climate law and governance working paper series · 2018-08-28 · climate law and governance...

Climate Law and Governance

Working Paper Series

Series Editors: Dr Marie-Claire Cordonier Segger (CISDL & LCIL, University of

Cambridge), Dr Walid Ali (UNDP) & Ayman Cherkaoui (CISDL)

No 1/2017

LEGISLATING THE PARIS AGREEMENT IN

DEVELOPING COUNTRIES

By: Christoph Schwarte

Legislating the Paris Agreement in Developing Countries

2 | P a g e

Disclaimer

The views expressed in this publication are those of its authors and do not represent the views of the United

Nations Development Programme, the University of Cambridge, the University of Nairobi, the Centre for

International Sustainable Development Law (CISDL), or any affiliated or partner institutions.

Reproduction of this document in whole or in part and in any form for educational or non-profit purposes

may be made without special permission from the copyright holders, provided acknowledgment of the

source is made. The partners would appreciate receiving a copy of any publication or material that uses

this document as a source.

Except where otherwise noted, this work is protected under a Creative Commons Attribution Non-

commercial-No Derivative Works License.

Cover picture: Jay Ruzesky. All rights reserved.

About the Working Paper Series

The Centre for International Sustainable Development Law (CISDL), McGill University, the Lauterpacht

Centre for International Law and the Centre for Environment, Energy and Natural Resource Governance

(C-EERNG) at the University of Cambridge, the Centre for Advanced Studies in Environmental Law and

Policy at the University of Nairobi, the Centre for Research on Climate Resilience at the Universidad de

Chile, the Centre for International Governance Innovation (CIGI), the Institut de Recherche en Droit

International et Européen de la Sorbonne (IREDIES), the Climate Justice Centre of Bangladesh, the Ateneo

School of Governance and other partners host Climate Law and Governance Day (CLGD) during the UNFCCC

COP21 in December 2015 in Paris, France, and UNFCCC COP22 in November 2016 in Marrakech, Morocco.

These Legal Working Papers are based on selected papers from these events, in order to inform law and

policy-making moving forward.

Contact Information

Centre for International Sustainable Development Law (CISDL)

McGill University Faculty of Law, Chancellor Day Hall, 3644 Peel Street

Montreal, Quebec H3A 1W9, Canada

tel +1 818-685-9931 fax +1 514-398-4659

www.cisdl.org


3 | P a g e

LEGISLATING THE PARIS AGREEMENT IN DEVELOPING COUNTRIES

Christoph Schwarte** Legal Response Initiative (LRI)

Abstract

The success of the Paris Agreement on climate change depends on the capability of countries to

implement their commitments, the nationally determined contributions (NDCs). In this connection,

legislation – whether it is an overarching framework act or the revision of sector specific rules – can be an

important tool. The paper examines the opportunities and challenges for good climate relevant legislation

in developing countries. It provides an overview of possible approaches, ongoing initiatives, and lessons

learnt in other areas. While there is an ever-growing body of climate legislation world-wide, a tailored

approach, reflecting the specific needs, circumstances and legislative processes of a jurisdiction is needed.

The lack of domestic legal expertise and resources may, however, hinder the development of adequate

legislation. The paper, therefore, also makes some suggestions for strategic support to developing

countries in their legislative efforts to respond to climate change (whose urgency has increased following

the rapid entry into force of the Paris Agreement

** Christoph Schwarte is a German lawyer with almost 20 years of practical experience in international environmental law. He is the executive director of the Legal Response Initiative – a London based charity that provides free legal advice to poor and climate vulnerable developing countries and NGOs. He is a co-author of the International Law Association’s legal principles related to climate change (adopted in 2014). Before joining LRI he worked at the Foundation for International Environmental Law and Development (FIELD) and the International Institute for Environment and Development (IIED). Between 1998 and 2004 he was an Associate Officer (P-2) at the International Tribunal for the Law of the Sea in Hamburg. He holds an LLM from the School of Oriental and African Studies (SOAS) and qualified to practice at the bar in November 1997 in Dresden (State of Saxony).


4 | P a g e

Contents

I. Introduction .................................................................................................................................... 5

II. The Paris Agreement and Domestic Legislation ................................................................ 6

III. Law and Policy ............................................................................................................................... 8

IV. Legislative Approaches ............................................................................................................... 9

V. Possible Approaches to Support Developing Countries ................................................ 14

VI. Conclusions and Recommendations .................................................................................... 21


5 | P a g e

LEGISLATING THE PARIS AGREEMENT IN DEVELOPING COUNTRIES

I. INTRODUCTION

The Paris Agreement to combat climate change was adopted by the parties to the UN Framework

