Mitigating the Risk of Failure: Legal Accountability for International Carbon Markets

Abstract

International carbon markets are core features of climate mitigation policy. They include the Kyoto Protocol’s Clean Development Mechanism, the Paris Agreement’s Sustainable Development Mechanism, and the International Civil Aviation Organization’s Carbon Offsetting Reduction Scheme for International Aviation. Yet, studies suggest that large quantities of international carbon offsets may not result in additional reductions in greenhouse gas emissions. This article examines these markets’ legal accountability; in other words, the extent to which their performance can be independently assessed against legal standards, and the potential for consequences if those standards are not met. Specifically, it looks at the markets’ internal appeal and grievance processes – or lack thereof – and hypothetical domestic litigation related to the markets’ environmental integrity. Drawing on recent climate change cases and law on the immunity of international organizations, the article explores whether courts in Canada and Germany could hold these international markets to account and mitigate the risk that they do not fulfil their purpose of reducing greenhouse gas emissions.