Civil society is making increasing use of national courts to enforce international environmental agreements. Even a non-binding agreement in Paris will increase pressure on governments to cut emissions. EurActiv France reports.
The Paris climate agreement, which global leaders hope to sign at the end of the COP21, has already caused heated exchanges between Washington and Paris. On 11 November, the American Secretary of State said he did not think it would be “legally binding”.
This phrase riled the French government, which has made a priority of ensuring that the Paris agreement is binding. “If the agreement is not legally binding, then there can be no agreement, because it would be impossible to verify or check up on the commitments,” French President François Hollande said.
The agreement will have to present a “variable legal geometry”, but what is certain is that the reduction of CO2 emissions will not be subject to a binding agreement.
“But in the end it hardly matters, because what we saw with the Kyoto Protocol was that a country like Canada could escape their commitments by leaving the agreement,” said Yann Kerbrat, a law professor at the Sorbonne University and a member of the think tank Club des Juristes (Lawyers’ Club), which published a report on the efficiency of environmental law.
Treaties not fully applied
After examining all 500 of the current international treaties in the run up to COP21, which begins next Monday (30 November), the think tank came to a rather depressing conclusion: the treaties are often very technical, and a lack of procedural guarantees means they are rarely enforced.
But this does not prevent the think tank from being relatively optimistic about the future Paris agreement.
“We will most likely have some kind of treaty, without the legal attributes of a treaty. But it will be a valuable reference text: local judges will have to power to interpret it, which will be a strong point,” said Yann Aguila, a lawyer and the president of the environment committee of the Club des Juristes.
The growing role of civil society
So if a state fails to honour its promises to reduce CO2 emissions, it could be attacked in court by an individual or a group of citizens.
In June this year, The Hague district court made a historic ruling. It ordered the Dutch government to reduce the country’s CO2 emissions by 25% by 2020, following a complaint lodged by the citizens’ association Urgenda.
“International law is changing. It started as law made by states for states, but individuals are carving out their place and obtaining legal guarantees,” said Aguila.
In practice, international law could bridge the divide between civil society on the one hand, which is calling for a solid and ambitious agreement, and the more reserved positions of states on the other.
Between local authorities, many of which are campaigning for an ambitious agreement, NGOs and even some businesses, there is no doubt that global public opinion is in favour of a more ambitious climate agreement.
Many cities have committed to more draconian CO2 emissions reduction targets than their national governments, through initiatives like the Compact of Mayors. The position adopted by the Committee of the Regions, which includes a 2050 zero carbon objective, is also far more ambitious than the EU’s contribution to the COP 21.
Among the legal precedents that add to the growing power of civil society is one striking recent example from Pakistan.
Tired of seeing his harvests battered by more and more unpredictable weather, Punjabi farmer Asghar Leghari attacked the Pakistani government in the country’s Supreme Court. The court responded by ordering the government to create a climate change commission, made up of the ministries of climate change, water and energy. This commission’s job is to push forward the government’s climate change policy.
Pakistan’s first climate protection laws, relating largely to deforestation, were adopted years ago, but their implementation has been slow. “Climate change appears to be the most serious threat facing Pakistan,” the judge said in his decision on 13 November.
Similar legal challenges have been lodged against the United States by the Inuit people and the president of Tuvalu. “Under the Paris agreement, states will be obliged to report on their commitments. While this system may not be binding in itself, it hands oversight of the commitments to civil society,” Aguila said.
A universal environment charter?
According to the Club des Juristes, the international community is ready to adopt a new kind of environmental law in the form of a “universal environment charter”. This would recognise the rights of individuals to a healthy environment, an idea already consecrated by certain moral authorities like the Pope, in his climate encyclical.
The concept of climate law is also supported by Bolivia, whose President, Evo Morales, has, since 2009, been campaigning for the creation of an International Court of Justice for the Climate and Mother Earth, which would rule on crimes against the climate around the world. ‘Respect for Mother Earth’ is already enshrined in Bolivia’s constitution, and the country submitted the idea as part of its national contribution to the COP21.
“Today, judges are bending over backwards to accept complaints from individuals on this subject. It is time to offer real guarantees for this third generation of human rights: the rights linked to the protection of the planet,” said Kerbrat. He added that the 1948 Universal Declaration of Human Rights had no legal value to begin with, but was consolidated by civil and political rights acts in the 1960s.