Office for Environmental Protection – The Challenges Ahead

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Chetana Karunatilaka, PhD student, Member of the Environmental Law and Sustainability Research group 

The Environmental Law and Sustainability Research Group (ELSRG) in collaboration with a leading law chamber, 6 Pump Court, and UK Environmental Law Association (South-West region), organised an event on the Office of Environmental Protection (OEP). A leading environmental lawyer, Mr. Christopher Badger delivered a speech on ‘The Office of Environmental Protection- A Year on, and What to Expect’. Mr. Badger specialises in environmental law cases and has an established practice as a Barrister at 6 Pump Court Chambers (London).

During the presentation, he explained that OEP is a non-departmental public body, established under the Environment Act 2021 in the United Kingdom, whose principal aims are to contribute to environmental protection and the improvement of the natural environment. OEP is not a regulatory body, rather an independent oversight body to scrutinize the whole environmental system and developments. The strategy and environmental policy of OEP was published on June 2022, which identified four strategic objectives, namely,

  1. Sustained environmental improvement.
  2. Better environmental law, better implemented.
  3. Improved compliance with environmental law.
  4. Organisational excellence and influence.

One of the major achievements of OEP during the last year was presenting its independent assessment of Government’s progress in improving the natural environment in accordance with its Environmental Improvement Plan (EIP) for England in 2021/2022.[1] The report explains that Government’s progress on delivery of the 25 year plan to enhance the environment has ‘fallen far short’. The report assessed 23 environmental targets, 14 of which were off track while no assessment could be made for the remaining 9 tasks. Mr. Badger recognised the report as a highly critical document, which reiterated the independence of the OEP and its ability to scrutinize the government.

OEP has submitted its observations and recommendations to various parliamentary committees on law reforms. OEP made their submissions to the House of Commons Retained EU Law (Revocation and Reform) Bill Committee warning that the rushed and short timeframe suggested by the UK Government for the review of Retained EU Laws could compound environmental problems and create new uncertainties/ risks.[2] The submissions flagged the opportunities to improve environmental law and how it works in practice, provided the change is managed well. The submissions also made some recommendations for the committee to consider. OEP submitted another written document to the Levelling Up and Regeneration Bill Committee regarding the proposed law reforms to avoid weakening current levels of environmental protection.[3] OEP also calls for guarantees that the reforms will strengthen the government’s desire for the overall improvement of the environment.

Mr. Badger further explained the influence that OEP can make by providing a baseline on how an environmental assessment should be undertaken, what data ought to be utilized for assessment and measuring of the progress and how to improve the chances of environmental improvement in the light of the future. OEP had filed applications with the Supreme Court requesting permission to intervene in Court cases emphasizing the significance of clarity in the law to promote good environmental decision-making.[4] 

Mr. Badger pointed out some drawbacks in the enforcement mechanisms mainly due to the lack of human resources and lack of correct information etc. Referring to the R (Wild Justice) v The Water Services Regulation Authority,[5] he explained that OEP investigation would not be an alternative remedy for judicial review. There can be overlapping OEP investigation and court case on the same environmental matter.

He flagged that the OEP’s real strength rests on the fact that it has been established to keep environmental issues as a top priority, particularly in Parliament.  Since environmental reviews are likely to be rare, more emphasis would be on co-operation with public authorities and on information collection. Implementation of the objectives of OEP is a broad concept where OEP must consider an array of various issues associated with policy, resources and enforcement. No indication has yet been given of what areas of environmental law the OEP may consider to be a priority for in-depth scrutiny.

Following the presentation, the floor was open for questions and answers. Mr. Brendon Moorhouse, an environmental barrister at 6 Pump Court Chambers joined the discussion session as a panel member. A number of questions were raised by the participants and the panellists as well as other experts who attended the event came up with their opinions on the questions.

Certain clarifications were made on the role of OEP in the law-making and enforcement set up. When a bill goes to the parliament, OEP can make statements regarding the bill in the capacity of an observer. If the parliament wishes to scrutinise the law-making process, it can consider such observation. It was explained that the OEP does not directly deal with international law. However, if the UK government had ratified and adopted a treaty as a part of the domestic law, and not implementing the provisions, OEP can raise their concerns regarding such non-implementation.

