Tag: law

What protections are available to people displaced by climate change?

Posted on by janet.crompton

Climate change will impact all our lives in the coming years and many people will experience extreme events due to climate  change resulting in displacement, both internally and across international borders. This has become the reality for some already within low-lying archipelago islands within the South Pacific, such as Tuvalu and Kiribati. Despite the certainty of increased climate change-related displacement, there is still no specific frameworks which protect those moving for climate related reasons (see a detailed discussion here). 

The site of the village of Tebunginako, Kiribati – relocated due to severe coastal erosion and saltwater intrusion (image: Department of Foreign Affairs and Trade, Australia)

Are people displaced by climate change refugees? 

Under Article 1(A) of the 1951 Refugee Convention, climate-related displacement does not constitute grounds for international protection. I will take the essential elements of Article 1(A) in turn. First, a refugee must have crossed an international border, whereas climate-related displacement is expected to be predominantly internal. 

 

Second, a refugee must have a well-founded fear of persecution. Persecution requires an egregious violation of human rights, which is assessed in light of the nature of the right and the severity of the violation (see here for further discussion). It also requires that the fear of persecution must be well-founded – this does not require certainty – but it must not be far-fetched and should be based upon both an objective assessment of the likelihood of persecution and the subjective nature of the individual’s fear (see Chan v Minister for Immigration and Ethnic Affairs, 1989). Climate change is unlikely to fulfil this requirement despite the detriment it can have on an individual’s access to human rights. It is unlikely to meet the severity threshold even in relation to socio-economic rights and, as McAdam (2016) highlights, it is difficult to identify a ‘persecutor’ that the refugee fears; instead, many refugees are likely to be moving to states that are major greenhouse gas contributors. 

 

Third, persecution must be related to a reason given by the Convention of ‘race, religion, nationality, membership of a particular social group or political opinion…’ The impacts of climate change do not discriminate. Even if an individual did establish persecution based upon an egregious socio-economic rights violation caused by climate change, they would need to argue that this affected them because of their membership of one of these groups. At best, an individual could argue that a government had consciously withheld assistance to address the impacts of climate change to a specific group, amounting to persecution (see here) but the group must be connected by an immutable characteristic (Applicant A v Minister for Immigration and Ethnic Affairs, 1997), not just the impact of the climate change. 

 

Courts have firmly established that the Refugee Convention does not protect victims of natural disasters, slow-onset degradation, poor economic conditions or famine – even when the country of origin is unable or unwilling to provide protection (Canada (Attorney General) v Ward, 1993; Horvath v Secretary of State for the Home Department, 2001). UNHCR has echoed this in its own discussions of how to respond to climate-related displacement (see here and here).  

 

What protections are available to people displaced by climate change?

A response to climate-change related displacement must therefore be sought through other international legal mechanisms. In 2009, the UN Human Rights Council recognised under resolution 10/4 that there is a ‘core inter-linkage between human rights and climate change’ such that those displaced by climate change would be able to rely on the obligations outlined in the ICCPR and the ICESCR. In particular, this would include state’s non-refoulment obligations as the cumulative effect of socio-economic harms can amount to inhumane and degrading treatment such that an individual cannot be returned to such conditions (see Sufi v Elmi, 2011). However, courts may require an immediacy to the rights violation such that future fear of climate-related impacts is insufficient grounds to provide protection from return (see AF(Kiribati), 2013).  

 

In the specific situation of small island states whose territory is threatened by climate change, the law relating to statelessness may also be able to provide some protection and a remedy (see the 1954 Statelessness Convention; Rayfuse 2009). UNHCR has a mandate to prevent and reduce statelessness enabling them to work with states to respond, including coordinating international cooperation, providing protection and resettlement. However, issues concerning when a state will have ceased to exist under international law remains unsettled. For example, for a state to be recognised by international law, Article 1 of the Montevideo Convention requires a permanent population, territory, government and capacity to enter international relations (see Lauterpacht, 1944, and Crawford, 2007, for further discussion). However, there is a lack of clarity on when these criteria will cease to be fulfilled. The problem that international law has grappled with until now has been when new states are formed, not when existing ones have disappeared. As a result, it is unclear when protection for stateless persons of ‘disappeared’ states will be triggered. 

 

There are also regional frameworks that provide broader protections to displaced people, beyond the narrow 1951 definition. In particular, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems and the 1984 Cartagena Declaration both contain provisions relating to ‘events seriously disturbing public order’, which could be taken to include the events resulting from the effects of climate change. These are both non-binding instruments, whereas Article 5(4) of the Kampala Convention is within a binding instrument and explicitly includes protection for those affected by climate change: 

States parties shall take measures to protect and assist persons who have been internally displaced due to natural or human made disasters, including climate change. 

This focusses protection on internally displaced individuals and ensures that signatory states are required to provides protection and assist those displaced by climate change.  

