The post 2024 Symposia: Using Climate Financing as a Guide for Environmental Justice Compensation in Kiribati – Powerless law or law for the powerless? appeared first on ABILA.

Source: Iberdrola.

This piece is part of the American Branch’s first blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Environmental and Energy Law perspective.

Using Climate Financing as a Guide for Environmental Justice Compensation in Kiribati

by Mariah Bowman*

Kiribati’s environmental justice (EJ) issues began as an unreasonable use of a vulnerable community. From 1957 to 1962, the United States (US) and the United Kingdom (UK) used the I-Kiribati residents’ land for nuclear testing without considering their health or future. They did so strategically; operations were carried out with as little care as possible, knowing the I-Kiribati people would not be able to speak or act against them. EJ is about identifying all areas of injustice (human rights violations, economic inequities, gender-based violence – among others) that are only exacerbated by a degraded or polluted environment. The blog aims to present a method to correct the wrongs of the global North, specifically in States with substantially hindered development because of these wrongs, but also where they face the most severe consequences of climate change.

The I-Kiribati people experienced severe discrimination while nuclear tests were being conducted: “[t]here was even less regard for the local community, who were given menial work, degraded,” and described “as ‘scantily-clad people in boats to whom the criteria of primitive peoples should apply.’” During the experiments, the residents would be moved off the island and returned once tests were completed, or they remained and were told to gather under tarps. A young woman and her husband experienced the aftermath: “[w]e didn’t wear protective clothing— we went on deck wearing our normal clothes… When we got home later that day, we noticed that the door and glass windows in our house were broken. The concrete wall cracked, and our pet frigate bird was running around the house blind.”

Kiribati ambassador to the United Nations, Makurita Baaro, spoke at a ceremony for the 2015 International Day against Nuclear Tests and shared the environmental harms committed during the testing: “[i]n Kiribati, when the tests ended, much of the equipment used for the testing were dumped in the ocean or just left behind.” I-Kiribati people have a deep connection with the land and sea; “[t]heir identity is deeply entrenched in this connection,” and disregarding the land and sea as something to use and abuse also dismisses the beliefs of Indigenous communities. Despite concerns over the impacts to the environment and health of the residents, the State has been unsuccessful in their fight for reparations and access to information. Ben Donaldson at the United Nations Association said, “[t]he UK is not only refusing to engage with Kiribati’s work to address the impacts of Britain’s nuclear tests, but it is actively impeding the initiative by withholding vital information.” Kiribati is expected to grow its economy despite the extensive damage done from unwarranted nuclear testing, but now in the face of climate change.

Source: Office of the President, Republic of Kiribati.

Kiribati is in a remote location and is extremely vulnerable to the consequences of climate change. Sea level rise, combined with erosion and salinization of freshwater, has forced the relocation of villages in Kiribati, and more low-lying islands are at risk of the same. Rainfall has become infrequent, which puts the freshwater lens in danger of saline contamination and permanent damage. This leads to the loss of cultivatable lands and wildlife. In addition, it is predicted that Kiribati’s fish stocks may migrate outside its exclusive economic zone due to ocean warming and acidification, potentially instigating a hunger crisis.

Building resilience is essential to sustain the life of this nation, but this cannot be achieved without attending to the impacts of nuclear testing on the I-Kiribati residents and the State’s environment. It is estimated that Kiribati’s required climate investment in 2040 will exceed 11 percent of its GDP; the State needs a resilient institution that can adopt and preserve adaptation and mitigation strategies, but this is something climate financing does not address.

Kiribati has received external grants for infrastructure, funding from multilateral development banks, such as the Asian Development Bank and the World Bank, and support from the Green Climate Fund for water supply projects. One difficulty in relying on outside funding is completing projects and disbursements. As the International Monetary Fund (IMF) explains, “[t]he main challenges in access to [climate funds] are the procedures required to secure and disburse climate funding.” States must obtain direct access status for the largest climate funds, which involves “fulfilling hundreds of criteria” that are “overwhelmingly complicated and time-consuming.” Vulnerable Pacific Island States, like Kiribati, do not have the time to complete these procedures, wait for disbursement, and finish adaptation projects on schedule with the 2030 Agenda.

As the IMF states, “[t]he impact of climate change is far beyond the ability of any countries to cope with it alone, not to mention small atoll islands like Kiribati.” Considering this, additional problems that were caused by the US and UK’s nuclear testing add to the burden of strengthening the State’s resilience to climate change. This demonstrates a need for climate funding beyond mitigation and adaptation efforts, and the donors need to be further involved in the remediation process. Streamlining the process to obtain climate financing would relieve pressure on developing countries, and donors may be more engaged if they understand where the funds are going and the projects they are tied to. Therefore, it would be worthwhile to consider international funding for cases of environmental injustice.

