states, the lack of a specialised internationalenvironmental court does not seem to be handicapping the settlement of environmentaldisputes (eg, the ICJ adjudicates international disputes with signicant environmentaldimensions, without resorting to its now-abolished ICJ Special Chamber for environmentalcases, and provides advisory opinions). Nevertheless, there is clearly scope for a more robustsystem of international dispute resolution in environmental matters and cases touching onclimate justice.


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(i) International dispute resolution

The Task Force recognises that judicial bodies, such as the ICJ and International Tribunal

on the Law of the Sea (ITLOS) provide important fora in principle for the resolutionof inter-state disputes on climate-related matters, particularly as they are best placed todevelop international law. At the same time, many states have opted for arbitration inregard to environmental matters both between states and in cases involving investors, suchas disputes over power generation and natural resource extraction. Taking account ofthis trend, the PCA has been suggested as the preferred – but not dedicated – forum forinternational environmental disputes against states (indeed, both critics and proponentsof a future International Court for the Environment have advocated for an increased useof the PCA to ll in the gaps in environmental dispute resolution). Chapter 3 assesses theadvantages of the PCA, in particular its nancial assistance fund for developing states andthe development of its 2001 Optional Rules for Arbitration of Disputes Relating to NaturalResources and/or the Environment (2001 Rules), the rst and only procedural arbitralrules drafted specically with environmental disputes in mind. States, intergovernmentalinstitutions, NGOs, corporations and investors may bring claims to the PCA, provided theparties have agreed to do so. The 2001 Rules also establish a specialised list of arbitrators with expertise in environmental issues as well as a list of scientic and technical experts whomay be appointed as expert witnesses in environmental cases.

Accordingly, the Task Force encourages states toaccept the jurisdiction of international judicial bodies such as theICJ or ITLOS over environmental disputes, and to work to ensurethat these bodies have the capacity and competence to engender condence in their apprand adjudication of matters touching on climate justice . Where states have determined topursue climate-related disputes in arbitral, rather than judicial, fora, the Task Forceencourages states to consent – including through domestic legislation and internationalcommitments – to arbitration before the PCA, pursuant to the PCA Optional Rulesfor Arbitration of Disputes Relating to Natural Resources and/or the Environment.The Task Forceencourages states to apply these Rules, and to take advantage of the PCA’environmental expertise in all disputes touching on climate justice, including those involvingpower generation and distribution and natural resource extraction, and in disputesinvolving investors. In doing so,states should ensure that proceedings are open and transparent.

The Task Force further recommends thatstates and international organisations mobilisedispute resolution provisions of other enforceable international instruments to integrate internati judicial and arbitral fora, including the ICJ, ITLOS (where relevant) and any future ICE aappropriate climate change dispute resolution fora, and to prefer the PCA in cases of arbitrat In a similar vein, and with a similar focus on the importance of transparency, the TaskForce encourages the UNFCCC Conference of the Parties (COP) and UNCLOS partiesto adopt the PCA as the preferred arbitral body in cases where States Parties have notopted for the jurisdiction of the ICJ or ITLOS.


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(ii) Other international arbitral fora

Although the Task Force recommends the PCA as a preferred forum for environmental

and climate change-related disputes, the Task Force also recognises the availabilityof multiple other arbitral fora that, depending on the nature of the case, may alsobe considered, including, for example the World Bank’s International Centre forSettlement of Investment Disputes (ICSID), the London Court of International Arbitration (LCIA), the International Chamber of Commerce’s International Courtof Arbitration, and the Arbitration Institute of the Stockholm Chamber of Commerce,among many others.The Task Force encourages all arbitral institutions to take appropriate stepto develop rules and/or expertise specic to the resolution of environmental disputes, inclu procedures to assist consideration of community perspectives.

