By Prof. (Dr.) Bharat H. Desai
On November 25, 2023, in a very powerful message from Antarctica, the UN Secretary-General, Antonio Guterres said: “What happens in Antarctica doesn’t stay in Antarctica” and the world must wake-up since Antarctic is being awoken due to climate chaos. The symbolic message of the UNSG came just five days ahead of the 28th meeting of the Conference of Parties (COP28) to the 1992 UN Framework Convention on Climate Change (UNFCCC). Dubai COP28 (November 30 to December 12, 2023), is yet another annual gathering of the state Parties in the long line up of COP meetings that have mysteriously been unable to address the “climate change conundrum”, as this author described [Preface: EPL 52 (5-6) 2022], over a period of 31 years (1992-2023). The UNSG was on a three-day official visit to Antarctica. He was accompanied by the Chilean President Gabriel Boric to visit Chile’s Eduardo Frei Air Force Base on King George Island. “We are witnessing an acceleration that is absolutely devastating,” Guterres said while reflecting on the unprecedented rate of ice melt in Antarctica.
Dubai COP28: Unrealistic Expectations
Today (November 30, 2023), as the COP28 (UAE) commences work, the air will be heavy in Dubai due to unrealistic high expectations and increasingly bleak prospects for realization of 1.5 °C GHG emission target. The vital question remains as to what the UNFCCC parties will decide on the phase-out of fossil fuel in the face of climate emergency that has emerged as one of the most prominent drivers of the “planetary crisis”. This author has extensively examined the gravity of the planetary level crisis, implications for the humankind and the planet Earth and explored options for invoking the instrumentalities of International Law to make them work (here, here, here, here). It is widely accepted that, in order to limit global warming to 1.5°C, GHG emissions must peak before 2025 at the latest and decline 43% by 2030. In the absence of a major trigger-event and a planetary miracle, at the current rate and in view of dithering by the state Parties, all indicators show that the goal set is unrealistic and unattainable. It raises the frightening prospects of a literally burning planet.
It has led the conscientious UNSG running from pillar to the post and speaking up through a series of ‘whistle-blowing’ speeches ranging from Stockholm+50 Conference (June 02, 2022) to the ‘cry-out’ from the Syangbpoche (the Everest Region of Nepal) in the Himalayas (October 30, 2023) to the latest visit to Antarctica (November 25, 2023).
Making International Law Instruments Work
With 198 Parties, the UNFCCC has been designed as a ‘framework convention’. It became one of the first global instruments that designated climate change as a common concern of humankind. The COP of the multilateral environmental agreements [Bharat H. Desai (New York: Cambridge University Press, 2010], provides a platform at a specific periodicity (one, two or three years) to review work of the Convention in question. The UN provides ‘secretariat’ support to the UNFCCC, hence the usage of prefix ‘United Nations’. It is called a ‘framework convention’ since it was adopted with a bare skeleton on May 09, 1992. The UNFCCC necessitated ‘fleshing out’ with required elements to make it work for realization of the “‘ultimate objective” (Article 2) of “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. It led to the adoption of the “related legal instruments”: 1997 Kyoto Protocol and 2015 Paris Agreement. The global climate change regime now comprises these three legal instruments.
On March 20, 2023, the IPCC AR6 Synthesis Report explicitly underscored that “Average annual GHG emissions during 2010–2019 were higher than in any previous decade on record” and observed: “Global net anthropogenic GHG emissions have been estimated to be 59 ± 6.6 GtCO2-eq9 in 2019, about 12% (6.5 GtCO2-eq) higher than in 2010 and 54% (21 GtCO2-eq) higher than in 1990, with the largest share and growth in gross GHG emissions occurring in CO2 from fossil fuels combustion and industrial processes (CO2-FFI)”. In view of this, the near future regulatory goal has been pegged at the 1.5 °C global warming by 2050. The UNSG, in his address at the Stockholm+50 Conference (June 02, 2022) gave a clarion call for addressing climate change as one of the “triple planetary crises”. The UNEP’s 2022 Emissions Gap Report (October 27, 2022) reinforced the global concerns that “the international community is falling far short of the Paris goals, with no credible pathway to 1.5°C in place. Only an urgent system-wide transformation can avoid climate disaster”. This prognosis and the projections, have set the stage to explore possible options for averting the climate change catastrophe. What lies in store at the Dubai COP28 (Nov. 30-Dec. 12, 2023) and beyond?
