Por CURTIS FJ DOEBBLER
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| Photograph Source: The White House – Public Domain |
No recent COP, perhaps no summit of any consequence in recent years, has even been held under such ominous conditions. Moreover, no host of such a summit has ever been so unwilling to accept and react to the conditions under which this Summit is being held.
Nevertheless, both Boris Johnson and Patricia Espinosa, the Executive Secretary of the UNFCCC have continuously stated that success is possible. If that is true, the success of COP26 will be measured by whether States achieve some minimum goals in the areas of ambition, mitigation, adaptation, loss and damage, finance, and participation.
Ambition
The primary recognition of the Paris Agreement, the very weak agreement reached at COP21 in Paris, was that States need to increase their ambition in the climate action they take. However, the Paris COP was largely a failure because States failed to increase ambition and only talked about it. Nevertheless, States did recognize that ambition needs to be increased. Achieve what they talked about States created a reporting system that is really the only legal obligation in the Paris Agreement. The rest of the agreement—especially the action States take to mitigate or adapt to climate change—is aspirational and largely up to the States themselves.
This limited outcome came about because many developing countries resolved to dissolve their ‘legally binding commitments’ in the UNFCCC into ‘aspirations’ in the Paris Agreement. These developing countries did not want to be legally bound by a treaty they had already ratified and to which they all remained parties. Having already failed to take the action necessary to provide for the adequate mitigation of rising temperatures, they agreed to only the weakest of steps to implement the UNFCCC in Paris.
If COP26 is to be a success States need to show their ambition, not just talk about it. Anything short of a legally binding commitment to take concrete action is just more of the same failure. Admittedly, success on ambition can come in different forms. For example, developed countries might agree in a legally binding manner to undertake their share of the mitigation as they did in the Kyoto Protocol. However, this time, to be credible they will have to agree to sanctions for State that fail to fulfil their obligations. An implementation mechanism with teeth, for example, a climate court or tribunal would be part of a successful outcome.
Undoubtedly success on ambition will have to be demonstrated in concrete action or legal commitments related to mitigation of adaptation. But again, the crucial test will be whether there are means to ensure that States comply with their good intentions.
Mitigation
At the top of the agenda for climate scientists for decades has been how we can prevent harmful climate change. This means preventing the adverse effects of climate change as more States than are Members of the United Nations agreed to do in when they ratified the UNFCCC with this clear goal stated in article 2 of that treaty.
At COP15 States agreed in the Paris Agreement to implement the UNFCCC. They did so by agreeing to make ambitious commitments that would keep global warming under 1.5°C and to take action on those commitments. To date only The Gambia’s current policies are compatible with the Paris Agreement’s aspiration of 1. 5°C when compared to their fair-share contribution.
In 2018, the International Panel on Climate Change (IPCC), a group of scientists that review each other’s work and evaluate what is needed to protect the world from the adverse effects of climate change took a new approach. Instead of merely repeating its warnings that our current actions could lead to temperature increase of well over 2.5°C, it evaluated what a 1.5°C world would look like. Even in this best-case scenario it predicted that many countries, mostly developing countries, would face very serious adverse effects from climate change. Even at 1.5°C, some countries would disappear under rising sea levels.
Mitigation is no longer a goal; it is a necessity for the survival of many people around the world. States must cut their greenhouse gas emissions by amounts that are commensurate with their common but differentiated responsibilities for climate change. Unless States can make legally binding commitments to produce and implement policies that will ensure their fair share of greenhouse gas emissions cuts, COP26 must be declared a failure.
The UK government has all but committed to missing this legal and scientifically necessary obligation. It is instead speaking about ‘keeping the 1.5°C goal alive’ and not ensuring that States agree in a legally binding manner to cut their emissions. This is no wonder with its late start on negotiations, its own policies which promote fossil fuel use, and apparent ignorance about what is required to achieve the objective of minimally adequate mitigation. Nevertheless, legally binding commitments to measurable mitigation action—similar to those in the Kyoto Protocol, but this time with a mechanism for implementation—are a requirement for declaring COP26 a success.
Adaptation
As the IPCC’s 2018 report indicated, even achieving the 1.5°C mitigation goal will not be enough to protect billions of people from severe adverse effects from climate change. To protect people who our inadequate action to date have condemned to suffering from climate change will require adequate adaptation action.
While all States agree that adaptation is necessary, generally developed States view it as less necessary than mitigation. One reason for this posture maybe that most developing States can afford to adapt to climate change, even if it will cost them significantly. This is not true of developing countries, many of whom are one the front lines of climate change and cannot protect their people adequately without help from developed countries.
A meaningful outcome to COP26 will include at least a commitment to direct generally equal resources to adaptation as are directed to mitigation.
Loss and Damage
Some developed countries think of loss and damage as part of adaptation but that is narrow-minded. Loss and damage requires the protection of people who we can’t protect themselves, not merely with adaptation measures, but with measures that compensate them for the damages caused by States that have overexploited the atmosphere.
Not only have developed States failed to provide the resources needed for loss and damage they do not even want to discuss it any longer. They claim that loss and damage is merely part of adaptation. They reject any consideration of compensation for the damage caused to developing countries by centuries of overexploitation of the planet’s atmosphere. Just like international criminal law does not provide for statutes of limitation, neither does public international merely forget past wrongs.
Developed counties denial of any duty of compensation is based on paragraph 51 of the COP21 decision which states that loss and damage “does not involve or provide a basis for any liability or compensation.” This paragraph was inserted due to pressure from developed States that were refusing to even discuss loss and damage. It is wrong in law. The UNFCCC itself requires developed States to take the lead in climate action and they have not done so.