The plan to remediate EJ issues should also be in accordance with State policies concerning climate change and risk management. For example, Kiribati has a Joint National Action Plan on Climate Change and Disaster Risk Management along with a Climate Change Policy, and all EJ remediation should be a) done according to these policies and b) without inhibiting any work towards mitigation and adaptation. States should also establish the institutional capacity to prevent further environmental injustice and work with donors to improve the system. If an EJ fund were implemented, the disbursement would need a reasonable and predictable timeline. For this to be achieved, granting direct access status should be streamlined, and using an international modality helps provide the oversight required to ensure all parties involved are committed to the program and align priorities.

When these climate funds are solely project-based and do not work with the State’s government directly, it affects the lifespan of the arrangement because the State may not be able to fully implement the adaptation or mitigation strategies following the delivery of the funds. An EJ fund would need all parties (fund managers, donors, and accepting State) to remain involved throughout the remediation process. This will identify problem areas, link these to the problems in the State’s institution, and include the donors and financial manager in the solution.

The EJ fund should not be a system of loans, but should also be treated as something other than a donation box with haphazard disbursements. Each case should be treated as its own funding project but under the umbrella of the EJ fund, meaning the donors and the contributions can be tracked more effectively, and the State can hold donors accountable for the funds not received. For Kiribati, the US and UK should be involved in funding its EJ remediation. Other entities will likely be involved, but there should be a push for these significant figures of the global North to address the impacts of their nuclear testing on States that are most vulnerable to the effects of climate change.

However, when other States, financial institutions, or entities contribute to climate financing, the funds are not always directly linked to a specific project or State in need; this is usually decided later. A policy paper from the Center for Global Development found that “climate finance – and especially mitigation finance – is increasingly not being allocated towards specific recipients, and, secondly, when mitigation finance is being allocated to specific recipients, these tend to be middle-income countries rather than the poorest economies.” The effectiveness of the EJ fund would depend on States willingly contributing to specific projects and committing themselves to the planning process and completion of the remediation. Aligning the interests and priorities of donors and the States in need would leverage the funds used in the project.

Many climate financing strategies include debt instruments, which developing countries already need help with. This has become a severe issue. As of 2022, developing countries have reached 11.4 trillion USD in external debt stocks. Therefore, an EJ fund should be solely grant-based and use multilateral funding to diversify the donors. Still, these donors also need to be involved in planning so they have a legitimate interest in remediation and institutional development. The fund should have low compliance costs and increase reliance and trust in the post-program monitoring process. Even for developing states, “[T]he willingness to establish new legal and political institutions, lies in engaging the support of international organizations and other states in their establishment.” Therefore, collaboration is essential in strengthening the State’s institutions and the living standards of the I-Kiribati residents.

It is also important to note that Kiribati has made strides in sustainable practices and information sharing. First, Kiribati has promoted bicycles and electric vehicles for transport, along with low-carbon container/cargo ships and low-energy buildings. Also, the Pacific region has begun improving information systems for predicting natural disasters. These steps are necessary to prepare for further climate change-related events, but the State must also address current problems that may exacerbate future disasters. Kiribati still requires a long-term approach that involves strengthening its institutional and financial capacities.

The purpose of an EJ fund would be to identify the overall environmental justice issues, including who the perpetrators and victims are, the impacts or damage, how it burdens the State, and the changes needed to remediate the problem. In the case of Kiribati, the State has been unsuccessful in its fight for reparations and access to information after the UK and US’ injustice to the I-Kiribati through nuclear testing. Consequently, because many States with a history of colonization have been reluctant to provide reparations, the EJ fund would be a way to preserve the donor’s interest in remaining free from legal obligations but also give the State in need with monetary compensation to address injustice and climate resiliency.

*Mariah R. Bowman is a recent Pace University’s Elisabeth Haub School of Law graduate with additional certificates in International Law and Environmental Law. Bowman has interned for the Indiana Department of Transportation, the US Environmental Protection Agency, the Animal Legal Defense Fund, and the Permanent Mission of Costa Rica to the United Nations.

The post Using Climate Financing as a Guide for Environmental Justice Compensation in Kiribati – Powerless law or law for the powerless? An Environmental and Energy Perspective appeared first on ABILA.

