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University of New South Wales Law Journal Student Series |
To limit global warming in line with the long-term temperature goal of the Paris Agreement,[1] the energy sector will need to undergo an “unparalleled transformation” to decarbonise by shifting away from a reliance on fossil fuels and towards renewable energy generation and the electrification of transportation (‘Energy Transition’).[2] According to the Intergovernmental Panel on Climate Change (‘IPCC’), decarbonising the energy sector to achieve deep emissions reductions will require “rapid, far-reaching and unprecedented changes in all aspects of society”,[3] and have flow-on effects for the sustainable development of industries, supply chains, labour markets, communities, and people worldwide. From a labour markets perspective, four major socio-economic transformations can be anticipated over the coming decades owing to this shift: jobs will be transformed, substituted, lost, and created.[4] Against this backdrop, the concept of a “just transition” has emerged in international climate change law[5] and policy guidance[6] to promote an “economy-wide process that produces the plans, policies and investments that lead to a future where all jobs are green and decent, emissions are at net-zero, poverty is eradicated, and communities are thriving and resilient” (‘Just Transition’).[7] The concept of a Just Transition is typically applied to those working in downstream fossil fuel and carbon-intensive industries where there is a heightened risk of job loss and substitution. However, it is rarely applied to those people sourcing the materials needed to support and facilitate the Energy Transition, for example, where there is heightened demand for balsa wood needed for wind turbine blades and cobalt for lithium-ion batteries used in electric vehicles. These are two examples of a largely overlooked and underappreciated transformation taking place across global supply chains as the world seeks to decarbonise energy and its end-uses. For example, according to the World Bank, the production of minerals used in lithium-ion batteries – such as cobalt, lithium, and graphite – is anticipated to increase by more than 500% by 2050 to meet future demand.[8]
The Sustainable Development Goals (‘SDGs’)[9] offer a globally accepted framework through which climate change law and policy can be developed and implemented to account for the cross-cutting nature of a Just Transition in areas such as human rights, labour rights, and poverty eradication. Through the lens of SDG 13 ‘Climate Action’ and SDG 7 ‘Affordable and Clean Energy’, this paper proposes that the ambition and timing of developed countries’ climate change laws and policies can impact a Just Transition for developing countries through changing supply chain demands. Moreover, domestic government and private sector procurement practices – as identified by SDG 12 ‘Responsible Consumption and Production’ – have the potential to support a Just Transition as global climate change mitigation efforts ratchet up. This paper adopts an energy justice lens to analyse how the Energy Transition stands to support or hinder a Just Transition for supply chains. Energy justice focuses on the distribution of safe, sustainable, and affordable energy for all while sharing the costs and benefits of energy services fairly amongst society.[10] Addressing questions of energy justice requires the critical question of, “who wins, who loses, how and why”?[11] More specifically, in relation to the focus of this paper, who will bear the human rights costs of decarbonising the energy sector? This area remains a lacuna in climate change law and policy scholarship.
As a starting point, this paper introduces the SDGs and analyses the extent to which the Paris Agreement’s transparency and accountability mechanisms are contributing towards SDG target 13.2 to “integrate climate change measures into national policies, strategies, and planning”, and SDG target 7.2 to “by 2030, increase substantially the share of renewable energy in the global energy mix”.[12] The second part draws on the UK as an example of how domestic climate change law and policy is contributing to heightened supply chain demand for the materials needed for offshore wind energy and the decarbonisation of transportation. Two case studies are introduced to contextualise the potential supply chain implications, namely with balsa wood in the Ecuadorian Amazon for wind turbine blades, and cobalt in the Democratic Republic of the Congo (‘DRC’) for lithium-ion batteries used in electric vehicles. These two case studies highlight how the Energy Transition is contributing to sustainable development trade-offs through human rights and labour rights infringements and distributional injustice. The third part explores how effective governance – through domestic law and policy and private sector conduct – has the ability to promote or undermine a Just Transition for those working in upstream supply chains, specifically through SDG target 12.7, where states are to “promote sustainable public procurement practices in accordance with national policies and priorities’, and SDG target 12.6, where companies are “to adopt sustainable practices and integrate sustainability into reporting”.[13] Finally, a Just Transition Nexus Framework is presented to illustrate how the combination of these cross-cutting environmental, social, and economic challenges can create synergies, trade-offs, and constraints for supply chains in the Energy Transition. Governments, public institutions, and the private sector can use this Framework to build out the components needed to support and facilitate a Just Transition in consultation with stakeholders to support long-term sustainable development when pursuing climate change mitigation.
