Oslo Principles on obligations to reduce climate change (time for legal sanctions)

Oslo Principles on obligations to reduce climate change (time for legal sanctions)

March 2015, a group of prominent experts¹ in international law, human rights law, environmental law, and other law adopted the ‘Oslo Principles on Global Obligations to Reduce Climate Change’ (pdf 8 pages) – see also the expert group’s appended ‘Commentary’ (pdf 94 pages; this ‘List of contents’ written by me might be useful).

Before proceeding read this summarizing article on the subject in The Guardian: ‘Climate change: at last a breakthrough to our catastrophic political impasse?’ and this article in Huffington Post: ‘Landmark Dutch Lawsuit Puts Governments Around the World on Notice’.

The Oslo Principles are divided into a Preamble (introduction), a General Principle (Principle 1), Definitions (Principles 2-5) and Specific Obligations (A. Obligations of States and Enterprises, Principles 6-12; B. Obligations of States, Principles 13-24; C. Procedural Obligations of States, Principles 25-26 and D. Obligations of Enterprises, Principles 27-30).

In short, the message is that ‘greenhouse gas’ emissions (GHG emissions) are unlawful unless they are consistent with a plan of steady reductions to ensure that the global surface temperature increase never exceeds pre-industrial temperatures by more than two degrees Celsius – in accordance with the recommendations of an overwhelming majority of leading climate scientists.

Below is a selection of essential selected quotes from the Oslo Principles (in red) and the appended Commentaries (in blue).

Commentary p 3: “Despite the laudable pledges by leading politicians around the globe and a series of urgent calls made by prestigious international organizations, political actions do not keep pace with these promises and calls; they fall short of doing the minimum necessary to avoid that the two degrees threshold will be passed.”

Commentary p 4: “In particular there is one core question that requires answering: what are the respective legal obligations of States and enterprises to reduce their GHG emissions? [greenhouse gas emissions] So long as one cannot determine what must be done by each respective player, the law can only play a limited role. Our group has tried to fill this gap.”

Commentary p 5: “Given that our focus is on prevention, we do not express a view on other important issues, such as adaptation, damages and climate change refugees.”

Commentary p 31: “The strongest legal basis for our principles can probably be gleaned from, what arguably is a common core of tort law (…). It is a fundamental and widely accepted rule of thumb that an act or omission will be unlawful if it subjects the life, well-being or property of others to a risk of damage if the risk is considerable, the potential damage is colossal, and if the risk can be avoided without undue detriment to the party/parties causing that risk. Obligations to mitigate climate change meet all these requirements. Climate change poses a significant risk to billions of people – present and future – which can still be avoided by reducing GHG emissions to a significant extent.”

Commentary p 35: “Little justification is needed to show that a protected interest is affected if nothing is done to reduce GHG emissions. The predominant view among climate change scientists is that catastrophe will set in if we stick to business as usual or if we confine ourselves to minor reductions of GHG emissions. Massive and still largely avoidable human and economic suffering would occur, whilst the ability of the environment to sustain life would be greatly impaired. These interests are obviously protected by law (national and international).”

Commentary p 56: “… it is a legal imperative to start right now. There is a striking parallel with a factory emitting dangerous waste into a lake.”

Commentary p 57: “One may also wonder whether GHG emissions brought about by manufacturing products in country A for the export into country B count as emissions by A or B. In our view they count as emissions by country A.”

Commentary p 62: “… it is not unlawful to emit GHG emissions in a specific year if the emissions are reduced to such an extent that they do no longer cause (major) harm if the glide path will be respected in relation to future GHG emissions.”

Commentary, Epilogue p 62: “Legal strategies will not save our planet, but they could contribute to our common goal: to avoid still unnecessary catastrophes.”

Principles, Preamble: “According to the view of the overwhelming majority of leading scientists and other experts, climate change poses serious risks to both present and future generations of humankind, to other living species and to the biosphere.” Commentary p 3: “As things stand right now, there is not much reason to believe that politicians will be able to strike compromises to the extent needed in due time.”

Principles, Preamble: “Prevailing international scientific opinion recognizes that a two-degree Celsius increase in the Earth’s mean global surface temperature over the pre-industrial level will have a profound, adverse and irreversible impact on human and other life and on the Earth.” Commentary p 2: “The atmospheric increase of CO2 from 2012 to 2013 is the largest year to year change from 1984-2013. PwC (Price Waterhouse Cooper) warns that at current rates (…)“we would be heading towards the worst projected scenario of the IPCC, leading to a significant chance of exceeding 4 (degrees) Celsius of warming”.”

Principles, Preamble: “All principles, laws, policies and practices, whether local, national or international, that may affect the environment and, in particular, the global climate must be based on scientific evidence.” Commentary p 16: “Indeed, international law cannot be relevant only to relatively unimportant – and at times even trivial – issues. It must play a role in relation to the most serious challenge to humankind in living memory.”

