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Governing fossil fuel production in the age of climate disruption: Towards an international law of ‘leaving it in the ground'

Harro van Asselt (2021)

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This paper suggests there is a disconnect between fossil fuel production/supply side policies and the international climate, human rights and investment regime. It canvasses developments in supply-side policies and anti-fossil fuel norms and outlines the benefits of such policies, including in relation to norm-creation. However, it notes that international law currently does not provide “clear or consistent normative guidance” on addressing supply-side policies to meet international climate targets. Its lack of coherence on this point allows states to continue to produce fossil fuels whilst focusing on downstream emissions. 

For example, the international climate regime focuses on demand-side policies and fails to adequately mention the role of fossil fuels in climate mitigation specifically. However, it does note that the Paris Agreement offers some normative guidance on fossil fuel supply/production, through its ratchet mechanism and long-term goals. The UNEP Production Gap Report suggests ceasing fossil fuel development to meet those goals. Paris also specifies making finance flows consistent with low emissions pathways, which has triggered discussion on fossil fuel production. Finally, Paris’s reference to just transition and recent work highlights the high risk of job losses in the fossil fuel sector, implying its role in climate mitigation.  

Secondly, international human rights law remains unclear as to its normative direction on fossil fuels. Although, several soft law instruments recognise the role of managing fossil fuels to address human rights-based issues, providing some guidance to states. 

Lastly, international investment law establishes a regime where investors can bring claims against host states for compensation when those states adopt supply-side policies, triggering a range of adverse effects (e.g. a “regulatory chill” effect on climate policy). 

Taking an earth system law approach, the paper highlights criticisms of the international regime, including that its legal frameworks “lack a systemic approach” by focusing on causing emissions rather than extracting fossil fuels. Its human-centric timescale also ignores the temporal perspective needed to understand the long-term consequences of fossil fuel extraction. Its reductionist framing of climate change fails to capture the interconnected nature of earth systems e.g. by failing to integrate environmental concerns into human rights and investment regimes. Finally, the international regimes are state-centric. 

Critically, the paper considers what international law should look like to achieve a just transition away from fossil fuel supply/extraction. It sources normative guidance on leaving fossil fuels in the ground from soft law and binding documents that reflect: the principle to avoid environmental harm, the principle of prevention, the principle of carrying out environmental impact assessments, the principle of equity and common but differentiated responsibilities, and substantive and procedural human rights. 

Suggesting avenues for legal reform, the paper advocates for an informal “coalition of the willing” to establish non-binding commitments targeting supply-side policies, reinforcing anti-fossil fuel norms. Secondly, states should align rules of existing agreements with supply-side policies e.g. incorporating those measures in nationally determined contributions under the Paris Agreement, and renegotiating/withdrawing from investment treaties. Thirdly, states should enter into a new treaty that targets fossil fuel production. 

This paper shows that while international law does not provide coherent direction towards phasing out fossil fuels, it provides some broad direction that can be used to support such supply-side policies. It reinforces the importance of supply-side policies and proposes ways to justify such policies under the regime. Critically, it recognises the importance of early movers creating anti-fossil fuel norms that eventually trigger wider action, suggesting the strong normative power that rejecting a proposal for new fossil fuels may have in addressing climate change globally. 

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