In September 2015, the UN Member States unanimously adopted the 2030 Agenda for Sustainable Development (‘2030 Agenda’), a plan of action seeking to stimulate progress amongst towards sustainable development in areas of critical importance for humanity and the planet.[14] The 17 SDGs and 169 targets contained within the 2030 Agenda are designed to galvanise action at the international, national, and subnational levels towards a set of universal priorities that contribute towards sustainable development by 2030. They address a wide-ranging and interrelated set of global issues such as ending poverty, creating decent work, taking action against climate change, and the promotion of human rights.[15] The competing and complementary agendas, priorities, and objectives of the social, economic, and environmental pillars of the SDGs means there are potential synergies and trade-offs when implemented.[16] Despite this complexity, however, effective governance – based on a respect for rights through accountable and inclusive institutions – underscores all of the SDGs[17] and is therefore a pre-requisite to their successful realisation.[18] Moreover, the non-binding nature of the SDGs means they enjoy a broader scope of application than the UN Framework Convention on Climate Change (‘UNFCCC’)[19] and the Paris Agreement,[20] and can therefore directly mobilise efforts beyond states themselves and amongst “international institutions, local authorities, indigenous peoples, civil society, business, and the private sector, the scientific and academic community”.[21] As Kim explains, the SDGs “did not emerge from, and were not inserted into, a normative vacuum”, rather “they are grounded in international law and made consistent with existing commitments expressed in various international agreements and other soft law instruments”.[22]
In December 2015, parties to the UNFCCC[23] adopted the Paris Agreement (‘Agreement’),[24] affirming the international community’s commitment to strengthening a coordinated response to climate change within the context of sustainable development and efforts to eradicate poverty.[25] The Agreement includes mandatory and non-mandatory provisions on mitigation contributions, along with other measures related to adaptation and finance.[26] The long-term goal of the Agreement is to limit the global average temperature rise to well below two degrees Celsius above pre-industrial levels and for party states to pursue efforts to limit temperature increase to one and a half degrees Celsius above pre-industrial levels to significantly reduce the risks and impacts of climate change (‘Long-term Temperature Goal’).[27] To achieve this, party states are to reach peak greenhouse gas (‘GHG’) emissions as soon as possible and undertake rapid reductions thereafter through domestic mitigation measures.[28] Efforts undertaken by party states to limit global warming are on the “basis of equity” and in accordance with their common but differentiated responsibilities and respective capabilities, where developed countries take the lead by implementing economy-wide absolute emission reduction targets.[29]
Rather than imposing specific emissions reduction targets, the Agreement takes a “bottom-up” approach where parties communicate and maintain Nationally Determined Contributions (‘NDCs’) on how they will contribute to climate change mitigation while demonstrating progress.[30] Given the domestic measures contained within each state’s NDC are not legally binding, the Agreement’s transparency and review mechanisms are key to its effectiveness.[31] The nature of the Agreement’s provisions have been the subject of debate amongst academics, with some arguing they are essentially “voluntary” owing to the Agreement’s lack of enforcement mechanisms, obligations to comply, and justiciability along with the use of permissive verbs such as “should” and “may”.[32] However, others point out that these measures are not necessarily a pre-requisite for effectiveness. Indeed, the Agreement’s transparency and accountability mechanisms make it possible for inadequate performance to be scrutinised by other party states, thereby increasing the reputational costs associated with failing to achieve the commitments within a state’s NDCs and helping to mobilise domestic support.[33] Transparency and public commitment can, in itself, act as a “compliance pull”.[34]
Notably, the Agreement is the first international climate change treaty to promote human rights,[35] by iterating the positive obligations of party states to respect, promote, and consider their respective human rights obligations under international law when taking action to address climate change.[36] In the words of Grear, human rights are an “intrinsic and indispensable element of any adequate responses to climate crisis” and is a precondition for climate justice.[37] It is worth pointing out that as at December 2015, all party states to the Paris Agreement had previously ratified at least one international human rights treaty, meaning those signatories are all subject to specific and defined human rights obligations.[38] However, irrespective of these treaty ratifications, and despite the fact the Agreement does not create any new or standalone human rights-related obligations, international law requires states to ensure that their actions in response to climate change do not violate human rights, as part of their duty to respect human rights.[39] As John Knox points out, “Governments do not check in their human rights obligations at the door when they respond to climate change.”[40]
The UNFCCC, which includes the Agreement, is the main international instrument supporting the climate change-related goals and targets of the SDGs.[41] While there are no explicit climate change mitigation targets in SDG 13 on ‘Climate Action’; target 13.2 calls on actors to “integrate climate change measures into national policies, strategies and planning”, implying they are to realise this target by implementing the provisions of the UNFCCC and the Agreement through their NDCs. Even the Agreement itself does not detail emissions reduction goals or targets, instead deferring to states’ NDCs for detail on their climate mitigation commitments. It is likely the lack of specific detail on emissions reduction targets in both the SDGs and the Agreement is to allow for common but differentiated responsibilities, circumstances, and capabilities. At the time of writing, nine of the world’s 10 largest economies have either enshrined or pledged to reach net-zero emissions by 2050 or thereafter[42] – demonstrating some progress towards SDG target 13.2 and the Agreement’s requirement that parties pursue domestic mitigation measures.[43] Despite this, however, the enforceable and regulated mechanisms to reduce emissions domestically remain varied, leading to largely unabated global emissions levels.[44]
Research shows that renewable energy technologies, alongside greater energy efficiencies, can achieve almost 90% of the required reductions in GHG reductions by 2030 and 2050 to achieve the Long-term Temperature Goal.[45] SDG target 7.1, to substantially increase the share of renewable energy in the global energy mix by 2030, is therefore intrinsically linked to SDG 13.1.[46] Owing to the Agreement’s reliance on “bottom-up” processes, detail on how climate change mitigation is achieved through the shift from fossil fuels towards renewable energy is consigned to states’ NDCs. As of December 2020, out the 188 NDCs submitted by party states to the Agreement to-date, 170 (or 90%) NDCs mention renewable energy, 134 (or 71%) include quantified renewable energy targets, and 56 NDCs include quantified renewable energy targets for heat and transport.[47] The level of detail contained within countries’ NDCs varies considerably. For example, the UK’s NDC outlines a codified target of a 68% reduction in GHG emissions by 2030 compared to 1990 and net-zero emissions by 2050, but stops short of an explicit renewable energy target.[48] Instead, the UK’s NDC points towards a series of policy and strategy documents, one of which includes a target to produce 40 GW of offshore wind and 1GW of floating offshore wind by 2030.[49] By comparison, the EU’s NDC highlights a commitment to achieving “climate neutrality” by 2050 with a binding target of a 55% reduction in GHG emissions by 2030 compared to 1990 levels.[50] The EU’s NDC also includes a target to increase renewable energy in final energy consumption at least 32% by 2030, which is double that of 2017 levels.[51] According to analysis undertaken by the International Renewable Energy Agency (‘IRENA’), if all renewable energy targets implied in countries’ NDCs are implemented, an additional 1,041 gigawatts (‘GW’) of renewable energy capacity could be added between 2020 and 2030 with total capacity growing almost 42% from 2,523 GW in 2019 to around 3,564 GW in 2030.[52] Despite this, however, the rate of renewable energy uptake is not progressing fast enough to steer the world towards the Long-term Temperature Goal.[53] In totality, it is possible to see how SDG target 7.2 and 13.1 perform a mutually supportive function by contributing towards the objectives of Agreement, and at the same time, the Agreement provides meaning and legal substance to these targets.