Whereas COP27 (Sharm El-Shaik; Nov.06-21, 2022) was known for adoption of the decision on “loss and damage” funding for vulnerable countries hit hard by climate disasters, COP28 is likely to conclude the first global climate ‘stocktake’ mandated vide Decision 19/CMA.1 (2018). It will be a comprehensive assessment of the progress in climate change action since adoption of the 2015 Paris Agreement. The Dubai COP28 will take place on the heels of 2023 UNEP Emissions Gap Report (November 20, 2023) that issued a warning that the “world is heading for a temperature rise far above the Paris Agreement goals unless countries deliver more than they have promised”. The UNEP report has predicted that by 2030 the GHG emissions must “fall by 28 per cent for the Paris Agreement 2°C pathway and 42 per cent for the 1.5°C pathway”. Thus, the task is cut out for the assembled states Parties in Dubai COP28 to walk-the-talk, seriously.
The Dilution: From Differentiation to NDCs
Over the years, the primary legal bulwark for addressing the issues of equity and climate justice in the global climate change discourse has been the criteria of differentiation (CBDR&RC; Preambular para 7 and Principle 3.1 of UNFCCC). It was a negotiating masterstroke amidst rush to adopt the UNFCCC prior to the Rio Earth Summit (UNCED 1992). It emanated from razor-sharp clarity and strategizing by some ace negotiators of the developing countries. However, efforts were quickly underway to blunt the edges and dilute the core of this fundamental criteria of differentiation for affixing state responsibility for harm (adverse impacts) caused to the global atmosphere (“largest share of historical and current global emissions of greenhouse gases has originated in developed countries”; Preambular para 3). Many scholars, bureaucrats and civil society groups of the developing countries were co-opted in this process. As a member of the Official Indian Delegation, this author vividly saw such subtle efforts in various COP meetings, other intergovernmental processes and on the sidelines. It culminated, after a decent burial was given to the 1997 Kyoto Protocol (as none of the Annex – I countries complied with their legal obligations), in the 2015 Paris Agreement. The Paris Agreement brought in a new voluntary criterion of “nationally determined contributions” that requires “all Parties are to undertake and communicate ambitious efforts” (Article 3, Paris Agreement). The direct effect of NDCs was to knock-out principle of equity that required only equals can be treated equally (since developed and developing countries are not equal in their contributions to the atmospheric harm caused). As a corollary, the UNFCCC’s basic premise was also sidelined that required “per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs” (Preambular para 4). Notwithstanding the fact that responsibility for global climate change was “common” yet it was to be given effect in a differentiated, stratified, and staggered way. As this author contended, the leadership principle was also crucified that required the “developed countries Parties should take the lead” (Article 3.1) as a condition precedent (Article 4.7: “extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention”) before the developing countries were called upon to reduce their part of the GHG emissions. As a result, the stage has never come to work out the criteria and elements for determining if any such “lead” was in fact taken by the developed country Parties.
The Road Ahead
In view of the above legal stratagems and crafting of tools and techniques to stabilize GHG emissions enshrined in the instruments on the global climate chessboard, the regulatory approach appears to be somehow floundering. It has brought in fatigue effect, proliferation of national climate change litigations and an exasperated effort by the UNGA (vide resolution 77/276 of March 29, 2023) to seek an advisory opinion of the International Court of Justice (ICJ). The ICJ, if accepts jurisdiction and agrees to provide an opinion to the UNGA, it will be required to provide an answer to two specific questions: (i) What are the legal obligations of the States under International Law for protection of the climate system from emissions of GHG? and (ii) What are the legal consequences for States under these obligations? The Court has affixed January 22, 2024 as the last date for filing of the written statements. What can the principal legal organ of the UN do to nudge the states and the UNGA to resolve the global climate change riddle?
Since it adopted the famous resolution 43/53 of December 08, 1988, the UNGA has been the principal conductor of the grand climate-change orchestra, invoked normativity of ‘common concern’ and triggered the process for the UNFCCC negotiations (1990-1992). Therefore, it is high time for the UNGA after full three decades, to rise to the occasion and possibly elevate common concern to the higher pedestal of a planetary concern to provide future direction to the 1992 UNFCCC and 2015 Paris Agreement processes.
This author has put into place a series of successive scholarly processes including 2022 special issue of the global journal [EPL 53 (5-6) 2022], 2023 IOS Press book on Regulating Global Climate Change, a special EPL landing page for Dubai COP28 and moderation of the forthcoming global webinar on Averting the Global Climate Catastrophe (December 10, 2023). Cumulatively, they aimed to sow some ideational seeds to try to find answers to the global climate problematique. Premised upon the principle of state responsibility and differentiation, it will necessitate earnestly walking-the-talk by those states who caused the climate change problem in the first instance with all legal obligations, consequences and requirements. Making the architecture work remains the biggest challenge to secure our planetary future.
This Article is a sequel to Global Climate Change as a Planetary Concern – Part I.
This Article is an original contribution to the SIS Blog.
Prof. (Dr.) Bharat H. Desai is Professor of International Law and Chairperson of the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the knowledge initiatives for Making SIS Visible (2008-2013) and the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam)