The inclusion of market approaches to inter-Party cooperation in Article 6 of the Paris Agreement... more The inclusion of market approaches to inter-Party cooperation in Article 6 of the Paris Agreement was controversial among Parties. The Article 6 rules, which were among the last elements of the Paris rulebook to be agreed at the 2021 Glasgow conference, were keenly contested among Parties. This article analyses the significance of Article 6 and the related decisions from the Glasgow and Sharm el-Sheikh conferences for the governance of transnational carbon markets. It argues that these rules have the potential to anchor carbon markets in a normative framework of enhanced mitigation ambition and environmental integrity. However, realising this potential will depend on the recursive interactions of multiple actors and sites of norm production within and beyond UNFCCC processes. The theory of transnational legal orders (TLOs) is applied to the analysis of this situation. TLO theory also suggests key factors that will determine the salience of Article 6 to carbon markets.
The global politics of the climate emergency entails complex choices concerning the distribution ... more The global politics of the climate emergency entails complex choices concerning the distribution of costs and benefits between countries, within countries and across society. The distributional debate between countries is well-established at the international level after three decades of United Nations negotiations. At the domestic level, individual countries have had to make challenging choices as they consider transitioning to low carbon energy systems. While the distributional struggle within countries is less explicitly addressed at the international level, it is beginning to shape climate global politics as climate policy shifts from the environmental margins to the economic core of government decision-making.
Enhanced technology development and transfer have important roles to play in the achievement of t... more Enhanced technology development and transfer have important roles to play in the achievement of the goals of the Paris Agreement. The Paris Agreement addresses the need for enhanced technology outcomes, both substantively and procedurally. Substantively, the Agreement endorses a holistic approach to the technology cycle, with a new emphasis on innovation and early-stage deployment. Procedurally, the Agreement channels technology cooperation through transnational institutions by adopting and strengthening the roles of the existing UNFCCC technology bodiesthe Technology Executive Committee (TEC) and Climate Technology Centre and Network (CTCN) (the two components of the UNFCCC Technology Mechanism). The key instrument for implementing these substantive and procedural outcomes is the Technology Framework established in the Paris Agreement, negotiated over three years and adopted by Parties at the 2018 Katowice conference. This article will examine how the Paris Agreement has changed UNFCCC technology governance. It will highlight the significance of the Paris technology provisions, identify the main political and legal considerations in the negotiation of the Technology Framework, and comment on the framework's legal status, substance and implementation, with a focus on the roles of the TEC and CTCN. The article will explore the potential for the Technology Framework to contribute to transnational cooperation and action on climate technology.
Climate justice is a concept with many different and competing interpretations. It has salience a... more Climate justice is a concept with many different and competing interpretations. It has salience at intra-country, inter-country and intergenerational levels of climate politics. While inter-country climate justice has long been on the agenda of United Nations climate negotiations, the intra-country and intergenerational aspects of climate justice have assumed new prominence in many countries in recent years, as the economic consequences of mitigation became felt and transnational activism highlighted youth concerns. The diverse elements of and approaches to climate justice have this in common: realising them requires massive financial interventions and reforms. This article examines the still emerging frameworks to finance climate justice in two of the jurisdictions most important to the global response to climate change: the European Union and the People's Republic of China. The EU and China have in common that they are both on the front line of financial innovation to respond to climate change. They are utilising similar tools of systemic financial intervention in order to transition financing to climate-friendly investment, in the first case domestically, but with clear implications for global financial markets. However, the EU and China are utilising climate financing mechanisms in the context of very different prevailing perspectives on climate justice. This article interrogates the relationship between these different perspectives on climate justice and the distribution, scale and pace of climate finance. The article also observes that while the EU incorporated climate justice considerations in its economic responses to the COVID-19 pandemic with a recovery package prioritising climate action, China did not take the opportunity to foster a 'green recovery'.