The term a “just transition” was coined by trade unions in the 1980s and has since become a mobilising term used by bodies such as the ILO and the UNFCCC Conference of the Parties (‘COP’) to promote the fair and equitable transition from fossil fuel industries towards “green” jobs.[54] The UNFCCC lays the foundations for a Just Transition by highlighting how responses to climate change share an intrinsic relationship with sustainable development and the eradication of poverty.[55] The concept received recognition within the international climate change policy architecture at the COP16, where it was acknowledged that climate change mitigation policy comes with substantial opportunities and risks for economic growth and sustainable development, and that forward-looking planning such as re-skilling and job creation would be critical to managing any potential downside.[56]
Subsequently, the drafters of the Agreement emphasised how countries “may be affected not only by climate change, but also by the impacts of the measures taken in response to it”,[57] thereby calling on party states to take into account “the imperatives of a just transition of the workforce and the creation of decent work and quality jobs” in line with national development priorities.[58] It is possible to derive a subtle inference in this wording – taking a stringent approach to climate policy could come at the risk of sustainable development,[59] therefore requiring the integration of social and economic factors into states’ NDCs to limit possible trade-offs. These trade-offs could, for example, limit decent work and economic growth (SDG 8), contribute to poverty (SDG 1), and exacerbate factors driving conflict (SDG 16).[60] Despite being framed as an “imperative(s)”, the Agreement does not refer to a “just transition” in the operative provisions, nor is it a defined term. Whether the term is placed in the operative section or the preamble is important from a legal perspective,[61] as it determines whether it is binding and therefore creates obligations or provides context for interpretation, as is recognised by customary international law.[62] The question of why a Just Transition was not given further prominence in the Agreement warrants further research, but its existence in preamble provides a platform for state-level action and application through the SDGs.
Without a full appreciation for the energy justice dimension in climate change law, policy, and private sector investments, there is a risk of “locking in” or reinforcing intergenerational patterns of human rights infringements, exploitation, dispossession, and distributional injustice[63] for vulnerable groups working in the conventional energy sector in many developing countries.[64] New research is uncovering how the world’s increasing reliance on minerals is causing unintended environmental, social, and economic consequences in developing countries, particularly for those with weak governance structures and long-standing problems of human rights infringements and conflict.[65] To add to complexity, lesser-known materials; such as balsa wood for wind turbines,[66] mica in electricity grid infrastructure,[67] and polysilicon for solar panels,[68] has been overlooked in scholarly research. The following section presents two case studies on balsa wood from Ecuador and cobalt from the DRC to show how the costs, risks, and vulnerabilities of the Energy Transition are being unequally felt in supply chains.
Wind energy generation is a critical component of the Energy Transition. To illustrate how SDG targets 13.1 and 7.2 are being realised through state-specific law and policy, in October 2020, the UK set out policy commitments to boost offshore wind capacity from 10 GW in 2020 to 40GW by 2030, which is enough energy to power every home in the country.[69] As a party to the Agreement, the UK’s wind energy ambitions contribute towards its target to cut GHG emissions by 78% by 2035 (compared to 2009) and achieve net-zero emissions by 2050 in line with the Long-term Temperature Goal.[70] In an effort to provide a Just Transition for the oil and gas industries in the UK Continental Shelf, in March 2021, the UK Government and Oil & Gas UK set out the terms of agreement for a ‘North Sea Transition Deal’ to facilitate workforce re-skilling and invest in downstream low carbon jobs such as offshore wind.[71] Despite the UK’s future reliance on substantial offshore wind capacity – there is no detail in its policy documents on manufacturing[72] and supply chain governance[73] on the international procurement of input materials. For instance, there are no considerations for sourcing balsa wood, a popular material used in most of the world’s wind turbines blades owing to its sturdy and lightweight properties. 75% of the world’s supplies of balsa wood comes from the Ecuadorian Amazon.[74]
In 2018 and 2019, demand for balsa wood vastly outstripped supply and created a “free-for-all” where commercial and illegal loggers flocked to the Ecuadorian Amazon.[75] The spike in demand has caused and contributed to several problems for local communities. Many loggers are known to forge permits and illegally enter protected lands such as Indigenous Waorini reserves and the Yasuni National Park (which is home to uncontacted tribes) for their balsa wood reserves.[76] Payment for access to land often comes partly in the form of liquor and marijuana – fuelling decades of intergenerational drug abuse and violence amongst the Waorini since they came into contact with society in the 1950s.[77] Stand-offs between Indigenous Peoples and loggers are a common occurrence where situations of hostage taking and killings are believed to be “intensifying” between the two.[78] Many local communities provide informal labour for balsa wood logging as a source of income, however, sometimes people are left empty-handed after loggers have driven off without payment.[79] The rise in demand for balsa wood for wind energy has contributed meaningfully to the Ecuadorian economy in recent years; the country exported US$169 million of balsa wood in 2015, ticking upwards to US$219 million in 2019 and surpassing US$800 million in 2020.[80] However, economic growth has not necessarily led to decent work and poverty eradication. As of 2020, 25% of Ecuadorians live below the poverty line, many of whom are Indigenous Peoples.[81]
Turning to another example; the shift from internal combustion engines (‘ICE’) to electric vehicles (‘EV’) powered by decarbonised electricity is another linchpin of the global Energy Transition. For the UK, the decarbonisation of the transport sector is a key part of its strategy to contribute towards the Long-term Temperature Goal and therefore SDG targets 13.1 and 7.2.[82] In October 2020, the UK Government announced it would end the sale of new ICE passenger vehicles by 2030 and implement a package of £2.8 billion to facilitate domestic EV penetration and manufacturing.[83] Low carbon technologies, such as batteries, are more mineral intensive than fossil fuel sources of energy.[84] As their deployment increases, so does the demand on those industries and countries supplying the materials.[85] Cobalt is one of many materials used in battery technology and as such, cobalt demand for EVs is expected to rise by 167% from 2019 levels to 374Kt by 2030 .[86] Despite the UK’s reliance on cobalt to meet its EV targets, the Government’s policy documents only consider supply security and the creation of stockpiles to avoid potential shortages, as opposed to sustainable procurement practices.[87] As Fatih Birol, the Head of the International Energy Agency explains, “voluntary strategic stockpiling can in some cases help countries weather short-term supply disruptions”.[88] This perspective fails to consider the implications for those supplying the materials. 70% of the world’s cobalt production comes from industrial and artisanal and small-scale mining (‘ASM’) in the DRC.[89]
Demand for cobalt has led production in the DRC to almost double between 2008 and 2020 from 75,000 tonnes to 140,000 tons, while production specifically for battery manufacturing increased from 1% in 1990 to 80% of total production by 2020.[90] Research shows how distributional and cultural conflicts in the DRC are being aggravated by the cobalt mining boom. [91] Around 110,000-150,000 people including 40,000 children work in ASM, which accounts for 20-30% of the DRC’s cobalt production and makes its way into approximately 10-15% of global supplies.[92] Those working in ASM typically work in hazardous conditions over long hours and are paid very little which, in some instances, amounts to slavery and the worst forms of child labour.[93] The informal nature of ASM means that many operate without legal permits and are reliant on industrial concessions, meaning they have no job security and are often forced to pay illicit fines to government and private security agencies on mining sites.[94] ASM is a lifeline for millions of Congolese who live in extreme poverty, so it cannot simply be shut down, and nor can cobalt from the DRC be excluded from global supply chains.[95] Doing so would be harmful to the DRC’s development and result in social and economic trade-offs for people dependent on this work.
