1. Introduction
Studies of the available data on fossil fuel reserves and resources have calculated regional shares of fossil fuels as ‘unburnable’ between 2010 and 2050 under the 2°C and the 1.5°C global warming scenarios.Footnote 1 Under the latter, 58 per cent of oil, 56 per cent of fossil methane gas and 89 per cent of coal must remain unextracted to keep within a 1.5°C carbon budget.Footnote 2 This provides a clear working measure of how many of the remaining fossil fuel stocks can be extracted for the global community to keep climate change within relatively safe limits. But this raises questions about which States exploit their remaining stocks, which strand their fossil fuel assets (which means they are abandoned or become unusable) and how this is determined.
This article outlines a principle-based approach to an equitable global fossil fuel phase-out (FFP) in international law, where FFP refers to the gradual, planned reduction in production (or extraction) and, as a consequence, use of fossil fuels. Equity is recognised to be central to the global response to climate changeFootnote 3 and, by extension, to any international legal regimes governing fossil fuel extraction and use, and any FFP. However, in the context of many competing ideals of equity and many indicia, it could be difficult to discern what this means. While there are many equity issues that arise in the context of the FFP, the starting point for clarifying existing obligations under international law and/or developing any future legal regime should be an understanding of what comprises equitable production of existing global fossil fuel stocks.
Furthermore, the meaning and content of what is needed for an equitable FFP is already reflected in existing principles of international law; in other words, an analysis of what established legal principles might require provides insight into what equity entails in this context and which legal obligations arise. The FFP regime would need to include general legal principles, the rules to which these might give rise and the operational indicators needed to put the principled proposals in place.Footnote 4 Principles of international law are a good place to start an enquiry of this nature, because they are largely accepted globally as giving rise to various obligations and guiding the interpretation of existing rules. Principles of international environmental law are largely issue-specific normative principles that have developed through environmental treaties, soft law instruments and State practice to guide environmental governance and fill gaps in treaty obligations. As emphasised by the International Court of Justice (ICJ) in its Advisory Opinion on Obligations of States in respect of Climate Change (Climate Change AO), such principles of international law, finding expression as customary obligations on States, apply irrespective of the climate change treaties;Footnote 5 therefore, the value of relying on existing principles of international law is that they can apply to all States, irrespective of whether they are signatories to a treaty.Footnote 6 It is important to note that in this article, the term ‘principles’ means principles of international environmental law which derive their legal power either from a customary rule (e.g. prevention of environmental harm) or from treaties (e.g. non-regression). This is not the same as the general principles of international law as recognised under Article 38(1)(c) of the ICJ Statute, which refers to principles derived from domestic jurisdictions and operating across all fields of international law rather than being confined to a specific regulatory regime.
This research builds on van Asselt’s framing of the international law of ‘leaving it in the ground’ where he ‘sketched the possible contours’ of an FFP regime,Footnote 7 recognising the importance of reconciling it with legal principles. It provides a detailed analysis of the principles which correspond with the core objectives of international environmental law: (a) equitable use of resources; and (b) avoidance of transboundary harm from the exploitation of fossil fuel resources. It discusses core principles, including permanent sovereignty over natural resources, differentiation, cooperation, prevention and precaution and non-regression. The relevance of many of these principles has now been emphasised in the Climate Change AO.Footnote 8
An international regime addressing fossil fuel production would face remarkable challenges. It would need to bridge the long-standing disconnect between climate change and fossil fuel governance,Footnote 9 and would be the first to address the use of natural resources through the lens of equity and sustainable development, across both intragenerational and intergenerational dimensions. The article argues that using the existing legal principles, and the concept of equity reflected in those principles, can show what is needed for a balanced and equitable FFP legal regime and could be instructive in forming the basis of the future regime. These principles generate a suite of substantive and procedural obligations requiring States to cooperate in good faith towards a shared objective of an equitable FFP. In a context where the meaning of equity can be contested, legal principles reflect a vision of equity that could balance the competing priorities and interests within any such regime or treaty.
The article is structured as follows. After briefly explaining the governance of fossil fuels in international law and specifically within the climate regime, Section 2 outlines the current challenges of constructing a legal regime for an equitable FFP and explains why a principle-based approach is both necessary and helpful. Sections 3 and 4 examine the role of legal principles in an equitable FFP. Section 3 addresses principles relating to the equitable use of resources, including permanent sovereignty over natural resources and the equitable utilisation thereof, differentiation and cooperation. Section 4 turns to the (seemingly) competing objective of harm avoidance and environmental protection, considering the principles of prevention, precaution and non-regression. Section 5 contains a critical discussion on the implications of a principle-based framework for an equitable FFP, concluding the article and outlining priorities for future research.
2. Understanding the FFP and the role of principles of international law
2.1. Fossil fuel production and international law
Fossil fuel phase-out generally refers to the reduction of the production (or extraction) of fossil fuels and, as a consequence, their use across different sectors.Footnote 10 Fossil fuel production and use are interrelated but are separated by processes of transportation and processing, and often occur in different States, governed by different legal regimes. References to FFP in this article primarily reflect a focus on fossil fuel production—the process of extracting oil, gas and coal for the purpose of its subsequent processing and use.
