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MJSDL at COP22: Can the Paris Agreement endure a Trump Presidency?

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill International Journal of Sustainable Development Law and Policy. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau.

The world met in Marrakech, Morocco, earlier this November to formalize and strengthen international cooperation in the fight against climate change. Members of government, industry, and civil society gathered for COP22, the 22nd Conference of the Parties to the UNFCCC, and a plethora of side events, including an important meeting of the climate law community: Climate Law and Governance Day. This year’s conference did not attract the same global attention as COP21 in Paris, but its work was perhaps even more important: How can we turn the ideals and aspirations of the Paris Agreement into concrete climate action? The agreement’s early entry into force, just days before the conference, was cause for celebration, but this news was quickly eclipsed by the result of the American presidential election on November 8th. The surprise victory of climate-skeptic Donald Trump cast doubt on the viability of the entire UN climate process. We offer some takeaways from Climate Law and Governance Day and discuss how the Paris Agreement might endure a Trump presidency.

Climate Law and Governance Day was organized by the Centre for International Sustainable Development Law (CISDL) and its partners, including the McGill Journal of Sustainable Development Law (MJSDL). We thank the CISDL for welcoming the MJSDL’s COP22 delegates in Marrakech, and for inviting the MJSDL to co-host this year’s essay contest on climate law and governance and the awards ceremony during Climate Law and Governance Day.

The mood in Marrakech in the lead-up to the conference was likely one of cautious optimism. The Paris Agreement entered into force on November 4th, having been ratified by the requisite 55 Parties accounting for over 55% of global greenhouse gas emissions. This milestone was reached earlier than expected, giving greater urgency to the matter of fleshing out the agreement’s rules and procedures. However, this was, as far as problems go, a pretty good one to have. Conference-goers proceeded about their business, but no doubt with an eye on the American presidential election, since a Trump win could potentially raise many more significant obstacles to international cooperation. The outcome was surprising and disappointing to many.

Trump

And so it was that COP22 fell under the pall of Trump’s shocking election victory. It was in this uncertain atmosphere that Climate Law and Governance Day began on November 11th. Legal scholars and students from around the world had travelled to Université Privée de Marrakech to discuss the finer details of the Paris climate framework, but there was no escaping the elephant in the room. Could a Trump presidency undo the progress of Paris?

The first plenary talk of the day was given by Mr. James Cameron (Chair, Overseas Development Institute / Senior Counsel, COP22 Presidency). He made plain his belief that Paris was the way forward and that the work ahead in Marrakech was crucial to its success. Although initially a strong supporter of the top-down approach of the Kyoto Protocol, which imposed mandatory emission cuts, he has since embraced the flexible, bottom-up approach of the Paris Agreement. It has garnered strong international support from a broad coalition of actors and appears to have rectified the problems of earlier UN climate efforts. Now it is just a matter of applying it and, as Mr. Cameron eloquently said, “we [won’t] know how much power we have until we use it.” Indeed, there are reasons to be optimistic that the Paris Agreement will succeed, even with Trump in the White House.

The Paris Agreement represents an end to the deadlock that had previously stifled international action on climate change. Its reliance on voluntary emission reduction targets, the so-called Nationally Determined Contributions (NDCs), marks a significant departure from the binding targets of the Kyoto Protocol. While Kyoto failed to bring the entire global community on board, the Paris Agreement has already earned commitments from all major emitters, including developed and developing countries. As of this writing, 103 Parties have submitted their first NDCs. Although voluntary in nature, these commitments are supported by mandatory transparency and reporting instruments, which allow for the international scrutiny of domestic emission reduction efforts. Moral suasion has thus replaced the hard targets and penalties of Kyoto. This change, coupled with a stronger commitment to financial support for developing countries and an embrace of NGO and industry actors, has allowed Paris to become a truly global agreement. However, non-state actors are increasingly taking the lead in climate action, allowing the Paris Agreement to transcend the purely state-based character of previous UN climate efforts. Companies are increasingly investing in green technologies and the courts are showing new willingness to find liability for climate change damages. It would therefore appear that climate action is becoming inevitable – even profitable – for countries to pursue.

COP22

President-elect Trump, the businessman, may well appreciate the financial benefits of climate action. He also likely appreciates the security implications of failing to avoid dangerous climate warming. Trump has also shown a willingness to heed expert advice and international opinion. Indeed, some recent conciliatory statements suggest that he will abandon his more extreme election promises, including a promise to “cancel” the Paris Agreement. If, however, he does not, and he surrounds himself with climate change deniers, then the global community will need to protest and cajole his administration until it behaves reasonably. Most of the world is united in its conviction to uphold and implement the Paris Agreement, and one holdout – however powerful – will not sway it otherwise. On the last day of COP22, Parties released the Marrakech Action Proclamation, declaring that “this momentum is irreversible.” Trump is not mentioned by name, but the message was clear.

Climate Law and Governance Day was a prime example of how politicians, scientists, activists, and jurists have all rallied behind the Paris process. Undoubtedly there was a sense of the great task ahead of us, but there was also optimism and excitement. The Paris Agreement will likely succeed if domestic legislators work to implement sound climate policies and if lawyers continue to press for climate justice. Honorable Cecilia Ogwal (Member of Parliament and Delegate of the Ugandan Delegation to COP22) put it succinctly in her passionate call for climate justice and domestic action at the day’s event: “I’m on fire!” Despite the apparent setback of Trump’s election, thousands of people left Marrakech with that same passion to fight for concrete climate action – and that is an inspiring thought.

Beyond Carbon Pricing

Patrick Kanopoulos is a first year law student at McGill University. He holds two degrees in engineering from the University of Toronto and is an associate editor for the McGill International Journal of Sustainable Development Law and Policy.

With the recent unveiling of the Liberal government’s pan-Canadian carbon pricing strategy, and the continuing implementation of cap-and-trade programs in Quebec and Ontario, a price on carbon is a hotly debated issue in Canadian politics. But a price on carbon, modest or significant, will not alone bring about the changes to the Canadian energy and transportation market that will result in net zero emissions of greenhouse gasses (GHGs). Systematic and structural changes are required to the Canadian energy system and broader economy to facilitate a rapid transition to a meaningful reduction in GHG emissions. I argue that the full resources of the state should be mobilized to solve the urgent challenge of climate change.

Why is carbon pricing alone insufficient?