Convention on Climate Change (UNFCCC) during the 21st session of the Conference of the Parties (COP)

in Paris in December 2015.1 It entered into force on 4 November 2016.2 The Paris Agreement is a new

international treaty that - like many other multilateral environmental agreements - focuses on procedural

obligations. All parties are required to communicate what nationally determined contributions (NDCs) –

primarily with regard to mitigation but potentially also adaptation, finance, technology transfer, capacity

building and enhanced transparency of action and support – they are able and willing to take in achieving

the purpose of the Agreement.3

Success or failure of the Paris Agreement will, therefore, to a large extent depend on the capability of

countries to implement their self-set commitments - the NDCs. Many of them will have to develop new

policies, legislation and institutions to respond effectively to climate change and facilitate low carbon

economic development. Initial research indicates that states widely acknowledge the need for

improvements to their legal and institutional infrastructure, and additional capacity-building in these

areas.4 The NDCs of various developing countries specifically request assistance by the international

community in this respect.5

In response, a loose coalition of organisations formed during the second half of 2016 to develop

approaches and ideas for supporting developing countries in their legislative efforts to respond to climate

change and implement their commitments under the Paris Agreement. Two major meetings of UN

1 For the text of the Paris Agreement see Decision 1/CP.21 in COP21 Report Addendum Pt II: ‘Action taken by the Conference of the Parties’ UN Doc FCCC/CP/2015/10/Add.1available at http://unfccc.int/paris_agreement/items/9485.php. 2 Paris Agreement, Art.21 para.1 (on entry into force). An ongoing update on parties and ratifications is available at http://unfccc.int/paris_agreement/items/9485.php. 3 Paris Agreement, Art.3. 4 Marie-Claire Cordonier Segger, Mirjam Reiner & Alexandra Scott, Countries stress the importance of legal and institutional capacity building in the iNDCs, Centre for International Sustainable Development Law (CISDL), Canada, 2016. 5 Countries’ NDCs can be accessed via the (interim) NDC registry at http://www4.unfccc.int/ndcregistry/Pages/Home.aspx.


6 | P a g e

agencies, development organisations, research institutes, NGOs and others took place in London in

September and December 2016. This paper builds on the various contributions by participants and the

subsequent vibrant discussions during both events.6 It briefly examines the implications of the Paris

Agreement for national legislation (section 2). In the following sections (3 and 4) it outlines some of the

barriers and opportunities for good climate relevant legislation in developing countries and further

explores different avenues for legislative activities. This is followed by an overview of possible approaches

to support developing countries in their implementation of NDCs through legislation (section 5) and

concludes (section 6) with a few general suggestions for further strategic action by different stakeholder

communities.

II. THE PARIS AGREEMENT AND DOMESTIC LEGISLATION

Some multilateral environmental agreements (MEAs) provide fairly detailed guidance on the scope,

content, mechanisms and tools for the national implementation of international commitments. The

Montreal Protocol on Substances that Deplete the Ozone Layer, for example, requires all parties to reduce

and phase out the production and consumption of certain ozone depleting substances in accordance with

specific mandatory timetables.7 The Convention on Biodiversity (CBD) provides that for the in-situ

conservation of threatened species and populations parties have to “develop or maintain necessary

legislation and/or other regulatory provisions”.8 In this context, government internal administrative

decisions or public policy would not suffice.

In addressing marine pollution and other areas, the UN Convention on the Law of the Sea (UNCLOS) also

obliges parties to adopt domestic laws and regulations. In some cases, it also further defines their

necessary minimum content and criteria in further detail (e.g. including pipelines and outfall structures,

meeting standards agreed in the International Maritime Organisation or imposing only monetary

6 The Climate Development Knowledge Network (CDKN) and the Legal Response Initiative (LRI) hosted a panel discussion and workshop in London on 27 and 28 September. The report is available at http://legalresponseinitiative.org/further-resources/briefing-papers/ .The Commonwealth Secretariat, UNEP and UNFCCC organised further consultations on the development of a law and climate change tool on 1 and 2 December. Another round-table discussion on legal preparedness organised by UN Environment (UNEP) and LRI took place during the Law and Governance Day in Marrakesh. 7 The consolidated text of the Montreal Protocol is available through the UNEP Ozone secretariat’s website at http://ozone.unep.org/en/focus/. 8 CBD Art.8 para.(k).


7 | P a g e

penalties rather than imprisonment).9 If and to what extent state practice complies with more detailed

requirements for domestic implementation is another question, but in comparison to the above

examples, the Paris Agreement provides only very limited guidance to national law and policy makers.

The Paris Agreement, mainly in its preamble, refers to a number of concepts and ideas with potentially

significant implications for domestic law and policy making, such as safeguarding food security, just

transition of the workforce, human rights, “climate justice” or public participation. This may help civil

society stakeholders and others to campaign for their inclusion in future domestic implementation efforts.

They are not, however, part of the (formally binding) operational arrangements between parties and, as

a result, are difficult to qualify as additional “quality criteria” for national implementation efforts.

One limited exception in this context is contained in Art.7 para.5 of the Paris Agreement. The provision

reflects the language used in the 2010 COP decision to establish the Cancun Adaptation Framework.10 It

states adaptation action “should” (but not shall) follow also a “gender responsive, participatory and fully

transparent approach, taking into consideration vulnerable groups, communities and ecosystems” and

reflect best available science “and, as appropriate, traditional knowledge, knowledge of indigenous

peoples and local knowledge systems”.

