Christina Voigt

State Responsibility for Climate Change Damages

The Intergovernmental Panel on Climate Change (IPCC) outlined in its Fourth Assessment Report (2007) various consequences of continuing greenhouse gas emissions into the atmosphere. The effects include the loss of land and property, health and ecological damages, threats to human security and potential human casualties. The question which this article seeks to address is whether and how international law is equipped to deal with complex global challenges such as climate change. Special focus is given to the law on state responsibility and its capacity to deal with damages that are caused by a changing climate. In this context, the following legal issues will be examined: Can states be held responsible under international law for current or future climate change damages? Is there an obligation under public international law to prevent and to compensate for such damages? Especially the determination of a primary obligation to prevent harm, acting with due diligence, the question of causality and the determination of legal consequences are considered. As the examples given by the IPCC show, there will be an increasing need to address the issue of compensation for climate damages. Justice, fairness and international, national and human security require international law to adjust and live up to these challenges.

‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement

The Paris Agreement has struck a careful balance between the need for ambitious and effective climate action and for fair effort sharing among parties based on differentiation. This article provides an overview of the negotiation history of differentiation and analyzes the ‘dynamic differentiation’ as built into the architecture of the Agreement. While being set against the normative background of the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement adopts a more diversified way of differential treatment among parties, approaching it in three complementary ways: firstly, on a principled basis, reflecting common but differentiated responsibilities and respective capabilities (CBDR-RC), in the light of different national circumstances; secondly, in the content of its articles, in particular on mitigation, finance and transparency; and thirdly, on the basis of the principles of progression and highest possible ambition, which represent new and dynamic aspects of differentiation. The authors argue that ‘highest possible ambition’ is reflective of a duty of care that states now need to exercise. It implies a due diligence standard, which requires each government to act in proportion to the risk at stake and to take all appropriate and adequate climate measures according to its responsibility and its best capabilities. By expecting parties to apply this standard at each successive preparation of nationally determined contributions (NDCs), and to progress beyond previous ones, the Paris Agreement has set up reiterative processes, an ‘international normative pull’ and a collective learning environment. This, in turn, creates a reflexive approach to parties’ determination of effort, promoting the evolution of voluntary cooperative behaviour.

Rule of law for nature : new dimensions and ideas in environmental law

Part I. Environmental Law at the Cross-Roads: Achievements, Shortcomings and Challenges: 1. Twelve fundamental challenges in environmental law: an introduction to the concept of rule of law for nature Hans Christian Bugge 2. Rule of law for nature in a kaleidoscopic world Edith Brown Weiss 3. Evolved norms: a canon for the anthropocene Nicholas A. Robinson Part II. A Rule of Law for Nature: Theories and Reflection: 4. Grounding the rule of law Klaus Bosselmann 5. The rule of natures law Cormac Cullinan Part III. Designing a Rule of Law for Nature: New Dimensions and Ideas: 6. Eco-logical proportionality - an emerging principle of law for nature? Gerd Winter 7. Sustainable development and the rule of law for nature: a constitutional reading Louis Kotze 8. The principle of sustainable development: integration and ecological integrity Christina Voigt 9. The need to recognize a coherent legal system as an important element of the ecosystem approach Froukje M. Platjouw 10. An emerging legal principle to restore large scale ecoscapes Anastasia Telesetsky 11. Traditional norms and environmental law: the sub-Saharan African case study Chinweze Chizoba, Jideani Chukwuemeka and Gwen Z. Abiola-Oloke Part IV. Natures Rights: 12. Rules of law for natures use and nonuse Jan G. Laitos 13. Realizing natures rule of law through rights of waterways Linda Sheehan Part V. Procedural Dimensions of a Rule for Law for Nature: 14. Towards a new instrument for promoting sustainability beyond the EIA and SIA: the Holistic Impact Assessment Massimiliano Montini 15. Enforcing environmental responsibilities. An environmental perspective on the rule of law and administrative enforcement Annika K. Nilsson 16. Mechanisms for reviewing compliance with international environmental law open to private parties Christina Verones Part VI. Rule of Law for Nature and the Role of Companies and Markets: 17. The green economy will not build the rule of law for nature Rebecca M. Bratspies 18. Taking nature seriously: can the UN guiding principles tame corporate profiteering? Surya Deva Part VII. A Rule of Law for the Oceans: 19. Conservation of marine biodiversity and the International Maritime Organization Tore Henriksen 20. Implementing the rule of law for nature in the Global Marine Commons: developing environmental assessment frameworks Robin Warner 21. Using the public trust doctrine to achieve ocean stewardship Mary Turnipseed, Michael C. Blumm, Duncan E. J. Currie, Kristina M. Gjerde, Peter Sand, Mary C. Wood, Julie A. Hambrook Berkman, Ryke Longest, Gail Osherenko, Stephen E. Roady, Raphael D. Sagarin and Larry B. Crowder.

The Warsaw Framework for REDD: Implications for National Implementation and Access to Results-Based Finance

The Warsaw Framework for REDD (WFR) has established a robust and comprehensive framework for the effective and sustained implementation of REDD activities while aiming at environmental integrity and tangible results. A critical element of the WFR are the modalities for measuring, reporting and verifying (MRV) greenhouse gas emissions and removals as an essential tool for linking REDD activities to results-based finance. This article describes the WFR and indicates six of its implications for the implementation of REDD in developing countries in the context of access to results-based finance. These include (1) the accumulative nature of the requirements to obtain results-based finance, (2) a higher degree of normative bindingness and (3) systematic integration of UNFCCC COP decisions on REDD. Furthermore, (4) the WFR enhanced transparency of MRV processes and (5) promotes centralization at the national level, by linking MRV processes to reporting obligations of developing countries under the UNFCCC and by providing the opportunity of creating a voluntary national entity or focal point for REDD, increasing the (6) need for inter-sectoral and inter-agency coordination. While all six implications will be discussed, the article highlights in particular the aspects of centralization and increased transparency.

