The field of law has, in many ways, been the poor relation in the worldwide effort to deliver a cleaner, healthier and ultimately fairer world, according to the Climate Justice Programme on its website at www.climatelaw.org. The position seems set to become even worse at the upcoming United Nations climate conference starting at the end of November in Durban.

The current carbon dioxide reduction agreements under the Kyoto Protocol, in terms of which developed countries have accepted legally binding emissions targets, expire at the end of 2012.

Indications from various global preparatory meetings, in the run-up to the 17th Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change, are that there is enormous resistance to the setting of new targets.

At a recent pre-COP 17 conference of top global politicians and diplomats, held in Berlin, Germany to discuss – by looking at various scenarios – how global warming will affect the world, few if any believed that the Kyoto Protocol could 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 is practically only Europe that, to date, has implemented the Protocol.

The Kyoto 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 non-governmental organisations have had no real luck to date to make 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.

No enforcement

As the Climate Justice Programme website 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 this year in the US, 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. It 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” that deserves special protection.

Similar lawsuits and regulatory petitions were filed by attorneys representing youths nationwide.

Advocates involved in the lawsuits have said a victory in even one or two cases would give environmentalists leverage, leading to new regulations to rein in greenhouse gas emissions which, 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.

Canadian example

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, it 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 Canadian government was legally required to publish, within 60 days, a plan to comply with the country’s commitments under the Kyoto Protocol.

The Stephen Harper government responded in August 2007 with a plan which, the applicants allege, plainly fails to meet the requirements of the KPIA.

In October 2008, Justice Robert Barnes of the Federal Court ruled against FOTE, holding that the case raised a political question, not a legal one: “[T]he 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 – meaning it is not an issue the courts can resolve.

FOTE appealed to the Federal Court of Appeal but, on 25 March 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 may 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 European Union member states agreed to campaign jointly 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 been on the wall since COP 15 in Copenhagen in 2009 when Europeans failed in their attempt to achieve a comprehensive climate treaty. The US 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 under way for some time. Privately, no German negotiator believes that the Kyoto Protocol can 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.

Whatever legal basis there may have been to hold countries to emissions targets seems to be fast evaporating, and a brand new legal battle may be looming.

One of the subjects discussed recently at meetings in Europe was: What will happen to the fishing and mineral rights of island nations that may be washed off the face of the earth as a result of global warming?