The synergies between the Paris Agreement and the SDGs: An opportunity for national governments to achieve key climate targets

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Dr Noah A. Izoukumor, Member of the Environmental Law and Sustainability Research Group

Introduction

The Paris Agreement (PA) was adopted on the 12th of December 2015.[1] The central aim of the PA is to keep global temperature rise below 2 degrees Celsius above pre-industrial levels or even further to 1.5 degrees Celsius.[2] To achieve this aim, Parties to the PA made individual commitments through their Nationally Determined Contributions (NDCs). The ‘NDCs, are actions that Parties to the PA plan to undertake to address climate change’ at the national level.[3] Most of the initial NDCs made commitments to reduce emissions of greenhouse gases by 2030.[4]

 In 2015, the same year the PA was adopted, the United Nations also adopted the Sustainable Development Goals (SDGs) to replace the Millennium Development Goals.[5] The SDGs are 17 aspirational goals and 169 associated targets. The SDGs are also meant to be achieved by 2030.

In other words, both the PA and SDGs were adopted in 2015, and the targets and obligations were to be achieved by 2030.[6] This raises some critical questions about whether it is possible to align the obligations of the PA with key related SDGs, or is it possible to achieve key SDGs targets that are linked with the PA simultaneously since both targets are meant to be achieved by 2030?  On the contrary, it was argued that how the alignment of the PA with the SDGs is possible considering that the SDGs and the PA are two separate instruments.[7]  In this research blog, the aim is to briefly assess the possibility of the alignment between PA obligations with key SDGs, and the key benefits of such alignments at the national level.

Are there synergies between climate change and the SDGs?  

There is emerging research on the integration of climate change and the SDGs.[8]  Nerini and others elaborated on the possible alignment of climate change and SDGs. They acknowledged that in most countries, climate change and sustainable development remain separated.[9] According to them, ‘capitalizing on synergistic actions can enable both sets of objectives to be met more quickly, efficiently and effectively.’[10] 

Antwi-Agyei and Dougill investigated the alignment of SDGs and NDCs.[11] They examined NDCs submitted by 11 West African states and their link to key SDGs.[12] Their investigation shows the strong commitment of West African countries to food security which can be aligned with related SDGs.[13] They argued that this alignment provides opportunities for national development on the low carbon pathway.[14] 

Also, a critical assessment of the provisions of the PA and the SDGs unveils that there is a synergy between the PA and some of the SDGs. For instance, SDG targets 15.2 and 15:3 deal with combating desertification and sustainable management of all forests. These targets 15.2 and 15:3 of the SDG are related to Article 5 (2) of the PA, which emphasised sustainable forest management practices. Also, SDG targets 7:1 and 7:2 deal with the development of renewable energy. These targets have a direct link with Article 10 (1) (2) Paris Agreement which emphasised the development of technology.

The above examples show that there is a link between the PA and some key SDGs. The implication of the relationship between the PA and the key SDGs is that the achievement of the targets of the PA could lead to the achievement of related SDGs targets. So, the next question is what the likely benefits of the synergies between the PA and the SDGs are.  

The benefits of synergies between the PA and SDGs

The synergies between the PA and key SDGs present an opportunity to collaborate amongst key relevant climate change Ministries, Departments and Agencies (MDAs), and SDG implementation agencies.[15] Recent development in countries like Mexico, Colombia, and Vietnam show how MDAs and SDG implementation agencies can collaborate and implement key related targets in both SDGs and PA.

In 2017, three MDAs in Mexico collaborated to implement SDG and NDC targets.[16] The office of the President of Mexico, which is responsible for the SDG implementation, the Ministry of Environment and Natural Resources, and the National Institute of Ecology and Climate Change which are responsible for the NDC support close coordination of SDG and NDC implementation.[17] Also, in Japan, there is a well-coordinated institutional arrangement of SDG and NDC implementation. Relevant institutions for the implementation of SDG and NDC are led by the Global Warming Prevention Headquarters, chaired by the prime minister, including relevant cabinet ministers.[18] In Colombia, an Inter-Agency Commission is established to implement the Post-2015 Development Agenda.[19] In Vietnam, a National Council for Sustainable Development and Competitiveness Enhancement and a working group of the Council were established. These two organisations are to address key achievable SDGs that are linked to climate change.

Again, the nexus between the PA and key SDGs will enable key climate change-related MDAs to match budgets and channel funds to key priority areas such as the energy and forest sectors. This is exactly what the Mexican government did where MDAs were requested to match budget programmes to the top priority areas of SDG and national goals.[20]

However, there are key challenges to the alignment between PA and SDGs. First, climate change instruments and the SDGs agenda have their respective histories and already established implementation agencies in different sectors.[21] This means there are likely issues of functional overlap among ministries while implementing interlinkages. Second, the alignment could lead to a trade-off with perceived unaligned SDGs.[22] This means that national governments may give less attention to SDGs that are not directly linked to climate change obligations, such as SDG 4, which talks about free education.

Despite the likely challenges, it is argued that the benefit of aligning the PA and the SDGs cannot be overemphasised. The alignment presents an opportunity for national government agencies to collaborate, and channel funds to key related targets in both PA and key SDGs. The collaboration will enable both sets of objectives to be met more quickly, efficiently, and effectively.[23] 

References


[1]L Rajamani, ‘The Warsaw climate negotiations: emerging understandings and battle lines on the road to the 2015 climate agreement’(2014) 63(3) International & Comparative Law Quarterly 721-740; L Rajamani, ‘The Durban platform for enhanced action and the future of the climate regime’ (2012) 61 (2) International & Comparative Law Quarterly,  501-518.

[2] Article 2 UN General Assembly, United Nations Framework Convention on Climate Change/ Adopted at the COP 21 in Paris, France, 12 December 2015 FCCC/CP/2015/L.9/Rev.1 accessed 1st April 2022.

[3] FZ Taibi and S Konrad, Pocket Guide to NDCs under the UNFCCC (ECBI 2018) 1-2.

[4] For instance, the EU and its member states committed to a domestic reduction of 40% by 2030. See Intended Nationally Determined Contribution of the EU and its Member States (2015) available at  LV-03-06-EU INDC (unfccc.int)> Accessed  2nd April 2022.

[5]Millennium Development Goals and beyond 2015 < United Nations Millennium Development Goals > Accessed 6th April 2022.

[6] However, net zero emission is possible by 2050 and most countries have updated their NDCs in line with 2050 deadline. See The update of the nationally determined contribution of the European Union and its Member States available at EU_NDC_Submission_December 2020.pdf (unfccc.int) Accessed  7th  April 2022.

[7] Paragraph 55. UN General Assembly, transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.; K. Shamin and R Kibugi, ‘Brief on Sustainable Development Goal 13 on Taking Action on Climate Change and Its Impacts: Contributions of International Law, Policy and Governance’ (2017) 13 McGill Journal on Sustainable Development Law 183.

[8] P Antwi-Agyei and others, Identifying Opportunities for Coherence between the Intended Nationally Determined Contributions, and the Sustainable Development Goals:  The Case of ECOWAS Member States (Sustainability Research Institute School of Earth and Environment 2017) 5; The State of The World’s Forest, Forest Pathway to Sustainable Development, (Food and Agriculture Organization of the United Nations (2018) 100-107, available at < http://www.fao.org/3/I9535EN/i9535en.pdf > Accessed 2nd April 2022; Climate Change and SDG Synergy Conference, Background Paper Leveraging Climate Change and SDG Interlinkages: Country Experiences (TERI School of Advanced Studies for UN DESA 2019) available at < https://sustainabledevelopment.un.org/content/documents/22155Background_PaperTERILeveraging_Climate_Change_and_SDG_Interlinkages.pdf > Accessed 2nd April 2022 ; Food and Agriculture Organization of the United Nations,  Climate-smart agriculture Sustainable Development Goals, Mapping interlinkages, synergies and trade-off s and guidelines for integrated implementation (Food       and Agriculture Organization of the United Nations Rome, 2019) 84-101 available at<  http://www.fao.org/3/ca6043en/ca6043en.pdf  > Accessed 2nd  April 2022; V Masson-Delmotte,  T Waterfield and others (eds), Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC 2018)  19 -20, available at https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf > Accessed 3rd April 2022.                

[9]  F Nerini and others , ‘Connecting climate action with other Sustainable Development Goals’ (2019) 2 (8) Nature Sustainability, 674-680 at 678.

[10] Ibid.

[11] P Antwi-Agyei and A Dougill, How best to align planning for Nationally Determined Contributions and Sustainable Development Goals:  West African Lessons (Sustainability Research Institute School of Earth and Environment 2018) 2.

[12] Ibid .

[13] Such as SDGs 1, 2, 6, 7, 13 and 15. Ibid .

[14] Antwi-Agyei and others (n 11).  

[15] M Bouyé, S Harmeling and NS Schulz , Connecting the dots: Elements for a joined-up implementation of the 2030 Agenda and Paris Agreement (Deutsche Gesellschaft für Internationale Zusammenarbeit 2018) 16; Sustainable Development Goal Knowledge Platform, Global Conference on Strengthening Synergies between the Paris Agreement and the 2030 Agenda for Sustainable Development: Maximizing Co-Benefits by Linking Implementation across SDGs and Climate Action (United Nations 2019) at 50 available at <https://sustainabledevelopment.un.org/climate-sdgs-synergies2019 > Accessed 6th April 2022.

[16]  Bouyé and others (n 15).

[17] Ibid.  

[18] Sustainable Development Goal Knowledge Platform (n 15).

