The Climate Conferences - Are we collectively taking responsibility for global warming?

How can we move from societies with unlimited irresponsibility to societies that take responsibility for the climate? (session 3)

Pierre Calame, Armel Prieur, February 2021

In the face of global warming, how can we move towards an obligation of result? This is what is at stake in this series of public debates that will allow us to familiarise ourselves with the idea of an obligation to achieve results, to explore the various possible ways of meeting this obligation and to question the public authorities on how to assume their responsibilities in this respect.

Year after year we see that our international and national commitments are not respected, without any legal or political consequences. Why? Because the traditional definition of responsibility as enshrined in our legal systems says nothing about the collective consequences of our actions in the long term : the limited responsibility of each individual creates societies of unlimited irresponsibility with :

  • State responsibility limited to obligations of means ;

  • corporate responsibility limited to compliance with standards and laws ;

  • a responsibility of financial actors limited to the promotion of green investments.

Is it enough to write the crime of ecocide into the Constitution to solve the problem ?

To download : expose_gilles_berhault-session3.pdf (80 KiB), intervention_p_calame_ethique_et_droit_de_la_responsabilite.pdf (47 KiB)

Despite the regrettable absence of Mireille Delmas Marty, the session was very rich, combining the views and experience of high-level speakers :

Introduction to the third session of the Assises du climat by Pierre Calame : Obligation of results : what concrete scope ?

The obligation to achieve results, if not enforceable, joins the eternal declarations of objectives and intentions always contradicted by the facts.

But to whom is it enforceable? When global warming is the result of a myriad of actors and interactions on a global scale ?

And opposable on what basis ? By virtue of what right ? With what dissuasive sanction ?

So far, few convincing answers have been provided to these questions. If responsibility towards future generations has been invoked since the work of Hans Jonas (the «  responsibility principle  » was published in French in 1990), if it is an omnipresent reference in speeches such as «  we do not inherit the earth, we only borrow it from our children ", it is above all the subject of beautiful rhetorical formulas.

It should also be noted that the legal actions we will discuss at the beginning of this session generally make a diversion via human rights without tackling the issue of responsibility head-on. After having invented limited liability companies in the 19th century to facilitate the development of companies by limiting the risks of entrepreneurs, we invented the « unlimited liability company » in the 20th century.

This is why, in this cycle of debates, we could not be satisfied with discussing technical and economic solutions, but we also had to tackle head-on the responses that must be given to this unlimited irresponsibility.

We will do this by exploring in a first part the state of play, with the responsibility of States, citizens and companies, then by evoking in a second part the possible responses at the French, European and world levels, at the double level of ethics and law.

The difficult implementation of the obligation of result in the current legal framework

The starting point of our reflection was to ask ourselves what the effectiveness of an obligation of result of public and private actors should be. To whom is such an obligation enforceable and under what law?

The current legal framework in which this question arises is marked by three characteristics :

Neither the reality of global interdependencies, nor the total carbon footprint of societies, nor the combined effects of myriad actors on the climate can be properly understood within this framework. Ultimately, the addition of the limited responsibilities of each actor leads to societies with unlimited irresponsibility.

We have therefore explored possible responses to these impasses: responses at different time horizons, from recent advances to long-term perspectives; and at different scales, from national to global.

The obligation of results that a State has set for itself is enforceable against it

Corine Lepage, who led the complaint of the municipality of Grande Synthe against the State, for «  climate action  » showed the three recent breakthroughs that allowed the Council of State in November 2020 to sanction the French State for failing to respect the objectives it had set for itself for the period 2017 - 2019 and giving it a three-month deadline to explain how it intended, for the coming years, to respect the objectives it had set.

The first breakthrough was the innovative use of old principles. As the history of social legislation at the end of the 19th century illustrates, legal progress often comes from a new interpretation of pre-existing principles. At present, the Universal Declaration of Human Rights of 1948 and its various implementing conventions are the only international reference that can be used. In its general principle, it states that the rights of some are limited only by the rights of others, and the various implementing conventions have progressively widened the scope of rights, from political rights to economic, social, cultural and environmental rights. In this case, it is the right to life and the right of children that have been opposed to the action of the French state. This use of such rights to demand sanctions against public and private actors who are allegedly not taking responsibility for global warming is the common thread in the 1,600 lawsuits of the same type that have been filed around the world today.

The second breakthrough is the recognition of an obligation of result on the part of the State. The voluntary commitments made under the Paris Agreement of December 2015 are not enforceable against States. On the other hand, the French government has transformed these commitments into a programming law : the Council of State has deduced that the objectives set were effectively binding.

The third breakthrough is that the implementation of the obligation to achieve results must result in a reduction in greenhouse gas emissions year after year. This third breakthrough is essential because, until now, the emission reduction objectives were set with a sufficiently long time horizon, ten or twenty years, so that failure to comply with the obligation to achieve results would be too late to remedy the situation and to call into question the responsibility of those who made these commitments.

A legally binding performance obligation and a year-by-year reduction rate: this trial is emblematic of the new approach of rationing emissions and reducing the cap year by year at a pre-determined rate.

The law on duty of care adopted in France in 2017 lifts a corner of the veil

Commented on by Dominique Potier, this law prefigures, he says : «  a new era of globalisation, marked by the idea dear to Mireille Delmas Marty of solidarity sovereignty ".

For the reflection on the obligations of result, this law is «  passe muraille  » and «  passe frontière ".

It is « border-crossing » because it no longer raises the question of emissions on national soil but of the role of global production sectors in society’s total carbon footprint ; the companies that give orders are obliged to take into account the impacts of the sector outside the national territory.

