Julia Dehm

This is the first contribution of an online symposium co-hosted by Law and Global Justice at Durham and Human Rights in Ireland on the Paris Climate Agreement. The call for contributions is still open, and inquiries should be addressed to Ms Ntina Tzouvala (konstantina.tzouvala@dur.ac.uk).

#COP21 in Paris has produced a global legal agreement to address climate change which allows governments and world leaders to celebrate their “historic” and “landmark” commitments, all while delaying the action that is necessary to address climate change. The Agreement, although framed in terms of “high ambition”, provides only a slight moderation of “business as usual”. The Paris Agreement fails to meet all the elements of the “Peoples’ Test“, the criteria that social movements, trade unions and environmental groups agreed would need to be meet for a fair and effective agreement. It fails to catalyze an immediate, urgent and drastic emission reductions; provide adequate support for transformation; deliver justice for impacted people; or focus on genuine effective action rather than false solutions. It thus, breaches multiple climate justice “redlines”. The Paris outcome has been called a “fraud”, “fake” and “bullshit” by eminent climate scientist James Hanson and was described by Global Justice as a text that “undermines the rights of the world’s most vulnerable communities and has almost nothing binding to ensure a safe a livable future for future generations”. Others pronounced that the talks had “failed humanity” with negotiations focused more on “commercialization of nature” than “saving Mother Earth”.

These scathing assessments however sit uneasily with the celebratory tone of the mainstream press, political leaders and large environmental NGOs who have heralded the deal as “landmark”. The UNFCCC proclaimed it a “historic agreement to combat climate change and unleash action and investment towards a low carbon, resilient and sustainable future.” International lawyers have been more measured in their reactions, but prominent commentators have assessed the Paris Agreement as a “triumph” that “strikes a fine balance between ambition, differentiation and finance”, while another international lawyer described it as “potentially pivotal”, a “solid outcome” that satisfied a modest criteria of success. In this context it is critically important to interrogate both the substance of the Paris Agreement, but also its reception, given it is, as the Director of Global Justice writes, “outrageous that a deal is being spun as a success”. The disjuncture between these highly divergent perspectives can perhaps be explained by George Monbiot’s pertinent assessment that “by comparison to what it could have been, it’s a miracle. By comparison to what it should have been, it’s a disaster”. In a similar vein, other NGOs have welcomed the Paris Agreement, while acknowledging its very real shortcomings as “a hook on which people can hang their demands” and a “new tool to work with” as they continue to mobilize to build the peoples’ power that will be necessary to hold world leaders to the commitments they have publically made.

The highly divergent and irreconcilable responses to the Paris Agreement however are primarily reflective of the differently situated standpoint of those assessing it. It is the people who are on the frontlines of climate change who have been the loudest in condemning the agreement whilst it is those who have the most to lose by the radical transformation of the status quo that climate change demands, that have been most vocal in its praise. Further, the contradictory assessments of the Paris Agreement reflect different understandings and framings of the “problem” of climate change and nature of the social, economic, cultural and political change addressing it demands. The voices who have praised the Agreement are primarily those who conceptualize climate more narrowly as a technical and regulatory challenge that can be addressed within existing capitalist social and economic relations, in many case through an expansion of “green capitalism”, markets for environmental services and pollution trading. In contrast those most critical of the Paris Agreement are groups and individuals with a climate justice analysis that see climate change as embedded within and both reflecting and reproducing global structural inequalities. A media briefing put out by Oxfam during the Paris talks highlights “extreme carbon inequality”.[1] Their analysis suggests that the poorest half of the global population, approximately 3.5 billion people are responsible only for 10% of global emissions from individual consumption, 50% of emissions can be attributed to the richest ten percent, yet, cruelly, it is those who have least caused the problem who are most vulnerable to its effects.

From a perspective attentive to the global distribution of responsibilities and vulnerabilities produced by climate change the Paris Agreement is not only inadequate in its ambitions but further accentuating of these inequalities. It puts in place a “bottom-up” voluntarist framework for climate governance that allows for the abrogation of responsibilities for mitigation and financial support for mitigation, adaptation and addressing already exiting climate change by the most polluting countries. Moreover, the Agreement is structurally unable to contest the logic of economic growth and persistent accumulation driving the crisis given the continual reliance upon and expansion of market-mechanisms and the commodification of the atmosphere as central to its mitigation methods.

