Tag Archives: environmental law

Sharing the passion to change the world – empowering students to curb climate change

 

 

 

A discussion with the Programme Coordinator of the MDP in Environmental Policy and Law, Tuomas Palosaari, by Mari Moilanen

“The decisions we make today are critical in ensuring a safe and sustainable world for everyone, both now and in the future. The next few years are probably the most important in our history”, said Debra Roberts, Co-Chair of IPCC Working Group II, in the press release of the world’s most significant climate report in October, 2018.

In the aftermath, the coordinator of the MDP in Environmental Policy and Law, Tuomas Palosaari, describes the skills that the MDP students develop during their studies to act for a better future.

What do you do, Tuomas?

I’m a lecturer as well as the Coordinator of the Master’s degree programme in Environmental Policy and Law. I take care of many kinds of tasks related to planning, admission, student counselling and lecturing.

I’m also a graduate from the same programme. During my Bachelor’s studies in Finnish environmental law I got more and more interested in global aspects, so I applied to this programme since it fit perfectly my interests and ambitions. And now I’m continuing that path as the coordinator, while at the same time planning my PhD on international environmental law.

What are you passionate about in your field?

I’m interested in the big picture: what is the state of international environmental law, why is it as it is, and where are we going? Climate change plays a central role in every environmental discussion today, making it a natural focus for me. Although I’m from the inland of Finland, I’m also very interested in maritime law. The high seas are kind of a wild west: full of possibilities as well as global risks.

Climate change is a prominent part of the studies – how does it show in practice?

Climate change is interlinked with practically all environmental issues we face today – from biodiversity loss to ozone depletion and air pollution. We offer a variety of courses directly or indirectly related to climate change. We have a specific course on climate change law and policy, but the topic is also addressed in courses on trade and the environment, international forest policy and law, international water law, and so on. Our staff and visiting experts include several professionals working at the centre stage of global climate action, and that knowledge is a valuable asset to pass to new generations of professionals.

However, climate change is not the only focal area. Students have a lot of freedom in planning their studies, and they can choose to focus on, for example, sustainable development, energy policy, natural resources governance or conflict resolution.

What is the current state of our climate? Why do we need more professionals to facilitate quick and drastic action?

We all know the situation is certainly alarming. The recent IPCC report urged the world to take rapid and far-reaching actions to keep the rise of global temperatures under 1.5 degrees Celsius, or else the natural and human systems will face serious consequences. It’s not a very encouraging report, but it makes it clear that we all need to do more than we are currently doing and be more ambitious.

What kind of thoughts do the students have on climate change issues? How is the international political turmoil reflected in the classroom?

I think that the news we have to read today on climate change and its consequences work as a catalyst for many of our students. For instance, the reactions to Trump’s announcement to withdraw from the Paris agreement have been strong in class and many times students wonder why international laws can’t force the States to do more to curb climate change. There’s frustration but, what’s more important, there’s enthusiasm to change things among our students.

However, it is important to place political developments – from the Trump administration to China’s rise in the world – in their context. Therefore our MDP seeks to provide students with the knowledge they need to understand what the true impacts of such political developments can be, what the ongoing value of international law is, and how other countries, non-state actors and subnational authorities can respond in the face of countries threatening to withdraw.

How does the MDP strive to support students’ personal passion to take concrete action in curbing climate change?

Our students are usually already very motivated when they apply for the programme. However, they may not be aware of all the things that are available to them to contribute.

I think that is our main job: to give the right tools and knowledge for the students to pursue their own interests and make a change: whether it’s in governments, the private sector, civil society or through further academic studies. We encourage discussion and the transfer of ideas, and that is why we have a lot of contact teaching and arrange for interactive discussions in our studies.

What can we do as individuals?

Especially with modern technologies and means of communication, I think it is an outdated way of thinking that individuals do not have an impact, and that we are simply passengers in political turmoil. We can all contribute small parts, like cogs in a big machine. But it requires an understanding of the problems and mastering the knowledge and skills to respond to those problems.

