Big corporations and investors must be at the negotiation table for key climate talks to achieve the progress they promise, according to a senior legal expert.
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Conventionally, sovereign nation-states have been the key parties negotiating and ratifying agreements at important international climate meetings. Yet with doubts emerging over whether conferences such as the annual COP climate summits are exercises in futility that deliver mostly vague and ineffective results, legal scholars have been mulling over what needs to be done to get the right people around the negotiating table.
One of Australia’s most senior environment judges, Brian Preston, believes that there is a lack of “plurality of players” in global climate negotiation and mediation right now, with the regime dominated by nation-states.
“We need to restructure the international governance scheme to involve all the stakeholders and we need to implement smarter regulation and governance,” he said at a climate change conference organised by the Centre for International Law (CIL), a research institute at the National University of Singapore, on his visit to the city-state.
Speaking to lawyers and top legal experts in Asia Pacific gathered at the forum, Justice Preston, who is chief judge of the land and environment court of New South Wales and a long-time advocate for building climate-conscious courts, said nation-states, in most cases, do not produce the world’s greenhouse gasses and it is the key emitters in big business, including energy producers, that can potentially disrupt the deal if they are not engaged. They need to be invited to the negotiation rooms, he added.
Yet parties “with skin in the game” now are mostly nation-states. “I hate to prick the bubble of self importance of nation states, but for climate change, these could be the least important players,” he said. “We need to be getting the people who can make or break the deals that are done in international conventions to the table.”
Drawing from domestic legal and governance principles, Justice Preston highlighted how under any key legislation, there can be subordinate laws, as well as policies and economic instruments, which help to implement the overarching law. Yet at the international level, engagements are often governed by top-down, command-and-control legal mechanisms, and non-state actors such as investors and businesses are absent.
“You might say that is a necessity, because by definition, international law is the law of nation states and only they can be parties to a treaty. They are negotiating what needs to be done and their concerns with trade, climate and other relations between states, as well as other items of common concern. But that doesn’t mean we need to stop at that point,” he suggested.
Adding that the recommendation is not about coming up with a “utopian new world”, he said: “It is about using the tools that we have got in a better way. Domestic litigation shows how we can make the legal system that we have got, both at the international and national level, work.”
Justice Brian Preston (left) speaking at the CIL climate change conference. Beside him are (from left): Nilufer Oral, director of CIL, Petra Minnerop, director of Durham University Centre for Sustainable Development Law and Policy, Danielle Yeow, lead, climate change, law and policy at CIL, and Diane Tan, deputy director-general, international affairs division, Attorney-General’s Chambers of Singapore. Image: Ng Wai Mun / Eco-Business
The CIL conference, co-hosted with the Durham University Centre for Sustainable Development Law and Policy (CSDLP), builds on the outcomes of the first-ever Global Stocktake at the COP28 summit in Dubai last year. The stocktake, which takes place every five years, informs the next round of climate action plans under the Paris Agreement to be put forward by 2025. It noted that the world is significantly off track when it comes to meeting the Paris goals.
At the Bonn Climate Change Conference which concluded in June this year, United Nations climate change executive secretary Simon Stiell, said that too many items are still on the table before the next COP summit in Baku, Azerbaijan, at the end of the year. “We have left ourselves with a very steep mountain to climb to achieve ambitious outcomes in Baku,” he said.
Petra Minnerop, director of CSDLP, pointed to a growing body of research that finds that international environment treaties have been largely ineffective or even counterproductive. However, she acknowledged that nation-states with different interests and capacities are trying to move together, and should be given more credit for achieving the consensus they have on the climate front.
“This lack of impact could either be due to the fact that we are not good at demonstrating impact or because there is no real impact at all. I hope it is the former,” she said.
Minnerop added that there is an urgent need to integrate climate change concerns into other international agreements such as trade treaties, as well as reform the UN Framework Convention on Climate Change (UNFCCC) regime.
Danielle Yeow, adjunct senior research fellow who heads up climate change, law and policy at CIL, said that consensus reached at global climate conventions needs to be translated into “something more concrete” that can be implemented on the ground. “The way to do that is to put the right people in the room and lock them up together until they have a solution,” she said.
This would include taking a closer look at the role of businesses and what these players might mean for the “co-creation of rules” at international fora. “Will we see a real paradigm shift in the way [negotiation] rooms are organised at the international level? At which point do businesses come in?” she asked.
Yeow also cautioned that there is still scepticism about high levels of business involvement at COP forums, due to concerns that corporates generally only act with self-interest and are at the conferences to boost their public image.
At the Dubai COP28 conference, the record number of lobbyists working on behalf of the fossil fuel industry who were granted access, for example, attracted much criticism and scrutiny.
Diane Tan, deputy director-general of the international affairs division at Singapore’s Attorney-General’s Chambers, said a key challenge for the COP process is that everybody “seems to want to come in and have their conversations” and “the right people might not be in the room”.
Tan is also a member of the Paris Agreement Compliance and Implementation Committee (PAICC). She said that there could be more synergy between various global platforms such as the Convention on Biological Diversity (CBD) and UNFCCC – something that is “not quite happening yet”.
“We do need to think a little harder about the right venue and the right fora to have different conversations,” she said.