A question was raised regarding the investigation process and how much of it is in the public domain. The panellists responded that, when OEP undertakes to investigate an environmental issue, they will publish a notice of investigation, an information notice, decision notice in the public domain. The report will also be published after the investigation. However, the investigation by the OEP is meant to be a transparent and open process.[6]

In this impactful session on the OEP, both Mr. Christopher Badger and Mr. Brendon Moorhouse discussed their past experiences as environmental lawyers and how the work of OEP can make a positive impact on the success of such cases. The session was well attended by undergraduate and postgraduate students, alumni, academics, NGOS and professionals from different industries.


[1] Progress in improving the natural environment in England, 2021/2022 | Office for Environmental Protection (theoep.org.uk)

[2] REUL Bill evidence submission 141122.pdf

[3] 220830_OEP_LURB_Evidence_final.pdf

[4] Reports and publications | Office for Environmental Protection (theoep.org.uk)

[5] https://www.judiciary.uk/judgments/wild-justice-v-the-water-services-regulation-authority/

[6] More information is available at OEP website: https://www.theoep.org.uk/what-we-do

Eviscerating the Right to Water in Riparian Communities: Stemming Mining Activities in Ghana 

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By Dr Felix Nana Kofi Ofori, UWE Alumni, Member of Environmental Law and Sustainability Research Group 

Introduction 

Throughout the gold-mining communities in Ghana, vast swathes of land, bodies of rivers and streams have turned brownish as a result of unregulated mining activities as well as prospecting for mineral resources. Most alarmingly, the Ghana Water Corporation Limited (GWCL), in 2022, has warned that it will stop supplying water to the Ghanaian population because of the extra high cost of chemicals purchased to treat the heavily polluted water sources in the country. Besides the severe health and environmental impacts being suffered by the people, the following questions are worth answering: Could it be that the right to water is non-existent in Ghana? And would there ever be a political-will by the government to protect access to water? 

To answer the above questions, this blog is organised as follows: the right to water as a state obligation; states’ duty to protect the right/access to quality water; and stemming the challenges of mining operations in Ghana.  

The Right to Water as a State Duty  

Under General Comment No. 15, the Committee on Economic, Social and Cultural Rights (CESCR) emphasised that states have a covenant duty of ensuring the progressive realisation of the right to water without discrimination on grounds of race, status or creed. The use of the word “progressive” is often misconstrued or as a pretext by some states to evade the responsibility of protecting access to water, especially among the poorest and deprived communities, as in the riparian towns of Ghana. Although developing states such as Ghana have limited financial resources to meet the socio-economic needs of their populations, the uniqueness of water as a critical component for the survival of human-beings distinguishes it from all other resources; thus, impelling states (Ghana included), to protect the right to water with altruistic financial and regulatory commitments to guard against water pollution activities. Equally as stipulated in General Comment No. 25, the right to water has three obligations namely the obligation to respect, to protect and fulfil.  

First, the obligation to respect requires States (Ghana included) to refrain from polluting water resources; arbitrarily and illegally disconnecting water and sanitation services; reducing the provision of safe drinking-water to poor communities in order to meet the demand of wealthier areas; destroying water services and infrastructure as a punitive measure during crisis era; or depleting water resources that indigenous peoples rely upon. However, the continuous pollution of water bodies throughout Ghana, particularly in the riparian communities indicate that the right to water is severely damaged or non-existent.  

Second, the obligation to protect requires States to prevent third parties from interfering with the right to water. This also means that States should adopt legislation or other measures to ensure that private actors—e.g., industry, water providers or individuals mining and prospecting for mineral resources—comply with human rights standards related to the right to water.  

Despite the obligation to protect the right to water, the reality on the ground tells a profound story of how the right to water is almost eviscerated. This is evidenced by the rampant illegal mining activities by public and private agencies, coupled with feeble state regulations, to stem the threat which is injurious to human health, biodiversity, environment and sustainable development. 

Third, the obligation to fulfil means States must, among other things, adopt a national policy on water that: gives priority in water management to essential personal and domestic uses;  identifies the resources available to meet these goals; specifies the most cost-effective way of using them;  monitors results and outcomes, including ensuring adequate remedies for violations.  

Contrary to these obligations, the current and successive governments of Ghana had implemented politically expedient or weak regulations incapable to protect water bodies against pollution and environmental degradation. It is further obvious from the preceding discussion that the right to water and the environment, as witnessed in the riparian communities of Ghana are savagely damaged; thus an urgent solution is required to stem the crisis. 