This is a « wall » because it lifts a corner of the legal veil: the company’s vigilance must not be exercised only with regard to the actors legally dependent on it but with regard to all the actors who are linked to it by relations of allegiance, relations which give the ordering company the power and therefore the responsibility to orient their behaviour and to assess their impact. Even if, in the current state of the law, we are only interested in the first level of subcontracting, it is a first step in the direction of carbon traceability of the supply chain.

The law on the duty of vigilance is progressively setting an example on a European scale

This is a good illustration of the way in which innovations in one member country, in this case France, can spread to influence European legislation, which we saw (in the second session) is the right scale for dealing with obligations of result. Indeed, six European countries are already adopting laws based on the same principles, seven others have undertaken a citizens’ debate on this subject and a European directive is in the making, which should be completed in the coming year. Extensions to the European level would provide new ways to address the carbon traceability of supply chains and the total European carbon footprint.

Can a large company be condemned today for climate inaction?

Sébastien Mabile described the genesis and the stakes of the lawsuit currently being brought against Total. It is being led by a coalition of civil society organisations and local authorities, cities and regions, which consider themselves exposed to climate change.

The approach is ambitious insofar as the Paris Agreement is only enforceable (and even then, as we have seen !) against States but not against non-state actors. The argument used therefore consists first of all in pointing out that Total’s emissions alone are greater than France’s territorial emissions and that, according to the IPCC, a warming of more than 1.5° on average would have a serious impact on health, and therefore an attack on human rights.

By virtue of these findings, Total, like the French State in the case of the Grande Synthe complaint, is being asked to adopt an obligation of result consisting, once again, of a reduction for which Total will have to report year after year.

It is difficult to predict the outcome of this case at present, but when one considers that, according to Total, the company’s climate strategy has not been enforceable until now, one can see the extent of the possible breakthrough: it combines the three aspects described above in the name of duty of care:

New coalitions of actors to change the law

The common factor of the three examples that have been presented, the action against the State, the law on the duty of vigilance and the action against Total have a common characteristic, that of being based on multi-actor alliances of a new nature : civil society organisations ; local authorities ; scientists ; judges ; politicians.

From the responsibility of a few to co-responsibility

Responsibility of States, responsibility of large multinational companies : actions are still carried out by virtue of the competition of rights, sovereignty and freedom of enterprise on the one hand, preservation of the right to life, children’s rights…, on the other, but in a problematic that quickly finds its limits, that of a fight of the good guys against the bad guys, that of the powerful who have responsibilities in front of the others who are only subject to them. It is this risk of slippage that Gilles Berhault emphasised. He believes that, faced with the risks of fragmentation of society through recourse to the law, where the parties all turn to the judge rather than to the search for alliances. He asserts that it is necessary on the one hand to develop a more inclusive approach to responsibility and co-responsibility while making education a space for learning about participation, and on the other hand by developing collective action scenarios mobilising different types of actors together, for example to quote an action undertaken today by Stop Exclusion énergétique : «  sortir 1.5 million people from fuel poverty ".

Policy coherence in the spotlight

The second session, devoted to action at the European level, had already highlighted the problem of coherence between multiple public policies built over the decades either to respond to a problem of the time, or to solve a sectoral problem or to satisfy a segment of the population, but which are contradictory to each other. These contradictions can be found at all levels, from the national level with ministries, each of which embodies both a field of public action and interest groups, to the European level and the global level with the juxtaposition of different agencies.

Raymond Zaharia and Muriel Raulic worked with Mireille Delmas Marty to prepare citizens’ proposals within the framework of the Citizens’ Climate Convention - CCC. One of the key proposals was precisely to modify the preamble of the constitution to introduce an obligation to make public policies consistent. This was another way of addressing the issue of the obligation to achieve results. Muriel Raulic also referred to the desire of some of her colleagues in the CCC to introduce an obligation of results in the form of individual quotas.

Both referred to the rather obscure strategies pursued by experts imposed by the CCC organisers to disqualify these two ideas. It will be important to learn from this history in view of debating the same issues at the conference on the future of Europe.

Towards a global ethic and law

If the innovative use by judges of the idea of competition between rights and the preservation of fundamental human rights to call into question the responsibility of the most powerful actors and require them to change their behaviour and adopt measurable obligations of result is a remarkable breakthrough, if the law on the duty of vigilance has made it possible to lift a corner of the double legal and national veil, the fact remains that these are expedients and that the main challenge remains: In the face of global interdependencies, in the face of the degradation of global public goods, in the face of a de facto community of destiny on the scale of all humanity, it remains imperative to move towards a planetary ethic rooted in the traditions of the different civilisations and towards common legal principles at the global level, also rooted in the different legal traditions and on the basis of which each national legal system can give them concrete expression.

Two complementary initiatives were quickly presented during the session : the Charter of Human Rights (in practice rights and duties) led by Corinne Lepage and the Universal Declaration of Human Responsibilities led by Pierre Calame. In both cases, the idea is to give the notion of the responsibility of all actors the same scope, the same legal reach as that given to the affirmation of their rights.

In a context, illustrated as much by the Total company as by the GAFAs, of companies whose means of action and global impact are far greater than those of most States, it is no longer tenable that they should be subject to national laws. We need a real global community to be established and no longer reduced to an inter-state community as is the case today, and for the global commons to be managed at the global level by an agency that is effectively capable of calling on the actors to fulfil their obligations and that a deliberative citizen’s approach be invented at the global level that reflects the points of view of the various types of actors.

The European stage of a supranational ethics and law

The first steps could be taken at the national level and above all at the European level, with the adoption of a European Convention on Human Responsibilities and the consequent extension of the powers of the European Court of Human Rights in Strasbourg. Debating this should be one of the issues at stake in the next conference on the future of Europe.

Sources

To go further

Les Assises du climat