[19] OECD, Opening of the Inter-ministerial Commission on OECD Affairs, Opening remarks by Angel Gurría OECD Secretary-General October 2019 – Bogota, Colombia.

[20] Bouyé and others (n 15) 48.

[21]Sustainable Development Goal Knowledge Platform (n 15).

[22] Sustainable Development Goal Knowledge Platform(n 15).

[23] Nerini and others (n 9).  

The UN Climate Change Conference 2021 in Glasgow – Success or Failure?

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Guest blog by Christina Schroeder, member of the Environmental Law and Sustainability Research Group

The UN Climate Change Conference in Glasgow (COP26) took place from 31 October to 12 November 2021, with more than 120 world leaders and over 40,000 registered participants attending.[1] The target of the conference was to accelerate actions to implement the goals of the Paris Agreement[2] and the UN Framework Convention on Climate Change.[3]

During COP26, countries reaffirmed the Paris Agreement goal limiting the global temperature rise to 1.5 degrees and reaching net-zero around mid-century.[4] This year’s extreme natural events also gave the conference more significance, with impacts of global warming becoming more obvious with floods, heat-waves and fires.[5] Before COP26, many countries updated their Nationally Determined Contributions (NDCs) for more climate protection.[6] The European Union, for example, entered these negotiations with several objectives such as cutting emissions, providing climate finance to developing and vulnerable countries with targeting 100 billion dollars per year, but also getting an agreement on the Paris rulebook for fixing transparency and reporting requirements.[7]

Against this background, the decisions taken at COP26 were accordingly viewed critically.

Many hoped for transformation to implement the goals of the Paris Agreement rather than the improvement discussed within COP26.[8] The Climate Conference in Glasgow should not be seen as a failure, but also not as a big success comparable to Paris.[9] Still, some important decisions in the fight against climate change were made. An important political, as well as climate policy decision, was the announcement of a collaboration between China and the US to reduce their emissions.[10] Another important decision was the agreement between more than 100 countries to reduce their methane emissions by 30% until 2030, as well as another agreement concerning the regeneration of forests made by over 100 countries having a total of 90% of the world’s forests together.[11] The global coal to clean energy transition also found big support from more than 40 countries during the negotiations.[12]

Progress can be determined, especially regarding the long-term view with credible delivery plans. Net-Zero target is an important part of this plan. At the last COP in Madrid in 2019, only 16% of the global GDP was covered by Net-Zero target, whilst now around 90% of global emissions are covered by this Net-Zero target with limiting climate warming to 2 degrees within potential reach.[13] Especially the Net-Zero target was supported in Glasgow for long-term efforts.[14] These decisions may be important, but they fell short of the expectations of many, also because many criticisms remained unresolved within COP26.

The final text of the COP26 includes further actions to curb emissions, more frequent updates on progress, and the idea of funding for low- and middle-income countries.[15] Nevertheless, there is a lack of stronger commitments to reduce emissions. The countries only agreed to phase down and not phase out coal[16], which seems disappointing in regard to the Paris Agreement’s goals.

Another point of criticism is the failure to agree on loss and damage finance. This includes supporting low- and middle-income countries with their pathway to decarbonisation, resilience, energy access, and economic growth at the same time.[17] The issue of climate finance is especially crucial for low-income countries being directly exposed to climate change and damages resulting from emissions they did not create.[18] Climate finance is important for helping these countries moving towards clean energy and away from fossil fuels as the cheapest way to keep energy costs down.[19] This means, in particular, that the vulnerable countries have to wait until COP27 where the issue of loss and damage finance should be progressed.[20]

There were less efforts on the short-term view for cutting emissions, although actions taken within the next 10 years are crucial, and an additional focus on near-term emission reduction would have been important too.[21] The NDCs are core to the COP framework and the immediate focus has also to be placed on countries strengthening their 2030 targets as the next few years would be the decisive period to reach the Paris Agreement’s targets.[22]

Apart from the political decision-making level, the climate summit was also very present in the media. Indeed, public awareness is necessary to achieve climate protection; therefore, results achieved during the climate change summit and reactions to it worldwide are important.  China as one of the big polluting countries in the world seemed to have ignored the sense of urgency.[23] In the US, President Biden is now trying to speed up climate change related measures by creating awareness amongst the citizens.[24] Russia still only aims to reach carbon neutrality by 2060, and as a fossil fuel superpower Russia is not willing to cut methane emissions up to 30% by 2030.[25] India as a developing country is taking initiatives to support the reduction in emissions, and also emphasising the urgency of climate change by announcing the goal of reaching Net-Zero by 2070.[26] Brazil’s largest problem contributing to climate change remains the deforestation of its immense rainforest; but the current political regime is not willing to take actions as President Jair Bolsonaro did not even show up to the climate summit.[27]

Following COP26, in addition to the decisions taken, it can be noted that there is still a long way to go to achieve the goals of the Paris Agreement. Countries are facing different problems starting off with political unwillingness for climate protection, not creating enough awareness amongst their citizens and also local circumstances such as poverty hindering the efforts to curb climate change . Nevertheless, if all the short-term and long-term commitments are implemented, it may still be possible to reach the targets set in Paris Agreement.[28]


[1] United Nations Climate Action, ‘COP26: Together for our planet’ <https://www.un.org/en/climatechange/cop26 > accessed 5 January 2022.

[2] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[3] General Assembly, Report of the United Nations Conference on Environment and Development (Rio Declaration), Rio de Janeiro 3-14 June 1992, A/CONF.151/26.

[4] United Nations Climate Action (n 1).

[5] Alejandra Borunda in National Geographic, ‘COP26 nears conclusion with mixed signals and frustration’ 12 November 2021 < https://www.nationalgeographic.com/environment/article/cop26-conclusion-mixed-signals-and-frustration> accessed 4 January 2022.

[6] Ibid.

[7] European Commission Press Release 13 November 2021 ‘COP26: EU helps deliver outcome to keep the Paris Agreement targets alive’ < https://ec.europa.eu/commission/presscorner/detail/en/ip_21_6021> accessed 4 January 2022.

[8] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full?’ 17 November 2021 <https://institute.global/policy/cop26-review-glass-half-full> accessed 5 January 2022.

[9] Ibid.

[10] Acciona ‘Conclusions From COP26: The Challenge of Doing Away With Coal’ <https://www.activesustainability.com/climate-change/cop26-conclusions/?_adin=02021864894> accessed 4 January 2022.

[11] Ibid.

[12] Ibid.

[13] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[14] Ibid.

[15] Ehsan Masood, Jeff Tollefson ‘COP26 hasn’t solved the problem: scientists react to UN climate deal’ 15 November 2021 < https://www.nature.com/articles/d41586-021-03431-4> accessed 4 January 2022.

[16] Acciona ‘Conclusions From COP26: The Challenge of Doing Away With Coal’ (n 10).

[17] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[18] Ehsan Masood, Jeff Tollefson ‘COP26 hasn’t solved the problem: scientists react to UN climate deal’ (n 15).

[19] Ibid.

[20] Tim Lord, Phil McNally ‘COP26 Review: Glass Half Full? (n 8).

[21] Ibid.

[22] Ibid.

[23] BBC ‘COP 26: How the world is reacting to the climate summit’ 06 November 2021 <https://www.bbc.com/news/science-environment-59036722> accessed 5 January 2022.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Alejandra Borunda in National Geographic, ‘COP26 nears conclusion with mixed signals and frustration’ (n 5).

Stifling Access to Sanitation through Privatisation of Public Facilities in Ghana: The Cases of Human Rights and Dignity

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Blog by Dr. Felix Nana Kofi Ofori, REACT Humanitarian Network, Oxford, UK. Former PhD student, Bristol Law School, UWE Bristol.

Human well-being, now and in the future, depends on a healthy environment characterised by access to safe sanitation in society. [1] This blog examines the challenges confronting majority of Ghanaians whose access to sanitation, is hindered by privatisation and limited provision of public facilities; and where these are available, they are exorbitantly expensive thereby stifling and violating the dignity and human rights of the people. [2]

Access to sanitation as a right, evokes controversies in international human rights jurisprudence compared to the conventional rights. However, it is no secret within the Ghanaian society, that majority of the citizenry in cities, regional centres, including the remotest communities of the country, lack access to sanitation. [3] Fundamentally, lack of access to sanitation is a violation of the human rights and dignity of Ghanaians; as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), [4] as adopted by the United Nations General Assembly (UNGA), in 2010).[5] However, under Ghana’s liberalisation and privatisation agenda, which was promoted by the IMF/World Bank[6], majority of public toilet/latrine facilities in the country were privatised with a view  to enhance the efficient management and provision of services for the people. Furthermore, since all human rights are interdependent there is little doubt that access to sanitation is critical to achieving human dignity which is at the fore-front of protecting human health.[6a] [6b]

As society evolves so the ambit of rights grow to protect and promote the welfare and dignity of peoples globally, and particularly in this context, Ghana. Sanitation is crucially one area in which the dignity of most Ghanaians is violated because of the failure of successive governments to establish facilities to protect this right. [7] In its preamble, the United Nations Charter provides that “all human beings are born free and equal in dignity and rights. [8] Thus, there can be no realisation of human rights without respect for human dignity; therefore, sanitation should be given critical priority by the government in allocating budgetary and physical resources to ensure that Ghanaians gain access to effective sanitation services. The duty to establish sanitation and hygiene facilities in Ghana as other countries, spans three obligations- availability, accessibility and affordability. [9] 

First, availability means that the government establishes public sanitation facilities within reasonable distance of the people’s reach; whilst, ensuring that poorer communities are not denied access to sanitation for want of paying. [10] Second, accessibility, is defined by the WHO-UNICEF Joint Monitoring Programme and Water Supply, Sanitation and Hygiene, as a standard 30 minutes time for someone to go to and return from a sanitation facility. [11] Also, it is the responsibility of the government and local authorities to ensure that children and persons with disabilities coupled with the location of the sanitation facilities do not impede access to such services. Third, affordability, as a human rights criterion, requires that “access to sanitation facilities and services be made reasonably affordable to all peoples, especially in the poorer part of cities and deprived communities of a county”. [12] Whilst the UNDP sets a threshold of 3 per cent, that by the Organization for Economic Cooperation and Development is 4 per cent and that by the Asian Development Bank is 5 per cent respectively. [13] Despite the above established thresholds, the government and public agencies responsible for sanitation services in Ghana, continue to violate the right to sanitation; by failing, to adopt creative strategies to ameliorate any hardships pricing mechanisms impose on the people regarding access to sanitation services.