The Paris Agreement only provides a broad framework for further substantive decisions by the parties on

its future operation, national implementation and administrative framework. How, for example,

developing countries’ adaptation efforts will be recognised or what new opportunities the new market

mechanisms may offer is currently unclear.11 The lack of a strong set of rules may impede the Agreement’s

implementation. At COP 22 in Marrakesh in 2016, governments, therefore, agreed to develop the

necessary processes, methodologies and regulations without delay and to complete their work –the so

called “rulebook” of the Paris Agreement – by 2018.12

As a result, many countries face a double challenge. Internationally, they need to shape global procedures

and administrative frameworks that work for them, and to fully benefit from the provisions of the Paris

9 UNCLOS, Arts.207, 210, 220, 230. 10 Decision 1/CP.16, para.12. 11 Paris Agreement, Art.7 para.3; Art.6 paras.4-7 (mechanism to support sustainable development). 12 Decision 1/CP.22, Preparations for the entry into force of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement in Report of the Conference of the Parties on its 22nd session, held in Marrakech from 7 to 18 November 2016, Addendum Part two: Action taken by the COP, FCCC/CP/2016/10/Add.1, 31 January 2017.


8 | P a g e

Agreement and fulfil its objectives, their domestic efforts to address climate change also need to be

broadly in line with the emerging rules. At least for the time being, support for domestic action should,

therefore, take into account the actual and potential developments at the international level. Immediate

national implementation efforts with a view to the longer or medium term may require a certain degree

of built-in flexibility to subsequently accommodate the new rulebook’s requirements and criteria.

III. LAW AND POLICY

While the Paris Agreement does not specify how parties are to implement their NDCs, in practice they will

have to rely on domestic policy, law and regulations.13 In many cases, comprehensive national strategies

and policies may suffice to address immediate climate concerns. The adoption of formal legislation by

parliament in comparison could hamper quick, efficient and flexible responses. For example, some small

island developing states that are of limited population and size have so far focused on policy rather than

law in their responses to climate change impacts, including climate induced migration.14

In large countries such as Bangladesh, Indonesia or the Philippines this may be less practical. Here only

law, which provides a degree of transparency, predictability and the application of common criteria across

the board, may provide the necessary legitimacy and authority for regulating citizens’ activities. In general,

law locks countries in a policy direction that cannot be easily reversed, creates legal certainty, encourages

coordination of different policy spheres across government agencies, and national accountability and

13 The distinction between law and policy is not always clear. The two terms are occasionally used synonymously

and interchangeably. “Law” may sound too authoritative and hierarchal while “policy” has a softer, more

accessible connotation and remains a continual part of an evolving process. For the purposes of this paper “law”

refers broadly to the written rules that govern activities in a particular country and are usually enforced by

government and the courts. (Theodore J. Lowi, Law vs. Public Policy: A Critical Exploration, Cornell Journal of Law

and Public Policy, Vol.12, Issue 3, 2003.) “Policy” means public policy and essentially describes what government

decides or seeks to do (or not) in pursuit of certain goals or objectives. It may take different forms such as a

declaration, programme, strategy or authoritative decision. (Michael Moran, Martin Rein, Robert E. Goodin, The

Oxford Handbook of Public Policy, Oxford, 2008.)

14 E.g. Department of Climate Change, Ministry of Meteorology, Energy, Information, Disaster Management, Environment, Climate Change and Communications, Tonga Climate Change Policy, February 2016; John Campbell and Olivia Warrick, Climate change and migration issues in the Pacific, UN Economic and Social Commission for Asia and the Pacific, August 2014.


9 | P a g e

enforcement mechanisms are more readily available. In particular, legal certainty and a robust legal

framework are important components of economic stability, working markets and attracting investment.

Unless the parties to the Paris Agreement subsequently develop a robust compliance system, in view of

the language used and the lack of qualitative criteria for NDCs at this stage, the content of NDCs is not

legally binding at the international level.15 With regard to the implementation of their promises, the Paris

Agreement does not go beyond the general requirement that parties must act in good faith (i.e. not

obstruct the treaty’s purpose and meet reasonable expectations). For the serious pursuit and

accomplishment of NDCs it may, therefore, be helpful to anchor them in the national law. As a result,

NDCs could create legally binding obligations on government, which would improve its accountability vis-

à-vis citizens and other civil society stakeholders, and potentially facilitate compliance and enforcement

of NDC commitments.

Recent research further indicates that a number of elements are important for a country’s ability to meet

its NDCs. This includes mechanisms for stakeholder involvement, a climate-aware public and effective

rules and procedures, including comprehensive legislation and policy as well as transparent, inclusive and

effective decision making processes with enough political authority to limit reversal.16 Many NDCs in

developing countries build on existing climate change and development strategies and policies but very

few are backed by legislation.17 Countries’ legislative initiatives do not have to focus solely on climate

change but could – to generate broader public support for example – also integrate NDCs in the

implementation of other global initiatives such as the Sustainable Development Goals (SDGs) and/or the

Sendai Framework for Disaster Risk Reduction.

