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	How treaties protecting fossil fuel investors could jeopardize global efforts to save the climate by Business & Human Rights Resource Centre, agencies   Oct. 2023   Investor-State dispute settlements have catastrophic consequences for the environment and human rights. (OHCHR)   A UN expert has warned of the devastating effects of Investor-State dispute settlement with dire consequences for a wide range of human rights and climate action.   “At a time when it is imperative that States accelerate the pace and ambition of climate and environmental action to prevent planetary catastrophe and fulfil their human rights obligations, a daunting obstacle has emerged,” said David Boyd, the UN Special Rapporteur on human rights and the environment presenting his report today to the General Assembly.   His report chronicles compelling evidence that a secretive international arbitration process called investor-State dispute settlement has become a major obstacle to urgent actions needed to address the planetary environmental and human rights crises.   “Foreign investors use the dispute settlement process to seek exorbitant compensation from States that strengthen environmental protection, with the fossil fuel and mining industries already winning over $100 billion in awards,” the expert said. “Such cases create regulatory chill.”   The surge in fossil-fuel ISDS claims could not come at a worse time. Humanity has reached the now or never point for achieving the Paris Agreement objective of limiting global warming to 1.5°C, a goal that requires achieving net zero emissions by 2050 - incompatible with new coal, oil or gas developments.   Governments fulfilling their commitments under the Paris Agreement on climate change may be liable to oil and gas corporations for $340 billion in future ISDS cases – a major disincentive for ambitious climate action.   “As ISDS arbitration tribunals routinely prioritise foreign investment and corporate interests above environmental and human rights considerations, ISDS claims have devastating consequences for a wide range of human rights, exacerbating the disproportionate harms suffered by vulnerable and marginalised populations,” the expert said.   As the overwhelming majority of fossil fuel and mining ISDS claims are brought by investors from the global North against respondent States in the global South, the ISDS system has especially devastating consequences for the global South, perpetuating extractivism and economic colonialism.   The Special Rapporteur identifies specific actions that States must take to avoid future claims under the investor-State dispute settlement process and fulfil their human rights obligations in his report.   http://www.ohchr.org/en/press-releases/2023/10/investor-state-dispute-settlements-have-catastrophic-consequences   July 2022   Energy charter treaty makes climate action nearly illegal in 52 countries, writes Chamu Kuppuswamy.   Five young people whose resolve was hardened by floods and wildfires recently took their governments to the European Court of Human Rights (ECHR). Their claim concerns each country’s membership of an obscure treaty they argue makes climate action impossible by protecting fossil fuel investors.   The energy charter treaty has 52 signatory countries which are mostly EU states but include the UK and Japan. The claimants are suing 12 of them including France, Germany and the UK – all countries in which energy companies are using the treaty to sue governments over policies that interfere with fossil fuel extraction. For example, the German company RWE is suing the Netherlands for €1.4 billion (£1.2 billion) because it plans to phase out coal.   The claimants aim to force their countries to exit the treaty and are supported by the Global Legal Action Network, a campaign group with an ongoing case against 33 European countries they accuse of delaying action on climate change. The prospects for the current application going to a hearing at the ECHR look good. But how simple is it to prise countries from the influence of this treaty?   The energy charter treaty started as an EU agreement in 1991 which guaranteed legal safeguards for companies invested in energy projects such as offshore oil rigs. Under Article 10 (1) of the treaty, these investments must “enjoy the most constant protection and security”. If government policies change in order to curtail these projects, such as Italy’s 2019 decision to ban drilling for oil and gas within 12 miles of its coast, the government is obliged to compensate the relevant company for its lost future earnings.   The legal mechanism which allows this is known as an investor-state dispute settlement. A letter to EU leaders signed by 76 climate scientists argues this could keep coal power plants open or force governments into paying punishing fees for shutting them down, at a time when deep and rapid cuts to emissions are desperately needed.   Money spent compensating fossil fuel investors will deprive investment in renewable energy and other things vital to the green transition, such as public transport. While withdrawing from the energy charter treaty is possible for any country to do, losing the benefits of membership – such as fewer duties and taxes on imports of oil and gas – will make it a difficult decision.   