Podcast: Ana Barreira, Director and Senior Environmental Lawyer at the International Institute for Law and the Environment (IIDMA)

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Common Home Conversations Beyond UN75

January 13, 2021

 

Kimberly White
Hello and welcome to Common Home Conversations. Today we are joined by Ana Barreira, lawyer and Director and founding member of the International Institute for Law and the Environment (IIDMA). Thank you for joining us today!

Ana Barreira
Hello, how are you? Thank you.

Kimberly White
So you’re the director and founding member of the International Institute for Law and the Environment. Can you tell us more about IIDMA and the work you do there?

Ana Barreira
Yes, of course. IIDMA was founded in 1996, it is already 24 years ago, with the purpose of contributing to sustainable development and environmental protection through the study, analysis, development, implementation, and enforcement of the law. Because the law is fundamental for organizing societies and those years in 1996, there was already a lot of environmental law. And we were focusing those years on environmental law. Since then, we have been working in many different areas, not only in sectors of the environment as water protection, marine protection, biodiversity, or climate change and energy transition but also on horizontal matters as governance. And we have worked a lot on party participation in the implementation of the Aarhus Convention, which is a convention on access to environmental information, public participation, and access to justice in environmental matters. It is known as an environmental democracy convention. But these years, now we have new science, and in 2009, the scientific community developed the framework for planetary boundaries. And if you realize all the work we have been doing, through law; we have been tackling all the planetary boundaries, or most of them because we have this science framework that we need the law to keep our activities and our lives within the planetary boundaries. And law helps a lot. And the work we have been doing in the last, I would say six years, has been concentrating a lot on climate change and energy transition, particularly in energy transition. What we saw is that the energy system, particularly the electricity generation system, was based mainly in Spain and in many European union member states on coal. And coal is one of the most polluting sources of energy from a climate change point of view; it generates a lot of co2. We started to implement this transition in Spain, advocating for the closure of coal power plants, we were using the rule of law tools, we were advocating, we were attending ADMs of energy companies, and we were discussing with energy companies. We were having conversations with authorities. We produced some studies on the impacts on health from the emissions of coal power plants, showing the externalities of the emissions of coal power plants and its cost on health. Like having data on premature deaths produced by this pollution, and all the economic impact that has like, for example, how many hospitalizations were necessary because of those emissions and how many lost working days happened in Spain. And also, we used our litigation. We started to go to court, to show and to challenge some of the permits granted to coal power plants. We saw that those permits were not in line with the legal framework we have at the European Union level. What has happened is that because of the work we have been developing in these last six years, at the end of June, more than half of the capacity of coal installed in Spain has closed and the rest of the capacity installed in Spain, it’s going to close very soon. So we are having outcomes, positive outcomes, to reduce CO2 emissions from Spain through our work through using the tools that the rule of law offers to citizens.

Kimberly White
That’s really interesting. I’d be keen to see the studies you have there because I know globally, air pollution from burning fossil fuels costs almost $3 trillion every year. And the premature deaths associated with that, the last time I checked, were 4 million premature deaths a year. And kudos to you and the team at IIDMA! That is quite an impressive feat.

Ana Barreira
In addition, in IIDMA, we are now following the process of all the European Green Deal. But in Spain, as part of this program we have on energy transition and climate change, in Spain, we still don’t have a climate change law. There are many European Union countries that have their own climate change law, and even some other countries, for example, in Latin America, they are producing their own climate change laws. But in Spain, during COP21, in Paris, our president committed to start working on a climate change law, that was in 2015, but still, we don’t have one. Now, there is a bill being discussed in the Spanish parliament; it is the climate change and energy transition law. And we have been advocating for a stronger law because it has some deficits in its governance; for example, a good climate change act has to be accompanied with a climate change committee, which is a scientific body, following the example of the IPCC. So many climate change laws, they have their own scientific body, which normally it’s called climate change committee, for example, in the UK, in France, or in Denmark, including now, the EU where it is being discussed or it is under discussion, the future EU climate law, the European Parliament has added the need in its first reading of the need of having this kind of body. The Spanish law doesn’t contain that, so we have been advocating for that.

Kimberly White
So nature, the environment, and the earth system are, by definition, systemic and interdependent. The magnitude and immediacy of the looming climate catastrophe show the need to design and implement a global public policy, creating instruments and institutions that enable collective action. How can recognizing the earth system as a common heritage of humankind better articulate our responsibility to protect the integrity of the earth’s ecological systems?

Ana Barreira
I think this is fundamental. Because as it has been said, in other of these podcasts series, the earth system is not legally recognized yet. And we need first, that recognition. And the best way is to be recognized as a common heritage of humankind, intangible common heritage of humankind, and how this can articulate our responsibility to protect the integrity of the earth’s ecological system. If we have that recognition, that will help to integrate the planetary boundaries system within the international legal system. We have a very well developed international legal framework for the protection of the environment, but it’s framed in a very siloed manner; there is no interconnectivity. And as you are asking, we need to protect the integrity of the earth’s ecological systems, and we are not doing that through the law. Because we have a lag, we don’t have this definition at the International Law level of the earth system. So if it is considered as a common heritage of humankind, this is going to allow the international community to start joining the dots of all the legal frameworks we have, because we have a Convention on Biological Diversity, that until now, there has been not much cooperation with the United Nations Framework Convention on Climate Change. We have another convention, they are called the Rio conventions on the certification, so they have been working in a silo manner. So we need to do an integration of all the, and I’m just citing some of the multilateral environmental agreements we have, we have many that we need an overarching idea, ideally, in the legal system, which is the earth system. And as it has been said already, it is a common heritage of humankind. Because if we don’t have the earth system protected and allow us to keep that human development within the Holocene conditions, we are in danger. And therefore, we won’t have any future here. So that’s why it’s so important.

Kimberly White
So being a common concern is not enough.

Ana Barreira
So until now, climate change has been recognized as a common concern of humankind. And then this was for the first time, appearing in the language of the Rio conventions, because of the United Nations Framework Convention on Climate Change acknowledged that change in the earth’s climate and its adverse effects are a common concern of humankind, and also the Convention on Biological Diversity affirms that biological diversity is a common concern of humankind. But at the same time, it recognizes the sovereign rights of a state over their biological resources. So when we talk about common concerns of humankind principle, it’s fine. I mean, because common concerns of humankind are those that are understood as those that inevitably transcend the boundaries of a single state and require collective action in response. And this framework provides a basis for protecting shared resources that are being threatened by a global problem. So it’s focused on sharing the burden of solving a problem and implies common responsibility to a specific issue of concern, based on its importance, as a whole entailing and legal responsibility to each state to prevent damage to it. And in fact, this principle is linked to this principle seven of the Rio Declaration that was established and regards the principle of common but differentiated responsibility, but we must take into consideration although this is fine, it has not been enough. It has not been enough because we are under a climate emergency. So, there is something that is missing. There is something that we have to introduce amendments and to reinforce the legal system we have. So that’s why recognizing the earth system as a common heritage of humankind will help. And why? Because this principle applies to areas beyond the limits of national jurisdiction. Some of the examples under international law are the seabed and the ocean floor, beyond national jurisdiction, and the moon and its resources. But we have to take into consideration that when we are proposing the common heritage of humankind, for the earth system, that we must go on a step farther in how it is functioning. Now, at the international level, this principle, because there are four essential elements defining this principle, like one, the area or resources under consideration cannot be subject to appropriation, and the elements of the earth system cannot be subject to appropriation. And at the same time, some of the components of the planetary boundaries are found within national boundaries. Another element of this principle of a common heritage of mankind means that all countries must cooperate as a commodity, area, or resource for the benefit of humankind. And we need an institutional framework for ruling this co-management. But of course, when we talk about co-management, it is not about exploiting the earth system. So that’s why we have to accommodate and go a step farther, and we need to establish a regime under a treaty to protect the earth system to stay under a safe operating state. And also, the previous element that I mentioned, entails an active sharing of burdens as well as benefits derived from the protection and the use of the areas or resources. So, therefore, as it has been said already, that countries that are contributing positively, like, for example, we have the Amazon, and it provides benefits for all humankind. So this has to be recognized under the principle, and the principle of a common heritage of mankind will help to that. And, of course, another element of this principle is that the area or resource must be dedicated exclusively to peaceful purposes. And, of course, the earth system must be dedicated to maintaining a safe operating space for humankind, which is definitely a peaceful purpose. So, therefore, when we talk about common heritage of humankind, it’s not that we want a seabed authority authorizing activities to exploit the seabed. It requires some accommodation to the reality of the earth system. But if we combine the common concern with the common heritage of humankind, I believe that we can be more successful than we have been until now.

Kimberly White
All sovereign states share global ecological commons. And we can now clearly define the interconnectedness of the earth’s ecological systems, oceans, biodiversity, atmosphere, climate, etc. Yet, there is no mechanism of looking at international environmental law from an interconnected perspective. Can the Global Pact for the Environment be that needed mechanism to address this global legal gap?

Ana Barreira
Yes, definitely. Last year, at the UN level, within the UNEP, there were these discussions on the Global Pact for the Environment. And these discussions were an opportunity just to start thinking and stop thinking in a silo manner. In fact, this was something that was addressed by the UN Secretary-General in its report on gaps in international environmental law. That he pointed out that there is no integration at all, there is no interconnectivity among all the legally binding instruments we have. So, therefore, the Global Pact for the Environment represented an opportunity to include principles in it as the integrity and unity of the earth system. And in addition, it’s an opportunity to declare, for the first time, the earth system as a common heritage of humankind. Now, as you know, these discussions are going to be under UNEA5, which due to the COVID-19, are in February 2021. It’s going to be not in person, but it’s going to be a meeting online. And the civil society, we are trying that considerations on the high-level declaration for Stockholm plus 50 takes into consideration the earth system as a common heritage of humankind and as an integrated and unique system. In fact, I must say that last year, Common Home of Humanity and IIDMA, the International Institute for law and the environment, we were attending all the negotiations for the Global Pact for the Environment. And we did several statements asking the government’s there to recognize the introduction of the Global Pact for the Environment, these principles I mentioned. But I must also say that we lack these days, at some levels, some political leadership. I don’t know what is going to happen in UNEA5; the discussions were not really very well last year. And I hope that because of what we are living, the humankind these days, because of the pandemic, the recent change, and there is some leadership, and in fact. I am confident that the EU has always been dawned in climate change negotiations and environmental negotiations take the leadership and an unhealed to bring the framework of planetary boundaries at the international level. And I said it requires recognition of the earth system as a common heritage of humankind, an introduction in the international legal system of a principle on the integrity and unity of the earth system.

Kimberly White
So what’s the next step? What do you see as the challenges of reaching an internationally binding treaty like the Global Pact for the Environment? And do you feel that sovereign states can unify so that this proposal can become real?

Ana Barreira
So, sovereignty has been subject to certain limitations as a consequence of the gradual recognition of the interconnectivity among live resources and ecosystems. State sovereignty is a fundamental principle of international law. However, this term is often used in a political sense, with differing interpretations depending on context and intention. However, in order to protect our earth system, it is important to clarify the rights and obligations that this principle embodies. And it is paramount to clearly understand that the earth system is not under the sovereignty of any state, and they cannot appropriate it. At the same time, activities carried out under the jurisdiction of any state may positively or negatively impact the earth system. I would say that the notion of sovereignty is dynamic, evolving with the development of the global institutional environment. And today, sovereignty implies the limitation to respect the other sovereignty as well as the obligation to respect international law. And this requires collaboration within the international community, representing an obligation to cooperate, take into account the interests of others, and to contribute in good faith. But in addition, the scope of sovereignty has been limited through principles of international environmental law. The main elements of sovereignty and equality of estates are a jurisdiction over a territory and the permanent population living there, a duty of non-intervention in the area of exclusive jurisdiction of other states, and the dependence of obligations from customary law and treaties. And according to international law, each state has the competence to develop policies and laws in respect of the natural resources and the environment of their territory. Therefore, states have sovereign rights upon elements, elements which are part of the processes comprising the earth system and which are within the scope of the planetary boundaries.

