16 April 2015
The Oslo Principles: States have ‘common but differentiated’ obligations to curb climate change
On 30 March 2015, a working group of current and ex-judges, advocates and professors from across the globe released the Oslo Principles on Global Climate Change Obligations. The Oslo Principles seek to overcome the political impasse which has so far obstructed agreement on defining a common international approach to climate change. They aim to ‘identify and articulate a set of Principles that comprise the essential obligations States and enterprises have to avert the critical level of global warming’. ‘These principles underscore that states have moral and legal duties to take action to avert the destructive effects of climate change’, said Thomas Pogge, Leitner Professor of Philosophy and International Affairs at Yale and the Director of Yale’s Global Justice Program.
The Principles do so by founding obligations in existing legal principles; the Preamble recognises the ‘grave and imminent threats’ posed by climate change, highlights the existing international obligations to ‘act cooperatively to protect and advance fundamental human rights’, and the legal responsibility of states and enterprises for ‘deleterious transborder effects that human activities in its territory have on other States’. ‘International law already recognizes state responsibility for trans-boundary effects that activities in a state have on other states’, said Jaap Spier, Advocate General at the Supreme Court of the Netherlands and rapporteur for the Expert Group. ‘The Oslo Principles are essentially applying this framework to climate change by drawing on obligations that clearly exist in environmental law, human rights law and tort law.’
The Principles recognise that obligations of states are ‘common but differentiated’ accommodating differences between states based on capacities and development. Nevertheless, the ‘Precautionary Principle’ guides all obligations, requiring that reductions be based on ‘worst-case scenarios’. ‘So long as there are no international agreements imposing clear requirements or strong, explicitly applicable national laws, judges may find it difficult to discern the legal obligation of states … the Oslo Principles offer judges clear and well-supported legal criteria for making such decisions’ said Hon. Michael Kirby, retired Justice, High Court of Australia, a member of the working group.