Principles, Preamble: “International law recognizes that each State is legally responsible for the deleterious transborder effects that human activities in its territory have on other States.” Commentary p 8: “In our view, States are legally obliged to reduce their GHG emissions, even if they do not conclude (further) international agreements or conventions. Besides, our principles are much more detailed and provide a series of additional obligations of a substantive and procedural nature.”

Principles, Preamble: “These Principles set out the legal obligations of States and enterprises to take the urgent measures necessary to avert climate change and its catastrophic effects.” Commentary p 4: “So far, most steps taken or considered by governments fall short of what is needed: major reductions of GHG emissions.” And: Commentary p 91: “Our group has arrived at the conclusion that we cannot reach full agreement on the mitigation-obligations of enterprises. All of us believe that enterprises have reduction obligations to the extent set forth in Principles 7 – 9.”

Principles, Preamble: “No single source of law alone requires States and enterprises to fulfil these Principles. Rather, a network of intersecting sources provides States and enterprises with obligations to respond urgently and effectively to climate change in a manner that respects, protects, and fulfils the basic dignity and human rights of the world’s people and the safety and integrity of the biosphere. These sources are local, national, regional, and international and derive from diverse substantive canons, including, inter alia, international human rights law, environmental law and tort law.” Commentary p 14: “In our view only an amalgamation of legal sources can provide a sufficiently sound underpinning for our principles; international law, legislation, case law and doctrine from these sources reinforce one another. We cannot yet support our principles with references to judicial precedents. (…) …if we were to wait for judicial precedents we will be too late.”

Principle 1, General Principle (a and b): “The Precautionary Principle requires that (…) the level of reductions of GHG emissions required to achieve this, should be based on any credible and realistic worst-case scenario accepted by a substantial number of eminent climate change experts. (…) The measures required (…) should be adopted without regard to the cost, unless that cost is completely disproportionate …” Commentary p 43: “According to the latest IPCC report, an enormous reduction in GHG emissions from the business-as-usual path is needed if we are to meet the objective of keeping the average global temperature rise within two degrees Celsius of pre-industrial conditions. Cumulative GHG emissions (in carbon dioxide equivalents) from 2011 through 2050 are projected to be (at the midrange of various probabilities) 2,075 gigatons under the business as usual scenario; to have a 50% chance of staying within two degrees, they would need to be around 925 gigatons, and to have a 90% chance they would need to be around 550 gigatons.”

Principle 3, Definitions: “Permissible quantum of GHG emissions: Maximum amount of total global GHG emissions per capita in a given year, calculated on a global basis, that, based on Principle 1.a, may be allowed consistent with a plan of steady emissions reductions to ensure that the total global average surface temperature increase ultimately caused by GHG emissions never exceeds pre-industrial temperatures by more than 2 degrees Celsius.” Commentary p 60: “The maximum emissions per capita in a given year should be consistent with a plan of steady emission reductions (the “glide path”). By way of simplified example: suppose current GHG emissions are equivalent to 50 billion metric tons of CO2, and suppose respecting the +2-degree threshold is compatible with a steady-state rate of 10 billion tons of CO2 equivalent from 2050 to eternity. Then we need a glide path to reduce the annual emissions down to 10 billion, consistent with the 2 degrees threshold. Here annual reductions of ca. 4.5% would work.” And: Commentary p 62: “… each annual quota would be divided among countries according to their population in this year to calculate the permissible quantum for the particular country in the particular year.”

Principle 4, Definitions: “Above- or below-permissible-quantum country: A country that, in a specific year, has GHG emissions per capita that, respectively, exceed or fall below the permissible annual quantum.” Commentary p 11: “We have adopted a “per capita-approach” as a point of departure. This means that each human being is entitled to the same GHG emissions. There are several reasons for this position (…).” And: Commentary p 12: “We realize, of course, that use of per capita emissions does not necessarily do full justice to (all) vulnerable nations. We do not, for instance, deny that it is open to debate whether it fully, or even sufficiently, copes with the diverging GHG emissions in the past.”

Principle 7, Specific Obligations, Obligations of States and Enterprises: “All States and enterprises must reduce their GHG emissions to the extent that they can achieve such reduction without relevant additional cost. Relevant measures include switching off power-consuming equipment when not in use; eliminating excessive power consumption where possible, including for heating, cooling and lighting; promoting, to the maximum extent possible, measures that will reduce the need for consuming energy, such as improved insulation of buildings and improved efficiency of energy-consuming devices; elimination of broad fossil-fuel subsidies, including tax exemptions for certain industries, such as air transportation.” Commentary p 57: “There is no obvious answer to the question how to count GHG emissions in specific fields, such as air transport. The relevant GHG emissions could be attributed to the country of departure, arrival or any country overflown by the plane. (…) We do not have a concrete answer to this kind of questions.” And: Commentary p 65: “The concept of equity and the principle of sustainable development point to a much more egalitarian GHG mitting world, in which it is no longer possible for those in “developed” countries to argue that they are entitled to luxuries that harm the environment. It therefore might be necessary for states to enact legislation that ensures low-carbon lifestyles.”