 

The Kampala Convention is largely based upon the UN Guiding Principles on internal displacement which, under Principle 6(d), outlines that internal displacement is prohibited including in the context of disasters. The principles then provide a framework for states to respond to internal displacement, including that resulting from disasters. The extension of human rights protections to those fleeing climate change is echoed in the Global Compact on Migration, which calls for humanitarian visas for people migrating due to natural disasters and climate change (see objective 2 and 5), as well as similar commitments in the Sustainable Development Goals. Such a response to climate-change related displacement is required under the commitments of Article 14(f) of the Cancun Adaptation of the United Nations Framework Convention on Climate Change (UNFCCC). This aims to enhance understanding, coordination and cooperation with regard to climate change induced displacement…’ These instruments represent moves by the international community to consolidate existing legal frameworks to respond to climate-change related displacement. However, they are not binding treaty law. They demonstrate political commitments not legal obligations. It is evident that, outside the Africa region, mechanisms for protecting individuals from climate-change related displacement are often non-binding and ad-hoc.  

 

The future of climate-related displacement

The term ‘climate refugee’ is conceptually flawed. Such individuals will not constitute refugees for the term ignores the complex causation involved in any displacement, let alone that related to climate change, which in itself is a multi-causal phenomenon. Whilst human rights law, the law relating to statelessness and regional arrangements do provide for some protections to individuals displaced by climate change, these approaches remain disparate and uncoordinated. A lack of clarity can lead to legal loopholes that are abused by states to limit protections.  

 

To respond to this complexity, there are calls for a separate framework for cross-border climate migrants. Commitments within the Global Compact on Migration and the Sustainable Development Goals, as well as the Cancun Agreement, represent attempts by the international community to start to coordinate and elucidate protection for climate-related displacement. However, much more must be done to ensure clarity on the personal, material and temporal scope of protections and obligations for climate change-related displacement. 

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This blog is written by Dr Kathryn Allinson, a Lecturer in Law, University of Bristol Law School. Her research concerns the establishment of state responsibility for breaches of international law focussing on the interaction of human rights and humanitarian law in relation to displacement, and the protection of socio-economic human rights during conflict.  

Kathryn Allinson

 

 

A previous MMB blog by Ignacio Odriozola looked at a landmark decision by the United Nations Human Rights Committee on people seeking international protection due to the effects of climate change: Climate-change displacement: a step closer to human rights protection.  

COP24: ten years on from Lehman Brothers, we can’t trust finance with the planet

Posted on by janet.crompton

 

Listen! Andy Rain/EPA

Lehman Brothers filed for bankruptcy on September 15, 2008. The investment bank’s collapse was the drop that made the bucket of global finance overflow, starting a decade of foreclosures, bailouts and austerity.

The resulting tsunami hit the global economy and public sector, discrediting finance and its attempts to extract large rents from every aspect of the economy, including housing and food. An alternative was urgently needed.

Ten years later, private finance and large investors will play a central role at the COP24 in Katowice, Poland, and in the full implementation of the 2015 Paris Agreement.

Representatives from pension funds, insurance funds, asset managers and large banks will attend the meeting and lobby governments, cities and other banks to favour investments in infrastructure, energy production, agriculture and the transition towards a low-carbon economy.

Has finance cleaned up its act?

There is a US$2.5 trillion gap in development aid which needs to be filled if poor countries can adequately mitigate the effects of climate change. With little enthusiasm among rich countries to stump up, the role of private finance is inevitable. Policy makers trust financial capital as our best hope of securing investment to avoid the catastrophic warming beyond 1.5°C.

This has been the case for a while – the first announcement came at the UN Climate Summit in 2014, when a press release on the UN website said the investment community and financial institutions would “mobilise hundreds of billions of dollars for financing low-carbon and climate resilient pathways”.

Since then, networks that stress the role of private finance in rescuing the planet have multiplied, including the Climate Finance session at the Sustainable Innovation Forum, which will also take place in Katowice, on December 9-10 2018.

It is difficult to ignore that a strong reliance on private finance means putting the future of Earth in the hands of individuals and institutions that brought the global economy to the verge of collapse. It may be partially true that some are divesting from fossil fuels and funnelling their money into better projects. But before we pin our hopes on finance to solve climate change, there are some things we need to ask ourselves.

Poor countries like Bangladesh have little responsibility for climate change and need significant investment to adapt to it. Suvra Kanti Das/Shutterstock

Difficult questions for COP24 negotiators

How did we get to a point in history where it is taken for granted that public money alone can never be sufficient to finance our transition from fossil fuels? Is it an objective condition with no clear causation and responsibility, or something else?

What about the fact that global military spending in 2017 reached US$1.7 trillion while poor countries promised funding for climate change adaptation and mitigation in 2015 are still waiting?



Read more:
COP24: climate protesters must get radical and challenge economic growth

What about the cost of bailouts to the financial sector, which in the UK alone has been estimated at US$850 billion? As Michael Lewis noted in his boomerang theory, states that have propped up financiers with public money are now asking those same financiers to step in and do the job that states should do. And this leads to the second consideration.

Climate change is historically, politically and socially complex. Although sustainable finance is not presented as the sole solution, analysing its role produces a series of strategic short circuits.



Read more:
Climate change and migration in Bangladesh — one woman’s perspective

It oversimplifies and depoliticises the response to climate change. It legitimises the idea that sustainability can be achieved within continuous growth and expansion, which are essential to the survival of the financial sector.

It rewrites the way we think about our planet in the vocabulary of finance and its obsession for a return on investment. It marginalises any claim to address climate change based on present and historical injustices, redistribution and bottom-up projects organised by ordinary people.