Despite the economic gains being realised from balsa wood and cobalt exports from Ecuador and the DRC; these examples illustrate how not all “green” jobs amount to decent work, respect for universal human rights, and contribute to poverty eradication, as envisaged by the Agreement and SDGs. It is clearly not as simple as drawing a direct line of causation between one country’s emissions reduction policy and another’s experiences of conflict and human rights abuses. However, it is reasonable to infer that the cumulative effects of the world’s growing appetite for wind energy and battery technology is contributing to a deleterious situation for many people in the Ecuadorian Amazon and the DRC by exacerbating pre-existing vulnerabilities. What is rarely acknowledged is how developed countries’ climate change law and policy changes can impact developing countries through sudden changes in supply chain demand – and in the same vein – how domestic and private sector procurement practices have the ability to support or undermine a Just Transition for those in upstream industries.
Aside from exacerbating the effects of climate change – the longer the delay amongst developed countries to adequately mitigate GHG emissions through coordinated action – the more disorderly and disruptive the Energy Transition will be for the environment, societies, and economies worldwide.[96] Ongoing climate change law and policy inertia forces the “inevitable policy response” at the regional, state and subnational levels into a “hard landing” for people, communities, and economies, therefore undermining the premise of a Just Transition.[97] It could be argued that 2019 onwards saw the beginnings of a “hard landing” as nine of the 10 largest global economies pledged (in quick succession) to reach net-zero emissions by 2050 or thereafter,[98] while the COVID-19 pandemic saw a number of governments rapidly carve out stimulus measures as part of a so-called “green recovery”.[99] These measures may not be enough to mitigate climate change in line with the Long-term Temperature Goal, but they are enough to cause ripples through supply chains. With this “hard landing” in mind, it is well-established that supply chain shocks driven by spikes in demand, sudden price pressures, and/or an overreliance on a small supplier base can lead to unsustainable trade-offs.[100] For example, the global onset of the COVID-19 pandemic in 2020 was met with surging demand for personal protective equipment, such as masks and gloves, which in turn contributed to instances of modern slavery.[101] Research is also uncovering correlations between climate change and issues of debt bondage, forced migration, and labour rights abuses across various industries such as fisheries and brick kilns.[102] With this in mind, there is an opportunity to harness the concept of a Just Transition across whole energy systems to promote poverty eradication, distributional equity, and decent work for those whose livelihoods are disrupted by changing supply chain dynamics.[103]
Combating climate change whilst acknowledging the need for more decent and sustainable jobs is one of the most complex policy problems the world faces today.[104] This is further complicated by the reality that a Just Transition has no explicit legal standing as a non-operative provision in international law and its application relies on state-based climate change mitigation commitments detailed in non-binding NDCs – and as shown in the case of the UK – through policy primarily concerned with upstream fossil fuel industries and supply chain security.[105] The SDGs can help provide meaning and application to a Just Transition through a globally endorsed framework of targets that seek to drive action towards a new vision of the future, and not simply a low-carbon version of the current one that is marked by energy injustices.[106]
International climate change law is not a locum for effective and accountable domestic laws and policies and private sector conduct upon which the SDGs rely.[107] A more direct line of responsibility can be identified through two actors who perform governance roles, namely (1) state governments who are to “promote public procurement practices that are sustainable, in accordance with national policies and priorities” (SDG 12.7), and (2) the companies procuring the materials, who are to “adopt sustainable practices and integrate sustainability into their reporting” (SDG 12.6).[108] In the first instance, the Ecuadorian Government is clearly responsible for governing the conduct of the logging industry in consultation with the Indigenous custodians of the land, while the DRC Government is responsible for governing its mining industry. Both governments have been unable (or unwilling) to adequately safeguard against the impact of the externalities from supply chain shocks to-date. The fundamental responsibility of state governments to account for activities within their jurisdiction is underpinned by the principle of state sovereignty and equally reflected in the UNFCCC, the Agreement, and the SDGs. Effective governance – through accountable, transparent, and inclusive institutions and procedures – underscores the “bottom-up” processes of the Agreement and progress towards the SDGs.[109] The governance aspect of sustainable development is distinctly linked to the promotion and protection of human rights, inter- and intra-generational equity, distributional justice, and private sector accountability.[110]
State responsibility does not absolve procuring companies from causing, contributing to, or being directly linked to human rights-related abuses and conflicts in countries such as Ecuador and the DRC. While it is difficult to hold powerful multinational corporations to account,[111] bringing human rights accountabilities within the remit of corporate law offers one potential avenue for regulating the conduct of companies extra-territorially.[112] State-based laws offer an avenue for regulating human rights-related practices within global supply chains, as seen with the California Transparency in Supply Chains Act of 2010,[113] the Modern Slavery Act 2015 (UK),[114] the Duty of Vigilance Law (France),[115] and the Modern Slavery Act 2018 (Cth). For example, the Modern Slavery Act 2015 (UK) requires certain companies with operations in the UK[116] to publish a statement every year on the measures they have taken to ensure slavery and human trafficking has not occurred in their operations and supply chains.[117] Based on the premise of transparency and accountability, there are no mandatory requirements for the level of detail contained within the slavery and human trafficking statement itself, [118] but rather the act of routinely publishing a publicly available report means that companies must face the “court of public opinion” as to whether they are taking adequate and appropriate measures.[119] Furthermore, “soft law” frameworks, such as the UN Guiding Principles on Business and Human Rights and the OECD Guidelines for Multinational Enterprises, could be promoted by bodies such as the ILO and the UNFCCC COP to encourage states and companies to proactively identify and remediate human rights abuses in supply chains in an effort to support a Just Transition. The ways in which these laws and frameworks could be employed to support a Just Transition presents an opportunity for SDG targets 13.1 and 7.2.
