Legal Aspects of Climate Change

Dr. Cosmin Corendea

Associate Academic Officer/Legal Expert
United Nations University Institute for Environment and Human Security
Bonn, Germany
 Dr. Cosmin Corendea
.

Where to start?

Intergovernmental Panel on Climate Change:

“The observed widespread warming of the atmosphere and ocean,

together with ice-mass loss, support the conclusion that it is extremely unlikely
that global climate change of the past 50 years can be explained without
external forcing, and very likely that is not due to known natural causes alone.”
Dr. Cosmin Corendea

Where to start?

International Environmental Law from 1972 to 2013

International Refugee Law from 1951 to 2013
International Human Rights Law from 1945 to 2013

International Law
Right to self- determination as customary law
International Courts approach
Stateless issue
 Dr. Cosmin Corendea

Progressive Interpretation of Law

The Living Tree Doctrine is a doctrine of constitutional interpretation that says that a
constitution is organic and must be read in a broad and progressive manner so as to adapt it to
the changing times. Lord Sankey stated in the 1929 decision: "The British North America Act
planted in Canada a living tree capable of growth and expansion within its natural limits." This
is known as the Doctrine of Progressive Interpretation.

+
Policy Oriented Jurisprudence provides guidance to scholar, adviser or decision maker for
directing attention to the relevant features of particular contexts for purposes of inquiry and
affective intervention. Developed by Lasswell and McDougal and continued by Wiessner and
Willard, this type of jurisprudence starts with the delimitation of a problem as characterized by
a discrepancy between predicted and desired future decisions regarding conflicting claims on
any issue in society.
 Dr. Cosmin Corendea

Progressive Interpretation of Law

It suggests that the problem at issue needs to be defined precisely and comprehensively in
its relevant context, using all available reservoirs of knowledge. Authoritative and
controlling responses to conflicting claims are analysed as the relevant decisions of the
past in light of their conditioning factors, including the predispositions of decision-makers
and environmental elements. Only in light of these ever-changing conditioning factors can
predictions about future decisions be made that are reliable. Moreover, what will be
decided is not necessarily what should be decided. Accordingly, the approach recommends
solution(s) top the problem(s) of concern that reflect the common interest of the
community. Such solutions, policy-oriented jurisprudence posits need to maximize access
by all to all the values human desire. This is the distinctive social interventionist feature of
the approach.
 Dr. Cosmin Corendea

Environmental Law
Duty Not to Cause Environmental Harm

States have the responsibility 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. (Rio Declaration, Principle 2)

Good Neighborliness or Sic Utere

States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility 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. (Declaration of the United Nations Conference on the
Human Environment, Stockholm Conference, 1972, Principle 21)
 Dr. Cosmin Corendea

Environmental Law

The Polluter Pays Principle

National authorities should promote the internalization of environmental costs and the
use of economic instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution. (Rio Declaration, Principle 16)

Right to Development

The right to development must be fulfilled so as to equitably meet developmental and

environmental needs of present and future generations. (Rio Declaration, Principle 3)
 Dr. Cosmin Corendea

Environmental Law

The Precautionary Principle

Where there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation. (Rio Declaration, Principle 15)

The global environment is a common concern of humanity.

(IUCN Covenant, Principle 13)
 Dr. Cosmin Corendea

Impacts from a Human Rights perspective

Sea level rise and storms are direct causes of flooding of territories, population
displacement, salination of fresh water resources, diminishing habitable and cultivable land

Impact in turn affect the right to self-determination, right to property, right

to life, right to work, right to development, right to culture...

Rising surface termperatures leads to greater occurence of diseases ...

Impacts affect the right to health and the right to life

 Dr. Cosmin Corendea

Impacts from a Human Rights perspective

Increasing frequency and intensity of extreme wheather events

affects right to life, right to health, right to housing...