Strategically, the World Bank plays vital roles in the development of nations, especially Ghana, by offering financial and policy directions to help them improve their socio-economic services of which sanitation constitutes an integral part. Privatisation of water and sanitation services is one area in which the World Bank’s strategic guidance had created mixed consequences in Ghana. The World Bank opines that private participation in the sanitation services is beneficial to the state and its people because it introduces efficient and judicious management of services; and it secures the requisite funding to repair and maintain old infrastructures. [14] Conversely, larger parts of communities in cities and town throughout Ghana practise open defecation due to limited or non-availability of sanitation facilities. [15] The majority view is that privatisation not only stifles access to sanitation in further violation of the people’s dignity, but also breaches established obligations of governments to protect access to sanitation, as enshrined in International human rights law. [16] This resonates with the premise that economic and political expediencies coupled with national policies cannot be deployed by the government and its agencies to commit blatant illegalities concerning the implementation of privatisation agenda.

Primarily, the right to sanitation is considered as a private responsibility enjoining the individual to build his/her own latrine or pay to connect to the sewerage system; however, where individuals cannot afford to pay for this responsibility, the state has to bear this duty in two respects. First, the State should adopt the necessary measures such as tariff schemes or subsidies to ensure that services are affordable; and second, implement practical framework and enabling environment to guarantee access to sanitation. [17]

Copious evidence suggest that privatisation stifles access to sanitation which in turn undermines the human rights and dignity of Ghanaians, especially those in poorer communities, who lack the financial backing to either build or pay for sanitation services. The right to sanitation is an enshrined human right obligation of governments in the international community, including Ghana, requiring that access is protected and promoted without citing arguments of economic, social or political expediencies. Although Ghana has finite resources like other states, it is obliged to allocate portion of its budgetary resources to ensure that access to sanitation and hygiene facilities are progressively realised in accordance with international and constitutional mandates. Similarly, the duty to protect access to sanitation extends to supervising the implementation of privatisation contracts without compromising the dignity and human rights of Ghanaians.

References

[1] <www.ohchr.org/EN/Issues/WaterAndSanitation/SR/Water/Pages/Progressiverealization.aspx. >Accessed December 13, 2021.

[2]Transforming our World: The 2030 Agenda for Sustainable Development (General Assembly Resolution 70/1, para. 5).

[3] UNICEF Ghana: “Water, Sanitation and Hygiene” < https://www.unicef.org/Ghana/Water-Saniation-and-Hygiene> Accessed December 14, 2021.  

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) UNTS, Art. 2 (1)

[5] Special Rapporteur on Human Rights to Safe Drinking Water and Sanitation, Caterina de Albuguerque, Report, Mission to Egypt, 50, UN. Doc.A/HRC/15/31/Add.3 (Jul. 5, 2010).

[6a] Vienna Convention on the Law of Treaties (1969),  Adopted May 23, 1969, entered into force on January 27, 1980, United Nations, Treaty Series, vol. 1155,p 331.

[6b] The World Bank-FAQ-World Bank Group Support for Water and Sanitation Solutions<https://www.worldbank.org/en/topic/water/brief/working-with-private-sectors-to-increase-water-sanitation-access > Accessed December 14, 2021.

[7] Gould, C. and Brown, C. Sanitation Challenge for Ghana Dignified City Award (Stage 2), May 2020, IMC Worldwide.

[8] The Charter of the United Nations and the Statute of the International Court of Justice, UN, New York (1997) 3.

[9] A/HRC/45/10, “Progressive Realization of the Human Rights to Water and Sanitation” Report of the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation, September 14- October 2, 2020.

[10] A/HRC/45/10, Ibid. see note 9, para. 35

[11) Ibid. see note 9, para. 37

[12] Ibid. see note 9, para. 39

[13] A/HRC/30/39, Report of the Special Rapporteur  on the Human Right to Safe Drinking Water and Sanitation: Addendum, para. 25.

[14] The World Bank –FAQ – World Bank Group Support for Water and Sanitation Solutions < https://www.worldbank.org/en/topics/water/brief/working-with-private-sectors-to-increase-water-sanitation-access-> Accessed December 14, 2021.

[15] The World Bank, Ibid.

[16] Winkler, T.I., The Human Right to Sanitation (2016), University of Pennsylvania Journal of International, Vol.37 (4) 1331-1406.

[17] Eide, A., Economic, Social and Cultural Rights as Human Rights in Economic, Social and Cultural Rights- Textbook, 9, 24 (Asbjorn Eide, Catarina Krause and Allan Rosas eds, 2nd ed., 2001)

The role of judiciary in climate change litigation – the rise of a promising opportunity to combat climate change

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By Christina Schroeder, LLM Student, Member of Environmental Law and Sustainability Research Group.

Climate change and how to combat it is an omnipresent issue. Whereas in the past climate change and its consequences were talked down, they are now seen as the “biggest threat modern humans have ever faced”[1] and referred to as a “crisis multiplier”[2] with the need to act in time, requiring global cooperation.[3]

The previous attempt to achieve climate protection at the political level by means of the Paris Agreement[4] can be considered a failure due to the lack of implementation[5] by the states.

This is where the consideration comes into play as to whether court rulings offer a possibility to effectively combat climate change. Climate change litigation is also increasing due to the influence of many young people who are campaigning for more climate protection with the help of the courts or by organising global climate strikes.[6]

There are several reasons why courts can provide an opportunity to effectively combat climate change through their judgments. In contrast to climate agreements as for example the Paris Agreement, courts take a clear line. Cases have to be decided and thus a clear result has to be reached; while political leaders so far have failed to implement measures to reach targets of the Paris Agreement.[7] Courts are also suited to their function of enforcing decisions promoting more climate protection. In the context of climate change litigation, judicial lawmaking is also becoming increasingly important. Courts decide whether existing laws need to be reinterpreted or amended when they are deemed unfair in their application to specific cases.[8]

Judicial successes in effectively combating climate change can be seen in several landmark rulings, especially in strategic cases[9] where courts make decisions by ordering the improvement or revision of current laws,[10] as in the cases of Friends of the Irish Environment v Ireland[11] and Neubauer et al. v Germany.[12]  For example, in the case of Friends of the Irish Environment v Ireland[13] the Supreme Court of Ireland quashed the National Mitigation Plan, as the court found that the plan was not detailed enough to effectively reach the goals within Ireland’s 2015 Climate Act.[14] The court also argued that especially for a normal citizen, the plan was not sufficiently specific enough relating to what actions would be taken until 2050 to give effect to the 2015 Climate Act of Ireland.[15] In this respect, the decision of the Supreme Court of Ireland has set the course for the fight against climate change but has so far contributed little to it due to a lack of political implementation of a new Mitigation Plan.

Recently in 2021, the German Federal Constitutional Court decided that the Federal Climate Change Act[16] does not sufficiently protect the future generations from the impacts of climate change.[17] The Court also found a duty of the German government to actively protect life and health of its citizens.[18] After the ruling in Germany, the German government initiated an amendment of the Climate Protection Act in a record time.[19] Under the amended Climate Protection Act by the German government from 24 June 2021, the climate protection targets have been tightened and now aim for Germany to become greenhouse gas neutral by 2045 which is five years earlier compared to the previous target in 2019 and also ahead of the EU’s target date.

Some court cases are also aiming to put pressure on the legislator to do more for climate protection. This can be seen in the cases of the Dutch Supreme Court deciding the case of Urgenda Foundation v. State of the Netherlands[20] in 2019 which identified a legal duty of the government to prevent and combat climate change more actively;[21] and the Colombian Supreme Court ruling in 2018 in favor of 25 children in Colombia who sued the Colombian Government for failing to prevent deforestation and therefore not taking actions against climate change.[22]

In Urgenda case, the Dutch Supreme Court invoked the government’s human rights obligations. In order for these to be fulfilled, the court orientated itself on a proposed common ground, which is the targeted reduction of greenhouse gases.[23] This ruling in particular is seen as very successful due to its transferability to other European countries and has already given rise to similar climate lawsuits.[24]

In the Demanda Generaciones Futuras case, the Colombian Supreme Court ordered the government to develop a plan for environmental protection of the Amazon, and at the same time declared the Amazon as an entity with own rights to be protected from destruction. Despite this important ruling, the government has not been able to adequately protect the Amazon.[25] This is not due to the ruling of the Colombian Supreme Court itself, which aimed for comprehensive protection, but solely to the lack of initiatives and measures adopted by the political leaders. Indeed, the approach of using the ‘Rights of Nature’ to protect nature is problematic in this respect, as nature is dependent on human representation. This can work well, as in New Zealand, where the Whanganui River[26] is represented by indigenous people. In contrast, the consideration of granting rights to the Great Barrier Reef remains a concern due to a lack of representation.[27]

The cases above show that courts can be an effective way to combat climate change.

