Climate Resilience: What’s Law Got To Do With It?

This roundtable event took place alongside the Partnership Day during the pre-COP in Fiji. The event capitalised on the mobilisation of the climate law and governance community to Fiji for the Pre-COP.

In framing the issue, Professor Marie-Claire Cordonier Segger (Centre for International Sustainable Development Law) highlighted the role of law and governance in helping or hindering climate action. She discussed how current regulatory and financial regimes still frequently continue to privilege carbon-intensive, unsustainable options. However, she also argued that it is still possible to limit the increase in global temperature to well below 2 degrees Celsius above pre-industrial level if major regulatory, institutional, economic and technological transformations are carried out immediately.

Zooming in on climate resilience, she suggested that enabling legal framework supported by the rule of law can strengthen capacity to adapt and promote resilience to climate change. In this context, she also discussed four concrete areas in which legal and institutional reform can contribute to climate change adaptation. First, good governance and integrity in construction regulation enforcement, including building codes, can prevent high casualties from natural disasters, especially among the most poor. Second, equitable and gender-sensitive water resources management governance systems improve access to safe drinking water by marginalized people. Third, human rights protection in eroding coastal zones secures better implementation of coastal planning policy, protecting the most vulnerable. Fourth, accessible institutions and clear rules contribute to compliance, equity and access to justice, preventing corruption, exploitation, administrative barriers and lack of effective climate policy enforcement.

Professor Cordonier Segger ended her presentation by pointing to the importance of considering laws at all levels – sub-national, national, regional and global – and stressing the imperative of making sure to include all stakeholders in drafting and implementing new legal and institutional frameworks.

Following the opening speech, Chitra Massey (UN Office of the High Commissioner for Human Rights (OHCHR) in the Pacific) explored the importance of human rights law in the context of climate change and forecast the work of OHCHR Pacific to safeguard the rights of all those vulnerable to climate change. Focusing on the Pacific she laid out how it will be necessary to strengthen human rights commitments on food, health, access to justice, education and employment. In the same context, she highlighted in particular the challenges that are and will be raised by climate displacement and the need to develop a strong framework of (human rights) protection. Lastly, she described ongoing and planned efforts by UNOHCHR in the area of climate change and law including the development of a law course on human rights defenders to be offered in 12 different campuses by 2018.

Wesley Morgan (University of the South Pacific) focused on the role of Pacific Islanders in the international governance system as well as ongoing normative change. He highlighted the unique moral authority of Pacific Islanders in influencing the rule development. Further, he also examined the influence of norm changes and global politics on governance framework, using the example of the fossil fuel industry.

 

Looking at the role of law in addressing climate change more broadly, Markus Gehring (University of Cambridge/British Institute for International and Comparative Law), focused in his his contribution especially on international (economic) law. He sketched the development of the legal climate change framework on the international level and illustrated how climate change is included in an increasing number of agreements and instruments including for example Fiji’s trade policy. Further, he elaborated on how there are numerous indeterminate terms in law, including business law, insurance law or human rights law and how these indeterminate terms can be given meaning by being interpreted in the light of the climate instruments and treaties and the Sustainable Development Goals.

James Cameron (ODI/Systemiq) provided the closing key note for the event. Describing the huge body of international law relevant to building resilience, he then explored efforts and tools to build a stronger framework to address climate change. He skillfully introduced the audience to the interaction between the international law on state responsibility, climate litigation and the resulting law creation on the local and national level. Addressing both the legal experts and those with a lesser background in law, he described the different grounds for bringing a claim in front of national or international tribunals and courts. In doing so, he explored the role of human rights and constitutional law in the growing body of climate change litigation as well as other options on how courts and law can be used in the future to further climate action and justice.

The event was moderated by Ayman Cherkaoui (COP22) who guided the discussion and stimulated debate throughout the event.