The post 2024 Symposia: Lessons from the Rana Plaza Case: Arbitrating Human Rights Claims against Transnational Companies – Powerless law or law for the powerless? appeared first on ABILA.

Source: Getty Images.

This piece is part of the American Branch’s first blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Environmental and Energy Law perspective.

Lessons from the Rana Plaza: Arbitrating Human Rights Claims against Transnational Companies

by Galo Martín Márquez Ruíz*

     I.         Introduction

In 2013, as a consequence of the massive collapse of a building in Bangladesh, the international community convened to establish a legal framework allowing workers to file complaints directly and anonymously to the International Accord for Health and Safety in the Garment and Textile Industry (“Bangladesh Accord”).

The Bangladesh Accord was introduced to settle disputes before the Permanent Court of Arbitration (“PCA”), which is a milestone in itself since the PCA rarely addresses claims directed against companies.

Despite the Bangladesh Accords, direct access for claims due to human rights violations against companies have faced similar jurisdiction and transnational hurdles. But the Rana Plaza Arbitration, a landmark case in the responsibility of transnational enterprises, may constitute a tipping point in the way that we understand that a business and human rights law (“B&HR”) claim may be resolved, as a specialized field of international human rights law (“IHRL”).

The Rana Plaza factory building collapsed on 24 April 2013, killing 1,133 people and critically injuring thousands more. Reminiscing on the devastating consequences of the collapse, a legally binding instrument was set up to benefit over 2 million workers, 1,600 factories, and 190 brands.

This blog aims to sustain the idea that foreign stakeholders and enterprises have incentives to establish ad hoc arbitration agreements to regulate their offshore operations. Stemming from these new practices, a new generation of arbitral awards may produce a quasi-judicial case law for human rights enforceability. Unlike judicial judgments, these decisions benefit from efficient enforceability through the New York Convention in places where companies maintain their assets.

Slowly, the benefits of the Bangladesh Accords extended to industrial activities in Pakistan and the Sindh and Punjab provinces. However, similar disputes have arisen in other jurisdictions, which may seize the cross-fertilization of arbitration for B&HR disputes by incorporating local ad hoc arbitration agreements that extend an offer to arbitrate human rights violations.

The structure of this blog is threefold. First, I briefly discuss the joint development of IHRL and arbitration, which may serve as a common ground to justify the arbitrability of B&HR disputes. Second, I address the central claim of the suitability of arbitration to resolve B&HR disputes. Finally, the last section considers that the balancing point for the arbitrability of B&HR cases is for companies to establish ad hoc arbitration agreements.

  II.         The Point of Intersection between Human Rights and Arbitration

A.   Arbitration criticism to adjudicate human rights disputes

There is a tension between human rights and businesses. However, a common interest may arise when capital growth stagnates because of human rights abuses caused by said companies’ operations.

This tension runs both ways and fuels a broader discussion on whether human rights can be adjudicated through arbitration or should be left to State-backed authorities. The effects of arbitration in public policy exceed the scope of this blog, which solely centers on the incentives for companies to implement arbitration for B&HR claims.

Recently, United Nations Experts have been interested in the intersection of arbitration and B&HR. Mr. David Boyd, the UN Special Rapporteur on human rights and the environment, remarked at the end of 2023 that “[f]oreign investors use the [arbitration] process to seek exorbitant compensation from States that strengthen environmental protection.” This prompted a decrease in support for a relationship between arbitration and the protection of human rights, prompting NGOs to brand the system of arbitration as a “[a] system of secret arbitration tribunals […] undercutting climate action worldwide.”

This author believes, at first hand, arbitration may provide for alternative routes to access to justice¾a clear goal set under SDG 16. Arbitral tribunals are also seeing an increase in human rights claims. In the recent advisory opinion by the International Tribunal for the Law of the Sea, the Tribunal noted that States’ obligations concerning transboundary pollution have been “[d]eveloped through arbitral and judicial decisions,” such as the Chagos Marine Arbitration before the PCA (Advisory Opinion, ¶246).

B.   Access to justice through arbitration

Commercial arbitrations enjoy less oversight from the public eye, as State participation is not necessary throughout the procedure. The primary criticism of commercial arbitration comes from academics and NGOs; the Columbia Center on Sustainable Investment claims that efforts to develop non-judicial mechanisms to address companies’ conduct “does not yet adequately address the risk that arbitration may in some cases thwart, rather than advance, access to justice” (CCSI Briefing Note, September 2019).

An open discussion is required to identify the virtues and misuses of arbitration as an adjudication system. Still, none of these comments address why the Bangladesh Accord has become a successful dispute resolution mechanism.

