Environmental Policy and Law

Since the recognition by the UN General Assembly resolution 43/53 (6 December 1988) that “climate change is a common concern of mankind” as well as adoption of the UN Framework Convention on Climate Change (UNFCCC) at the 1992 Rio Earth Summit, climate change has emerged as one of the most pressing global environmental challenges. The IPCC AR6 (April 2022) curated scientific evidence has explicitly observed that “Net anthropogenic GHG emissions have increased since 2010 across all major sectors globally.” The cumulative effect of GHG emissions appears to exacerbate the abnormal weather events, melting the polar ice caps and cause other cataclysmic climatic changes. The effects of climate change transcend territorial boundaries and continents. It has provided a normative basis for the concerted international law-making process underneath the existing UNFCCC led global regulatory regime. It designated climate change as a common concern of humankind. The resultant soft normativity has been shaped into the hard law through the trajectory of three international legal instruments that took the forms such as common but differentiated responsibilities and respective capabilities (1992 UNFCCC) to international legal commitments only for Annex I countries (1997 Kyoto Protocol) and the nationally determined commitments by the parties (2015 Paris Agreement). This study has sought to place under scanner the graded evolution of the climate change regime through the in-built law-making process premised upon a common concern of humankind. In the aftermath of the UN Secretary-General’s warning about climate emergency as part of “triple planetary crisis”, it is high time the international law scholars, the UN General Assembly and the UNFCCC regulatory process shift into the higher trajectory of climate change as a planetary concern.

The UN Framework Convention on Climate Change (UNFCCC) was adopted in 1992. It was opened for signature at Rio de Janeiro in June of that year. The 30th anniversary of its adoption offers an opportunity to reflect on more than a quarter of a century of UN climate diplomacy, and to consider the path ahead. This contribution takes a look back at the choices made that have led the regime to its current state. It then takes a look forward and considers the prospects of the regime meeting its ultimate aim of avoiding dangerous human interference with the climate system.

This article analyzes the possibility of environmental obligations acquiring the status of jus cogens (peremptory) norms from six perspectives, namely, domestic legislation of States, national judicial decisions, academia and international organizations, United Nations documents and initiatives, treaties and international State practice, and international tribunals. Additionally, it is argued that the economic and political interests surrounding the military and fossil fuel industries and the vast resources dedicated to them hinder the world’s climate change efforts. Thus, the article presents two research questions. First, what are the possibilities of environmental obligations becoming peremptory norms of international law? Second, if these obligations currently do not meet the requirements to be recognized as jus cogens, what would be required for them to obtain this status?

“Ambition” and its variants “progression” and “highest possible ambition” are cornerstones of the Paris Agreement and its 2/1.5 degrees C global warming goals, while ambition is at best implicit in the Framework Convention on Climate Change. Even though only a normative expectation in a system of self-assessment, under the Paris Agreement ambition serves as a yardstick for judging and discussing the adequacy of the NDCs. However, the content and meaning of “ambition” are far from being agreed upon and the applicability of the reformulated principle of common but differentiated responsibilities and respective capabilities does not provide clear answers. In these circumstances, the article looks for guidance from national court decisions that interpret, apply or consider the notion of ambition “on the ground”. These decisions address a number of elements of ambition. They may encourage more ambitious national action. However, they are mostly not specific enough to draw robust conclusions from them regarding concrete questions of application.

The Paris Climate Agreement can be seen as illustrating the evolution of how legal norms are enforced in international law. While the Agreement benefits from a carefully thought-out enforcement mechanism in the international legal order, with techniques that encourage compliance rather than sanction non-compliance, its enforcement is also supported by domestic legal orders. Indeed, the Paris Agreement benefits from both hard and soft enforcement mechanisms. Here, all techniques and all actors have a role to play. This contribution shows that in order to discern the enforcement mechanisms attached to a legal instrument, it is sometimes necessary to take a global and complex look at all legal orders, techniques and actors, since they can act in a complementary manner.

The decision-makers, lawyers and legislators have a responsibility to know and understand the science, facts, global regulatory framework and uncertainties of climate change in order to better achieve the goals of the Nationally Determined Contributions (NDCs) under the 2015 Paris Agreement as well as the 2030 Sustainable Development Goals (SDGs), among others. They also have linkages and relevance for the implementation of the legal obligations under Article 6 (inherent right to life) of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Articles 11 (adequate standard of living) and 12 (physical and mental health) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This study critically examines the complex interplay between different regimes regarding climate change adaptation and mitigation, sustainability and human rights so as to better respond to “climate emergency” underscored by the UN Secretary-General on 2 June 2022 at the Stockholm+50 Conference.