Review of European, Comparative & International Environmental Law, 2020
As challenging as meeting the 2030 climate and energy targets will be for the European Union (EU)... more As challenging as meeting the 2030 climate and energy targets will be for the European Union (EU), it is the decision to extend the 2030 Framework to the contracting par- ties of the Energy Community (EnC) which will arguably require a truly Herculean effort. In 2018, the contracting parties agreed to adapt the revised Energy Efficiency and Renewable Energy Directives, and the Energy Union Governance Regulation. However, the EnC parties face significant obstacles, while the Energy Community has limited compliance mechanisms. This article examines the Energy Community as a hybrid legal space in which the European Commission, EnC Secretariat and con- tracting parties co-create legal order. It investigates major challenges to the exten- sion of the 2030 Framework to the Energy Community, including the EnC’s structure and composition, weaknesses in national implementation and a limited dispute reso- lution regime. The article also reflects on the role of law in the external dimension of EU climate policy.
Charting Environmental Law Futures in the Anthropocene, 2019
Climate change and dramatic change to ocean ecosystems are two of the leading indicators of the p... more Climate change and dramatic change to ocean ecosystems are two of the leading indicators of the proposed 'Anthropocene' epoch. As knowledge of feed-backs between climate change and damage to ocean ecosystems has improved, the case for addressing these interrelated challenges concurrently has strengthened. This chapter begins by reviewing the relationship between climate change and the state of the ocean as explained in recent scientific publications. It proceeds from this to summarise how this ocean-climate nexus is addressed in current and developing international law, before focusing on three particular examples: first, regulation of international shipping emissions; second, management of coastal ecosystems ('blue carbon'); and third, the current negotiation on a new treaty to protect the high seas. These three examples illustrate the diversity of regulation undertaken within a four-square matrix of processes under the Climate Convention, or under the Law of the Sea Convention, which are based on either mandatory commitments or non-binding facilitative measures. The chapter concludes that there are further opportunities to address ocean-climate feedbacks in a targeted and timely manner, including through additional linkages between UNFCCC-and UNCLOS-based processes.
The ICJ’s advisory opinion on the legal consequences of the separation of the Chagos Archipelago ... more The ICJ’s advisory opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, prior to Mauritian independence, is a significant development in a long-running transnational legal process. The UK’s detachment of the Chagos Archipelago from Mauritius has resulted in multiple lawsuits brought by Mauritius or by the displaced Chagossians through domestic and international courts and tribunals. The ICJ has now clarified the dispute’s international legal context, by concluding that the Chagos Archipelago’s detachment was unlawful—meaning the decolonisation of Mauritius remains incomplete. This paper situates the advisory opinion within the context of the transnational legal process of the Chagos dispute. The paper analyses the significance of the ICJ’s focus on General Assembly resolutions in reaching its conclusions, the potential of increasing multipolarity in international relations to strengthen decolonisation norms, and the relationship between the UK’s decolonisation obligations, Brexit and notions of ‘Global Britain’.
Maritime access and the mobilization of maritime services have been important enablers of initial... more Maritime access and the mobilization of maritime services have been important enablers of initial international responses to disasters in littoral states. However, this access has proved controversial in recent times, with objections to military participation and ongoing resistance to a ‘responsibility to admit’ international disaster responders. This paper will examine the adoption of the 2015 Sendai Framework for Disaster Risk Reduction, alongside the International Law Commission’s 2016 Draft Articles on the Protection of Persons in the Event of Disasters, as an opportunity to strengthen protocols of maritime access and cooperation. The paper will survey the existing state of international disaster law before turning to the potential significance of the Sendai outcome and the Draft Articles. It will analyze the scope for oceans law and regional frameworks for maritime cooperation to contribute to emerging norms and processes of access and cooperation in international disaster law, as well as the contribution of other national and regional initiatives to implement the Sendai Framework. These regulatory developments will be considered in the context of the Asia-Pacific, a region whose seas have repeatedly proved to be both the source of terrible disasters and the transit zone for vital emergency assistance.