(iii) Transparency and precedent

Promotion of arbitration over court litigation to resolve international disputes has manyadvantages, the most often cited being its comparative exibility, expertise and lower cost.However, a signicant disadvantage of using arbitration as opposed to domestic courtsis that arbitration decisions are often condential to the parties and thus not availablein any published form. Even though there is no ofcial system of binding precedentin arbitration, an unofcial system of precedent is increasingly common, particularlyin investor-state arbitration instigated under bilateral investment treaties (BITs), wherearbitral tribunals will be inuenced by authoritative or well-regarded awards issued onsimilar issues. States and investors have, over the past decade, moved to make thesearbitrations more accessible and transparent. For example, in 2006, the ICSID modiedits rules to require prompt publication of all awards and to permit tribunals to considerrequests from third parties to le amicus curiae briefs. In April 2014, the UNCITRAL’sRules on Transparency in Treaty-based Investor-State Arbitration went into effect

requiring all hearings to be open to the public, all awards to be published, and tribunalsto be able to accept, as well as invite third-party, submissions.The Task Forceendorses the move towards greater transparency in investor-state arbitration

including the development of the UNCITRAL Rules on Transparency in Investor-State Arbitration, and recommends thatarbitral decisions and awards affecting climate changeissues should be made available publicly and, on a timely basis, to ensure transparency andcondence in the arbitral system; and that t he PCA and other arbitral institutions adopt theUNCITRAL Rules on Transparency in Investor-State Arbitration .


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Executive Summary and Recommendations 15

(iv) International Tribunal for the Environment

An additional, if longer-term, goal to enhance climate change justice would be the

creation of an International Court for the Environment (ICE), as described in detailin Chapter 2. Although efforts to establish a specialised international legal forumdedicated to adjudicating environmental disputes have thus far failed, it is likelythat developing focused scientic and technical expertise within an ICE could moreefciently and effectively address the pronounced challenges of climate changelitigation. Therefore, in the long term, the Task Force supports existing proposals for thegradual development of an ad hoc arbitral body (International Tribunal for the EnvironmentITE), which would build towards a permanent formal judicial institution (ICE). This could bemodelled on the best practices of arbitration institutions such as the London Court ofInternational Arbitration and the International Chamber of Commerce. Unlike otherarbitration bodies, however, the ICE would operate exclusively in the environmentalarea, ensuring its reliability and competence. In particular, an ICE could ascertainand clarify environmental legal obligations of governments and businesses, facilitateharmonisation of and complement existing legislative and judicial systems and provideaccess to justice to a broad range of actors through open standing rules.


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3.1.3 Climate change justice and corporate responsibility

(i) Implementation of the UN Framework on Corporate Responsibilityto Protect Human Rights

With respect to corporate responsibility, the current regulatory regime imposedby international environmental, human rights or trade law is, at best, inconsistentand, at worst, ineffective. The impetus is on states and international organisations,in conjunction with corporations, to come to coherent and consistent standards toregulate corporations as part of efforts to mitigate and adapt to climate change. Asstated by the then-Special Representative of the Secretary-General on human rights andtransnational corporations and other business enterprises, ‘the State duty to protect

against non-State abuses is part of the very foundation of the international humanrights regime. The duty requires States to play a key role in regulating and adjudicatingabuse by business enterprises, or risk breaching their international obligations.’

The Task Force strongly endorses John H Knox’s 2013 Report as UN IndependentExpert on human rights obligations relating to the enjoyment of a safe, clean, healthyand sustainable environment, which concluded that ‘the human rights obligations relatingto the environment also include substantive obligations to adopt legal and institutionalframeworks that protect against environmental harm that interferes with the enjoyment ofhuman rights,including harm caused by private actors ’ (emphasis added). He recognised thatthe UN Guiding Principles on Business and Human Rights make it clear that states havean obligation to provide for remedies for human rights abuses caused by corporations, andthat corporations themselves have a responsibility to respect human rights.

The Task Force supports the increasing international recognition of corporateresponsibility for environmental harms that impact human rights. But that responsibilitymust be accompanied by development of coherent and clear regulatory standards thatmake compliance possible. In this regard, the Task Force recommends a multi-facetedapproach to corporate responsibility that will increase the ability of corporations to self-

regulate, including in response to increased regulation by states.In the short term, corporations should adopt and promote the UN Guiding Principles onBusiness and Human Rights as they pertain to climate change and justice issues. The Task Forecommends that the OHCHR develop a model internal corporate policy, expanding upon its guidance from 2011, which emphasises the importance of conducting risk analysis beforeundertaking any major project, tracking performance and remediating any harms, whilesimultaneously integrating human rights concerns throughout the company.