Principle 8, Specific Obligations, Obligations of States and Enterprises: “States and enterprises must refrain from starting new activities that cause excessive GHG emissions, including, for example, erecting or expanding coal-fired power plants, without taking countervailing measures, unless the relevant activities can be shown to be indispensable in light of prevailing circumstances, as might be the case, in particular, in the least developed countries. If the new activities are shown to be indispensable, a least developed country is obligated to opt for less GHG emitting new activities only if and to the extent that developed countries or other entities provide the relevant least developed country with the additional means to meet this obligation.” Commentary p 66: “Activities which emit excessive GHGs perhaps may be acceptable when countervailing measures are taken to offset the “excess”.”

Principle 9, Specific Obligations, Obligations of States and Enterprises: “Developed and developing countries, as well as enterprises, must take available GHG reduction measures that entail costs if the costs will be offset through future savings or financial gains. Least developed countries and local enterprises in least developed countries have the same obligation to the extent that other entities provide the financial and technical means required …” Commentary p 67: “Not every enterprise or even nation state may be able to borrow money, let alone at “affordable” rates. If this is so,, higher interest rates, may mean that the benefits will no longer make up for the cost.”

Principle 11, Specific Obligations, Obligations of States and Enterprises: “No Country or enterprise is relieved of its obligations under these Principles even if its contributions to total GHG emissions are small.” Commentary p 69: “… duties should be imposed on countries even where they make only minimal contributions to global emissions, such as, say, less than 0.1%. If not, it would trivialize law as a regulatory tool.”

Principle 12, Specific Obligations, Obligations of States and Enterprises: “States and enterprises must comply with the obligations (…) even if relevant national law or international agreements, whether existing or later promulgated, set lower standards and, thus, would result in less reduction of GHG emissions.” Commentary p 71: “We can only hope that courts reluctant to apply rules as set forth by these principles will be prepared to get inspired by other courts willing to take a more progressive stance.”

Principle 13, Specific Obligations, Obligations of States: “Every above-permissible-quantum country is required to reduce the GHG emissions (…) to the permissible quantum within the shortest time feasible.” Commentary p 72: “Solar and wind energy are, for example, readily available, but not necessarily to the extent needed to satisfy energy needs on a global scale. Even if they are available to the extent needed, it will take some time to install the technologies needed to meet these needs.”

Principle 14, Specific Obligations, Obligations of States: “The obligations of States are common but differentiated.” Commentary p 59: “… we distinguish between developed, developing and least developed countries. It accordingly matters whether a country falls into one of these categories. To the best of our knowledge there is no commonly accepted definition of “developed” or “developing” country. We have considered various concepts, such as the annual income per capita. But, we have finally concluded that our principles would not be well served by referring to a definition that is not commonly accepted.” And: Commentary p 74: “One of the features of common but differentiated responsibilities is that countries with relatively low historical contributions to the present level of GHG in the atmosphere should not be required to bear the same burden for addressing the problems as the major contributors to the current state.”

Principle 15, Specific Obligations, Obligations of States: “Least developed countries do not have a legal obligation to reduce GHG emissions at their own expense. They are subject only to the duties set out in Principles 7, 8, and 9.” Commentary p 66: “Still, least developed countries will be required to opt for cleaner technologies if developed countries or other entities, such as development banks, provide the technical or additional financial means to the extent that resources will still be available for poverty alleviation…”

Principle 17, Specific Obligations, Obligations of States: “Because the permissible quantum will decrease as time progresses, a below-permissible quantum country producing emissions close to the permissible quantum should refrain from increasing the level of its GHG emissions, unless so refraining would cause undue hardship.” Commentary p 75: “There may be various reasons why the permissible quantum may change over time, the most important being that climate change science progresses and that states are unlikely to reduce emissions to permissible levels.”

Principle 18, Specific Obligations, Obligations of States: “If (…) an above-permissible-quantum country has taken all steps reasonably available but nevertheless has failed to fulfil the obligations (…)that country must provide financial or technical means to below-permissible-quantum countries to achieve the reduction of GHG emissions that (…) the country has failed to achieve.” Commentary p 76: “…it would be unrealistic and also unfair to expect that countries should ruin their economies if that would be the only way to arrive immediately at the required reductions. This phrase is used in an attempt to strike a balance.”