IV. LEGISLATIVE APPROACHES

If states strategically aim to pass formal legislation related to the implementation of their NDCs or other

climate plans, the next question would be whether to develop specific climate framework legislation or

15 In more detail: Christoph Schwarte, Responsibility for Climate Change after the Paris Agreement, Environmental Law & Management 28, 2016. 16 Alina Averchenkova and Sini Matikainen, Assessing the consistency of national mitigation actions in the G20 with the Paris Agreement, Centre for Climate Change Economics and Policy and the Grantham Research Institute on Climate Change and the Environment, November 2016. 17 UNFCCC secretariat, Aggregate Effect of the INDCs: an update, FCCC/CP/2016/2, May 2016.


10 | P a g e

review and amend existing laws. If there are already comprehensive governance frameworks it may be

politically challenging to create further institutions and laws; while amending existing legislation could be

particularly cumbersome and subject to political and institutional resistance if there are many vested

interests. It may be easier and less contentious to integrate climate concerns into laws that focus on other

priorities. Secondary legislation (e.g. government order, decree or regulation) can be an adequate tool in

this context (e.g. to determine technical requirements) too.

The same basic questions (concerning national implementation) arose after the adoption of the Nagoya

Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their

Utilization (ABS) to the Convention on Biological Diversity (CBD) in 2010. The Nagoya Protocol is an

international treaty adopted under a wider instrument – the CBD – to create specific framework

conditions for the use of genetic resources and traditional knowledge associated with genetic resources

and the fair sharing of benefits arising from their utilization. It entered into force on 12 October 2014.

Research in the same year indicates that most countries which had taken some ABS measures could be

divided into three categories:18 (1) countries that broadly refer to ABS in their domestic law and policy

instruments but have not yet regulated ABS in detail; (2) countries that have a biodiversity or

environmental law with some general provisions on access to biological resources which may also include

a mandate to establish further rules on ABS; and (3) countries that have regulated ABS in greater detail

and, for example, established competent national authorities, adopted procedures on the prior informed

consent for sharing resources, or addressed intellectual property rights over products of genetic

resources. The study concludes that the adoption of the Nagoya Protocol provided new impetus for the

adoption of national ABS laws in countries where these are still missing as well as the updating of dated

draft laws.

In comparison to a relatively confined subject area such as ABS, climate change, which potentially affects

almost all areas of society, defies easy legal categorisation and needs to be addressed at multiple levels

of governance. There is no “one size fits all” solution and legislative approaches have to accommodate

the specificities of different legal systems and cultures. However, wherever there is a regulatory vacuum,

bespoke climate change legislation appears to be an obvious first step to mainstream climate concern

18 Jorge Cabrera Medaglia, Frederic Perron-Welch and Freedom-Kai Phillips, Overview of national and regional measures on access and benefit sharing challenges and opportunities in implementing the Nagoya Protocol, 3rd ed, CISDL Biodiversity & Biosafety Law Research Programme, June 2014.


11 | P a g e

across different areas of the law, and create a framework to initiate and sustain this process. Several

developing nations such as Kenya, Papua New Guinea or the Philippines have, therefore, adopted

legislation which provides the framework to further develop law and policy (in line with different national

priorities) and identifies or establishes the relevant institutions to do so.19

A qualitative assessment of these laws exceeds the scope of this paper.20 Overall, they tend to focus on

process and administrative arrangements, including, for example, the composition and operation of new

bodies (such as a designated authority, a committee, council or commission). They refer to a variety of

specific climate relevant national challenges – such as low carbon economic development, the need to

enhance resilience and adaptive capacities, disaster risk reduction, poverty eradication or gender-

sensitive approaches – but provide limited guidance on substance. How to, for example, balance or

prioritise conflicting interests, identify (in collaboration with the industry) priority technologies for low

carbon development, or assess climate change adaptation needs in different regions of a country is rarely

addressed in any detail. Other gaps often are a clear resource allocation to fund activities, a definition of

the relationship with existing legislation, timelines for implementation as well as a lack of provisions on

accountability and possible enforcement action.

While there is room for improvement to bespoke climate legislation, climate change is an all-

encompassing phenomenon whose impacts on almost all sectors of society cannot be dealt with “in one

go”. A comprehensive climate flagship law may provide an opportunity to address fundamental societal

questions, define priorities and create obligations on government to act accordingly but there is only so

much it can address. Framework legislation, therefore, needs to be supplemented by sector specific

approaches. In this connection, a wide range of existing law and policy instruments may require review

and revision or new rules and regulations need to fill existing lacunas. This could be framed as a new

19 The Climate Change Act, Kenya, 2016; Climate Change (Management) Act 2015, Papua New Guinea; An act mainstreaming climate change into government policy formulations, establishing the framework strategy and program on climate change, creating for this purpose the climate change commission, and for other purposes (Republic Act No 9729), Philippines, 2009; respectively. Most relevant legislation can be easily accessed via the combined database of the Grantham Research Institute on Climate Change and the Environment and the Sabin Centre for Climate Change Law at: http://www.lse.ac.uk/GranthamInstitute/legislation/the-global-climate-legislation-database/. 20 Instead see: Michal Nachmany, Sam Fankhauser, et al., GLOBE Climate Legislation Study, Grantham Research Institute LSE and GLOBE International, 4th ed., London, 2014; an updated (2015) version is also available at: http://www.lse.ac.uk/GranthamInstitute/legislation/.