The Green Climate Fund (GCF) is a significant and potentially innovative addition to UNFCCC frame... more The Green Climate Fund (GCF) is a significant and potentially innovative addition to UNFCCC frameworks for mobilizing increased finance for climate change mitigation and adaptation. Yet the GCF faces challenges of operationalization not only as a relatively new international fund but also as a result of US President Trump’s announcement that the United States would withdraw from the Paris Agreement. Consequently the GCF faces a major reduction in actual funding contributions and also governance challenges at the levels of its Board and the UNFCCC Conference of the Parties (COP), to which it is ultimately accountable. This article analyzes these challenges with reference to the GCF’s internal regulations and its agreements with third parties to demonstrate how exploiting design features of the GCF could strengthen its resilience in the face of such challenges. These features include linkages with UNFCCC constituted bodies, particularly the Technology Mechanism, and enhanced engagement with non-Party stakeholders, especially through its Private Sector Facility. The article posits that deepening GCF interlinkages would increase both the coherence of climate finance governance and the GCF’s ability to contribute to ambitious climate action in uncertain times.
Our ability to protect and sustainably use the high seas is ultimately subject to our ability to ... more Our ability to protect and sustainably use the high seas is ultimately subject to our ability to understand this vast and remote environment. The success of an international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) will depend, in part, on utilizing technology to access ocean life, to analyze it, and to implement measures for its conservation and sustainable use. Indeed, technology, broadly defined, is integral to meeting the ILBI's objectives: not just the mandate to address " capacity-building and the transfer of marine technology, " but also the sustainable use and conservation of marine genetic resources, the implementation of environmental impact assessments, and biodiversity conservation measures such as area-based management tools. 1 To maximize marine technology deployment to protect marine biodiversity in areas beyond national jurisdiction, transferring technology to developing countries will be critical. 2 Provisions for the transfer of technology, generally from developed to developing countries, are included in many international environmental agreements and declarations, 3 but these provisions have often proven difficult to implement. Part of the difficulty is that the relevant technology is dispersed among states; universities , research institutes and other nonstate actors; and private industry. The particular challenge in crafting an ILBI is, as the European Union has identified, to avoid repeating existing provisions and instead to " focus on added value. " 4 One opportunity for an ILBI to add value on technology transfer is to further develop a network model to facilitate marine technology transfer. This essay examines how an ILBI could contribute to marine technology transfer, a challenge that cuts across many international environmental agreements. It provides an overview of technology transfer provisions in the UN Convention on the Law of the Sea (UNCLOS) and their incomplete implementation to date, before considering the possibilities for technology transfer under the ILBI as an implementing agreement for UNCLOS. Next, the essay considers opportunities to learn from the experience of technology transfer under the UN Framework Convention on Climate Change and the Convention on Biological Diversity.
This paper furthers the Commonwealth agenda on climate action by exploring the kinds of 'practica... more This paper furthers the Commonwealth agenda on climate action by exploring the kinds of 'practical and swift action' that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide 'co-benefits' in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.
A publication of the project ‘Strengthening Europe’s sustainable energy and climate technology di... more A publication of the project ‘Strengthening Europe’s sustainable energy and climate technology diplomacy: Harnessing networks for norm leadership’, a collaboration of FEPS, the Transnational Law Institute of The Dickson Poon School of Law, King’s College London and Fondation Jean-Jaurès in the framework of the Progressives for Climate Initiative.
The aim of this article is to map the governance of renewable energy and argues that effective re... more The aim of this article is to map the governance of renewable energy and argues that effective renewable energy governance at the international and European level has become a major challenge of public international law and European Union (EU) law. The article first analyzes renewable energy governance in the context of the UN Framework Convention on Climate Change. It then examines the various international energy bodies that deal with the governance of renewables and deals with renewables in specific sectors of international/supranational law and policy, namely the sustainable development goals and multilateral development banks in the context of economic development, the G7 and the G20, international trade and, lastly, the European Union’s renewables legislation and policies, as examples of the most committed region in the world to renewable energy. This article concludes with a number of questions for further legal research resulting from the broad array of activity concerning renewables in EU law, international law, and international organizations.
