The hidden trigger of Paris: why the climate battle will now be taken to the courts

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demonstration in Vatican city (photo Matt McDermott)

demonstration in Vatican city (photo Matt McDermott)

What will happen if the objectives of the Paris Climate Agreement are not achieved? Most people assume that since the agreement is non-binding, failure to reach the targets will necessitate new political action, writes Lucas Bergkamp, Partner at the Brussels-based law firm Hunton & Williams LL.P. But according to Bergkamp, what is likely to happen is that climate activists will instead turn to the judiciary to enforce the treaty. This, he argues, represents a threat to democracy and constitutional government.

At the COP-21 in Paris, 195 countries[1] negotiated a decision and an agreement on international climate change policy-making.[2] To a significant extent, the decision and agreement overlap and address many of the same issues, with the decision often going into more detail in an attempt to begin implementing the agreement. The Paris Agreement covers mitigation, adaptation, as well as ‘loss and damage,’ a process aimed at addressing harms caused by climate change, and establishes processes for financing and technology transfer. With respect to mitigation, it sets an ambitious objective of limiting the global average temperature increase to well below 2 °C or even 1.5 °C.[3] In pursuit of this objective, it establishes a procedural framework for future climate policy-making by the parties.

“If governments can’t set a course, courts may have to do it for them”

To assess the consequences of COP-21, it is necessary to analyze what the Paris Agreement does, and what it does not do, as a matter of both law and political dynamics. The question as to its binding effect does not have a simple answer. Even if the Paris Agreement is in some way legally binding, what exactly does it require and how could a signatory violate any of its provisions? As a related matter, although a multitude of political ramifications might apply, what are the tangible legal means of recourse to deal with non-compliance?

Yet there is more to the Paris Agreement than meets the eye. The agreement’s ambiguous wording and legal force (or lack thereof) tell only part of the story. The rest of it can be discerned by asking why so much time and effort has been spent on non-binding commitments and proclamations; if it is all non-binding and unenforceable anyway, why bother?

Part of the answer is that the international climate negotiations have long served as the premier platform for climate policy ideas. Even short of an agreement, a well-articulated or well-advocated concept can exert influence on national political leaders and domestic regulatory bodies. More recently, however, the United Nations Framework Convention on Climate Change (UNFCCC) itself, whose annual year-end negotiating sessions have become a regular staple of front page news, has evolved from a rather ordinary, non-partisan treaty secretariat into a kind of global, pro-climate political movement, amplifying and legitimizing all manner of activism around climate change.

These and other undercurrents will conspire to place climate change near the top of global policy priorities for decades to come, with important ramifications for national and sub-national policymakers and political systems.

Climate litigation

Nowhere is this more apparent than in the “bottom up” nature of the Paris Agreement. By allowing individual Parties to the UNFCCC to offer up their own pledges, targets, and timetables for reducing emissions, the Paris Agreement seems both practical and achievable. Yet the fact that the sum total of these promises to reduce greenhouse gas emissions falls short of what the Parties themselves, with reference to the science, suggest is necessary to prevent dangerous climate change, opens up a palpable gap between ambition and obligation. The Paris Agreement defers to a periodic review process to try to close this gap, but its success would seem to depend on political will and technological prowess. Indeed, the agreement provides for no purely legal recourse to reduce emissions.

The Paris Agreement will bolster climate activists’ claims about the inadequacy of governments’ climate policies

The lack of any mechanism to overcome the ambition-obligation disparity will likely result in a failure to reach the collective targets. After all, countries are subject to the forces of (regulatory) competition, and have incentives to do as little as possible or at least lag behind.

While the parties may think they will have to go back to the negotiation table once this happens, the reality may well be different. If the collective efforts appear to fall short of achieving the Paris Agreement’s objectives, it is likely that instead the judiciary will  be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will seek the help of the courts to get governments to “do the right thing.”

photo Toban B

photo Toban B

In this vein, for example, Mike Burger, the Executive Director of Columbia University’s Center for Climate Change Law, considers failure to take adequate climate action illegal, and warns that “if governments can’t set a course, courts may have to do it for them.”[4]

The London-based Business & Human Rights Resource Centre has commented that “[a]mid uncertainty about how the agreement reached at the COP-21 Paris climate conference will be implemented, civil society can take charge through climate litigation.”[5]

According to Dutch climate litigator Roger Cox, national law may well entail a legal obligation for states to bring national climate policy into line with the (well below) two-degree objective established under international law.[6] If these statements are indicative of what is to come, courts will have to rule with some regularity on climate change policies.

Thus, the Paris Agreement will bolster climate activists’ claims about the inadequacy of governments’ climate policies. To support their cases, they can invoke several features of the agreement, including its recognition of the need for urgent action to fight dangerous climate change, its high goals, and its ambitious substantive provisions, all of which can be cited to give content to the parties’ procedural obligations.