Fossil fuels contribute a substantial share of global emissions, with 78 per cent of the total greenhouse gas (GHG) emissions increase from 1970 to 2010 coming from fossil fuel and industry CO2.Footnote 11 Fossil fuel production has been a moving and contentious target at the climate negotiations.Footnote 12 While the United Nations (UN) Framework Convention on Climate Change (UNFCCC) and the Paris Agreement do not contain direct provisions requiring a reduction of fossil fuel production, they acknowledge the specific needs of States with fossil fuel dependent economies.Footnote 13 The Forum on the Impact of Implementation of Response Measures provides institutional support on this matter to the Conference of the Parties (COP) of both the UNFCCC and the Paris Agreement, focusing in part on the implications of climate action on fossil fuel-producing States.Footnote 14
Recent COP decisions have begun to address fossil fuels directly. At COP26 in Glasgow, there was agreement for ‘accelerating efforts towards the phase-down of unabated coal power and phase-out of inefficient fossil fuel subsidies’.Footnote 15 This was a significant first, albeit softened from the originally proposed ‘phase-out’.Footnote 16 The implications of this are mixed, with the new wording implying a ‘slower, incomplete transition’,Footnote 17 but also giving rise to more immediate obligations of conduct.Footnote 18 The outcome text for COP28 in Dubai included a reference to fossil fuels collectively, and reiterated the need to accelerate the phase-down of unabated coal use,Footnote 19 again with watered down language in the final version.Footnote 20 Nevertheless, given the inclusion of the reference to fossil fuels into the UNFCCC COP’s First Global Stocktake, parties will now be expected to demonstrate how their Nationally Determined Contributions (NDCs) are informed by it.Footnote 21 The COP29 outcome, in contrast, made no reference to fossil fuels in the final text.Footnote 22
The wording and commitments in COP decisions carry interpretative significance. As ‘subsequent practice’ or ‘subsequent agreement’ under the Vienna Convention on the Law of Treaties,Footnote 23 they inform the understanding of parties’ legal obligations under the UNFCCC and the Paris Agreement.Footnote 24 The question of the legal effect of COP decisions, specifically when it comes to fossil fuels, was challenged by some States’ submissions during the Climate Change AO on climate change, arguing that COP decisions ‘do not affect the scope and content of State obligations’,Footnote 25 specifically in relation to fossil fuels. These submissions asserted, for example, that the decision from COP28 did not create ‘new or distinct obligations’Footnote 26 for fossil fuel producing States. As the ICJ has recently confirmed, in some circumstances the decisions of these bodies ‘have certain legal effects’ including the creation of legally binding obligations.Footnote 27 This arguably includes decisions of COP26 and COP28 directly related to fossil fuels. ICJ Judges Bhandari and Cleveland in their joint declaration noted that, as a result, ‘actions by States that reinforce continuing dependence on fossil fuels run directly contrary to these obligations’.Footnote 28
Against the lack of political will to address fossil fuel production in the international climate change arena, fossil fuel moratoria emerged domestically,Footnote 29 although few of the States committed to such measures are large reserve holders or producers.Footnote 30 International initiatives (such as the Beyond Oil and Gas Alliance and Powering Past Coal Alliance) remain largely informal, notwithstanding ongoing discussions for a standalone treaty, or for provisions to be incorporated into existing regimes.Footnote 31 The Fossil Fuel Non-Proliferation Treaty initiative, endorsed by some States and non-governmental organisations, calls for a binding treaty akin to the nuclear non-proliferation regime.Footnote 32 Advocates of this approach stress the need for an effective combination of supply and demand-side measures, to avoid displacement of production outside of the coalition.Footnote 33
2.2. Equity and the FFP
A growing body of literature addresses approaches to organising global mechanisms to reduce fossil fuels.Footnote 34 Often framed in economic terms, these studies typically advocate targeting high-cost carbon reserves,Footnote 35 focusing on limiting new projects rather than closing existing ones early.Footnote 36 Some incorporate equity considerations, calling for countries historically benefitting from fossil fuels to take the lead, or identifying support mechanisms for low-capacity fossil fuel-dependent States,Footnote 37 although equity is not always central to these discussions.Footnote 38 Many studies prioritise cost efficiency, framing equity narrowly around States’ historical benefits from fossil fuel extraction and the need for developed States to support those with high dependency on fossil fuel resources, but limited transition capacity.Footnote 39 For example, Pye et al use a global energy systems model incorporating a redistribution mechanism based on economic development and historical benefits.Footnote 40 While the authors acknowledge the ‘crucial role’ for equity considerations,Footnote 41 they express scepticism around the economic, ethical and practical case for redistribution, suggesting that the potential benefits of an equitable FFP ‘may be overstated’.Footnote 42
Despite their technical framing,Footnote 43 these models can influence policy and global norms, reinforcing a status quo where current producers phase out last.Footnote 44 A more qualitative body of work, including that by Muttitt and Kartha, proposes criteria for equitable curbing of extraction based on the 1.5°C temperature goal, just transition, environmental justice and fair burden-sharing.Footnote 45 Lenferna highlights the intersection of equity and efficiency, pointing to additional challenges such as political inertia in resource-rich States.Footnote 46
Some scholars further argue that equity must consider not only reserves but also fossil fuel consumption and the distribution of benefits derived from it.Footnote 47 However, these criteria are not consistently integrated into modelling work. This highlights a core challenge for an equitable FFP: the complexity of defining what constitutes a ‘benefit’ or a ‘burden’ for determining equity in an FFP.Footnote 48 The assumption that fossil fuel production is always a benefit (and phase-out is always a burden) is oversimplified, especially where revenue flows involve multinational corporations or opaque ownership regimes.Footnote 49 Equity issues also arise at the domestic level,Footnote 50 as well as in relation to specific communities.Footnote 51 While all of these are important considerations, and national policies must ensure that burdens are not disproportionately borne by the most vulnerable,Footnote 52 this article focuses on the international distribution of fossil fuel stocks.
A further limitation in much of the existing literature is its limited engagement with international law. Some studies draw on legal concepts, such as Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC), but none treat legal principles as foundational. International law will, however, be essential to both the legitimacy and operationalisation of an equitable FFP regime.
Emerging legal scholarship has assessed the viability of an FFP treaty in light of the existing legal regimes on climate, investment protection, human rights and energy law.Footnote 53 Most of this work focuses on the need for a realisation of the phase-out. Less attention has been paid to the legal mechanisms that could ensure equity in such a regime.Footnote 54 Considerations of equity have mostly focused on the means to ameliorate the ‘unintended and inequitable consequences’ of supply-side policies, acknowledging that these could have distributional consequences.Footnote 55 There is insufficient reflection of the need for distributional equity as a central design feature of the FFP, including what equity entails and how this could be reconciled with other priorities. This conceptual gap risks undermining implementation, with potential consequences particularly for developing countries that may face pressure to strand assets, i.e. leave their reserves undeveloped or infrastructure unused.Footnote 56
Equity is a concept which emanated from the idea of justice and can serve a useful function in supporting the derivation of good solutions from existing principles of law.Footnote 57 Understanding equity and the FFP through international climate, environmental and natural resources law is essential, but also presents challenges. Equity holds several meanings in international law,Footnote 58 including corrective and distributive—the latter historically being linked to the allocation of resources, benefits and burdens.Footnote 59 In international environmental law, equity is often expressed through intergenerational and intragenerational dimensions.Footnote 60 It plays both substantive and procedural roles. Substantively, it underpins principles like CBDR-RC,Footnote 61 fair burden-sharingFootnote 62 and the duty to cooperate for the common good.Footnote 63 Procedurally, it requires fair representation of States in international bodies and courts.Footnote 64
While equity has been the fundamental principle of the climate regime from its inception, it does not have a settled meaning. Article 3(1) UNFCCC and multiple provisions of the Paris Agreement embed equity as a key principle alongside intergenerational equity and CBDR-RC.Footnote 65 While these references are ‘open-textured’ (and uncertain), they remain relevant to interpretation, implementation and future instrument negotiations.Footnote 66 Yet the specific normative value of equity cannot be easily derived from its meaning, thus inviting concerns of subjectivity in interpretation.Footnote 67 In the absence of a shared understanding of equity, States may take on and deliver less than their fair share of the transition burden.Footnote 68
This raises the question of what equity means and requires in the research context, and from whence a legal framework based on equity could be developed that could avoid these challenges of subjectivity. This is where the role of legal principles comes in. Existing principles of international law provide a useful foundation for understanding and operationalising equity in the FFP. They represent ideals, creating a link between higher order moral concepts and potential legal rules.Footnote 69 Moreover, they reflect divergent versions of equity—for instance, the prevention principle provides guidance as to required conduct for the prevention of harm, whereas differentiation justifies the staggering of obligations between States for reasons relating to equity.
