By Åse Rustad Kvisberg, Leader of Concerned Students Oslo
Concerned Students at the Law Faculty got Pf. dr. Juris Christina Voigt to host a lecture about this topic. Professor Voight works on a daily basis with aspects of environmental law, human rights law and international private law. The last years she has been the primarily legal advisor for the Norwegian government in relation to the climate negotiations. This article will include some of her views, academic and personal, regarding the upcoming climate conference in Paris. This is the result; an explanation of the status quo with the international climate talks, and the benefits and challenges with an international treaty concerning the climate.
The world of environmental specialists is looking forward with great anticipation to the international climate conference in Paris which is to be held between the 30th of November to the 12th of December. This conference is aimed at renewing the international obligations made in the UNFCCC (United Nations Framework Convention on Climate Change) and the Kyoto Protocol. These framework conventions have the objective to “prevent dangerous anthropogenic interference with the climate system” (Article 2 of the UNFCCC). Voigt states that the objective of the new treaty will be to enforce this purpose, and introduce specific obligations for all countries part to the treaty.
The UNFCCC and the Kyoto Protocol have not proven to be sufficient to counter the pressing climate change-related issues.
These two above-mentioned treaties are legally binding. This means that any nation part to the treaty has to fulfill
the obligations the treaty entails, such an obligation is referred to as “hard law”. States can also commit to not-legally-binding declarations, this will for example be a political statement. In comparison, these types of declarations are titled “soft law”. However, in the case of international law, there is rarely any mechanism to ensure that the states live up to their “hard law” obligations. This means that the country is bound by its obligations no less, but rarely face any consequences if the obligations are breached. The only pressure to ensure compliance, is thus of a political nature. The UNFCCC and the Kyoto Protocol have not proven to be sufficient to counter the pressing climate change-related issues. Partly because these treaties are structured as frameworks with few legally binding statements, they mostly contain common statements and understandings. They further divided the world in two between developed and developing countries. Pf. Voigt stressed that only committing half of the worlds countries to reducing their emissions will not be sufficient to counter the climate changes and stay within the 2-degree target set by the UN. It is imperative to create a global agreement that also includes the developing countries, especially China, Brazil, India, and Indonesia which are large emerging economies.
In 2011 the Durban Mandate was created. This treaty was too colored by the traits of international law; diffuse with no concrete legal obligations. The Durban Mandate created an ad hoc working group on the Durban Platform for enhanced action (ADP) that was to complete its task, to develop a protocol on climate change, by 2015 the latest. The work of the ADP has been slow, and has only speed up in the past time, for instance with the Bonn-convention in June 2015. Christina Voigt has been present at many of these recent conventions. The upcoming Paris-convention will work with the suggestions of the ADP. The result is so far a 30 page draft. The hope of climate activists is that this treaty will be progressive and adopted by all states. The treaty is planned to entry into force 2020, and to be existing for a long time coming.
As stated, there has been a multitude of meetings, with a variety of texts produced. All states, 196 in number, need to agree on the final product. This capsules the issue of international law – how do you create a text that meets the requirements of all parties and supports the grave issue of climate change simultaneously? Christina explains this as an issue between the agreement of the parties, and preserving the objective of the treaty.
Voigt presented compelling arguments in favor of an international climate agreement. The need is largely due to the climate change being a global problem, and thus requiring a global solution. All states are involved despite their sovereignty and independence (these are the two most fundamental principles of statehood and international law). No single state can deal with the problem on their own as emissions in one country largely can affect the climate in another. Whereas the states are clearly separated, the climate change issue is distressing the nature of our entire planet. The planet’s climate does not restrain itself to national borders – the oceans and the atmosphere concerns and affects all nations. There is a need for reduction of emissions and adaption to the situation to come – the climate changes are already so large that climate change is imminent. The countries that need to adapt rather quickly are for instance ocean-states or African states. These countries however rarely possess the economic resources to meet these issues, nor have they been the main contributor to the emissions causing these changes.
The planet’s climate does not restrain itself to national borders – the oceans and the atmosphere concerns and affects all nations.
This leads to another issue concerning these political settlements, stresses Voigt, who is responsible and thus required economically support the adaption? Who should pay for the technology research and the cost of adaption? The host countries of companies, the industrialized countries that have polluted for decades already, the countries affected by climate change? The multitude of interests makes the solutions and climate talks difficult.
Another argument for a global settlement, is the effect is has on international companies. If one country tighten their environmental laws and regulations, companies often change locations to other countries without similar regulations. An international standard for emissions and other regulations is therefore important to avoid “migrating” companies. Voigt argues that a predictable legal framework can further boost business as the companies will have a concrete and fore stable jurisdiction to relate to.
What are the legal consequences?
There is a large difference between a legally binding international climate treaty and yet another political declaration. If a state becomes a part to a treaty, there are formal regulations with regard to membership; it is more difficult to “back out”, the treaty is supposed to be interpreted and enforced according to specific rules. States usually ratify treaties they become parts to, which is a process involving the national legislator (in the case of Norway this means Stortinget). Appropriate changes to the different national jurisdictions is often required, the result is a treaty that requires more commitment – a positive outcome in the situation of the global climate crisis. A treaty is more predictable than a political declaration, which Voigt argues is an advantage for private companies. Ultimately, the breach of a treaty obligation can, if the treaty allows, result in legal consequences. This is however one of the most difficult parts to discuss and settle on, explains Voigt.