To advance corporate responsibility specically in the context of climate change,a model policy should commit the corporation to take a number of concrete steps,such as: (i) the corporation should adopt an explicit policy that stipulates measuresdesigned to prevent or mitigate adverse climate change impacts linked to its operations(including due diligence of corporate projects, together with the practices of the company’s


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afliates, and as far as reasonably practicable, its major contractors and suppliers); (ii)the corporation should implement a due-diligence process to identify, prevent, mitigateand account for its actual climate change impacts; and (iii) the corporation shouldimplement remediation processes that allow for open communication with stakeholdersmost affected by the corporation’s operations.

(ii) Reporting by corporations

In the medium term, the Task Forceencourages states and international organisations, inconsultation with corporations, to develop and subsequently adopt clear and implementable objstandards for corporate reporting in respect of human rights issues pertaining to the environme

The Task Force also recommends thatcorporations require full disclosure of evidentclimate change effects arising from the actions of (i) all major subsidiaries and afliatand, as far as reasonably practicable from (ii) corporations’ supply chains (for example,incorporating disclosure obligations into contractual provisions).

In the short term, the Task Force encourages states to require corporations to specically dgreenhouse gas emissions using International Organization for Standardization (ISO) or oth promulgated standards already available,in recognition of much voluntary reporting

that is already occurring by companies, and a number of states (including Australia,Canada, France, the UK and the US) already having introduced and implementedbinding greenhouse gas disclosure requirements.

Ultimately,the Task Force recommends that states should require independent vericatioof corporations’ GHG emissions reporting, similar to auditing of nancial statements, as welindependent verication of companies’ broader human rights reporting pertaining to the environin as rigorously objective manner as is practicable given the standards and guidance developed

(iii) Corporate regulation

The Task Force encouragesinternational institutions (particularly those establishedunder multilateral treaties as well as international nancing/credit banks andagencies)to increasingly monitor multinational corporationsin respect of their compliance with greenhouse gas emissions limits.

Over the longer term, the Task Force recommends that states clarifyregulatorymechanisms related to climate change, including for overseas violations by corporatior international subsidiaries. In particular, states should increasingly seek to regulatecorporations’ impact on the climate through legislation requiring full disclosure of greenhgas emissions both at home and abroad.


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3.2 Recommended capacity building and transparency

3.2.1 Knowledge and skills transfer

Drawing on the international regimes surveyed in Chapter 2, there is evidently a pressingneed to enhance climate change justice capability and capacity in developing countries.Many opportunities exist to build capability within governments, to upskill environmental

and human rights lawyers, to educate individuals and groups of their rights, and to highlightpressing areas of concern. In this Report, the Task Force has focused on two areas: theeducation and capacity building-programmes offered by the IBA; and the UN UPR process.

(iv) Sector-specic initiatives: nance and banking

The Task Force endorses a number of progressive developments in the nance and

banking sectors, including the Principles of Responsible Investment (PRI) and Principlesfor Sustainable Insurance developed through the UN Environment ProgrammeFinance Initiative. In addition, theThun Group of Banks has been particularly active inprogressing discussion of the UN Guiding Principles on Business and Human Rights.Over 79 nancial institutions have now ofcially adopted the Equator Principles , a riskmanagement framework for determining, assessing and managing environmental andsocial risk in projects, which primarily seeks to provide a minimum standard for duediligence to support responsible risk decision-making.The Task Force encourages similarinitiatives that promote addressing climate change issues through the banking and nancial sec

(i) IBA network of climate change counsel and IBAHRI

The IBA is the global voice of the legal profession, with a membership 55,000individual lawyers and 206 bar associations and law societies around the globe.Drawing on this vast network, the Task Force recommends that the IBA use thisReport toconsider innovative ways of raising awareness of climate change justice by attorne judges and lawmakers . As a starting point, the Task Force recommends that the IBA establishan international IBA network of climate change counsel, to allow developed and developingnations to leverage the legal expertise of IBA members, and to exchange ideasregarding environmental litigation and international law more efciently. Followingthis, the Task Force specically recommends that the IBA integrate climate justice trainand courses into its existing platform of legal education, and that the inuentialIBAHRI,together with other components of the IBA, including its Environment, Health and Safety L

Committee, integrate training on climate justice and human rights issues into the suppoand technical assistance provided to judiciaries, newly established and/or under-resourced associations and law societies worldwide.