There is a reality of creeping adverse effects of climate change. The human imprint on it has been affirmed by various global processes including 21 May 2019 recognition by the Anthropocene Working Group. It has emerged as a planetary crisis. By 2050 climate change could see 4% of global annual economic output lost to the tune of $23 trillion and may hit many poorer parts of the world disproportionately. Though entire populations are affected by climate change, women and girls suffer the most. Due to their traditional roles, women are heavily dependent on natural resources. As a consequence of natural disasters and during Covid-19 pandemic in 2020-22, women have faced heightened risks to different forms of sexual and gender-based violence (SGBV). They suffer from a lack of protection, privacy, and mental trauma. Effects of climate change results in the feminization and intensification of vulnerability of women and girls. As there is double victimization of women both as human beings and because of their gender. Growing evidence suggests role of climate change heightened violence against women and girls. There is no specific international legal instrument dealing with SGBV against women during and after the climate change induced disasters. The texts of the three specific climate change treaties (1992 UNFCCC, 1997 Kyoto Protocol and 2015 Paris Agreement) do not address this crucial aspect. It has been given attention only through the recent decisions of the Conference of the Parties (COP). Due to serious psychological and bodily harm SGBV causes to women, it needs to be explicitly factored in respective international legal instruments on climate change and disasters. There are ignorance, denials and lack of adequate attention by scholars and decision-makers in the field to address adverse effects of climate change in causing heightened violence against women and girls. Hence, this study makes a modest effort to deduce and analyze –from scattered initiatives, scholarly literature in different areas, existing international legal instruments and intergovernmental processes – the growing causal relationship between climate change and SGBV especially against women and girls as well as the phenomenal cost so as to suggest a way out for our better common future. It is a new challenge for international law that needs to be duly addressed in a timely manner.

 Climate change is accelerating gender inequality, as climate extremes amplify inequalities, vulnerabilities, negative gender norms, with Gender-Based Violence (GBV) rates increase during times of disaster. Yet the gendered experiences of climate change have to date been inadequately factored into climate law and policy-making, with the United Nations Framework Convention on Climate Change (UNFCCC) traditionally limiting its focus to ‘gender balance’ in representation within the regime. This article explores mainstreaming gender considerations within the UNFCCC by reflecting upon where we have come from, where we are now, and where we are going with respect with gender. While there was very little progress in the early days of the UNFCCC, this article shows that from 2001 to the present there have been a series of small gains, which this article will explain and critique. Much remains to be done, however, for gender within the UNFCCC. In recommending future actions, it draws particularly on lessons from the Pacific and Australian experiences.

The 2021 Glasgow Climate Pact brought the ocean into the international climate regime, and the 2022 Sharm el-Sheikh COP27 of the UN Framework Convention on Climate Change (UNFCCC) has finally ushered the world into a special fund to respond to loss and damage associated with the adverse effects of climate change, including on the human rights of present and future generations. But much remains to be clarified about how ocean-based mitigation, adaptation, finance and technology will contribute to inter-generational equity. To shed light on these issues, this article starts from the premise that the ocean is an essential but little-understood component of the interdependency between climate change and human rights. It is followed by an exploration of the importance of a healthy ocean for children’s human rights as a way to advance inter-generational equity under the 30-year-old (1992–2022) UNFCCC through systemic interpretation. The upcoming General Comment on children’s rights and the environment with a special focus on climate change (General Comment No. 26) by the UN Committee on the Rights of the Child presents an opportunity to clarify the role of existing international human rights obligations in strengthening intergenerational equity at the climate-ocean interface on the basis of the UN Convention on the Rights of the Child (UNCRC). This appears vital to ensure coordination across intergovernmental bodies and national government departments to safeguard ocean-dependent children’s human rights through climate policy and action at different levels.

The current name of the game on climate action by the Global North is called “Backtracking” –backtracking on almost every commitment made by them at the various Conference of Parties (COP) held under the Unites Nations Framework Convention on Climate Change (UNFCCC). This comes even as the UNFCCC turned 30 on 04 June 2022. The article seeks to place under scanner issues at stake that will impinge upon the future trajectory of the climate change regulatory regime.

We are already witnessing climate-induced migration and thus must prepare to address the next decades of even more human mobility as a consequence of the climate disruption crisis. Fifty years after the Stockholm Conference, international environmental law still needs solutions to protect those persons most vulnerable to environmental harm. This paper seeks to focus on the concept of reparative justice as the theme and attitude of legal solutions, so as to refocus legal tools to provide relief to those persons who are displaced and dispossessed because of the climate disruption crisis. In this paper, we present possibilities for a reparative climate justice regime that could help to break the current cycle of harm and denial in which states are currently embroiled within international climate negotiations. This focus considers how careful solutions such as credit within the financial mechanisms under the Paris Agreement, in a spirit of trust and solidarity, could contribute to legal solutions to climate migration problems. The paper first iterates the scope and history of climate-induced migration in international law and then presents the case for reparations as a strong legal response to climate-induced migration, before finally exploring the legal avenues within international climate law wherein reparative justice and financing could potentially operate.