Adjudicating the Future: Climate Change and the Rule of Law

Transcription

1 with generous support from Adjudicating the Future: Climate Change and the Rule of Law London, September 2015 Climate change is a disruptive problem and will only become more so. It is disruptive not just of our social and financial systems, but of our legal systems too. The causes and impacts of climate change are many and they operate and are felt at every level, from the local to the international. The climate change treaty process seeks to address and help remedy some aspects of climate change, but it cannot be a comprehensive solution to the problem. Climate change problems permeate our lives and permeate legal systems in diverse, detailed and challenging ways. Climate change law is a broad and unruly landscape. A fundamental feature of that landscape is that climate change has led, directly and indirectly, to many disputes before a wide variety of courts and tribunals around the world. There is no singular legal question or judicial approach in these cases their common link is the problem of climate change and its disruptive influence on legal doctrine, reasoning and procedures. But as climate change in all its guises (including physical effects, adaptation, and remediation measures) increasingly impact on our lives and our economies, it is important to understand the challenges it presents for the capacity of law and legal adjudication to handle these issues effectively. This invitation only workshop will bring together leading judges, practitioners and academics to reflect on the doctrinal challenges for courts (national and international) involved in adjudicating climate change issues. It will be held between September 2015 in London at The Dickson Poon School of Law, KCL, the Foreign and Commonwealth Office, and the UK Supreme Court. The workshop will focus on how climate change related issues are likely to give rise to legal disputes; the nature of those disputes; and what the consequences for adjudication and the rule of law are likely to be. The practical outcome workshop is to produce a 2-3 page statement of the legal issues created by climate change for adjudication. The document will be published in 27(3) of the Journal of Environmental Law (JEL). Embedded in the workshop are two public lectures and 1

2 an enlarged workshop of up to 50 participants focusing on climate change adjudication in both public and private law contexts. The purpose of the workshop and this document is twofold. First, courts will remain sites for resolving disputes and interpreting laws relating to climate change. The legal challenges for adjudication will continue and while legal cultures diverge significantly, the types of questions that climate change creates for legal systems do not. A document that identifies the legal questions that climate change presents for adjudication is an important tool for developing judicial responses to climate change. Second, the effectiveness of any international climate change treaty or legislative regime depends on understanding how climate change challenges and disrupts our legal systems and how they respond. This framework will aid in understanding that process. The workshop is particularly timely in light of the Paris Meeting of the Conference of the Parties to the UN Framework Convention on Climate Change in December To enable productive discussion, leading up to the workshop there will be a number of blog posts linked from the Journal of Environmental Law website identifying emerging themes in climate change adjudication. Suggested readings and a cross cutting themes paper will also be circulated to workshop participants. At each workshop session there will be a rapporteur who will make a short report of proceedings (although the Chatham House rule will apply). At the end of each session, a couple of general statements about the topic of the session will be agreed upon and, in the last session of the workshop, these will be brought together as an agreed framework of identifiable legal issues that climate change raises. 2

3 Thursday 17 th September 2pm-4:30pm Welcome and Introduction to the Symposium Location: Conference Room, Locarno Suite, UK Foreign and Commonwealth Office Chair: Adrian Roberts 2pm: Welcome Professor Liz Fisher 2:05pm Introduction: What is a Climate Change Case? What are the Roles of Academics and Practitioners in Making Sense of Climate Change Cases? This introductory session will consider why climate change cases are interesting to academics and practitioners, and what academics and practitioners have to learn from each other in reflecting on the nature of adjudication in the face of a pressing social issue like climate change. Lord Carnwath, The Supreme Court; Justine Thornton, 39 Essex Street; Dr Eloise Scotford, King s College London 2:50pm: Workshop Participants The Interests Involved A brief introduction from the UK Foreign and Commonwealth Office, Asian Development Bank, United Nations Environment Programme, United Kingdom Supreme Court, Journal of Environmental Law and The Dickson Poon School of Law, King s College London. 3:40pm: The UNFCCC Regime: Past, Present, Future Adjudication at any level is always operating in a context where the international framework of climate change governance is relevant. This introductory session considers the evolving UNFCC regime and its most significant legal features. Professor Lavanya Rajamani, Centre for Policy Research, New Delhi; Caroline Ross, UK Department of Energy & Climate Change 4:30pm BREAK 5:30pm Public Lecture Climate Change and the Rule of Law: Adjudicating the Future in International Law Location: UK Supreme Court Philippe Sands QC With comments from: Professor James Crawford, Judge of the International Court of Justice and Professor Lavanya Rajamani, Centre for Policy Research, New Delhi Chair: Lord Carnwath 7.15 pm Drinks Reception (Locarno Suite, Foreign and Commonwealth Office) 3