Carbon pricing (or more accurately, greenhouse gas pricing), places a price on the emission of GHGs. Under the federal government’s plan, provinces will be required to do this using one of two methods: through a tax on emissions or through a cap-and-trade program. Under cap-and-trade systems, provinces would put an upper limit on carbon emissions for specific types of emitters (the “cap”), and industries emitting below the cap will then be able to sell their unused carbon allocation to emitters who are emitting above the limit (the “trade”). In brief, it is a market-based solution to incentivizing energy efficiency in energy intensive industries, and innovation in industries where emission of GHGs is part of the industrial or energy producing process. Whereas a cap-and-trade system implies tradeable ‘credits’, the carbon tax functions exactly as it sounds – a tax for each tonne of carbon (or GHG equivalent) released into the atmosphere.

Both approaches incentivise energy efficiency on the one hand (finding savings on energy) and innovation on the other (sequestering or eliminating GHG production as part of an industrial or energy generating process). These changes, however, are implemented by market agents who are capable of altering their own behaviour, but not the fundamental infrastructure and processes that underlie our current carbon-based energy, transportation, and industrial systems. For instance, a cost incentive might induce a business to install heat pumps and better insulation to reduce its carbon emission from methane as a source of heat, but it will not eliminate the use of methane as a heating source altogether. In other words, the changes are incremental. On the innovation side, a cost incentive might induce a cement manufacturer to embrace a carbon sequestration technology to eliminate the heavy emissions that result from its manufacturing process. However, this presupposes that such an effective system already exists. It is unlikely – and difficult – for the plant operator to find the optimal approach to sequestering carbon, and to do so in such a way that its long term containment is ensured. Therefore this technological barrier, which requires prohibitively high capital investment to overcome, places a limitation on how the cement producer can act, with or without the imposition of a carbon price.

Systematic Change
The cement producer above is one of many examples where an individual market agent may find it more reasonable to accept the price of emitting carbon than to undertake a massive technological research project at their own capital expenditure, with no certainty of success (let alone an attractive return on their investment). A large energy producer, aiming to transition from carbon-based energy generation to one of renewable energy might find an insurmountable technical challenge in meeting demand under the inherent variability of renewable energy. Absent an economically and technically feasible energy storage solution, the generator is unlikely to undertake an uncertain investment in research for an energy storage system on its own.

While a properly designed cap-and-trade system might make environmentally friendly decisions more attractive, they will generally do so in a marginal, or an incremental sense. It is the responsibility of the state to undertake the massive investment in science and technology which will add to the certainty of employing new technology in both the public and private sectors. Investment in this type of research, while present, is lacking both in terms of proportion and urgency.

An effective research program would have to be far greater, both in terms of finances allocated and scientific breadth, than what the Canadian government is currently allocating to the problem of sustainable energy. While the Europeans have made greater efforts towards large scale research projects, it would be imprudent to assume that European solutions to sustainable energy will be universally deployable in Canadian settings. The geography, climate, and urban fabric of Canada and its largest cities are substantially different from those of our European counterparts. Remote arctic settlements might be amenable to enhanced geothermal energy production, but the weaker thermal gradients in southern Canada may likely render this technology inefficient. Where the Western provinces might be able to profit from their geographic terrain in storing water at higher altitudes for energy storage, similar methods are not possible across the rest of Canada, and other technologies will have to be developed. Tidal energy generation might be effective on the East Coast, but nowhere else. In other words, the diversity of Canada’s climate and geography demand equally diverse approaches to energy production, storage, and transmission. Nationally and provincially funded research projects should take this level of diversity into account to design research goals around these various constraints. Where appropriate, the government should partner with industry to develop and test new technology, while simultaneously providing incentives and insurance for industrial partners who chose to participate in the deployment of new and state-of-the-art technology.

While carbon taxation and cap-and-trade programs may provide incentives to companies to make welcome improvements to their emission heavy processes, it would be disingenuous to presume that these schemes alone will produce the desired emissions reductions to which Canada has committed. Now that the federal government has left it to each province to design and implement its own carbon pricing system, it is incumbent upon the federal government to develop a national energy research program which will genuinely address Canada’s energy needs in a post-carbon energy market. It is not at all clear what such a market will look like, and there is great urgency in addressing this task and creating a national vision. The Manhattan Project and the American Space Program are two examples where the full resources of the state were mobilized to solve urgent and difficult scientific challenges, and did so successfully. The existential threat of climate change provides an arguably more important motive than either of these two projects. The present climate crisis is one situation which demands that Canada, along with its international partners, deploy a similar magnitude of resources to address the strategic and moral imperatives of facing climate change directly.

By U.S. Army Corps of Engineers from USA - Hartwell Dam Spillway Release - July 9, 2013 Uploaded by Albert Herring, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=29552193

By U.S. Army Corps of Engineers from USA – Hartwell Dam Spillway Release – July 9, 2013 Uploaded by Albert Herring, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=29552193

By Kim Hansen - Middelgrunden offshore wind farm (40 MW) observed in Øresund - 1 July 2009, https://commons.wikimedia.org/wiki/File:Middelgrunden_wind_farm_2009-07-01_edit_filtered.jpg#file

By Kim Hansen – Middelgrunden offshore wind farm (40 MW) observed in Øresund – 1 July 2009, https://commons.wikimedia.org/wiki/File:Middelgrunden_wind_farm_2009-07-01_edit_filtered.jpg#file

A Lifetime of Higher Costs: Trudeau Carbon Plan Good for Nobody but Lawyers

Ghaith Hannibal El-Mohtar is a 3L student at McGill’s Faculty of Law, and Editor-in-Chief of the JSDLP. An earlier draft of this post appeared in the Quid Novi, the student paper at McGill’s Faculty of Law.

Attribution: Kelly DeLay, Cloud over hay.

Attribution: Kelly DeLay, Cloud over hay.

An effective carbon pricing regime should be simple, predictable, and clear. It is unfortunate, then, that the government’s plan for Canadian carbon pricing will be so needlessly complex as to cause a lifetime of unnecessary costs for consumers and businesses.

Trudeau will allow the provinces to each create a local emissions-pricing regime rather than one national plan under the federal government.

This will bring the serious problem of distinct carbon pricing standards and markets across the country. Some differences will be so drastic that even doing business between provinces will be as onerous as dealing with foreign carbon regimes.