A legally binding international climate treaty seems favorable and possibly imperative to resolve the global issues our world is facing. There is however down-sides to such treaties as well. Firstly, they take a longer time to negotiate. States are usually declined to be specific in the formulations in the treaty, a concept Voigt labels “constructive ambiguity”. This leads to a legal product that is very vague and open to interpretation, thus not creating any legal obligations. The ratification process of a legally binding treaty might be complicated and slow (up to a decade). This will probably also be the situation with the upcoming treaty, there is great uncertainty as to when it will be put into force (if the even will…). A treaty is a more “still” body in terms of change, any change needs to be agreed upon with consensus by the member states. If the climate change evolves, there might be need to change the existing treaty. On the other hand, a product that is not legally-binding, might be more progressive and ambitious.
What will the treaty look like?
Christina Voigt took time to explain what the product of the Paris convention might look like. The obligations it is to include will be “Nationally determined contributions” (NDC). This is a concept where every single state is deciding for itself what it is willing to do in order to reach the purpose of the treaty. There will be nothing dictated on the international level (a “top-down” approach). There is not a formal agreement on how much each state needs to cut, it is all based on how much each state is willing to do. One of the problems in the ADP-talks are concerning the possibility of creating an international organ to determine the level of the NDCs. Such an implementation would add further difficulties to the climate-talks in Paris. 126 states have already addressed what they will do and the commitment varies a great deal. Some states offer a percentage of emission in relation to a country (eg. USA and Norway) and other states offer cuts in certain sectors (eg. Columbia). Developing countries have in many cases expected financial help to start adaptation to climate change consequences. This financial element is probably the most controversial part of the treaty. Voight expects this to be the problem solved at the very last at the conference in Paris. Further, the issue regarding finance cannot be settled at the negotiation level, but needs to be decided on national governmental level.
Many countries, mostly European states, want a legally binding obligations to enforce these NDCs. Many countries, for instance the USA, is opposed to this view. Another aspect is introducing a reporting/review system, which Norway and USA amongst others are making a lot of efforts to include. This would oblige the countries to report, per se, every second year about what they are doing regarding their NDCs. This system might be similar to the existing human rights reviews. There might be need to establish an independent organ to receive and fact-check these reports. There are also suggestions to introduce a ‘stocktake‘ every 5 years. This is the concept of the states renewing their NDCs periodically. Such a system would force the member states to be progressive in their NDCs, meaning that every new NDCs need to be better than the previous and encompass the highest level of ambition of each country. To ensure efficiency, Christina introduces the principle of all member states being obliged to “act to their best capability”, like she explains, the alternative is that the NDCs will be fruitless. The NDCs can also work as a tool for the civil society to push their national governments to reach their political targets.
A grave concern, Christina added, is that the NDCs the ADP have received are not at all sufficient to keep within the 2-degree target. The Paris convention will thus only be a starting point, and is not adequate to “save the world”. The work remaining is therefor still large. A relevant tool is to have a flexible yet clear objective for the treaty. The objective (as show-cased in the UNFCCC Art. 2) needs to be precise as to what the treaty seeks to ensure, but progressive enough to meet changes in science. Voight’s opinion is that a clear and effective objective is to prefer over an objective with a wide range of purposes. The last option might dilute the specific purpose of the Paris agreement. She also adds that compliance consequences are imperative; this could be consequences for not updating their NDCs or consequences for not reaching the targets in their NDCs.
Professor Voigt also mentions the different criteria regarding ratification. Ratification is the process where a state adopts an obligation as its own and includes it in its national legislation. The treaty project will be open for signing after the negotiations and further a year after. Many countries have certain requirements for ratifying a treaty, for instance about with other countries that are part to the treaty. Included in the treaty there will be a requirement that in order to have the treaty enter into force, the countries part to it need to be responsible for 80% of the world green-house gas emissions. The reason for this is that otherwise the treaty will be pointless, as the countries obliged are not relevant for changing the global emissions. This process of including this many countries took 7 years for the Kyoto Protocol.
Most people have already understood that the climate crisis possibly will be the defining issue of our life time. The few hundreds of people present at the Paris convention are thus capable of deciding and shaping the future of the world in decades to come. There are a multitude of expectations and all these cannot be met; the ones of the different nations nor the ones of the climate-activists. Christina seems optimistic however, that this is an important stepping stone towards a greener environment for our planet.
This text is based on a lecture by Professor dr. Juris at University of Oslo, Christina Voigt, for Concerned Students Juss the 28th of October 2015 at Domus Academica, Oslo. The lecture was titled “UN climate negotiations – On the way to Paris”. We are thankful to Voight for her contribution, and her warm congratulations to the Concerned Students initiative was welcomed with joy. She took time to stress the importance of environmental interest and academic knowledge amongst jurists.