Timothy A. Gelatt Dialogue on the Rule of Law in East Asia: Climate Change in Asia-Pacific
The U.S.-Asia Law Institute holds the Gelatt Dialogue every year with a different theme but the same broad goal: to foster connection and improve understanding among the legal communities in Asia and the United States. Our focus in 2022 is on climate change in the Asia-Pacific region and specifically how governance institutions and legal systems are being challenged to address it. Four panels, all online, will discuss the interplay between international law and domestic climate governance, climate adaptation in international law, how the US and Japan interact with each other and other major players in climate negotiations, and whether rising emphasis on ESG can push corporations to take action.
The dialogue is co-sponsored by the APEC Study Center at Columbia University.
Panel 1: Climate Governance and the Rule of Law
Post-event summary
Rising temperatures across our planet pose a massive governance challenge. We opened our four-part 2022 Gelatt Dialogue with a high-level appraisal of the international mechanisms intended to drive a collective response and the interplay between international and domestic climate advocacy. International coordination on climate change began 30 years ago with the 1992 Earth Summit in Rio de Janeiro that produced the UN Framework Convention on Climate Change (UNFCCC). Since then, nations have convened repeatedly to establish rules and set targets for reducing greenhouse emissions. The U.S.-Asia Institute’s Executive Director Katherine Wilhelm moderated the discussion.
Oran Young, professor emeritus at the Bren School of Environmental Science and Management at UC Santa Barbara and a leader in the field of environmental governance, said the pursuit of internationally legally binding agreements has been “to put it as positively as possible, highly disappointing.” He said: “We need to be actively exploring the widest possible range of processes and mechanisms. We are in a situation where the climate problem is now a very real climate emergency.” Professor Young found grounds for hope in the proliferation of discussions, deals, and pledges by subsets of countries on the sidelines of the periodic COP meetings, the “conferences of parties” to the UNFCCC. He highlighted the Global Methane Pledge launched at COP26 in Glasgow in November 2021 as one example. “People say pledges are kind of weak. Well, in some circumstances pledges do make a differences. Sometimes people internalize pledges.”
Jacqueline Peel, a professor at Melbourne Law School and director of the University of Melbourne’s multidisciplinary climate initiative, Melbourne Climate Futures, said peer pressure from other countries helped push Australia’s government to pledge to reach net zero carbon emissions by 2050. “That was important in the domestic political process to have that international pressure, and the continual cycle of the COPs provides a point for those national conversations to occur.” She also said small states such as the Pacific Island states have been able to collectively voice their concerns through the UN COP process in a way that probably wouldn’t occur in smaller forums.
Navroz Dubash, a professor at the Centre for Policy Research in Delhi who has studied the interplay between international climate processes and domestic action, responded to Professor Peel: “The fact that the international process has helped to nudge politics in Australia is wonderful but I think it really is because there probably are Australian constituencies that used that pressure effectively. You can’t bypass domestic politics. You have to find ways of working within domestic politics.” Like Peel, he said the most important role of the pledge process is in stimulating domestic conversations. “When India, for example, put out its nationally determined contribution, it led to a whole conversation … about whether and how we meet these things.”
Tabitha Mallory, CEO of the consulting firm China Ocean Institute and an affiliate faculty member of the Henry M. Jackson School of International Studies at the University of Washington, suggested that the COP discussion process also may help change in how world leaders and other actors think about climate problems. “I don’t think we have enough of the kind of thinking yet that is thinking we’re all in this together. We are not going to get solutions to climate change without addressing some of that fundamental thinking.”
By Katherine Wilhelm
Panel 2: Rising Sea Levels in Asia
Post-event summary
Rising sea levels due to climate change are already affecting the livelihoods of millions of persons in the Asia-Pacific region. Globally, more than 70 states – more than a third of the international community – expect to be or already are directly affected, while many other states experience indirect impacts. The UN’s International Law Commission (ILC) is studying whether and how international legal frameworks should be revised to protect the status and rights of affected states. Speakers were Nilüfer Oral and Patricia Galvão-Teles, two of the five co-chairs of the ILC study group on sea level rise in relation to international law. Bryce Rudyk, legal advisor to the chair of the Alliance of Small Island States, moderated.