Doughnut Law – Environmental Law for the Anthropocene?

 

 

 

Niko Soininen

Niko Soininen currently works as a Postdoctoral Researcher in Ocean Governance Law at University of Gothenburg and Senior Lecturer in Environmental law and Jurisprudence at UEF Law School/CCEEL. In the fall of 2018, Soininen will start as an Assistant Professor (sustainable law, governance and regulation) at University of Helsinki.

Anthropocene is the scientific term for a geological time-period acknowledging the fundamental human impact on the Earth’s ecosystems. With global impact come questions of planetary boundaries: How much human impact is too much human impact? The Stockholm Resilience Centre’s study on planetary boundaries shows that we are currently well beyond safe nitrogen and phosphorus output levels. Also, biosphere integrity, especially the loss of genetic diversity, poses a high risk for humanity. Climate change and land-use are currently reported as causing increasing risks. At present, freshwater use lacks a quantified planetary boundary but freshwaters are heavily impacted by the above environmental changes. This is a bleak picture, but not all is lost. I spent four months in the spring of 2018 at the University of Maryland Socio-Environmental Synthesis Center as an ASLA-Fulbright visiting scholar studying adaptive governance. In the following, I’ll recap some of the most salient lessons from the adaptive governance scholarship seeking to design effective and legitimate environmental governance for the Anthropocene.

FROM DOUGHNUT ECONOMICS TO DOUGHNUT LAW

With the global economic system being a major driver in pushing the planetary boundaries, Kate Raworth presents an interesting theory for rethinking economics (Doughnut Economics. Seven Ways to Think Like a 21st Century Economist. Chelsea Green Publishing 2017). She makes a compelling argument for moving away from antiquated pictures of steadily climbing economic growth toward doughnut shape economics. The economic doughnut builds on “a pair of concentric rings”. The inner ring depicts the social foundation of human well-being and the outer ring the ecological boundaries of our planet. All human activity must remain within the doughnut’s two rings. With this picture in mind, Raworth asks us to consider “what economic mindset will give us the best chance of getting there?”

The question of getting the economic system to nourish social well-being while respecting planetary boundaries is not only important for economics, but also for law. In a legal context, the question reads: what legal mindset will give us the best chance of getting there? Applying Raworth’s question to law, we enter a familiar territory for adaptive law and governance scholarship. What does doughnut law and governance look like? What kind of law and governance is needed to stay within safe operating space for humanity? Analogically to the doughnut economy questioning existing economic theories, the adaptive law and governance theories question existing legal theories.

FOUR DOUGHNUT-LESSONS FOR LAW

The first doughnut lesson for law and governance in the Anthropocene is to regulate the use and protection of ecosystems at a systemic level (see a good overview, Benson & Craig 2017; Garmestani & Benson 2013). Traditionally, law has turned a blind eye to regulating cumulative human impacts on ecosystems. This is visible, among others, in the fragmentation of environmental management authority into several sectors at all levels of governance (energy, transportation, food production, natural resources, nature conservation etc.). The limitations of sectoral competence are often aggravated by management and regulatory authorities having limited geographical, and often artificial (non-ecosystem-based), competences. Staying within the doughnut, however, requires law and governance that is equipped with competence equivalent to the nature of the environmental problem at hand. Wicked problems such as climate change, nutrient run-offs and biodiversity loss require a systemic cross-sectoral and multi-level approach to law and governance.

The second doughnut lesson is to recognise that managing (what do we do?) and governing (what do we want?) the use and protection of ecosystems needs to be adaptive. As Craig & Ruhl (2014) and Cosens et al. (2017) have repeatedly observed, procedural and substantive rules need to facilitate the consideration of changing social-ecological circumstances. Traditionally, law has often been used to establish predictable rules that operate acontextually and do not allow consideration of changed ecological, social, economic, technological and cultural circumstances. In Finland, this approach is well illustrated in government issued hydropower licenses that are legally protected against revocation, and in certain instances the law does not even allow changes to existing licenses. This picture of the law as guaranteeing predictability and finality faces significant challenges in the Anthropocene as ecosystems and social systems dependent on them are dynamic entities (complex adaptive systems) with immensely complicated functions, feed-back loops and non-linear tipping-points. For this reason, law needs to allow adaptive and experimental management of social ecological systems and be able to adapt its own rules for maintaining human activity within the doughnut.

