All about ambition – Day 5 of the final COP21 negotiating session

Posted by: Frances Lawson

With well over a hundred INDCs (Intended Nationally Determined Contributions) now submitted to the UNFCCC Secretariat, one of the talking points of this final negotiating session has been the adequacy of the mitigation pledges made therein relative to the target to limit warming to 2 degrees Celsius.

The picture is not unexpected, but it is deeply concerning. The INDC commitments made thus far, accounting for approximately 90% of global emissions, will fall some way short of what is required to limit warming to 2 degrees. If the INDC commitments are not fully implemented, the shortfall will be even greater.

A key part of the dialogue in Bonn is therefore centred on a mechanism to increase the level of mitigation ambition to try to bridge the gap. Parties are being urged to incorporate into the Paris Agreement a tool by which updated INDCs are to be submitted pledging ever-greater commitments, rather than it being left on a voluntary basis for Parties to do if they choose. Further proposals have also been advanced by the negotiations’ Co-Chairs, and also by NGOs, for INDCs to be assessed, reviewed and updated every five years thereafter as part of 5-year commitment cycles. Only with such a mechanism will the international community be able to take advantage of positive, unforeseen events such as the dramatic reduction in the cost of renewable technologies.

With the Paris Agreement, and therefore the INDCS, only due to take effect from 2020, the other related issue awaiting determination is what happens in the five-year gap between 2015 and 2020. Some countries have commitments to 2020 under the extended Kyoto Protocol; most, however, do not. What is put in place to cover the next five years before the Paris Agreement comes into effect will play a major role in determining to what extent those Paris commitments achieve their aim. Heading in the wrong direction between now and 2020 will jeopardise the realisation of whatever pledges are finally incorporated into the legal text at COP21.

While everyone in the room publicly endorses the call for ‘ambition’, making it one of the buzzwords of the current process, attachment to the principles of national determination and sovereignty mean Parties have always tended to express reluctance to have their commitments assessed or reviewed by anyone but themselves. As necessary as the ambition proposals are for the climate, realistically, there may well be insufficient appetite for their agreement in Paris.

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Red lines and dividing lines – Day 4 of the final COP21 negotiating session

Posted by: Frances Lawson

My debut appearance at a UNFCCC negotiating session met with an inauspicious start. Those with ‘observer’ status, of which I form part, have been unceremoniously excluded from the negotiating rooms themselves. If ever there was a sign of a process under acute stress, this is it. Such is the tension around collating the final hours of the negotiating text for the world’s politicians to consider, that all those deemed non-essential, and perhaps disruptive, to the task are being kept away.

Nevertheless, it does not take much time spent in the one meeting room to which observers are afforded entry to understand the fundamental red lines and dividing lines that are exercising those in the adjoining rooms. Particularly when the G77/China negotiating group decides to give a press conference, as it did this morning.

The greatest recurring theme of the day has been money, or ‘finance’ to give it its marginally more glamorous and official term. The unofficial target is for the Green Climate Fund to receive US $100 billion per year by 2020; a recent OECD report states that the current level of contributions has reached US$62 billion. Nevertheless, for the G77/China group, the $100 billion target is but the beginning, and the Paris Agreement, they say, absolutely must go much further in the level of financial commitments made legally binding thereunder. This is both their red line, and a major dividing line with other Parties for whom that is both unfeasible and unrealistic.

Part of the additional financing claimed relates to a second dividing line between the Parties – the rather opaque concept of ‘loss and damage’ which was described by one panellist as a politically acceptable label for ‘liabilities and compensation’ for damage to buildings, livelihoods attributed to climate change-induced natural disasters. Developed countries are refusing to have loss and damage incorporated into the Paris outcome. The current negotiating text contains virtually no options mentioning the term. One group of researchers gave a presentation calling for a levy to be applied to all fossil fuel extraction to reflect the vast profits made by the oil, gas and coal industries, with that money diverted to support loss and damage claims. An interesting idea for future contemplation, but despite the machinations of the G77/China group that incorporation of loss and damage is among their red lines, the clear indications are that it has been removed from the textual work in progress and will not feature in the legal document at the end of Paris.

A more general complaint of the G77/China group was that developed country Parties are trying to weaken their hand and subvert the Convention by the back door. It is striking just how much the developed countries cling to the Convention as a legal instrument, reciting its ‘binding force’ despite the lack of legal institutions and mechanisms to give it such effect. The message relayed today was that as developing countries are not members of the UN Security Council, only through the Convention do they have any power or influence. Hence any attempts, real or perceived, to take action other than under and in accordance with the Convention is met with the most vigorous opposition. ‘Trust’ is a word frequently invoked at COPs and negotiating sessions – everyone involved claims to trust everyone else. Yet the Parties’ rhetoric often suggests that strong elements of suspicion and distrust run right through the negotiation agenda.

The issue of subverting the Convention arose, predictably, in relation to finance. Many developed countries are keen to reframe climate finance in part as overseas aid, to bring it within the scope of their existing budgets rather than having to find and additional sources. The G77/China group were publicly hostile to these efforts in the press conference, denouncing both this and attempts to promote greater ‘South-South’ cooperation and financial support. The Convention, they said, obliges developed countries to provide sufficient resources to developing countries for both adaptation and mitigation. Interpreting that obligation, they say, does not allow for such measures as they reflect a shirking of developed country Parties’ responsibilities.

The most interesting of the questions posed by the assembled press was as poignant as it was succinct – ‘when does historic responsibility end?’ In other words, when do you, as the most powerful grouping of developing countries stop placing all the blame, and accordingly the burden, for climate change on countries that happened to go through the development process first? The question resulted in audible ripples around the room due to the high level of contentiousness contained within it. The response was unusual and unexpected – “if the world had really changed” began one of the leaders of the G77/China group, “then we would all be permanent members of the UN Security Council”.