In the context of behavioral effectiveness, the courts are moderately successful, as these decisions cannot directly influence people and their behavior, but they can indirectly influence people’s behavior by stimulating social debate and media attention.[28] In addition, courts can exert direct influence on legislators through their rulings.[29] This is also done while preserving the separation of powers, since despite judicial lawmaking, courts do not become politically active. Thus, the judiciary’s role to solve problems remains complicated. This is due to the fact that the separation of powers and the role of the courts require both political and social components in order to effectively implement a decision.[30] Courts cannot fight climate change on their own, but they can positively promote it.


[1] United Nations Security Council, Press Release SC/14445 ‘Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation’ 23 February 2021 <https://www.un.org/press/en/2021/sc14445.doc.htm> accessed 14 June 2021.

[2] Ibid.

[3] Ibid.

[4] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[5] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ Max Planck Encyclopedia of Procedural Law (2019) <https://halshs.archives-ouvertes.fr/halshs-02281274/document> No.4 accessed 24 August 2021.

[6] Ibid.

[7] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ (n 5) No.4.

[8] Ibid.

[9] Orla Kelleher, ‘The Supreme Court of Ireland’s Decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’ (EJIL, 9 September 2020) <https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/> accessed 9 July 2021.

[10] Joana Setzer, Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (Policy Report July 2021) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf> 12, accessed 9 July 2021.

[11] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[12] Neubauer et al. v Germany, Court order of 24 March 2021, 1 BvR 2656/10.

[13] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[14] Climate Action and low Carbon Development Act 2015, 46/2015, into force on 10 December 2015.

[15] Mary Carolan, ‘Supreme Court Quashes Government’s Plan to Reduce Greenhouse Gases’ (The Irish Times, 31 July 2020) <https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-quashes-government-s-plan-to-reduce-greenhouse-gases-1.4318578> accessed 10 July 2021.

[16] Climate Protection Act Germany (Klimaschutzgesetz), into force on 12 December 2019, amended on 24 June 2021.

[17] Ralf Bodle, Stephan Sina, ‘The German Federal Constitutional Court’s Decision on the Climate Change Act’ (Ecological Institute Berlin, 2021) <https://www.ecologic.eu/18104#:~:text=In%20a%20decision%20published%20in,by%20the%20end%20of%202022> accessed 10 July 2021.

[18] Ibid.

[19] Alice Boldis, Christian Lütkehaus, ‘How a Court Ruling Changed Germany’s Climate Protection Act’ (Pinsent Masons, 20 July 2021) <https://www.pinsentmasons.com/out-law/analysis/court-ruling-germany-climate-protection-act> accessed 2 August 2021.

[20] Urgenda Foundation v The State of the Netherlands (20 December 2019) 19/00135.

[21] Urgenda, ‘Landmark Decision by Dutch Supreme Court’ (Urgenda.nl, 2020) <https://www.urgenda.nl/en/themas/climate-case/> accessed 5 August 2021.

[22] Demanda Generaciones Futuras v Minambiente, Colombian Supreme Court (5 April 2018) STC 4360-2018.

[23] Laura Burgers, André Nollkaemper, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’ (EJIL, 6 January 2020) < https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/> accessed 8 August 2021.

[24] Anke Wonneberger, Rens Vliegenthart ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (n 45) 699.

[25] Alex Guillau, ‘The Colombian Government has Failed to Fulfil the Supreme Court’s Landmark Order to Protect the Amazon’ (Dejusticia, 5 April 2019) < https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/> accessed 25 August 2021.

[26] New Zealand, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 / Rapid Transition Alliance, ‘The Rise of the Rights of Nature’ (Rapid Transition, 11 March 2019) <https://www.rapidtransition.org/stories/the-rise-of-the-rights-of-nature/> accessed 16 August 2021.

[27] Randall S. Abate, Climate Change and the Voiceless (Cambridge University Press 2019) 161.

[28] Anke Wonneberger, Rens Vliegenthart, ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (2021) 15 Environmental Communication 699.

[29] Jaqueline Peel, Hari M. Osofsky, ‘Clime Change Litigation’ (2020) Annu. Rev. Law. Soc. Sci.33.

[30] Luke Elborough, ‘International Climate Change Litigation: Limitations and Possibilities for International Adjudication and Arbitration in Addressing the Challenge of Climate Change’ (2017) 21 NZ J Envtl L 125.

Climate Change Litigation – A Vehicle for Changing Corporation and State Behaviour?

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By Johanna Reichel, Second Year, LL.B. Programme.

With only nine years left until climate change becomes irreversible,[1] stopping or slowing it down becomes increasingly crucial every day. One judicial instrument among others to combat climate change is climate change litigation which is gradually perceived to change climate-related policy outcomes and corporate behaviour.

The most prominent case when talking about climate change litigation is Urgenda.[2]In this case, the Dutch Supreme Court ruled in favour of 900 citizens assisted by the Urgenda Foundation and ordered the government to reduce greenhouse gas emission (GHG) by at least 25% by the end of 2020.[3] This “show horse” of climate change litigation is an almost perfect example of invoking human rights to force States to act ‘greener’.

Climate change litigation cases, especially ones relying on human rights, are increasing.[4] When the defendant is the respective government, the claimants can rely on human rights. Especially the right to life[5] and the right to effective remedies[6] have been used more often strategically and successfully by NGO’s and individuals.

Urgenda paved the way for other individuals, such as Ashgar Leghari, a farmer in Pakistan, to hold their governments accountable via litigation. Mr Leghari challenged the Pakistani government for its failure to carry out core provisions of the National Climate Change Policy of 2012. He succeeded and the government was ordered to implement a climate adaption plan.[7]

In 2018, Colombia’s Supreme Court ordered the authorities to implement action plans to address deforestation in the Amazon,[8] another major cause of climate change. As the ‘lung of the world’, the Amazon Forest stores large amounts of carbon that would otherwise be released into the atmosphere and thereby increasing the world’s temperature.[9]

As demonstrated, climate change litigation is a tool to influence climate change law and policy. Nevertheless, as corporations are responsible for over 71% of global emissions,[10] holding them accountable is essential to stop climate change. However, as the provisions in the Human Right Charters are only addressed to public bodies, corporations cannot be held liable under them.[11] After failed attempts in the early 2000s,[12] the second wave of litigation rose with cases such as Huaraz Case[13] where Saúl Luciano Lliuya, a Peruvian farmer, is suing the German multinational energy company RWE in Germany to hold them accountable for their impact on climate change. He is basing his claim on the German Code of Civil procedure, yet the outcome must be awaited as SARS COVID-19 delayed the process.[14]

The precedent for climate change litigation against corporations was recently set in Milieudefensie v Shell.[15] In May 2021, Shell was ordered to cut their GHG by 2030 by 45%.[16] Relying on the Urgenda precedent and the fact that Shell’s GHG was twice as high as the Netherland’s, the court permitted the claim under the European Convention on Human Rights.[17]

Despite the fact that courts do not always rule in favour of the environment, corporations can be influenced to act ‘greener’ due to media coverage. ExxonMobile, for example, misled the public about climate change’s potential business risks to rationalize their behaviour by funding climate change denial front groups and spreading disinformation about climate science.[18] Despite winning the case, the subsequent public and financial scrutiny damaged their reputation, and their credit rating was downgraded.[19] In conclusion, climate change litigation is accurately seen as a tool to influence climate change policies and corporate behaviour. However, cases such as Urgenda and Milieudefensie, while demonstrating an ideal outcome, are rare and must be built upon. Milieudefensie, in particular, needs to be further observed as Shell will undoubtedly appeal the decision. Nevertheless, even unsuccessful cases can drive climate change action long term as public awareness is raised through media attention and a broad public discussion is forced.


[1] General Assembly, Only 11 Years Left to Prevent Irreversible Damage from Climate Change, Speakers Warn during General Assembly High-Level Meeting (28 March 2019) < https://www.un.org/press/en/2019/ga12131.doc.htm> accessed 18 May 2021

[2] Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[3]’Climate Case – Urgenda’ (Urgenda, 2019) <https://www.urgenda.nl/en/themas/climate-case/> accessed 18 May 2021;  Supreme Court of the Netherlands, 20 December 2019, ECLI:NL:HR:2019:2007, English translation ECLI:NL:2019:2007

[4] Elisa de Wit, Sonali Seneviratne and Huw Calford, ‘Climate Change Litigation Update’ (Nortonrosefulbright.com, 2020) <https://nortonrosefulbright.com/en/knowledge/publications/7d58ae66/climate-change-litigation-update> accessed 24 May 2021

[5] Universal Declaration of Human Rights 1848, art. 3; International Covenant on Civil and Political Rights 1966, art. 6

[6] Universal Declaration of Human Rights 1848, art. 8; International Covenant on Civil and Political Rights 1966, art. 2(3)

[7] Asghar Leghari v Federation of Pakistan (2015) W.P. No 25501/201

[8] Demanda Generaciones Futuras v. Minambiente 11001-22-03-000-2018-00319-01, para 3.