“One thing we know for a very long time now is that sea rise is happening. It will continue to happen even if we were to go to absolute zero emissions right now,” said Dr. Oral. She said the Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment Report released in August 2021 conservatively estimated the global average sea level rise has already reached 1.1 meters. “Certain areas like Asia will experience a higher level of sea level rise.” But she said that international law has gaps and ambiguities with respect to climate-related shifting baselines, redrawing the maritime boundaries of archipelago states, determining the status of islands when they lose their capacity to sustain human habitation, and the status of historical maritime boundary agreements and decisions in disputed cases. Her work focuses on identifying and addressing these gaps.
Dr. Galvão-Teles’s focus is the impact of sea level rise on statehood and protection of persons. Sea level rise and climate change can have adverse human rights impacts by causing displacement and migration due to loss of land and resources, she said. “What we have now is the absence of a dedicated legal framework to deal with this new phenomenon. … Although sometimes in public opinion and even in legal text there is reference to climate refugees or climate migrants, there isn’t a specific legal category to address this new phenomenon.” The ILC study group is working to identify applicable principles and norms from across human rights law, refugee law, migration law, disaster law, and climate change law and map existing obligations as well as state practice.
By Jessica Chin
Links:
The initial curriculum that was adopted by the ILC in 2018 to guide the work of the Study Group on Sea-level Rise in Relation to International Law, can be found here: https://legal.un.org/ilc/reports/2018/english/annex_B.pdf
The First Issues Paper by Bogdan Aurescu and Nilüfer Oral on the implications of sea-level rise on law of the sea was released in 2020. It can be found here: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/053/91/PDF/N2005391.pdf?OpenElement
Panel 3: US-Japan Partnership in Climate Change
Both speakers spoke in their personal capacities. Their statements and opinions are solely their personal views, and do not necessarily reflect the views of their respective organizations.
Post-event summary
Tomoaki Ishigaki, minister of congressional affairs at the Embassy of Japan to the United States, and Pete Ogden, vice president for energy, climate, and the environment at the United Nations Foundation, spoke about the roles played by the US and Japan in climate negotiations, the interplay between domestic constraints and international action, and areas for closer cooperation to address the accelerating climate crisis. Bruce Aronson, a U.S.-Asia Law Institute affiliated scholar, moderated the discussion.
At an April 2021 virtual climate summit hosted by President Biden, Japanese Prime Minister Yoshihide Suga announced a more ambitious goal for Japan’s greenhouse gas reduction of 46% by 2030 compared to 2013 levels. “It was a major breakthrough in the policy community,” said Mr. Ishigaki. Meeting the more ambitious goal likely will require bringing back online nuclear power plants that were shut down after the 2011 Fukushima nuclear power plant accident. “Only less than 10 percent of nuclear power plants are operating, so … that will be a major political and practical challenge,” said Mr. Ishigaki.
Many members of Japan's business sector are not convinced that Japan needs to be more ambitious, as they believe that Japan has already done quite a bit in comparison with other countries. They are also concerned about the financial cost of reducing emissions while remaining competitive in the global market. Mr. Ishigaki said the good news is that according to a survey of 100 major Japanese companies conducted by a major newspaper, “nearly 60 percent think they can achieve carbon neutrality by 2050, and about five companies say they can achieve it by 2030.”
As for the US, Mr. Ogden described it as “a fickle partner when it comes to climate change. That makes it challenging for many countries because we whip-saw back and forth between being engaged and disengaged – or even outright hostile to efforts globally on this issue.” He cited the US’s withdrawal first from the Kyoto Protocol and later from the Paris Agreement despite playing a critical role in the development of both. When the Biden administration re-entered the Paris Agreement, the US tried to re-exert itself in the space, said Mr. Ogden. “The US ended its practice of subsidizing overseas coal finance. Japan did as well. You can really see the powerful alignment that can take place when the political will is there.” When it comes to providing financial assistance to developing countries to help with their energy transitions, Mr. Ogden said that “Japan has done a much better job than the US has and plays a critical role in terms of helping to meet that global obligation.”
