Podcast: Maja Groff, International Lawyer and Convenor of the Climate Governance Commission

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Common Home Conversations Beyond UN75

May 5, 2021

Kimberly White
Hello and welcome to Common Home Conversations. Today we’re joined by Maja Groff, an international lawyer based in The Hague and Convenor of the Climate Governance Commission! Thank you so much for joining us today!

Maja Groff
Pleasure to be here with you, Kimberly.

Kimberly White
So you previously worked with the Permanent Bureau of The Hague Conference on Private International Law. Can you tell us more about this experience?

Maja Groff
Yes, absolutely. It was really a great pleasure to serve as an international civil servant at The Hague Conference on Private International Law, serving the international community, the member states of the organization, which now number over 80 states. And I worked there for over a decade, working on a whole range of existing, binding multilateral treaties across very diverse areas of law, as well as on the development of new international treaties and legal norms. And really, as we see globalization intensifying across a whole range of areas, the demands on international law really are accelerating. So just as an example, of some of the areas I worked on at The Hague Conference, I worked on very widely ratified vital children’s conventions, a convention on the protection of adults with disabilities in cross border circumstances, I worked on a pioneering international Hague network of judges, as well as new potential treaties in areas such as the cross border protection of tourists, the recognition and enforcement of foreign civil protection orders in cases of domestic violence, and facilitation of access to foreign law. So it was a really wonderful experience across so many different diverse areas of international law, international human rights law, which exposed me to diverse legal systems around the world, diplomatic processes, and really gave me a sense of the great potential that modern international law can have, in terms of really addressing global issues, very concrete access to justice issues for individuals, for other actors. So it was a really wonderful background for the current work I’m doing at the moment.

And just another note that The Hague Conference on Private International Law happens to be one of the oldest intergovernmental organizations in the world, dating from 1893. So it’s been also a really brilliant vantage point to see sort of the origins of international law dating from the late 1800s to the first Hague peace conferences in 1899 and 1907, which set the stage for some of the international peace and security law we currently have, and for the League of Nations, and the United Nations. So it’s been just a wonderful, brilliant vantage point, as well as being around modern international criminal law institutions, the Tribunal for the Former Yugoslavia, the Special Tribunal for Lebanon; I’ve worked at both of them. And to see how international law can progress and make quite dramatic leaps forward with sets of dedicated professionals, dedicated international civil society networks, it’s very promising for us and the international community.

Kimberly White
That is quite impressive! And it sounds like you had such wonderful experiences with the different aspects of that. And now you’re working with the Global Challenges Foundation. So, the Global Challenges Foundation has identified three global risks to humanity. Can you please tell us what these risks are?

Maja Groff
Yeah, I think the Global Challenges Foundation has been good at raising awareness, public awareness, policymaker awareness about the range of global threats, global risks that confront us. And at the moment, there seems to be, from the Global Challenges Foundation, really a focus on climate change, large-scale environmental degradation, and weapons of mass destruction, which are key and thought to be interconnected challenges. So, of course, climate and large-scale environmental destruction is a newer threat versus the arms threat. And as we all know, they are an accelerating threat, these ecological and climate threats, and also dependent on understanding and policymaking based on very complex and evolving science, so quite a challenging area for international policymakers.

The weapons of mass destruction issue, of course, with the nuclear age after World War II, has come into focus for the international community, and is less well known, I think, by the general public at the moment, because of some very quite effective arms treaties, bilateral in particular between the US and the former USSR, after the Cold War to regulate bilaterally some of those very dangerous arms races. But now, commentators and experts are also saying that we are living in a high-risk world in the case of weapons of mass destruction, across a whole range of areas, not just nuclear weapons, there’s also the threat of new lethal autonomous weapons, the use of AI, we know all about cybersecurity threats. We also know of bio weapons related to different technologies in the development and engineering of viruses, for example. Chemical weapons are still very important and remain a threat. And so on. So I think it’s excellent that the Global Challenges Foundation is trying to raise awareness of these interconnected threats, relating to other global threats and try to think carefully and think together, also in an innovative way about how we improve our collective decision making to tackle these threats and indeed, part of the vision of the founder Laszlo Szombatfalvy is to find new international decision making and global governance mechanisms that will, in a consistent, reliable way, manage these risks that we confront.

