Just Transition: Examining States

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Just Transition: Examining States’ Energy Policies Compliance with Just Transition under Paris Agreement 2015

Nino Aleksandria International and European Law (Public International Law Masters Track) Student number: 13846035 nino.aleksandria@student.uva.nl Supervisor name: Dr. Heather Kurzbauer Date: 01/07/2022

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Abstract

The concept of Just Transition has been envisaged as the object and the purpose of the Paris agreement 2015. The concept entails policy imperatives to lessen the damaging effects of the transition away from coal on workers and communities as a whole. Especially the communities that work in the coal mining regions. Just Transition concept has been integrated into the Paris Agreement's preamble that should be seen as the object and the purpose of the treaty. By considering such an approach, the three State parties of the Agreement under Study U.S., Germany, and China are obliged to comply with the obligation to respect Just Transition by every action they take towards mitigating Climate Change.

The paper studies the different approaches of the United States, Germany, and China demonstrated by their energy policies, alongside the best practices of Germany. As the three States under study are the largest emitters in the world, assessing their compliance with the Just Transition obligation paints the picture of how the Paris Agreement 2015 is being complied with. Existing tensions and synergies between human rights and Climate Change obligations provide an insight into States’ practice that shows how these two concepts influence the States’ energy policies. The paper, in conclusion, tries to determine how the U.S., Germany, and China are respecting human rights and whether their transition process is Just. It also demonstrates the tensions and synergies that are created by the existing gap between human rights and Climate Change obligations in the process of Just Transition.

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Table of Contents

Chapter 1: Introduction 1

1.2. Literature Review 2

Chapter 2: Methodology: Comparative Policy Scoping Review 5

Chapter 3: The human rights obligations under Paris Agreement 2015 7

Chapter 4: Just Transition: Tracing the History 9

4.1. Just Transition ‘Threshold’ – The Guidelines 11

Chapter 5: NDCs submitted by the United States, Germany, and China 14

5.1. The United States NDC Review 14

5.2. Germany NDC Review 14

5.3. China NDC Review 15

Chapter 6: Examining Energy Policies of the United States, Germany, and China 16

6.1. The United States 16

6.2. Germany 18

6.3. China 21

7. The tensions and synergies between Climate Change and human rights obligations amid Just

Transition 23

7.1. The United States 23

7.2. Germany 25

7.3. China 26

Chapter 9: Conclusion 28

Bibliography 33

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1 Chapter 1: Introduction

The 2015 Paris Agreement not only requires State Parties to turn into a carbon-neutral society, but it also entails human rights obligations as one of its objects and purposes for the transition to be just. The Agreement accentuates the significance of Just Transition in the preamble, which should be seen as the object and the purpose of the Paris Agreement. The majority of the State parties do not consider it important to incorporate the idea of Just Transition in their NDCs, according to the most recent Nationally Determined Contributions (NDCs) that have been reported to the public register set up under the 2015 Paris Agreement.

The respect for, promotion of, and consideration of all human rights, along with the right to Just Transition, should therefore be ensured by each provision of the Paris Agreement that obliges State Parties to act. Trade Unions and Just Transition advocates persuaded the Parties to incorporate the term Just Transition and the promotion of decent work in the preamble of the Paris Agreement at the 2015 'United Nations Climate Change Conference' in Paris.

States undertaking obligations under Paris Agreement to ensure to reach carbon neutrality at all costs should use climate actions that respect, promote, and consider all human rights, as stated in the preamble of the Agreement. This way, all voices, including workers and vulnerable communities, will be heard. The majority of state parties have not adopted any method for assessment of the conformity of climate actions with human rights obligations. The main goal of the Just Transition imperative is ensuring decent work and new opportunities both for workers losing jobs in the transition out from carbon-intensive industries and for those in fast-growing industries at the center of transition into more sustainable futures. Workers will be left far more unprotected and unemployed as a response to fundamental structural developments in the global economy if basic human rights such as the right to work are not respected.

The 'Just Transition' is defined as a political necessity, a policy objective, and a concept consisting of actions designed to reduce the adverse effects of the energy transition on workers and communities. Human-induced greenhouse gas emissions ‘are the main cause of average global

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2 warming of approximately 1C since the beginning of the industrial era.’1 According to Intergovernmental Panel on Climate Change (IPCC), attaining net zero emissions by roughly 2050 could limit global warming to 1.5 degrees Celsius. ‘Achieving the 1.5C target set out in the Paris Agreement requires coal and other fossil fuels to be phased out in the next 30 years.’2

The scoping study extends the literature on Just Transition by concentrating on strategy policy implementation for the Just Transition. It reviews the Guidelines ‘for a Just Transition towards environmentally sustainable economies and societies for all’ (the Guidelines) and sets them as the ‘threshold’ for the Climate Change actions to meet. Furthermore, it unites domestic energy strategies, policies, tensions, and synergies between climate change and human rights obligations. Moreover, the study encopresis the best practices and innovative approaches implemented by Germany as a footprint that States can follow and handle the Just Transition.

1.2. Literature Review

The research question of the paper necessitates the literature used to focus on the legal aspects of the Just Transition concept. Primary sources including the Paris agreement and ‘the Guidelines for the Just Transition Towards Environmentally Sustainable Economies and Societies For All’ by International Labor Organization provide the framework for defining what the Just Transition is.

The sources also give the ability to create the assumption that the Guidelines can be used as the 'threshold' for the State parties to comply with while actively mitigating Climate Change. The Declaration on the Right to Development and the International Covenant on Economic, Social, and Cultural Rights contributes to the explanation of the reason why the Just Transition obligations are not only derived from the term 'Just Transition' in the preamble of the Paris Agreement, but it also exists in the part of the preamble where the human rights compliance, specifically the right to development, is reinforced. Secondary sources used such as Journals Articles and reports are the findings that provide substantive information on the Just Transition imperative. Climate Change actions that should be regulated by the State policies are discussed by the several sources used.

Guiding report for the research is, 'Delivering on the Paris Promises: Combating Climate Change

1 Gang He, Jiang Lin, Ying Zhang, Wenhua Zhang, Guilherme Larangeira, Chao Zhang, Wei Peng, Manzhi Liu, Fuqiang Yang, Enabling a Rapid and Just Transition away from coal in China, One Earth, Volume 3, Issue 2, 2020, 187.