Stemming the Mining Challenges of Ghana’s riparian communities 

A human rights-based approach should be instituted across the country particularly within the riparian communities, emboldening them to participate in decisions that affect water resources management; as well as, hold duty-bearers and private agencies accountable for their actions in polluting water sources and environmental degradation. 

‘Leaving no one behind’ is the key promise of the 2030 Agenda for Sustainable Development. In this vein, Ghana needs to infuse the ‘right to water’ more practically into its sustainable development programmes across all sectors of country; and especially at the community level, where critical resources such as water, biodiversity and plants and fauna are endangered. It also requires that extensive educational programmes are initiated and implemented to enlighten the indigenous people of their rights and obligations as primary custodians to protect and guard against the destruction of their resources including water bodies. 

The Environmental Protection Agency (EPA) (Ghana) should be proactive in monitoring and enforcing existing regulations against harmful chemical uses by both public and private organisations that engage in mining operations. By this, those entities perpetuating degrading activities against the people, water sources and the environment will be prosecuted or fined so as to promote the sustainable development policy and efforts of Ghana. The World Economic Forum ranks the water crisis in the top 3 of global risks for the third consecutive year. Failing to respond effectively to these challenges will have devastating global effects, (Water Action-Decade, 2018-2028). Global crisis calls for global solution, beginning from the national and communal levels. Against this backdrop, it essential that the Ghanaian political leadership adopts creative lasting solution to stem pollution of all water sources in the country  as  a strategy to improve the people’s health thereby minimising the global water crisis of which Ghana is a party. Protecting the right to water is an imperative duty because majority of the people depend on the water bodies within their communities for socio-economic livelihood which in turn guarantee them human rights and dignity.

Will the creation of the crime of ecocide at the international and national level hold those who cause severe and irreversible harm to the environment liable?

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By Harry Muir, Third Year LLB student 

Earth is at the precipice of an environmental catastrophe that could result in the mass extinction of life as we know it.[1] Yet, corporate and government leaders are still committing and condoning acts that have a detrimental effect on the environment for profit and personal gain.[2] Although these leaders have the power to change their practices, little is being done to do so.[3] Arguments have therefore arisen that by using existing legal mechanisms, a crime could encapsulate these destructive acts to the environment and climate;[4] this crime is known as ecocide.[5] Ecocide has developed substantially since first being discussed after the use of ‘agent orange’ during the Vietnam war[6] and today, more discourse is taking place that a crime of ecocide could become a tool to save the earth[7] on a fast track to environmental collapse.[8]

This blog post will critically discuss that whilst the introduction of ecocide at a national level could act to hold those who cause severe and irreversible environmental damage accountable, the proposed international crime of ecocide would potentially be far better at achieving this goal.

Ecocide: discussion at the international level

At the international level, there is currently no crime that specifically prosecutes ecocide.[9] In response to this, academics such as Higgins have targeted the International Criminal Court (ICC) to recognise the crime of ecocide as a fifth ‘missing crime against peace’[10] under the Rome Statute[11] especially as ecocide was included in the draft Rome Statute.[12] Critical opinion has focused on the ICC’s existing legal provisions not being sufficient enough; for instance, their only reference to the protection of the environment is in relation to harm caused in wartime[13] which ignores ecocide committed in peacetimes such as severe deforestation[14] or oil spills.[15] An ICC policy paper in 2016 outlined environmental damage could be considered in relation to existing crimes[16] which Mwanza notes, demonstrates a ‘green shift’ at the ICC.[17] This green shift is apparent as a petition against President Bolsonaro for his ‘crimes against humanity’ explicitly references ecocide in relation to the mass deforestation of the Amazon[18] and therefore could be seen as a method to hold those who cause ecocide liable and protect the environment. Pereira is however critical about this shift as the other ‘crimes against peace’ have high mens rea requirements[19] and difficult evidential burdens[20] proving a hindrance to the actual prosecution of environmental harm. Therefore, an international crime of ecocide would be far better suited at holding those who cause destructive acts against the environment liable than existing provisions.

