Last week’s climate-related legal activities brought lawyers and the law to the fore again.
Deniers, with the huge support of the incoming US president, will continue to say that climate change is a scam (‘there has always been climate change’, ‘we are hobbling ourselves economically while our competitors continue to use fossil fuel’, and so on), but, whatever our views, we cannot disregard the legal developments.
First, there is continuing activism against lawyers. The Gazette reported a climate protest in the middle of last month outside the offices of A&O Shearman.
Since then, there have been more, targeting not only A&O Shearman but also fellow magic circle firms Slaughter and May, Freshfield, Clifford Chance and Linklaters.
A&O Shearman appears to have been picked out for further protest because it has not responded to a letter from activists. Last week, five people were reportedly arrested after protestors occupied the firm’s lobby, while others sprayed the outside of the building with fake oil.
A statement on behalf of protestors said: ‘An oil derrick is outside the entrance, on which a Grim Reaper figure sits holding a scythe and a set of scales, with a burning planet in one pan and a pile of oily cash in the other. The air is filled with smoke and the sound of drums, and activists are using a megaphone to spell out A&O Shearman’s crimes against the planet.’
Cue outrage from many people that lawyers are being identified with their clients, that there is pressure for certain entities - in this case fossil fuel exploiters - to be denied legal representation. But these arguments are not accepted by the activists.
I have nothing to do with the activists, but, in Europe at least, there is not an absolute right to legal advice in civil matters: the European Court of Human Rights has decided that (in defamation cases where no legal aid was available), and so has the Court of Justice of the European Union (in a recent case on a different issue, Russian sanctions on legal services).
This is a hot debate, which will only grow hotter.
Our national activism took place against the backdrop of a landmark legal case being heard at the International Court of Justice. This concerns the obligations of states in respect of climate change, and arises from a request for an advisory opinion of the court, submitted by the General Assembly of the United Nations. The public hearings began last week, and continue this week.
It is the largest case ever seen at the court. A record 97 states and 11 international organisations are scheduled to participate in the oral proceedings; there are 91 written statements, alongside 62 written comments on the statements.
The case originated in September 2021 when the Pacific island of Vanuatu sought a coalition in the General Assembly for an opinion. Eventually, 132 countries co-sponsored the resolution.
The two central questions are:
1. What are the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for states and for present and future generations;
2. What are the legal consequences under these obligations for states where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (a) states, including, in particular, small island developing states, which due to their geographical circumstances and level of development, are injured or specifically affected by, or are particularly vulnerable to, the adverse effects of climate change? (b) peoples and individuals of the present and future generations affected by the adverse effects of climate change?
The US, even before the accession of president Trump, has caused outrage by arguing that the United Nations framework convention on climate change and 2015 Paris agreement and other existing non-binding treaties embody ‘the clearest, most specific, and the most current expression of states’ consent to be bound by international law in respect of climate change. Any other legal obligations relating to climate change mitigation identified by the court should be interpreted consistently with the obligations states have under this treaty regime’.
Not surprisingly, the island states and others are unhappy, because the current framework is toothless. (Australia, China and Saudi Arabia, which are also big fossil fuel economies and among the world’s major greenhouse gas emitters, join the US in arguing against legal accountability. The UK will speak this week.)
Whatever the outcome of the case – and it will just lead to a non-binding advisory opinion, though authoritative and clarifying – we are only at the beginning of continuing climate litigation.
With the accession of president Trump, the debate and litigation will not stop.
We as lawyers should follow the developments. We as citizens must make up our own minds as to how to act.
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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