SydneyEnviroLaw

 The 17^th Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) met in Johannesburg, South Africa, from 24 September to 4 October 2016. CITES is a crucial international convention which covers an essential component of international conservation efforts – international trade in endangered wild species. CITES operates by categorising species for greater or lesser levels of protection from commercial trade, according to their perceived status of endangerment in the wild. Approximately 1,000 species are listed on Appendix I (virtually no commercial trade) and approximately 34,000 on Appendix II (limited commercial trade). The CITES CoP meets every three years in order to consider proposals for listing species, or for transferring species between lists – as well as to decide multiple administrative matters such as how endangered status should be determined, whether certain matters should be researched, and how decisions should be taken.

In 2016 the CoP considered 62 individual proposals for uplisting or downlisting of individual species – many of which required votes on whether they would be adopted or not. Some of the more controversial and/or newsworthy included unsuccessful proposals to open a limited trade in elephant ivory for Namibia and Zimbabwe; an unsuccessful proposal to open a limited trade in rhinoceros horn for Swaziland; an unsuccessful proposal to downlist the peregrine falcon to Appendix II; successful proposals to list silky sharks, thresher sharks and mobula rays on Appendix II; successful proposals to list several pangolin species from Africa and Asia on Appendix I; a successful proposal to list the African grey parrot on Appendix I; and a compromise agreement on a proposal to list the African lion on Appendix I (the lion being listed on Appendix II with certain constraints on trade in products being introduced). 

Given Australia’s valuable and highly endemic biodiversity, CITES is a priority convention for the country. Australia even generally accords higher protection domestically to listed species than is required internationally – implementation being achieved through the Environment Protection and Biodiversity Conservation Act 1999. However, this was a quiet CoP for Australia and the country did not become embroiled in any major controversies. Australia put forward two proposals, both of which were successful. These proposals were to downlist from Appendix I to Appendix II the helmeted honeyeater (Lichenostomus melanops cassidix) on the basis that, while critically endangered, international trade is not a threat to the subspecies; and similarly to downlist the Norfolk Island boobook owl (Ninox novaeseelandiae undulata), on the basis that the genetically pure form of the subspecies is extinct and that the remaining (hybrid) subspecies is not threatened by international trade.

The 18^th Conference of the Parties will be held in Sri Lanka in 2019.

ACCEL Director A/Prof. Ed Couzens attended as a representative of the Environmental Law Association of South Africa.

 

Hi! I’m Akash Bhattacharjee, the 2016 Research Fellow at the Sydney Environment Institute. This year I’m researching Federal climate change policy in the Department of Government and International Relations for Honours in a Bachelor of International and Global Studies, before I go back to the Sydney Law School next year to finish my Bachelor of Laws.

What are the legal implications of the Paris global climate agreement? I had the good fortune to attend the Australian Centre for Climate and Environmental Law’s (ACCEL) 2016 annual Conference, which addressed just that.

Just another conference on just another summit you say? Nothing of the like. It’s conferences like ACCEL2016 that help to decode the often complex and loaded language of international treaties like the Paris Agreement, outlining the consequences of particular provisions of these instruments for global, national and local communities.

As I begin my research this year into climate policy, this Conference gave me a great backdrop to current movements in the global climate space.

1. Key information

• ACCEL2016 was a key academic and professional Conference for the Asia-Pacific, held shortly after the drafting of the Paris Agreement.
• Speakers provided various perspectives on the Paris Agreement, and presented on the implications of soft law approaches under the Paris Agreement; the relationship between environmental justice and agriculture, climate disaster risk-allocation and compensation, and climate finance; as well as domestic implications for biodiversity and compelling governments to act through the common law.
• ACCEL2016 was attended by leading practitioners, business leaders, academics and members of the general community and will remain in contact with the Centre on future events of a similar kind.

On Thursday the 11th of February 2016, leading practitioners, members of the business community and academia convened for a day as a small climate-aware community committed to enlivening the principles that underpinned the Paris Agreement drafted only 60 days prior. Hosted at the Law Foyer of the Sydney Law School, this was a landmark event in the climate space of the Asia-Pacific, drawing on the experience of its speakers from almost each corner of the planet. ACCEL2016 is the culmination of years of similar types of annual conferences by the Centre, and included experts presenting on a truly international topic on a momentous and delicate occasion in global environmental politics.

