COP17 Climate Law Conference

February 1st, 2012

Report by Kim Hawkey

To tie in with the 17th Conference of the Parties (COP17) to the United Nations Framework Convention on Climate Change (UNFCC) that took place in Durban late last year, an inaugural annual conference focusing on the legal and governance aspects of climate change in developing countries was convened from 3 to 4 December.

The conference, titled Climate Law and Governance in the Global South, was convened by the International Development Law Organization (IDLO), the Centre for International Sustainable Development (CISDL), the Law Society of South Africa and local law firm Warburton Attorneys at the University of KwaZulu-Natal.

Speakers from across the globe addressed delegates on topics such as recent trends in South African climate law and policy, teaching climate change law and legal preparedness for climate change in developing countries.

Guest speakers included former Irish President Mary Robinson and head of Greenpeace Kumi Naidoo.

Below is a summary of some of the key discussions at the conference.

During the opening ceremony, the head of economic growth and trade at the IDLO and senior director of the CISDL, Professor Marie-Claire Cordonier Segger, said that some of the key challenging legal issues in respect of climate change were overcoming legal and institutional barriers to adaptation, strengthening legal aspects of mitigation, law enforcement and access to justice.

Ms Cordonier Segger said that both legal and institutional reform was important and that a ‘tailored legal response’ inclusive of trade rules and tax regulation, for example, was needed. She added that legal preparedness started with an analysis and recommendations for legal reform and that the aim of the conference was for delegates to learn from each other.

Andrew Gilder, head of the climate change and carbon markets law practice at Warburton Attorneys, added to this by saying that the idea behind the conference was to have a conversation between developed and developing countries and aimed to give developing countries a voice.

In delivering the first keynote address, Amina Mohamed, deputy executive director of the United Nations Environment Programme and former Kenyan permanent secretary and chief executive officer of the Ministry of Justice, National Cohesion and Constitutional Affairs, told those present that the ‘time and place could not be more opportune’ for such a conference, as climate change could not wait to be addressed.

‘There is already mounting evidence of the impacts that fundamentally affect the health and well-being of people and the planet,’ she said.

Ms Mohamed said that there was a disparity between developed and developing countries, with the latter being most vulnerable to the detrimental effects of climate change, despite contributing the least to the problem.

‘All face the threat of climate change, but particularly developing countries, which need to adjust to the changes and hazards from climate change. … They are disproportionally affected as they contribute very little to the problem,’ she said.

In addition, climate change would undermine the development efforts and progress in Africa and rest of the developing world, she said.

Ms Mahomed said that there were mounting calls for legal, economic and other frameworks that were adequate to address climate change challenges. She stressed that every option must be explored and that legal and governance structures could assist in several ways.

‘The nexus between policy development and the law is fundamental. Law and governance for climate change is becoming increasingly non-optional.’

She said that existing legal and governance systems were inadequate to capture the incentives needed for developing countries to engage on climate change as climate change and responses to it would have important economic impacts.

Ms Mohamed said that some of the ‘big matters’ that needed to be addressed included that most developing countries lacked a cohesive plan, and some did not have comprehensive planning progress, which resulted in a fragmented approach. She said there was ‘a widespread tendency’ to place climate change issues squarely in the environmental arena, which did not adequately address issues relating to gender and poverty.

The approaches, she said, were dominated by state actors, which undermined key governance principles such as equity, transparency and accountability.

‘There is very limited space for civic engagement due to financial, human resources and political constraints, so international NGOs (non-governmental organisations) tend to dominate. And implementation is often externally driven. The activities by NGOs result in a lack of oversight at national level and many do not have local level representation.’

However, she said that making a diagnosis of the problem only ‘takes us halfway’.

She said that it remained ‘indecisive’ which model was preferable over others, but that an integrated approach was needed.

She said that a definition of ‘national interest’ in respect of climate change was necessary as understanding of the term was contested and often changed over time, and climate change would impact on national welfare in the long term.

‘Central to the notion of sustainable development is the idea that the environment and decision-making should be linked. Climate change represents a perfect case in point.’

She said that a climate change strategy must reflect both the social and economic context and that key industries such as energy and transport must be involved.

‘Society mobilisation is critical. Business, communities and families all need to change their behaviour and adapt to a changing climate.’

She concluded by saying: ‘There are no silver bullets for each and every problem, but there are fundamental principles and norms that can form the basis for success. Science is not and may never be complete and our responses must be flexible and collaborative.’

