Time for more bite and less bark in climate change laws

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            After the Paris Climate talks[1], it seemed that the global community was finally unified in recognizing the negative impacts of climate change and making a real commitment to halting further environmental degradation caused by this human-accelerated phenomenon.[2] Unfortunately, the problem with climate talks and international deals is their inherent lack of “teeth”–they are all bark and no bite when you read the fine print.[3] While the Paris deal is a step in the right direction, as far as the international community recognizing the seriousness of climate change, there is currently no enforcement mechanism in place (although there are discussions in the works to change this).[4]

            While most policy makers and world leaders recognize the inherent problem with “talking” about climate change and not enforcing change, many overlook the enforcement mechanisms in place in other treaties and conventions.[5] Although “soft” ways of dealing with climate change, such as mitigation and adaptation efforts of the sort typically discussed at the United Nations Framework Convention on Climate Change, are available and are currently utilized, the bottom line is that climate change is impacting the human population and economy right now.[6] Whether the issue is a rising sea level that is swallowing small island nations and much of the U.S.’s eastern coast, increased periods of drought in Africa, or increasing water temperatures that destroy marine habitats, politicians cannot deny that climate change is here.

Climate Change
As climate change leads to a rise in ocean levels, small island nations may be able
to file claims against UNCLOS member states. Photo via Wikimedia Commons.

            Fortunately, there is an alternative route to forcing nations to cut down their use of greenhouse gases.[7] The United Nations Convention on the Law of the Sea (UNCLOS) outlines a method in the International Tribunal for the Law of the Sea, by which smaller island nations (SIDS) may file claims against nations who are producing greenhouse gases and polluting the atmosphere and the oceans.[8] Greenhouse gases in the atmosphere are absorbed by oceans and lead to ocean acidification and warming, which is a form of ocean pollution that the UNCLOS requires member nations to regulate.[9] The UNCLOS requires states “to protect and preserve the marine environment.”[10] It also requires states to “take . . . all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source.”[11] “[P]ollution of the marine environment” is defined as “the introduction by man, directly or indirectly, of substance or energy into the marine environment.” [12] The UNCLOS also requires member states to assess the potential effect of all activities that may harm the marine environment[13], similar to the United States’ National Environmental Policy Act, as well as adopt laws and regulations to “reduce and control pollution of the marine environment from or through the atmosphere.”[14]

            Essentially, any member state that is not abiding by the obligations it agreed to is vulnerable to a suit under the UNCLOS for its discretions.[15] The major problem with this tactic is that China and the United States—the two biggest contributors of greenhouse gas emissions[16] are not members of the UNCLOS. In conclusion, there are a few difficult methods for dealing with the international problem of climate change, but nothing can change until the major players come to the table and agree to take action and be bound by their talks.

[1] Formally titled COP21, the 21st United Nations Conference on Climate Change, which took place in December 2015. See 2015 Paris Climate Conference, COP21, http://www.cop21paris.org/about/cop21 [https://perma.cc/JKA6-MGXX]. 

[2] See generally Coral Davenport, Justin Gillis, Sewell Chan, & Melissa Eddy, Inside the Paris Climate Deal, N.Y. Times (Dec. 12, 2015), http://www.nytimes.com/interactive/2015/12/12/world/paris-climate-change-deal-explainer.html(https://perma.cc/DKM5-B7UH) (discussing the details of the 2015 Paris Climate Accord and highlighting the 195-country agreement to keep the Earth’s warming at or below 1.5 degrees Celsius).

[3] See Hunter Cutting, Enforcement of the Paris Climate Agreement, The Road Through Paris (Dec. 15, 2015), http://www.theroadthroughparis.org/resources/enforcement-paris-climate-agreement [https://perma.cc/AJ4D-5DEG] (detailing how the Paris agreement will be enforced through a soft accountability mechanism which calls for “international peer pressure.”). 

[4] Sara Malm, UN Planning an ‘international tribunal of climate justice’ which would allow nations to take developed countries to court, Daily Mail (Nov. 2, 2015), http://www.dailymail.co.uk/news/article-3300366/UN-planning-international-tribunal-climate-justice-allow-nations-developed-countries-court.html [https://perma.cc/T3WN-DLEJ].

[5] See United Nations Convention on the Law of the Sea, Oct. 12, 1982, 1833 U.N.T.S. 396 [hereinafter UNCLOS], http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf [https://perma.cc/MN3K-5KAW].

[6] Fifth Assessment Report, Int'l Panel on Climate Change, 2013, http://www.ipcc.ch/report/ar5/wg1 [https://perma.cc/J7WY-7MSH].

[7] Id.

[8] UNCLOS, supra note 5.

[9] Fifth Assessment Report, supra note 6; see also UNCLOS, supra note 5.

[10] UNCLOS, supra note 5, at part XII, § 1, art. 192.

[11] UNCLOS, supra note 5, at art. 194 (1) (emphasis added).

[12] UNCLOS, supra note 5, at art. 1(1)(4)(4).

[13] UNCLOS, supra note 5, at art. 206.

[14] UNCLOS, supra note 5, at art. 212.

[15] UNCLOS, supra note 5, at Preamble (stating that the member states have agreed to abide by what is written within the Convention).

[16] Mengin Ge, Johannes Friedrich, & Thomas Damassa, 6 Graphs Explain the World’s Top 10 Emitters, World Res. Inst. (Nov. 25, 2014), http://www.wri.org/blog/2014/11/6-graphs-explain-world’s-top-10-emitters [https://perma.cc/A2MC-GWNZ]. 

Posted by Brooklyn Hildebrandt on Wed. April 13, 2016 3:44 PM
Categories: Climate Change

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