Rebus sic stantibus as a Stabilizing Doctrine in the Climate Crisis

In the face of massive, unanticipated and even disjunctive changes, the balance of the respective interests of the state parties to existing treaties may no longer survive the changed—or changing—climate landscape. While, ideally, the co-contracting states to such treaties could mutually agree to terminate or revise their treaty obligations to accommodate such changes and redress the now imbalance of interests in the treaty, some scenarios are bound to be contentious. In such cases, is there any other procedure that can provide for an orderly and fair adjustment of treaties so as to avert a breakdown of the network of treaties and a destabilization of world order? This article proposes that the rebus sic stantibus doctrine may function as a stabilizing doctrine for maintaining and possibly adjusting treaty regimes in an orderly fashion. Unlike the doctrine of necessity or many explicit treaty carve-outs, such as the security exception of the US Model Bilateral Investment Treaty, the doctrine of rebus sic stantibus may allow for both an objective test and also one that must be pleaded before a third-party arbiter. For this reason, rebus operates within controlled limits. Rebus offers an international tribunal the opportunity to set out a fair termination or revision of a climate-impacted treaty. I trace the evolution of rebus as a stabilizing doctrine and illustrate the potentialities of its application to the climate crisis.

From Marrakesh to Glasgow: Looking Backward to Move Forward on Emissions Trading

The Paris Rulebook—nearly complete, but with the ‘markets’ text tied to Article 6 of the Paris Agreement unadopted after nearly three years—invites comparison with a similar effort under the Kyoto Protocol: the Marrakesh Accords. This article compares the Paris Rulebook and the 2001 Marrakesh Accords implementing the Kyoto Protocol as a way of exploring the similarities and differences in regulatory design between the two sub-regimes and their implications for sustainability and climate integrity. An in-depth analysis of the negotiating history and the text of the two instruments yields trenchant and perhaps unexpected conclusions. Issues that plagued the Marrakesh Accords also appear in similar form in the Paris Rulebook discussions around Article 6; however, because of the difference in structure between the two treaties, even more complex issues have arisen in the Rulebook negotiations. The article reflects on the fundamentally different purpose of the ‘markets’ text in the Rulebook in comparison with its Kyoto/Marrakesh precursor, as well as on the implications of those differences for the Article 6 negotiations.

The Paris Agreement’s Article 6 Market Mechanisms and wto Law

The article analyses the market-based approaches in Article 6 of the Paris Agreement with respect to their potential interaction with international trade law. It focuses on the international dimension of Article 6 and the tensions associated with international trading of mitigation outcomes (under paragraphs 2–3 of the Article) and emission-reduction units generated through the sustainable development mechanism (paragraphs 4–7). We find that while there are significant normative tensions and legal uncertainties in the relationship between the regimes, international cooperation across the two law- and policy-making arenas could also help to develop new approaches to aligning wto trade law with international climate objectives.

Might Cooperative Approaches Not Be So Cooperative? Exploring the Potential of Article 6.2 of the Paris Agreement to Generate Legal Disputes

With Article 6.2, the Paris Agreement offers its parties the possibility to engage in cooperative approaches to import mitigation outcomes that have been generated on the territory of another party and use these international transferred mitigation outcomes (itmos) for compliance purposes. While this possibility seems to pave the way to more—and presumably new forms of—climate cooperation outside the UN climate regime, this paper asks whether Article 6.2 is also likely to spark disagreement among states. It is suggested that it bears as much a potential to generate cooperation as to generate conflict. To illustrate that point, the paper explains how Article 6.2 could lead to conflict between developed and developing states over the legality of unilateral restrictions on the admittance of itmos and discusses what such conflict may look like, as well as its possible legal and political implications.

