Building on the legal and public policy outcomes of COP26, all stakeholders including world-leading universities must now accelerate efforts towards Paris Agreement compliance for sustainable development, says Prof Marie-Claire Cordonier Segger, at the Leverhulme Lecture.
Climate change: Shattered planetary boundaries and rising global risks
Today’s critical global risks and challenges include poverty, pandemics and the shattering of planetary boundaries, especially climate change. Human activities, particularly fossil fuel combustion, are causing dangerous consequences. In November 2021, the level of 415 parts per million CO2 in the atmosphere were passed, leaving a carbon budget of just 400-500 GtCO2 remaining to limit overall warming to the target of 1.5°C above pre-industrial levels.[2]
Yet annual global emissions now exceed 40 GtCO2/year. Adding up all of the pre-COP26 nationally determined contributions under the Paris Agreement would still put warming on pace to reach 2.7°C by the end of the century.[3] Climate change impacts, including increased frequency and intensity of natural disasters, sea level rise, irreversible ecological damage, the spread of vector-borne disease, conflict over natural resources, and climate-induced displacement, disproportionally harm highly climate vulnerable nations and communities lacking capacity to respond. So while the costs of climate action are large, the costs of inaction are incomparably larger, and ever-rising, with disaster-related losses amounting to US$280 billion in 2021.[4]
All stakeholders including governments and international organisations, financial institutions and the private sector, and civil society including world-leading universities, must now accelerate their efforts toward the rapid and drastic course correction that is urgently needed. This includes the legal community using the tools of the law.
International policy and legal responses
The international community has been examining the scientific data, raising the alarm, and struggling to negotiate responses for over 75 years now. International conferences and debates have been leading slowly to clearer definitions of problems; to general commitments to cooperate; and to fragmented, incoherent, conflicting and sometimes even overlapping attempts to act. A common global policy agenda is crucial to guide more coherent global responses. The United Nation’s 17 Sustainable Development Goals (SDG) and their 169 associated targets for implementation cross many legal and policy challenges implicated and impacted by climate change.
The SDGs may be ‘soft law’, aspirational voluntary targets adopted to facilitate more coordinated international and domestic action, but a circle of international treaties and organisations – including the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, and entities such as the Green Climate Fund (GCF), as well as myriad national regulatory bodies across all spheres of human activity – provide tailored regimes to meet the SDG targets.[5]
Indeed, while the UNFCCC establishes a common framework for climate action, as a carefully crafted compromise intended to generate global participation, the Paris Agreement is predominantly a procedural ‘pledge and review’ commitment, with a core triangle of obligations. These are: (1) nationally determined contributions (NDCs) to the global response to climate change, backed by (2) significant new and additional climate finance, secured by (3) transparent monitoring and reporting, which permits collective stock-taking and public awareness leading to pressure for higher ambition.[6]
Under the Paris Agreement, Parties are obliged to submit and maintain an up-to-date NDC; to provide reports related to emissions reductions and technology transfer and financial contributions; and to participate in the facilitative dialogue. Despite the carefully crafted agreement, however, implementation of the Paris Agreement remains a critical challenge, particularly since each facet of these requirements demand embedded domestic capacity which is limited in many countries.[7]
Glasgow outcomes for implementation and compliance
Various noteworthy advancements to operationalise the Paris Agreement were agreed at the recent COP26 in Glasgow. Crucially, the Glasgow Climate Pact sets forth common timeframes for NDCs, aligning target dates in five-year cycles, and provides guidance operationalising the procedures and guidelines for enhanced transparency such as requiring Parties to adhere to standard and regular formats for the communication of information on emissions reductions, as well as financial flows, technology transfer, and capacity building. There was significant progress on carbon markets, including guidance on cooperative approaches for the trading of carbon credits, modalities to reinvest 5% of revenues in adaptation, and a work programme for non-market approaches. Additional progress was realised through new goals on climate finance including a call for developed countries to double their contributions toward adaptation by 2025, a mobilisation of at least $40 billion.[8]
Net Zero pledges and sectoral promises
Beyond the decisions of the full COP26, it is worth celebrating several notable multilateral commitments that were announced during the negotiations. Of particular significance is the Glasgow Leaders’ Declaration on Forests and Land Use under which 120 countries committed to halt and reverse forest land loss and degradation by 2030, setting aside public funds for forest conservation, and committing to make 75% of forest commodity supply chains sustainable by 2030. Further, 100 countries committed to collectively reduce global methane emissions by 30% by 2030 under the Global Methane Pledge, a highly significant goal because of methane’s potency as a greenhouse gas.