2 Ibid, 187.

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3 while Protecting Rights Recommendations for the Negotiations of the Paris Rule Book’ by Duyck S and Lennon E. They discuss the immerse necessity for the implementation of the Just Transition policies in the national legislature. Desierto D, discusses how the three main emitters in the world, the U.S., Germany, and China are complying with the obligations under the Paris Agreement, by touching on the Nationally Determined Contributions submitted recently by each State. The main finding from the article entails that the State Parties that are of such big importance on the international fore do not deem it necessary to even include the framework on how they will achieve the Just Transition. Almonte P. A. M. discusses the relationship between human rights and Climate Change and finds that the human rights challenges are caused by Climate Change. Using this information, the research provides an explanation of how the gaps between human rights obligations and Climate Change mitigation obligations create the gap. The gap causes tensions that can only be covered by the intensive synergetic policies that unite the Climate Change actions and human rights actions into one concept which is called Just Transition. Moreover, the States that submitted Nationally Determined Contributions to the registry have been used and carefully examined.

For a closer review of the State coal policies, primary and secondary sources have been used. For the United States, the main source used is the White House official web page that provided information about Biden's administration's plans for the future. Furthermore, the report ‘Working toward a Just Transition for Coal Communities’ by Cahill B. provided insight into the U.S.’s transition beyond fossil fuels’ criticism, alongside the covid-19 side of the story. For Germany’s scope review of the national coal energy policies, the Act to Reduce and End Coal-Powered Energy and Amend Other Laws (Coal Phase-Out Act) has been closely examined. Christian C and Madlener Reinhard M’ piece ‘Switching from fossil fuel to renewables in residential heating systems: An empirical study of homeowners decisions in Germany’ demonstrated not only the domestic policies that Germany has adopted but, also, provided the excellent innovative practices found in Germany’s coal transition policies that facilitate transition into a fair economy for workers. The funding that Germany has provided to the workers and the minority groups has been discussed in the research with the help of Appun K’s article ‘First stock take of just transition funding in Germany’s coal regions’. For China’s coal transition policy review, the research integrated primary sources such as 1. The 14th Five-Year Plan (2021–2025) for National Economic and Social Development of the People’s Republic of China’. Other policy initiatives

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4 and legally bounding regulations existing in China have been found in secondary sources. A report by He G, Lin J and others Enabling a Rapid and Just Transition away from Coal in China’ has provided information on the employment tendencies found in the coal regions of the State.

Furthermore, China's unwillingness to implement more human rights obligations into the domestic plans has been shown.

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5 Chapter 2: Methodology: Comparative Policy Scoping Review

This research was carried out as a scoping review which can be defined as ‘a form of knowledge synthesis that addresses an exploratory research question aimed at mapping key concepts, types of evidence, and gaps in research related to a defined area or field by systematically searching, selecting, and synthesizing existing knowledge.'3 Comparative research is being conducted on Just Transition approaches and their compliance with the Just Transition by US, Germany, and China.

The three States have been chosen for the comparative study as they are the largest emitters in the world. Furthermore, China is the biggest user of coal. The report will describe and analyze the similarities, and differences found systematically and explicitly between the three States' approaches and acts. The research question for the study is as follows:

How are States’ energy Policies complying with Just Transition under Paris Agreement 2015?; That will be divided into six sub-questions: What are the human rights obligations under Paris Agreement 2015?; What is Just Transition?; What do the NDCs submitted by the United States, Germany, and China entail?; How is the energy sector just transition regulated in the United States, Germany, and China?; What tensions and synergies between Climate Change and human rights obligations exist in the United States, Germany, and China?;

The literature used for the research consists of legislative material at the international and national levels. Reports and academic articles were considered to argue the discussion on the topic. Primary sources such as the Paris Agreement, International Labor Organizations Guidelines, and several human rights agreements were integrated into the research process, as they are the main instruments that States should comply with. Secondary sources mainly used consist of journal articles and legal reports on the research subject matter. Journal articles and reports are used to demonstrate the national energy policies and tensions between human rights and Climate Change obligations that States under study should undertake. The NDCs' review demonstrates the States' position regarding the Just Transition concept.

The outline of the research is as follows: firstly, the importance and the scope of the Paris Agreement in relation to the Just Transition and Human Rights will be defined. Furthermore, the

3 Andrea C Tricco, Erin Lillie, Wasifa Zarin, Kelly O'Brien, ‘Scoping reviews: Time for clarity in definition, methods, and reporting’ (2014) 1291–1294.

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6 report will discuss specific human rights – the right to work and the international instruments entailing the right to work. Subsequently, the research will define Just Transition and present the history of the concept. The Guidelines set out by the International Labor Organization will be discussed as a ‘threshold’ for the Climate Change actions that the State Parties take. Moreover, the report will demonstrate the case study on the three States. Firstly, it will separately describe the submitted NDCs to the Paris Agreement registry. After discussing NDCs, research will concentrate on the legal framework of the policies concerning the Just Transition to achieve their set goals of reducing fossil fuel usage in the three states separately. Furthermore, it will show the best approaches/innovative practices that can set an excellent example for other State parties in their Just Transition process. By looking at Germany's approaches to the Just Transition process, other States do not need to reinvent the wheel. Assessing how the world's largest emitters respect, promote, and consider Human Rights in their climate actions and how their energy strategies respect Just Transition will demonstrate how the obligations under the Paris Agreement are being complied with. Moreover, existing synergies and tensions between Climate Change and human rights and how they have been reflected in different jurisdictions will be demonstrated. The study reviews the gaps that the two concepts - human rights and Climate Change obligations create and how the Just Transition tries to tackle such issues.

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7 Chapter 3: The human rights obligations under Paris Agreement 2015

This section will discuss the human rights obligations of the State parties to the Paris Agreement.

In particular, the section will demonstrate how the right to work is integrated into the Paris Agreement 2015.