12 | P a g e

dedicated initiative, “piggy back” ongoing law reform projects or as part of wider efforts to pursuit the 17

Sustainable Development Goals (SDGs) for the period 2015-2030.

The scale and layers of governance (national, sub-national and local) as well as the division and balance

of powers in a particular country are important factors in determining appropriate avenues for the

development of law. In addition, law and policy makers need to consider a range of regulatory techniques.

With regard to the mitigation of GHG emissions and pollution control these are, for example, quantitative

targets, pricing emissions (taxes, cap and trade), command and control mechanisms, subsidies and tax

incentives, as well as monitoring, reporting and verification (MRV). An increasingly relevant regulatory

tool is also the need for companies to disclose information on their carbon footprint. To trigger

behavioural changes it may help to frame the purpose of legislation in terms of new opportunities for

positive change – rather than burden sharing.

To attract climate investment, general legislative efforts could focus on the application of the rule of law,

legal certainty and an effective judicial system. Climate specific initiatives in this area may target the

regulation of energy markets, intellectual property rights, promotion and operation of the clean

development mechanism, the planning and implementation of transboundary projects and investor-state

dispute resolution. From an economic point of view, legislation should be flexible enough to allow and

encourage different funding and investment models, and also allow the new market mechanisms formally

established (but not yet designed) under the Paris Agreement a role to play.

There are no generally accepted quality criteria for regulatory interventions. Such an assessment is likely

to depend on a number of factors, namely the legal form of the intervention (e.g. law, regulation, order),

whether there is a compliance and enforcement mechanism, the justiciability of provisions and decisions,

and the allocation of financial resources to secure its implementation in practice. A good law should at

least indicate its objective, desired outcomes, how it relates to existing laws, be easily understandable,

coherently structured and accessible.21 Its effectiveness (or efficiency) may be measured against its

relevance in practice, implementation and compliance, but also by the extent to which it integrates

society’s existing value systems and its language captures the legal message.22 Depending on the context,

21 House of Commons Political and Constitutional Reform Committee, Ensuring standards in the quality of legislation First Report of Session 2013–14, Volume I: Report, together with formal minutes, oral and written evidence, London, 2013. 22 Anthony Allott, The Effectiveness of Laws, 15 Val. U. L. Rev. 229, 1981, available at: http://scholar.valpo.edu/vulr/vol15/iss2/1.


13 | P a g e

the participatory nature of the preceding process (leading to its adoption) or the protection of vulnerable

and marginalised groups could be other important criteria.

Experience in other areas of law reform indicates that it is essential to be sensitive to the country and sub-

national contexts. Lawmakers should, as a priority, seek to integrate different sectors before trying to

introduce new laws that add new layers of rules. In India, for example, water (e.g. water supplies, irrigation

and canals, drainage and embankments) is subject to the legislative authority of the states (not the Union).

Laws in this area have been developed over many decades (while drinking water is dealt with by policy)

and as a result, there are layers upon layers of legislation. To consolidate and coordinate the application

of different instruments the national (Union) government developed a model law. But the lack of expertise

at the state level meant that the competent institutions rarely engage with it.23 In general, a tailored

approach, reflecting the specific needs, circumstances and legislative processes of a jurisdiction is needed.

Ultimately, national specificities will determine the adequate mix of laws, policies and different strategic

approaches.

To date, most legal research, analysis and collation of information has focused on legislative efforts

broadly associated with primarily the mitigation of climate change, such as energy efficiency, renewable

energy, transport, pollution control, emission trading or other market and investment conditions.24 For

developing countries, adaptation to the adverse effects of climate change tends to be the more pressing

issue. In terms of law, however, there are often no clear dividing lines between both thematic areas.

Whether building regulations, for example, are primarily about energy efficiency or storm proofing

depends on the national context and can also change over time.25 For the purposes of developing general

recommendations for the law review and development process in very different developing country

jurisdictions the distinction appears to be of limited value.

23 Based on a presentation by Philippe Cullet during the workshop on 28 September. In more detail see Philippe Cullet & Joyeeta Gupta, Evolution of water law and policy in India, in Joseph W. Dellapenna & Joyeeta Gupta (eds), The Evolution of the Law, Dordrecht: Springer Academic Publishers, 2009, available at: http://www.ielrc.org/content/a0901.pdf. 24 See for example the laws listed in the sources referred footnotes 19 and 20. 25 The UNEP website http://www.unep.org/climatechange/ lists the following thematic areas under mitigation: agriculture, forest, energy, manufacturing, transport, tourism, buildings, waste - but for many poor developing countries, for example, law and policy on agriculture will have to focus on the adaptation of food systems and food security.


14 | P a g e

Bespoke climate legislation can address the overlaps between mitigation and adaptation at an early stage

and establish priorities for law and policy makers. But in order to carry out a comprehensive review of the

regulatory frameworks and, on that basis, decide on necessary modifications and additions a clear

methodology to identify laws and regulations that govern responses to climate change is – in any case –

crucial. A study for the meeting of law ministers and attorneys-general of small Commonwealth

jurisdictions in October 2016 does so by distinguishing between direct and indirect legal intersections.26

Direct intersections are national laws that explicitly address climate change policy (e.g. climate targets or

renewable energy regulation) or take into account climate change within a separate legal framework (e.g.

transport or planning). Indirect intersections are laws with significant impacts on mitigation and

adaptation goals whilst pursuing a different regulatory function (e.g. land management). Other

methodologies may be structured to reflect countries’ NDCs, constitutional principles and mandates,

political priorities or high impact areas.