Using a similar approach proposed by Weitz, Nilsson, and Davis,[120] this paper sets out an example of what a Just Transition Nexus Framework (‘Framework’) could look like by connecting relevant environmental, social, and economic spheres alongside examples of relevant SDG targets (see Appendix). The economic and governance sphere brings together state governments and the private sector alongside targets on industry, innovation, and industrialisation (SDG 9), responsible consumption and production (SDG 12), and peace, justice, and strong institutions (SDG 16) to highlight the governance aspects of a Just Transition. The layout of the triangle does not suggest a hierarchy of spheres, but rather it serves to highlight the fundamental role that effective governance plays in shaping the sustainable development trajectory of the environmental and social spheres.[121] The chevrons illustrate how governance factors can facilitate (create synergies) or constrain (create trade-offs) sustainable environmental and social outcomes, and at the same time, how the environmental and social spheres can create synergies and trade-offs between them. For example, where decarbonisation efforts lead to a spike in demand for Energy Transition materials and contribute to instances of slavery; where environmental degradation owing to climate change contributes to poverty; or where a lack of decent work and economic growth stalls progress towards the development of affordable and clean energy infrastructure. In totality, the Framework brings together some of the key components of a Just Transition, as envisaged by the Agreement, but through the lens of a globally endorsed framework of interconnected targets. Governments, public institutions, and the private sector can use this Framework to build out the integrated components needed to support and facilitate a Just Transition in consultation with stakeholders, such as workers, communities, labour unions, and NGOs through social dialogue and research when pursuing climate change mitigation. This materiality assessment could help guide policy decisions by identifying the potential synergies and trade-offs related to decarbonising the energy sector while supporting long-term sustainable development. Furthermore, such a mapping exercise could help uncover some of the more complex and typically overlooked environmental, social, and economic interactions emerging from the Energy Transition owing to more ambitious climate change law and policy.[122]
The Energy Transition’s reliance on the steady and secure supply of materials to drive decarbonisation is overlooked and underappreciated. How the materials needed to facilitate the Energy Transition will be sourced will determine whether achieving the objectives of the Agreement and SDG targets 13.1 and 7.2 will bring about peaceful, fair, equitable, and sustainable development in the countries where strategic reserves are found, or contribute to inter-generational conflict, human rights abuses, and distributional injustices owing to weak governance and poor private sector conduct. With this in mind, SDG targets 12.7 and 12.6 present opportunities to secure more sustainable procurement practices to support a Just Transition when pursuing SDG targets 13.1 and 7.2. While the lack legal standing for a Just Transition in the Agreement may seem, at face value, a lost opportunity from a human rights and labour rights perspective; the SDGs offer a patchwork of interrelated targets that can be stitched together to illustrate how the environmental, social, and economic pillars interact through facilitating and constraining dynamics. The general line of thinking around a Just Transition is that the Energy Transition will only effect those working in downstream fossil fuel industries, while those working in industries supporting decarbonisation will be inevitably better off from the economic growth arising from increasing demand for certain materials. As the examples of balsa wood in Ecuador and cobalt in the DRC show – “green” jobs and economic growth have not necessarily equated to decent work and poverty eradication as envisaged by a Just Transition. A decision to decarbonise the energy sector needs to be a decision to change the environmental, social, and political order and not simply an ambition to create a low carbon copy of today’s world.
Appendix: A Just Transition Nexus Framework
[1] UN Framework Convention on Climate Change (‘UNFCCC’) Conference of the Parties (‘COP’), Adoption of the Paris Agreement (‘Paris Agreement’), Decision 1/CP.21, UNFCCC Conference of the Parties, 21st sess, UN Doc FCCC/CP/2015/L.9/Rev/1 (12 December 2015) Annex I, art 2(1)(a).
[2] International Energy Agency (IEA), ‘World Energy Outlook 2020’, IEA (Report, 2020) 124 <https://www.iea.org/reports/world-energy-outlook-2020>.
[3] Intergovernmental Panel on Climate Change (‘IPCC’), ‘Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C Approved by Governments’, IPCC Newsroom (Press Release, 8 October 2018) <https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments>.
[4] UNFCCC Secretariat, ‘Just Transition of the Workforce, and the Creation of Decent Work and Quality jobs’, UNFCCC (Technical Paper, 26 October 2016) 62 at 197 <https://unfccc.int/sites/default/files/resource/Just%20transition_for%20posting.pdf>.
[5] UNFCCC COP (n1) preamble.
