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The applicability of tort law to conduct contributing to the causes of climate change (“emitting conduct”) has been questioned by courts in Common Law jurisdictions. The golden thread running through the decisions is that plaintiffs have failed to prove the existence of a standard by which to distinguish acceptable from unacceptable emission of greenhouse gases. In this article I argue that the problem of an inexistent standard of conduct is at the root of many other legal difficulties thrown up by attempts to portray emitting conduct as tortious conduct. The humble requirement of a standard of conduct captures the core mismatch: emitting conduct is normal conduct and in no accepted objective sense is it unreasonable.

In: Climate Law
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The paper considers the changes to the base-year GHG-emission inventories of Annex I parties to the Kyoto Protocol (herein referred to, simply, as Annex B parties) made in the course of the review of those inventories by expert review teams. I ask whether, in the reporting practices of these states, any general tendency is observable of states misreporting (at an advantage to themselves) their emissions prior to the expert review. I conclude that the information to date raises many questions but provides few concrete answers; nevertheless, the issue points to an important area of study within the larger field of environmental governance.

In: Climate Law
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Benoit Mayer’s new book The International Law on Climate Change is founded on the premise that the principle against transboundary harm is the core principle of climate law. Here, I show that premise to be mistaken. The principle against transboundary harm does not apply to the problem of climate change because climate change is not a transboundary problem. Even if the principle were applicable to climate change, it has been displaced by the climate change treaty regime. Because climate change is in fact a “commons” problem, the core principle of climate law is, or should be, that greenhouse gas emissions must be charged to the polluter (the polluter pays principle).

In: Climate Law
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The Global Stocktake compels states periodically to focus on the Paris Agreement’s ultimate aims. Without it, each state’s attention would have been fixated on its own Nationally Determined Contribution and little else. The Paris Rulebook clarifies how the stocktaking mechanism is to function—in all but one respect: although the rules keep the emphasis squarely on “collective progress” as the proper object of the stocktake’s assessment, the text is ambiguous on whether its implied opposite—individual state progress—is to be excluded from the assessment. The ambiguity rides mainly on the notion of “equity”—a term as dutifully inserted into key passages of the Rulebook as its explanation is studiously avoided. Whatever the negotiators may have intended in this respect, an objective construction of the Rulebook shows that an assessment of the individual progress of states is permitted to occupy a substantial part of the stocktaking process, except when it comes to formal reporting on the stocktake’s outputs. The non-exclusion of individual assessment from the dialogue that powers the stocktake means that, while the ideology of “national self-determination” may have succeeded in turning out an Article 15 Committee of unprecedented blandness, it has neglected to defend its flanks in the Global Stocktake, making for an unpredictable, yet potentially useful process.

In: Climate Law
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Despite the hopeful prediction in the New York Times story, we are very far from being able to use satellites to verify compliance with the Kyoto Protocol’s caps on greenhouse gas emissions of Annex I states. The problem is not only one of insufficiently developed or installed technology. “Satellite verification” would also mean changing the current system of reporting-and-review of state emissions, opening it up to independent scrutiny, and making it less forgiving of state evasiveness and ambiguity about emissions than it is now. Some states will be interested in this proposal and others will not. In any event, the current MRV system, built on bottom-up state reporting, will remain the dominant framework of international GHG emissions knowledge for the foreseeable future. To safeguard its own credibility, it must progressively be strengthened. In this article I outline the existing verification regime’s main shortcomings and argue that the most efficient way around them is to incorporate into the current MRV system top-down (satellite and surface) measurements, resolved by modeling software at the state level, and produced by independent scientific experts in cooperation with the UNFCCC.

In: Climate Law
A Journal on Climate Change and the Law
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A complex legal regime has evolved to frame the international response to climate, encompassing interconnected elements of public international law, transnational law and private law. At the core of the international effort are the UNFCCC, the Kyoto Protocol, and the Paris Agreement. Domestic legislative action dealing with mitigation and adaptation is gathering pace, especially in developing countries. The focus of the peer-reviewed journal Climate Law is on the many legal issues that arise internationally and at the state level as climate law continues to evolve and climate change continues to worsen.
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The content of international climate change law is being subjected to investigation and critical analysis after twenty years of international policy on climate change. The ila’s Legal Principles Relating to Climate Change are a contribution to this discussion. The ila has put forth a ‘principle of prevention’ as being not just relevant to, but at the very foundation of, climate change law—in particular mitigation law. In their article in this issue of the journal, Schwarte and Frank focus on the ila’s reliance on the prevention principle, endorsing the ila’s approach in this respect. However, as I argue in this comment, the principle of prevention is neither applicable nor of relevance to the problem of climate change, and thus cannot be an element of climate change mitigation law. I also question the ila’s utilization of another legal principle—the precautionary principle—as a basis for the development of an international law of adaptation.

In: Climate Law
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This article is the fifth in a series of papers on the International Law Association’s assertion that the principle of prevention (i.e. the obligation of states in international law to prevent transboundary harm, also known as the no-harm rule) properly belongs to the corpus of international climate change law. I have been the only participant in the debate so far to refute the ila’s position. Here, I respond to the fourth article in the series, by Benoit Mayer. While Mayer has produced a lucid and helpful argument, he commits several errors in the process of defending and elaborating the ila thesis. I address them under this essay’s broad title because they are essentially errors of method.

In: Climate Law
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The article discusses the development of the Paris Agreement’s provision on a compliance mechanism contained in Article 15 of the agreement. There is a risk that a compliance mechanism set up as a separate body within the new regime will be duplicative and dysfunctional. Keeping state parties to their Paris Agreement obligations can be achieved, instead, through the elaboration of pre-existing and already well-developed reporting-and-review processes under the United Nations Framework Convention on Climate Change (unfccc). In the past, these have generated sufficient pressure on states to maintain compliance with their unfccc obligations, and are likely to have the same effect for the new treaty. The fact that the Paris Agreement does not impose any onerous new obligations on states is a reason to continue to rely on existing processes. I show that the separate compliance body envisaged by the Paris Agreement has no obvious way to improve on the diffuse ‘compliance mechanism’ currently operating under the unfccc. The most efficient approach to ‘Paris Agreement compliance’, therefore, would be to delay implementation of the Article 15 mechanism and allow current practices, suitably modified, to continue for as long as their performance is satisfactory.

In: Chinese Journal of Environmental Law
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The article discusses the changes to the field of climate finance law contained in the Paris Outcome, consisting of the Paris Agreement treaty text and the cop Decision adopting the treaty. The changes are mainly of a procedural kind and relate to reporting and review of climate finance supplied or received, and to mechanisms that raise climate finance. The substantive part (i.e. the obligations on the amount to be supplied, which rest with developed countries only) is left largely unchanged by the Paris Outcome, although for the first time in a climate treaty, state obligations relating to climate finance are linked to avoidance of the 2°C warming threshold.

In: Climate Law