In short, arbitration provides accessibility for the adjudication mechanism for human rights violations, which is often subject to restrictions of forum non conveniens, which define where a company group may be sued. Ad hoc arbitration agreements allow for direct claims between victims and companies.

Alternatively, without the benefit of arbitration, claimants have still successfully utilized extra-territorial adjudication in cases such as Vedanta v. Lungowe, where the English Supreme Court accepted that residents of Zambia could bring a claim against a mining company in the United Kingdom. In the Court’s rationale, even if the Zambian jurisdiction was also the proper jurisdiction to do so, it might not provide “substantial justice.”

While the Vedanta case is remarkable for its advancement of accessibility for B&HR reparations, some justice systems may still set several hurdles for the claimants to bring a claim. Legal costs, judges’ lack of specialism, and the territory itself may impede the victims from triggering a dispute.

III. States’ interest in promoting direct access to arbitration to remedy human rights claims

States are also encouraged to promote ad hoc mechanisms for B&HR reparation to delegate responsibility for actions taken by companies in their jurisdictions. Several examples exist, including the Odyssey v. Mexico dispute which reflects the complications that might arise for States and State-delegated parties.

In this case, an investor brought a claim against Mexico for canceling the Don Diego, a seabed mining project off Mexico’s Baja California Peninsula. The Centre for International Environmental Law submitted an amicus curiae to highlight the project’s environmental risks and explain the damage the project might bring against locals.

Prof. Philippe Sands, a co-arbitrator in the case who dissented, stated “it is incumbent upon arbitrators to have regard to the […] impact on the legitimacy of the final award in light of […] specific local community interest.” In this type of case, without participation in the main proceedings of the affected communities, different, biased, and potentially incorrect narratives may be generated before different legal instances.

A similar case was raised in Bear Creek v. Peru, where a silver mine in Santa Ana, Peru, was halted because of the “[m]istrust of the local population toward the project.” The communities disrupted the project, and Peru was sued and eventually sanctioned before an arbitral tribunal.

All in all, these cases indicate a tendency in international law, namely, that states refrain from arguing for diplomatic protection while accepting direct claims by individuals. (See D. Desierto, et al. submission before the UN-WGIII, 2023).

IV. Incentives for Companies

Companies may not want to offer arbitration for fear of mass claims. Much like Pandora’s box, providing a blank letter arbitration agreement pending to be signed by the victim opens the door to the uncertainty of future lawsuits. This post, however, posits several reasons for enterprises to opt-in for ad hoc arbitration agreements to settle B&HR disputes.

First, companies need to comply with new B&HR laws, including the UN Guiding Principles on Business and Human Rights, the OECD Guidelines for Multinational Enterprises, and local efforts such as the French Corporate Duty of Vigilance Law (Loi relative au devoir de vigilance). States have already begun delegating these obligations to foreign investors. For instance, the 2019 Netherlands Model BIT, which contains a regulation on ‘corporate social responsibility,’ clarifies that companies shall abide by some of the prior principles.

Former ICJ Judge Bruno Simma, one of the drafters of the Hague Rules on Business and Human Rights Arbitration, signals that similar norms are underway in Germany, Netherlands, and Norway, which may prompt investors to ensure that they are complying with B&HR obligations by means of arbitration (B. Simma, et al, p. 408).

Quasi courts or international tribunals, in cases such as Okpabi v. Royal Dutch Shell, and the La Oroya Case before the Interamerican Court of Human Rights, have also stressed that foreign enterprises are not detached from the responsibility of their off-shore operations.

Second, multinational companies may also reduce legal risks by requiring that companies – through supply and production chain of their operations – grant access for evaluation and jurisdiction to remedy human rights violations. This constitutes an open-letter offer to arbitrate which victims may opt to accept.

Third, by extending an offer to arbitrate B&HR claims, foreign companies might increase their own accessibility to investor-state arbitration (“ISDS”). ISDS cases are not detached from human rights, as reflected in the Urbaser v. Argentina dispute. There, the tribunal openly rejected the investor’s view that ensuring human rights are obligations solely falling upon the State (Final Award, ¶1193). By providing for arbitration to address B&HR issues, investors may avoid invalidating the unclean hands doctrine and reducing their possibility of access to ISDS.

V. A proposal for ad hoc arbitration agreements for human rights claims

As initially conveyed, mechanisms such as the Hague Rules claims may reduce criticism by providing for greater transparency, third-party participation, evidence taking, and cost allocation.