The aim of this research is to examine these principles to determine the obligations to which each might give rise, as well as how they might be reconciled with one another, to establish the coherent basis of an equitable FFP. Many of these principles are well-established, and the reconciliation of their seemingly competing demands is already embedded in international legal practice. Accordingly, the normative foundation for a legal FFP regime is already partially in place, and this article distils this to start the task of devising an equitable FFP. Relying on legal principles also offers an objective benchmark for interpreting equity, mitigating the risk of subjective or inconsistent applications.
2.3. Building a principle-based legal framework for an equitable FFP
Principles are compelling as legal concepts within and beyond environmental law.Footnote 70 Legal principles represent valuable legal ideals,Footnote 71 and as such can form a medium for the creation or shaping of legal rules.Footnote 72 Principles guide judicial reasoning and legal interpretation,Footnote 73 and can also form the basis for new laws and standards.Footnote 74 Moreover, they can play a key role in legitimising and unifying forms of law,Footnote 75 and offer ‘legal solutions to legal problems’ in environmental law,Footnote 76 including by accelerating the formation of environmental law.Footnote 77 In the FFP context, where understanding about what is fair, legally justified and necessary is likely to be contested, the ideals represented by legal principles provide a link or transmission pathway between ideals and binding legal duties.Footnote 78 In addition to providing guidance as to what equity demands, legal principles can both shape obligations in customary international law and guide the formation of any new regime, such as one dealing with fossil fuel production as a fundamental source of global warming.Footnote 79
Principles of international environmental law apply to all States and can be idenitifed from treaties, customary law, State practice, judicial decisions and soft law commitments.Footnote 80 Principles all have legal consequences but different legal statuses.Footnote 81 One could argue over whether, and the extent to which, principles would genuinely be useful in guiding agreement towards an equitable FFP treaty. Being highly abstract, it could be questioned whether principles have any legal core, whether they are simply policy signifiers or whether their diverse meanings in different domestic contexts deprive them of any true meaning. Yet the contingent nature of principles in different domestic legal systems does not necessarily undermine their content or validity as international legal principles; the second does not depend on the first, and it is also fairly well-established that the application of legal rules and principles is often—and indeed, should be—context-dependent when it comes to different legal systems.Footnote 82 What legal principles can offer is clarity as to a high-consensus range of ideals, the acceptable scope of their meanings and how they fit together; this, in turn, can form the basis and content for further lawmaking in the understanding and shaping of an equitable regime dealing with FFP. In the context of an equitable FFP regime, the role of these principles should be understood beyond their original objectives and meaning. As van Asselt would have it: ‘the adaptation of existing legal principles … offers a way forward for developing specific obligations for States and non-State actors to achieve a fair and orderly transition away from fossil fuel production’.Footnote 83
Identifying, interpreting and reconciling the relevant legal principles is an important starting point for building the future FFP regime. The fragmentation and wide implications of natural resource governance mean that a number of distinct fields, such as economic law, energy law and human rights law, may be relevant.Footnote 84 There is an increased understanding of fossil fuel extraction and use as a potential human rights issue.Footnote 85 For example, the obligation to phase out fossil fuel production and use are seen as a ‘specification of States’ duty to respect, protect and fulfil the right to life’,Footnote 86 the duty to prevent discrimination and other human rights obligations.Footnote 87 There are further domestic issues that should form part of the future FFP regime, including the impacts of climate change responses, and the impact of the FFP on regions and workforces in countries historically engaged in fossil fuel production, as encompassed under the concept of ‘just transition’.Footnote 88 These issues fall outside the scope of this article.
This article centres around the recognition that rules (and principles) of international environmental law have developed within the context of ‘two fundamental objectives pulling in opposite directions’: that States have a sovereign right to their own resources, and that States must not cause damage to the environment.Footnote 89 Drawing on this, the article articulates an analysis of relevant principles of international law around two main objectives informing a legal regime on fossil fuel production: the equitable use of resources and the need for avoidance of transboundary harm. These priorities have become the ‘cornerstone’ of international environmental law,Footnote 90 and their joint importance is recognised in principle 21 of the Stockholm Declaration, which was one of the first international instruments to facilitate dialogue between developed and developing States in respect of environmental protection. These two objectives characterise the tension apparent in fossil fuel production between States’ rights to use their own resources, and the need to phase out fossil fuel production to address climate change as a transboundary harmful impact of GHG emissions stemming from fossil fuels.
The following two sections deal with the legal principles related to the equitable use of resources in detail. The focus is on the principles most relevant to natural resource development and its impact on the environment and climate, namely the principles of permanent sovereignty over natural resources (PSONR), equitable utilisation, prevention and precaution, differentiation and CBDR-RC, international cooperation and progression. These principles are organised around the two above competing objectives of international law. From the perspective of equitable use of fossil fuel resources (discussed in Section 3), relevant legal principles of international law relate to the limitations to State sovereignty over natural resources, international cooperation and differentiation of responsibilities in terms of production and consumption of fossil fuels. From a harm avoidance perspective (discussed in Section 4), an approach based on precaution and prevention of transboundary harm, coupled with progression/non-regression in relation to existing and future commitments on fossil fuel extraction, is fundamental.