The Paris Agreement, in its preamble, mentions: ‘Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.'4 The duties of State Parties require them to respect, promote and consider the human rights obligations enumerated above. The preamble of the treaty serves as the object and the purpose of the Agreement, as stipulated by the Vienna Convention on the Law of Treaties, ‘a preamble is an integral part of the text of a treaty, and critical for interpretation as they indicate context as well as the ‘object and purpose’ of a treaty.’5 Obligation to respect, promote and consider human rights forms the object and the purpose of the Paris Agreement that should be used as part of the interpretation of the treaty. ‘By intentionally subjecting all climate actions and responses to climate action to the threshold of respecting, promoting, and considering the most comprehensive scope of human rights, it is not an overreach to state that climate actions themselves must ultimately be consistent or in conformity with all human rights.’6

It is noteworthy that, according to Article 1(1) of the 1986 Declaration on the Right to Development: ‘The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.’7 According to Article 4 (1) of the Draft Convention on the Right to

4 The Paris Agreement, (2015).

5 Ruwan Subasinghe, ‘It is time to start talking about a human right to a Just Transition’ (2021).

6 Diane Desierto, ‘Just Transitions in Climate Change Actions: Are States Respecting, Promoting, and Considering Human Rights Obligations in Setting and Implementing NDCs?’ (2021). https://www.ejiltalk.org/respecting-human- rights-obligations-in-climate-change-actions-are-states-evaluating-ndcs-human-rights-impacts/ Accessed 23 May 2022

7 Article 1(1) of the 1986 Declaration on the Right to Development.

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8 Development, ‘Every human person and all peoples have the inalienable right to development by virtue of which they are entitled to participate in, contribute to and enjoy economic, social, cultural, civil and political development that is consistent with and based on all other human rights and fundamental freedoms.’8 Regardless of whatever version of the definition of the right to development is used, the goal is the development that empowers the realization of all human rights and, also, the development that is compatible with all human rights. Therefore, the right to development strongly highlights the obligation of the State to contribute to human rights, including the right to work. Nevertheless, the obligation to respect the right to work is not only derived from the above-mentioned section of the preamble of the Paris Agreement.

In August 2021, ‘The IPCC Working Group published its most recent report, deemed by U.N.

Secretary-General António Guterres to be a 'code red for humanity,' finding that global warming will continue until at least mid-century under ‘all emissions scenarios’.’9 Such a tendency of global warming reinforces the urgency of protecting human rights, including the right to work, from all the continuous Climate Change mitigation processes in the world. According to the International Labour Organization (ILO) Commission on the Future of Work, ‘global warming, as well as the actions needed to mitigate it, are likely to be deeply disruptive for all workers, from those in carbon-intensive industries to those whose jobs are threatened by the impacts of warming.’10 The Paris Agreement, in its preamble, specifically mentions the term Just Transition, which should mean that contracting States must comply with their Just Transition obligations when carrying out Climate Change mitigation measures under the Agreement.

8 Article 4(1) of the Draft Convention on the Right to Development.

9 Ruwan Subasinghe (n5).

10 Ruwan Subasinghe (n5).

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9 Chapter 4: Just Transition: Tracing the History

This chapter of the paper will touch on the concept of the Just Transition and how the concept found its way into the Paris Agreement 2015. It will also discuss how the obligation of the State parties to respect the right to work is derived from the Just Transition. Moreover, the threshold that State parties need to meet while mitigating Climate Change will be demonstrated by focusing on the ILO Guidelines for Just Transition.

The ILO constituents unanimously adopted the ‘Guidelines for a Just Transition towards environmentally sustainable economies and societies for all’(The Guidelines), and the concept of the Just Transition has been further made clear. The Guidelines include significant policy aspects that consider environmental, economic, and social sustainability, such as social protection, occupational safety and health (O.S.H.), and other basic labor rights. A right to a Just Transition will need to involve governmental commitments to guarantee that certain areas of policy are handled holistically.

Article 6 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) recognizes the freedom of every individual to actively choose work without being subjected to any discrimination. For governments, this includes the obligation to implement measures aimed at attaining full employment as soon as feasible, including the adoption of a strategic plan and a clear plan to achieve it. Furthermore, it is worth noting that the duty to adopt an active policy geared to encourage full, productive and freely chosen employment is demonstrated by 'ILO Convention 122 on Employment Policy,' while 'Recommendation 169' specifically refers to the right to work.

It means that states must ‘adopt mitigation and adaptation policies that at the same time ensure that people are both able to access employment and provide the means to obtain such work through active labor market policies.’11

'The right to just and favorable working conditions' is deeply embedded in the Universal Declaration of Human Rights, as well as the art. 7 of the ICESCR, and the ILO convention. States must incorporate non-discrimination regulations, policies, and rules, as well as a fixed minimum hourly wage, O.H.S., mandatory insurance, and minimum standards for leisure. This might be

11 Ruwan Subasinghe (n5).

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10 taken as a requirement for governments to provide well-paying jobs. It implies that the government must guarantee that conditions for workers amid Climate Change are fair and safe, which necessitates measures to reduce and adapt to rising global temperatures.

The Paris Agreement finally recognized the concept of Just Transition ensuring that amid energy transition into a carbon-neutral world, including transitioning away from coal consumption, workers will not be left behind. ‘Through the inclusion of the reference to the imperative for a Just Transition for workers is a key step towards better policy integration and, importantly, towards better ownership of climate policies by working people.’12 Just Transition can be considered a strategy that should mitigate the consequences of the climate policies that might put at risk the jobs, income, and livelihoods of workers. The International Labor Conference held the first session on Just Transition in 2013, which resulted in the creation and drafting of The Guidelines. This serves as the foundation for better unification of the issues throughout the implementation stage, as well as a mechanism for improving intergovernmental organization coherency.

The Just Transitions ‘literature introduces 'jobs-focused,' 'environment-focused,' and 'society- focused' interpretations.’13 The 'jobs-focused' approach lobbies for workers and vulnerable communities as a whole affected by environmental and climate actions. The 'environment-focused' approach of Just Transition assesses the transition with the primary goal of allowing the transition to a zero-carbon future. 'Society-focused' approach considers Just Transition as a way to empower and assist workers.

