Issue 3/2012
| Using Litigation to Enforce Climate Obligations under Domestic and International Laws Saheed A Alabi Climate change continues to affect global areas of importance such as human rights, the marine environment, and international trade. This article explores the use of litigation as an alternative way to combat climate change. Whilst there are a number of enforcement strategies under the climate change regime, litigation is not adopted as a means of enforcing obligations and commitments. However, there has been little development in strengthening the enforcement of climate obligations during Copenhagen 2009, Cancun 2010, and Durban 2011 climate talks. Few studies on climate change have proposed litigation as a method of enforcement under the climate change regime; they do not perform advanced analysis of the effectiveness of climate litigation specifically at the international level. This is imperative because of the ambition to litigate climate issues domestically and internationally.. The article proposes two main questions. First, how effective is climate litigation in reshaping global responses to climate change? Second, how strong is litigation in enforcing climate obligations (mitigation and adaptation)? In answering these questions, this article analyzes domestic and international climate cases to determine whether there has been or will be progress using climate litigation. |
| Phishing of European Emission Allowances and Resulting Legal Implications Dr. Markus Appel, Anna Burghardt In 2010/2011, the European Emission Trading System found itself subject to so-called phishing attacks during which millions of European greenhouse gas emission allowances were fraudulently obtained and subsequently resold. Since this scam, trading of affected emission allowances carries with it some legal uncertainty. |
| The Right to Water as an International Custom: The Implications in Climate Change Adaptation Measures Dr. Sara De Vido Water scarcity is a phenomenon of great concern at the international level. Climate change has significant impacts on water access, causing long dry period or intense precipitation, floods and drought. In the brief analysis, it will be proved through States’ practice that the right to water has almost achieved the status of a customary international norm as an independent human right, thus creating obligations upon all States. Considering the relation between water and climate change, it will be argued that the human right to water may be integrated in the adaptation measures provided for by the UN Framework Convention on Climate Change, even though the human rights and climate change regimes are distinct. The practice in climate change adaptation measures which consider the necessity of granting the access to water to the population is an element which supports the existence of an international custom recognizing the right to water as an independent human right. At the same time, however, this international custom may imply the development of a human rights-based approach in matters concerning climate change. |
| The Inclusion of Border Carbon Adjustments in Preferential Trade Agreements: Policy Implications Kateryna Holzer, Nashina Shariff Preferential Trade Agreements (PTAs) are an increasingly important part of the global trading system. At the same time Border Carbon Adjustments (BCAs) are begining to be considered a necessary policy tool to address the carbon leakage and competitiveness concerns associated with emissions pricing systems. This confluence of events raises the question: is there a useful role for BCAs in the implementation of PTAs? This paper argues that the inclusion of BCAs in PTAs has several distinct advantages; it may avoid the trade retaliatory measures that could arise from the unilateral imposition of BCAs, it does not rely on cumbersome and often ineffective multilateral discussions, and it might be legally feasible as it provides a method of, to some extent, circumventing barriers to the unilateral imposition of BCAs posed by WTO rules. The paper also explores options for implementing BCAs in PTAs by looking at the importance of the BCA rate, the role of rules of origin, and the manner in which bilateral negotiations can be beneficial, even in cases where BCAs are, in the end, implemented unilaterally. The paper concludes that PTAs can indeed play a useful role in implementing BCAs, suggesting that this is a policy worth further exploration |
| After Durban, what Legal Form for the Future International Climate Regime? Dr Sandrine Maljean-Dubois, Matthieu Wemaëre The first commitment period of the Kyoto Protocol is due to expire at the end of 2012, but no commitments have been adopted to date for a second period. Discussions about the fate of the climate regime beyond 2012 were supposed to end in 2009, in order to avoid a gap between the first and second commitment periods. But neither the Copenhagen climate summit (2009), nor the Cancun conference (2010) resulted in conclusion of a deal. They did not yield answer about the divisive issues of legal form and architecture of the future international climate regime. The Durban Conference (2011) no longer was able to avoid addressing these thorny issues. At the very end of the summit, a compromise was reached following long and difficult negotiations. Parties decided to extend the Kyoto Protocol through a second commitment period and launch a new round of negotiations under the Convention in order to adopt a more inclusive and ambitious international climate regime to be implemented from 2020. |
| Willing Power, Fearing Responsibilities: BASIC in the Climate Negotiations Anne-Sophie Tabau, Marion Lemoine This paper considers the rise of the BASIC bloc of emerging economies (Brazil, South Africa, India and China) and its influence in pursuing the adoption of an international agreement on climate change acceptable for all countries. It first questions the mere existence of BASIC as a negotiation group. Indeed, whereas the BASIC bloc is now a reality, BASIC countries do not formally want to be distinguished from the Global South. The study tries to explain this equivocal matter of fact by decoding the perimeter and dynamics of BASIC. It also analyses what would be a balanced outcome of climate change negotiations from BASIC’s point of view, through the three challenges any future agreement will have to take up, namely legitimacy, equity and effectiveness. It appears that BASIC may be considered in a transitive phase regarding the climate change issue. BASIC countries seem to want more power but to fear responsibilities. Therefore, they find it much more comfortable to experience their evolving status as parts of a group of other growing actors of international climate negotiations. |
| Country Profile: Australia Amelia Thorpe The OECD recently ranked the Australian economy as the strongest in the developed world. Per capita incomes are among the highest of any country and, despite accounting for less than a third of one percent of the global population, Australia ranks thirteenth by the size of its GDP. |
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