With many pushing for COP21 commitments to reflect markedly different geopolitical realities and soften the Convention’s dividing line between developed and developing country Parties, the unwavering hardline stance of the G77/China gives little prospect for this major dividing line being resolved. “If the Parties wanted the Convention to be redrafted, if they felt it was no longer fit for purpose, then this is what the COP would have mandated in Durban” she continued. Instead, the Durban COP tasked the Parties with agreeing a new legally binding instrument in Paris to function under the existing Convention. The problem is that it is the outdated and rigid wording of that Convention that hinders the achievement of that new legally binding instrument. Another problem is that with developing country Parties vastly outnumbering the developed within the UNFCCC, the chances of the necessary majority voting against their own self-interest for a redrafting of the Convention in a way that makes it far less financially favourable to them are almost too remote to quantify.

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Is it time for the International Court of Justice to give its opinion on climate change?

Posted by: Frances Lawson

Between 17th and 19th September 2015, lawyers from around the world converged on London for a 3-day climate change symposium hosted and organised by King’s College London. In light of the recent Dutch Urgenda case (see earlier post on that subject), one of the underlying themes of the symposium was the potential for the far greater use of climate litigation in national courts as a way of driving forwards action both at that level, and in the international realm of the UNFCCC.

The symposium featured a keynote speech by Professor Philippe Sands QC at the Supreme Court which outlined his shifting views on the role of international courts in advancing the climate change cause. Professor Sands explained how, when asked three years ago if he would support the small-island state of Palau lobbying the UN General Assembly for the International Court of Justice (ICJ) to give an Advisory Opinion on the responsibilities of States to ensure that their greenhouse gas-related activities do not harm other States, he answered in the negative. His scepticism seems to have stemmed from concern that the ICJ could fail to give an opinion, having skirted around similarly contentious questions in other cases, or worse still, deliver an opinion that was unhelpful in climate terms.

His opinion now appears to have shifted, and as one of the most eminent lawyers and scholars in the international environmental law field, the shift is an important one. It appears to be due in part to the courage of the Dutch courts in bringing climate change within their purview, and in part due to the overwhelming scientific evidence that climate change is not only occurring but represents a major concern for the international community. In addition, the frustrating and fraught progress of the UNFCCC negotiations means that there is a growing body of opinion that other avenues need to be explored in order for climate change to be given the legal attention that it urgently needs.

Occupying as it does a de facto pole position in the sprawling international legal hierarchy, the potential significance of the ICJ pronouncing on climate change obligations is difficult to overstate. As Professor Sands pointed out, there are numerous examples of where an ICJ judgment has heralded a watershed both in international legal discourse and in state practice. An ICJ judgment on, for example, the extent, scope and nature of states’ obligations to mitigate climate change, or as to what the scientific evidence does or does not require of states, could, more than any other single initiative, assist in decisively answering some of the questions that reverberate endlessly like squash balls around the negotiating rooms of UNFCCC meetings. Such a statement would also have a likelihood of contributing to further change in wider public attitudes and behaviour in respect of climate change, and could both inspire and facilitate domestic climate change litigation by setting out useful legal principles and parameters. In Professor Sands’ view, an ICJ pronouncement could also silence once and for all those who continue to doubt the climate science – “it is one thing for the IPCC to come to such conclusions as a matter of scientific opinion, but quite another for an international court to give them the authority of a judicial determination of the facts”. It may be a little optimistic to imagine that those who are strongly opposed to the scientific consensus will be so easily satisfied or silenced, but an authoritative legal endorsement of the science would undoubtedly be useful nonetheless.

The case for ICJ intervention is therefore persuasively put. The prospects for securing such an intervention, however, are more obscure. Professor Sands outlined the two types of intervention that could be sought. The first, a contentious case to litigate some of the key issues, remains a remote prospect. Only states have standing before the ICJ, and of the 194 Parties to the UNFCCC, only two – Cuba and The Netherlands – have accepted the ICJ’s jurisdiction to resolve disputes under the Convention. An equally significant challenge is the watery nature of the legal obligations in the Convention, which have been carefully drafted so as to make their enforceability as awkward as possible. A potent example is a footnote in the Convention to the Chapter entitled ‘Principles’ which states that such chapter titles are only to assist the reader, and by implication that the principles thereunder are not to be considered as legal principles that can be litigated and adjudicated upon.

A more auspicious avenue for exploration therefore lies in the potential for the ICJ to give an Advisory Opinion on key climate change contentions. The UN General Assembly and other specialised agencies such as the WHO are empowered to request the ICJ to give an Advisory Opinion, a request that is normally acceded to. Professor Sands ventured that the ICJ could then open up its rules of procedure to allow non-state actors to participate in the advisory opinion process.

Having made the case so convincingly and eloquently for such an Advisory Opinion, the only topic omitted from Professor Sands speech was a road map to its achievement. The UN General Assembly is unlikely to instigate such a request of its own motion for the foreseeable future. Only a sustained campaign from all those engaged and interested in the advancement of climate change law is likely to trigger such a request. In this regard, the legal community arguably has a vital role to play. On this vitally important issue, it is time for international lawyers with environmental convictions to move beyond analysing and discussing into the realm of influencing and lobbying on the international stage. A request for an Advisory Opinion on essential climate change contentions will not be achieved in a short timeframe. However, whether it becomes a reality at all depends on taking the idea, for which Professor Sands deserves great credit, out to the very audience that needs to hear it most; those in a position to bring about its fulfilment.

The full text of Professor Sands’ speech at the Supreme Court can be found here

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