[9] Ross W. Gorte and Pervaze A. Sheikh ‘Deforestation and Climate Change’ (Congressional Research Service, 2010) < http://forestindustries.eu/sites/default/files/userfiles/1file/R41144.pdf> accessed 2 July 2021

[10] Tess Riley, ‘Just 100 Companies Responsible For 71% Of Global Emissions, Study Says’ (the Guardian, 2017) <https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change> accessed 18 May 2021

[11] European Commission, ‘How to report a breach of your rights’ https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/how-report-breach-your-rights_en accessed 26 May 2021

[12] Michal Nachmany and Joana Setzer, ‘Global trends in climate change legislation and litigation: 2018 snapshot’ (2018) Graham Research Institute on Climate Change and the Environment < https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot-3.pdf> accessed 24 May 2021

[13] Agence France-Presse, ‘Peruvian farmer sues German energy giant for contributing to climate change’ The Guardian (14 November 2017) < https://www.theguardian.com/world/2017/nov/14/peruvian-farmer-sues-german-energy-giant-rwe-climate-change> accessed 24 May 2021

[14] Luciano Lliuya v. RWE AG Case No. 2 O 285/15 Essen Regional Court

[15] The Hague District Court, 26 May 2021, ECLI:NL:RBDHA:2021:5337, English translation ECLI:NL:RBDHA:2021:5339

[16] Roger Harrabin ‘Shell: Netherlands court orders oil giant to cut emissions’ BBC News (26 May 2021) < https://www.bbc.co.uk/news/world-europe-57257982> accessed 26 May 2021

[17] Milieudefensie v Shell [2019] District Court of The Hague < http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190405_8918_summons.pdf> accessed 26 May 2021

[18] Suzanne Goldenberg ‘ExxonMobil under investigation over claims it lied about climate change risks’ The Guardian (New York, 5.11.2015) <https://www.theguardian.com/environment/2015/nov/05/exxonmobil-investigation-climate-change-peabody> accessed 8 July 2021

[19] Megan Darby, ‘Shareholder Pressure Mounts On Downgraded Exxonmobil’ (the Guardian, 2016) <https://www.theguardian.com/environment/2016/apr/28/shareholders-pressure-mounts-on-downgraded-exxonmobil-climate-change> accessed 25 May 2021

Urgenda: A Turning Point in Climate Litigation- An Analysis of the Supreme Court Decision

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By Farzam Maleki, second year LLB student

The main question of law raised by the Urgenda case[1] is whether the Dutch government was acting unlawfully, in not meeting the internationally recognised climate target to reduce greenhouse gas emissions by 25% in 2020 compared to 1990.[2]

In this case, several matters were brought before the court to consider in order to reach the decision. First, the court was asked to decide whether the state had a legal duty to prevent dangerous climate change under European Convention on Human Rights[3] (hereinafter: ECHR) and whether the Urgenda as an NGO could bring a claim on behalf of Dutch residents before the court or according to article 34 ECHR claims could only be brought by the individuals who are direct victims of the violation of the rights mentioned in ECHR.[4]

Furthermore, the court had been asked to decide whether, despite the fact that the Netherlands’ share in global greenhouse gas emissions is insignificant, the Dutch government is still required to reduce their greenhouse gas emission as an individual country to comply with the ‘international consensus’.[5]

Another important question raised by the state is whether it is permissible for the court to issue an order on this matter and oblige the state to reduce greenhouse gas emissions or as the state claimed ‘it is not for the courts to make the political considerations necessary for a decision on the reduction of greenhouse gas emissions’.[6]

On 20 December 2019, the Supreme Court of the Netherlands upheld both the District Court and the Court of Appeal’s decisions that the state is obliged to reduce greenhouse gas emissions by 25% in 2020 compared to 1990.[7]

The Supreme Court of the Netherlands in their decision consolidated the Court of Appeal’s Human Rights approach to climate change and concluded that although according to Article 34 the Urgenda cannot bring a claim to ECtHR, in accordance with Article 3:305a of the Dutch Civil Code, Urgenda could bring a claim before the Dutch court on behalf of an interest group who in this case are the residents of the Netherlands.[8]

The court rejected the state’s argument that the Netherlands’ share in global emission is not significant by stating that:

This duty is not diminished by the fact that the Dutch contribution to the present global greenhouse gas emissions is currently quite minor. Given that at least the 450 ppm scenario is required to prevent hazardous climate change, the Netherlands should take measures to ensure that this scenario can be achieved.[9]

The Supreme Court also rejected the state’s argument that the greenhouse reduction targets set out in the IPCC Fourth Assessment Report (AR4)[10] were meant to be achieved by Annex I countries[11] as a group, not by each country individually. The court within its reasoning states:

However, as shown by the considerations in 5.7.3 and 5.7.4 above, the UNFCCC[12] and the Paris Agreement[13] are both based on the individual responsibility of states. Therefore, in principle, the target from AR4 also applies to the individual states within the group of Annex I countries.[14]

Regarding the permissibility of issuing an order by the court on this matter, the Supreme Court concluded that the court’s decision is an order to reduce emissions rather than interfering with the legislative process and the judiciary must judge whether the state is following the law in making their political decisions.[15] Therefore, this case is considered a benchmark for the influence of domestic courts in enforcing governments to comply with internationally recognised environmental goals.


[1] State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichthing Urgenda, Supreme Court of the Netherlands, 20 December 2019, ecli:NL:HR:2019:2006, English translation ecli:NL:HR:2019:2007. (hereinafter: Urgenda).

[2] UNFCCC Decision 1/CP.16, para. 8, fccc/CP/2010/7/Add.1 (2007).

[3] Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4th November 1950, entered into force 3rd September 1953) ETS No.005.

[4] Urgenda (n1), para 5.9.1-5.9.3.

[5] ibid, para 4.3 and 7.1-7.3.6.

[6] ibid, para 3.5.

[7] ibid, para 9.

[8] ibid, para 5.9.1-5.9.3.

[9] ibid, para 2.3.1.

[10] S. Solomon, D. Qin, M. Manning, Z. Chen, M. Marquis, K. B. Averyt, M. Tignor & H. L. Miller (eds.), Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007).

[11] ‘Annex I Parties include the industrialized countries that were members of the OECD (Organisation for Economic Co-operation and Development) in 1992, plus countries with economies in transition (the EIT Parties), including the Russian Federation, the Baltic States, and several Central and Eastern European States.’

[12] UNFCCC Decision 1/CP.16, para. 8, fccc/CP/2010/7/Add.1 (2007).

[13] Paris Agreement UN Doc. fccc/CP/2015/L.9/Rev.1 (2015).

[14] Urgenda (n1), para 7.3.2.

[15] ibid, para 8.1- 8.3.4.

Environmental crises in Nigeria and extraterritorial judicial achievements: A wake-up call for Nigerian courts?

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Written by Cleverline T Brown, Doctoral student, member of Environmental Law and Sustainability Research Group.

The decisions of extraterritorial courts have left much to be desired about the efforts of the judiciary at the national level to assert itself in the fight to tackle environmental crises. While access to court has been one of the notable barriers to securing environmental justice in Nigeria, alternative pathways have been established through which litigants find access to courts in furtherance of environmental justice which they would otherwise have been deprived of. One such pathway is the recourse to foreign courts. Nigerian courts can draw some lessons from the stance of foreign courts in dealing with environmental cases.

Notable cases decided in foreign jurisdictions

Three notable cases were decided in the last year that may have possibly marked a turning point in the way environmental cases are resolved. However, the Nigerian courts do not seem to be taking the cue as quickly as they need to, considering the volume of environmental cases pending or likely to be instituted.

Vedanta Resources Plc. and Another (Appellants) v Lungowe and Others (Respondents)

In this case,[1] the UK Supreme Court held that UK courts can assume jurisdiction in certain circumstances, over cases instituted in UK Courts by non-UK citizens against both foreign subsidiaries and the UK parent company in cases of human rights violation outside of the UK.[2] The Appellants vehemently opposed unsuccessfully, the institution of the case in the UK Court on grounds of jurisdiction and their willingness to submit to the jurisdiction of the Zambian Court. The opposition was rejected by the Supreme Court. The court reasoned that a parent company should take responsibility for harms caused by its subsidiaries and affirmed that England is the right jurisdiction to hear the claim because substantial justice is guaranteed where the claimants have access to appropriate legal representation which is unlikely in a Zambian Court.[3]

Okpabi and Others (Appellants) v Royal Dutch Shell Plc and Another (Respondents),

The UK Supreme Court, in this case,[4]held that the polluted Ogale and Bille communities can sue Royal Dutch Shell as a parent company to Shell Petroleum Development Company (SPDC) because it owed the communities a common law duty of care and raised a real and triable issue since it exercised significant control over material aspects of the operations of its subsidiary SPDC in the communities.[5] It is contended that this decision implies that rural communities who have suffered environmental harm due to the activities of multinational corporations can bring an action in the original jurisdiction of their parent companies.

Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Others v Royal Dutch Shell PLC[6]

In this case, Milieudefensie, six other organisations including Greenpeace and over 17,000 co-plaintiffs sued Royal Dutch Shell in an attempt to stop it from causing climate change.[7] The plaintiffs claimed that Shell is breaching its legal duty of care by causing climate change across the globe and undermining the ambition of the Paris Agreement[8] and demanded that Shell must remedy this unlawful situation by aligning its corporate activities and investment decisions with the global climate targets. This case is significant in the sense that it has attempted to force climate action through the court. The reliefs sought by the plaintiffs are first, that as a multinational and worldwide operating company, Shell accepts legal responsibility to amend its corporate strategy and investment decisions and to align them with the global climate change objectives laid down in the Paris Agreement by following the global emission reduction pathway of the IPCC. Second, that Shell immediately starts reducing its CO2 emissions to at least 45% by 2030 relative to 2019 levels, and to net zero in 2050. Only if Shell follows this emission reduction pathway, can it truly contribute to preventing catastrophic climate change. The court ruled in favour of the plaintiffs.