[6] See International Labour Organisation (‘ILO’), ‘Guidelines for a Just Transition’, ILO (Document, 2015) <https://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/documents/publication/wcms_432859.pdf>; UNFCCC, ‘Solidarity and Just Transition Silesia Declaration’, COP24 Katowice 2018 (Declaration, December 2018) <https://cop24.gov.pl/fileadmin/user_upload/Solidarity_and_Just_Transition_Silesia_Declaration_2_.pdf>.
[7] International Trade Union Confederation (‘ITUC’), ‘Just Transition – Where Are We Now and What's Next? A Guide to National Policies and International Climate Governance’, ITUC (Report, 19 September 2017) 6 <https://www.ituc-csi.org/just-transition-where-are-we-now>.
[8] World Bank, ‘Climate-Smart Mining: Minerals for Climate Action’, World Bank (Article, 2020) <https://www.worldbank.org/en/topic/extractiveindustries/brief/climate-smart-mining-minerals-for-climate-action#:~:text=A%20new%20World%20Bank%20Group,demand%20for%20clean%20energy%20technologies>.
[9] United Nations General Assembly (‘UNGA’), Transforming our World: the 2030 Agenda for Sustainable Development, 17th mtg, Res. 70/1 25 September 2015, A/RES/70/1 <https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20Sustainable%20Development%20web.pdf>.
[10] Noel Healy and John Barry, ‘Politicizing Energy Justice and Energy System Transitions: Fossil Fuel Divestment and a “Just Transition” (2017) 108 Energy Policy 452.
[11] Peter Newell and Dustin Mulvaney, ‘The Political Economy of the ‘Just Transition’’ (2013) 179(2) The Geographical Journal 133.
[12] UNGA (n9) [23, 27].
[13] Ibid [27].
[14] Ibid preamble.
[15] Ibid paras 3, 13.
[16] Editorial, ‘Sustainable Development Through Climate Action’ (2019) 9 Nature Climate Change 491.
[17] Marcos Orellana, ‘Governance and the Sustainable Development Goals: The Increasing Relevance of Access Rights in Principle 10 of the Rio Declaration’ (2016) 25(1) Review of European Community & International Environmental Law 50, 58; Sara Ghrebremusse, ‘New Directions in Mining Governance and the Sustainable Development Goals in Africa’, Centre for International Governance Innovation (Article, May 2020) 1-6 <https://www.cigionline.org/publications/new-directions-mining-governance-and-sustainable-development-goals-africa>.
[18] Orellana (n17) 58; UNGA (n9) [paras 8-9].
[19] United Nations Framework Convention on Climate Change (‘UNFCCC’), opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994).
[20] UNFCCC COP (n1).
[21] UNGA (n9) para 52.
[22] Rakhyun Kim, ‘The Nexus Between International Law and the Sustainable Development Goals’ (2016) 25(1) Review of European, Comparative & International Environmental Law 15.
[23] UNFCCC (n19).
[24] UNFCCC COP (n1) annex I.
[25] Ibid annex I, art 2(1).
[26] Ibid annex I, arts 7, 9.
[27] Ibid annex I, art 2(1)(a).
[28] Ibid annex I, art 4(1-2).
[29] Ibid annex I, art 4(1)(3-4).
[30] Ibid annex I, art 4(2-3).
[31] Phillipe Sands et al, Principles of International Environmental Law (Cambridge University Press, 4th ed, 2018) 328.
[32] Anne-Marie Slaughter, ‘The Paris Approach to Global Governance’, Project Syndicate (Article, 28 December 2015) <https://www.project-syndicate.org/commentary/paris-agreement-model-for-global-governance-by-anne-marie-slaughter-2015-12>.
[33] Daniel Bodanksy, ‘The Legal Character of the Paris Agreement’ (2016) 25(5) Review of European Community & International Environmental Law 149.
[34] Ibid 149.
[35] Benoit Mayer, ‘Human Rights in the Paris Agreement’ (2016) 6(1-2) Climate Law 109-110.
[36] Ibid 113.
[37] Anna Grear, ‘Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy’ (2014) 5 Journal of Human Rights and the Environment 105.
[38] Office of the High Commissioner for Human Rights (OHCHR), ‘COP21, States’ Human Rights Obligations Encompass Climate Change’, OHCHR (Article, 3 December 2015) <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?Newsid=16836&Langid=E>.
[39] Mayer (n35) 114; Michael Burger and Jessica Wentz, ‘Climate Change and Human Rights’, United Nations Environment Programme (Paper, December 2015) 26 <https://perma.cc/BF65-E7UP>.
[40] OHCHR (n38).
[41] UNGA (n9) [27].
[42] Note that China is targeting net-zero emissions by 2060; United Nations Environment Programme (UNEP), ‘Emissions Gap Report 2020’, UNEP (Report, 2020) XVII <https://wedocs.unep.org/xmlui/bitstream/handle/20.500.11822/34426/EGR20.pdf?sequence=1&isAllowed=y>.
[43] UNFCCC COP (n1) annex I, art 4(2).
[44] Richard Betts, ‘Met Office: Atmospheric CO2 Now Hitting 50% Higher Than Pre-industrial Levels’, Carbon Brief (Article, 16 March 2021) <https://www.carbonbrief.org/met-office-atmospheric-co2-now-hitting-50-higher-than-pre-industrial-levels>.
[45] International Renewable Energy Agency (‘IRENA’), ‘Renewable Energy and Climate Pledges: Five years after the Paris Agreement’, IRENA (Report, 9 December 2020) 2 <https://www.irena.org/-/media/Files/IRENA/Agency/Publication/2020/Dec/IRENA_NDC_update_2020.pdf>.
[46] UNGA (n9) [23].
[47] IRENA (n45) 2.
[48] Note the UK’s emissions reduction targets have been codified pursuant to Climate Change Act 2008 (UK) s 1; UK Department for Business, Energy & Industrial Strategy (‘BEIS’), ‘United Kingdom of Great Britain and Northern Ireland’s Nationally Determined Contribution’, Government of the United Kingdom (Communiqué, 12 December 2020) 3, 7 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/943618/uk-2030-ndc.pdf>.