It accepts that the financial way of defining sustainability and its achievements are inherently aligned with the rights, interests and needs of people and the planet.

Finance may be a partner in the fight against climate change, but it is certainly not a partner motivated by altruism. It’s motivated by generating profit from the transition. It is therefore unsurprising that energy generation, railways, water management and other forms of climate mitigation have been identified as priorities for sustainable finance.

Action on climate change has to involve standing up to the Wall Street Bull. Quietbits/Shutterstock

Fighting climate change on Wall Street’s terms

Wall Street can find large returns by investing in the transition to “greener” infrastructure, including the not-so-green Chinese green belt and road and dams like the Belo Monte, a project that originally applied for carbon credits and was labelled as a sustainable investment. Green bonds can help cities finance projects to reduce their environmental impact or adapt to climate change.

However, if money is the driver, we should not expect private investors to have any interest in projects that won’t generate a sufficient return, but would benefit people or cities that cannot pay for the service or for the debt, or that would protect vulnerable people from climate change. If climate change is fought according to the rules of Wall Street, people and projects will be supported only on the basis of whether they will make money.

Ten years ago, the world saw that finance had permeated every aspect of the global economy. Back then, it was clear that financial interests could not build a better and different world. Ten years later, COP24 should not legitimise large financial investors as the architects of a transition where sustainability rhymes with profitability.The Conversation

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This blog is by Cabot Institute member Tomaso Ferrando, a Lecturer in Law at the University of Bristol.  This article is republished from The Conversation under a Creative Commons license. Read the original article.

Courts can play a pivotal role in combating climate change

Posted on by janet.crompton
Calin Tatu/Shuttestock.com
The international community has widely acknowledged the severe threats posed by the impacts of climate change to a series of human rights, including the rights to life, health, and an adequate standard of living. But a stark gap has emerged between this acknowledgement in global climate policy – evidenced by a non-binding clause in the preamble of the Paris Agreement – and their actions to meet promised targets.
How can we hold governments accountable to their human rights duties? A Dutch case recently upheld by the appeals court might hold the answer.
In June 2015, The Hague District Court and a group of 886 concerned citizens, united by the environmental interest group Urgenda Foundation, made history. This, the first successful climate change case brought on human rights and civil law grounds, saw the Dutch government ordered to reduce their greenhouse gas emissions by a minimum of 25% on 1990 levels by the year 2020.
Three years on – against a backdrop of intense scrutiny and after an appeal lodged by the government – The Hague Court of Appeal upheld this decision on October 9. Indeed, it has gone significantly further in affirming the duties of care owed by the state to its people. The court considered the weight of the scientific evidence presented by the Intergovernmental Panel on Climate Change (IPCC) and the recommendations of successive UN conferences to reach an informed conclusion on the required mitigation targets commensurate with the prevention of dangerous climate change.
Marjan Minnesma, director of environmental group Urgenda, arrives at court prior to the appeal. Jerry Lampden/EPA
Significantly, the judges reached this decision by applying the European Convention on Human Rights: the right to private and family life and the right to life more broadly. As such, this case reaffirms the existence of obligations on the part of the state to take concrete measures to prevent the infringement of these rights where the authorities are aware of the existence of a real and imminent threat.
These obligations were held to extend to industrial activities which threaten the rights of people within the state’s jurisdiction. Based on an analysis of the scientific evidence, the court concluded that climate change presents a real and imminent threat to the enjoyment of citizens’ rights as spelled out in the EU convention. They ruled that a 25% emissions reduction is the minimum required to fulfil the government’s duty of care.


Human rights alarm

The Urgenda appeal decision was handed down too early for the findings of the most recent IPCC report on global warming of 1.5ºC, which was published the day before the ruling, to be integrated into the judges’ reasoning. But these findings will significantly strengthen the evidential basis of future claims.
The IPCC report outlines the stark increase in the risks to human health, food and water security, and livelihoods associated with 2ºC of warming, when compared to 1.5ºC. The evidence presented on human health, including the increased risk of heat-related morbidity and mortality, projected with “very high confidence”, is particularly striking. The climate is currently 1ºC warmer than pre-industrial levels, and with the planet projected to reach 1.5ºC as early as 2030 if current trends continue, the alarm on the imminence of the threat to human rights has been sounded.
No legally binding human rights provisions or remedies are provided within the international climate change regime. And so we must turn to the courts to clarify state duties. The Urgenda case sets an encouraging precedent. And there are many more examples of rights-based claims being brought against governments in Belgium, Canada, Colombia, the UK, and even against the EU institutions. This marks a sea change in the use of human rights to hold policymakers to account for their inaction on climate change.