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3.2.2 Transparency

(ii) Universal Periodic Review

The UN UPR process requires all 193 UN Member States to periodically report on

actions they have taken to meet their international human rights obligations. It isa unique, member-driven process to establish accountability among states, to allowcountries to share best practices and request technical assistance. Having consideredthe progress of human rights law on climate change issues worldwide, and drawingon the work of the Friedrich-Ebert-Stiftung Academic Foundation and the Centre forInternational Environmental Law,the Task Force recommends that developing countries in particular use the UPR process to request technical assistance for specic climate expertresources. Equally,the UPR process should be used to submit stakeholder reports to highligdomestic climate change justice concerns.

Promotion of transparency in environmental decision-making has been endorsed atthe highest level. It has been recognised in the 1992 Rio Declaration, the UNFCCC, theEspoo Convention, the ILC Draft Articles on Prevention of Transboundary Harm, and theEuropean Aarhus Convention, as well as many national environmental laws. John Knox,

the UN Independent Expert, concluded in his 2013 report to the UN General Assemblythat states are obligated to assess environmental impacts on human rights, to makeenvironmental information public, to facilitate public participation in environmentaldecision-making and to provide individuals with remedies.

The Aarhus Convention was adopted under the UN Economic Commission for Europe(ECE) and entered into force in 2001 with 46 States Parties including the EU. The AarhusConvention is at the vanguard of increasing transparency in environmental decision making.In particular, states are required to promote the application of the principles in theConvention in international environmental decision-making. Another innovative featureis the Convention’s compliance mechanism, which supplements a traditional inter-statedispute settlement procedure with a non-judicial Compliance Committee. Signicantly,individuals or NGOs may petition the Compliance Committee if they consider a state isfailing to comply with its obligations, and the Committee has taken a number of activesteps to progress these concerns. The Task Force commends this progress andrecommendsthe extension of the principles in the Aarhus Convention to other regions around the world (eg,the Economic Commission for Latin America and the Caribbean adopted similarprinciples in the Declaration on the Application of Principle 10 of the Rio Declaration on

Environment and Development in June 2012), and in particular itsCompliance Committeeas a model for regional agreements on environmental rights. In addition, the Task Force endorsesthe work of the UN Environment Programme (UNEP) in this area, and in particular its


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3.3 Recommended institutional measures

3.3.1 WTO reforms

Guidelines for the Development of National Legislation on Access to Information, PublicParticipation and Access to Justice in Environmental Matters.

Separately, environmental impact assessment (EIA) is a risk management process thatoperationalises precautionary principles, by identifying and evaluating the environmentalconsequences of a proposed project before the project is authorised. EIA is not onlyintegral to the principle of transparency, but also to the environmental principles ofprevention and precaution, by enabling states to anticipate the environmental risks (and,in particular, transboundary risks) of planned projects and address them in advance. A number of multilateral environment agreements (MEAs) and other internationaltreaties already incorporate EIA-type provisions. The Task Forcerecommends that statesincorporate obligations to conduct EIA and/or Strategic Environmental Assessment into legisl

for signicant projects with potential climate change or transboundary impacts.States areencouraged to go beyond their obligation under customary international law to conductEIA for projects with transboundary effects and to extend the duty to conduct EIA, withspecic reference to potential impacts on climate change, to all public projects.

As identied in Chapter 2, the underlying objective of the WTO is trade liberalisation,not environmental protection, and consequently there is increasing tension betweenclimate change policies and the WTO disciplines. For example, the Report discussesthe lack of any specic ‘climate change’ exemption within WTO law, and the inherenttension between the WTO’s ethos of treating ‘like products’ alike, against the realitythat goods produced using renewable energy may still appear similar to their carbon-intensive competitors. However, there is a real opportunity for the WTO to evolve to

accommodate states’ ‘pro-climate’ policies within the bounds of WTO law, and to gofurther to actively promote climate change and environmental objectives.For example, the WTO’s Committee on Trade and Environment (CTE) has a broad

mandate to promote sustainable development by identifying the relationship betweentrade and environment and ‘to make appropriate recommendations on whethermodications of the multilateral trading system are required’, but has thus far failedto issue any guidance on how WTO rules could be amended to accommodate climatechange measures. As a pragmatic tool for states,the Task Force recommends that the CTEestablish a notication procedure for climate change measures, whereby states wishing to adoptclimate change measures but with concerns about the compatibility of the measures with WTO law could refer the measures to the CTE prior to their issuance to seekadvice on their WTO-compatibility.