[49] UK Department for Business, Energy & Industrial Strategy (‘BEIS’), ‘Ten Point Plan for a Green Industrial Revolution’, Government of the United Kingdom (Policy Document, November 2020) 8 <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/936567/10_POINT_PLAN_BOOKLET.pdf>.
[50] Council of the European Union (‘EU’), ‘Update of the Nationally Determined Contribution of the European Union and its Member States’, Council of the EU (Communiqué, 17 December 2020) paras 3, 27 <https://data.consilium.europa.eu/doc/document/ST-14222-2020-REV-1/en/pdf>.
[51] Ibid para 20.
[52] IRENA (n45) 2.
[53] UN Division for Sustainable Development Goals, ‘Strengthening Interlinkages Between SDG 7 and Other SDGs’, UN Department of Economic and Social Affairs (Report, 2018) 4 <https://sustainabledevelopment.un.org/content/documents/17498PB15.pdf>.
[54] Darren McCauley and Raphael Heffron, ‘Just Transition: Integrating Climate, Energy and Environmental Justice’ (2018) 119 Energy Policy 1; David Doorey, ‘Just Transitions Law: Putting Law to Work on Climate Change’ (2017) 30(2) Journal of Environmental Law and Practice 201.
[55] UNFCCC (n19) preamble, para 21.
[56] UNFCC, ‘The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action’, 16th session, FCCC/CP/2010/7/Add.1 (15 March 2011) para 10, pt E preamble. <https://unfccc.int/resource/docs/2010/cop16/eng/07a01.pdf>.
[57] UNFCCC COP (n1) annex I, preamble.
[58] UNFCCC COP (n1) annex I, preamble.
[59] Editorial (n16) 491.
[60] Ibid.
[61] Francesco Sindico, ‘Paris, Climate Change, and Sustainable Development’ (2016) 6 Climate Law (2016) 139.
[62] Vienna Convention on the Law of the Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31(2).
[63] Sam Adelman, ‘Human Rights in the Paris Agreement: Too Little, Too Late?’ (2017) 7(1) Transnational Environmental Law 17-18.
[64] See Healy and Barry (n10) 451-452.
[65] See World Bank (n8); Éléonore Lèbre et al, ‘The Social and Environmental Complexities of Extracting Energy Transition Metals’ (2020) 11(4823) Nature Communications 1-8.
[66] The Economist, ‘A Worrying Windfall: The Wind-power Boom Set off a Scramble for Balsa Wood in Ecuador’, The Economist (Article, January 2021) <https://www.economist.com/the-americas/2021/01/30/the-wind-power-boom-set-off-a-scramble-for-balsa-wood-in-ecuador>.
[67] Kate Hodal, ‘Children as Young as Five Make up Most of Madagascar’s Mica Mining Workforce’, The Guardian (Article, 21 November 2019) <https://www.theguardian.com/global-development/2019/nov/21/children-as-young-as-five-make-up-most-of-madagascars-mica-mining-workforce>.
[68] Dan Murtaugh et al, ‘Secrecy and Abuse Claims Haunt China’s Solar Factories in Xinjiang’, Bloomberg (Article, April 2021) <https://www.bloomberg.com/graphics/2021-xinjiang-solar/v>.
[69] UK Department for Business, Energy & Industrial Strategy (‘BEIS’), ‘New Plans to Make UK World leader in Green Energy’, Government of the United Kingdom (Press Release, 6 October 2020) <https://www.gov.uk/government/news/new-plans-to-make-uk-world-leader-in-green-energy>.
[70] Note: the 2035 target is part of the UK’s sixth ‘Carbon Budget’, which at the time of writing is yet to be enshrined into law. The UK’s fifth Carbon Budget enshrines a commitment to reducing carbon emissions by 68% by 2030 and net-zero emissions by 2050 pursuant to the Climate Change Act 2008 (UK) s 1; UK Department for Business, Energy & Industrial Strategy (‘BEIS’), ‘UK Enshrines New Target in Law to Slash by 78% by 2035’, Government of the United Kingdom (Article, 20 April 2021) <https://www.gov.uk/government/news/uk-enshrines-new-target-in-law-to-slash-emissions-by-78-by-2035>.
[71] UK Department for Business, Energy & Industrial Strategy, ‘North Sea Transition Deal’, Government of the United Kingdom (Policy Paper, March 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/972520/north-sea-transition-deal_A_FINAL.pdf>
[72] Ibid.
[73] UK Department for Business, Energy & Industrial Strategy, ‘Supply Chain Plan for Low Carbon Electricity Generation’, Government of the United Kingdom (Policy Consultation, January 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/952198/cfd-supply-chain-plan-questionnaire-consultation-document.pdf>.
[74] Harry Dempsey and Gideon Long, ‘Balsa Shortage Threatens Wind Power Rollout’, The Financial Times (Article, 11 November 2019) <https://www.ft.com/content/315455ae-021f-11ea-be59-e49b2a136b8d>.
[75] The Economist (n66).
[76] Daniela Aguilar, ‘Illegal Logging and Hunting Threaten Yasuní Isolated Indigenous Groups’, Mongabay (Article, 22 June 2017) <https://news.mongabay.com/2017/06/illegal-logging-and-hunting-threaten-yasuni-isolated-indigenous-groups>; Vanessa Romo, ‘Illegal Deforestation Rises in South America’s Indigenous Territories’, Mongabay (Article, 29 December 2020) <https://news.mongabay.com/2020/12/illegal-deforestation-rises-in-south-americas-indigenous-territories-parks>.
[77] Aguilar (n76).
[78] David Hill, ‘Ecuadorians Denounce Foreign Loggers in Yasuni National Park’, The Guardian (Article, 16 June 2017) <https://www.theguardian.com/environment/andes-to-the-amazon/2017/jun/16/ecuadorians-denounce-foreign-loggers-in-yasuni-national-park>.