The decision by the Netherlands court of appeals in #Urgenda immediately becomes the most important judicial decision yet on the application of human rights law to climate change. 1/10 https://t.co/8ioKxFEjly

— John H Knox (@JohnHKnox) 9 October 2018


A new approach

In the face of the severity and imminence of the environmental risks we face, the approach to human rights protection adopted by the Urgenda judges is crucial. If courts focus on the imminent risks to human life and health, cases brought forward by particularly climate-vulnerable groups should be prioritised.
Individuals most at risk from rising temperatures and extreme weather events – including those whose livelihoods, socio-economic status, and geographic susceptibility result in them being disproportionately affected – would have the strongest claims. Civil society organisations have a crucial role to play in facilitating access to justice for such individuals, for whom entrenched structural barriers often mean that individual access to the courts remains out of reach.
To effectively accommodate climate risks of this nature the existing legal doctrine will need to be adapted, bringing together environmental principles and human rights. The role of the courts themselves is being called into question by climate litigation: the separation of powers between policymakers and the judiciary is embedded in legal systems around the globe, yet the protection of fundamental rights is intended to transcend this divide. It is the duty of the courts to act as a check on executive action and, in this case, inaction, where the enjoyment of rights is in jeopardy.
Never before has the role of the courts been so significant in influencing the path of global policy. In the face of inadequately ambitious action by policy-makers, civil society movements and the courts are the agents of change securing climate action.The Conversation


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This blog was written by Cabot Institute member Alice Venn, a PhD Candidate in Environment, Energy & Resilience and Unit Coordinator in Environmental Law, University of Bristol.  This article is republished from The Conversation under a Creative Commons license. Read the original article. 
Alice Venn
 
 

Regulatory defection in electricity markets

Posted on by janet.crompton
Graphic by Sarah Harman. Taken from energy.gov.

Electricity systems are undergoing rapid transformation. An increasing share of previously passive consumers is defecting energy demand and supply from the public electricity network (grid) as active ‘prosumers’ while technological and business model innovation is enabling demand-side resources to provide reliable and cost competitive alternatives to supply capacity.

Yet, centralised supply-focused market structures dominated by legacy infrastructures, technologies and supply chains associated with path-dependencies and technological lock-ins continue to dominate. Regulation has been designed around these existing supply-focused markets and structures rather than networks of the future capable of integrating and facilitating smart, flexible systems. Current systems and their regulatory frameworks are struggling to engage and integrate a range of technological, economic and social innovations promising consumer-oriented solutions to environmental problems.

In the UK, the Office for Gas and Electricity Markets (Ofgem) regulates the electricity and gas markets to protect the interest of existing and future consumers. Ofgem acknowledges that ‘moving from a largely centralised, carbon-intensive model to one which will be increasingly carbon-constrained, smart, flexible and decentralised is creating challenges which can only be addressed by innovation’.

In practice, the rapid diffusion of emerging digital technologies such as smart grids, smart meters and the internet of things is disrupting market structures and business models. Progress in automated and machine learning is producing exponentially growing amounts of data which facilitates the deep learning required for more accurate time series predictions. At the same time, distributed ledger technologies such as blockchain provide combined digital accounting and measuring, reporting and verification infrastructures as well as a means of developing and executing smart contracts.

Regulators such as Ofgem are confronted with the need to ‘keep the lights on’ while balancing their primary focus of regulating centralised electricity supply and trading markets with engaging with disruptive innovations. This is reflected in Ofgem’s monolithic, centralised structure, despite its commitment to facilitating smart systems, flexibility and non-traditional business models.

The question is, how can the regulator square grid code written for large-scale generators and wholesale traders with an increasing understanding of and desire to facilitate smart, flexible systems?

Disruptive technologies and business model innovation

In practice, smart, flexible systems imply the bidirectional flow of information which relies on a combination of on storage, demand-side responses, interconnection and energy efficiency increasingly facilitated by emerging digital and distributed ledger technologies. It is evident that existing legal frameworks will need to change to accommodate emerging digital and distributed ledger technologies, but regulators need to proceed with caution and change is inevitably a slow process that needs to take a very wide range of statutory and non-statutory requirements into account. Up to that point, however, the regulators’ discretionary and exempting power can and should be applied (with caution).

In Europe, Ofgem is at the forefront alongside the Dutch regulator (Authority for Consumers and Markets – ACM) in providing ‘regulatory sandboxes’ for microgrids and peer-to-peer trading which facilitates buying and selling electricity locally. These sandboxes facilitate experimentation and innovation without companies incurring or being subject to established regulatory requirements.

Despite Ofgem’s commitment to providing space for experimentation and innovation, missing market rules and high entry barriers encourage innovators to seek alternatives through regulatory defection. Two reports by the Rocky Mountain Institute, one on load defection and one on grid defection sensitised research and policy communities to economic aspects of electricity market defection. Regulatory defection is another aspect of the same issue but it deals with the broader opportunity (and concern) of economic activity shifting beyond particular regulatory spaces and boundaries. Arguments have been put forward that the trend of government withdrawing from energy policy rewards regulatory defection in electricity markets.

Concrete examples of regulatory defection in the electricity market include engaging in behind the meter generation, private wire supply and microgrids. Behind the meter generation is facilitated by a rapid fall in electricity storage costs. Batteries are now available for home installation with promises of 60% savings on electricity bills if appropriately scaled to match on-roof solar PV generation. Behind the meter generation also includes anything else that can be done to limit engagement with the grid, including energy efficiency improvements and reducing demand.

Private wire supply and microgrids require the installation of dedicated physical electricity transmission infrastructure. Private wire enables generators to sell electricity to neighbouring premises without transmitting electricity through the grid. Microgrids take private wires a step further to include a private network across multiple sites and end consumers. These arrangements are complex and require considerable skills and capacity to engage with appropriate network design, infrastructure, installation costs, land and planning requirements and operation and maintenance.

Despite this complexity, regulatory defection is underway through behind the meter generation, private wire supply and microgrid development. For example, Easton Energy Group in Bristol is at the forefront of developing a community microgrid combining solar PV generation with battery storage and dedicated transmission infrastructure as part of their TWOs project.

Energy Service Company (ESCO) business models facilitate defection by shifting the emphasis on the delivery of energy services. Rather than delivering energy in the form of grid electricity or fuel, ESCOs deliver final energy services such as lighting, ventilation or refrigeration. By shifting profitability towards the efficient provision of these services at low energy and environmental costs, ESCOs shift economic activity beyond the scope of electricity market regulation.

Combined, behind the meter generation, private wire supply and microgrids on the one hand, and ESCO business models on the other, require a rethink of how electricity is regulated. Fairness and equity need to be prioritised to ensure that the costs of running the existing infrastructure (which will still be necessary no matter how rapidly distributed systems evolve) will not be borne by fewer and less fortunate consumers that lack the capacity to defect. Therefore, new regulatory approaches are required to ensure that clean energy will be available to all at affordable costs.

Embracing disruption

One way of engaging with change is by embracing the innovations that threaten to usurp the current system. The Chilean regulator, Commisión Nacional de Energía (CNE), considers Blockchain an essential element of fair and sustainable energy markets. Its web portal Energía Abierta, the 1st open data website in South America, uses Blockchain as a digital notary. It allows CNE to certify that information provided on the web portal has not been altered and modified while also leaving an immutable record of its existence.

To this end, CNE issues ‘certificates of trust’ to give greater credibility to the portal. The aim of the portal is to increase levels of trust among stakeholders and the general public that have access to and consume the portal’s data. Another aim is that by using blockchain, greater trust in the citizen-government relationship can be created through more open and transparent governance. Ultimately, CNE expects blockchain to increase traceability, accountability, transparency and trust.

Chile has taken the lead in using blockchain as part of its regulatory framework and other countries should learn from this experience, especially if blockchain is to fulfil its potential in reducing transaction costs and managing complexity. Combining distributed ledger technologies such as blockchain with emerging digital technologies such as smart grids, smart meters and the internet of things can provide a new platform for electricity market regulation with data embodied in electricity at its core rather than electricity by itself.

The problem with regulation, however, is that it is based on experience from the past. Regulating emerging technologies and facilitating beneficial outcomes while limiting potential negative ones requires a fine balance and technological agnosticism. In this context it is necessary to bear in mind that it is not Ofgem’s sole responsibility to alter regulation. The Department for Business, Energy and Industrial Strategy (BEIS), District Network Operators, the National Grid and combined industry code panels governed by the Competition and Markets Authority and determined by the Secretary of State also have a role to play.

Regulatory defection in electricity markets will continue progressing in the absence of new market structures. Maybe it is time to rethink electricity market regulation in this space along the lines of platform regulation?

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This blog has been written by Cabot Institute member Dr Colin Nolden, Vice Chancellor’s Fellow researching in Sustainable City Business Models (University of Bristol Law School).

Colin Nolden

Exploring legal approaches to climate justice: Reflections from the South Pacific

Posted on by janet.crompton
A traditional canoe painted with world flags on Port Olry beach on the island of Espiritu Santo in Vanuatu

The South Pacific is one of the most vulnerable regions in the world to climate change impacts. The images conjured up of sinking small islands surrounded by miles of rising oceans however do little justice to the vibrant cultures, diverse landscapes and close-knit communities I recently encountered there. As part of my PhD project exploring the legal protection available to climate vulnerable states and communities I was fortunate enough, with the support of the South West Doctoral Training Centre, to be awarded a three month visiting researcher position at the University of the South Pacific in Port Vila, Vanuatu. I spent my time there gathering data, primarily through a series of interviews with key stakeholders from national government, local law firms and NGOs, as well as with a number of regional organisations during a short trip to Fiji.

While being hosted by USP undoubtedly opened doors with participants and made the fieldwork far simpler to organise remotely, I still encountered the inevitable challenges associated with conducting research in a developing country context, thousands of miles from the familiarity of home. The techniques I had prepared for setting up interviews through methodically emailing, calling and making appointments ahead of time proved to be ineffective in a cultural context in which face to face conversations and storying are the norm. After two fruitless weeks of desk-based attempts to contact participants, I abandoned my USP office to wander Port Vila’s streets, notebook and dictaphone in hand, searching out the relevant office buildings. Luckily, as detailed maps and road signs were also hard to come by, government buildings marked with flags were relatively easy to spot. Once I had met with a handful of very helpful people I was armed with a list of relevant organisations and some directions, my study finally began to take off.

Market house in the capital, Port Vila on Efate island

The experience was eye-opening and rewarding, both personally and academically. Vanuatu, as a least developed country, the world’s most at risk to natural disasters according to the UN’s 2015 World Risk Index[1], and extremely vulnerable to climate change impacts, faces numerous challenges. Cyclone Pam, which struck the islands in March 2015, caused an estimated $449 million in loss and damage amounting to a staggering 64% of the country’s GDP[2]. The devastating power of climate related impacts in the region is clear, not only in terms of immediate damage but also, more indirectly, through the economic hardship caused by reduced crop yields among many remote subsistence farming communities, or the impacts of oceanic acidification and warming upon marine ecosystems that many coastal villages depend on for both food and tourism. Talking to those who work closely with these communities at the grassroots level revealed many anticipated issues, from geographic remoteness to a lack of access to institutional support. However, it also revealed the inherent resilience, strong sense of community and traditional knowledge which has enabled devastated communities to recover and should play a central role in the development of climate change responses going forward. 