For example Ontario and Quebec joined the same Western Climate Initiative cap-and-trade market, yet their reporting requirements, emissions audit and penalty regimes are different. Ontario counts emissions from imported energy to determine who is a “Mandatory Participant” under s. 9(3) of Ontario’s An Act Respecting Greenhouse Gas, while Quebec makes an exception for partner jurisdictions under Quebec’s Environmental Quality Act, specifically its Regulation respecting a cap-and-trade system for greenhouse gas emission allowances s. 2(1). The maximum non-compliance penalty in Ontario is $10 million for corporations and 5 years in prison for individuals, whereas Quebec’s maximum sanction is $3 million and 18 months (at 48, 75(1)–(3) respectively).

Other differences in requirements, categories and definitions and even systems abound. British Columbia and Alberta do not use cap-and-trade but rather a carbon tax ($30/ton in B.C., $10 in Alberta). A business with uniform emissions across Canada would as a result need to budget in advance for carbon credits in central Canada while annually retaining accounting staff in western Canada to report the same pollution.

Permitting dissimilar regimes also multiplies litigation. Companies on the margins will sue for exemption as taxed-emitters where it is profitable to do so. Instead of a singular federal regime where each individual issue will end in a single line of jurisprudence for Canada as a whole, the Supreme Court will have to troubleshoot every province’s problems one at a time because of provincial peculiarities in rates, status-categories and in pricing mechanisms.

With up to ten different regimes, this will lead to years of inconclusive and possibly contradictory judgments from different provincial courts of appeal—not counting hanging inconsistencies within provinces—as to which companies pay under each regime and which don’t.

This assumes the best case scenario where all provinces comply. If even one province refuses to implement carbon pricing, as Saskatchewan and Nova Scotia appear likely to do, the federal government will need to step in and tax the province unilaterally. This means even a regional business like Safeway would need to deal with red tape from Victoria, Edmonton, and Regina or even Ottawa just to comply with Canada’s carbon pricing models.

At its most extreme, we would have unharmonized cap-and-trade in central Canada, differing carbon taxes in western Canada, and a temporary federal system to patch the holes in between. By then Canada will be well on its way to having perhaps the most byzantine carbon pricing model among developed Parties to the Paris Agreement, while domestic and foreign investors wonder what kind of country it is they are doing business with.

Attribution: Thomas Hawk, Lifetime.

Attribution: Thomas Hawk, Lifetime.

For context, the federal government under section 91(3) of The Constitution Act 1867 has a clear power of unlimited taxation. Unlike healthcare or education, implementing a carbon pricing plan in Canada requires zero provincial collaboration. None of this confusion is necessary.

The government bills its leadership from behind as an olive branch of cooperative federalism. In reality, it is a dereliction of leadership that will cost businesses and taxpayers extra money, allow lawyers to pad their pockets, and result in needlessly painful carbon pricing that is more vulnerable to climate reactionaries and populist backlash.

After a decade of fighting for carbon pricing, the last thing the Liberals—and this country—need is an ineffective carbon plan that gets repealed by the next government to avoid decades of unnecessary, unpopular costs. Trudeau needs to choose and commit to one carbon pricing regime for Canada before it’s too late, or we’ll all be paying for it for the many decades we are sure to spend battling climate change. All except lawyers, that is.

“Sunny Ways” and the Climate Change Problem: Has Trudeau lived up to Progressive Expectations?

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill International Journal of Sustainable Development Law and Policy. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau.  

Climate change and sustainable development have been hot topics in Justin Trudeau’s Canada. The Trudeau Liberal Government has made great effort to appear environmentally conscious and socially progressive compared to its Conservative predecessor, having promised to restore lost environmental protections and tackle climate change. The “sunny ways” rhetoric has proved convincing here at home, and Trudeau has succeeded in projecting the same message abroad. “Canada,” as he famously said, “is back.” But back to what, and from where? If Stephan Harper’s Conservative Government is the guidepost, then we have clearly shifted left as a country in rhetoric and attitude, if not yet in action. Our country has been held up as a liberal bastion in a world of Trump and Brexit; of nativism and populism; of climate change denialism and walls both intellectual and physical. Trudeau’s election was heralded as a return to the kind, principled, and I dare say progressive country that many think Canada was and ought to be. But how real has this change been? Has the “sunny ways” rhetoric been more than hot air? And can the Liberal Party be considered liberal or progressive in light of their policy decisions? An examination of the Trudeau Government’s progress on climate change and sustainable development is enough, I will argue, to be skeptical.

It was last fall – October 19th, 2015 – that Trudeau’s Liberals swept into power. The Red Wave brought in 184 Liberal MPs, handing Trudeau a comfortable majority government and ending almost 10 consecutive years of federal Conservative leadership. It was a remarkable comeback for the Liberals and a reversal of fortunes for the NDP, which had enjoyed unprecedented public support since the Orange Wave of 2011. The Liberals outflanked their traditionally left-leaning rivals by promising to a run a deficit and invest in the green economy, making Trudeau the change agent sought by progressives. This was, after all, an election about change – about abandoning Stephan Harper’s conservative vision for Canada – but the election of Canada’s first ever NDP government was not in the cards. We elected the familiar Liberal Party and its familiar leader, Trudeau, with a mandate to make Canada liberal again. The more things change, the more they stay the same.

Prime Minister Trudeau and Environment and Climate Change Minister McKenna at COP21 in Paris

Prime Minister Trudeau and Environment and Climate Change Minister McKenna at COP21 in Paris

A year after its election, the Trudeau Government still enjoys broad support and has done much to improve Canada’s environmental image, both domestically and on the world stage. However, has the change in tone been accompanied by concrete action? The pro-pipeline, Alberta-centric rhetoric of the Harper Conservatives has given way to a more environmentally responsible and diplomatic approach, one ostensibly based on cooperation and consensus-building with the provinces and Indigenous Peoples. The Trudeau Liberals promised to review Canada’s environmental assessment processes and modernize the National Energy Board to help ensure the adequate consideration of climate change impacts and local, regional, and Indigenous concerns before the granting of federal project approval. As Trudeau himself said with reference to the Energy East Pipeline: “Even though governments grant permits, ultimately only communities grant permission.” Consultation work has begun to explore these project review issues, but most energy projects continue apace, without any significant departures from the old Conservative processes. Indeed, one can argue that the diplomatic Liberal rhetoric – seeking environmental legitimacy and social license – may prove more successful in building fossil fuel infrastructure than the brute-force approach preferred by the Harper Conservatives. The Liberal approach has already paid dividends. The rejection of the Northern Gateway Pipeline and the death of the Keystone XL Pipeline gave the Trudeau Liberals political capital with environmentalists, which they proceeded to cash in approving the Site C Dam and the Petronas LNG Project in British Columbia. These controversial projects, if completed, will result in massive increases in greenhouse gas emissions, effectively negating any emission reductions that Liberal policies might achieve elsewhere. The Liberals are also nicely positioned to approve the Kinder Morgan Trans Mountain Pipeline Expansion, and may even find grounds to approve the Energy East Pipeline. The construction of either would lock Canada into decades of tar sands exploitation and amount to a Liberal rejection of climate science. It would almost certainly eliminate any real chance of honouring our international climate commitments.