The third doughnut lesson is based on an understanding that people and companies do not like to be regulated. They may, however, still wish to advance accepted societal goals and may be very well-equipped to do so. The wrong picture is to think that law is the only policy instrument that really works. If we look at climate change mitigation, this is certainly not true. A study done by Vandenberg & Gilligan (2017) shows that companies like Walmart hold significant power to push environmental policy goals through their subcontractor networks. Law (or public governance in general) is not always the most effective way to steer human activities within the doughnut.

The fourth and final doughnut lesson is that law and governance need to be science based (see e.g. Benson & Craig 2017; Saunders et al. 2017). We need constant monitoring of social and ecological systems to understand how they function, have functioned and will be likely to function. Systemic governance is not possible without science, nor is adaptive management or governance.

With the above four lessons in mind, environmental law and governance will be much more equipped to stay within the social-ecological doughnut than ever before. The million-dollar question is, however, whether the international community, regional actors such as the EU and states have the courage and the political will to move towards more adaptive law and governance. While some encouraging regulatory examples are visible on all governance levels, the push-back of antiquated legal mindsets still linger in the air.

The Bonn Climate Conference 2017: Progress on the implementation of the Paris Agreement and higher ambition?

 

 

 

Kati Kulovesi

Professor of International Law & Co-Director of the Centre for Climate, Energy and Environmental Law

THE LATEST round of United Nations climate negotiations concluded on 18 November 2017 in Bonn, Germany. What is the state of international climate policy after the meeting and what lies ahead for 2018 and beyond?

THE NEGOTIATIONS in Bonn were intended to have a mainly technical focus. Major outcomes were neither expected nor achieved. Still, the negotiating agenda was packed with issues ranging from agriculture and gender to indigenous peoples and loss and damage caused by climate change. Also high on the agenda were the main building blocks of the UN climate regime, namely mitigation, adaptation, finance, technology and capacity building.

Photo by IISD/Earth Negotiations Bulletin (http://enb.iisd.org/climate/cop23/enb/images/17nov/3K1A6733.jpg)

 

ONE OF the main issues in Bonn related to the development of detailed rules for implementing the 2015 Paris Agreement. The deadline for concluding these important negotiations is in December 2018. While progress was achieved on some issues, long-standing controversies also surfaced and largely stalled negotiations on the crucial issue of mitigation.

THE PARIS Agreement’s key achievements include that its basic mitigation regime applies to all Parties; the Agreement does not refer to the outdated categories of developed and developing countries in the 1992 UN Framework Convention on Climate Change and gives more consideration to countries’ national circumstances.  However, during negotiations on guidance on Nationally Determined Contributions (NDCs), China, India and their allies in the Like-minded Developing Countries group called for returning to a bifurcated system where different rules apply to developed and developing countries respectively. For many, such a system would constitute a major step backwards and the proposal met strong opposition especially from developed countries. Ultimately, countries forwarded 180 pages of text on mitigation to the next negotiating session in May. The text leaves all the highly divergent options on the table, including by reproducing word-by-word submissions from several countries and coalitions.

HOPEFULLY THE question of bifurcation will not distract the negotiators too much next year. For the question that urgently should take the centre stage in 2018 and beyond is that of ambition. The UN Environment’s 2017 Emissions Gap report indicates that the gap between the emission reductions needed to meet the Paris Agreement’s objectives, including the 2°C 1.5°C targets, and the existing NDCs is “alarmingly high” and “more ambitious NDCs will be necessary by 2020.”