Furthermore, the obligations of countries that have been signatories to the treaty are not nullified upon exiting it, but instead linger for 20 years thereafter. Investors can still bring disputes against former members and, if successful, must be compensated by the state in question. Russia and Italy withdrew from the energy charter treaty in 2009 and 2016 respectively, and continue to face multiple claims.   Leaving the treaty   Meanwhile, the European Commission is poised to expand the influence of the energy charter treaty into countries in Africa and Latin America, potentially embroiling these states in the same investor-state dispute settlements that have hindered climate action in Europe.   The political declaration for a new international energy charter, based on the principles of the original European treaty, was signed by 87 countries in 2015. Negotiations continue, but the 25-point list setting out the priorities of the signatories only includes one reference to “sustainable development”.   An update on negotiations mentioned that existing fossil fuel investments are due to be protected until 2033, meaning governments will be liable for compensation if they close a coal plant prematurely. The UK and EU reached a deal to exempt new fossil fuel projects from protection as of mid-August 2023.   Drastic action is urgently needed to meet the goals of the Paris Agreement and reduce greenhouse gas emissions in line with limiting warming to 1.5°C at best and 2°C at worst. Countries will need to regulate and close emission sources – yet at the same time, fossil fuel investors, including oil and companies and energy utilities, are asking for more time and money in order to adapt to the transition.   The claim filed by RWE against the Dutch government in February 2021 argued the latter had failed to give enough time for the company to transition from coal to biomass. But this is something the Dutch government cannot afford to do – it was found to be acting unlawfully by its own supreme court in 2019 in taking too long to implement emissions cuts.   One way to address this problem is for parties contracted to the energy charter treaty to withdraw from it en masse, and so escape the sunset clause which holds them liable two decades after leaving. These countries could also enter into a separate agreement to exclude investor-state dispute cases against each other.   Sustained public pressure – and a favourable ruling in the ECHR for the five claimants – could encourage enough governments to act decisively, fatally weakening the treaty and its grip on international climate action.   * Chamu Kuppuswamy is Senior Lecturer, School of Law, University of Hertfordshire   http://www.iisd.org/articles/statement/newly-released-text-modernized-energy-charter-treaty http://news.trust.org/item/20220826094518-9hurl/ http://theconversation.com/energy-charter-treaty-makes-climate-action-nearly-illegal-in-52-countries-so-how-can-we-leave-it-185753 http://theconversation.com/how-treaties-protecting-fossil-fuel-investors-could-jeopardize-global-efforts-to-save-the-climate-and-cost-countries-billions-182135 http://fossilfuelregistry.org/article/urgewald http://fossilfuelregistry.org/ http://www.investigate-europe.eu/en/2022/ect-ecocide-treaty-puts-member-states-and-eu-commission-at-odds/ http://bit.ly/3bHidRM http://www.business-humanrights.org/en/big-issues/trade-and-corporate-accountability/investor-state-dispute-settlement/ http://bit.ly/3PhiwR0 http://bit.ly/3vStaqI http://bit.ly/3d8jNwn   http://www.ipsnews.net/2022/09/monster-monsoon-pakistan-people-paying-costs-not-responsible/ http://www.ipsnews.net/2022/09/pakistans-climate-catastrophe-lessons-world/ http://350.org/my-country-pakistan-is-drowning/ http://www.project-syndicate.org/commentary/pakistan-flooding-climate-justice-rich-countries-should-bear-cost-by-jeffrey-d-sachs-2022-09 http://genevasolutions.news/climate/millions-brace-for-hunger-in-horn-of-africa-as-drought-set-to-drag-on-wmo http://public.wmo.int/en/media/press-release/wmo-air-quality-and-climate-bulletin-highlights-impact-of-wildfires http://www.undrr.org/news/united-science-2022-we-are-heading-wrong-direction http://www.ipcc.ch/2022/02/28/pr-wgii-ar6/   Nov. 2021   ‘Either we kill it, or it will kill us’: The fight to dismantle a shadow court system threatening climate goals, by Sam Meredith. (CNBC)   The Energy Charter Treaty is not widely known, yet it’s feared the influence of this international agreement could be enough by itself to derail hopes of capping global heating to 1.5 degrees Celsius.   The ECT contains a highly contentious legal mechanism that allows foreign energy companies to sue governments over climate action that could hurt future profits.   These “corporate court” cases, sometimes referred to as investor-state dispute settlements, are highly secretive, take place outside of the national legal system and can often lead to far larger financial awards than companies might otherwise expect.   Five fossil fuel companies are already known to be seeking over $18 billion in compensation from governments over energy policy changes and most of these have been brought via the ECT.   For example, Germany’s RWE and Uniper are suing the Netherlands over coal phase-out plans and the U.K.’s Rockhopper is suing Italy over a ban on offshore drilling.   