The concept of Just Transition found its way in the preamble of the Paris Agreement 2015. ‘Taking into account the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally defined development priorities’14 says the preamble of the Agreement and reinforces the obligation of the State parties to subject their Climate Change actions to the threshold of Just Transition. As the preamble is considered the object and the purpose of the treaty, States should, in their Climate Change actions and Nationally Determined

12 Delivering on the Paris Promises Combating Climate Change while Protecting Rights Recommendations for the Negotiations of the Paris Rule Book. 9.

13 Tamara Krawchenko, Megan Gordon, How do We Manage a Just Transition? A Comparative Review of National and Regional Just Transitions Initiatives, (2021), 1.

14 The preamble of the Paris Agreement 2015.

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11 Contributions, promote, respect, and consider Just Transition. The Just Transition concept integration in the Paris Agreement with its different approaches can be considered timely as the challenges that workers and the communities are facing due to reducing fossil fuel usage such as coal in recent years calls for prominent actions such as this.

4.1. Just Transition ‘Threshold’ – The Guidelines

‘The Guidelines for a Just Transition towards environmentally sustainable economies and societies for all’ serve as a policy framework and an instrument to assist States in any development stages in handling the transition to carbon-free economic systems, as well as in meeting their NDCs and the Sustainable Development Goals (SDGs) by 2030. There are several aspects listed in the Guidelines that form a fundamental framework for addressing the problems of a Just Transition.

To achieve carbon-free economies and elimination of poverty, the goal should be to create decent jobs everywhere in the supply chain that will result in encouraging job and skill upgrading, along with the creation of more jobs and productivity improvements in more labor-intensive sectors.

International labor standards, also, provide a solid foundation for dealing with the issues connected with transitioning into greener economies. Numerous international labor standards are significant.

Namely, those encompassing 'freedom of association and collective bargaining, prohibition of forced labor, child labor and non-discrimination, social dialogue, tripartite consultation, minimum wage, labor administration and inspection, employment policy, human resource development, occupational safety and health, and social security.'15

The Guidelines provide rules not only for the governments to follow, but it encompasses an outline of the steps to take for social partners as well. To make sure that the policies for Just Transition are coherent governments' obligations include focusing on providing stable policy messages regarding social dialogue and a regulatory framework to ensure workers decent work conditions.

Also, emphasizes the international labor standards that are significant for the Just Transition process. Incorporating Just Transition provisions into their NDCs and other national agendas for Climate Change mitigation is one of the obligations set out in the Guidelines. Developing strong

15 ILO, ‘The Guidelines for a Just Transition towards environmentally sustainable economies and societies for all’

(2016).

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12 technical and institutional capabilities of authorities at the various levels of government to assist the Just Transition and handle the required reforms in local economies. Through social dialogue, giving opportunities for social partners to participate at all feasible levels and phases of the policy- creating process, and facilitating dialogues with key stakeholders and workers and communities is one of the crucial aspects of the Guidelines. Social dialogue is what molds the transition into being Just. According to the Guidelines, governments should support and engage in joint efforts between governments, employers' and workers' organizations to successfully implement effective policies for a low-carbon transition. Such type of tripeptide dynamic ensures that the voices of the workers and communities are heard, as they are the most vulnerable in the Just Transition process.

The guidelines highlight the active labor market policies that governments should incorporate after consulting with social partners. States should promote solid labor market strategies that assist not only businesses but workers in anticipating transitioning the labor market by training and easing job access. ‘Governments must give particular attention to unemployed workers and workers at risk of unemployment in communities and industries affected by climate change, structural change including those in the informal economy.’16 ILO emphasizes the protection of the irregular workers’ sector and obliges States to encourage the supply of jobs that meet the requirements of both businesses and workers regardless of their legal status. The guidelines underline the importance of public employment services in expanding their function as transition facilitators.

States must consider supporting public programs for workers that are vulnerable to the low-carbon transition and those who have been or will potentially be laid off due to structural or technological change.

One of the mandatory criteria for the transition to be fair for all is not only the job creation but the training provided to develop or enhance skills for new economic sectors. According to the Guidelines, States must be ensuring that skills development training is provided and should create necessary regulations by consulting with social partners. Skills assessments and collecting existing data on the labor market by governments enable supply and demand for skills to match. States should prioritize policies that assess skill demands on the market and align them with skills training programs.

16 ILO, ‘The Guidelines for a Just Transition towards environmentally sustainable economies and societies for all’

(2016).

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13 According to ILO Director-General Guy Ryder, who attended COP21, the Guidelines ‘for a Just Transition towards environmentally sustainable economies and societies for all’ ‘can be a powerful instrument that will help to transfer the Paris Agreement into national policies.’17 ‘The four pillars of the Decent Work Agenda – social dialogue, social protection, rights at work and employment’18 are essential components for development that is sustainable. Considering the importance of the Guidelines, the International Labor Organization's role on the international and regional level, and the prominent and strategic placement of ‘Just Transition’ in the preamble of the Paris Agreement 2015, the Guidelines can be considered as the ‘threshold’ that the State parties to the Paris Agreement should meet when actively mitigating Climate Change. The enlisted obligations the guideline provides might be a high benchmark for the States that does not prioritize workers’ rights in their national agendas and most importantly in their NDCs amid the transition towards a low- carbon economy.

17 ILO, ‘ILO welcomes new climate change agreement committing nations to a just transition and the creation of decent work’(2015). < https://www.ilo.org/global/topics/green-jobs/news/WCMS_436322/lang--en/index.htm>

Accessed 12 May 2022.

18 ILO, ‘The Guidelines for a Just Transition towards environmentally sustainable economies and societies for all’

(2016).

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14 Chapter 5: NDCs submitted by the United States, Germany, and China

This section will examine the Nationally Determined Contributions of the largest emitter states – the United States, China, and Germany. The NDCs in review outline the climate ambition targets and the methods for achieving these targets. The resolutions adopted for implementing the Paris Agreement do not include any procedures for ensuring human rights coherence or assessment of the consequences of Climate Change actions. The concept of the Just Transition is not being considered by the State parties to the Paris Agreement. ‘As shown in the UNFCCC's Reference Manual for the Enhanced Transparency Framework under the Paris Agreement, human rights adherence has no bearing on the various systems of accounting for emissions and mitigation actions.’19

5.1. The United States NDC Review

When the United States re-entered the Paris Agreement, it updated Nationally Determined Contributions. The U.S. sets the following action plan to meet its NDCs: ‘The national government of the United States will fund research, development, demonstration, commercialization, and deployment of zero-carbon industrial processes and products.’20 The government will utilize its power to finance and encourage early markets for such zero-carbon products.