Principle 20, Specific Obligations, Obligations of States: “States must make their best efforts to bring about lawful and appropriate trade consequences for States that fail to comply with the obligations set out in these Principles.” Commentary p 79: “As a matter of fact, it will be difficult to sue defaulters before international tribunals and even if this were possible, enforceability of the judgements of these tribunals will be fraught with difficulty. Hence, this extremely serious issue will have to be solved in the political arena.”

Principle 23, Specific Obligations, Obligations of States: “Neither high cost nor the lack of financial means can, alone, excuse a State’s failure to meet its obligations to achieve GHG reductions or constitute a defense against legal sanctions that may be imposed as a consequence of such a failure. To avoid such sanctions, a State must show (…) extraordinary circumstances beyond the State’s control…” Commentary p 82: “The exemption provided here therefore would apply only in circumstances such as a major natural catastrophe that lays major parts of a country to ruin, or a war which causes widespread devastation. Whether or not such a scenario may qualify as a temporal justification may depend, inter alia, on the carbon footprint of the new buildings and factories to be erected.”

Principle 25, Specific Obligations, Procedural Obligations of States: “States must accept the jurisdiction of independent courts or tribunals in which the State’s compliance with its obligations as set forth in these Principles can be challenged and adjudicated.” Commentary p 83: “At least on paper, few countries will contest that proceedings must be fair and be adjudicated by independent courts or tribunals; reality may be different in many instances.”

Principle 28, Specific Obligations, Obligations of Enterprises: “An enterprise whose activity includes fossil-fuel production must assess the impact that any limitations imposed on future extraction or use of fossil fuels, consistent with the “carbon budget” concept enunciated by the Intergovernmental Panel on Climate Change and others, will have on its financial situation. The enterprise must disclose this information to investors, securities regulators and the public.” Commentary p 93: “This principle is inspired by the “stranded assets”-approach advocated by Carbon Tracker. This initiative is based on the submission that the imperative to curb global GHG emissions points to an inevitable adverse impact on investments in fossil fuels: an ever higher portion of these fuels will become “unburnable”. By the same token, the related assets get stranded. It must be clear to those that value interests in enterprises in the fossil fuel industry should be accommodated in their valuation of these investments, to prevent future losses.”

Principle 29, Specific Obligations, Obligations of Enterprises: “Before building any major new facilities, enterprises must conduct environmental impact assessments. Such an assessment must include an analysis of the proposed facility’s carbon footprint and ways to reduce it and the potential effects of future climate change on the proposed facility.” Commentary p 87: “Enterprises have to “disclose their GHG footprints and use all practicable means to reduce them through increased energy efficiency and greater use of zero- and low-carbon fuel sources. This should include not only the direct emissions from the enterprises, but also the emissions from their supply chains, their subsidiaries and affiliates, and the end users of their goods and services”.”

Principle 30, Specific Obligations, Obligations of Enterprises: “Enterprises in the banking and finance sectors should take into account the GHG effects of any projects they consider financing.” Commentary p 94: “Financial institutions have fiduciary duties to enterprises of which they held shares and indirectly to their shareholders and enterprises and private persons who have entrusted their money to them.”

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¹’The Oslo Principles‘ were prepared by an expert group, which consisted of the following members:

Antonio Benjamin, Justice, High Court of Justice of Brazil.

Michael Gerrard, Andrew Sabin Professor of Professional Practice and Director, Sabin Center for Climate Change Law, Columbia University Law School.

Toon Huydecoper, retired Advocate-General of the Netherlands Supreme Court.

Michael Kirby, retired Justice of the High Court of Australia.

M.C. Mehta, advocate before the Supreme Court of India.

Thomas Pogge, Leitner Professor of Philosophy and International Affairs and founding Director, Global Justice Program, Yale University.

Qin Tianbao, Professor of Environmental and International Law and Assistant Dean for International Affiliations, Wuhan University School of Law.

Dinah Shelton, Manatt/Ahn Professor of International Law, George Washington University and Law School, and Commissioner and former President, Inter-American Commission on Human Rights.

James Silk, Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Director, Orville H. Schell, Jr. Center for International Human Rights, Yale Law School.

Jessica Simor QC, barrister, Matrix Chambers, London.

Jaap Spier,* Advocate-General of the Netherlands Supreme Court and Honorary Professor, Maastricht University Faculty of Law.

Elisabeth Steiner, Judge, European Court of Human Rights.

Philip Sutherland, Professor, Stellenbosch University Faculty of Law.

* Rapporteur of the Expert Group on Global Climate Obligations

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Sources on the Oslo Principles: ‘http://www.osloprinciples.org/about/‘ and  ‘Global Justice Program‘.
International law and Climate Change: ‘The International Bar Association (IBA)‘.   
Drawing (Judge) by Claus Andersen, 2015.

 

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