The Trudeau Government has worked hard to vaunt its support for international climate action, but its grandstanding on the world stage does not reflect its relatively meek climate action at home. Its active role at the Paris Climate Summit in December 2015, just months after its election, is Exhibit A. It derided the Harper government’s emission reduction targets as unambitious and lobbied for the inclusion of the Paris Agreement’s aspirational 1.5°C warming limit, a highly ambitious goal by any account. It was said that the Harper-era climate targets were the “floor” and not the “ceiling” with respect to Canadian climate action, but the Trudeau Government has since contented itself with the “floor.” Environment and Climate Change Minister Catherine McKenna, who made the “floor” comment, announced the Liberals’ intention to stick with the target on September 18th. The NDP and Green Party were quick to denounce the move, arguing that the target is incompatible with the 2°C goal adopted in Paris, let alone the 1.5°C goal. They were similarly harsh in criticising the federal carbon tax plan, announced on October 3rd, which would impose a modest $10/tonne tax on the provinces in 2018, rising to $50/tonne by 2022. This does not go far enough fast enough. Consider, for example, that internal government reports estimate the social cost of carbon at $41/tonne, with more cautious estimates as high as $167/tonne. The Liberal Government also backed away from its election promise to eliminate fossil fuel subsidies, opting instead to lock in LNG subsidies until 2025. The change in tone has been clear, but the Liberal Government’s actions often fail to align with its lofty rhetoric on climate change and sustainable development. The federal carbon tax is a step in the right direction, but a baby step compared to the great strides needed to honour our Paris climate commitments.

At COP21, the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, where world leaders negotiated the Paris Climate Agreement

At COP21, the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change, where world leaders negotiated the Paris Climate Agreement

The Trudeau Liberals have enjoyed a long honeymoon. Their election was celebrated by progressives of all stripes, but the hard work of governing is only just beginning. They will almost certainly break more election promises. They will be forced to reconcile their commitments to tackling climate change and protecting the environment with the demands of Canada’s resource-driven economy. How they choose to balance these interests will not please everybody. That much is obvious. It is the nature of politics. Unfortunately, the political calculation of what is acceptable – of what gets votes – is very different from what needs to be done for the planet. The science clearly says that urgent action is needed to limit the dangerous impacts of climate change. Bold action and strong leadership should be the common international response, but our leaders will not deliver us these things until they become politically expedient to give. The responsibility thus falls on ordinary people – on voters – to demand that their leaders rise to the urgency of the situation, and that together we reject the temptations of populism, nativism, and climate change denialism. We need to work with other countries and accept our responsibility as Canadians, among the largest per capita polluters on Earth, to reduce greenhouse gas emissions. The progressive movement that helped to elect Trudeau demanded this type of action, and it must continue to demand it, because without this kind of pressure there can be no political urgency. The Trudeau Liberals have a popular mandate to take climate action seriously; their decisions regarding climate policy and fossil fuel infrastructure should be judged accordingly.

 

ICSID and Canadian Mining: Justifying and Empowering Colonial Extractive Practices

Sydney Lang is a first year law student and an associate editor with the JSDLP. She recently completed a BA from the University of Toronto in Socio-Cultural Anthropology and Equity Studies. She organizes with the Mining Injustice Solidarity Network.

On October 14, the long awaited verdict of the OceanaGold v El Salvador case was released. The action began in 2009 when Pacific Rim (now OceanaGold) submitted its intention to enter into arbitration with El Salvador after they were denied a permit to mine gold in the country. The case was heard by the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), an arbitration tribunal that resolves international investment disputes. The verdict, released this month, 7 years after the action began, was in favour of El Salvador, awarding the country 8 million dollars for their legal fees and costs.

Although we may be celebrating this win, I question what it actually means to win within this system.

In order to answer this question, we must ask: Why are corporations allowed to sue countries?

The system of investor-state dispute settlements is deeply embedded in thousands of international trade and investment treaties, including NAFTA, CAFTA-DR, and the proposed TPP. In fact, chapters on investor-state disputes in many of these treaties specifically refer arbitration hearings to ICSID. To this date, more than half of the world’s countries have been sued. Most of these cases involve resource extraction, or fall into the category “Oil, Gas and Mining.” A country can be sued if they request that a multinational corporation cease extractive operations or refuse to grant a permit, after an initial agreement has been made or if the government has induced the corporation to believe that they will be granted a permit. El Salvador refused Pac Rim’s a permit to mine as it would threaten to pollute the Lempa river, which contains 60% of the country’s clean water. Through ICSID, a company, such as OceanaGold, can then sue that country for the “loss of potential profits.”

The optics of such cases are that ICSID provides corporations with a quasi-legal arena in which go on the offensive while they concurrently engage in human rights violations, contribute to environmental degradation, and economically threaten the countries in which they operate. Perhaps not surprisingly, ICSID has been accused of lacking transparency in private tribunals. Others have argued that ICSID forces governments to put the interests of corporations over the welfare of their citizens.

We must then ask which countries are targeted within this arbitration system? Unsurprisingly, they are the same countries that have been historically exploited by colonial powers and their investors. Often, these countries are being sued for amounts that extend far beyond their budgets for social services. El Salvador was originally being sued by OceanaGold for $315 million dollars, while they only had a GDP of $23 billion in 2013. El Salvador was being sued for almost three times as much as they receive annually in international aid. Ironically, the World Bank contributes to this international aid, albeit with significant conditions for lending that require countries to adopt neoliberal policies, while simultaneously facilitating extremely unequal trials against the countries that require them.