[79] The Economist (n66).
[80] Ibid.
[81] Amnesty International, ‘State of the World’s Human Rights 2020/21’, Amnesty International (Research Report, April 2021) 146 <https://www.amnesty.org/download/Documents/POL1032022021ENGLISH.PDF>.
[82] BEIS (n48) 4, 9-10.
[83] BEIS (n49) 14-15.
[84] Kirsten Hund et al, ‘Minerals for Climate Action: The Mineral Intensity of the Clean Energy Transition’, World Bank Group (Paper, 2020) 11, 13 <https://pubdocs.worldbank.org/en/961711588875536384/Minerals-for-Climate-Action-The-Mineral-Intensity-of-the-Clean-Energy-Transition.pdf>.
[85] IEA (n2) 57-59.
[86] IEA, ‘Annual Cobalt Demand for Electric Vehicle Batteries, 2019-2030’, IEA, (Chart, 2020) <https://www.iea.org/data-and-statistics/charts/annual-cobalt-demand-for-electric-vehicle-batteries-2019-2030>.
[87] David Hirst, ‘Briefing Paper: Electric Vehicles and Infrastructure’, House of Commons Library (Policy Paper, 4 December 2020) 3, 32 <https://researchbriefings.files.parliament.uk/documents/CBP-7480/CBP-7480.pdf>; Alan Tovey, ‘Britain Set to Stockpile Metals for Electric Cars to Beat Chinese Threat’, The Telegraph (Article, 5 May 2021) <https://www.telegraph.co.uk/business/2021/05/05/stockpile-metals-needed-electric-cars-governments-urged/>.
[88] Birol quoted in Tovey (n87).
[89] IEA (n2) 57-58.
[90] US Geological Survey, ‘Mineral Commodity Summaries: 2021’, US Department of the Interior (Report, 2021) 51 <https://pubs.usgs.gov/periodicals/mcs2021/mcs2021.pdf>.
[91] Louisa Prause, ‘Energy Transitions and Mining Conflicts: The Case of Cobalt Mining in the Democratic Republic of Congo’, Research Gate (Research Paper, March 2020) 4-5 <https://www.researchgate.net/publication/349928028_Energy_transitions_and_mining_conflicts_The_case_of_cobalt_mining_in_the_Democratic_Republic_of_Congo>.
[92] Amnesty International, ‘This is What We Die For: Human Rights Abuses in the Democratic Republic of the Congo’, Amnesty International (Report, May 2015) 4 <https://www.amnesty.org/download/Documents/AFR6231832016ENGLISH.PDF>.
[93] US Department of Labor (‘US DoL’), ‘Child Labor and Forced Labor Reports: The Democratic Republic of the Congo’, US DoL (Web Page, 2019) <https://www.dol.gov/agencies/ilab/resources/reports/child-labor/congo-democratic-republic-drc>.
[94] Amnesty International (n92) 31.
[95] John Campbell, ‘Why Cobalt Mining in the DRC Needs Urgent Attention’, Council on Foreign Relations (Article, October 2020) <https://www.cfr.org/blog/why-cobalt-mining-drc-needs-urgent-attention>.
[96] UN Principles for Responsible Investment (‘PRI’), ‘The Inevitable Policy Response: Forecast Policy Scenario’, PRI (Report, 2019) 6 <https://www.unpri.org/download?ac=9835>.
[97] Ibid.
[98] Note that China is targeting net-zero emissions by 2060; UNEP (n42) XVII.
[99] Cameron Hepburn et al, ‘Will COVID-19 Fiscal Recovery Packages Accelerate or Retard Progress on Climate Change?’ (2020) 36(Supplement 1) Oxford Review of Economic Policy S359–S381.
[100] Joy Murray and Arunima Malik, ‘Modern Slavery and COVID-19: Are we Really All in the Same (life)boat?’, Sydney University (Report, 2020) 5 <https://www.sydney.edu.au/content/dam/corporate/documents/faculty-of-science/research/physics/covid-and-mordern-slavery.pdf>.
[101] Ibid; James Cockayne and Angharad Smith, ‘The Impact of COVID-19 on Modern Slavery’, Our World: United Nations University (Article, April 2020) <https://ourworld.unu.edu/en/the-impact-of-covid-19-on-modern-slavery>.
[102] See Doreen Boyd et al, ‘Modern Slavery, Environmental Destruction and Climate Change: Fisheries, Field, Forests and Factories’, Environment and Planning (Paper, November 2019) <https://doi.org/10.1177%2F2514848619887156>.
[103] McCauley and Heffron (n54) 119-121.
[104] Doorey (n54) 222.
[105] Healy and Barry (n10) 455.
[106] Ibid.
[107] Orellana (n17) 50.
[108] McCauley and Heffron (n54) 4.
[109] Orellana (n17) 58; UNGA (n9) [paras 8-9].
[110] Orellana (n17) 50.
[111] McCauley and Heffron (n54) 4.
[112] Galit Sarfaty, ‘Shining Light on Global Supply Chains’ (2015) 56 Harvard International Law Journal 427.
[113] Cal Civ Code § 1714.43 (West 2012); California Transparency in Supply Chains Act of 2010, ch 556 Cal Stat § 2641 (West 2012).
[114] Modern Slavery Act 2015 (UK) (‘UK MSA’) c 30.
[115] Loi n° 2017-399 du 27 mars 2017 [Law No 2017-399 of 27 March 2017] (France) JO, 28 March 2017.
[116] UK MSA (n114) art 54(1-2).
[117] Ibid art 4.
[118] Ibid art 54(5).
[119] Ibid art 54(7).
[120] See Nina Weitz, Mans Nilsson and Marion Davies, ‘A Nexus Approach to the Post-2015 Agenda: Formulating Integrated Water, Energy, and Food SDGs’ (2014) 34(2) SAIS Review of International Affairs 37-50.
[121] Orellana (n17) 50-58.
[122] Weitz, Nilsson and Davies (n120) 49.
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