Gap between rhetoric and commitments

A key failure of the Paris Agreement is the gap between the stated objectives of “holding the increase in the global average temperature well below 2°C above pre-industrial levels and to pursue effects to limit the temperature increase to 1.5°C above pre-industrial levels” and the actual emission reduction pledges made by countries. While the inclusion of the 1.5°C was a major symbolic victory pushed for by the most vulnerable countries, given that exceeding 1.5°C warming entails unacceptable impacts for billions and people and risk exceeding irreversible tipping points, the actual pledges submitted by 187 countries (called “intended nationally determined contributions” (INDCs) in UNFCCC-speak) have been assessed by independent monitors and the UNFCCC to put the world on track to 2.7 – 3.4°C warming. The INDCs of key polluting countries propose only minimal reductions of 1% per year, while others propose reductions compared to “business as usual” and thereby lock in actual increases in emissions. This graph, from a UNFCCC report shows how the properly implemented INDCs will still see a steady growth of aggregate global emissions to 2030. Overall emissions are expected to continue to increase for the next 15 years by significant amounts: an estimated 8-18% increase from 2010 levels by 2025 and a 11-22% increase from 2010 levels by 2030.

Given that the actual pledges made by Parties effectively lock in a catastrophic future, there has been significant focus on the provisions in the Agreement for a “global stocktake” (Article 14) to “racket up” ambition. The first such review is scheduled for 2023 (and every five years thereafter). However at current rates of emissions we could blow the global “carbon budget” we must stay within in order to have a reasonable chance of limiting warming to 1.5°C in six years. That is, by the time the emissions reductions commitments in the Paris Agreement are revisited the window on limiting warming to 1.5°C could already be slammed closed. As such, the lofty language of “ambition” and laudable objectives and promises of future action has operated as dangerous panacea at Paris masking delays with some commentators suggesting that optimism could be call the “new denialism”.

Paradigm shift to a new voluntarist architecture for climate governance

This gap between intention and action is however not the most problematic aspect of the Paris Agreement, rather it is the inequitable framework for action and the sidelining of climate justice demands that are of key concern. The Paris Agreement “completes a paradigm shift” from the top-down model of the Kyoto Protocol, structured around the differentiated obligations of nations based on the developed/developing bifurcations, to the more voluntarist “bottom-up”, “pledge and review” approach of the controversial Copenhagen Accord (2009). This shift has several consequences. Firstly, there is no mechanism beyond peer pressure in the review process to ensure that the voluntary emission reduction commitments made by countries match what the levels of action the science tells us is necessary. Secondly, this voluntarist framework imposed no obligation that countries accept responsibility for meeting at least their “fair share” of the global mitigation effort. Countries, due to their differential wealth and income levels have differentiated capacity to take mitigation action, while the differentiated levels of continued per capita and historical emissions imposes differentiated moral responsibilities to take mitigation action. A recent civil society assessment of the INDCs stressed that “the operationalization of equity and fair shares must focus on historical responsibility and capacity, which directly corresponds with the core principle of the UN climate convention of “common but differentiated responsibilities – with respective capabilities”. The assessment found that “all major developed countries fell well short of their fair shares” while the “majority of developing countries have made mitigation pledges that exceed or broadly meet their fair share”. As such, a third consequence of this “paradigm shift” is that while the principle “common but differentiated responsibilities and respective capabilities” is articulated in the Paris Agreement (Article 2(2)), there is much less scope for its operationalization in a meaningful way.

The issue of climate finance was controversial at the Paris summit, with the US angering developing countries by proposing that the costs of climate finance should be equally born by developed and developing countries. The Paris Agreement states that “(d)eveloped country Parties shall provide financial resources to assist developing country parties with respect to both mitigation and adaptation” (Article 9(1)) but fails to specify amounts or impose obligations on specific states. (Developing countries are “encouraged” to provide such support voluntarily (Article 9(2)). The related COP decision reiterates an intention to continue the existing mobilization goal of USD 100 billion annually by 2020 (first articulated in the Copenhagen Accord) until 2025. To date, much of this promised climate finance has failed to materialize. Although a recent OECD report argued two-thirds of this has been transferred, developing countries accused its methodology as being “deeply flawed” raising concerns this money is neither new nor additional. Given that the United Nations Environment Program has estimated that the cost of climate adaptation could reach $210-300 billion annually by 2050, even if temperature rise was limited to 2°C, these pledges, even if delivered fall horrifically short of what is necessary.