A Question of Value: On the Legality of Using Kyoto Protocol Units under the Paris Agreement

The first commitment period of the Kyoto Protocol generated about 4.3 billion Assigned Amount Units (aaus) and about 180 million Certified Emission Reductions (cers) for carry-over by Annex i states and potential use as ‘overachievements’ or offsets to discount emissions under ndcs. The second commitment period may generate additional carry-over units, and there is an estimated ‘dormant’ amount of about 4.6 billion cers that could be issued from ongoing cdm projects. To rely on these units risks upsetting the process of trust-building necessary to increase ambition under the Paris Agreement. This article questions the legality of carry-overs but finds that a textual interpretation of the current legal framework under both treaties leaves the matter unresolved. With a more refined legal interpretation, based on the principles of environmental integrity and sound accounting under the Paris Agreement, the article re-evaluates aaus and cers under the Agreement, by relying on insights from a social theory of value and the critical studies literature on the political economy of carbon markets. The conclusion is that aaus cannot be used under the ndc accounting framework, as their formal value of 1 Mt CO2 eq. under the Kyoto Protocol is considerably diminished under the Agreement. As for cers, their value depends on different social realities related to their issuance. States or the cma should adopt transparent criteria to select the cers that are worth transitioning pursuant to the Article 6.4 mechanism. The same conceptual framework of value-attribution can also inform the design and operation of the Article 6 mechanisms and their units in order to attain higher environmental integrity and sound accounting for ndcs.

EU Climate Policy under the Paris Agreement

The European Union has long sought to play a leadership role in the international response to climate change. As part of the “European Green Deal”, it announced new wide-ranging plans to step up its ambition, and in December 2020 updated its mitigation target under the Paris Agreement to an at-least 55 per cent reduction by 2030 compared to the 1990 level. In this article, I provide a legal analysis of the new EU climate change policy as outlined in the European Commission’s Stepping Up Europe’s 2030 Climate Ambition (September 2020) in light of the Paris Agreement itself and other norms of international environmental law. I find that the European Union provides a degree of leadership in the implementation of the Paris Agreement, but that there are also areas of concern, in particular the missing notification of member states’ individual emission levels as part of a joint ndc under Article 4 of the Paris Agreement.

Milieudefensie et al. v. Shell: A Tipping Point in Climate Change Litigation against Corporations?

The District Court of The Hague’s decision in the matter of Milieudefensie et al. v. Shell, issued in May 2021, is an unprecedented ruling, holding a fossil-fuel company accountable for its alleged contribution to climate change. The decision provides ample opportunity to discuss climate change litigation against corporations, and the legal responsibility of such actors in the climate context more broadly.

The New German Coal Laws: A Difficult Balancing Act

The German government adopted a coal exit law in 2020. The law enshrines a coal exit pathway through to 2038 and provides for significant compensation for coal companies. An accompanying structural-support law is to create new prospects for coal regions and workers. The development of the laws involved participation by the public, experts, interest groups, and the German states. Concerns about just transition and climate justice played an important role. The final laws were nevertheless met with a significant degree of dissatisfaction from stakeholders across the political spectrum, science, industry, and ngo s. Flaws in the participation process and deviation from expert recommendations have been raised as criticisms. The climate ambition, economic rationale, and social-justice effects of the laws have been contested. Repeal of the laws in any substantive way nevertheless seems unlikely.

Bridging the Climate and Maritime Legal Regimes: The imo’s 2018 Climate Strategy as an Erga Omnes Obligation

Scholarship and practice before the European Court of Justice indicate that international organizations can unilaterally bind themselves under international law. This article evaluates whether the International Maritime Organization did so with its 2018 ‘Strategy’ to reduce greenhouse gas emissions from shipping. After first identifying the source of the imo’s mandate to regulate greenhouse gas emissions from shipping and its treaty obligations to do so, it finds that the imo has the institutional competence to unilaterally bind itself with respect to its function and purpose of regulating vessel-source pollution. It further finds that the imo imposed on itself an erga omnes obligation to mitigate climate change in order to meet the Paris Agreement’s global warming limitation goals. The article reflects on the implications of these findings for climate law and international law generally.