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Good COP, bad COP?

The Irish legal community can be key actors in taking the first steps to a national ‘justice’ pathway that responds to the ongoing climate and energy transition, argue Raphael Heffron and Aonghus Kelly

The winds of change are set to sweep across the practice of commercial law over the coming years. 

The battle against climate change will rise to a new level after the next Conference of the Parties, the 29th iteration of the United Nations Framework Convention on Climate Change (commonly known as COP), which will take place in Baku in Azerbaijan. 

A key new development at COP29 will be centred around ‘justice’, and countries (including Ireland) are expected to advance a ‘justice pathway’. The existing energy and climate targets required by each country will have to align with this pathway.

The impact of the development of this justice pathway will be profound across society. Specifically, business sectors across Ireland will see extensive change. Businesses will have to align their corporate strategies to the justice pathway. They will need to state how their energy usage and their business activities are climate-change compliant. 

In essence, society will be able to expect businesses to deliver more ‘just outcomes’, which are more fair, transparent, equitable, and sustainable than the existing status quo.

This focus on justice at COP29 points towards how companies will have to meet ESG (environmental, social, and governance) objectives. It strengthens the overall ESG framework, as it highlights that corporate activity should improve ‘just outcomes’ in society over time. 

Action in this area is already taking place in other countries, such as the US, where we have seen principles of justice being utilised regarding energy and environmental issues related to infrastructure development, and in terms of energy and climate transition policy more broadly in South Africa and Colombia. 

Diffusing climate change 

Ireland needs to move forward in an accelerated way in this area. There are economic advantages and job creation opportunities for the country should this ‘justice’ acceleration happen promptly. 

Furthermore, extensive new EU directives and regulations will necessitate the education of all legal professionals on what will now be expected across all areas of society, from finance to agriculture to planning to banking and beyond. 

These changes will realign Ireland and the world’s economies, and there will be no returning to the business practices of old. If Ireland does not engage significantly in this area of ESG, justice, climate, and sustainability, we will compromise both our economy and fall behind in best business practices. 

Legal professionals are key actors in any society, but particularly in an open democratic country like Ireland. Lawyers are the operators of the ‘rules of the game’, who facilitate a society in moving and functioning in the best possible manner. 

Consequently, all legal professionals should be educated extensively on the effects of climate change that challenge our society now and will continue to do so. 

This process is beginning in certain parts of the legal education infrastructure, but the speed at which this is taking place is slow compared to where it needs to be. 

Education in ESG and wider climate and sustainability issues should, in our opinion, be obligatory at all levels of legal education from undergraduate level, through entry level training, to continuous professional development education for solicitors, barristers, and judges. 

The practice of commercial law needs to become synonymous with ESG, sustainability, climate, and achieving justice. This will allow legal professionals to undertake their work correctly, but also position Ireland as a leader. 

Ireland has put a heavy emphasis on being a market leader in areas as diverse as trusts and aircraft leasing. The Irish legal community has been bringing the ‘Ireland for Law’ campaign to venues around the world. 

However, without proper education in this key area for all sections of the Irish legal education system, there is a gaping hole in the nation’s legal curriculum vitae. Indeed, one could say that a legal crossroads has been reached, and there are very few dancing there at this moment.

Displaying leadership 

Given the underlying dynamics across the planet – but particularly in the European Union – Ireland and Irish legal professionals must position ourselves at the forefront of the change that will be further highlighted at this year’s COP29. 

To best seize the opportunities presented by these massive changes, there should be mandatory training for all trainee solicitors on ESG at entry level. 

The Law Society of Ireland and the Bar of Ireland should undertake a joint study to ascertain the levels of ESG education that should be mandatory at CPD level. 

Further, there should be sensitisation sessions with the Irish judiciary as part of the work of the Judicial Council, and with the Department of Justice. 

These changes would lead to Irish legal professionals positioning themselves and the country as a leader in this important new field. 

Finally, action needs to be undertaken to advance the Irish economy on the pathway of a just transition to a low-carbon economy.

Currently, there is significant evidence of unequitable and unjust outcomes in our public space. Policy frameworks need to be realigned, and the business sector of the Irish economy needs to engage with the challenge of climate change and sustainability. 

As a small island nation, climate change will disproportionately affect Ireland, as opposed to other countries in our region. It is time to ensure that domestic action is undertaken.

Raphael Heffron is a barrister and professor in energy law and justice at the University of Pau and CNRS, France; Aonghus Kelly is head of the International Crime Legal Unit at the European Advisory Mission, Ukraine, and has completed a master’s in sustainability leadership at the University of Cambridge.