The Paris Agreement further restricts rights of those who are most vulnerable to the effects of climate change in another critical way. The question of compensation for the impacts of climate change has been pushed by small island states since a Convention was first envisioned in 1990. The Paris Agreement included provisions for “loss and damage” (Article 8) for already occurring climate change impacts, however, the COP decision accompanying the decision specifically

Agrees that Article 8 of the Agreement does not involve or provide any basis for any liability or compensation (Decision -/CP.21, para 52).

Reports have claimed that the discussion of compensation for loss and damager were shut down by the US through a mixture of bullying and bribery, which these discussions considered “off limits” as the US “categorically refused to consider any proposal for reparations for the damage rich countries’ emissions have already caused”. The impact of already happening climate disasters is enormous, both the human and economic costs, as demonstrates by the devastation of deadly floods in Chennai, the devastation of Typhoon Haiyan in the Philippines and Tropical Cyclone Pam in Vanuatu. A 2013 World Bank report found that natural disasters cost $200 billion annually, three-quarters of these costs from extreme weather. The issue of compensation for already existing climate impacts is not a question of charity or aid, rather it is accepting the legal and moral obligations of the rich world to repay debts accrued due polluting activities that have caused the climate crisis which is disproportionately devastating those already impoverished by historical and ongoing relations of colonial plunder. Even as climate change disproportionately and devastatingly hits those least responsible for causing the problem and who are already impoverished the hardest, the Paris Agreement fails to impose responsibilities upon those who have transformed the climate to repay their “climate debts” and establish proper mechanisms of international co-operation and support.

Failing to drive necessary structural transformations

Although major newspapers have reported that “200 nations sign in the end of fossil fuel era,” the Paris Agreement does not mention the words “fossil fuels”, “coal” or “oil”. It contains no commitments to leave fossil fuels in the ground, despite the fact that over 80% of proven fossil fuel reserves must remain underground extracted to have reasonable chance of restricting warming to 2°C. Nor does it contain any commitment to remove the over US$500 billion annually in subsidies for fossil fuels (a figure that dwarfs what governments give in climate finance or support for renewable energy technologies). In the immediate aftermath of the Paris Agreement, Australia’s environmental minister approved the controversial Abbott Point coal port, which if built would be one of the world’s largest coal export terminals while the US repealed its crude oil exports restrictions. The same leaders who made speeches about “ambition” at Paris in domestic policy decisions continue to lock-in a fossil fuel intensive future that will fry the world. It is clear that the Paris Agreement, in itself, will not mobilize and galvanize the structural transformation away from fossil fuel that is urgently necessary, instead pressure to keep coal and gas in the ground is coming from increasingly transnationally organized grassroots climate justice movements and frontline communities fighting for land, water, clean air and a habitable future.

Further, rather than addressing a key root cause of climate change, namely fossil fuel extraction, the Paris Agreement aims “to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” (Article 4(1)). This language of “zero net emissions” has been described as a “dirty secret” of this deal by the ETC Group. The climate emergency requires urgent action be taken to “keep oil in the ground” but also to draw down carbon from the atmosphere through agro-ecology and reforestation. The danger of “net zero” approaches is that they “may prove to be a trap that delays real climate action” and “could allow for business-as-usual greenhouse gas emissions, offset by massive-scale mitigation through the land sector”.

Reliance on neoliberal market-based approaches

The Paris Agreement represents a further consolidation of the deeply neoliberal market-driven approach towards climate mitigation that has proven to be so problematic in the Kyoto Protocol. The Agreement envisions the use of carbon trading as a key means by which mitigation is achieved. Although these words “carbon”, “trading” or “markets” do not directly appear in the text, Article 6 recognizes “voluntary cooperation in the implementation of their intended nationally determined contributions” and the use of “internationally transferred mitigation outcomes” and establishes a mechanisms to support such approaches. Over half the international nationally determined contributions put forward by countries state that intend to use carbon markets to achieve their mitigation promises. The Agreement has been welcomed by Carbon Pulse as “ring(ing) in a new era of international carbon trading”, and similarly celebrated by the International Emissions Trading Association as having a “clear role for markets“. The World Bank response to the Paris Agreement promise to “explor(e) ways to create incentives for large scale cuts in emissions by widening and deepening carbon markets“. These highly neoliberal responses of the climate crisis operate to further commodify and financialize the atmosphere and create a “spatial fix” whereby the emission reduction obligations of the rich world can be displaced through a form of post-modern environmental indulgences. The Kyoto Protocol’s market-mechanisms and the European Union Emission Trading Scheme (ETS) have been heavily criticized for creating perverse incentives and providing a dangerous distraction from the social transformations that are urgently necessary. The Paris Agreement fails to learn from the many flaws of market-based approaches and instead envisions an expansion of these highly problematic mechanisms.