In response to the lack of environmental protections in the Rome Statute, a historic legal ecocide definition was drafted by an independent expert panel (IEP)[21] specifically for the Rome Statute[22] which is as follows:

‘“Ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’[23]

An element of this definition that has been the focus of academic debate has been the ‘wanton’ element which will be discussed. Wantonness arguably imports an ‘anthropocentric element’ which contradicts the entire ‘ecocentric’ nature of the crime of ecocide commented on by Minkova.[24]The implications of this element, according to Keller, mean severe, irreversible, and long-term damage to the environment can be committed[25] so long as there is a good enough reason for it.[26] Thus, corporate and government actors could argue they have committed ecocide for the public benefit therefore limiting accountability if they have the resources to argue their way out of liability.[27] Mehta would however disagree as the crime is still mostly ‘ecocentric’ in a predominantly ‘anthropocentric’ legal system.[28]

It is however argued that deterrence would be a powerful mechanism behind this international crime of ecocide at the ICC.[29] It is important to note that, in order to change the Rome Statute to include ecocide, one signatory must bring an official proposal[30] and only two-thirds of ICC signatories must agree to enable amendment.[31]  This proposal however has the possibility of being effectively ‘timed-out’ when the proposal is not brought within a specific time frame as seen with Bangladesh, Samoa and Vanuatu’s ecocide proposal[32] even so, actual implementation potentially could take up to 5 years.[33] These strict time limits and lengthy implementation dates are of a significant hindrance as again the world is in need of immediate environmental protection to safeguard the future. This being said, as corporation CEO’s want to keep a ‘clean’ reputation,[34] they understandably do not associate with an equivalent crime to genocide or war crimes[35] as this could be detrimental to their business stock price and profit.[36] Academics predict that ecocide’s recognition at the ICC would act to immediately instigate a change in corporate business practises causing ecocide[37] by creating a duty for governments and corporations to not disregard the environment and therefore encouraging the adoption of a green economy.[38] Deterrence would therefore serve as an immensely powerful mechanism to combat crimes of ecocide immediately long before the expected 5-year amendment process into the Rome Statute. These however are only predictions and in the meantime as Greene proposes, national provisions could be created and implemented immediately as an alternative to international provisions.[39]

Ecocide: discussion at the national level

A crime of ecocide in national legislation however comes with enforcement and implementation difficulties which will be critically discussed in light of current national provisions in relation to government and corporations who commit ecocide.[40]

Both Russia[41] and Ukraine[42] criminalise ecocide in their respective criminal codes and in the current context of the war facilitated by Russia, Putin’s acts have constituted ecocide.[43] However, although these provisions exist, they are only as powerful as the countries’ legal system and their respect for the rule of law as commented on by Schwegler[44] which likely means Putin will not be held accountable under existing national provisions.[45]

There has also been difficulty holding corporations accountable under national provisions[46] which is critical as they significantly harm the environment with their actions.[47] A country who has taken a step to hold corporate actors accountable is Guatemala for example, who have recognised an ecocide law which held a palm oil corporation liable for ecocide for causing severe damage to the waterways and the surrounding eco-system.[48] As Greene however illustrates, enforcement of this ruling created difficulties especially as the corporation has now gone back to polluting the river again constituting an act of ecocide[49] arguably not having the predicted deterrent effect discussed earlier.[50] It is therefore no surprise that the implementation of an international crime of ecocide was outlined as the next logical step in response to this ruling.[51]

The UK has been reluctant to criminalise ecocide at a national level with recent proposals to include ecocide as a crime punishable with 30 years’ imprisonment in The Environment Bill[52] being removed after arguments prevailed that economic activity would be severely impacted due to environmental criminalisation.[53] The UK sees ecocide as a barrier rather than an opportunity as they have the resources to be a pioneer and utilise existing green technologies to thrive with nature[54] enabling the development of a ‘green’ economy.[55] France, on the other hand, recently recognised ecocide as an offence punishable with up to 10 years imprisonment or a 4.5 million euro fine.[56] Ecocide was changed from a criminal to a civil offence due to the potential stigmatisation of businesses’ economic activity;[57] however, the prison penalty associated with the crime should still act as a deterrent[58] in protecting the environment.

Conclusion

In light of the arguments presented, criminalisation of ecocide in the Rome Statute would be the best option for holding those who severely damage the environment accountable due to its predicted deterrent effect as a ‘crime against peace’. In comparison, although national ecocide provisions could act immediately to protect the environment, difficulties in enactment and enforcement are major drawbacks to accountability and environmental protection.


[1] Tim Lindgren, ‘Ecocide, genocide and the disregard of alternative life-systems’ [2018] 22 International Journal of Human Rights 525, 528.

[2] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[3] Vanessa Schwegler, ‘The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 81.

[4] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 252-254.

[5] Sailesh Mehta and Prisca Merz, ‘Ecocide – a new crime against peace’ [2015] 17 Environmental Law Review 4.

[6] Saloni Malhotra, ‘The International Crime That Could Have Been but Never Was: An English School Perspective on the Ecocide Law’ [2017] 9 Amsterdam LF 49, 52.

[7] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[8] D Carrington, ‘World close to ‘irreversible’ climate breakdown, warn major studies’ The Guardian (27 October 2022)

[9] E Trigt, ‘A Legal Definition of Ecocide’ (Peace Palace Library, 15 July 2021) <https://peacepalacelibrary.nl/blog/2021/legal-definition-ecocide>

[10] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[11] The Rome Statute of the International Criminal Court art 5

[12] Saloni Malhotra, ‘The International crime that could have been but never was an English school perspective on the ecocide law’ [2017] 9 Amsterdam Law Forum 49, 53.

[13] The Rome Statute of the International Criminal Court, art 8(2)(b)(iv)

[14] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[15] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 196.

[16] Office of the Prosecutor, Policy Paper On Case Selection And Prioritisation, 15 September 2016, <https://www.icc-cpi.int/news/policy-paper-case-selection-and-prioritisation>

[17] Rosemary Mwanza, ‘Enhancing Accountability for Environmental Damage under International Law: Ecocide as a Legal Fulfilment of Ecological Integrity [2018] 19 Melbourne Journal of International Law 586, 598.

[18] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[19] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 215.

[20] Ibid, 211.

[21] Haroon Siddique, ‘Legal experts worldwide draw up ‘historic’ definition of ecocide’ The Guardian (London, 22 June 2021)

[22] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 24-25.

[23] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (June 2021) <https://www.stopecocide.earth/legal-definition>

[24] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[25] J K Heller, ‘Fiddling (With Ecocide) While Rome (and Everywhere Else) Burns’ (Volkerrechtsblog, 18 February 2022) <https://voelkerrechtsblog.org/fiddling-with-ecocide-while-rome-and-everywhere-else-burns/>

[26] J K Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (OpinioJuris, 23 June 2021) <http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/>

[27] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[28] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[29] Ibid.

[30] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[31] K Mackintosh, J Mehta and R Rogers, ‘Prosecuting Ecocide’ (Project Syndicate, 31 Aug 2021) <https://www.project-syndicate.org/commentary/the-icc-should-recognize-ecocide-as-an-international-crime-by-kate-mackintosh-et-al-2021-08>

[32] K Surma, ‘A plea to make widespread environmental damage an international crime takes centre stage at The Hague’ Inside Climate News (Pittsburgh, 7 December 2021)

[33] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[34] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 98.

[35] R Killean, ‘Could criminalising ecocide increase accountability for environmental harm in conflicts?’ (Conflict and Environment Observatory, 22 April 2021) <https://ceobs.org/could-criminalising-ecocide-increase-accountability-for-environmental-harm-in-conflicts/>

[36] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[37] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 86.

[38] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 261.

[39] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 46.

[40]Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[41] The Criminal Code of the Russia Federation No. 63-FZ of June 13, 1996, art 358.

[42] The Criminal Code of Ukraine of September 1, 2001, art 441.

[43] S Smith, ‘This is ecocide’: Ukrainians hope to rebuild greener country after Russian war ravages environment’, The Independent (19 March 2022).

[44] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 94.

[45] R Killean, ‘Legal accountability for environmental destruction in Ukraine’ (Conflict and Environment Observatory, 7 March 2022) <https://ceobs.org/legal-accountability-for-environmental-destruction-in-ukraine/>

[46] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 92.

[47] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[48] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[49] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 21-22.

[50] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[51] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[52] Environmental HL Bill (2019-21) 16, cl 133

[53] HL deb 14 July 2021, vol 813, col 1900

[54] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[55] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 257.

[56] No. 2021-1104 of August 22, 2021, Climate and Resilience Law, art 231-233.

[57] L Alderman and C Meheut, ‘‘Going Green, or Greenwashing? A proposed climate law divides France’ New York Times (19 May 2021)

[58] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.


Thinking differently, engaging differently: Neurodivergence in the Criminal Justice System and the role of the Bar

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In October 2022, Dr Tom Smith published the first of a two-part series of articles examining how the experience and engagement of neurodivergent individuals (for example, those who are autistic or have Attention Deficit Hyperactivity Disorder (ADHD)) drawn into the criminal justice system (CJS) can be more effectively and fairly managed by criminal defence barristers, when undertaking their role as legal representatives. Whilst not a set term, neurodivergence commonly describes cognitive development which varies from the typical, primarily related to and affective of communication, learning, attention, sensory processing, and mood regulation (among other aspects of cognition and behaviour). Evidence suggests that significant barriers to a positive and effective experience for neurodivergent individuals remain at all stages, including in policing, courts and prisons (see, for example, the Criminal Justice Joint Inspection, published in July 2021).  

As facilitators of access to justice, lawyers can either mitigate or aggravate these issues (in the same way they can for any vulnerable participant); they are therefore key to ensuring that neurodivergent individuals – whether as an accused person or a victim of crime – are able to engage with the CJS on an equal basis with their neurotypical peers. This is particularly the case for barristers and advocates representing neurodivergent defendants at trial and sentence. It is clearly vital to the right to a fair trial that the accused is represented effectively by their lawyer; as part of this, barristers and advocates must discharge their duty to protect and advance the best interests of their client in a meaningful way.  

In the context of neurodivergent individuals, such principles arguably demand a more specialised approach which is carefully adapted to the needs of those being represented. This is particularly the case in relation to direct engagement (for example, client conferences or taking instructions); advocating for a client in court; and ensuring that clients are able to access hearings effectively through engagement with the court and other parties. Ultimately, providing good legal representation requires more than grasping the nuances of facts, case law, legislation, and procedures pertinent to a client’s cause. Good lawyering can only be realised if lawyers are also able to effectively engage with and understand the personal needs of the people they represent. 

The article was published by Counsel, the official magazine of the Bar of England and Wales, which is read by legal professionals, from law students to senior judges, policy makers, key influencers, and members of the government, as well as having a wider general readership. 

Read the full article on Counsel magazine.  Part 2 is due to be published in November 2022.

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).  

Translating collective international climate goals into adequate individual state contributions

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By Marcus Liedtke, member of the Environmental Law and Sustainability Research Group

The recent Glasgow climate conference (COP 26) once again highlighted that the international community falls far short of its ambitious collective goals set out in the Paris Agreement[1] (PA), especially to limit global warming ‘to well below 2°C’[2] and possibly 1.5°C above pre-industrial levels.[3]

‘Individuation’ as a central and urgent challenge in international climate change law

A crucial but often neglected question in this regard is how to effectively translate collective international mitigation goals into adequate individual state contributions in order to ensure as far as possible that the collective goal is met.[4] Such a translation – or ‘individuation’[5] – is not only of political but also of legal importance, given that considerable voices[6]  assume that the PA’s long-term temperature goal creates a collective obligation.[7] While 2°C arguably constitute the desired minimum mitigation outcome, the 1.5°C goal forms a mere obligation of conduct.[8] Whether COP 26’s attempts to encourage enhanced immediate collective and individual state action towards closing the emissions gap and limiting global warming ideally even to 1.5°C will prove successful in practice, remains to be seen.[9]

An ‘individuation mechanism’[10] to bridge the gap between individual state ambition and the collective temperature goal should strike a careful balance between competing demands both in terms of practical effectiveness and conceptual design, especially between bottom-up and top-down approaches.[11]

Shortcomings of the Paris Agreement

The PA, recognising different national circumstances, attempts to achieve its long-term objective primarily based on bottom-up nationally determined contributions (NDCs).[12] However, despite some improvements resulting from the supplementary 2018 Paris Rulebook,[13] the current rules are insufficient to incentivise states to closely align state-level ambition with the collective temperature goal.[14] The PA especially contains only vague self-differentiation criteria[15] and does not ensure appropriate comparability, reliability and reflectiveness of NDCs, so that these tend to be self-centred and uncoordinated.[16] The transparency framework[17] and compliance mechanism[18] are unable to compensate these deficits in the bottom-up architecture.[19] The rules governing the global stocktake[20] which is to take place every five years,[21] by contrast, offer some potential to use it as an individuation mechanism.[22] This would, however, only lead to ex-post adjustments of individual state contributions and depend on the political willingness of states.[23]