Resorting to extraterritorial jurisdiction: some concerns

While the option to seek access to courts in extraterritorial jurisdictions in environmental cases, guarantees access to appropriate legal representation and substantial justice,[9] it raises some concerns. First, prospective litigants must ensure that all other local remedies have been exhausted before they can approach some foreign courts.[10] While this would have been an opportunity for the national courts to play a stronger role, some of the challenges of the national courts would make this effort almost fruitless; for example, court delays, lack of specialised judges etc.[11]  Second, high cost of litigation in foreign courts and jurisdictional challenges as some courts may not have the power to hear and determine some cases.[12] Third, it is argued that the continuous reliance on this pathway robs the national courts of the opportunity to assert themselves and create lasting judicial precedence and case law.

Is this a wake-up call for the Nigerian courts?

Nigerian courts must take a cue from the stand of foreign courts in environmental cases and give better audience and remedies to victims of environmental harm in Nigeria,[13] especially from foreign court decisions with impact in Nigeria. This will serve to strengthen environmental laws in Nigeria and encourage institutional structures in their implementation functions. The stand of the Nigerian courts can serve to strengthen the law, policy statements and ultimately support the efforts at effective regulation of the environment and petroleum sector operation.

There are some positive signals from the Nigerian judiciary. In the case of Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation (NNPC),[14] the Nigerian Supreme Court removed the locus standi barrier by granting NGOs the right to sue without exhibiting specific injury to them. Prior to this decision, NGOs and third parties lacked the locus standi to sue where sufficient interest was not established.[15]

While this is a step in the right direction, more needs to be done at the national level and examples are plentiful. For instance, the European Commission is finally ready to consider a new law to hold businesses accountable for their impact on people and the planet.[16] These rules on ‘mandatory human rights and environmental due diligence’ would require all companies, from fossil fuel giants and agribusiness to fashion retailers and electronics makers, to establish effective policies to make sure human rights and the environment are not being harmed in their global operations and supply chains.[17] In the Netherlands, Urgenda[18] sued the Dutch government to force them to reduce CO2 emissions in the country.[19] Urgenda succeeded on appeal when the Supreme Court of the Netherlands emphasised the duty of the state to protect its citizens by reducing CO2 emissions as soon as possible.[20] In Germany, it has also been held by the First Senate of the Federal Constitutional Court of Germany that the provision of the Federal Climate Change Act of 2019 is at variance with fundamental rights because they lack specificity for emission reduction beyond 2031.[21] In addition to the Supreme Court decision on locus standi of NGOs and third parties, the Nigerian judiciary could act suo moto and be proactive in contesting legislative provisions or policies of government that are incompatible with fundamental rights. Considering the volume of actions arising from the petroleum sector, the judiciary needs to play a far more important role in ensuring environmental justice.

Conclusion

Local communities are more vulnerable to the negative impacts of environmental decisions of multinational corporations.[22]  Oftentimes, it takes a long time for victims of environmental harm to get relief because of the many obstacles of access to courts and remedies. However, the audience and remedies that prove elusive in Nigerian courts are found in foreign courts. Considering the achievement by foreign courts and the effort of other national courts at holding perpetrators of environmental harm accountable as discussed above, Nigerian courts could use this opportunity to reassert themselves in environmental law cases before it. This is a wake-up call for Nigerian courts to rise to the occasion and improve on their judicial precedents regarding environmental law decisions. Since judicial decisions and statutory interpretations form part of the law, this can further strengthen the environmental legal framework of Nigeria and also solve the problem of access to courts and remedies.


[1] Vedanta Resources Plc and Anor (Appellants) v Lungowe and Others (Respondents) [2019] UKSC 20.

[2] The UK Supreme Court rationale for this decision was that considering some factors such as competence, capacity and integrity of Zambia’s justice system, evidence abounds that the Zambian claimants would almost certainly not get access to justice if the claims were pursued in Zambia.

[3] TV Ho, ‘Vedanta Resources Plc and Another v Lungowe and Others’ (2020) 114(1) The American Journal of International Law 110, 113; PT Sambo, ‘Vedanta Resources PLC and Konkola Copper Mines PLC v Lungowe and Others [2019] UKSC 20′ (2019) 2(2) SAIPAR Case Review 5.

[4] Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191.

[5] E Ojeda, ‘Transnational Corporate Liability Litigation and Access to Environmental Justice: The Vedanta v Lungowe Case’ (2021) 6(3) LSE Law Review 223, 224.

[6] Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[7] ‘Milieudefensie et al v Royal Dutch Shell PLC’ (2021) <https://climate-laws.org/geographies/netherlands/litigation_cases/milieudefensie-et-al-v-royal-dutch-shell-plc> accessed 9 June 2021.

[8] Milieudefensie, Friends of the Earth Netherlands. ‘Notice Letter Shell’ (2021) <https://en.milieudefensie.nl/news/noticeletter-shell.pdf> accessed 26 May 2021.

[9] See Vedanta Resources Plc and Anor v Lungowe and Others [2019} UKSC 20; Okpabi and Ors v Royal Dutch Shell Plc and Anor [2021] UKSC 31. On appeal from [2018] EWCA Civ 191; Milieudefensie Voor Veranderaars (Friends of the Earth Netherlands) & Ors v royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339.

[10] Article 50 of the African Charter on Human and Peoples’ Rights.

[11] These challenges usually negatively impact the justice delivery in such cases.

[12] Ojeda (n 5) 224; S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9(2) Transnational Environmental Law 323, 330; EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019; Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, ECW/CCJ/APP/08/09; RULING No: ECW/CCJ/APP/07/10.

[13] As exhibited in the three landmark judgments outlined in this writing.

[14]  (2019) 5 NWLR (Pt.1666) 518.

[15] See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal.

[16] S Kotanidis, ‘Parliament’s Right of Legislative Initiative’ (2020) <https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/646174/EPRS_BRI(2020)646174_EN.pdf> accessed 8 June 2021.

[17] Austrian Chamber of Labour (AK), ‘What is Human Rights and Environmental Due Diligence?’ (2021) <https://www.enforcinghumanrights-duediligence.eu/en/what-is-due-diligence> accessed 27 May 2021.

[18] An organisation for innovation and sustainability that promotes the sustainability of Netherlands in conjunction with companies, governments, social organisations and private individuals.

[19] Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689.

[20] KJ De Graaf and JH Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27(3) Journal of Environmental Law 517, 527.

[21] Bundesverfassungsgericht, ‘Constitutional Complaints Against the Federal Climate Change Act Partially Successful’ (2021) <https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2021/bvg21-031.html;jsessionid=BDDC5CCCCC30DD7A5791EAC6A0ECA022.1_cid377> accessed 8 June 2021.

[22] S Varvastian and F Kalunga, ‘Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v Lungowe‘ (2020) 9 (2) Transnational Environmental Law 323, 324.

Combating environmental degradation in Nigeria through the recognition of the Rights of Nature

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By Cleverline T Brown, PhD student, a member of the Environmental Law and Sustainability Research Group.

Environmental degradation has increasingly plagued the human and natural environment especially since the discovery of petroleum in Nigeria. The right to a clean and healthy environment although provided for in the Constitution,[1] has been seen to be non-justiciable[2] except by alternative pathways such as through the application of the African Charter on Human and Peoples Rights (ACHPR) [3] or in a foreign court. It is also a fact that environmental pollution cases have been lost due to technicalities.[4] This has emboldened some petroleum sector operators to continue bad environmental practices. Hence the need for alternative ways to combat environmental degradation from bad environmental practices such as the recognition of the rights of nature.

Global development of rights of nature

The concept of the rights of nature is an emerging field that is gradually being recognised by countries around the world. While the rights of human victims of environmental harm are protected under human rights law,[5] other victims of environmental harm such as nature and natural resources, exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice.[6] Rights of nature are rights that nature and natural resources possess, as distinct from the right of humans to a healthy environment. It can be a reformulation and expansion of existing human rights and duties in the context of environmental protection.[7] In some jurisdictions like India, New Zealand, Ecuador, Brazil, Columbia, Bolivia, nature is accorded human status.[8] This implies the right to be protected just like human beings under human rights laws; and the right to enforce such rights under the law.[9] Stone noted that until the rightless thing receives its right, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding the rights at the time.[10] More countries are legally recognising the rights of nature in their domains. In February 2021, the Innu Council of Ekuanitshit recognised the Magpie River, a 3000km (186 miles) waterway in the cote Nord region of the Canadian province of Quebec, as a legal person.[11] Some of the sources of the rights of nature in these jurisdictions include case law,[12] the Constitution and other legal instruments.[13]

Rights of Nature in Nigeria

The non-justiciability of the environmental rights provisions in the Constitution of Nigeria has prompted victims of environmental harm to seek access to courts in pursuit of justice, through other pathways.[14] While this effort has yielded some positive results, it has not yielded an express pronouncement on the rights of nature and natural resources per se to be protected, specifically in Nigeria. When environmental harm occurs, the rights sought to be protected are the rights of the human victims alone and these rights do not extend to the protection of nature. Recognition of the rights of nature in Nigeria can expand the definition of ‘victims of environmental harm’ and extend the frontiers on which environmental degradation can be combatted. The closest to rights of nature practiced in Nigeria is the designation of protected areas. These areas include forest reserves and plantations, national parks, nature reserves and gazetted forests.[15] This implies that the areas so designated are protected against farming, hunting, trapping, timber cutting and other human activities. It does not, however, protect these natural resources and rivers from the effect of oil spills and other negative impacts of petroleum sector activities.[16] This does not also give the protected areas personhood or the right to enforce the protected status. Legally recognising the rights of nature in Nigeria could be a game-changer in the move to combat environmental harm especially from petroleum sector operations. It is argued that an outright pronouncement on the rights of nature and natural resources can provide an alternative option in the fight against environmental degradation from environmental harm and easy access to courts to enforce those rights.