The inclusion of market approaches to inter-Party cooperation in Article 6 of the Paris Agreement... more The inclusion of market approaches to inter-Party cooperation in Article 6 of the Paris Agreement was controversial among Parties. The Article 6 rules, which were among the last elements of the Paris rulebook to be agreed at the 2021 Glasgow conference, were keenly contested among Parties. This article analyses the significance of Article 6 and the related decisions from the Glasgow and Sharm el-Sheikh conferences for the governance of transnational carbon markets. It argues that these rules have the potential to anchor carbon markets in a normative framework of enhanced mitigation ambition and environmental integrity. However, realising this potential will depend on the recursive interactions of multiple actors and sites of norm production within and beyond UNFCCC processes. The theory of transnational legal orders (TLOs) is applied to the analysis of this situation. TLO theory also suggests key factors that will determine the salience of Article 6 to carbon markets.
The global politics of the climate emergency entails complex choices concerning the distribution ... more The global politics of the climate emergency entails complex choices concerning the distribution of costs and benefits between countries, within countries and across society. The distributional debate between countries is well-established at the international level after three decades of United Nations negotiations. At the domestic level, individual countries have had to make challenging choices as they consider transitioning to low carbon energy systems. While the distributional struggle within countries is less explicitly addressed at the international level, it is beginning to shape climate global politics as climate policy shifts from the environmental margins to the economic core of government decision-making.
Enhanced technology development and transfer have important roles to play in the achievement of t... more Enhanced technology development and transfer have important roles to play in the achievement of the goals of the Paris Agreement. The Paris Agreement addresses the need for enhanced technology outcomes, both substantively and procedurally. Substantively, the Agreement endorses a holistic approach to the technology cycle, with a new emphasis on innovation and early-stage deployment. Procedurally, the Agreement channels technology cooperation through transnational institutions by adopting and strengthening the roles of the existing UNFCCC technology bodiesthe Technology Executive Committee (TEC) and Climate Technology Centre and Network (CTCN) (the two components of the UNFCCC Technology Mechanism). The key instrument for implementing these substantive and procedural outcomes is the Technology Framework established in the Paris Agreement, negotiated over three years and adopted by Parties at the 2018 Katowice conference. This article will examine how the Paris Agreement has changed UNFCCC technology governance. It will highlight the significance of the Paris technology provisions, identify the main political and legal considerations in the negotiation of the Technology Framework, and comment on the framework's legal status, substance and implementation, with a focus on the roles of the TEC and CTCN. The article will explore the potential for the Technology Framework to contribute to transnational cooperation and action on climate technology.
Climate justice is a concept with many different and competing interpretations. It has salience a... more Climate justice is a concept with many different and competing interpretations. It has salience at intra-country, inter-country and intergenerational levels of climate politics. While inter-country climate justice has long been on the agenda of United Nations climate negotiations, the intra-country and intergenerational aspects of climate justice have assumed new prominence in many countries in recent years, as the economic consequences of mitigation became felt and transnational activism highlighted youth concerns. The diverse elements of and approaches to climate justice have this in common: realising them requires massive financial interventions and reforms. This article examines the still emerging frameworks to finance climate justice in two of the jurisdictions most important to the global response to climate change: the European Union and the People's Republic of China. The EU and China have in common that they are both on the front line of financial innovation to respond to climate change. They are utilising similar tools of systemic financial intervention in order to transition financing to climate-friendly investment, in the first case domestically, but with clear implications for global financial markets. However, the EU and China are utilising climate financing mechanisms in the context of very different prevailing perspectives on climate justice. This article interrogates the relationship between these different perspectives on climate justice and the distribution, scale and pace of climate finance. The article also observes that while the EU incorporated climate justice considerations in its economic responses to the COVID-19 pandemic with a recovery package prioritising climate action, China did not take the opportunity to foster a 'green recovery'.