4 Friday 18 th September 9am-1pm Judicial Experiences of Climate Change A Transnational Discussion Location: River Room, Strand Building, Strand Campus, King s College London 9am Welcome Coffee 9:15am: Mapping Climate Change Adjudication Brian Preston, Chief Judge of the NSW Land and Environment Court Professor Chris Hilson, University of Reading Chair: Scott Fulton 10am-1pm: Judicial Experiences of Climate Change Across the World: A Panel Discussion In this panel discussion, judges from around the world comment on their experiences of thinking about, and adjudicating upon, climate change issues. Panel 1: Moderator Chris Hilson Scott Fulton, President, Environmental Law Institute, USA; Luc Lavrysen, Judge of the Belgian Constitutional Court; Christine Maugüe, Conseil D Etat, France; Mr Justice Keith Lindblom, President, Upper Tribunal (Lands Chamber), England and Wales; Isabelle Brand, The Hague District Court am Short Coffee Break, Old Committee Room Panel 2: Moderator Brian Preston Justice Swatanter Kumar, Chairperson, National Green Tribunal, India Justice Syed Mansoor Ali Shah, Lahore High Court, Pakistan; Justice Ananda Mohan Bhattarai, Chief Judge, Court of Appeals, Nepal; Michael Hantke Domas, Chief Justice, Third Environmental Court, Chile. 1pm LUNCH and Magna Carta Exhibition, Archaeology Room, Somerset House 2-5pm Climate Change and Adjudication Location: River Room, King s Building, Strand Campus, King s College London 2pm: Climate Change and Public Law Adjudication Addressing climate change requires public power to play a significant role. This situation creates new questions about both the legitimacy of public action and the role of courts adjudicating upon such action. This session considers such issues in the context of administrative law challenges, constitutional law questions and human rights law, both within and across national legal systems. 4

5 Eirik Bjorge, Jesus College, University of Oxford; Francis Jacobs QC, The Dickson Poon School of Law; Nathalie Lieven QC, Landmark Chambers; James Thornton, ClientEarth Chair: Lord Carnwath 3.30 Coffee Break 3.50 pm: Climate Change and Private Law Actions Adjudicating on climate change issues in a private law context can be challenging as polycentricity and uncertainty sit uneasily with the procedure and substance of private law adjudication. In this session, leading scholars and practitioners in the area reflect upon these challenges. Professor Maria Lee, University College London; Professor Jane Stapleton, University of Texas at Austin and Australian National University Chair: Dr Eloise Scotford 5:15pm BREAK 6pm Journal of Environmental Law Lecture Climate Change and the Rule of Law: Judicial Perspectives from Around the World Lord Carnwath, The Supreme Court, United Kingdom Justice Antonio Benjamin, National High Court of Brazil Justice Swatanter Kumar, Chairperson, National Green Tribunal, India Justice Brian Preston, New South Wales Land and Environment Court Chair: Professor Liz Fisher Introduction by Professor David D. Caron, Dean, The Dickson Poon School of Law, King s College London Location: Great Hall, King s Building, Strand Campus, King s College London 7:30pm Drinks, sponsored by the Journal of Environmental Law Saturday 19 th September 9:15am-12pm: Climate Change Adjudication in Regulatory and Non-Judicial Contexts Location: River Room, Strand Building, Strand Campus, King s College London 9:15am: Climate Change Legislation and Regulation: Emerging Issues In most jurisdictions, there are legislative and regulatory regimes that address climate change. Like all such legal frameworks, these regimes are giving rise to the possibility of litigation and this session explores the nature of adjudication in this area. 5

6 Professor Richard Macrory, University College London; Stephen Tromans QC, 39 Essex Chambers Chair: Professor Maria Lee 10.30am Coffee Break 10:45am Climate Change and Alternative Forms of Adjudication Adjudication does not only take place within the traditional forum of a courtroom. It also takes place as part of alternative dispute resolution, in the context of international and supranational enforcement actions, and within the context of conventional local forums such as tribunals and planning inquiries. In this session, the way in which climate change is considered and addressed in these forums is explored. James Maurici QC, Landmark Chambers; Alistair McGlone; Professor Catherine Redgwell, All Souls College, University of Oxford Chair: Professor Richard Macrory 11:50pm BREAK 12pm A Working Lunch: Mapping the Future: A Framework for Climate Change Adjudication In this session, a 2/3 page summary of the discussion at the workshop is considered as a concise statement of the issues that are emerging in climate change adjudication and thus must be taken seriously in thinking about how best to address climate change legally. Facilitators: Emily Barritt, Liz Fisher & Eloise Scotford END 1:15pm 6