The second keynote speaker was Yannick Glemarec, director of environmental finance and executive coordinator of the United Nations Development Programme Global Environment Facility Unit.

Mr Glemarec said that climate change would lead to a dramatic increase in uncertainty as it was unclear what it would be like in a decade’s time. ‘We could have more rainfall, less rainfall or stages of both. This is a major challenge – how do you cope for long-term uncertainty?’

Mr Glemarec said countries needed to transition to low emission climate resilient development and recommended a five-step approach to such a strategy:

  • Bring everyone around the same table to develop a coordination structure.
  • Prepare climate change scenarios.
  • Identify mitigation and adaptation options.
  • Access priority climate financing needs.
  • Finalise a comprehensive low emission and climate change policy development and investment roadmap.

Speaking from an economic point of view, Mr Glemarec said that the amount of money needed for a climate resilient economy was ‘quite daunting’.

He said that public money would only be a fraction of this and that the bulk of the money would need to come from the private sector.

‘One of the key challenges of COP is how to get this money. The money needs to be used in a very strategic manner,’ he said.

Mr Glemarec then spoke about how economic factors would fit into the five-step strategy outlined above:

  • Policy change was necessary to get investment in green strategy and that it was best to have citizens, business, government sectors, the private sector and civil society around the table. This must be done in a cost-effective manner, he said.
  • Mr Glemarec said that it was ‘impossible to predict’ the kind of climate outcomes in 2075 or 2100 as an increase in temperature would depend on greenhouse gas emissions, which in turn reflected economic growth. Therefore, the highest and lowest emission scenarios for each country should be determined and countries should work within that specific range.
  • The gap between present strategy and the type of adaptation and mitigation strategies that countries are aiming for needs to be closed. He said that while the borderline between adaptation and mitigation was not clear, the best projects contained elements of both.
  • Legal preparedness was important for implementing the plan and that legal preparedness, in turn, required financing.
  • The last stage focuses on how to implement the plan after obtaining financing. Mr Glemarec said that the plan would need to be implemented by a wide variety of bodies.
  • Mr Glemarec then spoke about the importance of legal preparedness for climate change and how this tied in with finance.

He said that there was a four-step process for selecting the appropriate combination of policy and financial instruments:

  • Identify priority mitigation and adaptation technology options (for example lighting, insulation, fuel efficiency, wind turbines and electronic cars).
  • Assess key barriers to technology diffusion (including behavioural, institutional, regulatory, financial and technical barriers).
  • Determine financing options to create an enabling policy environment.
  • Determine appropriate policy mix.

Mr Glemarec concluded by saying that the key task in the coming decade was to go through packages of policy and economic frameworks and come up with a balanced package. He said that lawyers’ expertise would be needed to come up with new public policy packages. ‘It is an extraordinary challenge and very complex,’ he said.

Recent trends in South African climate law and policy

In a plenary panel on recent trends in South African climate law and policy, Professor Willemien du Plessis from the environmental law department at North-West University chaired a panel consisting of Professor Michael Kidd from the environmental law department at the University of KwaZulu-Natal, Belynda Petrie from One World Sustainable Investments, Professor Louis Kotze from the environmental law department at North-West University and Cecilia Ntombela, a legal adviser at Gold Fields.

Professor Kidd said that while there had been a fair amount of policy on climate change in South Africa (SA), there had not been much in terms of law.

The primary policy, he said, was the recently released National Climate Change Response White Paper.

He said that SA was among the top greenhouse gas emitters in the world, primarily because of energy generation, mostly through coal fired energy generation. In addition, SA was one of most ‘useless energy users’ in the world.

Professor Kidd said that, because of this, it was important to approach climate change in an integrated manner that included the Department of Energy.

However, he said it remained ‘business as usual’ in SA in respect of coal production and that two other major coal plants were currently being planned.

‘We need to consider policy not only in terms of what government is saying about climate change policy, but also how it reconciles with other policies. The White Paper envisages a lot of planning and it has to be reconciled with planning in environmental legislation. Implementation of the planning is a challenge,’ he said.

He said that SA had to move away from traditional silo thinking in terms of what the departments of energy, mineral resources and environmental affairs were saying about climate change.

‘The main player in respect of climate change is the Department of Environmental Affairs, but it is far from being a heavy hitter in terms of government departments. The initiatives need to come from cabinet level and should be part of the presidency if it is going to have any kind of impact.’

