- State CO2 emission obligations
- Rights and obligations to climate finance
- Apportionment of climate change loss and damage (including the costs of adaptation
With thanks to Lawtext Publishing for their kind permission to reproduce this paper (the joint work of Tim Crosland (Plan B), Aubrey Meyer (the Global Commons Institute), and Margaretha Wewerinke-Singh (University of South Pacific, Vanuatu)).
The combination of political and climate crises in early 2017 create the conditions for the ultimate perfect storm. The dramatic collapse of polar ice-sheets, coupled with climatic and weather conditions increasingly hostile to human life and livelihoods, appear to demand an immediate international response at precisely the moment when co-ordinated political action appears unattainable.
Governments have agreed to limit warming to 1.5˚C or ‘well below’ 2˚C, but the world remains on course for disaster. There is currently no plan or framework for closing the gap between action and goal. More specifically there is no common framework to support either the equitable division of the remaining carbon budget or the quantification of rights to finance (upon which any equitable division of the carbon budget must depend).
In this paper we propose a solution. We do not, however, suggest its implementation will be straightforward: after so much procrastination straightforward solutions are no longer available.
Using the basic proposition that all people have equal rights to the earth’s atmosphere we develop a coherent, integrated framework (‘the Blueprint’) which, if adopted, would:
- Help quantify the rights of historically low emitting countries to financial support
- Provide a reference point for determining legal liability for climate change and its adverse consequences
- Provide a clear and rational basis for the apportionment of damages resulting from historic emissions (including the costs of adaptation), and
- Limit anthropogenic emissions of CO2 to a total consistent, according to the ‘best available science’, with the 1.5˚C / ‘well below’ 2˚C temperature goal
Crucially, implementation of the Blueprint does not depend on the political process. Courts have begun to recognise that the climate crisis threatens constitutional protections and fundamental human rights, and to rule accordingly. However, even where they are willing in principle to order the steps logically and practically necessary to avert disaster, to do so in practice they will require a framework for quantifying ‘common but differentiated responsibilities’ in terms of the common goal.
The Blueprint has been designed to meet this need. By providing an accessible, science-based framework for navigating the complexity of carbon budgets and climate finance it facilitates objective, mutually consistent decision-making in both climate policy and litigation.
Following some further introductory sections, this paper falls into two main parts:
Part 1: Explanation of the approach to historic emissions and division of the future carbon budget
Part 1 introduces the global and country charts, which reveal:
- a country’s contribution to historic carbon emissions (between 1750 and 2013), in absolute and relative terms;
- the carbon credit or debit arising;and
- the country’s equal per capita share of future carbon budgets.
Together, these three elements contextualize each country’s current emissions and finance commitments.
Part 1 also explains the methodology underpinning the charts, using the chart for Norway as illustration.
Part 2: Legal avenues to Blueprint implementation
Recognising the difficulties of raising ambition through the political process, and the growing momentum behind climate change litigation, Part 2 of this paper highlights a number of different legal avenues to:
- securing appropriate financial resources to support developing countries in implementing mitigation measures and achieving sustainable development;
- securing appropriate compensation for loss and damage (including the costs of adaptation) arising from historic emissions; and
- implementation of a science-based framework for the division of the remaining carbon budget, in order to limit warming to 1.5˚C or ‘well below’ 2˚C.
Specifically Part 2 considers legal actions on the following basis:
- Breach of a country’s duty to prevent harm to other countries.
- Breach of a country’s duty to prevent pollution of the marine environment (under UN Convention on the Law of the Sea, Article 194).
- Breach of fundamental norms of human rights (such as the right to life)
- Breach of a government’s duties to its citizens (including procedural obligations to act reasonably and rationally).
* We are grateful to the many experts (both scientists and lawyers) who have provided invaluable comments and suggestions on earlier drafts of this paper. Responsibility for this final version lies, of course, exclusively with the authors. We would also like to thank Catherine Pocock, publishing editor at Lawtext, for all her encouragement, support and co-operation.
 In practical, political terms the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC) serves as the ‘best available science’, recognizing that events in the Arctic, in particular, imply that the pace of change is ahead of its predictions
 See for example ‘Could the Courts bring Order to Climate Change?’, Isabella Kaminski, The ENDS Report, 8 December 2016.