Kimberly White
Additionally, the Global Challenges Foundation highlighted the three underlying forces of these risks. Can you share more about these?

Maja Groff
So yes, the Global Challenges Foundation has highlighted these three contributing forces- extreme poverty, population growth, and political violence. So I think these are quite interesting, sort of contributing factors that are very socially based throughout our societies. So, for example, we see different polarized movements, unfortunately, across a range of countries and sort of internationalized polarized movements that add to our global risk. Population growth is also highly relevant to our ecological crises and threats and how we accelerate our responses to the ecological threats so that we don’t all become over-consumers, as has happened in the developed world without transitioning to economies where we can have really deep circularity, so we really reuse and recycle and make sure that we’re not just depleting global natural resources.

Kimberly White
So international environmental law seems unable to deal with the shared global problems we are facing today. It is state-centered and doesn’t necessarily cater to our shared responsibilities toward the global environment, even though the well-being of states depends on the well-being of our global environment. Why is current environmental law unable to achieve the deep structural reforms necessary to address shared global issues such as climate change?

Maja Groff
Yes, it’s a very good question, Kimberly. I think it’s one that we have to keep asking ourselves. As an international lawyer, I think it’s vital to keep interrogating and asking how international law can better serve us as a global community, and indeed, national communities that are so deeply affected by climate change, by ecological issues that really are global and know no borders.

So I would say that really the general frailties across broader international law are relevant to the field of environmental law. And these limitations are well known, but also I would say, especially in the legal professional community and in policy communities, the sort of deficits in international law kind of structurally are still largely accepted. So, for example, we still have these fragmented, cumbersome international treaty-making processes with no more streamlined international legislative capacity with legitimacy to ensure we have adequate and updated international norms that, in some cases, should be binding. You know, for example, in the EU, there is legislation with direct effect. At the moment in international law, of course, each state has to join each individual treaty independently. And it takes such a lot of time, not only to negotiate the instruments but then also to have wider acceptance in the international community by ratification or accession can take years and years. And then, of course, we don’t have consistent judicial oversight on key international legal norms. There are just some key structural deficits, I would say, in the international legal system. We have some newer, more modern legal institutions and legal regimes that show again some progress in international law and show the potential of international law that could be better applied in the environmental sphere. For example, we’ve seen these ad hoc International Criminal Tribunals in The Hague for the former Yugoslavia and other places. We have the International Criminal Court, the Organisation for the Prohibition of Chemical Weapons. The dispute settlement mechanisms of the WTO and the United Nations Convention on the Law of the Sea also are like more modernized dispute resolution mechanisms between states that are a bit more advanced than are general international law mechanisms that really date to 1945 and the UN Charter.

So I would say that there should be a lot more attention to monitoring enforcement and adjudication in the international environmental law area. As is the case, sort of, for general international lots due for an upgrade, but it is excellent to see all the various civil society groups and new coalitions that are advocating for new legal norms, new legal paradigms, which I think is very promising, and might lead to more positive changes in the field of environmental law.

Kimberly White
Absolutely. In the past few years, there have been quite a few challenges to climate action, including climate denial. Especially coming out of the United States at the federal level. However, I think one good thing that has come from that is how it has brought together civil society. We have seen people really come together and demand that this threat we are all facing be addressed and it’s becoming a bigger part of the conversation.

Maja Groff
Yes, absolutely. I couldn’t agree more. It’s very promising.

Kimberly White
So you’re the Convenor of the Climate Governance Commission, an initiative of the Global Challenges Foundation. Can you tell us what climate governance is?