Professor Kidd also said that there needed to be more impetus from the people. ‘Government has a limited focus, but will not be elected by those living in 50 years’ time. In many countries there is not sufficient impetus from the people,’ he said.

Ms Petrie spoke about the global context relevant to the evolution of SA’s climate policy.

She said that it was important to note that SA ratified the UNFCCC in 1977, which set the scene for the ratification of the Kyoto Protocol in 2002.

‘This made a statement that we do not widely acknowledge that saw South Africa accepting some kind of emission reduction targets. This is what we have signed up for and we need to look at the legal and policy framework around that.’

Ms Petrie said that in addition to being part of various international groups like the G77 and Brics, SA was an instrumental part of the African Group of Negotiators (AGN), which was pushing for a limitation on the global temperature rise, as Africa would be one of the hardest hit by an increase in global temperature.

She said that this aim and the global context needed to be linked to local strategies.

Ms Petrie said that an integrated approach was necessary and that the key challenge was to simultaneously grow the economy, provide security to the population and stabilise the climate, which was vital to growth.

‘A climate change policy on its own is not going to cut it. It won’t do on its own and must be mainstreamed into everything that we do to ensure it works,’ she said. She cited China as an example of a country that seemed to be going in the right direction in that it was growing its economy, raising the standard of living and reducing greenhouse gas emissions, and that it had a coherent statement on how it would meet its challenges.

Ms Petrie said that the White Paper was part of a suite of strategies in SA that also included legislation and policies, however some gaps still remained.

The National Environmental Management Act 107 of 1998 (NEMA) provided for integration of climate change, but not for implementation. She said that the White Paper on Renewable Energy made a commitment to renewable energy, which would reduce SA’s place on the list of emitters, but this was not being met. She said that there had also been a ‘vague’ 2004 response paper and that the Long-Term Mitigation Scenarios were signed off in 2008 and that some of the sectors had started developing policies around that, for example the Department of Transport and the Industrial Policy Action Plan (IPAP), which considers job creation through low-carbon strategies. In addition, the Integrated Energy Resource Plan had almost no focus on renewable energy. ‘It is a gap I am worried will come back and bite us,’ she said.

She said it was ‘worrying’ that the report issued by the National Planning Commission in November 2011 identified nine challenges SA is facing, but not one dealt with climate change. It referred to the economy as being overly resource dependent, but lacked coherence and integration, she added.

‘Our national policies and framework are not aligned and our climate change policy tends to be a bit vague,’ she said.

She said that SA was pushing for a common reporting framework and that this would require ‘some kind of trade off’. She said that lawyers would play a role here in that they could look at what is given back in return and what it means in terms of the legal and policy framework.

Professor Kotze said that SA knew ‘more or less’ what to do in terms of environmental governance, but that it did not know how to do it.

He said that SA had a comprehensive governance regime, comprehensive laws and policies and a broad institutional structure to give effect to environmental governance, but did not have comprehensive legislation dealing with climate change, although it had many provisions applicable to climate change, even if incidental.

In terms of policy, he said that SA’s policy was comparable to the best in the world and that it had the potential to govern, but its challenge was to make environmental governance effective.

He said that the most significant challenge was institutional. He explained that governance was a social institution to achieve change and that law was used to change behaviour.

He warned that climate change would increase conflicts in future and that an integrated institutional response that showed political confidence was needed.

Professor Kotze said that SA had to revisit its governance response to climate change.

‘For SA to make a significant global impact now it needs to reinvent how it is going to govern. … We need to revisit what governance entails, which will allow us to understand the basis. It must be ongoing. Environmental governance has become a lot more complex. What we do practically must be informed by a sound understanding of governance or all efforts will be stillborn,’ he said.

Ms Ntombela said that SA had the correct framework for dealing with climate change, but lacked comprehensive legislation. She said that SA’s signing of the Kyoto Protocol and the inclusion of the environmental right in s 24 of the Constitution, which contains a sustainability aspect, were significant.

‘We have the framework. The problem I see is in terms of the legislation. Climate change issues are not only environmental. We need to review the legislation and integrate the laws we have to deal with challenges in respect of climate change that we face,’ she said.

She said that the designated national authority helped in the implementation of clean development mechanism projects, but people still needed to understand the UNFCCC and the Kyoto Protocol and their impact on daily lives.

She said that the White Paper provided for different levels of government to work together, but currently there was not enough integration nor was there a holistic approach.

