Seattle University School of Law The North-South Divide in International Environmental Law: The Problem of Climate Change Prof. Carmen G. Gonzalez Seattle University School of Law October 4, 2016

International Environmental Law and the Global South (Cambridge University Press, 2015)

Welcome to the Anthropocene Human economic activity has exceeded ecological limits, including the following four planetary boundaries: Climate change Deforestation Species extinction Phosphorus and nitrogen runoff from agriculture Source: Will Steffen et al, Planetary Boundaries: Guiding Human Development on a Changing Planet, 347 Science 1259855 (2015)

Economic Inequality 20% of world’s populations consumes 80% of the planet’s resources and owns 95% of planet’s wealth In 2015, just 62 individuals were as wealthy as the planet’s poorest 3.6 billion

Billions struggle to satisfy basic needs Nearly 750 million lack clean drinking water 2.5 billion lack sanitation Nearly 800 million suffer from chronic undernourishment 2.8 billion lack access to modern energy for cooking, lighting, transportation and heating

Climate Debt: polluter pays principle Between 1880 and 1990, the global North generated 84 percent of the planet’s fossil fuel-based carbon dioxide emissions and 75 percent of deforestation-related carbon dioxide emissions. The North’s current per capita emissions dwarf those of the South.

Common But Differentiated Responsibilities (CBDR) 1992 Rio Declaration on Environment and Development, Principle 7: “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit to sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”

United Nations Framework Convention on Climate Change (UNFCCC) Preamble notes “that the largest share of historical and current global emissions has originated in developed countries, that per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs.”

United Nations Framework Convention on Climate Change (UNFCCC) Preamble acknowledges “that the global nature of climate change calls for the widest possible cooperation by all countries . . . In accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.”

United Nations Framework Convention on Climate Change (UNFCCC) Article 3 (1): “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.”

UNFCCC and Kyoto Protocol Differentiate between developed and developing countries Obligate the North to take the lead in addressing climate change Impose binding emission reduction obligations only on developed countries

Environmental Justice Distributive justice Procedural justice Corrective justice Social justice

Climate justice Distributive justice Procedural justice Corrective justice Social justice

Critique of North-South binary Ignores diversity among “developing countries” State-centric approach excludes vulnerable communities in both the North and the South

Indigenous peoples and climate change Reside in vulnerable geographic locations Cultural and spiritual ties to land Legal connection to land Climate solutions grounded in indigenous environmental knowledge

International law & indigenous peoples 1989 -- International Labor Organization’s Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) 2007-- United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

Bridging the North South Divide The Paris Agreement – more nuanced conception of common but differentiated responsibilities Litigation – access to justice, public awareness, shift to renewable energy Energy justice– win-win solutions to climate change mitigation and poverty alleviation

Common But Differentiated Responsibilities under the Paris Agreement Preamble, Arts 2.2, 4.1, 4.3, 4.4, 4.19.13.1, 14.1, 15.2 Wording differs from UNFCCC: “principle of equity and common but differentiated responsibilities and respective capabilities in light of different national circumstances.”

Key elements of Paris Agreement Objective: hold global average temperature increase to well below 2°C above pre-industrial levels; strive for 1.5°C Mitigation: Nationally Determined Contributions (NDCs) Adaptation Loss & Damage Finance Transparency, Stocktaking & Compliance

Litigation in the Inter-American Human Rights System by Indigenous Peoples Petition by the Inuit Circumpolar Conference to the Inter-American Commission on Human Rights (2005) Petition by the Arctic Athabaskan Peoples to the Inter-American Commission on Human Rights (2013)

Potential Litigation by Small Island Developing States Claims regarding ocean acidification under the UN Convention on the Law of the Sea Efforts to obtain an advisory opinion from the International Court of Justice “on the responsibilities of States under international law to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not damage other States.”

Litigation in the United States Litigation to retire coal-fired power plants, address waste and emissions, and prevent coal mining and coal exports Public trust litigation to require state and federal government action to reduce greenhouse gas emissions Potential litigation against the fossil fuel industry for knowingly deceiving the public and investors regarding climate change

Energy Poverty & Black Carbon Indoor air pollution: 4 million premature deaths per year Second most significant contributor to climate change Deforestation Cheap and immediate mitigation Decentralized, renewable energy for the energy poor

Further reading Paris Agreement: http://newsroom.unfccc.int/paris-agreement/ U.S. climate litigation tracker: http://web.law.columbia.edu/climate-change/resources/us-climate-change-litigation-chart Non-U.S. climate litigation tracker: http://web.law.columbia.edu/climate-change/non-us-climate-change-litigation-chart

Further reading International Environmental Law and the Global South (Cambridge University Press, 2015) https://www.amazon.com/International-Environmental-Law-Global-South/dp/1316621049/ref=mt_paperback?_encoding=UTF8&me= International Energy and Poverty: The Emerging Contours (Routledge, 2015) https://www.amazon.com/International-Energy-Poverty-emerging-Routledge/dp/1138792314/ref=sr_1_1?s=books&ie=UTF8&qid=1475024259&sr=1-1&keywords=international+energy+and+poverty