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By Sandra Arntz, Sjoerd Bakker, Samuel Ballin, Sophie van Dongen and Eliane Iven
Editors’ note: You may first read Part 1 of this blog post.
4. International criminal law and the environment
Sophie van Dongen researches the possibility of prosecuting environmental harm caused by, among others, climate change on the basis of the current body of international criminal law.
International crimes are often understood as serious violations of international human rights law. Therefore, one way in which environmental harm and climate change could fall within the ambit of international criminal law is because of their potential to violate human rights on a large scale. Climate change could have a potentially catastrophic effect on the enjoyment of certain human rights, such as the right to life, health, private and family life, housing, food, water and sanitation, and culture and development. A growing body of (inter)national climate change litigation acknowledges these potentially disastrous effects of climate change and particularly the lagging climate action of states on human rights Examples include the Urgenda case in the Netherlands, Held v. State in the United States, and a number of climate cases currently pending before the European Court of Human Rights.
Numerous international organizations, such as Human Rights Watch, Amnesty International and the OHCHR, called for the placement of human rights on the forefront of the COP28 agenda. The programme and outcome of the COP28 show that these calls were not heeded. Human rights are only mentioned explicitly once in the First Global Stocktake, a sort of progress report of how states have so far collectively implemented the Paris Agreement, which emphasizes the importance of States respecting their human rights obligations when taking climate action. Moreover, the Climate and Health Declaration, which was passed during COP28 and endorsed by over 120 states, although it does not reference human rights explicitly, does acknowledge the detrimental effects of climate change on human health and recognizes it as a future priority of international climate action.
The role of human rights and international criminal law at the COP28 therefore remains highly limited, if present at all. But, the developments at the COP28 mentioned above do create the hope that the role of human rights will increase at future COP editions. If human rights were to be featured more prominently within global climate action, perhaps there could be a larger role for discussions surrounding the potential liability for particularly serious human rights violations resulting from climate change as well, for example on the basis of international criminal law.
5. Loss and damage: The rights of people on the move
Samuel Ballin’s research examines the economic-ecological vulnerabilities and rights of third-country national migrant workers in the EU. The rights of people on the move has been a key issue in climate change governance now for decades. The Intergovernmental Panel on Climate Change has consistently highlighted migration and displacement as the single greatest impact of climate change on human populations. Other bodies including the World Bank have issued their own projections and warnings about mass displacements warnings about mass displacements, whilst the UN Human Rights Committee has considered the question of whether deportation in the context of climate change violates the right to life.
COP28 saw some ambivalent progress for the protection people on the move, with the approval of the loss and damage agreement on the first day of the conference. ‘Loss and damage’ is the third pillar of climate change governance, responding to the impacts and consequences of climate change; it is intended to come in when the first two pillars of ‘mitigation’ and ‘adaptation’ fail. The new loss and damage agreement is expressly committed to promoting ‘equitable, safe and dignified human mobility in the form of displacement, relocation and migration[.]’ In its wording, it thus goes beyond the obvious ‘loss and damage’ case of displacement to include more voluntary and intentional forms of mobility.
In the weeks before the conference, Tuvalu and Australia also concluded the historic Falepili Union. The agreement enables Tuvaluan nationals to move and to work or study in Australia, whilst also affirming the importance of their citizenship and sovereignty outside the territory of Tuvalu, and pledging Australian support for Tuvaluan climate adaptation measures. Here again there is an agreement grounded in an expectation of future displacement, which attempts to pre-empt a situation of forced migration and protect the rights of people on the move.
The COP28 agreement appears to solidify the position of migration in all forms under the ‘loss and damage’ pillar, a process which began in 2012 at COP18. This profoundly affects the way the climate-migration nexus is framed and perceived. It shapes ideas of who should be included in the scope, as well as the kinds of rights and vulnerabilities to be considered. There is a risk, in fact, that locating ‘displacement, relocation and (other forms of) migration’ so firmly within the realm of loss and damage may do a disservice to populations on the move, shifting focus away from adaptation, citizenship and sovereignty rights to focus more narrowly on the simple right to migrate.
6. Offsetting CO2-emissions: Trading carbon credits?
Sjoerd Bakker's research focuses on the use of carbon removals to offset CO2 emissions. Forests for example, absorb CO2 as they grow, creating a balance between emissions and removals of CO2.
Under the Kyoto Protocol - the first treaty on cutting greenhouse gas emissions and the predecessor of the Paris Agreement - it was agreed that states could trade carbon credits (Arts. 6 and 12). This trading served both a financial purpose, financing less industrialised countries, and a climate purpose. Research has shown that the climate reliability of the traded carbon removals was very limited. As a result, many carbon emissions were only offset on paper, but in practice hardly any carbon emissions were compensated. This was regarded as a setback in the fight against climate change.
It was therefore decided not to continue the trading system. However, Art. 6 of the Paris Agreement provides for the possibility of establishing a new trading scheme. The first step in creating such a scheme is to develop a sound methodology. Without such a methodology, a market will never be reliable and useful for climate change policy. The methodology of this scheme was negotiated at COP28. This entails, among other things, the legal relationship between carbon emissions and carbon removals, and technical aspects about the carbon registries. There has not been a major breakthrough with regards to these topics. Therefore, is not obvious that (re)introduction of a carbon market under the UNFCCC will take place.
Perhaps that is good news. To combat climate change, there first needs to be a big reduction in CO2 emissions. In the Dutch Urgenda case the Supreme Court ruled that cutting back CO2-emissions is important because of Arts. 2 and 8 of the ECHR, which protect individuals against the consequences climate change. If there is no ‘real’ offsetting of carbon emissions, the protection of these human rights will be up for grabs.
7. Conclusion
In these blog posts (Parts 1 and 2), we have commented on the developments at COP28 from the perspective of our five different legal topics. We mainly conclude that there were positive developments at COP28, but that there are still major steps to be taken to mitigate climate change and to protect human rights through climate policy. At the same time, we also find that while there are many ideas on the table, it is proving difficult to translate these ideas into concrete results.
This is the reason that we are already looking forward to COP29, which will take place in Baku. We are curious to see how the Loss and Damage Fund will unfold and if the states will be able to further develop a financial framework and/or provide sufficient additional funding towards implementing climate policies, projects and programmes. We also wonder whether it is possible to work towards a human rights-based approach in the governance and structure of climate action and climate finance. After all, one of the co-existing goals of climate policy is to protect human rights.
At last, it will also be interesting to see whether a carbon market comes into being. We stress that 'real' emission reductions should be the main goal and we hope that this will be at the centre of COP29.
'It's not easy being green,’ Kermit complains. We sometimes wonder if this song is playing on a loop in the minds of our political leaders. And indeed, it is not easy being green, but ‘green is all there is to be’. We hope that policymakers come to the same conclusion as Kermit in his final line: ‘Being green is beautiful, and I think that's what I want to be.’
Bios:
Sandra Arntz , PhD candidate at the department of Jurisprudence
Sjoerd Bakker, PhD candidate at the department of Administrative Law
Samuel Ballin, PhD candidate at the Centre for Migration Law
Sophie van Dongen, PhD candidate at the department of Jurisprudence
Eliane Iven, PhD candidate at the department of Constitutional Law