Addressing the “credibility gap”: the role of domestic legal systems in ensuring accountability for climate action

COP 26 Outcomes and Challenges for International Law


Speaking after COP26, the US Special Presidential Envoy for Climate Change John Kerry described the conference as opening a “new era of accountability”. His comments echo a slew of speeches in which “accountability” was the watchword, including statements from the UN Secretary-General and the COP26 Climate Champions on efforts to increase accountability for commitments made by the private sector.

This focus on accountability for climate commitments and action can be seen as a response to the signals sent by civil society groups and many representatives of developing country parties that there is a growing lack of trust in the international climate negotiations –sometimes termed a “credibility gap”. In circumstances where pledges by powerful governments and companies are increasingly characterised as greenwash, strong, sanctions-based processes to ensure accountability may offer one solution.

Below, I reflect on three different avenues for accountability in climate governance at both the international and national levels. I consider the ways in which each blends notions of what Mansfield has described as “trust-based” and “sanctions-based” accountability, and whether that blend is sufficient to address the challenges highlighted by the divergent outlooks that have seen COP26 heralded as both a “failure” and a “big step forward”. Firstly, I briefly recap the approach to accountability adopted in the Paris Agreement, for which the implementation processes were finally agreed in Glasgow. Secondly, I describe how domestic legal systems are increasingly being called upon to “back up” this process. Finally, I consider possible directions for efforts to enforce the climate commitments of private actors.

1. The Paris Agreement accountability framework

The Paris Agreement contains a series of provisions aimed at monitoring the action from state parties. These include: the Enhanced Transparency Framework, created under Article 13, which requires all parties to submit biennial reports on progress towards the achievement of their nationally determined contributions, subject to both a technical expert review and a facilitative, multilateral consideration of progress; the Global Stocktake, created under Article 14, through which states will develop a collective understanding of progress towards shared goals; and the Paris Agreement Implementation and Compliance Committee (PAICC), created under Article 15, which plays a facilitative role in resolving questions about compliance and reviewing systemic challenges to implementation.

While these provisions do create accountability within the international regime, they were intentionally designed to do so in what Campbell-Duruflé has described in a previous post for this blog as a facilitative, non-intrusive, and non-punitive way”.  In other words, they are primarily “trust-based”, providing opportunities and requirements for the parties to give an account of their actions, motivated – it is to be assumed – not by the extrinsic threat of strong sanctions if they fail to do so but by the intrinsic motivation to achieve shared goals. While the international regime is not entirely devoid of sanctions and rewards – think for example of the connection between South Africa’s ambitious pledges and the financial support agreed during the Glasgow summit – this is not the central idea. The “cooperative approach” adopted here was key to creating the trust and goodwill required for the Paris Agreement to proceed, however as the credibility gap widens and that trust starts to erode, stakeholders are increasingly looking to domestic legal systems for an alternative.

2. Domestic accountability for national climate action

The “bottom-up” structure of the Paris Agreement provides both impetus and opportunity for accountability for climate commitments to be integrated at the domestic level. By placing the onus on each country to set its own climate targets, the Agreement creates an incentive for domestic debate about what those targets should be. One result of this has been to increase the number of both developed and developing countries adopting climate targets in domestic law and policy.

A preliminary analysis of the data contained in the Climate Change Laws of the World database, maintained by the Grantham Research Institute at LSE, suggests that there are now more than 300 domestic laws and policies in nearly 100 countries that contain greenhouse gas emissions targets – a number that is likely to be a significant underestimation.[i] Of these, around two-thirds have been introduced since the Paris Agreement was signed in 2015. Similarly, in the first two years of the period in which the Paris Agreement was in force more than a quarter of new laws explicitly referred to the Agreement or its key features, suggesting the significant influence of the international regime on at least some domestic legal systems.

