Human rights across borders

On 22 March 2017, a public hearing will take place at the Inter-American Court of Human Rights which was asked (by Colombia) to give an advisory opinion on the interpretation and scope of certain human rights obligations (e.g. the right to life and humane treatment) in the American Convention on Human Rights.

The request for an advisory opinion focuses on the possible impacts of grand scale projects on the marine environment in the Greater Caribbean Region. It raises many legal questions related to the effects of transboundary pollution originating in one jurisdiction on the rights of people under the jurisdiction or control of another country.

The so called “extra-territorial” application of human rights obligations is also an important issue in the climate change context. For example: could a major greenhouse gas emitting nation be held responsible under existing human rights treaties for harm to the lives and livelihoods of people in another country?

LRI’s director Christoph Schwarte was invited to submit his written observations on the request for an advisory opinion. His short note – along with the comments by 45 other experts, organisations and academic institutions – is available at: http://www.corteidh.or.cr/cf/jurisprudencia2/observaciones_oc.cfm?nId_oc=1650&revision=1

US withdrawal?

Following the inauguration of President Donald Trump the Whitehouse website was changed immediately to confirm the new government’s intention to scale back or undo previous efforts to address climate change. It now states that “for too long [the US has] been held back by burdensome regulations on our energy industry. President Trump is committed to eliminating harmful and unnecessary policies such as the Climate Action Plan and the Waters of the U.S. rule.”

Whether the new policy will also result in a departure from commitments made at the international level is not yet clear. There has, however, been persistent speculation about a possible withdrawal of the US from the Paris Agreement (after at least three years from 4 November 2016 to take effect after another year) or even the UN Framework Convention on Climate Change (UNFCCC) as a whole (within one year).

Legal advice produced by LRI experts indicates that “although the Constitution requires the advice and consent of the Senate before the United States can become a party to a treaty, the president may unilaterally decide on behalf of the country to terminate a treaty that no longer serves the national interest”.

On the justiciability of the Nationally Determined Contribution submitted by the US another legal opinion states that: “Since the Paris Agreement was not adopted by the US as a self-executing agreement and since the US has only complied with the Paris Agreement using existing legislation, the provisions of the agreement, including the NDC obligations, will likely not be enforceable in a US court.”

The full advice is available through the LRI database. If you have not registered yet you can do so (in 20 seconds) and instantly use it at http://legalresponseinitiative.org/wp-login.php?action=register

LRI at COP22 in Marrakesh

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A team of LRI lawyers is attending the 22nd Conference of the Parties (COP22) to the UNFCCC in Marrakesh. To get in touch please email: liaisonofficers@legalresponseinitiative.org

In collaboration with UN Environment (UNEP), LRI also organised a round-table discussion on legal preparedness for the Paris Agreement as part of the Law and Governance Day. The event built on a climate legislation workshop previously held in London exploring the different approaches and ideas for supporting developing countries in their legislative efforts to respond to climate change and implement their commitments under the new Paris climate agreement (the report is available online).

The COP22 Law and Governance Day is aimed at sharing, strengthening, and generating new legal and institutional innovations in the law and policy reform elements of Nationally Determined Contributions (NDCs) and the Paris Agreement.

Alina Averchenkova of the Grantham Research Institute on Climate Change and the Environment (at LSE) presented some findings of a study on climate legislation worldwide. The research indicates that at present only four jurisdictions are fully prepared to implement the commitments contained in their nationally determined contributions (NDCs). A summary of the key trends is already available at: http://www.lse.ac.uk/GranthamInstitute/publication/2015-global-climate-legislation-study/ – the final report will be released on November 17.

Stephen Minas of the Dickson Poon School of Law at King’s College highlighted that legislation may not always be necessary but can send important signals to investors of climate solutions (that require legal certainty). Likewise, regulatory interventions need to consider domestic particularities and are also an opportunity for joint approaches in developing legislation and domestic capacity building.

Robert Ondhowe of the UNEP’s Law Division provided insights on how the Programme is supporting developing countries with respect to legal preparedness. During the following discussion participants brought up other areas of relevant research (e.g. on NDCs in the Maghreb region) and debated on how climate relevant laws may be defined and aligned with (future) requirements under the Paris Agreement.