A spokesperson for Uniper told CNBC: “The Dutch government has announced its intention to shut down the last coal-fired power plants by 2030 without compensation.   “Uniper is convinced that shutting down our power plant in Maasvlakte after only 15 years of operation would be unlawful without adequate compensation.”   RWE said it “expressly supports the energy transition in The Netherlands. In principle, it also supports the measures to reduce CO2 associated with the law, but believes compensation is necessary.”   A spokesperson for Rockhopper said: “The Energy Charter Treaty is designed to provide a stable platform for energy sector investments. The Italian government issued licenses and encouraged significant investment in oil and gas exploration, based on this platform..”   The number of these corporate court tribunals is expected to skyrocket in the coming years, a trend that campaigners fear will act as a handbrake on plans to transition away from fossil fuels.   Governments that are prepared to implement measures to tackle the climate crisis, meanwhile, could be hit with enormous fines.   “The Energy Charter Treaty is a real trap for countries,” Yamina Saheb, an energy expert and former ECT Secretariat employee turned whistleblower, told CNBC via telephone.   Saheb quit her role with the Secretariat in June 2019 after concluding it would be impossible to align the ECT with the goals of the landmark Paris Agreement. She said any attempt to reform or modernize the treaty would ultimately be vetoed since many member states are heavily reliant on fossil fuel revenues.   “If we withdraw, we can protect ourselves, we can start implementing the climate neutrality targets and we can end the promotion of the expansion of this treaty to other developing countries,” Saheb said.   “I think the only way forward is to kill this treaty,” she added. “Either we kill this treaty, or the treaty will kill us.”   The ECT Secretariat did not respond to a request for comment.   The treaty has said its fundamental aim is “to strengthen the rule of law on energy issues by creating a level playing field of rules” that help to mitigate the risks associated with energy-related investment and trade.   Who’s involved and how does it work?   The ECT is a unique multilateral framework that applies to more than 50 countries — mostly in Europe and central Asia — and includes the European Union, the U.K. and Japan among its signatories. It is currently looking to expand to new signatory states, particularly in Africa, Asia and Latin America.   Signed in 1994, the ECT was primarily intended to help protect western companies investing in former Soviet Union countries in the post-Cold War era. It was also designed to help overcome economic divisions by ensuring a flow of western finance in the east through binding investment protection.   It has since been sharply criticized by more than 200 climate leaders and scientists as a “major obstacle” to averting climate catastrophe.   “I think the treaty is probably by itself enough to kill 1.5 [degrees Celsius],” Julia Steinberger, ecological economist and professor from the University of Lausanne, told CNBC.   “I know that 1.5 is a very tight target and there are a lot of things that can blow it, but it is because it basically saves fossil fuel industries … from the financial collapse that they should face for their risky — and honestly criminal — investments in a harmful technology.”   Corporate court hearings brought via the ECT take place in private and investors are not obliged to acknowledge the existence of a case, let alone reveal the compensation they are seeking.   The average cost of investor-state dispute settlement cases is estimated at roughly 110 million euros ($123.9 million), according to an analysis of 130 known claims by think tank OpenExp, and the average cost of arbitration and legal fees is thought to be around 4.5 million euros.   International environmental law experts say that even the threat of legal action is thought to be highly effective in chilling domestic climate action — and fossil fuel companies are acutely aware of this.   That’s because governments may struggle to allocate resources to a single issue when accounting for other priorities. The threat of legal action becomes progressively more powerful as the budget of the country involved becomes smaller.   Notably, a ruling in favor of the state does not lead to zero cost for taxpayers because the defendant state must pay for legal and arbitration fees.   “Not only do countries have to get out of that treaty, they have to torpedo it on the way out,” Steinberger said. “And that’s something a unit the size of the European Union could do.”   A spokesperson for the EU was not immediately available to comment when contacted by CNBC.   The EU completed its eighth round of negotiations to modernize the ECT earlier this month, with the ninth round of talks scheduled for Dec. 13.   France, Spain and Luxembourg have all raised the option of withdrawing if the EU’s modernization efforts fail to conform to the Paris accord.   What happens if countries withdraw?   Italy withdrew from the ECT in 2016, but it is currently being sued because of a 20-year “sunset clause” which means it is subject to the treaty through to 2036.   