By Orville Williams
“The legal approach has more teeth than may meet the eye.” That’s the word from Payam Akhavan, legal counsel for the newly-formed Commission of Small Island States on Climate Change and International Law, amid concerns that its efforts are not likely to be successful.
The commission was established late last year during global summit COP26, as Prime Minister Gaston Browne signed an agreement alongside Tuvalu Prime Minister, Kausea Natano, to seek legal redress from countries considered major polluters and contributors to climate change.
However, some critics and even some environmentalists here in Antigua and Barbuda are sceptical, suggesting that the commission will inevitably prove to be just another failed attempt at holding ‘powerhouse’ countries accountable.
Some critics claim that the Paris Agreement, for example, cannot force the polluting countries to pay out anything as it is not legally binding. But Akhavan disagrees.
“I think we need to be careful when we say the Paris Agreement is not legally binding. There are aspects of the agreement which allow states to determine for themselves how they will reduce their emissions, but there is – for example – an obligation not to backslide,” he said.
The goal of the Paris Agreement, according to the UN Framework Convention on Climate Change (UNFCCC) Secretariat, is to “limit global warming to well below two, preferably to 1.5 degrees Celsius, compared to pre-industrial levels”.
It also “reaffirms that developed countries should take the lead in providing financial assistance to countries that are less endowed and more vulnerable”.
Some large countries have faced criticism for the slow pace of their efforts to meet these commitments, while others have been called out for not doing enough financially, as is required.
While acknowledging these failings, Akhavan explained that international law fills the gap where enforcement is concerned, citing past examples.
“So, there are certain obligations which are clearly binding, but the commitments are vague and that’s because the UN Framework Convention [on Climate Change] is intended to be just that – a framework convention, which relies on the good faith of states to genuinely pursue the objectives of the Paris Agreement,” he said.
“The problem is that the major polluters are not genuinely pursuing those objectives and what we have are very charismatic speeches at COP26, without the corresponding commitments. But irrespective of what the UN Framework Convention says or does not say, international law already tells us the polluter pays.
“In 1938, there was an arbitral tribunal which basically held Canada responsible for a smelter that was sending sulphur dioxide fumes over the border into the United States, and Canada was held to be responsible to pay reparations to the United States – that’s the due diligence principle.
“So, the Paris Agreement is actually avoiding what already exists in international law,” Akhavan explained.
The world-renowned human rights lawyer also sought to galvanise support for the commission’s efforts, asserting that it makes sense to at least try.
“Now, whether using international courts or tribunals will get us somewhere or not, it’s a big discussion, but my question is – what do we have to lose? What do small island states have to lose by trying,” he added.
Akhavan was speaking at a recent climate reparations event, hosted by the Commonwealth Foundation, alongside Dr James Fletcher – former government minister and chief climate change negotiator for St Lucia – and Sabra Nordeen, the Maldivian Special Envoy for Climate Change.