V. POSSIBLE APPROACHES TO SUPPORT DEVELOPING COUNTRIES

The rapid entry into force of the Paris Agreement increases the urgency for supporting developing

countries in their legislative efforts to respond to climate change and implement their commitments

under the Paris Agreement. This section of the paper outlines some possible approaches and strategies.

These approaches and strategies address different gaps and needs, are not mutually exclusive and their

suitability also depends on the opportunities and entry points for regulatory intervention in different

jurisdictions, the wider governance framework and societal discourse. To the extent possible, this section

also tries to capture the various contributions, ideas and suggestions made by participants during the

different climate legislation meetings in London.

26 Eloise Scotford & Stephen Minas, Climate change and national laws, paper by the Commonwealth Secretariat, London, October 2016.


15 | P a g e

A brief survey

The initial panel discussion on 27 September 2016 brought together development organisations, donor

agencies, the legal profession and the many representatives of foreign missions based in London. During

the event, they were invited to respond to some questions online. The non-representative survey results

were as follows:

Which approach should the international community focus on to support countries in developing new

legislation?

Based on 31 “votes”:

National capacity building 71% Provision of external experts/expertise 16%

Direct financial support 13% International initiatives 0%

What are the greatest challenges to developing domestic climate legislation?

36 participants selected 2 issues each – some only one:

Lack of political buy-in 75% Fragmented domestic legislation 42%

Lack of expertise 39% Complex international framework 25%

a) Model laws

To assist governments in translating international commitments (whether they relate to organised crime,

money laundering, intellectual property rights or trade) into national law model laws are a standard tool

of technical assistance. This includes various model laws for the implementation of MEAs such as the

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the CBD or

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

The model laws usually aim to facilitate the review and amendment of existing legislation as well as the

adoption of new legislation. In general, they are designed around the provisions in the international

instrument that its parties are expected to transpose into domestic legislation and aim to be easily

adaptable to the needs of different jurisdictions.


16 | P a g e

Similarly, a model law on climate change could provide non-prescriptive elements that countries can pick

and choose between to suit their national circumstances. 27 This may, for example, include general

objectives, options for institutional arrangements and guidance on how to address climate change across

different subject areas. A broad framework model would help to fill gaps in existing domestic expertise

and provide a starting point for further discussions. Thematic issues (such as agriculture, early warning

systems or land and waste management) could be listed on an exemplary basis to illustrate different

legislative techniques, approaches or mechanisms. It, however, appears difficult to go significantly beyond

such a broad outline of potential elements. Climate change affects a wide range of regulatory areas and

the appropriate responses will depend on a country’s legal traditions and social, economic, cultural and

geographical conditions. The development of detailed templates and provisions which would provide

meaningful guidance to law makers in different jurisdictions seems challenging.

b) Information sharing

There is an ever-growing body of climate and climate relevant legislation world-wide. This includes

comprehensive framework acts and new or updated and revised sectoral legislation which usually reflects

a mix of different legal techniques (e.g. command and control approaches and economic incentives).

Examples from other jurisdictions can provide useful inspiration and guidance for climate law and policy

makers. The Grantham Research Institute on Climate Change and the Environment at LSE and the Sabin

Centre for Climate Change Law at Columbia Law School, therefore, maintain a comprehensive database

of climate change relevant laws and policies that can be searched according to broad categories, countries

and regions.28

Due to the lack of domestic legal expertise, however, it is at times not unusual in developing countries to

transplant a law from one country to the next. In practice, this rarely works. Laws that simply replicate

existing approaches and/or were drawn up by foreign experts often sit on the statute books and have

little impact on the ground. In most cases, a tailored method, reflecting the specific needs, circumstances

27 Possible elements for a climate change model law are available at http://www.unep.org/delc/Portals/119/events/elements-model-legislation.pdf 28 See http://www.lse.ac.uk/GranthamInstitute/legislation/the-global-climate-legislation-database/ There are also other sources such as UN Food and Agriculture Organisation’s (FAO) database at http://www.fao.org/faolex/en/ or the Legal Atlas at http://www.legal-atlas.net/.

http://www.lse.ac.uk/GranthamInstitute/legislation/the-global-climate-legislation-database/

http://www.fao.org/faolex/en/


17 | P a g e

and legislative processes of a jurisdiction is needed. For this purpose, reliable information on good

practices, risks and opportunity and further analysis of failed and successful initiatives in different

countries should be widely accessible and easy to use. A meaningful and transparent dialogue between

national decision makers and stakeholders through round tables and other information sharing events at

the domestic and international level are also important.

c) Further tools

To facilitate the process of implementing NDCs and catalysing legislative action on climate change, UNEP,

the Commonwealth Secretariat and other organisations are working towards creating further instruments

to support developing countries. A possible set of different support measures could combine the existing

databases on laws and regulations, with evidence on lessons learnt and good practice. In addition, an

online platform could provide further information on methodologies to map the existing regulatory

landscape, establish priorities for legal action and outline regulatory techniques. It could offer a checklist

for NDC implementation and serve as a general knowledge hub on work being undertaken and expertise

available.29 From a user perspective, the tool should provide a clear overview on possible options and

approaches and allow a legal drafter or decision-maker to quickly access relevant precedent, examples

and good practice to inform and inspire her/his assessments of what is adequate and would work

nationally.