Equity in the 2015 Climate Agreement

The success of the negotiations under the adp will depend, among other things, on a common understanding of equitable sharing of efforts and benefits. An equitable climate regime needs to be based on differentiation that is flexible and dynamic and only granted on a temporary basis. Finding reliable yet flexible and dynamic ways for allocating rights and responsibilities accordingly may be the main and toughest task in multilateral environmental treaty-making. This article anslyses differentiation in various multilateral environmental agreements and identifies ways for differentiating between states that could be helpful in a climate context.

The Legal Form of the Durban Platform Agreement: Seven Reasons for a Protocol

Decision 1/CP.17 limits the choice of legal form of a new climate agreement to three options: a protocol, another legal instrument or an agreed outcome with legal force under the Climate Convention. This commentary provides seven reasons for the conclusion that a protocol is the only viable legal option to serve the object and purpose of the convention. The reasons include, inter alia, the exclusion of non-binding, soft law under a ‘result based regime’, multilateralism, a 5 year timeline which indicates a ratification process and the agreements purpose of raising the level of ambition.

Up in the Air: Aviation, the EU Emissions Trading Scheme and the Question of Jurisdiction

From 1 January 2012, all flights departing from or arriving at the European Union are covered by the EU Emissions Trading Scheme (EU ETS). Amendments were made to Directive 2003/87/EC by Directive 2008/101/EC with the objective of reducing climate change impacts attributable to aviation, but also in order to avoid distortions of competition. The scheme now includes all airlines, including those from third countries, and accounts for emissions that occur partly outside the airspace of EU Member States. A large number of third countries claim that the extension of the Emissions Trading Scheme to legs of flights outside EU territory violates the principle of state sovereignty and deny the jurisdiction of the EU to regulate emissions that occur beyond its borders. So far, the validity of the EU regulation has been challenged by a claim brought by US and Canadian air carriers. They contended that, in adopting the Directive, the EU infringed principles of customary international law—in particular the principle of state sovereignty and the prohibition of extraterritorial application—as well as various international agreements. On 21 December 2011, the Court of Justice of the European Union ruled that the inclusion of emissions from aviation in the EU ETS is valid. In response, Chinese and Indian carriers threatened not to pay the charge, while US airlines pledged to consider other options. This chapter analyses the judgment of the Court and the opinion of Advocate General Kokott in this case. Particular attention is given to the question of extraterritorial jurisdiction and the understanding of state sovereignty in the context of global climate change mitigation. The chapter argues that the Court missed an opportunity to contribute to the clarification of the law on jurisdiction and to the development of climate law.

‘Case’ Studies: Cdm And Emissions Trading

This chapter attempts to identify some criteria that need to be in place for a climate measure to promote sustainable development according to the sustainability test. It in turn looks at the clean development mechanism (CDM) and emissions trading scheme. In the case of conflicts with multilateral trade norms, the ability of the CDM to serve as an instrument of sustainable development will be decisive. In this context, the exclusion of non-Member States and their legal entities to participate in the CDM will have to relate to the sustainable integrity of the CDM. When assessing a possible trade-discriminative effect of emissions trading under the sustainability test, the main question is whether emissions trading as a tool to implement mitigation obligations promotes sustainable development. An emissions trading scheme has been recognized as the most cost-effective and efficient market-based measure to attain emissions reductions.Keywords: clean development mechanism (CDM); climate measure; emissions trading; sustainable development

Applicability Of Non-WTO Law In WTO Dispute Settlement

This chapter assesses the applicability of the principle of sustainable development to world trade organization (WTO) dispute settlement. The existence of this principle and its usefulness in situations of normative conflict is one thing. Its relevance in trade disputes before the WTO Dispute Settlement System is quite another. Therefore, the chapter deals with the question of general applicability of non-WTO law to WTO dispute settlement. It is argued, the jurisdiction readily encompasses the legal tool to determine the balance and eventually priority of conflicting norms and respective interests and values. WTO law is part of public international law and not a closed or self-contained regime in the sense that no other law than the positive law of the WTO Agreements would apply to the resolution of a dispute about WTO Members rights and obligations.Keywords: jurisdiction; public international law; world trade organization (WTO) dispute settlement

The Clean Development Mechanism And WTO Rules

The implementation of the clean development mechanism (CDM) interacts with the economic relations between States, prompting yet another series of complex questions regarding the relationship to world trade organization (WTO) rules. Depending on WTO membership of the involved countries in a CDM project, WTO norms could govern all or parts of the economic relations. The operation of the CDM will involve substantial investment decisions and attract significant financial flows to and from Kyoto Parties that might not otherwise occur. Although WTO rules are not directly applicable to investments per se, they may nonetheless be relevant to the trade-related aspects of investment activities. This chapter focuses on General Agreement on Trade in Services (GATS). As an initial step, it seeks to scope the types of services involved in CDM projects. In the second step the chapter examines the relationship to rules of GATS.Keywords: clean development mechanism (CDM); General Agreement on Trade in Services; world trade organization (WTO) rules