Such set goals and action plans will contribute to protecting and respecting civil and political rights. However, as promising as the U.S. NDC seems, it does not refer to the term Just Transition.

The NDC provided by the United States makes no mention of undertaking human rights impact assessments. ‘The NDC is completely silent on conducting human rights due diligence, and human rights auditing for the intersectional effects of these definitively prescribed sectoral pathways on the multidimensional enjoyment of all human rights.’21

5.2. Germany NDC Review

Germany showcases how to incorporate human rights aspects into national plans. Germany, in its submitted NDCs in 2020 alongside with European Commission on behalf of the European Union

19 Diane Desierto (n6).

20 United Nations Climate Change, Nationally Determined Contributions Registry ‘USA Nationally Determined Contributions’ (2021).

21 Diane Desierto (n6).

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15 and its member states, specifically uses the term 'Just Transition.' According to the NDC, EU leaders also agreed that a Just Transition Mechanism, which will entail a Just Transition Fund, will be established. The necessity for the Just Transition Fund is 'to address the social and economic consequences of the objective of reaching climate neutrality by 2050 and the Union's new 2030 climate target’22 Such an approach demonstrates the willingness of the State to ensure human rights due diligence, human rights impact assessments, and contribution to the transition that is Just.

5.3. China NDC Review

China's NDC concentrates primarily on developing action plans for a low-carbon economy.

The NDC submitted by China does not include the term 'Just Transition.' In such a way, China shows an unwillingness to make sure the compliance of their climate actions with human rights. It is important to note that China is a party to the International Covenant on Economic, Social, and Cultural Rights. The Covenant obliges China to respect, promote and consider the right to work, among other human rights, ‘The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain [her or his] living by work which [she or he] freely chooses or accepts, and will take appropriate steps to safeguard this right.’23

22 United Nations Climate Change, Nationally Determined Contributions Registry 'Germany Nationally Determined Contributions’ (2020).

23 Article 6(1) of the International Covenant on Economic, Social, and Cultural Rights.

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16 Chapter 6: Examining Energy Policies of the United States, Germany, and China This chapter compiles findings from a variety of publications that examine current key policies linked to Just Transition in the United States, China, and Germany.

6.1. The United States

In the United States, a transition beyond fossil fuels to renewable energy has started, implying that the energy system will undergo an additional transformation, most certainly incorporating more clean energy production and significant reductions in coal consumption.

Workers and communities who have historically relied on coal dominated economy must be treated in a Just way during this transition. Providing justice for workers and communities in transition is a difficult challenge that has become increasingly critical in the aftermath of the Covid-19 outbreak.

The Biden administration ‘aims to cut down on economy-wide emissions by 50–52 percent from 2005 levels by 2030 and to decarbonize the electricity sector by 2035.'24 Such an intense transformation plan will cause fundamental changes for fossil fuel workers and communities. The 'Build Back Better' legislation now going through Congress confirms the U.S.'s adherence to human rights commitments. Plans to fund infrastructure and help the communities are included in the Act. The key themes of the Act involve workplace development. ‘The $1 trillion infrastructure bill passed by the Senate in August allocated $21 billion for remediation, including $11.3 billion to reclaim and redevelop land at disused mines and $4.7 billion to plug and remediate abandoned oil and gas wells.’25

‘From 2008 through 2019, U.S. coal production and consumption fell by 40 and 48 percent, respectively.’26 The social and economic consequences of the low-carbon transition can be severe, with long and short-term implications for workers as well as communities that rely on the sector for economic stability. National governments encountering sudden financial difficulties may result in denying health benefits to employees or raising tax rates as a direct consequence of such adjustments. The COVID-19 pandemic has exacerbated previous coal trends and impacted US

24 Ben Cahill, ‘Working toward a Just Transition for Coal Communities’ (2021).

25 Ben Cahill (n23).

26 Wesley Look, Daniel Raimi ‘Enabling Fairness for Energy Workers and Communities in Transition’ (2021).

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17 coal production, ‘as it plummeted 35% in the second quarter of 2020 compared to the same period in 2019.’27

The American Rescue Plan, the Covid-19 Rescue Plan, adopted in March 2021, provided $300 million for the Build Back Better Regional Challenge to help coal regions. There have been concerns that the timeframe for the plan is overly optimistic and that local communities are struggling to manage the complicated federal grant application procedure. There are various arguments to be made regarding the Biden administration's approach, which may be performing poorly despite its best efforts. Many coal regions, for example, have been affected by harmful chemicals as a result of the coal energy transition, and these areas are a primary concern of the administration's Justice40 initiatives, even though ‘The federal government has expanded its engagement with environmental justice organizations and local officials in the Gulf Coast, Appalachia, and Wyoming.’28 It is noteworthy to mention, that a Justice40 "covered program" is a Federal Government program that is covered by the Justice40 and involves financial resources that can assist disadvantaged vulnerable communities impacted by Climate Change. According to the White House official website, communities have been active in defining the Biden-Harris Administration's Justice40 Initiative. This participation is still shaping the Justice40 Initiative's operation.29

It is worth highlighting that, coal regions are frequently overly reliant on a single industry, while only 42,000 Americans work in coal mining, the National Mining Association believes that if service sector and transportation jobs are included, the coal sector directly employs at least 100,000 workers30 and in coal communities, indirect employment is significantly higher. The 'Build Back Better' Act seeks to direct investment into fossil fuel regions to produce more workplaces and establish new businesses. At the moment, individual initiatives can produce a beneficial impact if the State wants to begin a new industry in a certain coal location.There is no substantial proof that there are previous attempts that resulted in long-term economic growth rather than a short-term

27 Wesley Look, Daniel Raimi ‘Enabling Fairness for Energy Workers and Communities in Transition’ (2021), 6.

28 Ben Cahill (n23).

29 The White House, ‘Justice40’(2022). < https://www.whitehouse.gov/environmentaljustice/justice40/> Accessed 18 May 2022

30 Ben Cahill (n23).

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18 increase in employment. ‘It is beneficial to improve the factors that enable regional development, such as workforce development and training, and support for research universities.’31

Job quality is a major issue in the U.S. during the Just Transition period. President Biden and Energy Secretary Jennifer Granholm have repeatedly stated that their objective is to generate millions of high-quality, well-paying clean energy workplaces. However, data reveals that renewable energy employment now is less well-paid than many coal-related jobs. It is critical to emphasize that several coal mining sites are not suited for constructing major renewable energy systems owing to the absence of solar and wind power.