Previous approaches

While the PA so far falls short of its collective goals in practice,[24] both the Framework Convention (UNFCCC) and the Kyoto Protocol (KP) at least partly effectively achieved their key targets.[25] This did, however, not result from a convincing individuation mechanism. On the contrary, the UNFCCC’s predominantly bottom-up approach[26] and the KP’s top-down emission reduction targets[27] – unlike the PA –[28] display a strong bifurcation between developed and developing countries and thus address only a small share of global emissions.[29]

Lessons from the European Union

To resolve its joint contribution under the PA into member state commitments, the European Union (EU) has to conduct a similar exercise to the one required at global level.[30] It relies upon a comprehensive legal framework to ensure adequacy, coherence and achievement of its ambitious collective and member state-level climate goals.[31] As the EU approach – balancing top-down[32] and bottom-up[33] elements of individuation – has enabled it to so far mostly effectively meet its collective targets,[34] it can in many regards inspire an individuation mechanism for the PA. Under the Effort Sharing Regulation, for instance, the collective EU 2030 mitigation target enshrined therein is broken down into individual minimum state contributions.[35] While it is upon EU member states themselves to decide how to achieve these,[36] the regulatory framework also envisages corrective action plans[37] and a critical dialogue with the European Commission on individual mitigation action.[38] Further lessons from the EU include enhanced individuation over time,[39] transparency,[40] depoliticisation of the process,[41] and well-designed flexibilities.[42]

Designing an effective individuation mechanism

A key feature of an effective individuation mechanism for the PA should therefore be a regular constructive dialogue on the consistency of the states’ individual mitigation ambition with the long-term temperature goal and more precise collective interim goals.[43] To this end, a scientific body should determine and publish a fair-share range of individual ambition in line with the collective temperature goal,[44] preferably based on the criteria of mitigation capacities, environmental integrity and intergenerational equity.[45] Another independent body should then regularly assess the adequacy of current individual contributions in that light.[46] Where states wish to deviate from its recommendations, they should publicly state their reasons to facilitate institutional, public and political scrutiny and peer pressure.[47] The constructive dialogue would thereby largely preserve the bottom-up dynamic of the PA, while creating additional top-down incentives for more regular and objective equity reflections.[48] It could thus well complement a strengthened global stocktake.[49]

Furthermore, states still struggling with capacity limitations should be allowed to use limited flexibilities.[50] To encourage also developing countries to make an as ambitious contribution as possible and avoid delaying of mitigation action, these flexibilities should, however, only be available as a last resort.[51] This would especially require that the respective state cannot deliver its full adequate contribution otherwise, even after exhausting available support which developed countries should provide as part of their fair share.[52]

Conclusion

In conclusion, the most promising way to translate collective international mitigation goals into adequate individual state contributions in order to ensure as far as possible that the collective goal is met would be a constructive dialogue between states and an independent body based on suitable equity criteria. Further refinement of the international legal framework thus seems necessary.

This blog post builds upon the author’s LLM dissertation submitted in 2021.[53]


Spotlight: Collaboration is key to boost social mobility

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Guest blog by Karl Brown FRSA, UWE Bristol Law alum and Faculty Advisory Board member.

I am a Commercial Property Partner in the Bristol office of national law firm Clarke Willmott LLP. I am proud to not only be Bristol born and bred but also very proud of my Jamaican heritage. My parents came to the UK in the early 1960s from Jamaica and my dad was a plasterer and my mum was a nurse. The example of my parents gave me a good work ethic but also a desire to make positive change by boosting social mobility and diversity in our professions. I found it very difficult to get a training contract (and ended up making over 100 applications) but through a combination of determination and also mentoring I eventually managed to get a training contract.

My personal experiences mean giving back to young people from less privileged backgrounds is important to me and is why I became a social mobility ambassador for the Law Society in 2016. In my role as a social mobility ambassador, I have given various careers presentations both in-person (pre-pandemic) and also online to show young people from underrepresented backgrounds that they can with the right attitude and work ethic have a career in law.

I firmly believe that it is only through collaboration between the business world and education institutions that we have any chance of reaching out to young people from a range of different backgrounds and inspiring them to try and achieve their desired careers.  This is why I was very proud in 2015 to be a founder member of the Bristol Learning City Partnership Board working alongside headteachers from schools in Bristol to try to formulate policies that work both for schools and also local business. And it is also why in my current role on UWE Bristol’s Faculty of Business and Law Advisory Board I always try and give the perspective of the business world when discussing ideas/proposed policies for the faculty. These roles have also I think made me a better solicitor and business leader as they have increased not only my range of soft skills but my understanding of how the world of business can best attract and develop talent.