THE PARIS Agreement relies on global stocktakes at five-year intervals from 2023 onwards to increase collective ambition. A similar exercise, a facilitative dialogue, was agreed in Paris for 2018. Now known as the Talanoa Dialogue -inspired by traditions of COP 23 President Fiji – this exercise will be an important opportunity to test the Paris Agreement’s largely procedural approach to mitigation.

THE TALANOA Dialogue will be informed by the Intergovernmental Panel on Climate Change’s Special Report on the 1.5°C target, scheduled for October 2018. Given that countries should submit new or updated NDCs in 2020, the hope is that the IPCC report along with the Talanoa Dialogue will lead to a stronger response to climate science and to more ambitious NDCs.

DIVIDED INTO preparatory and political phases, the Talanoa Dialogue will take place from January to December 2018. It will focus on three main questions: where are we; where do we want to go; and how do we get there. Positive elements in the Dialogue’s design include its comprehensive and participatory nature. Parties, stakeholders and expert institutions are invited to provide analytical and policy-relevant input. They are also invited to organize local, national, regional and global events in support of the Dialogue.

A PROBLEMATIC feature of the Talanoa Dialogue’s design is that there is no clear path forward from the Dialogue towards more ambitious NDCs. The Dialogue’s outputs will include summaries and reports of the discussions. The outcome is also “expected to capture the political momentum, and help Parties to inform the preparation of nationally determined contributions.” However, there seems to be nothing in the design to ensure that ambition will indeed be increased following the Dialogue.

Photo by IISD/Earth Negotiations Bulletin. (http://enb.iisd.org/climate/cop23/enb/images/9nov/3K1A2815.jpg)

HOW, THEN, to start building the momentum for more ambitious climate action?  An obvious challenge for the political climate is that President Trump has announced intentions to withdraw from the Paris Agreement in 2020 and the US federal government is no longer providing global climate leadership like it did during the negotiations for the Paris Agreement, especially through bilateral cooperation with China.

SEVERAL PROCEDURAL steps have already been identified both within inside and outside the UN climate negotiations for the next couple of years. These include:

WHILE IMPORTANT, these steps are not by themselves enough to guarantee that ambition will be increased in 2020. Stakeholders within EU countries and elsewhere should therefore take advantage of the participatory nature of the Talanoa Dialogue and build pressure on politicians to take stronger action both nationally and internationally. An encouraging example of going beyond the official government position is the ‘alternative’ US represented through individual states, cities and other stakeholders. The ‘alternative’ US was highly visible in Bonn and plans to remain active in global climate policy despite the backward position on climate change by the Trump Administration.

THE PARIS Agreement’s legal structure is interesting and innovative in that it includes opportunities to bring various actors at various levels of global governance closer together, including when preparing NDCs and evaluating collective progress through global stocktakes. The Talanoa Dialogue will provide the first important opportunity to test this design and hopefully show that it can actually work in increasing collective mitigation ambition.

More Time for an Energy Revolution? Seizing the Opportunity to Slow Down Climate Change by Cutting Emissions of Short-lived Climate Pollutants

 

 

 

Kati Kulovesi, Yulia Yamineva and Veera Jerkku

View of the South of Delhi by Jean-Etienne Minh-Duy Poirrier (Under Creative Commons License)

THERE IS an important ‘ambition gap’ between the climate change mitigation policies pledged by countries in context of the Paris Agreement and those needed to avoid dangerous climate change. Discussions on ways to step up climate change mitigation efforts commonly focus on ways to reduce carbon dioxide (CO2) emissions. These indeed play a crucial role in long-term climate change mitigation. However, achieving radical cuts in CO2 emissions also requires a fundamental economic and energy transformation that is proving time-consuming to achieve.

OUR ARGUMENT is that short-lived climate pollutants (SLCPs) provide an attractive option that could ‘buy’ more time to cut CO2 emissions. The United Nations Environment Programme has estimated that reducing SLCP emissions, especially methane and black carbon, could slow the rate of global warming by 0.4-0.5°C by 2040 (UNEP, 2011). This is an important contribution given that the existing climate policies have been estimated to limit the global average temperature increase only between 2.9°C and 3.4°C by the end of the century (UNEP, 2016)., thus falling short of the 2°C target in the Paris Agreement.