Receding coastlines and permafrost melting cause damage to land, houses and other
infrastructure

affecting the right to an adequate standard of living

Dr. Cosmin Corendea

Impacts from a Human Rights perspective

Most Human Rights affected concluding to…

Human Security
State Identity Rights*
Political Rights
Administrative Rights
Environmental Rights
Socio- Cultural Identity Rights
International Human Rights impact
 Dr. Cosmin Corendea

Refugee Law

A person who owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is unable
or, owing to such fear, is unwilling to return to it (1951 Convention, Article 1)
 Dr. Cosmin Corendea

Refugee Law

The Principle of Non-Refoulement

No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social or political opinion (1951
Convention, Article 33)
 Dr. Cosmin Corendea

Playing Safe…

“Environmental migrants are persons or groups of persons who, for reasons of sudden
or progressive changes in the environment that adversely affect their lives or living
conditions, are obliged to have to leave their habitual homes, or choose to do so, either
temporarily or permanently, and who move either within their territory or abroad”

(IOM working definition)

Dr. Cosmin Corendea

Or…

Historical context of the Convention

UNHCR mandate and jurisdiction
Migrants vs. Refugees
Adaptation vs. Resettlement
Emergency, Forced or Motivated Migrants?
Direct/ indirect displacement
Short term vs. long term Spain/Colombia TCLM
Stateless
LACK OF LANGUAGE
Dr. Cosmin Corendea

Global

Regional

Prevention
Dr. Cosmin Corendea
 Dr. Cosmin Corendea

Thank you!
UNITED NATIONS UNIVERSITY

Institute for Environment

and Human Security (UNU-EHS)

Platz der Vereinten Nationen 1

53113 Bonn, Germany

Tel.: + 49-228-815-0274
Fax: + 49-228-815-0299

e-mail: corendea@ehs.unu.edu
www.ehs.unu.edu
 Dr. Cosmin Corendea

International Hybrid Law Definition

International Hybrid Law represents a legal research tool which concurrently, indivisibly,
interdependently, and interrelated analyse a climate change case study from three
perspectives: environmental law, human rights and refugee (migration) law.

Hence, the research is simplified, using a single lens as a replacement for a three way
analyse.
Dr. Cosmin Corendea
Dr. Cosmin Corendea

Purpose of International Hybrid Law

Environmental Law (cause)

Human Rights (effect)

Refugee/ Migration Law (subsidiary effect)

Under the umbrella of International Law

 Dr. Cosmin Corendea

Advantages of using International Hybrid Law

1. In addition to a basic and clearer picture, if used concurrently under the umbrella of
international law, the case study benefits of all principles and rights emerging from all
three branches, regardless of source. Thus, if the case requires an influential argument,
this could be easily found in one of the three branches and used accordingly, not
necessarily considering the power (soft vs. binding) of the law; the same theory of
using all three branches of law within the same analyses with the hybrid law principles,
applies in the case of the signatory (or not) states of interest.

Example: The principles of environmental law do have a stronger resonance in

international law compared with the right to a clean environment from the human rights
law.
 Dr. Cosmin Corendea

Advantages of using International Hybrid Law

2. Increased protection of the case. The case is guarded simultaneously by three combined
branches of international law therefore the human security increases exponentially.
One of the results of such protection is represented by the Climate
Refugees/Migrants, which are not recognised under refugee/migration law, but gain
more protection from the human rights law and yet, environmental law. Nevertheless,
in the case that refugee law ‘would not apply’ in the case of the Climate Refugees-
according to the UNHCR actual position- there are principles under the 1951
Convention which could easily be used under hybrid law.

Example: The Principle of ‘Non refoulement’, which could be extracted from the refugee law
and be valid in the case of climate induced migrants, although the 1951 Convention does
not apply.
Dr. Cosmin Corendea

Progressive Interpretation of Law

 Dr. Cosmin Corendea

Progressive Interpretation of Law/ Question

What if the main cause identified by the hybrid law in the field of environment law could
become the effect (or subsidiary effect) of human rights or refugee law violations, in a
reverse analysis? Could climate change be considered an effect of these violations?
 Dr. Cosmin Corendea

Homework 

*Legal comparison analyses: fight against terrorism/ fight against environmental

degradation emanating from outside the country

If a state sinks beneath the sea, is it still a state?

 Dr. Cosmin Corendea

Thank you!
UNITED NATIONS UNIVERSITY

Institute for Environment

and Human Security (UNU-EHS)

Platz der Vereinten Nationen 1

53113 Bonn, Germany

Tel.: + 49-228-815-0274
Fax: + 49-228-815-0299

e-mail: corendea@ehs.unu.edu
www.ehs.unu.edu