Mr. Ogden said there was a pronounced increase in subnational and private sector engagement and interest in climate change during the Trump administration as the lack of federal action caused governors, mayors, and private sector actors to take on more responsibility, he said. This is important because even though both countries now have the necessary ambition at the top level, change is “only going to be achievable with the rest of society on it.”
Mr. Ogden and Mr. Ishigaki also discussed the challenge for the US and Japan to encourage other countries to raise their mitigation goals, particularly since Russia’s war in Ukraine has led to fossil fuel shortages and rising prices around the world. “Europe’s dependence on fossil fuels has become a huge security and strategic liability,” said Mr. Ogden. “That’s a lesson for the US and Japan. I think that will encourage people who think about this to only accelerate this transition” away from fossil fuels. Mr. Ishigaki agreed and said, “As much as (the US and Japan) are determined to achieve our own goals, I think it would become rather pointless in the global aspiration to achieve the 1.5 degree target if we are not able to bring in other regions and countries.”
By Jessica Chin
Panel 4: Corporate Governance and Climate Change in Asia-Pacific
Post-event summary
Governments, investors, and publics across Asia-Pacific are increasingly demanding that corporations do more to address the climate crisis. Jennifer G. Hill at Monash University School of Law in Australia, Yumiko Miwa at Meiji University School of Commerce in Japan, and Umakanth Varottil at National University of Singapore School of Law discussed changing views on the social role of corporations and corporate governance from a comparative perspective. Bruce Aronson, a U.S.-Asia Law Institute affiliated scholar, moderated the discussion.
In Australia, private corporations have taken the lead in climate action due to an absent government, said Professor Hill. Stewardship shareholder codes have pushed for more environmental and social governance (ESG) efforts and climate-related financial disclosures. Institutional investors including pension funds have increasingly supported ESG-related shareholder proposals. Australian companies have started holding non-binding shareholder votes on their greenhouse gas emissions reduction plans, known as “say on climate” votes. Finally, she said, “there is now significant recognition that Australian directors can be liable for breach of directors’ duty, specifically the duty of care, if they fail to take into account the risks of climate change.”
Professor Varottil talked about developments in India, Singapore, and Hong Kong. He described the Indian government as closely involved in promoting corporate governance with respect to climate. This is “because India is one of the countries that is most affected by climate change. There are always stories about extreme weather events in India such as heat waves, floods, and irregular monsoons. … One study shows that heat-exposed work constitutes about 50 percent of India’s GDP and employs nearly 380 million people. So even a slight increase in temperature can affect about 75 percent of the workforce in India. It’s an existential issue.” India’s companies act uniquely requires company directors to act for the protection of the environment, he said. By contrast, Singapore and Hong Kong have no such explicit duty “but nevertheless there is increasing understanding at least among the industry and practitioners that implicit in the directors duties is the fact that climate risk should be considered.”
In Japan, due in part to reforms of the Corporate Governance Code and Stewardship Code last year, companies are required to “disclose their paths to de-carbonization and to develop bold oversight on ESG issues,” Professor Miwa said. In addition, beginning in April 2022, disclosure requirements increase for companies listed on the highest tier of the Tokyo Stock Exchange. Foreign investors, who hold more than 30 percent of shares outstanding in Japan, also are a source of pressure on Japanese companies to go green. Recent shareholder proposals related to climate risk have resulted in a trend of environment-related votes, said Professor Miwa.
The speakers agreed that Asia-Pacific countries have lagged behind the EU and US in pursuing ESG goals, but believe they are catching up. “I think the argument from these countries is that economic development took place more recently and more people need to be lifted out of poverty so maybe to some extent issues like climate risk have not been right at the forefront as in the Western (stock) markets,” said Professor Varottil. But he predicted that the gap will quickly narrow.
By Jessica Chin