Glasgow also saw major strides in the alignment of finance flows with the Paris Agreement, as 450 firms in 45 countries committed to direct $130 trillion in assets towards the net-zero transition before 2050 through the Glasgow Financial Alliance for Net Zero (GFANZ). Seven new countries joined the Powering Past Coal Alliance, while 23 including major economies such as Indonesia, South Korea, Poland, Vietnam and Chile committed to phase out coal for the first time. New key national net zero commitments accompanied 151 new NDCs announced for 2030, noting also India’s goal by 2070 and the US by 2050. If fully implemented, these pledges would lead to 1.8°C to 2.4°C of global warming by 2100.[9]
However, realising these commitments together with new NDCs, in order to keep a pathway to 1.5°C viable, will require a broad range of law and public policy innovations and the scale-up of legal capacity. Indeed, of the 186 nationally determined contributions in the first-round of submissions, 169 Parties explicitly prioritised the need for legal or institutional reform to achieve their global contribution to climate change, with 99 Parties calling for increasing capacity-building for action, according to updated Centre for International Sustainable Development (CISDL) and Climate Law and Governance Initiative (CLGI) research.[10] The world’s climate law and public policy community, now more than ever, needs to strengthen knowledge, capacity and practice – exponentially.
Domestic law and public policy progress
In order to convert the commitments into actions, legal and public policy activities must underlie all aspects of implementing the outcomes of the Glasgow COP26 and beyond. Enabling legal frameworks and human rights protection can help achieve more sustainable GHG emission reductions. With reliable legal frameworks, for instance, communities can share benefits and burdens equitably in international mitigation schemes for low-carbon development.
Many laws and institutions are relevant to climate emissions reductions and the mitigation agenda, including rules governing energy development, transmission, use and conservation; land use planning systems, property rights and land tenure, and related access and benefit distribution systems; transportation laws, regulations and standards; pollution pricing, control and waste management, including for ‘black carbon’ and HCFCs; also Environmental Impact Assessment (EIA) laws, rules and registries for monitoring, verification, scientific review and access to scientific data; and corporate fiduciary duties, climate risk disclosure obligations and private contracting related to net zero commitments.
An enabling legal framework supported by the rule of law can also strengthen capacity and financing to adapt and promote resilience to climate change, and legal empowerment can promote more equitable, accountable, rights-based adaptation and resilience. Many laws and institutions are similarly highly relevant to adaptation, including legal and institutional frameworks for disaster risk reduction and management law; land planning, zoning, floods and coastal planning; construction and infrastructure regulations (urban plans, housing, energy); laws on public health, disease prevention and control; natural resource management laws, forestry law (including wildfire response) and water resource management; rules and regulations for climate-smart agriculture and food safety; good governance and anti-corruption codes.
Law reform is also crucial for climate finance. The rule of law, supported by enabling legal frameworks and safeguards, can ensure more effective access to and use of climate finance. Transparent and accountable legal reforms can help countries and projects attract and absorb climate finance, and communities can share benefits and burdens more equitably under clear regimes with recourse. Many laws and institutions are highly relevant to climate finance, including the laws and policies governing foreign ownership/investment, the rules governing access to climate finance for small and medium enterprises, rules governing renewable energy, fossil fuel and other relevant subsidies and taxes, laws and guidelines on financial services and intellectual property rights; rules and registries governing monitoring, verification, scientific review; also access to courts and alternative dispute resolution in the event of disagreements.
During COP26 professors, practitioners, judges and other leaders from international organisations, judiciaries, institutes, leading law firms and universities came together, pledging to increase climate law and governance capacity worldwide tenfold from 600 to 6,000 legal specialists by 2024, engaging qualified leaders in every legal system and converting ambition to obligation worldwide. [11]
Next steps for accelerators: Enhancing climate compliance, capacity and action
To successfully bridge the capacity chasm in climate law and public policy, institutions of all kinds must urgently increase their efforts to open opportunities for graduates and professionals to succeed in careers furthering the 17 SDGs, giving them agency to shape post-pandemic recoveries consistently with the principles of equity and climate justice. Institutions must also provide avenues for the scale up of relevant teaching and research, engaging a broad array of stakeholders and aligning research agendas and curricula with priorities of sustainability. Indeed, much more effort is needed, including by leading law, policy and business faculties, to foster innovative solutions worldwide at all levels across economies and societies.