Challenges of Rights of Nature

While some gains have been made by the countries that have taken the lead in establishing rights of nature,[17] challenges remain on the full realisation of the effect of the rights of nature. First, it is difficult to assess how far the courts will go on the issue of enforcement of such rights. This is because the concept of rights of nature has not been rigorously tested before the courts to establish precedents.[18] Second, like every other law, the challenges of compliance and enforcement remain due to the lack of political will to enforce compliance with the laws.[19] Third, governments still place the exploitation of natural resources for gains over the protection of nature and natural resources. This is because often, the government relies on the proceeds from the exploitation of natural resources to provide basic amenities for its citizens.[20] Fourth, individuals and small businesses fear that such rights will lead to a multiplicity of lawsuits threatening their businesses and livelihood.[21] Fifth, it is believed that existing legal and statutory frameworks adequately cater to protect nature and new laws stipulating new rights are not required.[22]

Conclusion

The significance of the attention on the rights of nature is vital to the fight against global environmental degradation. If more countries recognise the rights of nature, it could put a check on how nature is interacted with by human beings because these rights will be put into consideration in such interactions. Such considerations can be in form of complying with environmental regulations, policies and standards. Therefore, it is contended that if compliance and enforcement of environmental laws are effectively observed, the environmental rights of human beings and nature can easily be realised.

Recognition of the rights of nature could lead to stronger natural resource laws. Legally recognised rights of nature and the human right to a healthy environment can work simultaneously to promote effective compliance and enforcement because humans have an interconnectedness with the natural world and should acknowledge the rights of nature to exist, persist and maintain its vital cycles.[23] The legal recognition of the rights of nature by Nigeria can be an effective legal tool to save the Nigerian environment from a gradual but steady decline.[24]


[1] S 20 of the Constitution of Nigeria 1999 requires the government of Nigeria to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria and s 33 (1) which guarantees the right to life of every citizen of Nigeria.

[2] See s 6 (6) c of the Constitution of Nigeria 1999 which essentially prevents any enquiry into any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution (under which a protected environment is provided for in the Constitution).

[3] Articles 4 which provides for the right to life and 24 which provides the right to a general satisfactory environment.

[4]  Such as standing and loopholes in the law. See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal. Some of the oil pollution related cases arising from some Ogoni communities fall into this category.

[5] EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019.

[6] It has been argued that other victims of environmental harm exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice. See M Hall, Environmental Harm: The Missing Victims?, vol 90 (Centre for Crime and Justice Studies 2012) 1.

[7] D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28(1) Stanford Journal of International law 103, 117.

[8] Examples are New Zealand’s Whanganui River was granted rights of personhood in 2017, India’s Ganges River, Article 71 of the 2008 Constitution of Ecuador, essentially provides that nature has the right to integral respect for its existence and the maintenance and regenerations of its life’s cycle’s structure, functions and evolutionary processes. Examples of jurisdictions that have also recognised the legal rights of nature include Bolivia (Law of the Rights of Mother Earth and the Framework Law of Mother Earth and Integral Development for Living Well 2012); Columbia (A 2018 Supreme Court decision held the Columbian Amazon to be a subject of rights based on the Columbian Constitutional’s Courts ruling that Atrato River had legal rights to be protected, conserved and restored); India (The 2018 Uttarakhand High Court decision declaring the animal kingdom to legal entities with rights, duties and liabilities of a living person); and the United States of America where Tamaqua Borough in Pennsylvania recognised the rights of natural communities and ecosystems in a 2006 ordinance) see G Chapron, Y Epstein and JV Lopez-Bao, ‘A Rights Revolution for Nature’ (2019) 363(6434) Science 1392, 1393

[9] CD Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press 2010) 264.

[10] ibid 3.

[11] J Kestler-D’Amours, ‘This River in Canada is now a ‘Legal Person’’ (2021) <https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person> accessed 12 April 2021.

[12] As in the Indian cases of Maharaj Singh v Indian Oil Corporation (1999) A. I. R. 81; M. I. Builders v. Radhey Shyam Sahu M.C. [1999] A.I.R.  SC 2468; Mehta v Kamal Nath (1997) 1 S.C.C. 388.

[13] Constitution of the Republic of Ecuador 2008 Chapter 7, Articles 71, 72 and 73; Te Urewera Act 2014 of New Zealand; Constitution of Brazil 1993.

[14] Popoola (n 5).

[15] OI Imasuen, JN Oshodi, TUS Onyeobi, ‘Protected areas for environmental sustainability in Nigeria’ (2013) 17 (1) Journal of Applied Science and Environmental Management 53, 56.

[16] AP Onyena and K Sam, ‘A Review of the Threat of Oil Exploitation to Mangrove Ecosystem: Insights from Niger Delta, Nigeria (2020) 22 Global Ecology and Conservation 1, 3.

[17] S Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature.’ (2016) 5(1) Transnational Environmental Law 113, 143.

[18] CR Giraldo, ‘Does Nature Have Rights? Successes and Challenges in Implementing the Rights of Nature in Ecuador’ (2013) <https://constitutionnet.org/news/does-nature-have-rights-successes-and-challenges-implementing-rights-nature-ecuador> accessed 4 December 2020.

[19] Ibid.

[20] Ibid.

[21] OA Houck, ‘Noah’s Second Voyage: The Rights of Nature as Law’ (2017) 31(1) Tulane Environmental Law Journal 1, 29.

[22] C McDonough, ‘Will the River Ever Get a Chance to Speak? Standing Up for the Legal Rights of Nature’ (2020) 31(1) Villanova Environmental Law Journal 143, 161.

[23] Borràs (n 17) 143.

[24] DR Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press 2017) 280.

Criminal Justice in ‘Crisis’: Covid-19 and the Right to a Jury Trial

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Blog by Dr. Edward Johnston, Senior Lecturer in Law at UWE Bristol.

In November the back log of outstanding cases in the criminal courts of England and Wales stood at 457,518. According to the same Sky News report, this is some 100,000 more than February 2020. Of the near half a million outstanding cases, just under 54,000 are for cases to be heard in the Crown Court and the remaining 403,000 cases are set to be heard in the Magistrates’ Court.

Moving forward, the picture looks even more bleak. Crest Advisory, who specialise in predictions and analytical models concerning criminal justice suggest that by 2024, there could well be 580,000 cases outstanding in the magistrates’ court and 195,000 outstanding in the Crown Court.

It is clear that something has to give to solve this ‘crisis’ – a word often used to describe the current state of criminal justice. However, is ‘crisis’ the correct term? The Oxford English Dictionary defines a crisis as ‘ a time when a problem, a bad situation or an illness is at its worst point’. From the Crest predictions, it is clear we have not even begun to hit the ‘worst point.’ Furthermore, a crisis can be defined as a period of ‘great danger’ – well, criminal justice was in a state of crisis long before Covid-19; from cuts to police officers and PCSOs to court closures throughout England and Wales. The Guardian reported in January 2019 that almost 50% of magistrates’ courts have closed and according to a report by the National Audit Office, the government plan to close another 77 courts by 2025/26. Is it no wonder that the backlog of cases is so large and continuing to grow.

As ever, it is the right to trial by jury that is the first fundamental freedom to be attacked. It always is. In 2018, Labour MP Ann Coffey suggested that we ‘do away with juries in rape trials’ in order to allow a trained judge, sitting alone decide the case Just this week, Simon Jenkins, writing for the guardian suggested that we abolish jury trials as the huge backlog of cases has allowed us to ‘reform our archaic and irrelevant court rituals.’ Jenkins suggests that after 3 terms as a juror he is convinced that they are a ‘costly indulgence’  and ‘have nothing to do with justice except often distort it.’ Additionally, he claims that his final case was a ‘blatant’ attempted murder case which involved young lawyers making mistakes, before the judge declared all relevant evidence ‘prejudicial’ and instructed the jury to acquit the defendant – quite how this has anything to do with the role or function of the jury is beyond me. But it perhaps goes some way to explain his misunderstanding about the role and its importance.

It came as no surprise this week to see Labour call for alterations to the jury system. Shadow Justice Secretary, David Lammy, called for juries to be reduced to 7 people to ‘stem the gravest crisis in the justice system since WWII‘. As highlighted above, Crown Court cases (not all will be heard by a jury because of guilty pleas) make up a fraction of this current and predicated backlog of cases. This is a marked shift from Lammy, who in his 2017 Review into the treatment of BAME individuals in the criminal justice system found that the ‘jury system was fit for purpose’ (see page 41). The system was already in a state of crisis – why suggest amendments now?

Furthermore, why would 7 people allow the backlog to be cleared any quicker – they still have to deliberate and properly consider the evidence they have heard and therefore are not likely to make the process any swifter. And if they are not going to be quicker – they will not help tackle the backlog. Writing in 2021 Dr. Hannah Quirk outlined the importance of juries and proffered a way forward to tackle the growing backlog. In her Criminal Law Review Editorial, she suggested that ‘juries may provide an important safety net against unfair prosecutions. The difficulties are immense but alternative measures should be tried, such as using university facilities or a purpose-built site. If convention centres could be turned into field hospitals in a few weeks, creating a functioning courtroom cannot be impossible. The medical profession is discovering unexpected long-term side-effects of Covid-19; the criminal justice system should ensure that the right to trial by jury is not another casualty of the crisis.’

