Achieving Justice and Human Rights in an Era of Climate Disruption International Bar Association Climate Change Justice and Human Rights Task Force Report

Task Force Members.
Acknowledgements.
Foreword by Mary Robinson, UN Secretary-General’s Special Envoy for Climate Change.
Glossary of Acronyms.
Executive Summary and Recommendations.
Recommendations.
Action Matrix.
INTRODUCTION:
CHAPTER 1. UNDERSTANDING CLIMATE CHANGE AND CLIMATE CHANGE JUSTICE:
1.1 The science of climate change.
1.2 The impact of climate change on natural resources.
1.3 The impact on individuals, communities and states.
1.3.1 Individuals.
1.3.2 Communities and cultures.
1.3.3 States.
1.4 The UN Framework Convention on Climate Change.
1.5 The importance of climate change justice.
1.6 Justice implications of mitigation and adaptation measures.
1.6.1 Justice implications of mitigation.
1.6.2 Justice implications of adaptation.
1.7 Moving from understanding to action.
CHAPTER 2. CURRENT LEGAL CHALLENGES IN CLIMATE CHANGE JUSTICE:
2.1 Environmental law regimes.
2.1.1 International environmental law framework.
2.1.2 Constraints of international environmental treaties.
2.1.3 Constraints of customary international law.
2.2 Human rights law regimes.
2.2.1 Framework of human rights treaties and customary international law.
2.2.2 Constraints of human rights law.
2.3 Trade law regimes.
2.3.1 Framework of international trade law.
-WTO non-discrimination disciplines under GATT and the TBT.
-Process and production methods (PPMs) under WTO Law.
-General exceptions to WTO obligations.
-Constraints of Subsidies and Countervailing Measures Agreement.
-Summary: constraints of WTO Law.
2.3.2 Framework of regional trade and bilateral investment law.
2.4 State responsibility and climate change liability.
2.4.1 Domestic climate change litigation.
-United States.
Federal regulatory litigation.
Public trust litigation.
Public nuisance litigation.
-Canada.
-South America.
-Australia.
-Asia.
-Europe.
-Africa and the Middle East.
2.4.2 State responsibility in international law.
2.4.3 Constraints of the International Court of Justice.
2.4.4 Constraints of an International Court for the Environment.
2.5 International law on climate change adaptation:
2.5.1 Framework of international law relating to climate change adaption.
2.5.2 Constraints for climate-change related migration.
2.5.3 Constraints for food security.
2.5.4 Constraints on technology transfer and access to information.
CHAPTER 3. ENHANCING LEGAL REGIMES TO ACHIEVE CLIMATE CHANGE JUSTICE:
3.1 Legal measures.
3.1.1 Climate change justice measures for individuals and communities.
-What rights are available for individuals and communities?
-Clarification of human rights obligations relating to climate change.
-‘Greening’ existing human rights obligations.
-Developing a minimum core of rights and duties.
-Recognising a freestanding right to a safe, clean, healthy and sustainable environment.
-Adopting optional protocols to incorporate a free-standing right into human rights treaties.
-Adopting optional protocols to enhance access to justice.
-Strengthening regional human rights bodies.
-Model Statute on Legal Remedies for Climate Change.
-Enhancing litigation rights and remedies.
-Substantive and procedural issues.
-Actionable rights.
-Standing.
-Causation.
-Knowledge.
-Relief.
-Liability.
-Interrelationship of claims.
-Limitation periods.
-Disclosure and discovery.
-Costs awards.
-Jurisdictional reach.
3.1.2 Climate change justice measures for states: international dispute resolution:
-What rights are available for states?
-Applicable fora to determine international claims against states.
-The Permanent Court of Arbitration.
PCA reach and expertise in environmental litigation.
Drawing on the PCA in existing treaty frameworks.
Adoption of the PCA model arbitration clauses.
-Other international arbitral fora.
-Transparency and precedent in international arbitration.
-International Tribunal for the Environment.
3.1.3 Climate change justice and corporate responsibility:
-Implementation of UN Framework on Corporate Responsibility to Respect Human Rights in the context of climate change.
-Reporting by corporations.
-Incorporation of ISO technical specification.
-Promoting access to information through mandatory requirements.
-Institutional monitoring of corporate actors.
-Regulation of corporations, at home and abroad.
-Sector-specific initiatives: finance and banking.
3.2 Capacity building and transparency:
3.2.1 Knowledge and skills transfer.
-IBA and IBAHRI climate change initiatives and network of climate change counsel.
-Increase technical assistance in UPR Reports.
-Use UPR Reports to highlight climate change justice issues.
3.2.2 Transparency:
-The Aarhus Convention.
-Encouraging the adoption of international and regional instruments guaranteeing environmental procedural rights.
-Enforcing the duty to promote the principles of transparency in international negotiation.
-Environmental impact assessments.
-Transparency in international arbitrations.
3.3 Institutional measures.
3.3.1 WTO reforms:
-Enhancing the WTO’s Committee on Trade and Environment.
-Greening the WTO disciplines: reconciling existing provisions
with climate change measures.
Appellate Body jurisprudence.
Clarification of the scope of Article XX exceptions.
-Amending the WTO agreements.
-Clarify the definition of a subsidy and facilitate the procedure for challenging subsidies.
-Establish a category of ‘non-actionable’ subsidies.
-Adopt an agreement on climate change, the environment or sustainable energy.
3.3.2 Bilateral and regional trade agreements:
-Clauses supporting environmental and non-derogation measures.
-Environmental chapters and side agreements.
-Supporting existing obligations under multilateral environmental agreements.
3.3.3 UNFCCC negotiations:
-Endorsing the UNFCCC process and a 2015 agreement.
-Tracking states’ climate change prevention and mitigation commitments.
-Expanding aid for domestic migration adaptation programmes.
-Improving the UNFCCC process: REDD+ and the CDM.
-Regulation of global fossil fuel reserves and the cumulative carbon budget.
3.3.4 Multilateral adaptation measures.
-Increased regulation of emerging carbon engineering technologies.
-Engaging UN expertise on challenges posed by rising sea levels.
-IBA Working Group on the Legal Aspects of Climate
-Change Adaptation.
-Climate change-related migration.
-Food security.
-Technology transfer.
Index.