Through the case study, I set out to examine the existing climate policy responses at the regional and national levels, the availability of legal mechanisms and the challenges associated with access to justice faced by communities in practice. In the wake of the adoption of the Paris Agreement at COP21 in December, climate change and debates surrounding the follow-up action needed is at the top of the Pacific policy agenda. While the Agreement has been hailed as a significant step forward for the international community with many states making voluntary commitments to cut their greenhouse gas emissions through Intended Nationally Determined Contributions (INDCs), many aspects of the Agreement leave much to be desired, particularly from the point of view of the most climate vulnerable. There has been no clear mapping out of the financial support pledged by developed countries to assist in the adaptation and mitigation efforts of developing countries.

The Agreement itself contains no enforcement mechanism or legally binding GHG reduction targets and, particularly concerning for Small Island Developing States (SIDS) and Least Developed Countries (LDCs) such as Vanuatu, loss and damage has been consigned to a vaguely worded clause with an express exclusion of any right to compensation. These inadequacies are already being reflected in the reservations declared upon ratification by a number of Pacific nations including the Cook Islands, Tuvalu and the Marshall Islands providing that they view the progress so far to be insufficient to prevent a global temperature rise of 1.5 degrees and that they do not renounce any existing rights under international law. In light of the vast potential for resulting damage in Pacific SIDS, securing more direct access to climate finance and seeing loss & damage addressed more effectively at the international level have emerged as core priorities for both governments and regional bodies. 

The question of whether alternative legal avenues can be of assistance in securing access to such funding however has yet to be answered. My own assumptions that human rights mechanisms would offer the greatest enforceability and therefore represented the best available avenue in terms of climate litigation have been fundamentally challenged. Limited institutional capacity and funding can be seen to restrict the ability of governments in the region to effectively engage with international human rights conventions along with their corresponding reporting requirements, leading to very limited numbers of ratifications and, in turn, a lack of access to the complaints mechanisms those conventions provide for. In addition to this, Pacific states are without any regional human rights mechanism which could have provided for both greater enforceability and greater engagement with international human rights standards. Despite efforts by regional bodies such as the Secretariat of the Pacific Community (SPC) to provide a blueprint for the development of such a mechanism, this is currently not on the political agenda.  
 
Bottom of Mele Cascades, on Efate island, Vanuatu. 

A great deal more research is needed to fully explore the legal options of climate vulnerable states in the region with respect to the loss and damage that they will continue to suffer. While it is clear that Pacific SIDS are keeping their options open with respect to international legal obligations and state responsibility, at present the hope appears to be that the momentum generated in the run up to the adoption of the Paris Agreement will carry through the stronger commitments needed, both in terms of emissions reductions and financial support. I have learned that climate justice has many facets, not merely the more obvious distributive injustice of the manner in which the impacts of climate change manifest themselves by hitting the poorest and those who have contributed the least to global emissions the hardest, but also more procedural aspects of access to justice and the efficacy and availability of institutional support.

 Climate justice demands a focus on the challenges faced in practice by vulnerable communities, affording them the opportunity to exercise fundamental rights and to make their voices heard. The inter-linkages between the national, regional and international levels of governance and policy making should be strengthened, carving out a definitive role for civil society in the process. Civil society organisations are crucial, not only in terms of responding to immediate disasters, but also to raise awareness of climate change and its human rights implications, to assist governments in the implementation of climate policies where institutional capacity may be lacking, and to amplify the needs of communities. One approach encompassing all of these many facets will be difficult to construct and may seem near impossible politically to implement, but we as climate change researchers should take heed of the example set by Pacific SIDS who, in the face of incredible adversity, have rallied to lead by example in the international community with ambitious climate policy proposals, along with close and effective collaboration.
 
A ni-Vanuatu family paddling a traditional canoe off Mele beach, Efate

[1] United Nations University Institute for Environment and Human Security UNU-EHS, World Risk Report 2015, available online at: http://collections.unu.edu/eserv/UNU:3303/WRR_2015_engl_online.pdf (accessed 08/06/16) at 46.

[2] Simone Esler, Vanuatu Post Disaster Needs Assessment Tropical Cyclone Pam March 2015, Government of Vanuatu, available online at: https://www.gfdrr.org/sites/default/files/publication/PDNA_Cyclone_Pam_Vanuatu_Report.pdf (accessed 9/6/16) at ix. development of climate change responses going forward.


This blog has been written by University of Bristol Cabot Institute member Alice Venn from the School of Law. Alice’s research examines the protection of climate vulnerable states and peoples under international law from an environmental justice perspective.

Brexit: A climactic decision?