Maja Groff
Yes, absolutely. So the Climate Governance Commission came out of some various workstreams, we could say, from an international prize, the Global Challenges Foundation awarded in 2018. And colleagues and I participated in that, and we were awarded one of the prizes. And really, I worked with an international economist and an international ecologist, and we were trying to propose a new, more comprehensive model for enhanced global governance. And we have a book published in 2020 by Cambridge University Press on this topic. And by the way, it’s available open access on the Cambridge University Press website; we really wanted to facilitate a global dialogue on this topic. So as in other areas of international law and governance, there is a governance gap, we would say, in the climate governance area, as in other areas, even though the success of the Paris Agreement in 2015 is real, it’s a remarkable achievement. Yet to date, it still has not managed to really get the world predictably and reliably on track to manage the global climate system, related ecological systems in a more permanent, stable, reliable manner. So in simple terms, if we talk about governance, it means the institutions or processes we collectively put in place to solve our shared problems or other issues which need to be effectively managed. So climate governance, in simple terms, is the effective management of the global climate system. So the Commission is taking this global governance perspective, trying to look from the International down to the national, in general, rather than still the predisposition to look from the national up to the international to think about what global governance innovations, changes can we recommend in the near-term, medium-term, longer-term, to really better manage the global climate and related planetary boundaries, the earth system in a stable, predictable, reliable way that is fair and legitimate.

Kimberly White
Now, you mentioned the Paris Agreement. And we’ve seen a few landmark treaties in the past 20 years or so. Please explain the key differences between the Kyoto Protocol and the Paris Agreement and how the proposed Global Pact for the Environment can build on these two landmark agreements?

Maja Groff
Yeah, so as I mentioned, the international community should really be proud of the Paris Agreement and the achievement of its adoption in 2015, and it was a giant step forward in establishing an operational regime that was, or is now essentially universal, also with the US rejoining the Paris Agreement again. And this achievement was after some 20 years of failed attempts to manage the global environment through the Kyoto Protocol and its paradigm and other related efforts. And so the Paris Agreement represents really a shift in diplomacy, a shift in perspectives that adopted a bottom-up structure for emissions targets with the now famous Nationally Determined Contributions but also balanced in the Paris agreement by top-down provisions for strong global emission goals and accountability provisions through reporting and review, for example. And it also shifted the paradigm of differentiation between developed and developing countries, which was a key stumbling block in the Kyoto Protocol. And the Paris Agreement seeks to continue to assure developing countries that their priorities for growth and development are fully respected, but putting in place a much more supple means of differentiating between developed and developing countries than in the 1990s, and sort of the precursor paradigm. So the Paris Agreement is this model of a race to the top, ratcheting up commitments. Only recently, with the US rejoining, we see some of that new energy and momentum, again, building within the Paris Agreement structure. So that is hopeful; we’ll have to see what happens at Glasgow, but also in the coming years.

Now, you mentioned also the Global Pact for the Environment. And as far as I know, I haven’t read the full draft text of the Pact for the Environment, but according to the materials communicated by colleagues, and I’d like to study and dialogue with the drafters on the text of the Pact, but it’s meant to be a new synthesis document of key environmental principles, some of which, some of the principles, which have been around for many years since Stockholm in 1972, or Rio in ‘92, but haven’t been enshrined in international law. So it’s sort of a gap-filling key principles treaty, as I understand the proposal, that enshrined for example, the right to a sound environment and also a duty of care to the environment—so trying to shift humanity’s understanding of its relationship to the environment in sort of a profound way. And also, then, in trying to keep substantive principles like the duty to prevent and repair environmental damage, the precautionary principle, integration of sustainable development objectives, and then procedural principles like access to environmental justice, and a number of other features. So I think, absolutely, this would be sort of a very interesting, paradigm shifting treaty that would help to consolidate modern international environmental law. However, it still does, as far as I understand, follow a sort of traditional paradigm of international law and including the sort of control mechanisms or committee function as envisioned currently. But I’d have to discuss more with the drafters to fully see what they have in mind and also where this proposal might be going in terms of further developments.