In addition, there are certain areas that are outside the territorial scope of any state in which they cannot exercise or affirm their exclusive jurisdiction, and these are known as global commons. And these are the high seas and its seabed, the subsoil or outer space, the atmosphere, among others. And there is a problem because of all the lines dividing the territories our intention with the interdependency and interlinkages of the subsistence processes of the earth system. And we cannot deny that activities that are taking place in all these areas subject to jurisdiction of the states have an impact on the balance of the earth system, and this can put under pressure the planetary boundaries. But I want to emphasize again that international law has been evolving in certain limits to activities undertaken within the jurisdiction of a state with the purpose of avoiding impacts beyond their jurisdiction or within the jurisdiction of other states. And one example is the Trail Smelter case that derived from a dispute in the 40s of last century between the United States and Canada over the emissions of sulfur fumes from a smelter located in Canada, which caused damage in Washington State. And the arbitration tribunal found that under international law, no state has the right to use or permit the use of its territory, in such a manner as to cause injury by fumes in or to the territory of another, or property or persons during when the case is of serious consequence, and the injury is established by clear and convincing evidence. There are many other judgments, even from the International Court of Justice, that have been developing this finding by the arbitral tribunal. In many cases, like, for example, in the pulp mill case between Argentina and Uruguay, for example. And there are as I mentioned before, there are principles of international environmental law that limit the principle of sovereignty. And one of them is principle 21 of the 1972 Stockholm declaration that recognized the principle of permanent sovereignty over natural resources but limited the sovereignty of estates imposing a duty to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction. And this is also known as the no-harm principle, a Rio Declaration principle to also reproduce this principle, just with a small amendment. So, therefore, as a conclusion, I would say that in the second decade, now, we are about to enter in the third decade of the 21st century, this obligation that the states have to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states, or of areas beyond the limits of national jurisdiction must be interpreted as an obligation that requires not to put on the risk the earth system’s stability, and therefore not to transgress or overpass the planetary boundaries.

Kimberly White
Exactly, because recognizing the earth system as a common heritage of humankind is the first step to restoring a stable climate.

Ana Barreira
Yeah, and I will say that climate change is one of the core planetary boundaries, but we need also to consider biodiversity. So, we have to consider both. I would say we need to consider all the planetary boundaries, and we have trespassed some of the planetary boundaries. And climate action is fundamental, but we need also to consider the protection of biodiversity because this is integrated. So everything is linked. And, we need to consider that we cannot just concentrate only on climate change, because as the science has told us, there might be cascading effects. So we need healthy biodiversity to have a healthy planet, and we need a stable climate for healthy biodiversity. So everything is interlinked.

Kimberly White
Absolutely. Everything is connected. So when we’re developing and implementing solutions and plans of action, it is imperative that this is taken into account. I think we will see a much higher success rate. So jumping into my next question, and I know we’ve mentioned the EU a couple of times at this point, but the EU has been at the forefront of climate action with its Green Deal, aiming to become the first Climate Neutral continent by 2050 at the latest. Given your extensive experience in international environmental law, can you share your thoughts on the European Green Deal?

Ana Barreira
The EU has always been a leader, front runner in fighting climate change. In fact, it was during the Kyoto Protocol negotiations. And, for example, when the Kyoto Protocol implementation time was extended, the EU committed to mitigate or reduce emissions by 2020 by 20 percent. And now, for example, in 2015, when countries have to send their NDCs, the European Union sends an NDC that committed to reduce emissions 40 percent by 2030. But because of the reports by the IPCC and the emissions gap reports by UNEP, we know that we are not on track, and we need a stronger commitment. And for example, as you know, recently, countries such as the UK have committed to reduce emissions 68 percent by 2030, just to achieve net-zero emissions by 2050. But now the European Union is working, and this is a commitment in the Green Deal to increase the level of ambition in the NDC to at least 55 percent. This was presented last year, in December last year, when COP25 was taking place in Spain, here in Madrid. And now, this year, the EU, as part of the European Green Deal, committed to a lab to prepare an EU climate law. The European Commission published its proposal for a European Union law last March. Now, these laws have been under negotiation and as part of the EU legislative system or process. The European Parliament has pointed out that the commitment of a reduction of emissions by 2030 by 55 percent has to be increased to 60 percent. In fact, there is a European Council meeting, and they are going to analyze this. There has been the publication of scientific studies at the EU level that says that the EU has to increase its NDC by 65 percent. Let’s see what happens. But there is a commitment. If you go through all the Green Deal to make and to achieve that, the EU, all it’s the economy; it’s totally decarbonized by 2050, and that we achieve a net-zero emission that year to comply with article two of the Paris Agreement and just to contribute, at least to keep the temperature not to increase more than 1.5 degrees centigrade. So I think that this is really remarkable because if you go through the Green Deal, all this is going to be not only through climate policy, which is fundamental of course, but the EU are deploying new policies. It’s reviewing all the systems we have for environmental protection, and it is as I said before, the Green Deal is striving that we live within the planetary boundaries because the Green Deal is not only about climate policy; it’s about also biodiversity protection.