2. Introduction

Why was it held? There is a general lack of public awareness or understanding on many climate change matters, especially the recent watershed moment in environmental politics – the drafting of one of the most historic international legal instruments of our time. This Conference creates a space for experts to give a snapshot, from an international lens, of the most critical debates occurring on the meaning of the text and its implications. Given the participants, it also allows for the Sydney Law School to engage with industry and practitioners on what this means for their day-to-day clientele and professional body – a knowledge-sharing exchange desperately needed for a global problem with such a small time window. As a young person, it’s especially encouraging to see that the Conference engages with a virtual public, reaching a wider audience, especially since such international legal instruments are seen as opaque to many communities – drafted in obfuscating, esoteric and jargon-laden language.

3. Conference Engagement

Social media was an important feature of the Conference which made it quite interactive. Across the day, social media traction on the twitter hashtag #ACCEL2016 was caught and engaged with by NSW non-government organisations, national academia and business and was listed as part of twitter lists such as energy law. There was over 120% re-tweeting of hashtag posts, helped along from barristers in attendance to conservationists virtually connecting-in. I even got to pose a question on behalf of a conservationist tweeting-in to Jeffrey McGee on the implications of a global stocktake in 2023 on the Paris Agreement. To add to the social media buzz, it was great to see the multimedia embedding in the tweets, so that Twitter users could get a real feel of the Conference without being physically present!

4. Summary of Academic Points Made
a. Perspectives on the Paris Agreement

Professor Richard Stewart, John Edward Sexton Professor of Law at NYU School of Law and the former Assistant Attorney-General of the United States Justice Department, insisted that there would need to be heightened networks of cooperation and trust for the Paris Agreement to succeed. In addition, there would need to be transnational cooperative and institutional arrangements to reduce greenhouse gases. Why? Since Professor Stewart sees the Paris Agreement as a ‘monument of failure, as well as, a new beginning’ it is essential that we look to involving non-government stakeholders or risk a thin layer of support for the Paris Agreement. Reminiscent of debates around liberal environmentalism, Prof Stewart then went on to outline three perspectives that can shed more light on how to increase stakeholder participation: clubs strategy, institutional linkages and dominant market actors.

Next Dr Jeffrey McGee of the University of Tasmania spoke on the differentiation in the Paris Agreement, spelling out that the first global stocktake of the Paris Agreement would occur in 2023 while each nation’s internally determined national contribution on climate goals would only begin in 2020. While Dr McGee argued these start dates were later than necessary he also posed an important question: the Paris Agreement allows for self-differentiation through a ‘bottom up’ model of emission reduction commitments by member states – is this just powerful interests having their way or have we allowed for a mechanism to develop in which peer pressure can be relied on to ratchet up state ambition over time through the global stocktake process?

Finally, Dr Peter Lawrence of the University of Tasmania – a former First Secretary for the Australian Permanent Mission to the UN in Geneva – spoke on the strengths and weaknesses of soft law in the Paris Agreement. Building on Dr McGee’s poignant final question, Dr Lawrence went slightly further to combining the observation of peer pressure with a study into the once-hegemonic, and now shifting, discourse on renewable energy. As diverse energy sources become economically viable, so too will the efficiacy of certain soft law approaches in the Paris Agreement.

b. Justice Implications of the Paris Agreement

Professor Jonathan Verschuuren of the University of Tilburg and Marie Sklodowska-Curie Fellow at ACCEL, spoke on the nexus between food security and climate change mitigation. Arguing for a sharper focus of publics and governments on highly potent greenhouse gases such as methane and nitrous oxides, that form a large part of the agricultural cycle, he also stressed that Australia’s national carbon farming initiative needs to be expanded and stepped up. Additionally, he pointed to a potential link between Australia and the European Union’s (EU) common agriculture policy.

