July 4, 2012: Panel 6A - Environmental Law Diplomacy and Climate Change

Environmental Law Diplomacy and Climate Change Video

Wed, 04 Jul 2012 10:15:00 PDT

The Limits to Consensus-Based Decision-Making

Rene Lefeber et al. — Wed, 04 Jul 2012 10:15:00 PDT

In our paper, we will review decision-making under multilateral environmental agreements. Taking the deadlocks at the UNFCCC meetings in Copenhagen and Cancun as the point of departure, the paper will trace the rulebs and practice of global multilateral environmental agreements that were concluded before the 1992 United Nations Conference on Environment and Development (UNCED) and allow for decision-making by majority vote. Even though the rules of these agreements allow for decision-making by majority vote, the practice in the context of most of these agreements is to avoid voting at all costs or even to abandon decision-making by majority vote in favor of consensus-based decision-making. In contrast, the inability of states to agree on voting rules under multilateral environmental agreements since the 1992 UNCED makes consensus-based decision-making imperative by default. Although decision-making under these agreements has been successful for many years, the threat of a single state or a limited group of states to block decision-making has become reason to question the effectiveness of consensus-based decision-making. Even when consensus can be reached, it often, unfortunately, reflects no more than the lowest common denominator. Pressure placed on isolated states will frequently result in them agreeing to join consensus, while lodging formal objections intended to prevent the adoption of the very decisions they tolerated or “supported.” In spectacular showdowns, presidents of meetings have on occasion overruled formal objections and declared decisions adopted. Such dilemmas have raised a number of legal questions, and legal opinions attempting to answer these questions have stretched and contorted the rules of procedure to ludicrous extents (a sort of legal “hokey pokey”) in the effort to validate adopted decisions. It will need to be ascertained – objectively – whether decisions reached in such procedural quagmires are valid or null and void (or even whether logic and fairness demand that valid decisions be nullified). The authors will argue that global environmental problems require global action, global action can only be achieved by consensus-based decision-making, and consensus-based decision-making depends on respect for the rules of the game.

Teaching the Art of Environmental Diplomacy

Ann Powers — Wed, 04 Jul 2012 10:15:00 PDT

International Environmental Law is a framework of obligations, measurable norms, and consultative procedures associated with elaborating these norms and facilitating their implementation. It is through the practice of multilateral environmental diplomacy that Nations primarily establish international environmental law. These multilateral negotiations take place in the General Assembly or the Economic & Social Council of the United Nations or in other treaty organizations, such as the Conference of the Parties of the Convention on Biological Diversity or the World Conservation Congress of the International Union for the Conservation of Nature and Natural Resources (IUCN). Such environmental diplomatic negotiations are on-going and reiterative, and shape specific international law instruments, such as policy documents (“soft law” such as Resolutions or Declarations) and new international agreements (“hard law” such as treaties or protocols), or decisions made by treaty organizations (such as decisions of a competent international body, binding on the organizations and its members states).

Although it is difficult for students to find employment in environmental diplomacy related positions immediately after graduation it does occur, and others work their way into such positions. Because few international governmental and non-governmental organizations, or multi-national companies, hire directly out of law school it is especially important for students to demonstrate practical experience in the field. This is difficult to do, since for the most part law schools offer doctrinal courses which provide a base of knowledge, but no practical experience. For this reason Pace Law School developed among its experiential learning courses an experiential learning opportunity for law students to study environmental diplomacy and to participate in the process of intergovernmental, multilateral environmental decision-making, and to consciously reflect upon and evaluate those experiences in a United Nations Environmental Diplomacy Practicum. The Practicum comprises a seminar taught by Pace faculty with extensive UN experience, and placement with a country diplomatic Mission at the UN. For the most part these are Missions of Small Island Developing States, or other Less Developed Countries, which benefit greatly from the work of the law student interns.

Students learn first-hand how environmental diplomacy shapes the laws which they study in their public international law or international environmental law courses, and they garner unique knowledge from being inside the UN, which is useful in employment with the many international nongovernmental environmental organizations that work at and with the UN, or for law practices that must understand how decision-making functions within the multilateral environmental agreements that affect their clients. The UN Diplomacy course is often a transformative experience for students, providing experiential learning at a deeper level than most such courses.

This presentation will examine both the doctrinal and experiential aspects of teaching such an experiential course. While the unusual issues raised by the unique forum will be considered, the transferability of pedagogical strategies to other teaching situations will be explored.

The Climate Change COP 17 Debacle: Is This the Beginning of the Failure of International Environmental Diplomacy?

Tumai Murombo — Wed, 04 Jul 2012 10:15:00 PDT

Increasingly it is becoming apparent that addressing global environmental problems through international diplomacy is not working optimally. Through the lenses of the recent Conference of the Parties to the UN Framework Convention on Climate Change (COPs 15-17) this paper will analyse international environmental diplomacy and assess the extent to which it has been useful in promoting the objectives of sustainable development. In particular it appears that progressively geopolitics is supplanting the underlying aim of international environmental law i.e. to deal with global environmental challenges. I conclude that there is a need for a rethink of how do we address global environmental problems to take into account the failure of the current international legal processes. An approach grounded in an understanding of the potential of regional diplomacy and agreements is preferred and could be more effective than global approaches.