Around 60% of cases based on the treaty are intra-EU, with Spain and Italy thought to be the most sued countries. Saheb said that given most of these cases are within the bloc itself, a coordinated withdrawal would likely kickstart a domino effect, with states such as Switzerland, Norway and Liechtenstein seen as likely to follow suit.   And if the bloc were to withdraw from the treaty collectively, member states could agree to remove the legal effects of the sunset clause themselves.   “That sunset clause is much longer than many sunset clauses in other treaties but is also completely incompatible with the notion that regulations need to evolve with the changing reality of climate change, to the changing demands of safeguarding the environment and human rights,” Nikki Reisch, director of the Climate & Energy Program at the Center for International Environmental Law, told CNBC.   “There’s a really strong case to make that the application or enforcement of that sunset clause is contrary to other principles of international law,” she added.   The European Court of Justice ruled in early September that EU energy companies could no longer use the treaty to sue EU governments. The verdict significantly limits the scope of future intra-EU cases and has thrown the legitimacy of a number of ongoing multi-billion-euro lawsuits into question.   “We are not out of the woods yet,” Reisch said. The ruling was an important step to blunting an instrument designed to protect fossil fuel investors, she said, but it does not take arbitration cases by investors domiciled outside of the EU off the table.   “We can’t let our ability to confront the greatest crisis that we have ever faced as humankind, arguably, be held hostage to the interests of investors,” Reisch said.   “I think it is just another reminder of the need to eliminate those legal structures and fictions that we’ve created that really do lock us into a bygone era of fossil fuel dependence.”   http://www.iisd.org/articles/statement/newly-released-text-modernized-energy-charter-treaty http://www.isds.bilaterals.org/?either-we-kill-it-or-it-will-kill http://www.isds.bilaterals.org/ http://www.clientearth.org/latest/press-office/press/companies-cannot-use-ect-to-sue-governments-for-climate-progress-top-court-says/ http://www.opensocietyfoundations.org/voices/the-climate-emergency-demands-a-new-approach-to-investor-state-disputes http://inequality.org/research/missing-from-the-climate-talks-corporate-powers-to-sue-governments-over-extractives-policies/   http://www.iied.org/international-treaties-threaten-affordability-climate-action-new-report http://www.iied.org/we-need-rethink-investment-treaties-ensure-rapid-just-energy-transition http://www.iied.org/rethinking-investment-treaties-dispute-settlement-light-sustainable-development http://www.globaljustice.org.uk/news/fossil-fuel-companies-claiming-18bn-against-government-climate-action-in-secret-courts/ http://www.business-humanrights.org/en/latest-news/global-governments-risk-trillions-in-fossil-fuel-climate-litigation/ http://s2bnetwork.org/sign-the-pen-letter-to-governments-on-isds-and-covid-19/ http://www.ciel.org/press-room/ http://papers.ssrn.com/sol3/papers.cfm?abstract_id=3531256 http://www.lse.ac.uk/granthaminstitute/news/investor-state-dispute-settlement-as-a-new-avenue-for-climate-change-litigation/ http://www.unep.org/resources/report/global-climate-litigation-report-2023-status-review
	A brief for laws to curb environmental and human rights violations by corporate actors by David Boyd UN Special Rapporteur on human rights and environment   Rampant deforestation, chemical and plastic production, fossil fuel exploitation and other large-scale extractive activities by business entities are harming people and the planet, a UN expert said today, introducing a blueprint for laws to curb environmental and human rights violations by corporate actors.   “Businesses operating in the global economy routinely abuse the right to a clean, healthy and sustainable environment and other human rights,” said David Boyd, UN Special Rapporteur on human rights and environment.   In the face of increasing human rights abuses by irresponsible business actors, the Special Rapporteur launched a brief containing a set of recommended elements for human rights and environmental due diligence laws. “Overlapping human rights and environmental abuses by business actors are rampant, while effective remedies for rightsholders remain elusive,” the expert said.   “Rightsholders seldom obtain effective remedies,” the expert continued “and those who do, need to navigate a host of legal, financial and other obstacles. They commonly face threats, intimidation and reprisals to themselves, their families and their communities.”   Boyd said the most vulnerable rightsholders affected by business activities—such as children, women, Indigenous Peoples, Afro-descendant Peoples, local communities, peasants, persons with disabilities and especially those whose identities extend across multiple vulnerable groups—commonly face the worst obstacles to justice and remedy.   “In the face of this stark reality, voluntary due diligence measures and existing human rights and environmental due diligence laws are simply not enough,” Boyd said.   There is widespread agreement that mandatory human rights and environmental due diligence laws are necessary to hold business actors accountable for the ways their actions harm people and the planet, the expert said.   