Posted on by janet.crompton

In the lead up to the Brexit vote, we are posting some blogs from our Cabot Institute members outlining their thoughts on Brexit and potential implications for environmental research, environmental law and the environment.  
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With barely a week to go to the Referendum, the Environment has singularly failed to make itself an issue in the BREXIT debate. Yet it is impossible to explore any aspect of environmental law in the UK without encountering European Law.  It is therefore no surprise that environmental lawyers and environmental groups have been queuing up to express concerns about the implications of BREXIT – Margherita Piericcini’s Cabot Institute blog on the impact on wildlife and habitats is an example.

So why has the environment not become a key issue?  I attended the All-Party Parliamentary Climate Change Group’s event ‘A Climactic Decision: Brexit’s impact on the UK’s climate and environment’ at the Houses of Parliament earlier this month in the hope of finding out why.

Chaired by Mark Mardell, Mary Creagh MP Chair of the Environmental Audit Committee and Professor Michael Grubb (UCL) spoke for remaining. Roger Helmer MEP UKIP European Parliament Industry, Research and Energy Committee  and Lee Upcroft spoke for exit on the topic of Staying in the EU is the best way to protect the UK’s climate and environment.

The first problem that was manifest is that those strongly engaged in climate change and the environment more generally, are convinced of the role of the EU: in the opening vote at the debate all but one person in the audience were voting remain. Equally for those voting leave, climate change may not be a concern to them: Professor Michael Grubb speaking in the debate referred to the ‘twin horns’ of climate change and EU membership to argue that remaining in the EU and climate change action have much in common. Both require an acceptance of expert evidence, acceptance of uncertainty and a willingness to work collaboratively across cultures, surrendering some individual independence in the wider good.

The environment is the one place where BREXIT campaigners do not argue that most things from Brussels are awful. Put simply the environmental case for remaining is that just about all of the environmental law that benefits the UK stems from the EU.  Few countries or regional groupings in the world have the sort of comprehensive environmental laws the EU has, or has had them so long.

The BREXIT speakers in the debate sought to argue that the sorts of environmental action that the EU has adopted were ‘in the air globally’ and the UK would probably have done it anyway.  If that is so, the remain speakers countered, why has the UK ended up in the European Courts so often for not implementing EU environmental law ? All too often when the EU has agreed new laws to protect the environment the UK has had to be taken to the European Court of Justice to secure compliance – for example when the Bathing Waters Directive was adopted, the UK Initially registered fewer bathing beaches than Luxembourg (don’t dive for a map it is landlocked, but it registered each cove round its lakes). It took the European Court of Justice to sort that one, and bring the UK into compliance. The same with urban waste water (sewage) where it took the European Court to force the UK to stop discharging untreated sewage into the sea. And the list goes on. So this does not look as if  the UK ‘would have introduced all these environmental laws anyway’.

The second BREXIT argument was that as the UK leads the EU on climate change, it does not need the EU.  Climate change and pollution do not respect EU borders, so we need global action not regional action, Remain speakers countered by arguing that it is easier to convince 27 other states of our concerns, and then take joint action. Once the EU takes action it has a strong voice on the global stage. Outside the EU the UK would be but one voice in nearly 200 states, a much harder task to convince 200 than just 27. Michael Grubb put it bluntly – the UK has more influence to achieve action on climate change in than out.

A third argument was about free trade. Here the BREXIT speakers argued that the UK would be free to create whatever environmental rules it wanted on its own or in multilateral partnerships of its choice and to scrap those (unspecified) that count as unacceptable burdens.  But as an expert from the floor who had been involved in UK / USA trade negotiations explained, in his experience the UK alone makes little progress in getting decent terms from the USA, until the EU as a whole throws its weight behind the negotiations. When asked about the impact of World Trade Organisation obligations on this argument, BREXIT speakers claimed nobody had raised this with them before. Put simply, the nostalgic world of a UK free to create whatever rules it wants does not exist, in or out of the EU. The WTO Treaty obligations mean states cannot unilaterally impose what can be seen as trade barriers by setting national rules, without ending up in the WTO courts. Only regional treaty commitments protect environmental rules in restraint of free trade from the WTO court. The EU is the strongest example of that sort of trade treaty.

When it came to energy, the BREXIT argument was that EU membership had kept energy prices high,  particularly through VAT and the Combustion Plant Directive closing our coal fired power stations. Yet energy prices across the rest of the EU are 40% below the UK, because of their longstanding commitment to renewables, and Germany in particular continues to use coal by investing in compliant technology.  UK government decisions were identified as the problem. The harmonisation of the energy market will produce £500m a year energy cost savings to the UK by 2020 – quite apart from energy security and the capacity for us to export surplus energy.  The EU’s global muscle has led to reductions in the cost of renewables technical – solar power costs have fallen by 30% as a result for example.

So, after two hours of debate, the remain speakers felt the gains from the EU should be retained, the BREXIT debaters felt that all the good things that have come from the EU would have come anyway, and that there is a world outside of the EU in which the UK will be free to have whatever environmental protections it wants, in a nostalgic world of free nation states. The WTO will have something to say about that – or perhaps the UK will simply scrap so much of its environmental protections in pursuit of deregulation and free trade that we will not trouble the WTO.

You can download a summary of this discussion on the APPCCG website.