Moreover, the international law of States responsibility has long held that when a States commits an internationally wrongful act as a consequence it must compensate the injured parties. This is only one consequence of an internationally wrongful act, but it is not one that can be removed from legal obligations in the UNFCCC by a statement in a COP decision that was taken by most States under duress.
Ensuring that loss and damage is part of any action on climate change and that States abide by their legal obligation to compensate injured States is a conditio sine quo non of anything that might be termed success for COP26.
Finance
One of nagging issues that has caused developing countries to be left behind in terms of above efforts to combat climate change is finance. Rich countries who have caused the overwhelming part of the adverse effects of climate change to date have benefited from their overexploitation of the atmosphere. These same developed countries have shown no willingness to give up their advantages or to let developing countries catch up. This is despite the fact that as the United Nations Conference on Trade and Development reported in 2017, four-fifths of the people in the world live in developing countries. Simply put: the greed of developed countries is preventing developing countries from achieving adequate ambition on mitigation and adaptation that will allow them to contribute fully to these efforts.
Of course, developed countries argue this is not the case. They claim that developing countries could still do more, but any contemporary economist or accountant will tell you that climate action needs to be paid for. Developed countries also claim that they are providing the agreed support or something close to what they agreed, but this is disproven by the facts.
Infamously, at COP15 in Copenhagen, developed States pledged to provide developing countries 100 billion US dollars per year to help them take adequate action. This goal has never been achieved. Taking into account double accounting, false pledges, and mere reneging on pledges developing countries have produced finance far short of this goal. And this is only if you include in finance investments that will actually return profits for developing countries and their private companies as well as interest bearing loans. Because developed countries have reneged on this promise to date and failed to provide the promised finance, developing countries have fallen further behind. It will now take about a trillion dollars a year for developing countries to contribute adequately to mitigation and adaptation and that figure is growing daily.
But even if we ignore that broken promise, even the monitoring of future climate finance has been rejected by developed countries to date. At COP25 in Madrid, Spain, long-term finance monitoring was controversial and developed countries did not even want to discuss it. Finally, agreement was made to continue discussion at COP26.
Even more frustrating the Standing Committee on Finance has not been able to agree on the definition of climate finance. Imagine firemen or women arguing over who gets to save the child in the burning building as the fire consumes the building.
For COP26 to be a success the firemen and women all need to rush into the building and get the child out as quickly as possible. More precisely said, developed countries need to put 100 billion on the table, not pledges, not promises, but hard cash and/or sign legally binding agreements that have no catches except the stipulation that the money be used by developing countries to mitigate or adapt to climate change.
Participation
Civil society actors have constantly criticized the COPs for failing to give adequate consideration to their participation. Although it is States that make the decisions at COPs, it has been civil society that been instrumental in pushing for the ambition that is necessary to prevent or limit the adverse effects of climate change. Civil society actors—whether women, indigenous peoples, environmental NGOs, or farmers—have often been the drivers of adequate ambition. In the leadup to the Glasgow COP these voices have been managed so as to sideline them. The Pre-COP meeting for youth was held in Italy, the partner host of COP26, but only government selected civil society was allowed to attend and only four persons from each country. Moreover, if you showed up without an invitation and tried to crash the party you were kept out or suffered worse consequences. While youth voices are perhaps the most important, indigenous and women’s voices were not even given a dedicated platform.
Nothing seems to have changed in Glasgow. Even before COP26 got underway the UK government and the UNFCCC seemed to have contrived a plan to keep civil society at bay. Given the leadership styles of Boris Johnson and Patricia Espinosa, the UNFCCC Executive Secretary, this is not surprising. Johnson has governed the UK very much like past American President Trump. He says he is a populist among his followers but tries to silence anyone who is not among them. Espinosa showed her colors at COP16 held in Cancun, Mexico, over which she presided. Civil society as relegated to a polo ground so far away from the actual COP that some civil society actors never visited the negotiations, undoubtedly as had been planned. Neither Johnson nor Espinosa seems to have acquired any greater respect for civil society for COP26. At the same time, both Johnson and Espinosa have allowed big business to buy their way into the meetings and sometimes even the negotiating sessions.
For COP26 to be a success, civil society needs to be given a voice at the negotiating table. Separate meetings in a faraway country are not sufficient. No negotiating session should be secret. What is being negotiated affects us all, perhaps more than the mainly elite negotiators who are making decisions for us. If any negotiating sessions take place in secret, then civil society can declare COP26 a failure.
The End?
In 2015, the French government host COP15, which was supposed to be the very last chance to take adequate action to address the adverse effects of climate change. With local elections that had consequences for the very survival of the struggling social democratic party government then ruling the country, the French had to be sure COP15 would appear to be a success. To do so the French COP President had to literally change the text of the Paris Agreement to erase the most important binding legal obligation for developed States like his own and ignore developing countries screaming protests. By doing that he satisfied the American John Kerry’s demand that alleged that the United States could now be bound by the Paris Agreement.
The French Presidency cooked the books and twisted language to call the Paris COP a success and starve off embarrassing nationwide local elections defeats. This has been par for the course in recent years. The UK COP should be measured not by the UK’s false parameters, but by the minimum standards of achievement outlined above. If COP26 cannot make progress on these issues to these minimum degrees, no matter what the Presidency or the UNFCCC Secretariat says it will be a failure of immense proportions. It will prove that the leaders of this generation have failed future generations. And just maybe people will not be fooled enough again to allow them to continue their harmful action. As many young activists have been shouting at the delegates, we need a new generation of people who will take action.
Notes.
[1] Research Professor of Law, University of Makeni; Visiting Professor of Law, Webster University Geneva; Representative to the United Nations of International-Lawyers.Org.
Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.
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