SLCPS INCLUDE methane, some hydrofluorocarbons (HFCs), tropospheric ozone and black carbon. What unites them is a significant short-term warming effect on the climate. Methane, tropospheric ozone and black carbon cause local air pollution, thereby adversely affecting human health and ecosystems, including by reducing crop yields.

AT THE CCEEL, we have recently launched a new five-year research project known as ClimaSlow (Slowing Down Climate Change: Combining Climate Law and Climate Science to Identify the Best Options to Reduce Emissions of Short-Lived Climate Forcers in Developing Countries). The project is led by Professor Kati Kulovesi and funded through an European Research Council (ERC) Starting Grant for 2017-2021. Other CCEEL members involved in the project are Dr Yulia Yamineva  (Senior Researcher) and Veera Jerkku (PhD candidate).  The project also involves participation by the UEF Aerosol Physics group.

ONE OF the factors driving our interest in SLCPs is that we see them as an interesting opportunity to merge the global climate change agenda with the local health and environmental agendas. Air pollution poses a considerable risk to human health worldwide. It leads to heart and lung failures and cancer, causing approximately 6.5 million deaths each year (WHO, 2016). Through aggressive reductions in black carbon emissions, it would be possible to avoid 2.4 million premature deaths annually by 2030 as a result of reduced exposure to fine particulate matter (UNEP, 2011).

THE GROWTH in SLCP emissions over the next decades is expected to be driven by developing countries. Therefore, in addition to the focus on international and transnational cooperation, the ClimaSlow project looks at three national case studies: China, India and Nepal.

CHINA AND India are among the world’s key sources of black carbon and methane emissions and their emissions of HFCs are also set to rise. Air pollution is also an acute problem in all three countries damaging both public health and the economy. In China, for instance, air pollution is implicated as a leading cause of mortality (UNEP, 2015).  The project will look at the policies and regulations in place in the case study countries, and seek to identify ways to strengthen them through both national and global action. It will also try to identify opportunities for others to learn from the experiences of the three case study countries.

ONE OF the project’s motivations is that the legal and regulatory options to strengthen global action on SLCPs have not been studied comprehensively, and the climate impacts of such options are not yet adequately understood. The ClimaSlow project seeks to fill the vacuum by undertaking an analysis of the fragmented and multi-layered global legal and regulatory framework for SLCPs.

FURTHERMORE, THE ClimaSlow project breaks disciplinary boundaries through combining climate law and climate science. An analysis of legal and regulatory options is complemented by climate modelling work to determine their climate impacts and hence identify the most effective ways to achieve deep reductions in the emissions of SLCPs.

THE PROJECT will seek to maintain an iterative dialogue and share its interim and final findings with a variety of stakeholders including scientists, NGOs and policy-makers both internationally and in the case study countries. This will for instance be done through organising workshops, developing policy briefs and participating in relevant events. The project will also culminate in an interdisciplinary scientific conference in 2022.

YOU CAN stay up to date with project developments through the CCEEL website and Twitter account (@uefcceel), as well as the project’s own Twitter account @ClimaSlowERC.

Nord Stream 2 and EU Energy Law

Kim Talus
Professor of European Economic and Energy Law

 

 

THE NORD Stream 2 project and its predecessor Nord Stream 1 are well-known international pipeline projects. Nord Stream 2 will, when completed, bring gas from Russia to Germany and the offshore section of the pipeline will extend over around 1200 kilometers across the seabed of the Baltic Sea. The route will largely follow that of Nord Stream 1 that become operational in 2011 (first stream) and 2012 (second stream). The 8 billion euro’s pipeline is expected to be operational at 2020.

WITHIN THE EU, the pipeline will cross the exclusive economic zones (EEZ) of Finland and Sweden as well as the EEZ and territorial waters of Denmark and Germany. For Finland, this means that the project requires certain permits and consents from the Finnish authorities. These include the following: (1) a consent pursuant to the Act on the Exclusive Economic Zone of Finland (1058/2004), and (2) a water permit pursuant to the Water Act (578/2011). Furthermore, an environmental impact assessment pursuant to the Environmental Impact Assessment Act (468/1994) must also be carried out.

IN 2015, the Finnish Ministry for Foreign Affaires made a note that Energy Union and Commission interpretation of energy security aspects of the pipeline would somehow be relevant for Finnish permitting process. This is an interesting but incorrect claim.

FIRST, AS a forthcoming study examining the applicability of the EU Third Energy Package, adopted in 2009, to Nord Stream 2 will conclude, the rules laid down in the Third Energy Package, cannot be applied to Nord Stream 2. There are a number of different arguments that support this finding. These include (1) the intent of the EU legislator, (2) the actual content and wording of the law, and (3) current Member State and EU level practice in relation to past and future pipelines.

SECOND, THE jurisdiction of a coastal State is limited by UNCLOS (United Nations Convention on the Law of the Sea). The Finnish EEZ is governed domestically by the Act on the Exclusive Economic Zone of Finland (1058/2004) (hereinafter the ‘Finnish EEZ Act’). Chapter 2 of the Finnish EEZ Act contains a list of Finnish laws that apply to the EEZ. This list does not include the Finnish Natural Gas Market Act (508/2000), which is therefore not applicable in the Finnish EEZ. Since this Act transposes the Gas Market Directive into Finnish law, it follows that the Gas Market Directive does not apply to pipeline projects within the Finnish EEZ. The situation seems to be similar under the Swedish EEZ Act (Lag (1992:1140) om Sveriges ekonomiska zon): the Swedish Natural Gas Act (Naturgaslag (2005:403) is not applicable in the Swedish EEZ. For Denmark, due to the existence of an upstream natural gas sector, the situation is not identical. However, the Danish Natural Gas Supply Act (Lov om naturgasforsyning, which implements relevant parts of TEP into the Danish legal system) provides that transmission networks in the territorial sea or the EEZ that are not connected to the Danish natural gas system are explicitly excluded from the scope of the Act.

(The full article will be published as Kim Talus, ‘Application of EU energy and certain national laws of Baltic Sea countries to Nord Stream 2 pipeline project’, Journal of World Energy Law & Business 10 (2017) 1), in February 2017.)

This post has also been published at CCEEL Blog at CCEEL website.

E-waste Realities and Legal Utopias: Labourers Lost in Translation

Sabaa A. Khan

Postdoctoral researcher, International Environmental Law, PhD

 

“Does the law exist for the purpose of furthering the ambitions of those who have sworn to uphold the law, or is it seriously to be considered as a moral, unifying force, the health and strength of a nation?” James Baldwin. No Name in the Street. 1972.

THE MASSIVE amount of electronic waste that is produced from the global use of digitized commodities is one of the most pressing social and environmental challenges of the 21st century. Global flows of e-waste are particularly problematic for the many developing countries where informal, dangerous e-waste recycling work has proliferated. While providing a poverty alleviation strategy for some of the most marginalized communities in countries such as Ghana and India, informal e-waste recycling work is dangerous, presenting substantial risks to human and environmental health.

Dismantling and smelting at Agbogbloshie. Photo: Sabaa A. Khan

REGULATORY RESPONSES to curtail the pollution emanating from these informal ‘urban mining’ industries are on the rise but the economic and social prospects they carry for informal waste workers are uncertain.

WASTE GOVERNANCE regimes can be entirely ineffective when designed without meaningful consideration of the socioeconomic realities of e-waste recycling. This is evidenced by India’s e-waste law adopted in 2012, despite international human rights concerns linked to its negative impact on the 80,000 people working in India’s informal e-waste recycling sector and their families.