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This blog is written by Cabot Institute member Chris Willmore, Senior Academic Fellow in Environmental Law at the University of Bristol.  Chris is also the University lead academic for Technology Enhanced Learning and currently leads the University Green Academy team which is developing education for sustainable development across the University curriculum.

Read other blogs in the Brexit series:

The EU, Brexit and nature conservation law

Posted on by janet.crompton

In the lead up to the sold out Brexit debate at the University of Bristol on Friday 29 April 2016, we are posting some blogs from our Cabot Institute members outlining their thoughts on Brexit and potential implications for environmental research, environmental law and the environment.  

The EU plays a fundamental role in shaping the environmental law regimes of its Member States and that of the UK is no exception. A significant proportion of current domestic environmental law derives from EU Regulations (that automatically become part of English law) and EU Directives (that are implemented through national legislation).

Nature conservation law, i.e. the legal regime used to protect environmentally significant habitats and species, is a case in point and the focus of this blog. Conserving nature is key not only from a purely biodiversity standpoint but also from an ‘ecosystem services’ perspective. Ecosystem services are the benefits nature brings to the environment and to people, including supporting services (e.g. nutrient cycling), provisioning services (e.g. food), regulating services (e.g. carbon capture) and cultural services (e.g. recreation). 

Site designation and management is a favoured technique of nature conservation law. The well-known Natura 2000 network, would not be there if it were not for EU Directives, namely the Habitats (92/43/EEC) and Wild Birds Directives (2009/147/EC), implemented in the UK by the Conservation of Habitats and Species Regulations 2010. Under Article 3 of the Habitats Directive, Member States are indeed required to set up the Natura network composed of Special Areas of Conservation (sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II of the Habitats Directive) and Special Protection Areas (sites for the protection of rare and vulnerable birds as listed in Annex I of the Wild Birds Directive and for regularly occurring migratory species). 

Greenfinch by Mschulenburg – Own work, CC BY-SA 4.0

In the UK, there are a substantial number of European protected sites: 652 Special Areas of Conservation (including candidate Special Areas of Conservation[1] and Sites of Community Importance[2]) and 270 Special Protection Areas, covering a total of 8,013,467 ha (JNCC statistics as of 28 January 2016). 

Has the establishment of Natura 2000 made a difference to biodiversity protection?

As part of its Smart Regulation Policy, the Commission has initiated a fitness check of the Habitats and Wild Birds Directives to evaluate their effectiveness, efficiency, coherence, relevance and added value. Though the final Commission report on the results of the fitness check will be available only later this year, the draft emerging findings prepared by a consortium of experts do suggest that the Habitats and Wild Birds Directives have substantially contributed to the conservation of nature and to meeting the EU’s biodiversity target.  

It is fair to note that, prior to the EU Directives on nature conservation, the UK did have its own system for habitat protection, most notably based on the designation of Sites of Special Scientific Interest (SSSIs). Introduced in the post-war period by the National Parks and Access to the Countryside Act 1949, the law governing SSSIs has been strengthened over the decades by the Wildlife and Countryside Act 1981, amended by Schedule 9 of the Countryside and Rights of Way Act 2000. However, the management measures in place for SSSIs are not as stringent as those for the protection of Special Areas of Conservation and Special Protection Areas. 

Sites of Special Scientific Interest (SSSI) were introduced in the post-war period in the UK to help manage habitat protection.

It is also fair to note that in the marine environment, the UK has taken important steps domestically: the passing of the Marine and Coastal Access Act 2009 in England and Wales (and similar Acts in the devolved administrations) has brought in new domestic marine conservation zones that contribute to the establishment of an ecologically coherent network in UK waters. But the building of such a network is not so disentangled from EU law, considering Art 13(4) of the EU Marine Strategic Framework Directive (2008/56/EC) requires the formation of marine protected areas’ networks in the marine environments of Member States.

Clearly therefore, EU law has contributed much to the development of nature conservation in the UK. Moreover, being part of the EU means that the Commission can exercise its power to bring infringement proceedings against Member States for incomplete or ineffective implementation of EU law, thereby exercising an external check on implementation (for nature conservation, see Commission v UK, Case C-06/04 [2005]  ECR I-9017).

What would Brexit mean for the future of nature conservation law?

What is unknown however is what would Brexit mean for the future of nature conservation law in the UK because much depends on the type of post-Brexit EU-UK relationship and the agreement that will be negotiated. However, it could be argued that compared to other environmental sectors (such as waste and water) nature conservation may be more at risk.  

Indeed, even in the not-too-radical scenario in which the UK chooses to stay within the EEA, the future of nature conservation law will depend on whether there is political willingness to continue to abide by existing commitments, rather than legal obligations stemming from the EEA agreement. This is because, though the EEA agreement does contain many environmental provisions, nature conservation is excluded (Annex XX of the EEA agreement excludes the Habitats and Wild Birds Directive). Consequently, the future of nature conservation law is very uncertain in a post-Brexit world, even in the event of EEA membership.

 

 

[1] Candidate Special Areas of Conservation are sites that have been submitted to the European Commission, but not yet formally adopted.
[2] Sites of Community Importance are sites that have been adopted by the European Commission but not yet formally designated by the government of each country.
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This blog has been written by Cabot Institute member Dr Margherita Pieraccini, a Lecturer in Law at the University of Bristol. 
Margherita Pieraccini
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