A group of preeminent international jurists have put together a series of legal principles, called the Oslo Principles on Global Obligations to Reduce Climate Change. These principles demonstrate that the governments of the world are breaching their legal duties to their citizens, by doing so little about climate change.
The purpose in drafting the Principles was to generate momentum for the next U.N. Climate Summit (to be held in Paris in December) to forge an agreement with real teeth in an effort to keep the earth's global temperature from rising more than 2 degrees Celsius, which is projected to be the point of no return for catastrophic climate change.
The group, called The Expert Group on Global Climate Obligations, surveyed various principles of international human rights law, environmental law, and tort law to articulate specific obligations facing each of the world's nations, including those considered to be lesser developed. The over-arching principle underlying its work is the Precautionary Principle which, the group says, requires greenhouse gas (GHG) emissions to be "reduced to the extent and at a pace necessary to protect against the threats of climate change that can still be avoided". The group argues that the Precautionary Principle specifically requires a reduction in GHG emissions needed to avoid "any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts." The group further argues that the measures required by the Precautionary Principle "should be adopted without regard to the cost, unless that cost is completely disproportionate to the reduction in emissions that will be brought about by expending it."
With regard to lesser developed countries, the Principles state, for example, that "states and enterprises must refrain from starting new activities that cause excessive GHG emissions, including, for example, erecting or expanding coal-fired power plants, without taking counter-veiling measures, unless the relevant activities can be shown to be indispensable in light of prevailing circumstances, as might be the case, in particular, in the least developed countries."
Of particular interest to those wondering how the law might be used to enforce these obligations, the Group says in its commentary underlying the Principles, it "cannot yet support our principles with references to judicial precedents." Rather, it makes use of "established legal principles and concepts...aimed at contributing towards the establishment of precedents on the basis of doctrine and principles; if we were to wait for judicial precedents we will be too late."
And, from a legal perspective, that may be the most interesting point. Without precedents, or prior case law applying a rule to a specific situation to find liability (or not), judges applying the law in cases relating to the effects of climate change can easily be labelled "activists":
We realise, of course, that, if brought before courts, it cannot be taken for granted that courts will issue judgments urging nation states to curb their emissions significantly. No doubt judges willing to do so will be labelled activists. It could also be argued that judges keen to abstain are activists, albeit conservative ones unwilling to apply well established concepts to a new set of cases.
And this really is the crux of the problem from a legal perspective. Holding governments to task for failing to address climate change is going to take some bold benchers.
Canada had no members on the Expert Group, but our jurisdiction has already been a testing ground for these issues. In June 2009, Ecojustice filed a lawsuit against the Government of Canada on behalf of Friends of the Earth seeking a declaration that our government failed to meet the legal requirements of the federal Kyoto Protocol Implementation Act (KPIA). The Act (now repealed) required the government to follow through on its targets for reducing GHG emissions under the Kyoto Protocol and to draft legally binding regulations to combat climate change. The Federal Court ruled that the law was a "non-justiciable political question" or one that Courts cannot resolve. The Supreme Court of Canada declined review.
At the time, the CEO for Friends of the Earth, Beatrice Olivastri, said that "Friends of the Earth cannot let the Government of Canada defy its domestic law on climate change." Indeed, the lawsuit argued that the government was ignoring the obligations of its own domestic law, never mind lofty international principles.
The fight against climate change is undoubtedly going to require bold action from our politicians and market leaders, if not our judiciary.
The Expert Group on Global Climate Obligations consisted of 13 members including Judge Elisabeth Steiner of the European Court of Human Rights, Justice Antonio Benjamin of the High Court of Justice of Brazil, and retired Justice Michael Kirby of the High Court of Australia, as well as professors from Columbia University Law School, Yale Law School and the Maastricht University Faculty of Law.
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