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New IBA report seeks preventative, adaptive responses to climate change

|Written By Glenn Kauth

Noting the urgency of the issue, the International Bar Association has released a hefty report outlining a range of legal responses to climate change.

A new international environmental court ‘would start small,’ says David Estrin.

“When the World Bank says we’ve got to keep a limit [of a] two-degree increase . . . what people have to understand is there’s still an opportunity, but a limited opportunity . . . to deal with this in an effective way,” says David Estrin, a partner at Gowling Lafleur Henderson LLP who co-chaired the IBA’s task force on climate change justice and human rights.

The report, released today, emphasizes both measures to prevent and limit climate change as well as legal measures to respond to the effects of global warming. “It recognizes that both are necessary: Both mitigation and prevention as well as measures to deal with it,” says Estrin. When it comes to prevention, for example, he cites international trade measures aimed at bringing greater certainty to countries that their efforts at controlling greenhouse gas emissions won’t fall victim to trade challenges. The idea is to prevent a “chilling effect on bringing in new measures so governments wouldn’t be able to take steps,” he says, citing the challenges Ontario faced at the World Trade Organization to its green energy framework.

One headline-grabbing recommendation from the task force was the creation of an international court for the environment to handle international legal disputes stemming from climate change. It would allow, for example, for someone in one country to bring an action against a party in another jurisdiction for failing to live up to its agreements or commitments, Estrin notes. “It would largely be on a bilateral basis or an international basis,” he says. “It’s not a substitute for, say, Canadians claiming their own government wasn’t acting properly with regards to climate change.”

Of course, a key question is why governments would want to submit to such a court. In response, Estrin says the task force envisions it starting small and largely on the initiative of those countries that are more proactive on the climate change issue. “It would start small, but we would hope if does have some success, it would be attractive to other countries. We don’t see it happening right away.”

Until that happens, he notes the task force is also recommending the Permanent Court of Arbitration in the Hague as the preferred forum for the arbitration of climate change-related disputes.

Of course, how this all plays out depends on the politicians, many of whom are at this week’s United Nations climate change summit in New York. When it comes to Canada, Estrin notes recommendations such as a dedicated international environmental court would be impossible under the current federal government. “But you know what? They’re not going to be around much longer,” he says.

“It all depends on where the politicians are at in terms of thinking about this issue,” he adds.


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