Source: UK Supreme Court, YouTube
URL: https://www.youtube.com/watch?v=eef1tK8mtEI
Date: 17/09/2015
Event: Climate Change & Rule of Law
Credit: UK Supreme Court
People:
[Climate Change & Rule of Law: Lecture by Philippe Sands QC chaired by Lord Carnwath, UKSC, 17.09.15]
Lord Carnwath: Good evening, ladies and gentlemen, welcome to the Supreme Court. Don't think- watch that clock there, which is - normally keeps better time during our proper sittings - it is, I think, half past five. Welcome to the first public session in our three-day conference on adjudicating the future: climate change and the rule of law. The - my welcome extends also to those watching in Court 2 on our video link, or indeed elsewhere in the world, because, for the first time, I think, we're using our online streaming facility for an event of this kind. Normally we use it to give online coverage of our hearings and our judgements, but this is the first time I think we've used it for a public lecture of this kind, so I'd be interested to hear who is watching and listening to what we're saying. And we certainly welcome your feedback and - anyone listening - as [?] how that's working.
Now it's also the first time we are inviting questions to the speakers by Twitter, and for this I'm having to be advised by my younger friends on my right. I'm told that if you twitter [sic] using the hashtag #climatecourts - one word - a question will come through and it will be filtered appropriately by my colleagues on the right. And I should emphasise that this is not something we expect to be replicated in our court hearing [audience laughter].
Um, now it's fitting this lecture should be given in our new Supreme Court, set up only six years ago. The location is symbolic, at the very heart of the British constitutional world. And as you know from our entrance, you can look across to Parliament Square, to the Houses of Parliament. We have, on one side, the Church, represented by Westminster Abbey, and on the other, the government, represented by Whitehall. And I look down from my room on statues of Abraham Lincoln, Gandhi and Mandela, symbolising our historic and continuing links with the whole common-law world. And not far away is Buckingham Palace, representing the Crown. We are delighted to have received a message of strong support from his Royal Highness the Prince of Wales, which I read to the conference earlier today, and which can be seen on the conference website. In it, he reminded us of his call for the new climate agreement in Paris to be, as he put it, a "Magna Carta for the Earth". And so it is appropriate that you can see, out there, a version of Magna Carta, dating from 1300, as part of the exhibition on show at this time.
Now, President Obama has said that we are the first generation to feel the impact of climate change and the last generation that can do something about it. On that basis, the forthcoming Paris negotiations, under the UN Climate Change Convention, are a true, crucial test of our ability, as a global community, to address those challenges. The intention is that the commitments which emerge from those negotiations should have legal force. But what does that mean, in practice? Much has been written about the science and the politics, but much less about the legal machinery available to give effect to those commitments, which will need to be developed in the future, or indeed the role of the courts - national, international - in administering it.
Ultimately, it will be for us as judges - national or international - to work it out, with the help of legal practitioners and academics. We need to prepare ourselves for that task, and to help our judicial colleagues around the world to do the same. The purpose of this conference is to stimulate such a debate, which I hope will continue up to Paris and beyond.
Today the emphasis is on international law and the International Court of Justice. Tomorrow we shall turn our attention to the role of the national courts, with the help of judicial representatives from some 12 different legal systems around the world.
Now, before we come to the speakers, a few thankyous - first, to Professor David Caron and his team at Kings College - he's sitting on the left, who - he, at the beginning of the year, took up my own rather nebulous ideas for such a conference and agreed to lead the conference and provide the bulk of the financial and organisational responses, resources necessary for that task. Thanks also for the key role by [there is a break in the video but he probably says "the Asian Development"] Bank and the United Nations Environment Programme, who have supported this conference in particular, by providing financial assistance for the costs of some of the visiting judges. In that connection, I am privileged to be a member of the International Advisory Council set up by UNEP to help improve training and understanding of judges on environmental law, round the world, and that provides a means by which we can ensure that the lessons from this conference are conveyed to a much wider judicial audience across the world.