REGRETTABLY IT seems Ghana is pursuing a similar, highly exclusionary legal path.  A look at Ghana’s newly adopted Hazardous and Electronic Waste Control Management Bill (2016) reveals that this ‘sustainable’ e-waste regime lacks any coherent linkage to the existing waste management system, in which 95% of the e-waste generated is collected by the informal sector.

Agbogbloshie e-waste worksite. Photo: Sabaa A. Khan

IN GENERAL, the legal framework maintains the informal e-waste sector in invisible and insecure arrangements along the e-waste value chain. It establishes a State-led e-waste collection and recycling system that is totally delinked from the current reality of the e-waste chain in which e-waste generating households and businesses sell e-waste to informal sector collectors.

EXISTING SOCIAL arrangements surrounding e-waste that involve exchanges between formal and informal actors on local and transnational scales are buried underneath this new, top-down, state-centered legal vision for the social and economic ordering of e-waste management. Rather than incentivizing manufacturers and importers to develop efficient closed-loop systems and foster sustainable relationships with informal waste collectors, the legislation gives the government immense discretion and control over e-waste management. It advocates a state-managed chain from collection to processing, providing no clarity on potential opportunities for the legal recognition of small-scale informal collectors who currently dominate the system.

GHANA’S NEW e-waste law appears to create an imaginary space in which the informal sector simply does not exist. Moreover, it is a space under the strict command of governmental authorities who are empowered to order the “sealing up” of any “area, site or premises” suspected to be a place for hazardous waste disposal. Law enforcement officers are also granted a “power of search, seizure and arrest” over any person or place suspected of keeping or transporting hazardous wastes. Spaces that fall under the scope of these governmental powers include vehicles, lagoons, ponds, landfills, buildings, structures, storage containers and ditches. Evidently, this vaguely configured broad authority further legitimizes the persecution of informal waste collectors who are already subject to constant harassment, hostility and seizure by municipal authorities.

THE NEWLY adopted legislation reflects the State’s distorted vision of what constitutes the e-waste economy. It is entirely removed from the spatial reality of actual e-waste flows and is likely to further drive the informal sector into places of invisibility that are characterized by environmental and social risk. Hence, law as embodied within the new e-waste legislation presents new threats to the livelihood of informal workers, rather than clarifying their engagement as stakeholders in a sustainable e-waste economy.

95 percent of e-waste is collected by the informal sector. Photo: Sabaa A. Khan

IN ESSENCE, the laws of e-waste, at all scales, have originated from an artificial perspective of what constitutes sustainable waste governance, and have thus fostered the invisibility and precarious growth of the informal workforce.

AS TO international environmental law, the evolving dynamics of the Basel Convention show that the Convention works together with the international trade regime to legitimize the e-waste trade.  It does so by retaining its primary focus on removing barriers on transnational movements of used e-products. Global objectives in relation to human health protection remain mostly symbolic and unactionable, trapping the social and labour hardships of the global waste economy within the realm of national sovereignty. The possibility for certain transnational actors to play a role in international waste trading without engaging any form of accountability, and sometimes even preserving their anonymity, inevitably expands opportunities for transnational environmental crime in the global e-waste value chain and facilitates the proliferation of exploitative working conditions within the informal economy.

GHANA HAS certainly taken a critical step forward in introducing national e-waste legislation. However, the social and environmental success of the new law is far from imminent and will entirely depend on how inclusively the new regime will be operationalized with respect to the most marginalized social groups whose livelihoods have come to depend on their participation in the urban waste economy.

This post has also been published at CCEEL Blog at CCEEL website.

Rainforests in the Paris Agreement: Old Wine, New Bottles?

eugenia2Maria Eugenia Recio

Researcher, MPhil, Environmental and Climate Change Law

 

MERELY A year after its adoption, the landmark Paris climate change treaty came into effect on 4 November 2016. Its Parties are currently convening for the first time in Marrakesh, Morocco. These are clearly important steps for the United Nations climate change regime. At the same time, in light of countries’ nationally-determined contributions (NDCs) under the Paris Agreement, it is clear that more ambitious mitigation efforts are needed to achieve the 1.5°C and 2°C temperature goals included in the Agreement.

