6. Future Trajectories in International Climate Law

There are significant weaknesses with the Paris Agreement. Its architecture assumes that states working together over time will increase their ambition and put pressure on laggards. There is no guarantee that this will occur, and it is possible that there will be ‘backsliding’, with states such as the United States breaking their commitments or even walking away entirely from the agreement.^[1]

Not all criticism of the Paris Agreement is merited, insofar as it focuses weaknesses that all areas of international law have. It is an inherently consensual system, reliant on the cooperation of states, and as a consequence there is a tendency towards the ‘lowest common denominator’. Moreover, the ICJ’s advisory opinion in Obligations of States in Relation to Climate Change has dramatically changed the legal landscape, highlighting the wide range of international legal obligations that can be invoked to address the climate crisis, from human rights to the law of the sea. It is possible that we will now see a number of contentious proceedings, with applicant states commencing proceedings on the basis of the Court’s findings in its advisory opinion.

Nonetheless, because of the climate regime’s limitations, arguments have been building for approaches that would complement or take an alternative approach to the Paris Agreement and address the central cause of the problem at its source — the extraction of fossil fuels. Led by Vanuatu and Tuvalu, 13, mostly Pacific, nations have called on other governments to join them in developing a fossil fuel non-proliferation treaty.^[2] Drawing on the experience with other regimes on ozone-depleting substances, landmines, tobacco and nuclear weapons, the proposal is for a treaty founded on three pillars: first, an immediate end to the expansion of new coal, oil and gas production (‘non-proliferation’); second, winding down existing production in line with the Paris Agreement 1.5 °C temperature target in a manner that is ‘fast and fair’ (a ‘fair phase-out’); and third, global financial support so that no country, community or citizen is left behind (a ‘just transition’). There are similar arguments in favour of a comprehensive treaty to protect the world’s tropical forests given the contribution of deforestation to global emissions. Anthony Burke, who with Stefanie Fishel developed a detailed proposal for a coal ban treaty,^[3] argues that

states cannot depend on voluntarist governance models and disregard of climate science, but should take the new initiatives on coal, forests, and fossil fuels to the [UN] General Assembly and negotiate them as binding agreements that can spur faster reductions and pressure laggard states.^[4]

Burke contends that this could ‘force systemic and cascading change across energy, technology and commodity markets as much as in government policy making’.^[5]