6.2. Germany

Germany will encounter the obstacle of meeting climate mitigation targets, which include reducing greenhouse gas emissions by 80 percent to 95 percent by 2050. The government's ‘energy concept (Energiekonzept)’32 from September 2010 strives to establish an energy system that is more sustainable. Several laws are focusing on the transition for the same purposes. A more sustainable energy system includes the transition from a fossil fuel-based to an ‘almost entirely renewable-based energy system (Energiewende) and a significant improvement in energy end-use efficiency in all sectors of the economy.’33

The 'Act to Reduce and End Coal-Powered Energy and Amend Other Laws (Coal Phase-Out Act)'34 was adopted in 2020. The 'Coal Phase-Out Act' seeks to continuously limit, and finally eliminate, the usage of coal by 2038. It is vital to emphasize that the Act compensates the coal- powered plant operators financially. In addition, ‘the German Renewable Energy Sources Act’35 will be revised to include the aim to increase renewable energy to 65 percent by 2030.

Furthermore, in 2020, the 'Structural Support for Coal Districts Act' becomes legally binding,

‘supplying lignite-coal regions with the financial aid of up to 14 billion euros (about US$11.86

31 Ben Cahill (n30).

32 Carl Christian Michelsen, Reinhard Madlener, ‘Switching from fossil fuel to renewables in residential heating systems: An empirical study of homeowners' decisions in Germany’ (2016) 2.

33 Carl Christian Michelsen (n32), 2.

34 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

35 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

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19 billion) for essential financial investments’36 to cope with reforms and safeguard employment till 2038. Hard-coal communities should get €1.09 billion approximately. Moreover, the act includes financial aid ‘up to €26 billion for further support measures, such as the creation of up to 5,000 additional jobs in federal agencies in the coal regions.’37

Coal-fired electricity shall be phased out by 2022, as per the 'Coal Phase-Out Act.' Hard coal production will be lowered to 8 G.W. before 2030. Finally, it is predicted that before 2038, the usage of coal power plants must be phased out. In Germany, coal-plant workers the age of 58 and above who will lose their jobs after the plants are deactivated are entitled to be compensated financially for up to five years until they receive retirement benefits. ‘Pension reductions caused by early retirement’ can be financially compensated as well.38

Another significant aspect of German labor legislation for Just Transition is its collective bargaining agreements. ‘Replacing old mining jobs with comparable jobs has been difficult in Germany given that collectively bargained contracts gave miners many benefits, high payments, and early retirement options.’39 Collective bargaining agreements are critical in distributing duties in the coal transition process. One of the great examples of this is that hard coal power plant operators willing to take part in auctions to acquire financial compensation as they are closing the plans have to be part of collective agreements. These agreements prevent ‘operation-related layoffs and pension reduction, and they contain added compensation on top of the allowance money provided by the enterprises, along with regulations for the training and reoccupation of younger workers.’40

The coal, iron, and steel sectors have the most widespread type of codetermination, according to an ‘unique regulation issued in 1952 (the Montan-Mitbestimmungsgesetz),’41 which mandates equal participation of employees on the management board for enterprises with more than 1,000 personnel.Codetermination has significant consequences for Just Transition because it motivates

36 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

37 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

38 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

39 Andrea Furnaro, Philipp Herpich, ‘German Just Transition: A Review of Public Policies to Assist German Coal Communities in Transition’ (2021) 17.

40 Andrea Furnaro (n40) 17.

41 Andrea Furnaro (n40) 16.

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20 collaboration among executives and workmen and incorporates coal miners into company decision-making. For instance, the authority codetermination provides to coal miners was partly attributable to codetermination provided to coal miners was partly attributable to the fact that no workers of hard coal manufacturers went unemployed after the phasing-out of hard coal. They either retired early or transitioned to a different line of work.

It is important to demonstrate some best practices and innovative approaches found in Germany in relation to Just Transition away from coal. The German government worked closely with leading stakeholders, including minority groups, to adopt policies. Such an approach incentivizes the local communities to continue investing in Just Transition projects. By doing so, the German government ensures that local communities will continue to invest in Just Transition projects.

‘Economic reorientation and diversification, worker assistance, efforts focusing on social well- being and quality of life, and environmental restoration and preservation are all examples of policy support.’42Some of the best practices and innovative approaches that can be taken as a self-help book for the States that are still figuring out the way through the coal transition can be pointed out.

Employing an ‘anticipatory approach’43 to coal, the transition process was one way the government ensured that the severe consequences of decreasing coal output did not have an immediate effect over time. Concentrating on a major local industrial strategy that implies an emphasis on local economic growth ensures recruiting enterprises and encouraging growth in the local economy.

Combining different policy objectives into an integrated approach.’44 Such an approach helps to see the just transition away from coal as a multidimensional issue. Germany is mainly focused on structural policies operating to achieve an overarching goal in the country as a whole together.

Customizing policies to environmental and regional preferences means giving the local public authorities more autonomy and financial aid. By this, regions may develop and fund initiatives for Just Transition, decreasing potential conflicts between government levels.One of the best practices that Germany demonstrated is the practice of Recognition of the significance of ‘baseline policies.’45 Germany's excellent and strict labor laws safeguard workers, which helps communities as well in the Just Transition. Even though, Germany is the best example for the State parties as to

42 Andrea Furnaro (n40) 16.

43 Andrea Furnaro (n40) 16.

44 Andrea Furnaro (n40).

45 Andrea Furnaro (n40).

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21 how to guide through the Just Transition, ‘the opposition parties in parliament and environmental groups have criticized the Coal Phase-Out Act.’46 The primary issue is that Germany is postponing the essential withdrawal from coal power and providing excessive financial aid to coal-plant operators. Arguing that such measures taken now will deem future governments' ability to meet their responsibilities under the Paris Agreement more challenging to fulfill.