Kimberly White
Now, going back to Kyoto versus Paris, would you say that Kyoto had stronger penalties for inaction or failure to meet the targets than the Paris Agreement?

Maja Groff
Yes. So the Kyoto Protocol is a little bit infamous at being sort of a top-down sort of heavy penalty-related kind of a convention or instrument. And I guess also in circles that have been heavily engaged in the Paris Agreement, that sort of now, something that is sort of a lesson in what not to do in this area. However, it’s also a matter of timing and political will, as you were saying earlier. Public opinion has shifted a lot on the issue of climate change and ecological risk, so an instrument like the Kyoto Protocol, perhaps the time hadn’t come for such an instrument. There are other flaws, of course, in the protocol. But one could envision shifts back to different approaches to a climate governance regime building out from the Paris Agreement. For example, I’m not saying that the time is necessarily right for that now, or we don’t know when. But again, back to my point about the capacities of international law, I think we have a much wider toolkit to use different mechanisms of international law for enforcement and adjudication and monitoring, etc. That should really be considered in the field of climate governance and ecological governance. However, again, at the moment, all actors are trying to put all of their energy into making the Paris Agreement work, to really roll up their sleeves, to work with non-state actors to work with the cities at the city level, to try to accelerate the really badly and urgently needed exponential climate action. So what we’ll see in the coming years, what dent that makes in achieving the Paris Agreement goals, and indeed, in trying to bend the emissions trajectory towards a limitation where we could achieve the 1.5 degrees Celsius global temperature limitation. That’s a huge challenge. But there are more and more actors coming on board. And again, not just states that are vigorously working to achieve this.

Kimberly White
Absolutely. And I think the COVID-19 pandemic, while it has been extremely devastating, gives us the unique opportunity to rethink our targets and how we’re addressing these issues and gives us a chance to shift toward a more climate positive, nature positive path forward.

Maja Groff
Absolutely.

Kimberly White
What do you see as some of the main challenges of reaching international treaties such as the Paris Agreement, Kyoto, or the proposed Global Pact?

Maja Groff
Yeah, I think there are a whole range of challenges. And maybe I’ll just name a few because I think these processes are so complicated. And the backdrop, the geopolitical backdrop, for example, can make a huge difference at any one particular time. To have such achievements like breakthrough treaties, breakthrough progress, the stars sort of have to align in terms of what administrations are in place in various major countries; for example, like the US that has traditionally been a real leadership country in a range of areas. So there are a whole lot of background factors that I think are important for successful treaty negotiation, successful adoption of new significant international norms. However, apart from those sorts of dynamics, you know, national governments, geopolitics, I think legal experts, international civil society can do a lot to develop really sound proposals that have policy and legal proposals of excellence that are well thought through, that are developed as a result of consultation with a broad array of stakeholders, including governmental actors, civil society actors, progressive business actors. So I think if proposals are very well developed and thought through, they can have a natural kind of force, sort of like a gravitational pull. Because the international community and most civil servants from countries around the world that I’ve worked with, they’re looking for solutions to global problems. So if well thought through proposals can be put on the table for policymakers, a critical mass of states may get on board, despite major countries having differing views, for example. So I think that’s a really powerful lever for change, also, of course, is what we’ve touched upon a few times this notion of transnational civil society, and the power of a very well organized, vibrant, robust, energetic international campaigns of civil society groups that are working in key issue areas. And as I mentioned, it’s really heartening to see a number of those sorts of coalitions getting started and gathering momentum in the ecological and climate governance area. So I think those sorts of well-designed campaigns which should be strategic, which should have key messages to also engage the public across the world, and the public can be extremely influential in key states, for example, in the US, for the foundation of the International Criminal Court, public opinion was very influential, in also trying to raise awareness and legal norms about genocide. US public opinion has been very, very helpful to push norms forward. So I think there’s a lot that civil society merged with expert platforms can accomplish and offer to the international community. And the vast majority of states, I think, and civil servants working in international organizations are looking for good, sound solutions to help manage our global risks.