If the criminal justice system was adequately funded (to provide opportunities to pursue a career in the CPS or defence professions), if courts were not closed and therefore unable to hear cases then that would provide a way forward to tackle the crisis. Perhaps the government ought to look to re-open the closed buildings they have not sold off or as Quirk suggests, repurpose existing buildings to be suitable for criminal trials.

Amending trial by jury will do little to reduce the backlog of cases, in fact it would be the start of a slippery slope and the death knell to jury trials in England. Following Quirk’s suggesting again,  we need to ensure that jury trials are not another casualty of the current crisis.

FCA regulation of cryptocurrency service providers: A slow start

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By Henry Hillman, Lecturer in Law at UWE Bristol.

The UK implemented the 5th Anti-Money Laundering Directive in January 2020,[1] which extended anti-money laundering and counter terrorist financing (AML/CTF) regulation to include exchanges of fiat currency for cryptocurrency. As of 10th January 2020, the Financial Conduct Authority (FCA) was made responsible for the regulation of cryptocurrency service providers (CSPs) for the purposes of AML/CTF. As part of taking on such responsibility, and brining CSPs into the AML/CTF regulatory perimeter, the FCA required applicable CSPs to register with them by 9th January 2021, or cease operations. At the time of writing there are only four entries on the FCA’s register,[2] and 104 firms awaiting registration, which raises questions as to the proactivity of the FCA in fulfilling its responsibilities. This paper will set out the intended regulation of CSPs, and consider the reasons behind the FCA’s lacklustre performance so far.

AML/CTF regulation of cryptocurrencies in the UK is to exceed the requirements of the latest EU Directive, by applying AML/CTF measures to transactions involving exchanges between cryptocurrencies as well as exchanges between cryptocurrencies and fiat currencies. The CSPs which will be regulated are those that provide exchange services or are custodian wallet providers. Regulation 14A(1) defines a “cryptoasset exchange provider”[3] as any individual or firm which provides services for “exchanging, or arranging or making arrangements”[4] to exchange cryptocurrency for either money[5] or another cryptocurrency,[6] including any activities which are automated.[7] A custodian wallet provider is defined as any individual or firm that “provides services to safeguard, or to safeguard and administer”[8] cryptocurrency on behalf of customers, or provides “private cryptographic keys”[9] for customers to manage their cryptocurrency with. Cryptocurrency transactions are protected using public-key cryptography, which allows a user to receive cryptocurrency that has been sent to their public key, much like an address, using their private key, akin to a door key.[10] Not all cryptocurrency users use custodian wallets. A custodian wallet as described in the regulations is comparable to an online bank account, and so may be the most appealing to cryptocurrency beginners as the security is managed by their service provider. More experienced cryptocurrency users may utilise alternative types of wallets, which will not be regulated.[11] 

The amendment to the Money Laundering and Terrorist Financing Regulations 2017,[12] means any business carrying out newly regulated activity must register with the FCA, and comply with the Regulations. AML/CTF regulation can be divided into two broad elements; data collection in the form of record keeping and completing customer due diligence requirements, and reporting requirements, principally suspicious activity reports. The measures are intended to increase financial intelligence.

Bringing CSPs into the regulatory perimeter shows the intent of the government to address a clear gap in its approach to AML/CTF, but the amended legislation is only valuable if it is utilised by the FCA. The initial steps by the FCA appeared to be positive, with the announcement of a year-long registration period, but this time looks to have been wasted as only four entries appear on the register as of January 2021.[13] A mitigating factor for the FCA’s performance so far could be the ongoing coronavirus pandemic, and that they are working through the 104 applicants on their temporary registration list, but neither of these arguments hold up to scrutiny. Firstly, the entries on the register so far were all added between 18th August and 1st September 2020, which illustrates firms could be vetted within the restrictions in place over the summer and autumn of 2020. Secondly, the temporary register appears to have a very low bar for inclusion, yet bestows included firms with “temporary registration”[14] to carry out regulated activities. The FCA state that the firms on the temporary list have not been assessed by them as “fit and proper,”[15] and the information appears to simply be an alphabetical list of firms which have applied to the FCA. The 104 temporary registered firms appear with their name, their address, and any other trading names used, however, this data is inputted in an inconsistent manner. There are entries which are in full capitals and other which lack capitals where required, the address formats vary, and there are two near identical entries; such errors and inconsistencies suggest the temporary register is simply pasted data from the firms applications. Questions might also be raised as to the integrity of the approved register too, as three of the four entries are registered at the same address and two of those entries lack a registered telephone number.[16] Based on the state of both the register and the temporary register, the commitment of the FCA to regulating CSPs can be questioned. While disappointing, the performance of the FCA in implementing AML/CTF regulation of cryptocurrency activity is consistent with their approach to cryptocurrencies to date.

The FCA has repeatedly stated that it does not regulate cryptocurrencies. The leading lines of advice on the FCA website state that cryptocurrencies are “considered very high risk, speculative investments”[17] and those buying them should be “prepared to lose all your money.”[18] Since the extension of the AML/CTF regulation, the FCA has caveated its advice, to state that cryptocurrencies are “only regulated in the UK for money laundering purposes.”[19] The FCA appears reluctant to be proactive with regards to cryptocurrencies, it could have interpreted the broad definition of a ‘money services business’ in Regulation 3 of the Money Laundering Regulations[20] to allow it to regulate cryptocurrencies three years before being explicitly handed the role by government. A money services business includes “an undertaking which by way of business operates a currency exchange office, transmits money (or any representations of monetary value) by any means,[21] which can clearly include cryptocurrencies, given their monetary value.

The FCA has commissioned research to ascertain the level of consumer engagement with cryptocurrencies. The research by Revealing Reality for the FCA identified three main factors fuelling cryptocurrency investment; a weakened trust in mainstream media, looking for the next ‘shortcut’, and acting on recommendations.[22] These are worrying trends in behaviour, which will lead to individuals making losses as they invest in spurious products in an unregulated market. Such findings should be the catalyst for an intervention, but no such response has materialised. The justifications for the FCA’s approach are not clear, but may be explained by their understanding of the demographic of cryptocurrency investors. In December 2019 the FCA claimed that 80% of cryptocurrency holdings in the UK were held by 1% of the population,[23] suggesting the industry is not popular enough to be of concern. 50% of those who had invested held less than £260,[24] which further suggests a low risk in terms of potential losses. The information from the FCA also suggested investors were well informed as 89% knew they were not protected, and 92% could identify a definition of a ‘cryptoasset’.[25] It appears that although research shows poor investment practices from consumers, the levels of money involved means the FCA does not see the need to regulate.

In conclusion, it appears as though cryptocurrencies and CSPs will remain largely unregulated, unless the FCA’s approach changes drastically. The legislation is in place to cover a degree of cryptocurrency activity, but this legislation does not appear to be being enforced. The FCA has only processed four entries onto its register of approved firms, out of 108 applicants, which is a poor performance. It appears as though the FCA does not hold cryptocurrencies in high regard and does not view the issue as affecting a large proportion of the population. The approach of the FCA has been lacklustre, which raises a number of questions as to the reasoning; a lack of understanding, a lack of available resources, or simply a low priority?

First published in the Open University Law, Information, Future, Technology Blog.


[1] The Money Laundering and Terrorist Financing (Amendment) Regulations 2019, SI 2019/1511.

[2] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[3] The Money Laundering and Terrorist Financing (Amendment) Regulations 2019, SI 2019/1511 Regulation 14A(1).

[4] ibid at Regulation 14A(1)(a) and (b).

[5] ibid at Regulation 14A(1)(a).

[6] ibid at Regulation 14A(1)(b).

[7] ibid at Regulation 14A(2).

[8] ibid at Regulation 14A(2).

[9] ibid at Regulation 14A(2)(b).

[10] For an accessible explanation of public-key cryptography see: Robert Miles – Computerphile, ‘Public Key Cryptography’ (22 July 2014) <https://www.youtube.com/watch?v=GSIDS_lvRv4> accessed 22 January 2021.

[11] For further details in types of wallet see: Bitcoin.org, ‘Choose your Bitcoin wallet’ <https://bitcoin.org/en/choose-your-wallet?step=1> accessed 22 January 2021.

[12] Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

[13] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[14] Financial Conduct Authority, ‘Cryptoasset firms with Temporary Registration’ (8 January 2021) <https://register.fca.org.uk/servlet/servlet.FileDownload?file=0154G0000062BtF> accessed 21 January 2021.

[15] ibid.

[16] Financial Conduct Authority, ‘Registered Cryptoasset firms’ <https://register.fca.org.uk/s/search?predefined=CA> accessed 21 January 2021.

[17] Financial Conduct Authority, ‘Cryptoassets’ (7 March 2019, last updated 11 January 2021) <https://www.fca.org.uk/consumers/cryptoassets> accessed 22 January 2021.

[18] ibid.

[19] ibid.

[20] Money Laundering Regulations 2017, Regulation 3.

[21] ibid Regulation 3(1)(d).

[22] Financial Conduct Authority, ‘How and why consumers buy cryptoassets: A report for the FCA’ (07 March 2019) <https://www.fca.org.uk/publication/research/how-and-why-consumers-buy-cryptoassets.pdf> accessed 22 January 2021 at p.47.

[23] Financial Conduct Authority, ‘Infographic: Cryptoasset consumer research 2020’ (December 2019) <https://www.fca.org.uk/publication/documents/crypto-assets-infographic.pdf> accessed 22 January 2021.

[24] ibid.

[25] ibid.

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