The future landscape can therefore be viewed with concern, but also with some optimism. COP26 must serve as an invitation for more sustainable domestic and international climate law and policymaking in the future, and for increased engagement in the design, and implementation of climate change responses across all sectors and at all levels. Research and educational institutions will play a critical role in scaling up contributions to build capacity for climate change action, and much work remains to harness the full potential of law and policy communities of practice to foster, rather than frustrate, sustainable development.
Image: Climate Law and Governance Day 2021, Grand Opening, COP26, Glasgow.
[1] Leverhulme Trust Visiting Professor, University of Cambridge, Senior Director of the Centre for International Sustainable Development Law (CISDL); Full Professor of Law, Faculty of Environment, University of Waterloo; former senior legal advisory to the UNFCCC Presidency and Executive Secretary of the Climate Law and Governance Initiative (CLGI); this lecture highlights and builds on the collaborations of many partners through the CLGI since its inception in 2005 CoP11 in Montreal, Canada, with special thanks and acknowledgements to Tim Arvan, Tejas Rao, Dr Maria Antonieta Nestor and Freedom-Kai Phillips for their insights and drafting assistance, also Maeve McDermott and Valeria Zambianchi for their excellent research on legal and institutional reform in NDCs.
[2] IPCC. (2021). Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press. In Press.
[3] United Nations Environment Programme. (2021). Emissions Gap Report 2021. The Heat is On – A World of Climate Promises Not Yet Delivered. Nairobi. Online.
[4] FAO. (2021). The Impact of Disasters and Crises on Agriculture and Food Security. Rome. Online.
[5] Cordonier Segger, M.C. (2020). Towards an Honourable Future? Bridging the Capacity Chasm to Address Critical Global Challenges and Advance our Sustainable Development Goals. Lauterpacht Centre for International Law Blog. Online.
[6] Bodansky, D. (2016). The Legal Character of the Paris Agreement. Review of European, Comparative & International Environmental Law, 25(2), 142-150.
[7] Rajamani, L. (2016). The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations. Journal of Environmental Law, 28(2), 337-358.
[8] For further analysis of CoP 26 outcomes, see UK COP26 Presidency website.
[9] Birol, F. (2021). COP26 Climate Pledges Could Help Limit Global Warming to 1.8 °C but Implementing Them will be the Key. International Energy Agency Commentary. Online.
[10] McDermott, M., & Zambianchi V. (2021). Report on the Importance of Legal and Institutional Reforms in the Nationally Determined Contributions (NDCs) of the Paris Agreement. Centre for International Sustainable Development Law. Online.
[11] In late October 2021, CLGI partners co-hosted an online academic climate law and public policy preparatory conference on Climate Change, the SDGs and the Law at the University of Cambridge, with over 750 registrants from over 90 countries. On Friday, 05 November, during COP26, over 1,100 registrants from over 120 countries joined in Climate Law and Governance Day (CLGD) 2021 hosted online and in-person at the University of Glasgow, in partnership with Strathclyde and Cambridge universities, for 3 high level plenaries and 16 substantive sessions spanning all aspects of law and climate change. The Day culminated in a celebration of the new laureates of the 2021 Climate Law & Governance Global Leadership Awards and the 2021 International Student Essay Competition. To share outcomes at COP26 itself, on 06 November key municipal, national, and international legal innovations were shared in an Official Side-Event on Net Zero Climate Law and Governance – Advancing Ambition and Action to Implement the Paris Agreement and the SDGs. The interactive legal roundtable brought together leading experts from the Net Zero Lawyers Alliance, Centre for International Sustainable Development Law (CISDL), Glasgow Centre for International Law and Security (GCILS) and other partners of the Climate Law and Governance Initiative, also IKEM, the Asociacion Ambiente y Sociedad and Centro Humboldt. Further, on 07 November 2021, helping to train a new generation of specialists world-wide, the Climate Law & Governance Specialization Course hosted in the University of Strathclyde certified 163 in person and virtual participants from over 60 countries.
The views and opinions expressed in this post are those of the author(s) and not necessarily those of the Bennett Institute for Public Policy.
