Beyond Paris: Future generations and climate justice
by Dr Peter Lawrence, Senior Lecturer, University of Tasmania Law School
Climate change raises challenging issues of justice between generations. If we have a weak outcome to the Paris climate meeting in December, in the sense of countries not committing to strong enough action to keep greenhouse gas emissions below 2°C, then this will create unfairness towards future generations. This unfairness arises for two reasons. A failure by current generations to take action means that the burdens of climate change are transferred onto the next generation who have done nothing to cause the problem in the first place. The second reason is that the less action taken by this generation to address climate change means that proportionally more has to be done by the next generation.
Climate change also raises challenging issues of international justice (justice between countries now) which cannot be considered in isolation from intergenerational justice. One of the key challenges for international justice and a global climate regime is how to ensure that large developing countries such as China and India play their necessary part (the bulk of future emissions growth to come from large developing countries) in reducing emissions while taking into account their understandable concerns to rapidly develop economically, make energy available to all their citizens and lift their citizens out of poverty.
The climate agreement which emerges from the UN Paris meeting in December is likely to incorporate so-called intended nationally determined contributions (INDCs) which involve countries voluntarily making pledges to reduce greenhouse gas emissions or take other measures. The attraction of this bottom-up approach is that it maximises the chance of participation by all countries, and streamlines the negotiation process. The downside is that it may well lead to an underwhelming set of commitments that has little chance of putting the planet on target to a 2°C stabilisation path.
Does fairness or justice still have some role given this style of negotiation involving self-declared voluntary commitments or are we faced exclusively with “self-differentiation”? Countries in proposing INDCs have to explain the basis on which their commitment is “fair”, however fairness is (unfortunately) not defined. Given delays by countries in submitting INDCs there will now only be a one month period prior to the Paris meeting during which the UN climate change secretariat will undertake a technical evaluation as to the combined impact of the INDCs in relation to keeping global warning below 2°C. But at this point it is not looking good.
The process described above may suggest that reaching agreement on fairness is no longer important. This is not true in the sense that countries will remain reluctant to make ambitious pledges in INDCs if they have a sense that they are being asked to do more than represents their fair share. Moreover developing countries in particular are unlikely to make strong mitigation contributions unless funding commitments and technology development provisions in the regime are sufficiently strong.
Notions of “justice’ or “fairness” may seem a long way away from the hard world of international global climate politics, where states seem hell bent on protecting narrow national – and short term – security and/or economic interests. But international relations literature indicates that global environment agreements remain elusive unless there is at least some basic common understandings of justice.
What is the role of international law in climate justice? I would argue that both international and intergenerational justice requires a strong and legally binding global climate agreement to be agreed in Paris. A global agreement is essential as, absent a treaty, countries will be reluctant to impose costs on their economies in reducing greenhouse gas emissions where this puts them at a competitive disadvantage vis-a-vis other countries. It is also difficult to see how countries can be held accountable for action in reducing emissions absent a legally binding global treaty.
There is a risk that any Paris climate agreement will have widespread participation but falls short of the action called for by scientists in reducing greenhouse gas emissions, and therefore fails in terms of effectiveness and meeting the imperatives of justice.
Some have tended to assume that it does not matter whether the commitments made at Paris to reduce greenhouse gas emissions are voluntary or legally binding. However, the form in which mitigation commitments are made does matter in terms of delivering intergenerational justice. Arguably, hard law commitments are more likely to be effective. Empirical studies in this area are difficult to interpret as it is hard to show whether countries take action owing to the hard nature of the commitments, or whether they take action that they were going to do anyway. Nevertheless, where treaties seek to modify economic behaviour in areas where there are strong incentives not to comply (e.g. WTO agreements) it is no mistake that countries embody such commitments in legally binding treaties.
While a legally binding agreement with hard law mitigation commitments may be the optimal outcome at Paris, political realities may mean that we have a messier outcome with a considerable amount of the agreement included in non-binding conference of parties (COP) decisions. Even if this occurs, voluntary commitments could still be combined with strong reporting requirements to maximise compliance. Moreover, it remains important to continue work beyond Paris to further develop the climate regime and seek to ensure that commitments are made binding under international law.
This article first appeared on the Edward Elgar Publishing’s blog page:
 See Peter Lawrence, Justice for future generations, climate change and International Law (2014) http://www.e-elgar.com/shop/justice-for-future-generations?___website=uk_warehouse .
 Lavanya Rajamani, ‘Differentiation in 2015 Climate Agreement’, Centre for climate and energy solutions (June 2015 http://www.c2es.org/docUploads/differentiation-brief-06-2015.pdf.
 See the interesting comparative analysis of INDCs and how much they are likely to contribute to keeping global warming below 2° – and how fair they are – undertaken by five climate research institutes http://climateactiontracker.org/
 Rebecca Byrnes and Peter Lawrence, ‘Can “Soft Law” Solve “Hard Problems”? Justice, Legal Form and the Durban-Mandated Climate Negotiations’ (2015) 34(1) University of Tasmania Law Journal 34-67 (http://www.utas.edu.au/__data/assets/pdf_file/0003/744654/Byrnes-and-Lawrence-Can-Soft-Law-Solve-Hard-Problems.pdf)
Image courtesy of why 137
Photo portrait below by Sylvia Lawrence
Dr Peter Lawrence is a Senior Lecturer at the University of Tasmania (UTAS) Law School where he teaches international law and supervises the University of Tasmania Law Review. Peter’s key area of research concerns the interface between ethics, justice, climate change and international law. He recently published Justice for Future Generations, Climate Change and International Law (Edward Elgar Press, 2014). Previously Peter worked for the Australian Department of Foreign Affairs and Trade (1989-2004) which included working as the First Secretary for the Australian Permanent Mission to the United Nations in Geneva (1996-1999). In 2014, Peter gave public presentations at Kobe University, Japan and the University of Oxford and in 2015 at University of Sydney and Monash law Schools. Peter can be seen singing Owen Davies’ climate change songs on youtube - https://www.youtube.com/watch?
Posted by Future Justice on 6 November 2015