In addition, there is a recognition that some key principles of international law, namely CBDR-RC and international cooperation, could arguably cross-cut both objectives. The extent to which these principles are interwoven is also clearly illustrated by the Climate Change AO.Footnote 91 For the purposes of this article, they are placed under the equitable use of resources since these principles are primarily concerned with the distribution of rights, responsibilities and capacities among States in managing FFP. Moreover, all the above principles must be understood within the broader duty of States to exercise due diligence, as reiterated by both the International Tribunal for the Law of the Sea (ITLOS) and the ICJ in their recent Advisory Opinions.Footnote 92
Most of the research, analysis and writing of this article pre-dated the Climate Change AO. However, the Court’s guidance as to how the principles of law discussed should be interpreted has enriched the analysis in the final stages of preparation. A significant feature in the Court’s analysis is the structuring of its discussion of customary international law around the duties to cooperate and to prevent significant harm to the environment, which the Court observes as requiring particular attention in the context of climate change.Footnote 93 There is a significant emphasis on due diligence as a required standard of conduct, informing the range of factors relevant to the implementation of duties, from applicable principles to scientific information.Footnote 94 At the same time, this approach was no doubt informed by the specific question that the Court was addressing.Footnote 95 The article’s analysis responds to a different question, with a focus on the FFP part of the climate change regime. This drives a focus on a slightly different group of principles. For instance, PSONR is an unavoidable principle in FFP, but was not central to the analysis of the ICJ; similarly, this article does not deal with sustainable development as a distinct principle; rather, this informs the analysis of the implications of the prevention principle. It is to the analysis of the legal principles underpinning the equitable use of resources and harm avoidance that the article now turns.
3. Equitable use of resources
3.1. PSONR and equitable utilisation of resources
Two foundational principles of international law shaping an equitable FFP are the principle of PSONR and the related principle of equitable utilisation of resources.Footnote 96
PSONR emerged from the postcolonial order, as newly independent States asserted their rights to control their natural resources to achieve economic independence and national development.Footnote 97 It is grounded in a global ‘development ideology’,Footnote 98 but, importantly, is also linked to environmental responsibility. This dual nature is reflected in principle 21 of the Stockholm Declaration and principle 2 of the Rio Declaration (established at the 1992 UN Conference on Environment and Development to inform States’ action for sustainable development), which frame sovereignty alongside the need to manage natural resources in a way that prevents transboundary environmental harm.Footnote 99
Resource sovereignty is ‘a basic constituent of the right to self-determination’.Footnote 100 It entails two relevant justice dimensions in the context of an equitable FFP, i.e. the right to political jurisdiction and the ownership of natural resources in a given territory.Footnote 101 Linking PSONR to human rights norms places limits on absolute sovereignty, imposing distributive obligations towards the State’s population, including indigenous communities, and extending the responsibilities to the populations of other States.Footnote 102 PSONR thus provides for incumbent duties on States in terms of management of their natural resources. Accordingly, States must exercise their permanent sovereignty ‘in the interest of national development and the well-being of the people of the State concerned’, while also taking into account the interests of other States and those of current and future generations.Footnote 103 Thus, PSONR includes limitations and positive duties on States’ extraction and use of natural resources to manage these resources equitably and sustainably.Footnote 104
There are two significant implications of PSONR for an equitable FFP regime. First, the benefits from extracting fossil fuels and other resources should promote the realisation of human rights, particularly the social and economic rights, of States’ citizens. Second, the permanent character of States’ sovereignty over their natural resources needs to be understood in light of global climate constraints and equity considerations.
These implications become clearer when considering the complex benefit flows around fossil fuel production. Fossil fuel revenues often disproportionately benefit multinational corporations rather than host States or communities.Footnote 105 Licensing and contract structures create varied forms of ownership, control and revenue distribution. For example, in production sharing agreements common in the Global South, ownership often remains with the State, but the agreement terms are shaped by wider political and economic factors.Footnote 106 In contrast, concessionary models allow private companies to retain resource rights in exchange for royalties or taxes, often resulting in financial outflows from the host State.Footnote 107 A meaningful equity framework must consider not only where reserves are located, but also who profits, who bears the costs and how those flows are governed.
Even when States derive revenue from fossil fuels, benefits are uneven and contingent on careful economic management.Footnote 108 Norway exemplifies successful use of extraction revenues supporting public goods through strong governance with its Sovereign Wealth Fund and the so-called ‘Society Benefit Principle’.Footnote 109 Yet many countries suffer from the so-called ‘resource curse’ associated with poor progress on democracy, gender equality, local wealth generation or economic reforms.Footnote 110 Therefore, leaving fossil fuels in the ground does not necessarily worsen community welfare, particularly if robust measures accompany the phase-out to mitigate negative socioeconomic impacts.Footnote 111 Broader regulatory, political and socioeconomic contexts must inform any equitable benefit distribution.Footnote 112
These legal and technical constraints on absolute and permanent State sovereignty underscore the principle of equitable utilisation of these resources in the context of FFP. This principle is recognised in treaties, authoritative writings and ICJ jurisprudence.Footnote 113 Accordingly, States must use their natural resources in a manner that allows other States to use theirs, or at least to obtain a reasonable and equitable share while minimising transboundary harm.Footnote 114 This principle is intrinsically linked to the principle of intragenerational equity,Footnote 115 and requires cooperation for the ‘optimum use’ of shared resources (such as freshwater resources, land, fisheries resources and gas and oil deposits),Footnote 116 as well as prevention of significant transboundary harm.
Applied to fossil fuels, equitable utilisation is central to an equitable FFP regime. It requires that fossil fuel exploitation reflects both current circumstances and historic differentiation. Yet, taken at face value, the concept of equitable utilisation of resources could be seen as potentially antagonistic for an equitable FFP if each State asserted a right to extract resources beyond what is permissible in terms of a global extraction budget. However, both the inherent purpose of the principle, as well as its interpretation in international law, suggest that it can be applied in a way consistent with the other principles explored in this article. What it cannot be understood to mean is that a State can exploit its own resources without giving any thought to global constraints.Footnote 117
Finally, international environmental law, including the UNFCCC, explicitly constrains PSONR, with the responsibility to prevent environmental harm to other States or areas beyond their jurisdiction.Footnote 118 Consequently, any limitations on States’ sovereignty arising from an FFP-oriented application of PSONR must be balanced by the principles of differentiation and international cooperation, which will now be examined.