Numerous laws are under development at the national, regional and global levels, representing a vital opportunity to advance and standardise corporate accountability. For example, the European Commission released its Proposal for a Directive on Corporate Sustainability Due Diligence earlier this year. “Its current trajectory is pathbreaking, and it would make large, regulated actors’ access to the European Union market contingent on the completion of due diligence,” Boyd said.   He said the United Nations “Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises” is also expected to make progress in 2022.   The expert said that despite imperfections, the draft United Nations Treaty would be the first binding global instrument to mandate due diligence covering all internationally recognized human rights—including the right to a clean, healthy and sustainable environment—for all business activities within a State Party’s territory, jurisdiction or control, including transnational activities.   In response to these legislative opportunities, the Special Rapporteur launched the brief that articulates a set of overarching goals and 10 essential legislative elements.   “If adopted, these proposals would result in legislation better equipped to prevent human rights, environmental and good governance harms by business actors, and more likely to effectively remedy those harms that occur,” Boyd said.   http://www.ohchr.org/en/press-releases/2022/07/human-rights-and-environmental-due-diligence-laws-crucial-combat http://www.ohchr.org/en/press-releases/2022/07/un-general-assembly-must-affirm-right-healthy-environment-un-experts   Sep. 2022   Boost climate action or we'll see you court, activists tell governments. (AFP)   Governments around the world must scale up climate action "or face further legal action", an open letter from campaign groups warned this week, as battles over policies to cut emissions and protect the environment are increasingly fought in the courts.   From legal efforts to steer governments to do more to curb fossil fuel pollution, to court action over companies' misleading green claims, the number, scope and ambitions of climate litigation is expanding, say experts, with an increasing number of cases are being launched against governments.   And that will continue if they do not use the upcoming United Nations COP meeting in Egypt to substantially enhance their climate action, according to an open letter signed by lawyers from more than 20 organisations around the world.   "Governments of the world: your delay is costing lives. Strong action is needed now to protect people and the planet," the letter said. "If you continue to fail us, we will continue to turn to the courts to demand accountability."   The groups said they had already launched more than 80 legal cases around the world to "compel" governments from the Netherlands to Brazil, warning that the world was on the "precipice of the most serious intergenerational violation of human rights in history".   Research from the Grantham Research Institute at the London School of Economics this year has found that of the 2,000 or so climate legal cases filed since 1986, almost a quarter were started since the beginning of 2020.   Some 80 of these cases have been filed against national or subnational governments since 2005, the research found, with a record number of 30 new cases submitted in 2021.   Perhaps the most successful of this kind of case was environmental group Urgenda's landmark 2019 victory in Dutch courts, which saw the government ordered to reduce greenhouse gas emissions by at least 25 percent by the end of 2020. The target was largely met.   "Climate action is a legal duty. Yet governments are failing to comply with their own laws and commitments," said Sarah Mead Co-Director of Climate Litigation Network, part of the Urgenda Foundation, which signed the letter. "We want to make sure that countries understand that the law is on our side."   But legal rulings can go both ways. In June, the US Supreme Court ruled that the government's key environmental agency cannot issue broad limits on greenhouse gases.   Campaigners say that energy companies are increasingly turning to international arbitration to recoup investments as governments accelerate the shift away from fossil fuels.   Earth has warmed nearly 1.2 degrees Celsius above pre-industrial levels so far, unleashing more intense weather extremes, including dangerous heatwaves and floods. The 2015 Paris Agreement saw governments agree to a cap on warming of well below 2C and preferably a safer 1.5C.   But the UN's Environment Programme has said that even taking into account updated global promises to cut emissions of heat-trapping gases, the world is currently on course to warm in excess of 3C.   http://www.lse.ac.uk/granthaminstitute/news/growing-number-of-framework-litigation-cases-filed-against-governments-around-the-world/ http://www.urgenda.nl/en/themas/climate-case/global-climate-litigation/ http://climate.law.columbia.edu/content/climate-change-litigation http://climateattribution.org/ http://climatecasechart.com/ http://www.clientearth.org/latest/latest-updates/news/ Visit the related web page
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