Review of European, Comparative & International Environmental Law, 2020
As challenging as meeting the 2030 climate and energy targets will be for the European Union (EU)... more As challenging as meeting the 2030 climate and energy targets will be for the European Union (EU), it is the decision to extend the 2030 Framework to the contracting par- ties of the Energy Community (EnC) which will arguably require a truly Herculean effort. In 2018, the contracting parties agreed to adapt the revised Energy Efficiency and Renewable Energy Directives, and the Energy Union Governance Regulation. However, the EnC parties face significant obstacles, while the Energy Community has limited compliance mechanisms. This article examines the Energy Community as a hybrid legal space in which the European Commission, EnC Secretariat and con- tracting parties co-create legal order. It investigates major challenges to the exten- sion of the 2030 Framework to the Energy Community, including the EnC’s structure and composition, weaknesses in national implementation and a limited dispute reso- lution regime. The article also reflects on the role of law in the external dimension of EU climate policy.
Charting Environmental Law Futures in the Anthropocene, 2019
Climate change and dramatic change to ocean ecosystems are two of the leading indicators of the p... more Climate change and dramatic change to ocean ecosystems are two of the leading indicators of the proposed 'Anthropocene' epoch. As knowledge of feed-backs between climate change and damage to ocean ecosystems has improved, the case for addressing these interrelated challenges concurrently has strengthened. This chapter begins by reviewing the relationship between climate change and the state of the ocean as explained in recent scientific publications. It proceeds from this to summarise how this ocean-climate nexus is addressed in current and developing international law, before focusing on three particular examples: first, regulation of international shipping emissions; second, management of coastal ecosystems ('blue carbon'); and third, the current negotiation on a new treaty to protect the high seas. These three examples illustrate the diversity of regulation undertaken within a four-square matrix of processes under the Climate Convention, or under the Law of the Sea Convention, which are based on either mandatory commitments or non-binding facilitative measures. The chapter concludes that there are further opportunities to address ocean-climate feedbacks in a targeted and timely manner, including through additional linkages between UNFCCC-and UNCLOS-based processes.
The ICJ’s advisory opinion on the legal consequences of the separation of the Chagos Archipelago ... more The ICJ’s advisory opinion on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, prior to Mauritian independence, is a significant development in a long-running transnational legal process. The UK’s detachment of the Chagos Archipelago from Mauritius has resulted in multiple lawsuits brought by Mauritius or by the displaced Chagossians through domestic and international courts and tribunals. The ICJ has now clarified the dispute’s international legal context, by concluding that the Chagos Archipelago’s detachment was unlawful—meaning the decolonisation of Mauritius remains incomplete. This paper situates the advisory opinion within the context of the transnational legal process of the Chagos dispute. The paper analyses the significance of the ICJ’s focus on General Assembly resolutions in reaching its conclusions, the potential of increasing multipolarity in international relations to strengthen decolonisation norms, and the relationship between the UK’s decolonisation obligations, Brexit and notions of ‘Global Britain’.
Maritime access and the mobilization of maritime services have been important enablers of initial... more Maritime access and the mobilization of maritime services have been important enablers of initial international responses to disasters in littoral states. However, this access has proved controversial in recent times, with objections to military participation and ongoing resistance to a ‘responsibility to admit’ international disaster responders. This paper will examine the adoption of the 2015 Sendai Framework for Disaster Risk Reduction, alongside the International Law Commission’s 2016 Draft Articles on the Protection of Persons in the Event of Disasters, as an opportunity to strengthen protocols of maritime access and cooperation. The paper will survey the existing state of international disaster law before turning to the potential significance of the Sendai outcome and the Draft Articles. It will analyze the scope for oceans law and regional frameworks for maritime cooperation to contribute to emerging norms and processes of access and cooperation in international disaster law, as well as the contribution of other national and regional initiatives to implement the Sendai Framework. These regulatory developments will be considered in the context of the Asia-Pacific, a region whose seas have repeatedly proved to be both the source of terrible disasters and the transit zone for vital emergency assistance.