States have already begun to adopt these rules, as evidenced by the Sustainable Investment Facilitation & Cooperation Agreement for The Gambia (See, R. Houston, 2021). Other contractual mechanisms, including state contracts, may incorporate the Hague Rules to encourage direct claims, similar to the approach in the Rana Plaza Arbitration.

Much like the Rana Plaza Arbitration, where the full tribunal possessed expertise in international commercial disputes, there is a compelling argument that laws governing human rights and corporate transnational responsibility will evolve through the input of businesspersons, including commercial arbitrators. Consequently, while human rights practices have historically progressed from domestic to international law (See, S. Besson, p. 237), the Rana Plaza Arbitration illustrates how B&HR case law could originate at the international level and influence local practices.

The full impact of the Rana Plaza Arbitration remains to be seen, but the trend toward arbitrating human rights disputes is steadily growing. A shift in the development of IHL may follow, necessitating oversight of arbitral tribunals to effectively incorporate the lessons learned from the Rana Plaza case.

*Galo Márquez is an Associate at Creel, García-Cuellar, Aiza y Enríquez specialized in  International Arbitration, Legal Assistant to former ICJ Vice-President, Judge B. Sepulveda  Amor, and Professor at Tec de Monterrey University in Mexico City. Galo is a Member of the Academic Forum on Investor-State Dispute Settlement and the   CAM/CANACO Forum Chair for Arbitration Practitioners. In 2024, he was awarded the Johnny  Veeder International Arbitration Scholarship.

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The post 2024 Symposia: Gwich’in Rights are Caribou Rights – Powerless law or law for the powerless? appeared first on ABILA.

Source: Gary Braasch

This piece is part of the American Branch’s first blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Environmental and Energy Law perspective.

Gwich’in Rights are Caribou Rights

by Kimberley Graham*

Map 1: Gwich’in lands and range of the Porcupine Caribou Herd. Source: Vuntut Gwichin Government.

Importantly, Gwich’in-Caribou relations are the foundation for their multi-decade-long opposition to oil and gas development in the Arctic National Wildlife Refuge (the Refuge). Especially on the Coastal Plain, known to them as ‘the sacred place where life begins’ (lizhik Gwats’an Gwandaii Goodlit), they ‘do not step foot’ there as it is the birthing and nursery grounds of the Porcupine Caribou Herd. The Coastal Plain is also important ‘for many other life forms’ such as migratory birds, wolves, owls, and arctic foxes, and where polar, brown, and black bears live side by side.

While mainstream narratives have posited the debate about oil and gas development on the Coastal Plain as an energy vs. wilderness issue, for the Gwich’in, it is a human rights and food security issue. This is because harm to Porcupine Caribou means harm to the ‘nutritional, cultural, and spiritual needs’ of all Gwich’in communities and their way of life.

In efforts to protect their interwoven relationship with Porcupine Caribou, the Gwich’in have faced domestic administrative and environmental procedures that ‘do not address underlying discriminatory principles,’ allowing human rights violations to occur. As the following section will highlight, pre-legislative processes to establish the Refuge did not include the Gwich’in.

Establishing the Refuge: A Brief Legal Overview

The history of Gwich’in (and Iñupiat) peoples’ habitation on their traditional lands and their world views, culture, and relationships with wild animals were ‘obliterated’ with the establishment of the Arctic National Wildlife Range (the Arctic Range) in 1960. Between 1959 and 60, no Senate hearings were held in or near Gwich’in villages or camps. Most participants were not Native Alaskans but from far-away cities and states with vested conservation, scientific, sports hunting, mining, economic, recreational, and wilderness interests. The Arctic Range law reflects these glaring omissions: aiming to preserve ‘wildlife, wilderness and recreational values,’ but without mention of subsistence needs of rural Alaskans or interwoven Gwich’in-Caribou relations.

In 1980, the Alaska National Interest Lands Conservation Act (ANILCA) was passed. This partly addressed the issue of subsistence rights for local residents — but simultaneously designated the Coastal Plain as ‘area 1002’ — earmarking it for oil and gas exploration and drilling. ANILCA aims to fulfill international legal obligations and conserve wildlife connected to the Porcupine Caribou. However, it remains silent on Gwich’in-Caribou relations. Furthermore, when Porcupine Caribou are referenced, it is only in the context of a scientific study to understand the potential impacts of oil and gas development activities on the Porcupine Caribou.