A similar trajectory of aid and extraction exists within the mining industry. 75% of all mining companies are headquartered in Canada, and most are registered with the Toronto Stock Exchange. However, they often operate abroad. OceanaGold is a Canada-Australian mining company, registered with the TSX. As Canadians, our economy is profiting from this industry. Descendants of white Europeans have and continue to benefit from Canadian mining in the Americas. Historically, extraction was used as a tool and justification of colonization. Europe’s colonization of Africa and the Americas brought forced mining labour, slavery, and the displacement of Indigenous peoples from agricultural land. Violence was enacted and justified for the sake of Western expansion, extraction, and profit. However, these practices and their impacts remain the same and have arguably been strengthened by capitalism and globalization.  Colonization hence continues through Canadian mining practices, and institutions such as ICSID are simply new forms of economic imperialism.

Courtesy of Aidan Macnab, Mining Injustice Solidarity Network

Courtesy of Aidan Macnab, Mining Injustice Solidarity Network

On that note, I’d like to return to my initial question: What does it actually mean to win within this system?

I’d say that it doesn’t mean much. Most often, the costs are significantly higher than the benefits for countries within ICSID. In fact, many countries are actually leaving ICSID, although exact reasons are unclear. The President of Ecuador, Raphael Correa, condemned the institution, stating that leaving was necessary for “the liberation of our countries because [it] signifies colonialism, slavery with respect to transnationals, with respect to Washington, with respect to the World Bank.”

A win within ICSID does not hold a company accountable: either they win, or they lose very little, compared to the countries they’ve brought into arbitration. ICSID was created to protect the interests of foreign investors and investments that almost always flow out of the North and into the South, and where minerals and resources extracted from the South flow right back. There is an inherent power imbalance in investor-state relationships and the free trade agreements that enable them. The structure, terms, and resolutions of ICSID are thus heavily shaped by wealthier, and historically colonial countries, leaving smaller, colonized countries, such as El Salvador, susceptible to the unequal processes and outcomes of this system. ICSID, enabled by free trade agreements, simply empowers mining companies, and as a result, acts as a tool that allows and justifies colonial extractive practices.

The Environment: Responsibility to Protect over Right to Use?

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Rosine est une étudiante de première année en droit à l’Université McGill. Elle détient également un baccalauréat en sciences politiques de McGill lors duquel elle a eu la chance de travailler au sein du projet Dialogue pour un Canada vert, ainsi que pour le Secrétariat de la Convention sur la biodiversité biologique, une branche du programme des Nations Unies pour l’environnement.

Projection : Cylindrical (1)FOV : 176 x 56Ev : 13.85 Panorama (Source : Wikimedia Commons)

Projection : Cylindrical (1)FOV : 176 x 56Ev : 13.85 Panorama (Source : Wikimedia Commons)

En décembre dernier s’est tenue la Conférence de Paris de 2015 sur le climat (COP21). J’écoutais la chaîne radio de CBC lorsque j’ai entendu une discussion à son propos : le présentateur questionnait des experts et des citoyens s’ils étaient optimistes quant à la COP21. La considéraient-ils comme un pas vers un développement plus durable au Canada?

Certains étaient d’avis que la COP21 était un début, mais qu’un effort individuel était aussi nécessaire afin de parvenir à un développement plus durable à l’échelle nationale. D’autres suggéraient que l’action individuelle était malheureusement insuffisante — voire inutile. Ces derniers considéraient que c’était au gouvernement de mettre en place un système encourageant les grands joueurs économiques à changer leur comportement de manière à prendre en compte, entre autres, la réduction des gaz à effet de serre. Ce débat m’a laissé perplexe et a suscité chez moi une réflexion profonde.

Qu’est-ce qui doit ultimement changer pour que nous puissions adopter une trajectoire de développement qui serait durable à long terme? À quel niveau le changement doit-il s’effectuer?

Ce débat se situe à l’intérieur d’un questionnement plus vaste. Selon moi, la discussion par rapport aux changements sociétaux à adopter pour accomplir un développement plus durable s’inscrit dans un cadre conceptuel plus grand : celui des droits et des devoirs (que nous qualifierons aussi de responsabilités).

Some see rights and responsibilities in contexts such as the environment as dichotomous, meaning that from certain things emanate rights, and from other things emanate responsibilities or duties. However, other people see rights and responsibilities as a whole, where when one has a right, an automatic duty follows. Reading Legal Traditions of the World by Patrick Glenn, one is shown that the conception of rights is not the same in all legal traditions. Rights are a concept of social organization (at least in the Western legal traditions he considers, i.e. in the Common and the Civil law). With rights came liberty and the association between those two concepts remains until today (Glenn).

However, this quasi glorification of rights as a vector of liberty is less present in other legal traditions according to Glenn. Indeed, in the Talmudic tradition, what is emphasized is, rather than a concept of individual right, one of obligations, of mitzvah. The Shari’a presents a similar situation. Indeed, there is no word for right in the legal language of this text. This tradition sees rights as “disruptive and unnecessary” (Glenn).

What change, then, is necessary in order to make sustainable development everyone’s responsibility?

First, when looking at the conception of rights in different legal traditions, one can see that the Western tradition is problematic, as it does not put great emphasis on the concept of responsibility and because of the individualistic turn it took, it “fails to take into account our essential humanity” (“Reconceiving Rights as Relationship”, Nedelsky).

Moreover, the struggle ahead of us seems similar to one already encountered; the struggle of voting. Election turn-out has been steadily falling over time. In an open letter to the Ottawa Citizen, Anaïs Voski talks about voting passing from being a privilege one would acquire, to a universal right one has. Some suggest that voting should become compulsory, and others simply encourage people to express their opinions. Regardless of the stance one takes, many people seem to suggest that the ultimate solution to decreasing turn out lies in changing the conception of voting from a privilege to a responsibility.

The environment is the same! As much as voting is a responsibility that comes with the benefits citizenship, environmental protection should be treated likewise. Even the Canadian government suggests that we have citizenship responsibilities, one of which being that “every citizen has a role to play in avoiding waste and pollution while protecting Canada’s natural, cultural and architectural heritage for future generations”.

Taiga Landscape In Canada (Source: Wikimedia Commons)

Taiga Landscape In Canada (Source: Wikimedia Commons)

Ainsi, je suggère que le changement le plus important à accomplir afin de pouvoir aborder le chemin du développement durable au Canada, tout comme ailleurs, est d’envisager la conception de droits et devoirs non comme une dichotomie, mais plutôt comme un tout, une suite logique. Selon cette conception modifiée, les devoirs (par exemple minimiser notre pollution actuelle) découlent des droits d’utiliser l’environnement dans lequel on vit. Ce changement conceptuel nécessite selon moi de relativiser l’importance des droits comme porteurs de liberté et d’insister plutôt sur les droits en tant que générateurs de devoirs et de responsabilités.