Also, we have a new circular economy strategy as part of the Green Deal. I can give you many more examples like, for example, there is a strategy on from farm to fork, which is linked also to the biodiversity strategy, as I mentioned, with the reduction of fertilizers, but also how the soil is used. And to introduce regenerative agriculture in Europe. So there are many of the planetary boundaries in this European Green Deal. And there are going to be reforms in all those directives that are not helping the introduction, and just to abolish all barriers for renewables.

Also, there are commitments, although these commitments are already very old, ending with perverse subsidies, and one of those perverse subsidies are subsidies on fossil fuels. I would say that, for example, this is one of the problems of what has happened at the international level, the international community that we have many commitments that have not been achieved, they haven’t been complied with, like, for example, the Aichi commitments of the CBD. It has been clear that we are not achieving the commitments that were put on the table 10 years ago, in the Convention on Biological Diversity, but for example, the EU committed to end fossil fuel subsidies in 2010. In 2001, when it was preparing the road to the World Summit on Sustainable Development in Johannesburg. So there have been many commitments that have not been achieved. And this is something that the Green Deal also points out that there has been a deficit in the implementation and enforcement of legislation. So we need to also reinforce the governance system because we need new legal instruments. Right, but we need also institutions that have enough resources to follow compliance and to ensure compliance. Of course, as we are seeing at the international level, in many countries, there are nowadays a lot of climate change cases and climate change litigation. And there are very good outcomes for those cases. But I always said as a lawyer that I don’t want to go to court because if we go to court is because the damage is already done. And sometimes courts take years to give a decision. And we need stronger institutions that can follow that laws are correctly implemented, and also that companies, citizens, public administrations are more aware of the importance of respecting the laws and respecting the laws of the earth system. Because if not, we are really in a crisis, we are in a crisis, because we have already a very developed legal system that has not been complied with. And that’s why now we need as we have more scientific knowledge, we need to integrate that scientific knowledge in our laws. But we have not much time. Therefore, that’s why compliance and enforcement are key. And this is in the Green Deal, the European Commission commits and ask also member states to give enough resources to all the institutions in charge of implementing the laws to achieve the outcomes.

Kimberly White
Absolutely. And, you know, as we have been in the midst of this pandemic we’ve seen an increase of proposals for green recovery plans around the globe. Following the covid-19 pandemic, it’s really crucial that governments take this opportunity to build back better, not to return to business as usual. Now, the EU proposed a recovery plan that places the Green Deal at its core. In your opinion, what are the highlights of that proposal?

Ana Barreira
Okay, the European Union, it’s now it’s everything is almost concluded, all the negotiations for the multi-annual financial framework, which is the budget until 2027, and also their recovery and resilience facility. But it is amazing. I would say because the European Union is committing €672.5 billion for the recovery. And member states, in order to get access to those funds, need to make recovery and resilience plans that are going to be assessed by the European Commission. But it is remarkable that 37 percent of the amount of this recovery and resilience facility that the EU has established under what is called the EU next generation has to be committed to climate change and for biodiversity protection. So it is the first time I would say that there is this commitment just to overcome a crisis through protecting our planet and looking at the planetary boundaries. But at the same time, we need to just to have a focus on the conditionality because what we need to know is what is going to happen with the rest of the funds. But I would say that having the Green Deal, as it has been said by the Vice President of the European Union, is the growth strategy of the EU, at the core of the recovery plans and of the multiannual financial framework of the EU; it gives some sight of how it’s going to be the future of the EU and how the EU can impact in other regions of the world and how the EU can impact as a model in their recovery plans that all the regions in the world are preparing now. So, therefore, I feel that these commitments are really essential and are fundamental.

Kimberly White
All right, and there you have it. The interconnections between the economy, social justice, environmental degradation, biodiversity loss, and the climate emergency are becoming more evident. We need healthy biodiversity to have a healthy planet, and we need a stable climate for healthy biodiversity. The Global Pact for the Environment represents an opportunity to integrate the principles of the integrity and unity of the earth system and, for the first time, declare the earth system as a common heritage of humankind. Recognizing the earth system as a common heritage of humankind is the first step to restoring a stable climate. That is all for today, and thank you for joining us for this episode of Common Home Conversations Beyond UN75. Please subscribe, share, and be sure to tune in on January 27th to continue the conversation with our special guest, Viriato Soromenho-Marques, Professor of Political Philosophy, Philosophy of Nature, and European Ideas at the University of Lisbon. And visit us at www.ThePlanetaryPress.com for more episodes and the latest news in sustainability, climate change, and the environment.

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