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.
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.
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.