Interested in learning more about rights and responsibilities in sustainable development? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

 

Abbotsford v Shantz: Towards positive Charter rights?

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Brendan Cooke is an associate editor with the JSDLP, and a second-year student at McGill Law.

Attribution: Wikimedia Commons, Jay Black, Homeless Man Sleeping on Sidewalk, Vancouver, Canada

Attribution: Wikimedia Commons, Jay Black, Homeless Man Sleeping on Sidewalk, Vancouver, Canada

What rights in law, if any, do homeless persons have to make use of public spaces? And do governments have a duty to ensure the basic necessities of life for homeless persons?

These are the questions that British Columbia Superior Court (BCSC) was recently asked to resolve, in Abbotsford (City) v Shantz, decided last year. The case concerned a group of homeless persons who set up a “tent city” in a public park in Abbotsford, BC, and began to essentially live at the park. This violated a city bylaw, and so the municipal authorities of Abbotsford took action to evict the homeless persons from the park. In response, the Pivot Legal Society and the British Columbia/Yukon Association of Drug War Survivors mounted a challenge based on the Canadian Charter of Rights and Freedoms, asking the BCSC to strike down the bylaw on the grounds of the life and liberty guarantee in section 7 of the Charter.

The response by the Courts was to both give the tent city the right to occupy the public space, and to maintain that the homeless had no positive right to government attention. The BCSC accepted the section 7 arguments laid out by the claimants, but in doing so rhetorically rejected any positive duty incumbent on government to provide basic necessities of life for the homeless. The decision hinged on this particular distinction – the Supreme Court of Canada has repeatedly held that the Charter only applies once the government has become “involved” in some sense, and does not oblige the government to actually act. Any appeal to the Charter, then, has traditionally failed if it argues that the government has a positive obligation to act, as for example the Court stressed in Vriend.

The rhetoric of the Supreme Court notwithstanding, the decision subtly accepts a kind of responsibility incumbent upon government to address homelessness. The judge “accepts that the framers of the Canadian constitution made a deliberate choice not to include property and related economic rights in the Charter” but nonetheless holds that the bylaws interfere with a Charter right to “shelter one’s self when there is no practicable alternative” (paras 176 & 188). To Hinkson J, it is the absence of action on the part of the government which makes the by-law in contravention of the Charter. In other words, a robust homeless shelter network in the City would have avoided the Charter infringement, and the city’s inaction in this regard makes it infringe on the Charter when trying to accomplish something else.

Attribution: Flickr, Michael Coghlan, Parklands Camp

Attribution: Flickr, Michael Coghlan, Parklands Camp

More broadly, Abbotsford is encouraging for those who would like to see Charter rights enforceable against government inaction. The decision tells us that if government is inactive in addressing socioeconomically marginalized groups, it can be held collaterally liable for preventing those groups from taking whatever means necessary in order to secure their rights. Abbotsford relied heavily, for example, upon Carter, where the Supreme Court used the idea of a “fundamentally important personal choice” to carve out a sphere of protected conduct at the end of a person’s life. Abbotsford took this idea into a new context, and in so doing expanded the possibilities for using the notion of “fundamental personal decisions” to protect human life and dignity, especially as regards the basic necessities of life or economic security.

Does this mean that we are moving towards a legally-recognized duty incumbent upon governments to ensure the basic necessities of life, or at least to address homelessness? Admittedly, the BCSC in Abbotsford showed nowhere near the zeal of past Canadian courts when they were enforcing a legally-recognized positive duty on government. In Nova Scotia, for example, the Courts used every ounce of political and legal leverage at their disposal to enforce educational rights for the Francophone minorities, including enforcing and supervising their own remedies. Thus there is still a long way to go before the Courts enforce a positive duty to address homelessness in the way that they currently enforce recognized positive rights in the Charter.

Nonetheless, we ought not minimize the political weight of a court decision in favour of a marginalized group of persons. Although the Court’s offering in Abbotsford was not generous – it allowed the tent city to remain in the city park, but only between 7PM and 9AM – a favourable ruling by a Court is its own blessing. It allows courts to award costs in favour of the claimants, which encourages public-interest litigation, and most importantly calls attention to and enhances the political leverage of the group asking for relief. We should welcome Abbotsford as a tentative step in the right direction.

Interested in learning more about poverty reduction and positive rights? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading.  It should not be taken to imply their authors share the views expressed above. 

 

The Senate as our National House

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Ghaith Hannibal El-Mohtar is a JSDLP Editor in his second year of law.  Follow him on Twitter @HE_Ghaith. 

Attribution: Tony Webster, Senate Chamber, Canadian Parliament Centre Block.

Attribution: Tony Webster, Senate Chamber, Canadian Parliament Centre Block.

“A nation without a vision has no hope.  A nation without a vision has no future. We now embark on this journey together, for the benefit of all people.  Miigwech [thank you].” Chief Elijah Harper, addressing the 1995 Sacred Assembly

Chief Elijah Harper (1949-2013) declared that he could not vote for constitutional change that did nothing for his people, and refused assent to the Meech Lake Accord.  This rejection in Manitoba’s Legislative Assembly became its defeat, and sparked a nationwide debate about Canada’s crimes and failures towards its indigenous peoples.

Years later as a Member of Parliament Chief Harper addressed another assembly, which he himself gathered.  A Sacred Assembly, bringing together Aboriginals and settlers in a spirit of healing and reconciliation. 3,000 people attended the only assembly of this kind in 1995, including Prime Minister Jean Chrétien.

I believe the time has come for an assembly like this in Parliament.  Here I argue that legislative representation for Canada’s Aboriginals should be constitutionally mandated.  I propose repurposing our dysfunctional senate as a starting point to doing so.

A disclaimer: I am not Aboriginal, and though I hope to propose a novel path towards respect and equity for Canada’s Aboriginals I do not speak for them.  I also do not intend their representation in the legislature to integrate sovereign Nations into the settler’s political structure. My intent is rather for this representation to operate in support of existing Nations’ rights to self-governance by remedying, somewhat, the immense power differential between them and settler colonial Canada.