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Short of amending the WTO agreements,the Task Force also supports claricationby the WTO that the GATT and GATS(the key WTO agreements dealing with trade

in goods and trade in services) permit exceptions for national policies designed to mitigateclimate change , whether through a formal clarication (Interpretative Decision)from the WTO Ministerial Conference or ‘greening’ of the WTO’s Appellate Body jurisprudence. Endorsement of the precautionary principle and clarication of therelationship between MEAs and WTO law is also welcomed.

Signicant opportunities also exist in the regulation of subsidies under WTO law.The Task Force recommends that the WTO clarify the status of emissions allowancesand recognise renewable energy and climate change subsidies as ‘non-actionable’subsidies under the Subsidies and Countervailing Measures Agreement. Ultimately, the

Task Force supports further consideration of a standalone environmental or climatechange agreement within the framework of the WTO.

Bilateral and regional free trade agreements, for example the current Trans-PacicPartnership (TPP) and Transatlantic Trade and Investment Partnership (US-EU orTTIP) negotiations, are increasingly used by states to secure trade advantages andinvestor protection outside of the formal WTO negotiating rounds. In an encouragingtrend, states are increasingly using these types of regional negotiations to include anumber of pro-environmental measures in trade and investment agreements. Theseinclude clauses explicitly supporting environmental measures, obligations to promoteforeign direct investment in environmental goods and services, requirements not toderogate from existing environmental laws when seeking to attract investment, and/or explicit exceptions from trade obligations for environmental measures.The Task

Force encourages all states to include such language when negotiating BITs and free traagreements (FTAs), and also supports efforts by states to ensure that commitments to climchange justice made in separate side agreements or chapters are subject to strong enforceand compliance mechanisms.

Furthermore, investor-state disputes brought to binding international arbitrationunder BITs or investment chapters in FTAs with environmental components haveincreased signicantly in the last decade. As discussed above, the Task Force supportsincreased measures promoting transparency in investor-state dispute resolution , both as tothe transparency of proceedings and the publication of arbitral awards involvingclimate change measures.

3.3.2 Bilateral and regional trade agreements and internationalinvestment law


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The UNFCCC process currently represents the greatest effort among nations tocollectively combat the effects of human-induced climate change, and remains themost promising framework for attaining a global international agreement. As such,any serious attempt to address climate change justice must engage with UNFCCCnegotiations. As such,it is critical that states should support the urgent work of the AdHoc Working Group on the Durban Platform for Enhanced Action (ADP), as it representsthe UNFCCC’s key initiative to implement a long-term coordinated reduction inglobal greenhouse gas emissions, as well as States Parties to the Kyoto Protocol striving toratify the Doha Amendment, which establishes net emission reductions for 2013–2020.

Aside from emphasising the need for more ambitious and widespread targets, in theshort term the Task Force endorses the efforts of the UNFCCC process to develop a coheinternational framework for measuring, reporting and verifying national efforts of all statecombat climate change.

Over the longer term, to meet the concerns regarding the poor human rightsrecord of certain CDM projects,the Task Force recommends that the Governing Body ofthe Kyoto Protocol (the CMP) consider how best to recognise existing applicable human obligations for CDM projects, and adopt explicit and binding language to protect human rigduring climate change-related activities,together withthe development of a dispute-settlementmechanism or grievance procedure to address human rights contentions concerning the Capproval process.The Task Force endorses promotingdispute resolution mechanisms and procedural rights to all mechanisms within the UNFCCC process.

Finally, there is a growing consensus that in order to keep global warming below2°C, the world must take steps to limit the development of fossil fuels by creating anite ‘carbon budget’. The Task Force recommends that the COP take account of theincreasing calls for hard measures on fossil fuels to ultimately recognise a cumulativecarbon budget, including more stringent regulation of global fossil fuel reserves.