Taking Stock of the Global Climate Consensus Reached in Durban

Elizabeth "Betsy" Burleson — Wed, 04 Jul 2012 10:15:00 PDT

The Durban agreements provide a mandate with which all greenhouse-gas emitting countries will commit to a common UN legal regime as early as possible but no later than 2015. Country parties also agreed that the new deal will take effect no later than 2020. For the first time, major emerging economies have agreed to negotiate a legal arrangement to reduce their national greenhouse gas emissions. EU's Climate Commissioner Connie Hedegaard notes that "outcome with legal force" is unclear consensus language but at least uses the term legal, an improvement over the Bali Roadmap. The new Green Climate Fund (GCF) has been established and can facilitate the dispersal of funds to poor countries. One of the areas still in need of work involves making substantial sums of money available now that the Green Climate Fund has been operationalized. The recommendation to raise funding via international shipping fees on carbon emissions was not retained in the final text.

The new Climate Technology Centre and Network is well positioned to greatly enhance the diffusion of pro-poor, ecosystem based, environmentally sound technologies. The Climate Technology Centre and Network can help coordinate Green Climate Fund financing to share R&D as well as existing mitigation and adaptation technologies. The annual Durban Forum is tasked with tracking capacity-building progress. The new Adaptation Committee is tasked with coordinating distribution of Green Climate Fund financing to low-income country adaptation measures, many of which will depend upon environmentally sound technology. Now that the Technology Mechanism is being established, low-income parties can develop and submit project proposals. These developments increase the ability of countries to cooperate to reach Cancun commitments agreed to last year, building upon innovative funding through the Green Climate Fund and adaptation coordination through the Adaptation Committee. Energy and ingenuity are core to bringing the Durban agreements to life. While we still struggle to agree on what constitutes a timely and robust response to climate destabilization, innovation is fueling common ground upon which to build multilateral trust.

Discussing the TRIPS / UNFCCC nexus on technology transfer can help close the 6-11 gigaton(ne) greenhouse gas gap. Retaining trust needs to go beyond postponing controversy. Addressing Intellectual property rights is within political reach and should be addressed in an open and inclusive manner. It appears that the Global Environment Facility (GEF) will support the operationalization and activities of the technology mechanism. It remains important to provide a framework for innovation hubs that ensure “environmentally sound” technology transfer. Life cycle analysis, capacity building, and cultural sensitivity can become central discussions. Knowledge portals can share best practices may through on-line uploading/downloading of innovations. This can help spread environmentally sound distributed power, battery innovation, rainwater harvesting, drip irrigation, culturally sound solar cookers and a wide array of other environmentally sound technologies. In addition to online clearinghouse capacity building, a network of innovation centers to facilitate diffusion of climate friendly innovations can now become a reality through the new Technology Mechanism.

Taking Stock – we are still on track for an unacceptable 3 to 4 °C rise in average world temperatures. Much remains to be done to get on track to limit average global temperatures to the political target of 2 or the scientific target of 1.5°C.

To address the urgency chasm, actions need to occur at every level and at a much greater pace. Among these actions, countries can strengthen pledges, implement strict emission accounting procedures that address carry-over and double counting.

It is important to realize that the journey is still a long one but to celebrate the significant international legal accomplishment set forth in Durban. The alliance among the EU, small island states, and least developed countries began to melt China, India, US frozen stances. Key emitting countries are now working together to flesh out a single legal arrangement to bring down greenhouse gasses. Innovation development, demonstration, and diffusion can help further enhance trust and close the emissions gap. While a political breakthrough, the success of the Durban agreement rests upon the ability of the international community to ramp up funding in order to accomplish both form and content – pledges and action.

Poor countries within the G77 reached out beyond larger emerging economies, encouraging major emerging economies to take on mitigation commitments. Collectively developing countries insisted Kyoto not end at an African gathering. The Kyoto Protocol has been extended, without Canada, Japan and Russia but including the newly listed greenhouse gas called nitrogen trifluoride that is used in semiconductor manufacturing. The EU conditioned extending the Kyoto Protocol upon launching new negotiations toward a comprehensive legal arrangement. Japan, Australia, Canada, Russia and the US insisted that a new agreement include major developing countries commitments to reduce greenhouse gas emissions. The Durban Platform encompasses this diplomatic agreement. It is officially known as the "Ad Hoc Working Group on the Durban Platform for Enhanced Action" and has begun to be referred to as AG-DP.

Another highly debated issue was included, namely to allow carbon capture and storage projects in the Clean Development Mechanism program under the Kyoto Protocol. A portion of these credits would be set-aside in a reserve given the uncertainty regarding carbon capture.

The details of project reporting as well as national appropriate mitigation action reporting continue to be worked out. Forestry discussions are also still underway. Countries agreed to increased transparency and accountability via detailed guidelines for biennial emissions reporting, subject to expert review and formal consultation among countries. Developed countries and funding institutions are to submit assistance strategies. Countries are also continuing efforts to enhance shared understanding of the water / climate nexus. Doing so can help achieve effective, reasonable, and equitable (1) mitigation, (2) adaptation, (3) environmentally sound technology diffusion, and (4) funding.

Climate adaptation and mitigation measures are to be coordinated with nationally defined development to achieve genuine sustainable development. The international community is now tasked with meaningful follow through on commitments agreed to in the Durban agreements.