This approach is not unheard of.  The Royal Commission on Aboriginal Peoples recommended an Aboriginal Parliament 20 years ago, a proposal gaining ground today.  New Zealand instituted Māori-only electorates in 1867, so the idea is at least as old as Canada.

Older still is the constitution we share with Aboriginals: the Royal Proclamation 1763 requires a nation-to-nation relationship between indigenous and settlers, and the ensuing Treaty of Niagara 1764 bound both as family in a shared covenant.  Neither was ever repealed and these obligations continue to stand as law.  We remain far from the path to treating Aboriginals as family.  Approached correctly though, I think repurposing the senate will at least bring us closer to the equal political footing that a nation-to-nation relationship requires.

Past governments have failed to maintain this shared constitution, let alone a nation-to-nation relationship.  After equivocating on his election pledge to respect First Nations’ right to a veto over what happens on their lands, the Trudeau government’s roadmap is no more promising.

This is the problem of disjointed political accountability. A nation-to-nation relationship cannot exist where the colonized nation depends on settler charity for respect.  By definition, a nation-to-nation relationship takes equal political rights not as an end but as its starting point.  In today’s asymmetry no dealings come close to such evenness in negotiating positions.  Few of Canada’s First Nations and bands can operate without funding or recognition from a government accountable not to them but to an overwhelmingly non-Aboriginal settler electorate.  This pegs the affirmation of Aboriginal rights to settler sentiment, and subsumes them into the triage of issues the federal government responds to.  The result is denial of rights and the relationship we have today.

This is why the current Liberal pledge of a nation-to-nation relationship is empty until accountability is equitable.  It can yield only more symbolic non-resolution, not a new way forward.

What Canada’s nation-to-nation relationship needs is constitutional change that levels the playing field between settler Canada and indigenous peoples.

We need a National House.  A constitutional mandate to put First Nations, Inuit, and Métis in control of the Senate would create a permanent forum for nation-to-nation dialogue in the spirit of the Sacred Assembly and the Royal Proclamation, and make cabinet accountable to more than the settler filled House of Commons.

This is not to mention the benefits for settlers.  Such a house would return currency to the Senate as a place for debate among our elders rather than patronage and mock aristocracy.  It would also help remedy the false virtue of Canadian multiculturalism, which as settler-colonialism by people of colour is hardly a form of progress.  In addition it would present an opportunity for nation building, and as a young country with an undefined national identity seizing it can only make our country more vibrant and resolute.

Attribution: Jill Watson, Cracked and Feather

Attribution: Jill Watson, Cracked and Feather

Such a change could be done with a constitutional amendment to add, between section 22 and section 23 of the Constitution Act 1867 a section requiring indigenous representation from half of the senators from Western, Central, and Atlantic Canada (51/105) and 2/3 of the senators from the territories to tip the balance.  Appointments should be allowed for any duly elected Indian status or Aboriginal membership holders, so as to include both treaty and non-treaty Aboriginals.  The modalities may differ to the extent they guarantee Canada’s Aboriginals a de facto veto over Parliament’s every bill, and equality within the upper chamber. It should naturally also permit deliberations in indigenous languages to help their revitalization.

A National House should not be the only site of a nation-to-nation relationship.  Many nations, like the Kahnawà:ke Mohawks, have elements that categorically oppose the federal government. Such peoples should retain the right to say that those in Parliament do not speak for them without derogation to their sovereignty.

Keeping the promises of the Royal Proclamation and Treaty of Niagara is no small task.  At the very least, I believe a National House can help us move towards the hope, future and guiding vision that Chief Elijah Harper wanted for this land and its people, and the respect and dialogue that these treaties stand for.

Interested in learning more about indigenous rights? We suggest these selected articles from our past issues: 

These articles are referenced as suggested reading.  It should not be taken to imply their authors share the views expressed above. 

Energy East Pipeline: The Good, the Bad, and the Coderre

This post is a part of the JSDLP’s Reflections on the Global North blog series. / Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés.

Charles-Philippe Lamy is an associate editor with the JSDLP. He is currently in his first year at the McGill Faculty of Law. He recently completed a BA in politics and history at the University of Toronto. 

Attribution: David Hiser, San Juan River Oil Spill

Attribution: David Hiser, San Juan River Oil Spill

In late January the Montreal Metropolitan Community (MMC) rejected TransCanada’s East Energy Pipeline project. The proposed pipeline would have transported oil from Alberta to New Brunswick for export and domestic sale. Montreal Mayor Denis Coderre, the current President of the MMC, explained that the committee’s decision was fuelled by its concerns that the economic benefits created by the pipeline are far outweighed by the potential cost of cleaning up the pipeline’s oil spill.

There does not appear to be a simple answer to whether the pipeline should be built. Admittedly, the economic benefits are great. The construction of the pipeline is estimated to create 14,000 jobs over the expected nine years it will take for construction to be complete. The construction is expected to add nearly $17 billion to the Canadian economy, the lion’s share being distributed across New Brunswick, Quebec, and Ontario. Proportional to population, by far the greatest benefit will be to New Brunswick. The pipeline will bolster its economy by an estimated $6.5 billion dollars in revenue over the next forty years. Unexpectedly, Liberal Premier Brian Gallant has given the project strident support.

Charles2

Attribution: Albert Herring, Oil Arrives on Bon Secour

However, those wary of the Energy East pipeline project also have good arguments. Naturally, while the economic arguments for the construction are convincing, there is an environmental threat threshold beyond which no economic gains are justifiable.  A single litre of oil can contaminate as much as a million litres of groundwater, and despite improvements pipelines still spill. Additionally, there is the outstanding issue of non-consent from Manitoba First Nations, the Mohawk Council of Kanesatake, and Ontario First Nations leaders. However, the facts remain that transporting crude oil to Atlantic Canada by an ocean freighter, by train or by truck remains more environmentally taxing. These options will either increase fossil fuel emissions (truck) or seriously increase the risk of a spill (train). By contrast, the 2014 Annual Report of the Transportation Board of Canada revealed that in 2014 there were only 32 pipeline incidents with a release of crude petroleum. In addition, when pipelines do spill, pipeline technology has advanced to the point where the spillage can be comparatively quickly cauterized and the damage minimized. For instance, of the total pipeline incidents that resulted in spillage, 89.4% of incidents resulted in less than 25 cubic meters of release, and 75% resulted in less that 1 cubic meter of release. By contrast, in the alternative transports mentioned above it may prove difficult or impossible to contain a spill.