3.3.3 UNFCCC negotiations


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(i) Geo-engineering

Proposals to mitigate or adapt to climate change through geo-engineering areincreasingly common, including ocean based carbon capture and sequestration(storing CO2 in sub-seabed geological formations) and ocean fertilisation (addingnutrients to the oceans to increase phytoplankton growth to reduce CO2 in theatmosphere). The Task Force strongly endorses the work of the International MaritimeOrganization (IMO) in its leading efforts to regulate oceanic geo-engineeringthrough formal recognition of the precautionary principle. In this regard, partiesto the London Convention and Protocol on the Prevention of Marine Pollution

recently, adopted amendments that seek to regulate ocean fertilisation, includingan Assessment Framework for Scientic Research Involving Ocean Fertilization.The Task Force applauds these efforts and recommends that states accede to theseinstruments and adopt IMO regulations while, in the short term, also complying withthe Assessment Framework. To assist in regulation of emerging geo-engineering, theTask Forcerecommends that states work towards the creation of international legal obligatiogoverning research, development and implementation of solar radiation management.

(ii) Engaging UN expertise on challenges posed by rising sea levels

The Task Force is cognisant that climate change has various impacts from sea-level rise, the chief among them. the loss of territory. With global sea-level rise,states’ coastal features may change and signicant territory may be lost, creatinguncertainty in the existing legal framework governing states’ maritime borders andsovereignty under the UNCLOS. However, neither the Human Rights Council northe UN General Assembly has appointed a rapporteur or commissioned a reportthat offers detailed multilateral solutions to concerns raised by rising sea levels.TheTask Force recommends that,in the medium term, the Human Rights Council task a specialrapporteur to comprehensively research human security issues triggered by sea-level rises by climate change and to recommend multilateral solutions to these challenges.

3.3.4 Multilateral adaptation measures


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(iii) IBA Working Group on the Legal Aspects of Climate Change Adaptation

As highlighted in Chapter 2, climate change adaptation law needs further

development in order to address current and ever-growing adaptation needs.TheTask Force recommends, in the short term, the creation of an IBA Working Group on Legal Aspects of Adaptation to develop effective and practical solutions for global adapta problems.The Working Group’s mandate would be to explore and propose legaland policy recommendations in the critical adaptation areas, including, but notlimited to: (i) climate change-related migration; (ii) food security; and (iii) accessto adaptation technologies. For each adaptation challenge, the Working Group’s Terms ofReference would include analysing the existing protections in international law and proposareas for improvement in the law.

For example, on the issue of cross-border and internal climate change-relatedmigration, the Working Group should consider, among other issues: (i) whetherthe international community should promote the adoption of bilateral and regionalagreements and national legislation to assist with climate change-related migration;(ii) whether the Guiding Principles on Internal Displacement, the Peninsula Principleson Climate Displacement Within States, the Nansen Principles and/or the NansenInitiative are models for further international efforts in the area of climate change-related migration; and (iii) how the international legal community can build consensus

toward coordinated action in conjunction with existing initiatives by internationalorganisations on the subject of climate change-related migration.On the issue of food security, the Working Group should also identify and scrutinise

law relevant to food security in the context of climate change with a view to makingrecommendations on how to integrate a right-based approach into the climate changeregime. This would include an assessment of current legal protections related tofood security and how these might be used and strengthened to inform rights-basedapproaches to climate change policy-making.

Finally, with respect to technology transfer, the Working Group should consider,among other issues: (i) how the international environmental and trade regimes may bebrought into conformity with each other to promote technology transfer; (ii) how theinternational environmental law framework may be reformed to incentivise innovation while facilitating technology transfer; and (iii) how the international legal communitycan promote and facilitate cooperation among various stakeholders.


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S h o r

t - t e r m

M e d i u m - t e r m

L o n g - t e r m

3 . 1 L e g a

l m e a s u r e s

3 . 1 . 1 C l i m a t e c h a n g e

j u s t

i c e m e a s u r e s

f o r i n d

i v i d u a l s a n

d c o m m u n

i t i e s

C l a r

i c a

t i o n o

f h u m a n

r i g h

t s o b

l i g a t

i o n s r e

l a t i n g

t o c l

i m a t e c h a n g e

( i ) T h e

T a s k

F o r c e s t r o n g l y e n

d o r s e s

t h e

n d i n g s

o f t h e

I n d e p e n

climate change justice and human rights report (1)

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