3.2. Differentiation and common but differentiated responsibilities (and respective capabilities)
The purpose of differentiated commitments is for States to seek to give effect to justice considerations by staggering contributions between States in different stages of development.Footnote 119 This also fosters partnership, and supports the effective implementation of international agreements.Footnote 120 While all States agree to common burdens and benefits through multilateral negotiations, differentiation acknowledges that their respective contributions should reflect equity concerns between States, their capacities and responsibilities. This ensures that global efforts to achieve goals, such as FFP or reducing emissions, are distributed fairly.Footnote 121 Environmental treaties incorporate differential treatment through provisions that distinguish between obligations on developed and developing countries, allow flexible implementation schedules and provide financial and technological assistance.Footnote 122
Differentiation is a principle of international law and international environmental law,Footnote 123 which can be understood as reflecting the need to distribute equitably ‘burdens and obligations with respect to climate change’, taking into account both States’ historical contributions to the problem and also their current capabilities, including their development status.Footnote 124 Within the climate change regime, it is a ‘fundamental part of the conceptual apparatus’, forming both the basis for the interpretation of existing obligations and the elaboration of future international legal obligations, including the determination of rules of customary international law.Footnote 125 Differentiation is already integrated in the UNFCCC and the Paris Agreement and, by virtue of that, is universally accepted by States Parties in some respects. In terms of understanding the normative basis of an equitable FFP, the principle of differentiation is a useful foundational concept and starting point, but careful thought needs to be given to which version of it is most appropriate for an FFP.
Differentiation in the climate regime finds expression as CBDR-RC based on differing national circumstances.Footnote 126 It is identified as a key principle, requiring developed countries to ‘take the lead’ when it comes to tackling climate change and the adverse effects thereof,Footnote 127 so that developing countries do not have to bear a ‘disproportionate or abnormal burden’ of doing so.Footnote 128 Further, the version of CBDR-RC as manifested in the Paris Agreement is a ‘distinct’Footnote 129 or ‘nuanced’Footnote 130 version. Under the Agreement, all parties are now expected to make some contribution towards mitigation, based in part on an understanding that parties must contribute according to their own capabilities based on ‘national circumstances’, and that support will be provided to countries that need it.Footnote 131
As any FFP regime would be based in international environmental and climate law, there is no question that differentiation must form the basis of the future FFP treaty.Footnote 132 While differentiation itself creates no obligation on States, it must inform and guide the interpretation of existing principles of law, as well as treaties and customary law.Footnote 133 A programme of self-differentiation is not suitable for an FFP treaty. For one reason, while it did ensure close to universal ratification, the climate regime under the Paris Agreement is falling short in some respects, most notably in ambition and the trajectory to meet the temperature goal.Footnote 134 Also, the nature of the two regimes (climate change and FFP) is inherently different, foremost because the climate change regime is a demand-side regime, where the FFP would be a supply-side regime. Further, because of the permanence, durability and long-term features of fossil fuel extraction, burden-sharing should be determined upfront on a top-down basis, rather than self-determined then left to peer-review under a stocktake system. The potential danger of this old-fashioned approach is, of course, that it could result in high recusal rates, providing the world’s largest emitters with ‘a mechanism to delay action in ways that doom global efforts’Footnote 135 to mitigate climate change.Footnote 136
The differentiation concept consists of two parts—responsibilities and capabilities—but determining what this means in context is challenging. There is currently no consensus on either of these for FFP. Core to differentiation is common responsibility; responsibility itself can be interpreted in at least two ways: first, as historic responsibility for emissions or extraction of fossil fuels in which there is an (implicit or explicit) implication of fault for causing climate change; second, as obligation or leadership due to better resourcing or past benefits from undertaking an activity. As discussed in Section 3.1, fossil fuel production does not always benefit the country of origin and, therefore, it is not blame or moral accountability that should be assigned. Instead, those who benefited from specific activities and already extracted a portion of global fossil fuel stocks have a responsibility to show leadership in adhering to the global carbon budget and in determining how the remaining stocks will be distributed. The common responsibility of the parties could be to achieve agreement on what can safely be extracted in the most equitable way and, for parties which have already had their share, to show leadership when it comes to allocating the remaining reserves.
States’ common responsibility could be better encompassed by a broader duty to cooperate in order to subdivide/allocate the remaining stocks in the most equitable way based on current capabilities.Footnote 137 For this reason, gross benefit from fossil fuel use should be assessed, as the use to which fossil fuel revenues are put is contingent on States’ choices. At the same time, it must be acknowledged that not all factors are within the control of States—particularly when it comes to former colonies with governance challenges. This is why the discussion of capacity must be nuanced. The capacity of each State to contribute to an equitable FFP should comprise two elements: the State’s capability to phase out fossil fuels, and the State’s capability to provide financial contributions to support phase-out in other States lacking capability either to phase out and/or to contribute to compensation payments for other States.
The capability to phase out fossil fuels should revolve around both the vulnerability of given countries against transitional disruptions and their actual socioeconomic capability to deal with the FFP.Footnote 138 More generally, a framework informed by equity should encompass an array of sub-elements, such as sustaining domestic sustainable development and wellbeing. There would be at least two relevant factors in this respect, which would vary depending on the State. The first relates to the capacity to meet or continue to meet energy needs without the extraction of fossil fuels—i.e. each State’s dependency on fossil fuels for provision of domestic energy needs.Footnote 139 Dependency has been explored in the literature as anchored to different matrices, including Gross Domestic ProductFootnote 140 and the Human Development Index.Footnote 141 Yet other criteria could be included, which apply at a country or project-specific level, such as energy intensity, overall affordability, developmental efficiency etc.Footnote 142 This is particularly relevant to questions about whether increasing support for renewable energy projects would be suitable to meet this dependency. This may be the case in relation to energy needs, but not in relation to revenues from fossil fuels, which would be needed for economic development. Thus, even though the entire FFP framework aims to reduce fossil fuel use, the position of countries that depend on fossil fuel revenue for development remains important, particularly due to countries’ need to achieve the UN Sustainable Development Goals on energy accessFootnote 143 and safeguarding energy justice.Footnote 144
As to the capability to provide financial contributions, an FFP regime should revolve around both financial support for replacement of fossil fuels, the creation of jobs in phase-out affected communities and, where needed, compensatory payments for the stranding of existing stocks. This pillar of capability should hence be informed by the determination of each country’s ‘capacity to pay’. In this sense, a precedent for making these kinds of determinations is provided in the climate regime.Footnote 145 A truly differentiated and equitable regime should deal with overall funding levels, but also with the distribution of funds amongst beneficiaries.Footnote 146
3.3. International cooperation
An equitable FFP cannot be reached without an effective framework for international cooperation to deal with existing and future fossil fuel reserves globally. The principle of cooperation is at the heart of balancing different legal principles and rights and, in doing so, fulfilling the problem-solving function of the law.Footnote 147 As the ICJ emphasised, cooperation lies at the core of the UN Charter and the duty to cooperate is ‘a central obligation under the climate change treaties and other environmental treaties’.Footnote 148 The importance of cooperation through multilateral agreements, preventing new and compensating for existing pollution and raising support for developing countries, was emphasised in the Stockholm Declaration.Footnote 149 The Rio Declaration builds on this in a number of provisions culminating in principle 27, which requires that States and people ‘cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in the same Declaration’.Footnote 150 The ICJ noted how the duty to cooperate is ‘intrinsically linked to the duty to prevent significant harm to the environment’.Footnote 151 Moreover, the duty to cooperate is also ‘derived from the principle that the conservation and management of shared resources and the environment are based on shared interest and governed by the principle of good faith’.Footnote 152 For example, in the context of transboundary environmental harm, the ICJ has emphasised that States should collaborate in environmental impact assessments (EIAs) in relation to resources within their territory.Footnote 153 The duty to cooperate is also given substance from principles of international environmental law, including sustainable development.Footnote 154
International cooperation has been consistently emphasised as an important principle and a prerequisite of the climate change regime.Footnote 155 The importance of global cooperation through institutions is highlighted in the preamble of the UNFCCCFootnote 156 and, in the climate change context, has recently been emphasised by both the ICJ and ITLOS.Footnote 157 As stressed in the recent ITLOS Advisory Opinion on climate change (ITLOS AO),Footnote 158 the proper operationalisation of international environmental law principles must take place within the broader duty of cooperation under general international law.