International Law to Protect the Porcupine Caribou Herd

In 1987, a Treaty between the United States and Canadian governments entered into force on the Conservation of the Porcupine Caribou Herd (the Treaty). The Treaty acknowledges the ‘nutritional, cultural’ and ‘essential needs’ as well as ‘customary and traditional uses’ of the Porcupine Caribou by ‘rural Alaska residents’ and ‘Native users’ who should ‘participate in the international co-ordination of the conservation of the Porcupine Caribou Herd and its habitat.’ To this end, it establishes an Advisory Board to make recommendations for protecting the Porcupine Caribou Herd in their own right. However, the Treaty lacks an enforcement mechanism and does not elaborate on special Gwich’in-Caribou relations. There are also questions about how the Treaty has been adhered to by both parties. Since the designation of the Coastal Plain as ‘area 1002,’ numerous concerns have been raised by Canadian First Nation management and co-management agencies, particularly regarding the potential impacts of oil and gas development on Indigenous peoples and their customary and traditional practices. These concerns include the obligation of the United States to notify, coordinate, cooperate, and consult under treaty-based mechanisms, including, but not limited to, mechanisms established by the Treaty on activities likely to cause disruption to the migration of Porcupine Caribou or their ‘important behavior patterns.’

In 1988, all villages of Gwich’in Nations — from northeast Alaska and northwest Canada — gathered for the first time in over 100 years. At that meeting, they agreed that their fate was tied to the health and well-being of the Porcupine Caribou Herd and unanimously opposed oil and gas exploration and drilling in the Refuge. They reaffirmed this position in 2022 with a Resolution to Protect the Birthplace and Nursery Grounds of the Porcupine Caribou Herd (the Resolution) — and have maintained their stance until today. The Resolution recalls international human rights law, in particular, Article 1 of the International Covenant of Civil and Political Rights (ratified by the U.S.) to prevent deprivation of subsistence needs and Article 25 of the United Nations Declaration on the Rights of Indigenous Peoples (supported by the U.S. Government) to ‘maintain and strengthen their distinctive spiritual relationship’ with traditional lands and resources.

In 2017, the U.S. Tax Cuts and Jobs Act became law with a provision mandating lease sales for oil and gas development on the Coastal Plain ‘by not later than 10 years after the date of enactment.’ As a precondition for the sale, the U.S. Bureau of Land Management initiated an Environmental Impact Assessment in 2018. Following an ‘aggressive timeline,’the Record of Decision was published in August 2020 to proceed with the ‘most destructive drilling alternative’ by opening up the entire Coastal Plain for lease sales.

In 2019, the Gwich’in Steering Committee made multiple submissions to the United Nations Committee on the Elimination of Racial Discrimination (CERD), calling for urgent action to stop oil and gas development on the Coastal Plain as domestic remedies ‘do not directly address the human rights of the Gwich’in.’ In re-affirming their ‘cultural, spiritual, and subsistence’ relationship with the Porcupine Caribou Herd, they note previous recommendations from the Special Rapporteur on the Rights of Indigenous peoples to the United States on the need to address the absence of a domestic framework that ensures access to justice for violations perpetrated on Indigenous peoples lands and territories. Furthermore, parties to the International Convention on All Forms of Racial Discrimination (ICERD) must prohibit ‘practices and legislation which may not be discriminatory in purpose, but are discriminatory in effect.’ The Gwich’in explain the ‘discriminatory effect of the U.S.’ oil and gas leasing plan will harm the Porcupine Caribou Herd, encroach on Gwich’in sacred lands, impact the health of the Gwich’in through climate change and pollution, and increase the risk of violence against Alaska Native women.’ Numerous human rights violations under ICERD are cited, including the right to health, education, food security, nutrition, a clean environment, culture, religion, free, prior, and informed consent, subsistence, and women’s safety from violence. CERD responded with a series of letters to the United States relaying their obligations to ‘guarantee the respect of the rights of the Gwich’in,’ including their right to free prior and informed consent. However, responses to CERD by the United States government were not made public. Since 2020, the Gwich’in Steering Committee made several submissions to the Inter-American Commission on Human Rights with requests for precautionary measures.

Lease sales were issued in January 2021. But, in June, a Secretarial Order was issued (and upheld) to suspend existing leases on the Coastal Plain. It also directs the US Department of the Interior to undertake a comprehensive analysis of the potential impacts of the Coastal Plain Oil and Gas Leasing Program and ‘address legal deficiencies’ under the National Environmental Policy Act.

The Future for Gwich’in-Caribou Relations

A second lease sale is pending. An environmental review of the oil and gas development plan is underway, due for public release in June, with a final decision anticipated by September 2024. Current leases could be ‘reaffirmed, voided or amended to include additional environmental requirements.’ Meanwhile, the Gwich’in are still waiting for a domestic legal framework that directly addresses their human rights – which are indivisible from the rights and well-being of the Porcupine Caribou Herd.