‘We need to work towards an integrated goal and we need to make it work for the ordinary person in SA, as well as for businesses. The White Paper has good intentions, but I think it contains ambitious targets. Certain things need to have taken place and it does take time. We need to ensure that the White Paper clearly articulates our position as there are some gaps. Other stakeholders must be part of developing this legislation. We cannot just deal with it as an environmental issue,’ she said.

Teaching climate change law

In a workshop on teaching climate change law, a number of environmental law teachers addressed delegates on their personal experiences of teaching this ever-changing subject and on some of the challenges associated with it.

Environmental law professor Anel du Plessis of North-West University said that teaching students should be approached to fit what was needed in practice.

‘I perceive the teaching of this as preparing students for the interface between the responses and the law that we have and the enhancement of climate law scholarship,’ she said.

She said that teaching climate law and policy –

  • was necessary, as it was teaching the future generation of lawyers;
  • needed interdisciplinary approaches; and
  • was exciting because there was an increasing move away from outcomes-based education towards problem-based education, which was ‘perfect’ for teaching environmental law.

Professor du Plessis said that there were several options for structuring a course on climate change, for example it could be in the form of a module in an existing environmental law programme, it could be an entire programme, it could be elective or compulsory, and it could be for the duration of one or two semesters.

Professor du Plessis said that the main challenges to teaching climate change law included:

  • Keeping the scientific and legal issues apart.
  • Dealing simultaneously with international, local and regional issues.
  • A lack of case law, which meant dealing with hypothetical issues.
  • Insecurity coupled with international issues.
  • Climate law was still in its ‘baby shoes’.
  • Climate change was on the research agenda in many countries, but from a scientific point of view only, and that climate change law and governance were not on the agenda.

‘In terms of the research agenda, the items that should be on it include human rights issues, both substantial and procedural; security law issues; trade and investment law issues; food security; scarce resources; conflicts around GMOs (genetically modified organisms); competitiveness between the issues; and legal adaptation. The law needs to adapt. It is not only about human and ecosystem adaptation, but also about the legal system,’ she said.

Professor Alexander Zahar from Macquarie University in Sydney, Australia said that he had been teaching climate change law for four years and provided an overview of how the subject had evolved during that period.

He said that one problem with teaching climate change law was that it was difficult to provide a comprehensive body of learning and to organise it into a traditional unit of studying. ‘Can it be done, or is it too early?’ he asked.

He said that the starting point when teaching climate change law was to ask the basic question: ‘What is climate law? Is there such a thing?’

He said that it was very difficult to build across climate law from the bottom up because of the ambiguity around climate change law.

‘What exists is generally ad hoc and fragmented, so building content for a course needs to go from top down,’ he said. This reflects the logic of climate law itself in the sense that we know we want the global temperature rise to stay below two degrees, he added.

‘We know the tipping point if we are not careful. If we go beyond that point, we know we have lost the battle with climate change.’

Professor Markus Gehring, deputy director of the Centre for European Legal Studies (CELS) at Cambridge University in the United Kingdom, Jean Monnet Chair at the University of Ottawa in Canada and lead counsel at the CISDL, said that climate change courses needed to be innovative and go beyond the realm of administrative law or economic administrative law that ‘normal courses’ touched on.

‘You have to challenge students to think outside the box. Solutions traditionally found in the law do not seem to work when dealing with global climate law issues,’ he said.

He said it was ‘beyond doubt’ that there was a core of climate law that could be taught as a stand-alone course. However, there were some challenges in teaching it, for example how to find the correct balance between science and law, how to package such a course and how to bring the global and local elements together.

‘Climate change is one of those wonderful challenging issues where you have a global problem that needs to be tackled at a local level, so how you bring the two components together is a challenge,’ he said.

He said that a useful resource was the approximately 50 downloadable syllabi and other resources on the IUCN Academy of Environmental Law website.

Mr Gilder said that while law was generally a slow moving area, climate change law was evolving rapidly.

‘Here is an area of law that is evolving all the time, where things move quite quickly. The new generation of lawyers needs to know about these things that are evolving so fast,’ he said.

He said that before establishing a course on climate change, educators had to look at what to teach, how to compartmentalise the content and what references to use.

Together with Professor du Plessis, he went through how the two of them established a climate change law module at the University of the North-West. He said that this involved rethinking traditional methodologies and approaches.

‘The climate change issue is the ultimate cross-cutting issue; it infuses into everything that we do,’ Mr Gilder said.

Kim Hawkey,

This article was first published in De Rebus in 2012 (Jan/Feb) DR 12.

De Rebus