International cooperation and the related duty of States to cooperate in good faith are key to the ICJ’s recent Climate Change AO. According to the ICJ, the duty to cooperate requires ‘sustained and continuous’Footnote 159 forms of cooperation, and it informs the fulfilment of States’ substantive obligations to prevent significant harm in their unilateral contributions to collective action against climate change. This requires ‘good faith efforts to arrive at appropriate forms of collective action’ even if this falls short of agreeing treaties, as well as an agreement on bona fide forms of cooperation, such as the Paris Agreement - although agreeing treaties cannot per se discharge the duty to cooperate.Footnote 160 Thus, cooperation entails ‘not a matter of choice for States but a pressing need and a legal obligation’.Footnote 161
In addition to requiring broad collaboration between nations, and between States and international organisations, cooperation is fundamental for differentiation.Footnote 162 In turn, the concept of differentiation determines what can be expected from cooperation. In the climate change context, cooperation encompasses assistance from developed to developing countries to support the latter’s climate mitigation and adaptation efforts, to improve scientific knowledge, to develop emission reduction standards, to adopt new legal frameworks and to ensure the adequacy of international law in dealing with the threat of climate change for all.Footnote 163 In practice, international cooperation mandates for the exchange of information between States, capacity building, technology transfer as well as voluntary, project-based cooperative approaches—for example, under Article 6 Paris Agreement.Footnote 164 Differentiation builds on ideas of solidarity and inter-State partnership, with the understanding that States’ interests converge on certain issues.Footnote 165 As the ICJ has made clear, the duty to cooperate applies to all States, but what the duty requires may vary based on various criteria, including differentiation.Footnote 166
As applied to a framework to address FFP, the principle of cooperation could also require States to engage in good faith negotiations and collaborate in developing a legal regime to achieve the FFP, but in a way that ensures equity in the use of global fossil fuel stocks. Where discretion is left to States as to how to regulate GHG emissions from fossil fuel production, such discretion is limited by the expected level of due diligence to be exercised against the transboundary harm due to the release of GHG emissions and the need for States jointly to develop ambitious and equitable climate policies, based on CBDR-RC.Footnote 167 As mentioned in Section 3.2, in the context of fossil fuel production this mandate requires developed States to show leadership and take more ambitious action on limiting fossil fuel production given both their prior extraction and enjoyment of the benefits thereof as well as their higher capabilities to mitigate GHG emissions.Footnote 168 Importantly, the ICJ affirmed the existence of a legal standard to assess States’ conduct both under the obligations established under existing treaties and more generally under bona fide cooperation, which in turn entails a limitation on States’ sovereignty over the use of natural resources which are harmful for the climate system, such as fossil fuels.Footnote 169
An underlying tension exists between notions of sovereignty and the need for cooperation.Footnote 170 The UNFCCC specifically affirms the sovereignty of States in ‘international cooperation to address climate change’.Footnote 171 It is clear that solidarity is needed to overcome global problems,Footnote 172 and this entails on occasion understanding the limits of an international system based on reciprocal obligations in a formal sense.Footnote 173 The need for cooperation carried out in accordance with differentiation and State sovereignty is confirmed in the foundational documents of the climate change regime.Footnote 174 But the duty to cooperate is also consistent with a comprehensive understanding of equity, as explored in this section.Footnote 175 This demands that actors have a moral attitude of aiming to achieve real justice,Footnote 176 which requires good faith,Footnote 177 a commitment to work in collaboration to develop legal principles into legal rules and to operationalise those rules.