Kimberly White
Definitely, and I think all these new programs and campaigns by civil society have definitely helped light a fire that we hadn’t seen previously. So it’s really exciting to see. I know, I always enjoy seeing the different discourse that results from these, and they really can help move the needle. And I think that’s so important to note that I sometimes think with the climate crisis, people feel like, well, I’m just one person, what can I do? And it’s so important to realize that your voice does count, it does matter, and you do have the power to make a difference.

Maja Groff
Absolutely, definitely.

Kimberly White
The Common Home of Humanity has proposed recognizing the earth system as an intangible, global common without borders. In your opinion, how would this help us better address existential threats such as the climate emergency?

Maja Groff
Yes, thank you for raising this really important proposal and having this podcast series also dialoguing on these proposals, which I think is really fascinating. I think the proposal to recognize the earth system as an intangible global commons is paradigm-shifting, in even a deeper way than the Global Pact or others, even though I, of course, think the Global Pact is very worthwhile. But this sort of new legal paradigm to have a global commons with the earth system at the center, I think should be really seriously considered and further developed and workshopped. I think a key point that Paulo Magalhaes has raised is that if you can’t label or categorize something like the earth system or the climate system, it’s very difficult to manage. And I think that’s a valid point. And also, as Paulo has explained, the condominium sort of approach to the earth system where there’ll be a global commons, which would be the earth system. And the safe operating space for humanity to keep the natural systems in balance so that we have a safe operating space for humanity to thrive. Having that as a common intangible, a global commons, and then still having clearly this notion of sovereignty, the nation-state, which is, of course, still a very, very important administrative sort of unit in the international system, I think it’s really a brilliant and interesting suggestion. Also, such an approach would allow the international community to really focus together on managing this common facility that is so vital, vital to our thriving, vital to our survival, interconnected with all sorts of other global risks and security threats, as you had mentioned. So I think geopolitically, in terms of the maturation of the international community and the international system, it would be a wonderful collective project for the international community to take on. Of course, earth system science, planetary sciences, climate science, and scientific proposals about the planetary boundaries, etc. This is still a very evolving complex area of science, and that in itself is a challenge. But in that area, also it’s just extraordinary to see all the talented scientists working in this area, trying to put the pieces together so that we can really think concretely about planetary boundaries or the earth system, we can think on a planetary level as we indeed, absolutely need to do. So as we’ve seen, for example, the work of the IPCC, having this global scientific perspective is just absolutely vital for the international community at this time. So that’s another very exciting part of this work is connecting, connecting to the most recent, international planetary science, which is so important.

Kimberly White
Absolutely, and it’s exciting to see more research come out of earth system science. I know I always enjoy reading new work from the Common Home of Humanity and contributors such as Will Steffen. So it’s definitely a great time for this. And I think it’s such an important effort as we move forward to address these interconnected threats we face. Before we go, do you have anything else that you’d like to share with our audience?

Maja Groff
I only hope that the global public becomes more and more involved, that we think about our common ideas or our common conceptions, that we really engage with proposals, such as those of the Common Home of Humanity. And I hope they become much more widespread publicly, because I think, as you said, a lot of individuals feel very alone. They don’t know what they can do. They feel a lot of climate anxiety. But I think engaging with such proposals, working on them, dialoguing about them with policymakers is very, very helpful, very healthy and will help to shift, really shift our thinking towards new solutions and new approaches.

Kimberly White
Thank you so much for joining us, Maja.

Maja Groff
Thank you, Kimberly.

Kimberly White
All right, and there you have it. Although the Paris Agreement was a remarkable achievement, it has not yet been able to get the world on track to manage the earth’s climate and ecological systems effectively. Recognizing the earth system as an intangible, global common without borders would be paradigm-shifting, providing the international community with the opportunity to focus on managing the global commons vital to our survival. 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 May 19th to continue the conversation with our special guest, Eduardo Viola, Political Scientist and Professor of International Relations at the University of Brasilia. 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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