I'm grateful also for the support from the UK Government, who will be hosting a reception after the lecture, in the splendid Locarno Room at the Foreign Office. In this country, in spite of the political upheavals of recent months - indeed, recent weeks - we are I think fortunate to have, for the moment at least, a strong political consensus on the challenges of climate change and how to tackle them.
So that, by way of introduction, ah, turning to the speakers - they are, I think, a uniquely qualified team to help us on the international aspects of this issue. Philippe Sands QC is Professor of International Law at University College London and a practising member of Matrix Chambers, with perhaps unrivalled experience of, um, not only writing about cases but actually acting in cases, in the field of international environmental law. He will be giving the main lecture. There will then be short responses or comments from Professor James Crawford SC, who was Professor of International Law at Cambridge until he was appointed as a judge at the International Court of Justice, at the end of last year. And also comments from Lavanya Rajamani, who is Professor at the Centre for Policy Research in New Delhi, specialising in international climate change law. She is author of several books and many articles on international environmental law and has advised governments and international organisations on the issues of climate change and the UN framework.
So, with that introduction, I pass over to Philippe Sands. [Audience applause].
Philippe Sands: Thank you very much, Lord Carnwath, and my thanks also to you and to all of your colleagues for allowing us to use this room - it means a very great deal, I think, to be able to deliver this lecture in this very special room.
Three years ago I attended a meeting of a small group of ambassadors at the United Nations in New York. The context was an initiative by the small, low -lying island state of Palau to persuade the United Nations General Assembly to ask the International Court of Justice in The Hague to give an Advisory Opinion, on the responsibilities of states under international law to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not cause damage to other states.
"Are you in favour of such an initiative?", the ambassadors asked me. "I am not", I replied. And I explained why. I doubted that the International Court would give an Advisory Opinion that could be helpful to Palau, or indeed to the world as a whole. There was a serious risk, I thought, that the Court might offer an opinion that was actually unhelpful: it could, for example, decline to give an opinion at all (a path implying that international law had nothing to say on the subject), or it could give an opinion that was unhelpful on the science, or on the law itself.
Of course, it was also possible that the Court could give an answer that might elucidate the relevant rules of international law, be helpful on the science and contribute perhaps to a greater political will and to to action by states. Yet as matters then stood, a few years ago, I thought that to be an unlikely prospect, having regard in particular to the practice of the Court. The Court had given a reasonably robust opinion on the illegality of Israel’s Wall -Palestine - but in other cases it had skirted around the difficult issues that really mattered, in the face of sharp political divisions in the international community. For example, in the Advisory Opinion on Nuclear Weapons, the Court ruled - by the narrowest of possible majorities - that - and I quote- it "cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake" - end of quote. And it did so in view, as it put it, of "the current state of international law, and of the elements of fact at its disposal". That rather unhappy conclusion, that you might be acting lawfully in extinguishing others if you yourself face extinction, did not seem to bode well for the possibility of an Advisory Opinion on climate change.
Similarly, the Advisory Opinion on Kosovo’s purported declaration of independence failed to offer a definitive solution to a deeply divisive problem, and in a case arising under the Convention on the Elimination of Racial Discrimination (brought by Georgia - for whom I acted - against Russia in relation to Abkhazia and South Ossetia) the Court declined to exercise jurisdiction at all, taken by some as a green light to Russia. It might be a better prospect, I suggested to these ambassadors, to think about the International Tribunal for the Law of the Sea, in Hamburg, where a more robust but politically less influential decision might be obtained, assuming of course the International Tribunal for the Law of the Sea had the power to give an opinion at all - at that point, ITLOS had never been asked to give an opinion under Article 138 of its Rules.