4. Harm avoidance
4.1. Prevention and precaution
As previously noted in Section 3.1, it has long been recognised that States’ sovereignty over natural resources is not absolute and is linked to obligations not to cause damage to the environment of other States, including erga omnes obligations.Footnote 178 Harm avoidance is chiefly addressed in international environmental law through the principles of prevention and precaution. Incorporated into many international treaties,Footnote 179 prevention is widely acknowledged as a customary rule of international law.Footnote 180 While the principle does not incorporate an obligation of result, it includes a duty to take preventative measures and to exercise due diligence.Footnote 181
A strong articulation of the principle of prevention is absent from the operational provisions of climate treaties. The UNFCCC includes it in the preamble rather than Article 3.Footnote 182 The Paris Agreement does not make express reference to prevention at all, but its provisions are reflective of it, not least because it creates a system of reporting and accountability in relation to measures to prevent harm. This possibly contributed to debates in relation to the principle’s role in the climate change regime, with scholarly opinion overwhelmingly pointing towards its applicability.Footnote 183
The recent ITLOS AO has confirmed that prevention does entail stringent obligations to take all necessary measures to control pollution resulting from GHG emissions,Footnote 184 taking into account relevant science, international rules and standards on climate change and the respective capabilities of States.Footnote 185 ITLOS noted that the reference to the duty to preserve the environment must be seen ‘as a constraint upon States’ exercise of their sovereign right [to exploit natural resources]’.Footnote 186 ITLOS’ arguments about prevention carry weight in relation to the understanding of prevention for climate change more generally.Footnote 187 The ICJ in the Climate Change AO confirmed that in the context of climate change, prevention must be interpreted within the stringent standard of due diligence stemming from the customary duty to prevent significant harm to the environment.Footnote 188 It was core to the ICJ’s reasoning that prevention, along with cooperation, gives rise to duties and responsibilities and that this requires the adoption of rules and measures, vigilance in enforcement and an exercise of administrative control.Footnote 189 The Court also noted that, in the context of climate change, due diligence entails that all States’ measures, whether substantive or procedural, be taken to achieve emissions reductions.Footnote 190
The pillar of the equitable FFP that governs environmental harm avoidance can be based on the principle of prevention as the principle suited to the avoidance of risks which are known and foreseeable.Footnote 191 Health and environmental harm stemming from the extraction of fossil fuels constitute actual and foreseeable harm and risks, which States have a duty to prevent.Footnote 192 The principle of prevention requires a high standard of due diligence from States to prevent transboundary environmental harm, including the need to take ‘urgent, transformative action that has realistic, scientifically backed prospects of stabilizing global temperatures’.Footnote 193 In the context of fossil fuel production, prevention can be understood as requiring States to prevent unabated fossil fuel production and exercise due diligence when granting new oil, gas or coal licenses or supporting fossil fuels with public finance.Footnote 194 The scientific understanding of the incompatibility of unabated fossil fuel production with climate goals has advanced significantly in the last decade;Footnote 195 as the ICJ has clarified, the standard of due diligence becomes all the more stringent in light of the advance of scientific knowledge.Footnote 196 This scientific consensus further resulted in the acknowledgment of the need to phase down unabated coal power and inefficient fossil fuel subsidies at successive meetings of the COPs to climate treaties.Footnote 197
Yet questions remain as to the understanding of ‘transboundary harm’ in the context of climate change,Footnote 198 and the risks of fossil fuel production. Here, understanding prevention in tandem with the precautionary principle would be sensible, as prevention and precaution anticipate risks in different ways.Footnote 199 The legal status of the precautionary principle is less consolidated in international law, but its content is better understood.Footnote 200 Recognised in principle 15 of the Rio Declaration, the precautionary principle requires States not to ‘use scientific uncertainty as a reason to postpone cost-effective measures to prevent environmental degradation’.Footnote 201 Prevention seems to require more stringent action, and does not restrict relief based on measures of cost-benefit, unlike precaution.
The need to take precautionary measures is reflected in the climate change regime,Footnote 202 which requires States to take ‘measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effect’.Footnote 203 The International Law Association’s Draft Articles on Legal Principles relating to Climate Change are intended to guide States on the meaning and interrelationship of foundational legal principles relating to climate change. They include prevention and precaution together, noting that these are closely linked and part of a continuum, reflecting the lack of clear division between the certainty and uncertainty of scientific risks.Footnote 204 Once again, the approach taken by the ICJ strengthens the understanding of the relationship between the two, clarifying that the precautionary approach is an integral part of the due diligence standard.Footnote 205 This results in States’ due diligence obligations in relation to the prevention of climate change,Footnote 206 as well as positive duties to prevent harm-causing activities.Footnote 207
The ICJ clearly recognised that the duty to prevent transboundary harm, combined with a precautionary approach, gives rise to a concrete obligation to conduct EIAs.Footnote 208 In an equitable FFP regime, the prevention principle would require States to assess longer-term impacts of fossil fuel production and use, taking into account past circumstances and future generations. It would also potentially give rise to duties to prevent unabated fossil fuel use, according to States’ present capabilities and circumstances. Finally, it entails a good faith obligation to cooperate with other States with respect to the risks and adverse effects of its conduct.Footnote 209 The requirement of cooperation combined with the procedural obligations—specifically, to conduct an EIA—suggests that States would need to assess downstream emissions even where this entails assessing the implications on other States of projects on their own territory.Footnote 210 The European Court of Human Rights has noted that a State is required to conduct an adequate, timely and comprehensive assessment of emissions from hydrocarbon projects under the EIA procedure before authorising any extraction, and that a failure to do so may constitute a breach of the procedural rights protected by the European Convention of Human Rights.Footnote 211
But does the principle of prevention/precaution trump equity through its absolute nature? It has been argued that the principle ‘has no capacity to distinguish between the particular circumstances of States’.Footnote 212 However, this is not a universally held view. Prevention in the context of FFP can interact with, rather than counteract, the different conceptions of equity. In an equitable FFP, differentiation does not negate prevention—indeed, this would not make sense as any FFP regime has a preventative rationale.Footnote 213 In the context of intragenerational equity, differentiation does not ‘displace prevention’ but, rather, transforms it into a relative duty ‘based on the level of developmental and technological advancement’Footnote 214 and other factors. In more concrete terms, the approach taken by the ICJ is that the standard of due diligence is subject to differentiation, in particular with the standard being determined by the capabilities of respective States.Footnote 215 As such, harm avoidance in international law is balanced with principles which support equitable use of resources, in order to lead to equity.Footnote 216
4.2. Progression (or non-regression)
Actions taken under an FFP agreement should also be consistent with the principle of progression (or non-regression). The progression principle in environmental law has been developed from human rights law, and has since been adopted in many domestic constitutions and court decisions.Footnote 217 In its broader environmental conceptualisation, it entails that environmental gains shall not be reversed against changes in governmental, social or economic circumstances.Footnote 218 In the climate change regime, the principle of progression was adopted in the Lima Call for Climate Action in 2010,Footnote 219 and enshrined in the Paris Agreement as an overarching expectation for the parties’ successive NDCs to represent progression and reflect their highest level of ambition.Footnote 220 Progression thus aims to ‘bridge the gap between the sum of what national politics are able to deliver and what is needed to achieve the ambition expressed in the Paris Agreement’.Footnote 221 Moreover, progression reinforces differentiation under the Paris Agreement, as the highest level of ambition must be reflected in the States’ evolving domestic circumstances for the purposes of the drafting and implementation of their NDCs.Footnote 222 It has been noted that progression and the connected high level of ambition set a standard of due diligence upon States akin to the broader standard established under international law.Footnote 223
Nevertheless, the normative status of the progression principle is still uncertain.Footnote 224 Applied in the FFP context, this principle could bear normative force as it would inform States’ domestic actions and policies towards the use of both existing and prospective fossil fuel resources. Under an equitable progression framework, all countries would need to refrain from taking actions that increase global fossil fuel production and, specifically, adhere to the commitments that they have made under an equitable FFP instrument in the long term.