6.3. China

In China, Public health and the environment have been affected caused by high coal production and consumption. Such a tendency shows how China’s transition is of utter importance when addressing Climate Change. ‘As the world's largest coal producer and consumer, China's transition from coal to cleaner energy sources is critical for achieving global decarbonization.’47 Restrictions on coal emissions are tightening, while renewable energy costs are dropping. China is moving away from coal as a result of this transition. The transition, nevertheless, has an impact on the workplace and human rights.

In the 14th Five-Year Plan 2021-2025 for National Economic and Social Development of the People’s Republic of China, reducing the economy's carbon intensity before 2030 is envisaged.

The Plan emphasizes that the reforms included will increase the living standards and contribute to modern development. The Plan does not mention the Just Transition. It touches on the better living standards concept. The 14th Five-Year Plan' outlines actions to increase living standards and access to quality public services, including measures to (i) increase people’s incomes, (ii) boost employment opportunities, (iii) build inclusive high-quality education and health systems, and (iv) enhance the social security system.’48 Boosting employment opportunities is the closest term that can be traced back to the Just Transition obligation China has under the Paris Agreement.

China's reliance on coal is a major challenge for the low-carbon transition of the world. China contributed ‘around 28.8 percent of worldwide carbon emissions in 2019.’49 Coal appears to be

46 Germany: Law on Phasing-Out Coal-Powered Energy by Enters into Force (2020).

47 Gang He, Jiang Lin, ‘Enabling a Rapid and Just Transition away from Coal in China’ (2020) 187.

48 ‘The 14th Five-Year Plan (2021–2025) for National Economic and Social Development of the People’s Republic of China’ (2021).

49 Gang He (n46) 187.

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22 the primary engine underlying the State's economic expansion and the widespread availability of electricity to its whole people. Coal amounted to ‘60% of China’s primary energy consumption in 2018, contributing 50% of the country’s fine particulate matter pollutants and 70% of its carbon emissions.’50

China has implemented initiatives to limit coal usage and its associated repercussions. The 'Action Plan on Prevention and Control of Air Pollution' was launched in 2013. The State Council, on the other hand, wished to reduce ‘direct coal usage at 65 percent of primary energy’51 consumption before 2017. Moreover, China announced plans to reduce coal's share of primary energy to 62 percent by 2020 while implementing an extremely low emissions regulation for new coal-fired power plants.52

It is worth noting that, in 2015, China declared its preparedness to comply with the Paris Climate negotiations by promising to attain peak carbon emissions ‘by 2030 and to get 20% of its main energy from non-fossil sources.’53 Noteworthily, these goals were integrated into China’s NDCs.

Important to mention that transition to new energy consumption for China faces several barriers.

First, it requires making a significant amount of workers in the coal-related sector retire due to the cancelation of newly planned coal projects. Second, China’s consumption of coal extends beyond the power sector. Third, a quick transition is economically and socially concerning, as it affects the job market. Fourth, most of the time, the goals of major players in coal production and consumption do not go together, as the central government tends to be a coal interest group, and such groups are opposed to the transition process. There have been cases where the 'collusion between coal regulators and coal-producing firms that affects the safety of the workplace and leads to death in coal mines.’54

50 Gang He (n46) 189.

51 Gang He (n66) 188.

52 Gang He (n66) 188.

53 Gang He (n66) 188.

54 Gang He (n66) 189.

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23 7. The tensions and synergies between Climate Change and human rights obligations amid

Just Transition

Many local communities have been and still are depending on the jobs in the coal sector. These communities are the ones that are going to be the most affected by the transition toward coal-free economies. Just transition provides the promotion and protection of the workers amid the transition, but social justice issues are raised as transitioning rapidly away from coal happens, specifically regarding the abolishment of coal-related jobs. It is important to note that, while government restrictions drive the change, people in coal-related sectors are not given enough time to prepare and move into other, comparably paying jobs in the absence of legislative assistance.

‘The experience of Europe and the United States has shown that the shift from coal can take decades and present not only economic and employment challenges, but social and cultural ones.’55 Nevertheless, states must begin the preparation to leave coal in a manner that safeguards employees. It might be true to claim that coal communities are stuck in sustaining the current system and making a difficult move to a completely distinct economy, and this type of transition does not always mean that it is beneficial for communities and workers. Transitioning away from coal is of utter importance for Climate Change mitigation, however, the transition should be fair for the communities and the workers individually. Such a concept creates tensions that might get in the way of the State parties to fulfill their Just Transition Obligations. ‘Indeed, the human rights affected by climate change constitute the core of the relationship between human rights and climate change.’56 The section will touch on the potential and existing tensions and synergies between Climate Change and human rights obligations – the right to work, in Coal regions of the three States and how they have been reflected in the different jurisdictions.

7.1. The United States

‘In the United States in 2016, Coal workers and communities ‘supported the rise of Donald Trump because he promised to bring back coal jobs, while Clinton had pledged new jobs and new

55 The World Bank, ‘For a Just Transition Away from Coal, People Must Be at the Center’ (2021).

56 Marlene Alicia, Payva Almonte, ‘The Interrelationship between Human Rights And Climate Change: An Appraisal’

(2020), 35.

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24 economic investments in coal communities using clean energy.’57 Four central states in the U.S.

produce and consume coal: Wyoming, West Virginia, Kentucky, and Pennsylvania. These states are producing more than two-thirds of U.S. coal in total. Donald Trump planned to terminate the Paris Agreement and launch pro-fossil-fuel policies. The above-mentioned demonstrates the power of the coal communities as their political decision determined the United States' obligations on the international level. Moreover, In the United States, around 100,000 individuals are employed directly in the coal sector, with a nearly equivalent divide among miners in coal miners and power plant personnel.

It is essential to mention that pensions for retired coal miners are reliant on the continuation of the coal sector. For instance, ‘the United Mine Employees of America, the biggest trade union in the U.S., manages a pension system that supports over 120,000 former coal miners with barely 10,000 workers.’58 These workers and retired persons from coal jobs constitute a vast coal community dependent on the coal industry's existence.