Now, a few years have passed since then. I have to say that my perspective as to the international courts' potential role on climate change has evolved. Several factors have worked their magic. There have been changes, for example, in public opinion, and the Pope has even issued a strong encyclical letter framing the issue of climate change in moral terms. The scientific evidence appears - to me, a non-scientist, at least - to be ever more robust. More governments are taking more actions, and even the United States and China seem finally to be ready to act, jointly - and that's significant - jointly announcing targets to cut greenhouse gas emissions in the next ten to fifteen years. National courts are starting to act: in June this year the Rechtbank, a court in The Hague - and we're delighted to have two of their judges amongst the audience - ruled in a remarkable judgement the Dutch Government’s climate change policy was unlawful for failing to achieve the 2020 greenhouse gas emission target cuts of 25% to 40%, a target which they said was supported by scientific evidence against the background of a global commitment to reduce global greenhouse gas emissions, holding any increase in global average temperatures below 2 °C above pre-industrial levels. And there is, too, the more recent practise of the International Court of Justice, to which I will say more in a moment.
If a court in the Netherlands is willing to act – and I appreciate that that judgment is now subject to appeal – then why not an international court, too, making a contribution? To answer that question requires us to delve a little into the nature of international law, with its limited legislative capacities, and international courts, which have tended - but not always - to be followers rather than leaders.
I begin with a few words about international law and climate change. I was in Chantilly, Virginia, in February 1991, when the first meeting of the Intergovernmental Negotiating Committee on Climate Change took place, as a legal advisor to a group of small island states. That gathering took place, remarkably, against the backdrop of Iraq’s recent invasion of Kuwait, and it was rather obvious to all in the room at Chantilly that consensus on the need for action, back in 1991, was not immediately in evidence. Yet just a year later the Framework Convention on Climate Change was adopted at Rio in June 1992. It had, it's true, no targets or timetables, but its Article 2 did provide that the Convention’s "ultimate objective" was - and I quote - "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system", end of quote.
What does that mean? Well, you may well ask, and perhaps one day an international court will offer an answer. In 1997 the Kyoto Protocol provided for certain countries to cut their emissions, with specific targets and timetables. And then in 2010, at a meeting in Cancun in Mexico, the Conference of the Parties to the 1992 Convention went further, recognising the need for "deep cuts in global greenhouse gas emissions" - I quote - "with a view to reducing global greenhouse gas emissions so as to hold the increase in global average temperature below 2 °C above pre-industrial levels". This target was identified as a "long-term goal, consistent with science and on the basis of equity".
No doubt these and other actions have had some consequences - some emissions have been avoided in some parts of the world, and some new policies and actions have been taken. There has been some change of consciousness. Yet it seems that much more is needed. The most recent evidence, as set out by the Intergovernmental Panel on Climate Change last year, is clear, without ambiguity, startling even. And I'm going to quote from the 2014 Synthesis Report - all of these are quotes.
"Human influence on the climate system is clear... recent climate changes have had widespread impacts on human and natural systems"... "many of the observed changes are unprecedented"... "the atmosphere and ocean have warmed, the amounts of snow and ice have diminished, and sea level has risen"... anthropogenic greenhouse gas emissions "are extremely likely to have been the dominant cause of the observed warming since the mid-20th century". "Continued emissions... will cause further warming and long-lasting changes... increasing the likelihood of severe, pervasive and irreversible impacts". "Limiting climate change would require substantial and sustained reductions in greenhouse gas emissions."
"It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise." "Many aspects of climate change and associated impacts will continue for centuries." "The risks of abrupt or irreversible changes increase as the magnitude of the warming increases". "Without additional mitigation efforts... warming by the end of the 21st century will lead to high to very high risk of severe, widespread and irreversible impacts globally."
These are not the words of doubt. They indicate that we have gone well beyond the classical standards of burden of legal proof, on which this Supreme Court knows so much, whether it be balance of probabilities, or a standard beyond reasonable doubt, or the curious standard that I'm called upon to apply when I sit in Lausanne as an arbitrator at the Court of Arbitration for Sport - Swiss law - a standard of ‘conviction intime’. And just this week the United Kingdom Met Office issued a new report - they called it "Big Changes Underway in the Climate System?" - they did add a question mark. We are told that in 2005 [sic], by the Met, the earth’s average surface temperature - not the UK, the Earth - is running at or near record levels. So, scientific evidence tells us that something is happening, and the legal textbooks tell us that it is a subject for international law, one that is addressed by treaties and other instruments, perhaps other rules.
TO BE CONTINUED