There may, however, be limitations to the scope and extent to which civil servants in different jurisdictions

would actively research electronically available materials and what even a very user-friendly online

platform can realistically accomplish. To meet demand effectively it might be necessary to add, depending

on the available resources, a human interface or help-desk function that deals with the initial research

and, on that basis, prepares tailor-made solutions for executive decision. This could be done by legal

experts or researchers associated with a government department, a national university, other academic

institutions or regional knowledge hubs. In addition, large private sector law firms increasingly encourage

pro bono activities by their lawyers. To make some of their expertise and experience (e.g. in revising,

29 Steven Malby, Consultation on development of a law and climate change tool, 1-2 December 2016, Marlborough House, Meeting summary report.


18 | P a g e

structuring or drafting legal text) available for free to developing countries for free, UNEP has recently

entered into a Memorandum of Understanding with the UK based Legal Response Initiative.30

d) Capacity building

Leadership by lawyers who have been trained in a relevant jurisdiction and are familiar with the wider

legal and societal environment appears crucial to secure a degree of national ownership and

implementation of new legislation in practice. A lack of domestic legal expertise (e.g. lawyers who can

review and revise a set of complex rules in different areas) may, therefore, hinder the development of

adequate legislation on climate change and NDC implementation. Existing gaps could be addressed

through structured capacity building initiatives, possibly in tandem with the approaches outlined above.

Specialist training components on legislative drafting, including a technical examination of the relevant

legal and political framework as well as the Paris Agreement and its emerging rulebook, could be offered

to government lawyers and other future drafters of climate change law.31 Different areas of law also

involve different methodologies for drafting. Tailor-made training should, therefore, be offered to future

drafters of climate change legislation.

The existing domestic law in developing countries already addresses many facets of climate change. But

in order to respond comprehensively to a wide range of adverse impacts and meet commitments under

the Paris Agreement, these rules and regulations will need to be reviewed and brought up to date. In this

connection, lawyers and officials from different departments (e.g. the ministry of environment and

attorney general’s office) will have to collaborate and should meet in ministerial round tables or with non-

government stakeholders (the industry, farmers etc.) to discuss, revise and supplement the existing

normative framework. This may provide ample opportunities for practical hands on training, mentorship

schemes, “South-South” learning and enhance relevant legal expertise in a sustainable and durable

30 Requests for legal advice can be send to [email protected] They are allocated to an expert with the relevant expertise who will provide her/his legal opinion, analysis or draft text within an agreed timeline pro bono. The advice is peer-reviewed before it is forwarded to the beneficiary. 31 The Sir William Dale Centre for Legislative Studies at the Institute for Advanced Legal Studies (IALS) in London offers legislative drafting courses. Further information is available at: http://ials.sas.ac.uk/study/courses/legislative-drafting-course.

mailto:[email protected]


19 | P a g e

manner. External support may focus on local champions (e.g. senior officials), flagship countries, take a

regional approach and/or promote cooperation around specific subject areas (food, water, land use etc.).

e) Approaches “outside the box”

Analysing and updating law from a climate change perspective is a comparatively recent challenge for law

and policy makers. There is little precedent and as a result of the diverse and almost all-encompassing

nature of the task there may be an opportunity to develop new and innovative approaches and strategies.

The Access Initiative (TAI), for example, was established to improve access to information, public

participation and access to justice in decisions affecting the environment and pioneered a set of indicators

to review the quality and implementation of the relevant legal framework. The assessments were carried

out by national coalitions of civil society organisations whose assessment have led to legal reforms

improving environmental decision making processes or introducing new freedom of information laws.32

A similar “state of affairs” assessment could also be carried out - in a less formalised but speedier manner

– by teams of experts and practitioners from government, local universities, NGOs and the private sector.

Their initial analysis could lead to a priority list, plans of action and specific request for capacity building,

national participation and consultation processes or other support. In many developing countries, people

still rely heavily on the immediate environment for their livelihoods and are, therefore, particularly

vulnerable to the adverse effects of climate change. Their meaningful integration in “bottom- up” law

making approaches would help to generate fair and equitable outcomes, in particular in relation to

necessary climate change adaptation measures.33 Awareness raising for climate change impacts and

possible response strategies could be combined with legal empowerment and a discourse that will feed

into the review and development of legislation.