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*Kimberley Graham holds an MA in Environmental Law from the University of Sydney and a BA(Hons) in Natural Resource Management from the University of Melbourne. Graham is an Independent Specialist and Researcher; her research interests include diverse human relationships with animals and nature and how they are reflected in environmental legal regimes and political structures. She is a Member of the IUCN World Commission on Environmental Law, the Global Network for Human Rights and the Environment, and the Research Group on Rights of Nature & Animals.

The post Gwich’in Rights are Caribou Rights – Powerless law or law for the powerless? An Environmental and Energy Perspective appeared first on ABILA.

The post 2024 Symposia: Closing the Accountability Gap: The Urgency of Mandatory Corporate Climate Commitments – Powerless law or law for the powerless? appeared first on ABILA.

This piece is part of the American Branch’s first blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Environmental and Energy Law perspective.

Closing the Accountability Gap: The Urgency of Mandatory Corporate Climate Commitments

by Eoin Jackson*

There has been increasing recognition of the link between climate change and corporations’ contribution to the rise in greenhouse gas emissions. According to the Carbon Majors Database, just 57 companies have been linked to 80% of emissions since 2016. Yet, even as this link between corporations and climate change becomes clearer, corporate climate commitments have consisted mainly of voluntary standards. For example, there are individual climate commitments from various corporations, including from key oil majors group climate commitments present in organizations like Net-Zero Asset Owner Alliance (since withdrawn from by major companies like Vanguard), and commitments pursued at climate Council of the Parties meetings (‘COPs’) like the Oil and Gas Decarbonization Charter, which lack enforcement mechanisms but seek to use COP to provide a veneer of authority to its commitments. None of these standards, however, have been effective in reducing corporate emissions, and many of the leading signatories of these commitments continue to pursue anti-scientific expansion of fossil fuels. There is, therefore, an urgent need, both from a scientific and policy perspective, for mandatory corporate climate commitments at the multilateral level.

The Scientific Need for Mandatory Corporate Climate Commitments

We have direct peer-reviewed evidence that voluntary commitments have been insufficient in encouraging corporations to follow science-led policies to reduce their emissions. A recent report from researchers at Imperial College London and Utrecht University has shown that companies setting individual climate commitments do not necessarily cause a drop in actual emissions and can, in fact, be used to water down or delay regulation. The paper advocates for governments and intergovernmental organizations to introduce legal frameworks for corporations based on a range of indicators that encourage best practices, innovation, and stringent requirements on transparency for any assessments. Additionally, a 2024 report from the New Climate Institute shows that “51 of the world’s largest companies commit to reducing their emissions by only 30% on average by 2030, falling short of the 43% reduction required to limit global warming to 1.5°C.” This is even more apparent in the context of fossil fuel majors, with Oil Change International identifying that the eight largest U.S. and European-based international oil and gas producers’ climate plans “fail to align with international agreements to phase out fossil fuels and to limit global temperature rise.” It is clear that the best available evidence we have shows that voluntary commitments are not working and may, in fact, be delaying progress toward necessary regulation.

However, the challenge of utilizing this data to prove the legal and policy impetus for mandatory corporate climate commitments is that the IPCC has yet to formally consider the role of corporations in the rise of emissions within its assessment reports. While the Sixth Assessment Report (the most recent report) notes, for example, “the extent to which civil society actors, political actors, businesses, youth, labour, media, Indigenous Peoples, and local communities are engaged influences political support for climate change mitigation and eventual policy outcomes,” it does not contain specific analysis of the impact of corporations on greenhouse gas emissions, nor has there been a Special Report by the IPCC on this issue. Given the IPCC is the most authoritative source of the best available climate science within international law and policy, it is prohibitively difficult to rely solely on science as the basis for introducing mandatory corporate climate commitments. This absence of corporate data is a separate problem related to gaps in international scientific capacity. However, at the very least, there is no scientific barrier to establishing mandatory climate commitments, and what science we do have points toward the need to establish such a framework.

The Policy Need for Mandatory Corporate Climate Commitments

The voluntary corporate climate commitments system is confused, fragmented, and uncoordinated. As an example, there are multiple voluntary climate disclosure standards aiming to achieve the same objective – aligning corporate disclosure with climate targets e.g. Greenhouse Gas Protocol (GHG Protocol) Corporate Standards, the Science Based Targets Initiative (SBTi), and the International Sustainability Standards Board (ISSB). This generates confusion and inconsistency regarding the nature and extent of corporate obligations. Additionally, environmental and social governance (ESG), which enjoyed popularity in the late 2010s and early 2020s for its promise to align corporate investments with key climate goals, has experienced increased political backlash, leading to a decline in interest even as it becomes increasingly evident there is a need for a dramatic transformation in business practice.