Furthermore, According to studies, coal miners have a ‘strong sense of belonging to the community’59 in which they live and work, as well as strong social bonds. The reason that makes the coal communities develop a strong sense of belonging also makes the coal towns consider coal a renowned industry that helped shape the United States into what it is today, and the political force of the coal communities remains.

Throughout the last few years, the coal industry has been fading away, as coal production and coal- based power generation are declining. As a new Intergovernmental Panel on Climate Change (IPCC) special report claimed, ‘to meet the 1.5°C climate target, coal's share in the energy mix would need to decrease by 59 to 78 percent by 2030 and 73 to 97 percent by 2050’,60 Coal export has to continue decreasing even if the U.S. does not change domestic consumption. Europe, the biggest importer of coal from the U.S., will stop importing coal as it has the same contributions to make to the Climate Change Agreement. ‘Domestic and international climate change action will result in additional reductions in coal mining and coal power plant jobs.’61 Just Transitioning does

57 Sandeep Pai, Hisham Zerriffi, ‘The uncertain future of U.S. coal communities’ (2018). <

https://phys.org/news/2018-11-uncertain-future-coal.html> Accessed 10 May 2022

58 Sandeep Pai (n55).

59 Sandeep Pai (n55).

60 Sandeep Pai (n55).

61 Sandeep Pai (n55).

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25 not always benefit the workers in coal-dependent regions. In the leading coal economy states of the U.S., the problem still stands, and the tension exists between protecting human rights and mitigating Climate Change by making the transition that is supposed to be both just and beneficial for the communities and workers as individuals.

However, it is true to say that there are undoubtedly benefits deriving from transitioning from coal in a just way to mitigate climate change. The synergies can be seen between climate change and human rights obligations as the coal communities are discovering and adapting to a new and cleaner way of living. For example,the leading coal business, Ross Harris Group, is building ‘a 700-acre solar farm on mountaintops where coal was formerly mined’62 near Pikeville, Kentucky, in an attempt to generate new sorts of job opportunities for individuals out of work owing to the collapse in the coal sector. Meanwhile, the operator that supplies the region, Kentucky Power, is embarking on its own ‘20 MW solar project to fulfill rising customer demands for renewables, with ambitions for over 8,000 MW of renewable energy by 2030.’63 In West Virginia, ‘two nonprofit organizations, Solar Holler and Coalfield Development,’64 partnered and trained for solar panel installation in the aftermath of the season after season coal mass layoffs.

7.2. Germany

In Germany, it is clear that the government's effort to fund the coal regions amid the Just Transition process makes the tension between Climate Change and human rights obligations of the State less severe Germany has spent 16.3 billion euros funding initiatives to assist coal mining areas with the Just transition in the coal sector, a first report by the federal government ‘on the performance under the 2020 state investment law for former coal regions shows.’65 Moreover, there have been established 16 government authorities in the mining regions that are creating jobs. For instance, ‘a new central office of the Federal Network Agency (BNetzA) in Cottbus amounted to creating 2140 jobs as of 2021.’66

Subsequently, in Germany, the tensions between the obligations are effectively dealt with by the government by ensuring that a sufficient amount of jobs exist for the coal mining regions to be

62 Amy Vaden, ‘A Just Transition for Coal Country’ (2019)

63 Amy Vaden (n84).

64 Amy Vaden (n84).

65 Kerstine Appun, ‘First stocktake of just transition funding in Germany’s coal regions’ (2021).

66 Kerstine Appun (n69).

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26 dependent on as the Just Transition away from coal is ongoing. ‘Government has made up to 40 billion euro available for supporting a just transition away from coal over the coming years.’67 7.3. China

In China, there is a decline when comes to Coal employment, but the strategic Plan focuses on transitioning toward a more sustainable economy. After ten years of explosive growth that fueled China's surge, the workforce employed directly in the coal industry peaked at ‘5.3 million in 2013, dropping to 4.88 million in 2014 and 3.21 million in 2018.’68 Coal output began to decline just after the coal sector began to transition and manufacturing capabilities were cut out in 2016.

The majority of the coal workers tend to be workers with no quality education and skills. The lack of such qualities makes resettling 'lay-off' coal employees problematic. This particular problem demonstrates how the tension exists between Climate Change and human rights obligations, as the transitioning away from coal should be Just, but the non-existence of the prerequisites for the Just Transition, such as sufficient education, creates obstacles for the workers to be treated fairly.

Furthermore, it is essential to note that plenty of jobs in the coal sector will be lost as the State's coal sector increases its production rates by mechanization, but at the moment, ‘China’s coal- related jobs are distributed unevenly across provinces.’69 For example, Shanxi, the largest province producer of coal, is in possession of ‘approximately one-third of China’s total coal deposits, and coal is considered a source of regional identity as well as income.’70

In recent years, the government of China has been trying to help workers find new jobs while the transition away from coal is still happening. Government agencies have implemented measures to facilitate the re-employing of coal workers, such as hiring practices for jobless coal workers, which provide them with free assistance, employment services, consulting, as well as other services. The coal workers who have been laid off and have difficulties finding jobs immediately are offered subsidies. Such an offer from the government can be considered a beneficial factor that demonstrates the synergy created by respecting human rights while fulfilling climate change obligations. China establishing policies to mitigate the impacts on affected groups was included in

67 Kerstine Appun (n91).

68 Gang He (n66) 190.

69 Gang He (n66) 190.

70 Gang He (n66) 191.

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27 the policies it initiated to shrink the coal industry in the country. ‘Employment is a key element of a Just Transition away from coal, which came to the fore following the Paris Agreement in the context of community renewal and the creation of high-quality jobs.’71

As it became clear, tensions between the obligation to protect human rights and mitigate Climate Change, in some cases, deem it almost impossible for the State to transition away from coal in a just way. Therefore, such tensions demonstrate the gap between these two concepts that makes it hard for the State parties to comply with their obligations under the preamble of the Paris agreement 2015. The synergies mentioned above, on the other hand, demonstrate how Climate Change can be mitigated effectively while promoting, respecting, and considering human rights.

71 Gang He (n66) 191.

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References

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