In other words, climate policy law suits against governments to force them to adopt stronger emission reduction policies are not necessarily prevented by the absence of binding emission reduction obligations or targets in the Paris Agreement. Experience in The Netherlands and other countries, including Pakistan, has shown that courts concerned about the government’s failure to adequately address climate change, are willing to entertain such law suits and to order governments to step up their climate policies, even though such orders are legally doubtful.[7]

Trojan Horse

The Paris Agreement’s implicit reliance on political activism and the related non-hierarchical governance by the courts – a direct result of efforts to ensure the participation of the United States and other major-emitting Parties –  reflects the steep price the international community has had to pay to claim victory at COP-21. At its most fundamental level, this constitutes a threat to constitutional government, the separation of powers, and representative democracy. It may well result in an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges, and, thus, will undermine legislative power and the role of positive law in deciding legal disputes.

In deciding on ratification, countries should consider not only the need for international coordination of climate policy, but also the protection of their constitutions, representative democracy, and the rule of law

This risk of subversion of the rule of law is not well understood by politicians and governments. If this risk materializes, the non-binding parts of the agreement, which were the least haggled over, will become the most influential legal provisions. And, unlike executive governments, judges have no way of ensuring that other nations do their fair share; they can rely only on their colleagues’ enlightened thinking, which may not be as widespread as they might hope.

Irrespective of whether these features are parts of some intentional design, the Paris Agreement thus may turn out to be a Trojan horse. Ambiguous references to science, which is at risk of being politicized in any event, do not remedy this deficiency. While the agreement does little to reduce the threats it identifies, it creates risks of a different kind: it threatens our constitutional arrangements, including the separation of powers. In deciding on ratification, countries should consider not only the need for international coordination of climate policy, but also the protection of their constitutions, representative democracy, and the rule of law. Specifically, once they agree to Paris’ high collective ambition and ambitious substantive requirements, countries need to be mindful of the risks of the judiciary taking over when it becomes clear that the world will not deliver.[8]

Policymakers should be aware that signing away control over climate policy to unaccountable and unelected actors is not in the public interest. Nor is it a viable path to rational, effective and sustainable climate policies.

Editor’s Note

Lucas Bergkamp is Partner at Hunton & Williams and Emeritus Professor of International Environmental Liability Law at Erasmus University Rotterdam.

[1] Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius,

[2] Paris Agreement,

[3] Article 2(1), Paris Agreement.

[4] Michael Burger, Failure To Take Climate Action Is Not Only Morally Wrong, It’s Illegal, November 30, 2015,

[5] Sif Thorgeirsson & Ciara Dowd, Business & Human Rights Resource Centre, Post Paris climate talks, how to take charge through climate litigation,

[6] Roger Cox, We must ‘Reply All’ to the Collective Action in Paris,

[7] Lucas Bergkamp & Jaap C. Hanekamp, Climate Change Litigation Against States: The Perils of Court-Made Climate Policies”, European Energy and Environmental Law Review, 24, 2015, pp. 102-114. L. Bergkamp, A Dutch Court’s ‘Revolutionary’ Climate Policy Judgment: The Perversion of Judicial Power, the State’s Duties of Care, and Science,

[8] Lucas Bergkamp, Adjudicating scientific disputes in climate science: the limits of judicial competence and the risks of taking sides, [2015] 3 ENV. LIABILITY, pp. 80-102,


    • says

      Here we see another of the disreputable tactics commonly employed by climate activists. All of the points made by Professor Bergkamp are completely ignored (and he’s referred to as Mr).
      But the smear tactic is employed, with a link to the notoriously unreliable sourcewatch, making bogus claims of lobbying for coal and oil companies.

      Anyone can of course look up Hunton and Williams and see that their energy page features a picture of solar panels and wind turbines:
      which would seem to a rather strange way to lobby for the coal industry.

      The falseness of the accusations doesn’t matter, as long as they are repeated often enough.

    • John Benton says

      The fact that you use a source like should leave anyone reading your comments to dismiss you as an alarmist propagandist.

    • says

      The Paris Agreement establishes a framework for legally non-binding international ethical standards (as opposed to “regulations”) that are largely aspirational in tone and content. These standards can be implemented on a “voluntary” basis by nation-state signatories in the form of national and/or municipal laws. Alternatively, the ostensibly volitional norms the Paris Agreement establishes can otherwise be enforced by third-party nongovernmental certification organizations and/or by activist groups engaged in public disparagement “naming and shaming” campaigns against industry. Eric Orts, in his 1995 article entitled, “A Reflexive Model of Environmental Regulation,” describes this phenomenon as “reflective” “soft” law. See: (at pp. 780, 787-788).

      These “aspirational” standards also can be “voluntarily” embraced by industry if they are adopted, initially, in some form by national or regional standards organizations such as ASTM, ASME, CEN or CENELEC, or by international standards organizations such as ISO. For example, national and regional sustainable forest management (“SFM”) standards were adopted more than a decade ago in such fashion, and were subsequently imposed on industry via third-party certification regimes and “naming and shaming” campaigns implemented/enforced by nongovernmental organizations and activist groups. See, e.g., “Discerning the Forest From the Trees How Governments Use Ostensibly Private and Voluntary Standards to Avoid WTO Culpability,”

      Moreover, my 2005 WLF monograph entitled, “Exporting Precaution: How Europe’s Risk-Free Regulatory Agenda Threatens American Free Enterprise,” describes, in part, how Palitha T.B. Kohona, the former Chief of the UN Treaty Section, had crowed about how civil society’s use of “naming and shaming” campaigns to attack corporation’s public reputations and stock values actually triggered reforms in corporate behavior toward the environment. See: (at pp. 91-95).

