New IBA report seeks preventative, adaptive responses to climate change

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

“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.

Free newsletter

The Canadian Legal Newswire is a FREE weekly newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered every two weeks, providing targeted news and information of interest to in-house counsel.

Please complete the form below to receive the weekly Canadian Legal Newswire and/or the Canadian Inhouse Legal Newswire.

Recent articles & video

Daphne Dumont to receive CBA’s Cecilia I. Johnstone award

Quebec taking harsh line on cannabis edibles

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Copyright law: set for an overhaul?

Corporate Counsel Survey 2019 closes on Monday, Aug 26

When Legal Aid is a political prop, Access to justice suffers

Most Read Articles

The Ontario government is destroying university legal clinics

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Quebec taking harsh line on cannabis edibles

When Legal Aid is a political prop, Access to justice suffers