There have also been widespread accusations of greenwashing concerning individual corporate climate commitments and the virtual collapse of some voluntary carbon markets. These have come under severe criticism for their role in perpetuating false progress on corporate climate mitigation. Most recently, the US Senate published the findings of its joint investigation into some of the world’s largest fossil fuel companies and trade groups – ExxonMobil, Chevron, Shell, BP America, and the American Petroleum Institute (API) – and identified widespread instances of climate misinformation, greenwashing, and anti-scientific efforts to hamper climate action. Many of these corporations maintain individual commitments, yet, as this report demonstrates, their actions do not reflect the findings of basic climate science or their own stated intentions. The longer these individual voluntary commitments are allowed to act as the primary means we encourage corporations to make climate progress, the worse the overall outcome will be for climate longevity.

Broader international standards like the UN Guiding Principles on Business and Human Rights are useful when considering an initial framework for mandatory commitments. However, they also highlight the need for more specific commitments for corporations in the first place. The UN Guiding Principles have been identified by the UN Working Group on Business and Human Rights as containing duties that intersect with climate obligations. Still, these Principles remain voluntary and do not have the capacity to enforce progress in line with the recommendations of the Imperial College London and Utrecht University researchers. Even if these Principles were mandatory, they are (rightfully) focused on the full breadth of human rights rather than the more specific and science-led obligations required for a whole-of-system approach to corporate climate accountability.

This policy fragmentation, both within market-led standards like ISSB and the wider UN treaty and principle system, makes it challenging for corporations genuinely trying to contribute to climate mitigation efforts to understand where and how they can make the best impact. It also leaves little to no accountability for those seeking to use these standards as the basis for greenwashing even as they continue to expand anti-climate operations. An accountability gap is created where genuine success in corporate climate practice is obfuscated by bad actors claiming the same success. In contrast, those same actors circumvent efforts to challenge their practices by hiding behind voluntary commitments with no remedial mechanism. The UN Secretary General recently described fossil fuel majors as the “godfathers of climate chaos,” yet no current obligations or treaties exist at an international level that reflect the hardline approach needed to tackle a group meriting such a grave description.

On the other hand, mandatory climate commitments would help create a coordinated response to climate change from corporations while clarifying for directors, investors, and relevant stakeholders the nature and extent of corporate climate commitments. Enforceable obligations at an international level would be far more difficult to avoid than current voluntary standards, and they would reduce the likelihood of corporate backlash to progress in the event of changing political tides, as has occurred with ESG.

Toward Mandatory Corporate Climate Commitments

Moving toward mandatory corporate climate commitments at an international level is not an easy task. The international system has yet to embed corporations within its formal structures. There is no dedicated treaty on corporations and climate change, though there has been some discussion of a proposed treaty on business and human rights. Legal obligations to reduce emissions are only beginning to grow teeth within State-based jurisprudence (see, for example, the ICJ Advisory Opinion on States obligations in respect of climate change) and limited movement to impose similar obligations on corporations in the Netherlands and the Philippines.

There have been more positive moves on a regional and national level. The most prominent example is the EU Corporate Sustainability Due Diligence Directive, which contains provisions requiring corporations to take adequate due diligence measures regarding their climate impact. The US Securities and Exchange Commission has also sought to implement climate disclosure rules. Regulation of this kind is welcome, though it does potentially create problems for multinational companies where there is a discrepancy of standards across different jurisdictions, in the sense that it may be challenging to guarantee effective compliance. However, this potential difference in standards only further justifies the imposition of clear international commitments that could build upon existing regulations and create a level playing field across the corporate board.

Nonetheless, without comprehensive binding climate commitments from corporations to supplement those agreed to by States, it will be challenging to adequately rein in greenhouse gas emissions. The science and policy impetus for such commitments has never been clearer, and the establishment of mandatory climate commitments should be seen as the next frontier in intentional climate policymaking.

*Eoin Jackson is an incoming PhD candidate at the London School of Economics and Political Science, Chief of Staff/Legal Fellow for the Climate Governance Commission, Irish Rapporteur for the Sabin Center for Climate Change, and a Co-Director of Law Students for Climate Accountability UK. Jackson holds an LLM from Harvard Law School and an LLB from Trinity College Dublin.

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