Legal position is becoming even fuzzier

The field of law has, in many ways, been the poor relation in the world-wide effort to deliver a cleaner, healthier and ultimately fairer world, according to the Climate Justice Programme. The position seems set to become even worse at the upcoming UN climate conference in Durban.

The current CO2-reduction agreements under the Kyoto Protocol, in terms of which developed countries have accepted legally binding emission targets, expire at the end of 2012. Indications from all sorts of preparatory meetings throughout the world in the run-up to the Conference of the Parties (COP17) starting at the end of November in Durban, is that there is enormous resistance to the setting of new targets.

Word from a recent pre-COP17 conference of top politicians and diplomats from around the world held in Berlin, Germany to discuss how global warming will affect the world, by looking at various scenarios is that few if any of them still believe that the Kyoto Protocol can still be saved.

Without Kyoto or a new agreement to replace it, the world will soon lack any binding CO2 targets. As things stand it was just about only Europe which has to date implemented the protocol.

The protocol was in trouble from the word go when the United States refused to ratify it. In the words of a recent Der Spiegel-article: “The environment ministers and negotiators from roughly 200 countries, who will travel to Durban, South Africa at the end of November for the latest global climate conference, are a long way from breathing new life into the Kyoto process.”

As it is, concerned groups, activists and NGOs have had no real luck to date in making use of legal means to try and force governments to live up to their obligations and responsibilities in terms of the threats from climate change, even where there is legislation in place.

As the Climate Justice Programme-site puts it: “We have over 500 international and regional agreements, treaties and deals covering everything from the protection of the ozone layer to the conservation of the oceans and seas. Almost all, if not all, countries have national environmental laws too. But unless these are complied with, unless they are enforced, then they are little more than symbols, tokens, paper tigers.”

In June of this year in the United Sates the Montana Supreme Court denied a petition to declare that the atmosphere is a 'public trust' and that the state has a duty to protect and preserve the atmosphere. The court stated that it is ill-equipped to deal with the factual matters in the case.

The petition filed in May was part of a new legal strategy by activists trying to force government intervention on climate change by having the atmosphere designated as a “public trust” deserving special protection. Similar lawsuits and regulatory petitions were filed by attorneys representing US youth nationwide.

Advocates involved in the lawsuits filed around the country have said a victory in even one or two cases would give environmentalists leverage, leading to new regulations to rein in greenhouse gas emissions that scientists say are driving global temperatures higher.

Siding with the local Attorney-General Steve Bullock, the judge found that the case raised too many questions about Montana’s contribution to a global problem for a ruling on purely legal questions as sought by the plaintiffs.

Even in Canada, where there is a Kyoto Protocol Implementation Act (KPIA) in place, Friends of the Earth (FOTE) Canada had no luck with legal action between 2007 and 2010.

In the first climate change lawsuit in Canadian history they lodged an appeal with the Supreme Court seeking to argue that the government was breaking Canadian law by failing to comply with the KPIA.

The application alleged that the Federal Minister of the Environment and the Governor in Council were ignoring the rule of law by failing to comply with the Act, duly passed by Parliament.

Under the legislation, the government was legally required to publish, within 60 days, a plan to comply with the country’s commitments under the Kyoto Protocol. The government responded in August 2007 with a plan that the applicants allege plainly fails to meet the requirements of the Act.

In October 2008, Justice Barnes of the Federal Court ruled against FOTE, holding that the case raised a political question, not a legal one: "the court has no role to play reviewing the reasonableness of the government's response to Canada's Kyoto commitments".

In short, Justice Barnes found that the government was accountable to Parliament, not to individual litigants, in respect of its climate change strategy. He further ruled that the legislation itself is not justiciable ­– mening it is not an issue the courts can resolve. FOTE appealed to the Federal Court of Appeal.

On March 25, 2010, the Supreme Court of Canada denied leave to appeal the decision of the Federal Court of Appeal in Friends of the Earth v. Canada. This brought to an end the effort by FOTE to force the government of Canada to comply with the Kyoto Protocol.

It would seem that European countries might be the only ones left still fighting for new binding targets within the framework of the Kyoto Protocol. During recent discussions, environment ministers from the 27 EU member states agreed to jointly campaign for more negotiations in Durban, but with a transitional period lasting until 2015. This is an apparent attempt to buy time and to keep the Kyoto Protocol nominally active.

The writing has however been on the wall since COP15 in Copenhagen in 2009. The Europeans failed there in their attempt to achieve a comprehensive climate treaty. The United States and three emerging powers, China, India and Brazil, aligned themselves against Europe to block binding targets.

On the surface, the German government is fighting for a new agreement and regularly brings together decision-makers from around the world to save what can still be saved. But preparations to withdraw from the protocol have been underway for some time. Privately, no German negotiator still believes that the Kyoto Protocol can still be saved, Der Spiegel reported.

Since the Copenhagen summit, the practical alternative to the binding climate treaty is to maintain an informal list. Each country voluntarily enters its national climate protection goals into this document. There likely would be some sort of mechanism to monitor compliance with these goals. But there would be no consequences whatsoever for countries that fail to meet their own targets.

And as whatever legal basis there might have been to hold countries to emission targets seems to be fast evaporating, a brand-new legal battle might be appearing over the horizon. One of the subjects to have been discussed recently at meetings in Europe was: What will happen to the fishing and mineral rights of island nations that might be washed off the face of the earth as a result of global warming?

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