Professor Rosemary Lyster, of the Faculty of Law, University of Sydney, proposed a unique and detailed method of collective responsibility, risk-transfer and compensation for victims of climate risk and disaster. Using a capabilities approach first developed by Amartya Sen and Martha Nussbaum, she outlined how climate disaster often relegates victims to socio-economic and other forms of injustice by reducing their ability to freely function and contribute to their society. Her proposed legal regime for this can be found in her newly published book Climate Justice and Disaster Law (Cambridge University Press: 2015): http://www.cambridge.org/au/academic/subjects/law/environmental-law/climate-justice-and-disaster-law

Dr Kate Owens, a Lecturer at the Faculty of Law, University of Sydney and former environmental law practitioner for state governments and commercial firms across Australia and New Zealand, spoke on the outcomes of the Paris Agreement for global climate finance. Presenting an overview of the state of finance mechanisms around the world as well as key current debates around climate injustices, Dr Owens outlined a number of watchpoints regarding climate finance, Paris and the operationalisation of the Green Climate Fund, and highlighted a range of views as to what kinds of funding should be counted as climate finance, the amounts to be mobilised under the Paris Agreement and how those funds are to be balanced between mitigation and adaptation measures. She then considered some outstanding questions in relation to the future of climate finance, focussing on the Green Climate Fund. Whether or not institutions such as the GCF will adhere to the core principles of climate justice is very much an open question and the difficulties are compounded by a lack of multi-stakeholder engagement of communities directly affected by climate change in member states.

c. Domestic Implications of the Agreement

Roger Cox, advocate in the landmark climate case of Urgenda Foundation v The State of the Netherlands, spoke on how his litigation compelled the Dutch government to pursue a decarbonisation of their economy. The judgment ordered the Dutch government to reduce its emissions by 25% for the year 2020 using 1990 for baseline levels. It is projected, he said, that Australia will over the same period of time overshoot to have increased over 20% in emissions using the same baseline. The central points of his presentation were predicated on the features of the Urgenda Foundation case that are comparable to other nations – namely the exceptional evidentiary value of Intergovernmental Panel on Climate Change (IPCC) Reports and the criteria for imposing a legal duty of care. The finding of the Hague district court underlines the critical importance of engaging the courts in the face of inaction on climate change.

Associate Professor Ed Couzens, of the Faculty of Law, University of Sydney and Director of ACCEL discussed the Paris Agreement and its implications for the protection of biodiversity. Using the example of freshwater turtles in the Murray-Darling basin, among others, he showed how climate resilience is a central tenet of the Paris Agreement and as follows, so too are concerns of protecting biodiversity. Importantly, Professor Couzens notes that politicians respond to the body politic. When a national population wants a higher standard of living and is unwilling to deal with the unpleasant consequences of required growth models, these environmental concerns are ‘dumped somewhere else.’ According to Professor Couzens, we need to drive the change by using environmental law as an impetus on both national and international planes. Much in the way interrelationships between species in the natural world are complex, so too is the multiplex (to draw on the terminology used in the presentations of Professor Stewart and Dr McGee) of actors, spheres and planes in the global environmental space that we must involve ourselves in.

Danny Noonan, Sydney Law School JD candidate and former Law Clerk at non-governmental organisation Our Children’s Trust (OCT), presented on the role of constitutions and the public trust doctrine in a post-Paris world. Danny argued that the public trust doctrine is less vulnerable to legislative interference or displacement, but what would be needed in Australia to achieve that would be something akin to native title rights and the Mabo decision. Danny outlined a few key barriers to successful litigation in Australia, as compared to his experiences helping OCT in the United States, such as costs orders and funding arrangements in comparable cases.

Audio files of the presentations are available at the following link:
http://sydney.edu.au/law/accel/events/upcoming-events.shtml

5. Conclusion

I’ve now been to many public events on related topics now and while each include a modicum of gloom given the nature and size of the climate change problem, there is no better way to address feelings of hopelessness when looking to the problem then by attending an event like this. These conferences allow you to think of problems together, discuss and question the shifts that are taking place in world. Beyond the academic and professional side to it – there is no better place, than a Conference like this, to see change and be motivated to take part in it.

I thank the organisers of the ACCEL2016 for making arrangements for my attendance and continued involvement, beside their organisation of an event of this scale. I also thank all those who got involved on social media and the change-makers I met at the Conference. Now, back to action!