The Green Climate Fund (GCF) is a significant and potentially innovative addition to UNFCCC frame... more The Green Climate Fund (GCF) is a significant and potentially innovative addition to UNFCCC frameworks for mobilizing increased finance for climate change mitigation and adaptation. Yet the GCF faces challenges of operationalization not only as a relatively new international fund but also as a result of US President Trump’s announcement that the United States would withdraw from the Paris Agreement. Consequently the GCF faces a major reduction in actual funding contributions and also governance challenges at the levels of its Board and the UNFCCC Conference of the Parties (COP), to which it is ultimately accountable. This article analyzes these challenges with reference to the GCF’s internal regulations and its agreements with third parties to demonstrate how exploiting design features of the GCF could strengthen its resilience in the face of such challenges. These features include linkages with UNFCCC constituted bodies, particularly the Technology Mechanism, and enhanced engagement with non-Party stakeholders, especially through its Private Sector Facility. The article posits that deepening GCF interlinkages would increase both the coherence of climate finance governance and the GCF’s ability to contribute to ambitious climate action in uncertain times.
Our ability to protect and sustainably use the high seas is ultimately subject to our ability to ... more Our ability to protect and sustainably use the high seas is ultimately subject to our ability to understand this vast and remote environment. The success of an international legally binding instrument (ILBI) for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) will depend, in part, on utilizing technology to access ocean life, to analyze it, and to implement measures for its conservation and sustainable use. Indeed, technology, broadly defined, is integral to meeting the ILBI's objectives: not just the mandate to address " capacity-building and the transfer of marine technology, " but also the sustainable use and conservation of marine genetic resources, the implementation of environmental impact assessments, and biodiversity conservation measures such as area-based management tools. 1 To maximize marine technology deployment to protect marine biodiversity in areas beyond national jurisdiction, transferring technology to developing countries will be critical. 2 Provisions for the transfer of technology, generally from developed to developing countries, are included in many international environmental agreements and declarations, 3 but these provisions have often proven difficult to implement. Part of the difficulty is that the relevant technology is dispersed among states; universities , research institutes and other nonstate actors; and private industry. The particular challenge in crafting an ILBI is, as the European Union has identified, to avoid repeating existing provisions and instead to " focus on added value. " 4 One opportunity for an ILBI to add value on technology transfer is to further develop a network model to facilitate marine technology transfer. This essay examines how an ILBI could contribute to marine technology transfer, a challenge that cuts across many international environmental agreements. It provides an overview of technology transfer provisions in the UN Convention on the Law of the Sea (UNCLOS) and their incomplete implementation to date, before considering the possibilities for technology transfer under the ILBI as an implementing agreement for UNCLOS. Next, the essay considers opportunities to learn from the experience of technology transfer under the UN Framework Convention on Climate Change and the Convention on Biological Diversity.
This paper furthers the Commonwealth agenda on climate action by exploring the kinds of 'practica... more This paper furthers the Commonwealth agenda on climate action by exploring the kinds of 'practical and swift action' that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide 'co-benefits' in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.
A publication of the project ‘Strengthening Europe’s sustainable energy and climate technology di... more A publication of the project ‘Strengthening Europe’s sustainable energy and climate technology diplomacy: Harnessing networks for norm leadership’, a collaboration of FEPS, the Transnational Law Institute of The Dickson Poon School of Law, King’s College London and Fondation Jean-Jaurès in the framework of the Progressives for Climate Initiative.
The aim of this article is to map the governance of renewable energy and argues that effective re... more The aim of this article is to map the governance of renewable energy and argues that effective renewable energy governance at the international and European level has become a major challenge of public international law and European Union (EU) law. The article first analyzes renewable energy governance in the context of the UN Framework Convention on Climate Change. It then examines the various international energy bodies that deal with the governance of renewables and deals with renewables in specific sectors of international/supranational law and policy, namely the sustainable development goals and multilateral development banks in the context of economic development, the G7 and the G20, international trade and, lastly, the European Union’s renewables legislation and policies, as examples of the most committed region in the world to renewable energy. This article concludes with a number of questions for further legal research resulting from the broad array of activity concerning renewables in EU law, international law, and international organizations.
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