Collaboration between businesses within a sector is also key if positive change is to be brought to that sector. I founded the Bristol Property Inclusion Charter (“the Charter”) in 2019 to boost diversity and inclusion in the Bristol property sector. Through research and also through my own networking as a property solicitor, I could see that the Bristol property sector was not as diverse as it could be given the wider diversity in the Bristol population. Another driver in my desire to bring positive change to the property industry was having seen my dad who like many other west Indian immigrants and immigrants from other countries in the past found a skilled trade in the property industry which enabled my dad and others to not only make a positive contribution to the UK economy but also to give a good start in life to their children.

The Charter has seven objectives which in summary include trying to open up opportunities in the Bristol property sector and collaboration to bring transformative change. The running of the Charter is through the Bristol Property Inclusion Commission which I founded in early 2020 and I sit on the commission as Chair alongside representatives from other parts of the property industry. In 2016 the Charter had about fifteen signatory companies/organisations but today we have sixty-six which include YTL, Live West, Bristol City Council, Avison Young, Redrow, Galliard Homes, Grainger plc and Elim Housing.

I would just conclude by making a confession. If you speak to my wife she will tell you that I am an avid follower of the news and in particular love watching CNN. It was watching CNN last year that I saw someone mention an old African proverb and as soon as I heard it I thought I would use it in speeches and articles. The proverb is “If you want to go fast go alone. If you want to go far go together.” If we work together then I firmly believe we can bring positive change to professions such as law and also to sectors such as property.

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

Students launch legal directory to help aspiring lawyers

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Lawtask is an online legal directory designed to help future lawyers bridge the gap between leaving university and securing their first positions in their legal careers. Lawtask allows students to gain professional skills and experience, in their pursuit of a legal career. This is achieved through the consolidation of relevant and practical opportunities and resources.

Set up in 2020, Lawtask was founded by Alessia Cucciniello, recent UWE Bristol Law graduate, and Kieran Woodhouse, LPC LLM student at UWE Bristol. Both have ambitions of becoming solicitors and have also been involved with the UWE Bristol Law Society, with Kieran being elected Vice-President.

Formed during the Covid-19 pandemic, Lawtask was a response to the competitive legal sector that students are faced with when leaving University. Alessia and Kieran launched Lawtask to enable law students to stand out through providing knowledge sharing and useful tools to give students a great place to start in the pursuit of their legal careers.

“Our aim was to bridge the gap between graduating university and securing your first legal job. There are plenty of resources out there to choose from, and our aim was to collect them in an easily accessible platform that could help students gain essential skills to stand out.”

Alessia

They explored the concept of virtual learning and discovered the huge variety of MOOCs (Massive Open Online Courses) that applied to legal students. These courses demonstrate transferable skills and a drive to seek personal improvement that employers are truly looking for.

“One thing we realised when searching for these and other relevant experiences, was that there is no single place for law students to discover the opportunities open to them. This then sparked the concept for Lawtask.”

Kieran

The platform is still in its early stages, however, the pair have seen great success so far. The feedback they have received from both students and staff at UWE has been hugely positive and led to consistent audience growth and user interaction.

“Our hope for the future is to be able to grow and provide more opportunities for students. We would like to expand our platform and start offering real work experience that graduates can use on their job applications, in order to truly help them succeed. We are still working on this, but we hope that we will be able to do this very soon.”

Alessia

“My ultimate hope for Lawtask is that it becomes the norm for law students to consider looking outside the traditional scope of experience and learning and that Lawtask can be a place that can guide people to something beneficial for them.”

Kieran

We asked them both for their advice to current students and here’s what they said:

“My advice to current students is to make good use of all the resources and opportunities offered by UWE and engage with the societies. Not only this will enhance your student experience, but it might also give you essential skills that you will carry with you and shape your future career.”

Alessia

“In my personal experience, so many people emphasise their degree being the absolute evidence of their ability to do anything and so often people forget the importance of personal development. With that in mind, my advice would be to take the opportunities that you have available to you either within your subject or elsewhere because now is the time to explore them. Who knows, you may find a whole new career aspiration.”

Kieran

You can visit Lawtask here.

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