      Thus, the Paris Agreement is the trigger for the activation of a public platform facilitating all kinds of civil society activist campaigns intent upon compelling industry behavior modification, and government support therefor, to ensure that progressives’ demands are met. It is, thus, a reflexive mechanism with which we all are familiar.

  1. says

    Bring it on. What is needed is a global stage to defend inaction by exposing the fraud of global warming climate change. Humans can only change the weather with atomic bombs. Anything less has no effect over natural processes. The cost of trying is astronomical and damages the worlds poor the most. Russia’s Vladimir Putin had this shown to him in a PowerPoint presentation in 2004 for the Kyoto meeting. See this, and Putin’s opinion, and Spaceship designer Burt Rutan’s opinion that Human caused Global Warming is a fraud. See

  2. says

    A somewhat odd article (ditto some of the comments). Picking one phrase from the article “pro-climate political movement” – as opposed to an “anti-climate political movement”? How can one be pro or anti “climate”? Bizzare.

    Another odd bit: “After all, countries are subject to the forces of (regulatory) competition, and have incentives to do as little as possible or at least lag behind”. One wonders what ” forces of (regulatory) competition” might be. The “incentives to do as little as possible” are never specified. Given that renewables are more or less at wholesale parity if not cheaper than fossil-fuelled power systems one wonders what the incentives to “do as little as possible” could be? Clearly not economic.

    “The Paris Agreement’s implicit reliance on political activism” gosh does it? Perhaps there is a different agreement (two agreements!) from the one I read. The idea that the Paris agreement might cause “subversion of the rule of law” is hilarious & I can only conclude that the writer had tongue firmly in cheek when writing this. So bravo Mr Berkamp, I nearly took you seriously on that point – when in fact you were joking.

  3. Mooloo says

    So when you can’t persuade people democratically, you go to the courts. We have a democratic process for a reason — so that big decisions are made by elected people, not unelected judges.

    How many countries have had a plebescite about aggressively trying to meet the Paris goals? None, perhaps? Because they know they will lose them.

    But the Greens know what’s right, and they are prepared to shove it down our throats by any undemocratic means they can find.

    If countries are to decarbonise it must be with the will of the people, not against it. If you can’t persuade the people to follow then your argument is too weak, not the people.

    • says

      Which bit of “existential crisis” don’t you get? man-made global warming is an existential crisis – addressing in a timely fashion it has been delayed by elements within the democratic process – step forward (by example) the US Congress – snouts in the trough filled by the fossil companies. Thus when the democratic process fails – which it has done given the tardy fashion in which climate change has been addressed – only the courts are left.

    • says

      Going to court over government decisions is a regular activity for both civil society and companies. Companies even have a bypass to the normal system through ISDS proceedings. Once introduced to protect companies and foreign investors against thinks like nationalisations, they are now routinely used to demand compensation for the outcome of the representative democratic process.

      • says

        Use of the judicial system is also a proper channel to address political excesses attributable to the abject lack of knowledge, preferences and whims of unreliable and unaccountable politicians susceptible to public castigation by hyperbolic activists and civil society groups bent on manipulating public emotions.

  4. says

    There is no climate crisis at all. We only notice an outburst of fear caused by the business model of environmental organisations going out of control. (scaring money out of your pocket)
    It it impossible for CO2 to add more then 0.5 deg.C.
    The climate is largely unknown, influence of the sun, sea floor vulcanos, ocean current fluctuations, clouds and water vapour (40000ppm) have to be researched. Climate models fail to predict the past and are unsuitable to policy makers.
    Present temperatures are well within natural fluctuations.
    Addig to this: the renewables generate little and unreliable energy and therefore will not be able to sustain our way of life.
    So, possiblilty nr 1 is that implementation causes dramatic decrease in prosperity leading to a more feudal society. Freedom for all takes energy, which is no longer available. Possibility nr. 2 is the army, being the last resort of reason, will take over government.

  5. says

    The legal argument may apply to Europeans, which lately seem engaged in suiciding their societies in a rather lemming like process.

    In other nations we are likely to see the Paris agreement fail to pass (the probability of USA senate approval is nil). Or their constitution doesn’t allow a judicial take over of the people’s sovereign power.

    Finally, the COP21 process was quite amateurish and the conclusion was erroneous. Humanity has multiple or infinite pathways to solve a looming problem, but the COP21 “solution” simply doesn’t pass the smell test. Other solutions, such as geoengineering, increasing resilency, researching and deploying nuclear power, may yield much better results.

    Thus if this goes to trial you will find me there as amicus curiae arguing that the cop21 “solution” is unsound. And this will set up courts judging science, engineering, economics, and social science. I’m going to have fun.

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