LARGE FORESTS located in developing countries can play an important role in global climate change mitigation efforts by taking up carbon from the atmosphere and storing it. The Paris Agreement taps into this potential by encouraging countries to implement measures to reduce deforestation and forest degradation, commonly known as “REDD+”. The basic idea behind REDD+ is that developing countries can apply for compensation for the greenhouse gas emissions avoided by protecting and not cutting their standing forests.

BUT DOES the inclusion of REDD+ in the Paris Agreement actually strengthen international efforts with respect to forests? The protection of natural forests through a multilateral, legally binding agreement has been on the international agenda for over two decades. Sovereignty concerns of developing countries were one of the main reasons why such agreement has not materialized. Nevertheless, during ten years of negotiations on REDD+ under the UN Framework Convention on Climate Change, countries have agreed on a variety of detailed rules in the form a dozen decisions by the Convention’s governing body known as the Conference of the Parties (COP).

DECICIONS BY the UNFCCC COP have gradually helped to build trust, allowing developing countries to engage in negotiations that could be considered to be “safer” than negotiations on a legally binding agreement. Following the mention of REDD+ and the existing framework in the Paris Agreement, the collection of decisions taken to protect forests in developing countries is now for the first time anchored in a legally binding agreement.

A LEGALLY binding agreement implies a stronger commitment by countries to comply with its provisions, as it usually requires ratification by national parliaments. However, the legal force of each particular provision in the agreement depends on the language used. Thus, while the Paris Agreement is clearly a legally binding international agreement, it contains both mandatory and non-mandatory language. Notably for forests, countries are merely “encouraged” to take and support REDD+ action; this does not create a legal obligation to implement REDD+.

ALSO THE existing rules for REDD+ adopted by the COP make its implementation completely voluntary. Furthermore, they favour results-based payments, meaning that countries first need to take action on REDD+ before being compensated based on emission reductions. Such an approach excludes the possibility that REDD+ countries take on obligations to reduce forest emissions beforehand.

REGARDLESS OF the largely voluntary nature of the legal framework for REDD+, Parties to the Paris Agreement have taken on a political commitment to support REDD+. This political recognition can arguably give REDD+ a higher profile and boost its implementation, which could result in more funding to address deforestation in developing countries and broader international support.

ANOTHER POSITIVE step is that REDD+ rules relating to transparency require countries to report on emission reductions and on the impacts that activities have on forest communities and the environment (e.g. biological diversity). However, international oversight over such reporting is limited, and the process remains largely in the hands of national governments.

IT IS useful to note here that while the Paris Agreement also establishes a broader framework for transparency and review, it does not change the transparency rules for REDD+ and recognizes that the REDD+ framework is “already developed”. This does not mean, however, that the existing REDD+ rules are cast in stone. On the contrary, the inclusion of REDD+ in the Paris Agreement creates, in my view, a stronger mandate for Parties to make changes to REDD+ rules in the future. This could mean, for example, aligning REDD+ rules with the new transparency framework applicable to the post-2020 climate regime.

FINALLY, THE Paris Agreement also contains elements that can attract participation in REDD+. First, it effectively reassures that REDD+ will continue to be a part of the long-term international climate regime. This offers a positive assurance for those considering to invest in REDD+ in the medium- to long-term.

SECOND, WHILE the relationship between countries’ nationally-determined contributions (NDCs) under the Paris Agreement and REDD+ remains subject to clarification, REDD+ could be part of the toolbox available for countries to achieve their NDCs.

THIRD, FOR countries willing to use markets to finance REDD+, the agreement creates the legal basis for a market mechanism for countries to ostensibly trade emission reductions, although whether and how it will be used for REDD+ implementation remains to be seen.

IN SHORT, the Paris Agreement does make a difference for REDD+ by enhancing political support for REDD+, strengthening the mandate to continue addressing REDD+ through the climate regime, and offering elements that can broaden country participation in the future.

 

This post has also been published at CCEEL Blog at CCEEL website.