5. Conclusion
This article proposes a principle-based approach to governing the phase out of global fossil fuel production, analysing existing principles of international law applicable in this context. Taken together, these principles enshrine a two-fold normative underpinning of an equitable FFP, namely equitable use of resources and harm avoidance. As result of this research, it can be concluded that to apply principles of international law to a future FFP regime has at least four key implications.
First, developing an FFP regime relying on legal principles can embed an objective framing of equity in the regime. Equity reflects more than a moral aspiration; as a principle of international law, equity can be understood as an expression of justice rooted in existing concepts, rights and duties. Yet to determine equity under international law is a challenging exercise as numerous distributive principles can be debated and invoked in the context of fossil fuel production. Legal principles express equity in binding form; whereas equity contributes by deriving equitable solutions from applicable principles and rules.Footnote 225 These principles can fill legal gaps, guide treaty development and embed justice into the global phase-out effort. This means that binding legal duties can be developed using the normative force of legal principles.
Second, differentiation must underpin the structure of an FFP regime. While all States share a common duty to phase out fossil fuels, they do not share equal responsibility or capacity.Footnote 226 Proposals for an FFP treaty rightly advocate differentiation based on historic production and wealth accrued from fossil fuel use, including present capabilities.Footnote 227 This entails that economically advanced or historically high-emitting States may phase out production sooner and provide financial and technical support to others, particularly where economies remain dependent on fossil fuels.Footnote 228 Differentiation thus requires tailoring obligations while maintaining collective ambition.
Third, differentiation must interact with established principles governing natural resources and harm prevention. PSONR is pivotal to any regime dealing with fossil fuel production, as such a regime inherently counters the premise that every State entertains absolute sovereignty over their own natural resources. PSONR entails a series of duties on States, primarily related to the prohibition of causing transboundary harm and the duty to protect their citizens’ health, as well as to respect indigenous and local communities. These obligations are reinforced by international and domestic human rights frameworks, which increasingly recognise climate change—and fossil fuel use—as a human rights issue.Footnote 229 Notably, the Climate Change AO referred to fossil fuel production as a potential source of State responsibility where ‘the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies—may constitute an internationally wrongful act which is attributable to that State’.Footnote 230 Additionally, the prevention principle requires States to consider long-term impacts and future generations, obliging States to avoid further fossil fuel lock-in according to their respective capacities. The ICJ has emphasised how differentiation and prevention are not contradictory as they underpin the standard of due diligence imposed upon States in preventing transboundary harm from GHG emissions, as well as the procedural and substantive legal obligations stemming therefrom.Footnote 231 Due to differentiation, the climate change legal framework envisages a longer pathway towards emissions peaking for developing countries,Footnote 232 which presumably would accommodate a longer period of entitlement to fossil fuel use in some circumstances by these countries. Considering the preventative rationale of the climate change and FFP regimes, it is clear that prevention and differentiation can coexist in a way that global effort required to achieve what it demands is fairly distributed.
Fourth, the success of an equitable FFP regime ultimately rests on international cooperation. Cooperation is a cross-cutting principle embedded in both the use of natural resources and the collective effort of States to prevent transboundary harm from GHG emissions, thus informing PSONR, prevention and differentiation. It requires good faith engagement in designing and implementing FFP pathways and sharing information on fossil fuel reserves and associated climate risks. While current global agreements, including COP26 and COP28 outcomes, have only begun to acknowledge fossil fuel production explicitly, initiatives such as the proposed Fossil Fuel Non-Proliferation Treaty offer pathways toward cooperative norm development.
It must be acknowledged that implementing a principle-based FFP regime presents political and practical challenges. Consensus-building on the criteria of equity may be slow, and equitable approaches may be less cost-efficient compared to market-led solutions. Yet these challenges cannot undermine the ‘normative attractiveness’ of an ideal,Footnote 233 and the value of the well-established principles considered herein. Furthermore, what political theorists have called ‘institutional’ constraints on feasibility are neither permanent nor absolute;Footnote 234 circumstances change all the time, and what might seem impossible today could be feasible tomorrow or further in the future.Footnote 235 Where a proposal is ‘extremely desirable’, it could end up being viable due to political will and advocacy.Footnote 236
Similarly, reliance on established legal principles could guide negotiators towards a result that is not only fairer but also more coherent with existing international law. Legal principles are meant to give effect to equity considerations.Footnote 237 In particular, principles offer ideals guiding political reforms that may appear to have low feasibility in the short term.Footnote 238 At a minimum, the principles of international law reviewed in this article do not hinder the development of an equitable FFP regime. At best, they offer a foundation for building it. The application of some principles—for instance, PSONR and cooperation—is fairly straightforward. Others—such as differentiation and CBDR-RC or equitable utilisation—might require further interdisciplinary research and clarification in order properly to understand what they entail in this context.
Further research is also required to develop specific implementation criteria for an equitable FFP, with engagement across disciplines and geographies. The appropriateness and specific models for payments and/or compensation for undeveloped fossil fuel resources should be examined for consistency with legal principles. Finally, the interplays between the developing FFP regime and its envisaged principles and other regimes of international law must be appraised. The often overlapping and fragmented nature of the regimes set up to address other governance problems, such as international investment law or human rights law, means that the normative guidance emanating from international law in this context may not be entirely coherent with the equitable FFP.
Acknowledgments
Earlier versions of this article were presented at the Eighth Energy Transitions Conference hosted by the University of Eastern Finland in Joensuu on 27 June 2024; the Distributive Justice in International Law Conference hosted by UniLUISS, University of Cambridge and the European University Institute in Rome on 3 October 2024; and in a research seminar hosted by the University of Glasgow Just Transition Hub in Glasgow on 29 October 2024. We are grateful to everyone present for their helpful comments and suggestions, and their interest in our developing ideas. We are also very appreciative of Kaisa Huhta, Aileen McHarg, Annalisa Savaresi, Armando Rocha, Olivia Woolley and the two anonymous reviewers for their helpful comments on earlier versions of the article. All mistakes remain our own. We acknowledge financial support from the Durham University Institute of Advanced Study and the University of Aberdeen Just Transition Lab.
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