While there is a wide diversity in the types of laws and policies contained in the database, one type of legislation that has gained significant attention momentum in recent years has been climate change framework legislation, which sets the overall strategic direction of travel for a countries’ climate action. Nearly 50 countries around the world have now adopted such legislation, with more than 30 laws having been passed or amended since Paris. While these laws serve many purposes, they are also increasingly understood as a means of creating domestic accountability, as illustrated by the name used for Canada’s “Net Zero Emissions Accountability Act of 2021”.

However, the existence of a climate change law, even a framework law, may not be sufficient to guarantee domestic accountability for climate action. In a recent policy paper released during COP26, my colleagues and I found that framework laws currently contain few explicit provisions creating sanctions-based accountability for public actors, with many instead relying only on transparency frameworks and compliance monitoring.

Even in the absence of ambitious legislation, climate change litigation challenging inadequate government action on climate change is increasing, with at least 37 systemic challenges filed as of May 2021. These include both challenges to government failures to meet past targets (as in the case of Notre Affaire à Tous v France), and challenges to the adequacy of measures by which governments plan to meet future targets (Commune de Grande-Synthe v France). While many such cases have had positive outcomes for climate action, the range of uncertainties generated by questions surrounding standing and justiciability means such outcomes are far from guaranteed. Clarifying the issues through strong domestic legislation, containing a blend of trust-based and sanctions-based accountability processes tailored to national circumstances, is, therefore, highly desirable for achieving both accountability and legal certainty. Good examples of such systems can be found in legislation passed in both Fiji and Uganda in 2021, although the impact of such laws remains to be tested in practice.

3. Avenues for ensuring the accountability of non-state actors

While state action inevitably takes centre stage during any conference of the parties to the UNFCCC, one of the notable characteristics of the Glasgow COP was the scale of non-state actor involvement. New initiatives such as the Glasgow Financial Alliance for Net Zero jostled for media attention with existing efforts, many of them now encompassed within the umbrella of the Race to Zero and Race to Resilience. While there may be cause for celebration in this degree of engagement, there are also real concerns about whether plans will live up to promises if commitments remain in the voluntary sphere. According to an analysis by the net-zero tracker, while more than 680 of the world’s largest publicly traded companies now have net-zero targets, many of these lack leadership oversight, may rely on unworkable offset plans, or fail to take into account all relevant emissions.

Efforts are already underway to use existing domestic law to challenge net-zero pledges that claimants consider lacking in credibility, such as a challenge to Australian company Santos’ claims regarding its plans to achieve net-zero emissions by 2040. More claims are likely to follow. However, while such cases may meet with success, the potential proliferation of competing understandings of the relevant duties and obligations may then provide its own set of challenges.[ii] In that regard, the UN Secretary General’s formation of a high-level expert group to “propose clear standards to measure and analyse net-zero commitments from non-state actors” could prove to be among the most significant outcomes on accountability from Glasgow. A widely accepted set of standards could provide crucial interpretative aid to courts grappling with unprecedented questions, as existing international standards have already done in the landmark case of Milieudefensie v Shell.

As we move towards COP27, accountability is likely to remain in the spotlight. While international frameworks may provide an important normative basis for many accountability processes, it is likely that domestic legal systems will continue to be called upon to provide a harder form of accountability where trust-based processes appear inadequate. Policymakers and legislators must ensure that domestic legal systems are adequately equipped to address the challenge.

[i] Targets data found in the database is currently undergoing a process of review.

[ii] For further discussion of rule of law issues raised by climate litigation against the private sector see Setzer and Higham, Corporations, Climate Change Litigation, and the Rule of Law, UCL Centre for Law and Environment 2021, available at: https://www.ucl.ac.uk/law-environment/blog-climate-change-and-rule-law/corporations-climate-change-litigation-and-rule-law

 

Catherine Higham is a researcher at the Grantham Research Institute at the London School of Economics. She holds an LLM from the University of British Columbia, where her research focused on the intersection of human rights and climate change in strategic litigation.

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