Another criticism, that the construction of the Energy East pipeline will endanger our international environmental commitments, is rather tenuous. At the recent COP21 Summit in Paris, Environment Minister Catherine McKenna endorsed the target of 1.5 degrees Celcius above pre-industrial levels as the new threshold the worldwide community should aim for. If the federal and provincial governments are going to legislate with the 1.5 C target in mind, or even the 2 C target presently endorsed by the United States, it does not appear that the Energy East Pipeline will be the project that makes or break our ability to meet the target. Its influence is instead negligible. Shifting Canada away from fossil fuels and towards renewable energy will not be affected by the construction of a pipeline, as the pipeline does not increase consumption but only changes the location from where the product emerged. If we are going to achieve substantive gains in meeting our international environmental goals, then we must do so through more aggressive investments into renewable energy, not by fighting over which location to extract and transport fossil fuels in a way that leaves no change in domestic consumption.

We all agree that we must wean ourselves off oil, but since this will take at least a century or two we have a clear interest in acting smart on oil while we still use it and need it. The pipeline seems to allow us to maximize our national wealth, aid the economically staggering Atlantic Canada and mention Alberta, and reduce our investment in foreign regimes with notorious human rights abuses, while also employing a technology that is far less damaging than the alternative transporting methods. And while it is disappointing that Mayor Coderre does not agree, we should hope that the federal government remembers that the agreement of municipalities is a good but ultimately unessential factor in national energy policy under our constitutional structure. If a restructured National Energy Board assesses that the pipeline is sufficiently safe and the federal government joins Premiers Notley, Wall, and Gallant in supporting its construction, then we should feel comfortable stating to Mayor Coderre that Montreal cannot stand in the way of the Canadian interest.

Interested in learning more about law, oil, and sustainability? We suggest these selected articles from our past issues: 

 These articles are referenced here for the reader’s convenience.  It should not be taken to imply that their authors share the views expressed above. 

 

Mayor May Not: The Limits of the Global Parliament of Mayors

Ce billet s’insère dans la série thématique du blogue de la RDPDD Réflexions sur les pays industrialisés. / This post is a part of the JSDLP’s Reflections on the Global North blog series. 

Adrian Pel is a first year student at McGill’s Faculty of Law and serves as an associate editor of the JSDLP. He recently completed an MA in Geography at the University of Toronto.

A potential hotbed of global governance? Source: Wikimedia Commons

A potential hotbed of global governance? Source: Wikimedia Commons

In the popular imagination, city governments tackle banal everyday issues such as snow, potholes and garbage. However, what if cities were more ambitious than this? What if cities, and their mayors, were frontline actors in addressing issues of sustainable development? Such is the premise of a new experiment in global governance whose agenda of issues includes climate change and environmental sustainability.

In September, the Global Parliament of Mayors (GPM) will convene for its inaugural meeting in The Hague. The brainchild of political scientist Benjamin Barber, the GPM is a forum at which mayors will discuss strategies for tackling challenges that range from climate change to pandemic disease. Urbanist Richard Florida describes the GPM as a “UN-like organization” at which cities can disseminate knowledge and share strategies for implementing changes. Other proponents include a cast of mayors from around the world. The combination of academics and mayors gives the GPM an air of innovation, expertise and excitement.

Boris Johnson – London Mayor, British MP, and now global parliamentarian? Source: European Cyclists Federation.

Boris Johnson – London Mayor, British MP, and now global parliamentarian? Source: European Cyclists Federation.

In terms of addressing issues such as climate change and pollution, Barber’s focus on the city is sensible. Cities are estimated to account for 75 percent of global CO2 emissions. Moreover, dense clusters of factories in urban areas tend to produce catastrophic levels of smog that affect both the local area and surrounding regions, as maps of Chinese industrial cities illustrate.

Unfortunately, there are reasons to be sceptical about the GPM’s efficacy in matters of sustainable development. Whereas the UN and ‘real’ parliaments can pass binding motions, the GPM does not pass any such resolutions or have powers of coercion to enforce promises made by members. Instead, the GPM has only a declaration of the rights of cities and citizens penned by Barber that serves as a sort of municipal manifesto. Unfortunately, this declaration is not accompanied by any set of responsibilities or clear goals. Instead, it is accompanied by a laundry list of agenda items, of which sustainable development is but one.

While the GPM means well, its justification rests upon two related premises that both appear flawed. The first is that mayors are nonpartisan pragmatists. The second is that mayors are itching to unleash ingenious local ideas upon other cities, if only they had the opportunity.

On the first premise, Barber cites former New York City mayor Fiorello La Guardia’s axiom that “There is no Democratic or Republican way of fixing a sewer”. As I have examined in a previous blog post, whether or not a mayor decides to take action and fix a broken sewer (figuratively or indeed, literally) is political decision in which environmental politics and fiscal conservatism collide.

Given that addressing issues in the field of sustainable development requires significant, widespread collaboration in ambitious reforms – especially to address free rider problems ­– a non-binding discussion forum is not conducive to producing binding collective action. As mayors must both seek re-election and interact with city councils, a global parliament of such figures would, if anything, be more constrained the U.N. whose diplomats are not as directly exposed to everyday politics and lobbying. Accordingly, electoral pressure will probably dissuade mayors from leading the vanguard of sustainable development policy.

The second premise Barber advances is that mayors are agile executives bursting with ideas. This premise envisions mayors as tortured geniuses constrained by constitutional limits on the powers of cities. The GPM envisions a dichotomy between “dysfunctional” nation states, and eager but bureaucratically shackled cities. Here the GPM does have something to offer. It can help cities lobby for reforms that will both increase their powers (e.g. taxation, planning powers), and to develop ‘strong mayor systems’ where there is a greater level of executive power over city council. However, in the context of challenges such as climate change and toxic pollutants, even if cities (and mayors) possess more extensive powers, action will not spontaneously occur especially given the political constraints that I have discussed.

With this criticism made, one must not be cynical of the role that cities can play in combatting climate change and addressing more localized issues such as smog and toxic pollution. Rather, I contend that cities will likely be more effective in this area if they focus on specific issues and channel their efforts through institutions that are more focused than the GPM. One such specialized institution is C40, a group of megacities that focuses on producing research and developing policies specifically targeted at greenhouse gas emissions. While the GPM may emulate C40s approach, its fixation on heroic individualism, broad remit and its distracting secondary objective of reforming the constitutional powers afforded to cities make it a poor vehicle to address issues of sustainable development.

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