Led by the national chapter of the Pan African Climate Justice Alliance (PACJA) a stakeholder consultation

process on climate legislation is currently being undertaken in Cameroon. Through a combination of

interviews, surveys, focus group discussions and community consultations the initiatives seeks to

32 See http://www.accessinitiative.org/ or http://www.wri.org/our-work/project/access-initiative-tai for further information. 33 Re. “bottom-up” approaches see e.g. the Commission on Legal Empowerment of the Poor, Making the law work for everyone, UN Development Programme, New York, 2008.

http://www.accessinitiative.org/

http://www.wri.org/our-work/project/access-initiative-tai


20 | P a g e

determine legislative priorities for climate change adaptation in Cameroon. Based on the findings, an in-

country (round-table) dialogue between government, lawyers and civil society stakeholders will be

organised in early next year (2018) to identify and shape concrete legislative initiatives. If successful, the

approach involving elements of action research, awareness raising, peer learning and capacity building

can be easily replicated in other jurisdictions.

As a result of a comprehensive “bottom-up” process it is more likely that informal normative systems,

conflict resolution mechanisms and value systems are utilised and ultimately benefit a government’s

legislative efforts and facilitate subsequent implementation.34 A demand oriented and community driven

approach which values the perspectives of affected communities, the poor and marginalized, women,

youth, and ethnic minorities would also help to meet the expectations of Art.7 para.5 Paris Agreement.35

While legislative initiatives need to engage in a meaningful way with the reality on the ground and the

wider cultural and socio-economic context of a jurisdiction, stakeholder consultations tend to be resource

intensive and time-consuming. A variety of actors - potentially ranging from business to indigenous

peoples’ groups - may require different approaches and processes, materials and language should be

easily accessible to different audiences, and there is often the need for upfront awareness raising and

capacity building.

To verify good practice and minimum requirements in the light of different national circumstances

governments may refer to work under the Aarhus Convention, Principle 10 of the Rio Declaration or by

the UNFCCC.36 But since the actual global average temperature increase remains uncertain (and

consequently so do the concrete impacts on different regions of the world) no consultation process can

be perfect. In the climate change context, stakeholder participation should, therefore, rather be perceived

as part of a continuous risk assessment with gradual adjustments (depending on the best available

34 Benjamin van Rooij, Bringing Justice to the Poor, Bottom-up Legal Development Cooperation, Hague Journal on the Rule of Law, Volume 4, Issue 2, June 2012. 35 I.e. that adaptation action should follow a “gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems”. 36 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, adopted in the Danish city of Aarhus, 1998; Principle 10 of the Declaration on Environment and Development, Rio de Janeiro, 1992; Decision 11/CP.8, New Delhi Work Programme on Article 6 of the Convention, 2002.


21 | P a g e

scientific evidence) and substantive improvements over time. The resulting legislation will require

additional, built in flexibility to accommodate different scenarios.

VI. CONCLUSIONS AND RECOMMENDATIONS

Legislative interventions are an important tool to implement the Paris Agreement and the NDCs at the

national level. However, “parachuting in” experts or ready-made templates from other jurisdictions to

support law making and review in developing countries rarely works. In general, national ownership of a

law making process is crucial and likely to ensure that laws do not end up “sitting on the shelves”. While

existing approaches, components and good practice examples may provide useful guidance for bespoke

overarching climate framework and - probably to a lesser extent - mitigation focused legislation, in

connection with climate change adaption, participatory bottom-up processes appear to be of particular

importance.

Additional analysis and research on the possible methodologies and approaches to review and “climate

proof” legislation in these areas would be useful. Existing legal and institutional frameworks should be

assessed in a comprehensive manner and – to the extent possible and in particular where they have

proved effective – be adjusted to integrate climate change. In addition, South-South learning, capacity

building for legal drafters and wider stakeholder engagement are important steps towards an enabling

environment for good climate relevant legislation. Public awareness raising and participatory decision-

making frameworks that reflect the local context can help to balance climate change objectives with other

societal and environmental concerns and enhance the capacity of civil society to engage in law reform

processes.

To support domestic legislative action for the implementation of NDCs and the Paris Agreement,

governments could launch a new initiative at the UNFCCC level. The Conference of Parties could decide

to take further steps to put the Paris Agreement into operation and provide financial and institutional

resources to build the necessary domestic capacity. The effective implementation of the agreement,

subsequent to its entry into force, is a great challenge and all parties will need to work together to ensure

that it meets the hopes and expectations associated with its adoption in 2015.


22 | P a g e

At the national level, governments could initiate a law review and development process, and establish

safeguards to ensure inclusiveness, participation and equitable outcomes. External funders need to

carefully coordinate their interventions and initiatives with the relevant government authorities. Ideally,

support should be provided on a long-term, sustainable basis to cover the complete law making process.

Donors and beneficiaries should also work together to mainstream climate change concerns across law

and governance programmes and adopt a strategic and scalable approach to assistance.

This document is an output from a project commissioned through the Climate and Development

Knowledge Network (CDKN). CDKN is a programme funded by the UK Department for International

Development (DFID) and the Netherlands Directorate-General for International Cooperation (DGIS) for

the benefit of developing countries. The views expressed and information contained in it are not

necessarily those of or endorsed by DFID, DGIS or the entities managing the delivery of the Climate and

Development Knowledge Network, which can accept no responsibility or liability for such views,

completeness or accuracy of the information or for any reliance placed on them.

climate law and governance working paper series · 2018-08-28 · climate law and governance...

Documents