Lawyers and the Climate Crisis
In May 2020 the International Bar Association issued a statement on the Climate Crisis. The preamble to the statement reads:
“A global response to the climate crisis will undoubtedly give rise to increased disputes, with lawyers representing the legal interests and rights of all sides. Parties to these disputes will include states, corporations, communities, civil society organisations and individuals who are the most vulnerable to the impacts of the climate crisis. The legal profession must be prepared to play a leading role in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis.” As I have previously stated, as international lawyers we are uniquely placed to influence legal policy, to advocate for climate change mitigation measures to be adopted and to police enforcement of them, what I describe as the “macro” level at which law (or more probably lawyers) can address climate change issues.
The IBA statement contains five resolutions, which are worth setting out in full:
The IBA urges lawyers, acting in accordance with their professional conduct rules and the rule of law, to consider:
taking a climate conscious approach to problems encountered in daily legal practice;
advising clients of the potential risks, liability, and reputational damage arising from activity that negatively contributes to the climate crisis;
encouraging corporate clients to voluntarily disclose the risks posed by the climate crisis to the corporation’s entire business operation (including supply chains) when reporting to regulators, investors, and stakeholders; and
engaging in climate dispute resolution generally (including mediation, negotiation or litigation), and specifically on a pro-bono, volunteer or reduced fee basis, for those negatively affected by the climate crisis.
The IBA encourages lawyers to engage with current and future legislative and policymaking efforts to address the climate crisis and consider:
supporting a just transition towards carbon neutrality in a fair, sustainable and inclusive manner to support the global regions and industry sectors most affected by the transition towards carbon neutrality on account of their current dependence on fossil fuels or carbon-intensive processes;
supporting the removal of legal barriers to the reduction of carbon emissions to achieve climate neutrality as soon as practicable;
supporting proactive laws and policies to address future risk to populations that are, or potentially could be, vulnerable to the devastating effects of the climate crisis;
encouraging industry sectors, especially those in developing countries, to engage in and advance efforts towards creating sustainable business models that actively address and mitigate the impacts of the climate crisis;
promoting legal innovation so impact investors and environmental funders can further engage with and address the climate crisis through supporting social and environmental entrepreneurs with specific incentives; and
supporting the recommendation in the IBA report Achieving Justice and Human Rights in an Era of Climate Disruption that calls for the immediate creation of an international ad-hoc arbitral body specifically for environmental litigation, and the eventual establishment of an International Court for the Environment.
The IBA implores lawyers to support and engage with the SDGs, particularly Goals 1, 7, 13 and 16, on the understanding that the rule of law is enshrined in Goal 16, which all lawyers should already respect and promote.
The IBA recommends that bar associations, law societies and similar bodies around the world each consider:
engaging with law students and schools concerning education on legal elements of the climate crisis and its impact on human rights;
developing practical educational tools for qualified lawyers to use in continuing their legal education and implementing the IBA’s forthcoming publication, Framework Model Curriculum on Continuing Legal Education in Environmental Law;
establishing a committee focusing on the climate crisis and its consequences (where not already in place) to encourage lawyers and legal practices to actively support, engage with and record their efforts in combatting the climate crisis; and
calling upon lawyers and legal practices in their respective jurisdictions to report their efforts in combatting the climate crisis to the climate crisis committee for analysis and cross comparison to develop best practice guidelines for others in the jurisdiction.
The IBA urges lawyers, as influential figures and thought leaders within society, to live responsibly in the face of the climate crisis and, where possible, take steps to:
reduce their environmental footprint through awareness of the impact of everyday actions; and
supporting positive changes in the workplace, including adoption of more sustainable practices, such as greater reliance on electronic file storage facilities and digital technologies, more energy efficient office infrastructure and more climate-friendly travel and procurement choices.
The five resolutions neatly encapsulate both the “macro” and “micro” levels of law and climate change issues. The international arbitration community has contributed reports at the macro level, for example and amongst others, the IBA Report on Climate Change Justice and Human Rights, the ICC publication ‘Dispute Resolution and Climate Change: The Paris Agreement and Beyond, the ICC Task Force Report on Resolving Climate Change Issues. At the micro (individual) level there has been less discussion about what lawyers can and should be doing, beyond the efforts made by the Campaign for Greener Arbitrations. It is therefore gratifying to see the IBA urging lawyers “as influential figures and thought leaders” to take steps to reduce their environmental footprint. Sign up to support the Campaign for Greener Arbitrations here and to add your voice to the push for sustainable change in the arbitration community.