Further, Article 5 of the Paris Agreement provides for “action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases” through the controversial Reducing Emissions from Deforestation and forest Degradation (REDD+) mechanism. Although many of the details of the REDD+ framework have yet to be finalized, it envisions allowing “offsets” produced from “additional” forest protection in the global South to be used towards achieving the emission reduction targets by countries in the global North. These schemes have been criticized as a “false solution“, that fails to reduce aggregate global emissions, that could promote a new “landgrab” over forest areas and violate the rights of the 1.6 billion people, many of whom identify as indigenous, that live in and around forested areas. Indigenous activists have argued that REDD+ promotes new forms of “carbon colonialism” or CO₂lonialism. Indigenous groups, social movements have vocally opposed the “false solutions” such as carbon trading that are part of the Agreement and “called on movements to continue to build their own, just alternatives to the political and economic systems that have caused the climate crisis”. In response to the Paris Agreement, Tom Goodtooth, Director of the Indigenous Environment Network said:

Instead of cutting CO₂ and greenhouse gas emissions, the UN, the US, the EU, China, Norway and climate criminals like BP, Total, Shell, Chevron, Air France and BHP Billiton are pushing a false solution to climate change called REDD (Reducing Emissions from Deforestation and Degradation). REDD is a carbon offset mechanism which privatizes the air that we breathe and uses forests, agriculture and water ecosystems in the Global South as sponges for industrialized countries pollution, instead of cutting emissions at source. REDD brings trees, soil, and nature into a commodity trading system that may result in the largest land grab in history. It steals your future, lets polluters off the hook and is a new form of colonialism. NO to Privatization of Nature!”

The promotion of these carbon offset schemes was a key reason why indigenous rights activists were so concerned about the removal of any reference to human rights and indigenous peoples rights from the final agreement. Bracketed text that addressed human rights, indigenous rights and gender equity was removed from the Agreement’s objectives and included only in the Preamble, after pressure from Britain, Norway and the US. In response Indigenous “kayactivists” paddled down the Seine River to protest this exclusion, continuing the struggle activists have fought since 2007 to ensure UN climate projects respect indigenous rights.

Where to now?

The failure of the Paris Agreement come as no surprise to climate justice social movement groups, many of whom were highly skeptical of the talks and the hope that was being invested in them. The UNFCCC Conference of the Parties have in recent years quite literally become Conference of the Polluters “serving as exhibitions and promotional fairs for the world’s biggest environmental criminals.” In Paris activists targeted the corporate capture of the talks, by staging protests at the “Solutions COP21” side event where companies such as Engie (formerly GDF Suez), Carrefour, Veolia, Sofiprotéol and Schneider Electric promoted corporate responses to climate change, where they were dragged out by police.

There are however, as Jess Worth and Danny Chivers write, reasons to feel positive about Paris, not because of the Summit or its outcomes, but because of the organizing and vibrant protests of social movements in the streets outside. Despite the repressive conditions state of emergency imposed by the French state, grassroots groups affirmed they would take to the streets despite the ban, many facing violent repression from French police who attacked, tear gassed and arrested hundreds of protestors. On the 12^th of December people took to the streets, depicting visually the “redlines” that the Agreement crossed, thousands marched condemning the failures of the Agreement. A Declaration put out by the group It Takes Roots reads:

We leave Paris only more aligned, and more committed than ever that our collective power and growing movement is what is forcing the question of extraction into the global arena. We will continue to fight at every level to defend our communities, the earth and future generations.

It is this spirit of defiance and dedication to disrupting that status quo that holds the best hope for still minimizing the devastating impacts of climate change. After the Copenhagen climate summit ended disastrously in December 2009 with global leaders failing to reach a legally binding climate agreement climate activists in Newcastle, Australia took action into their own hands, stopping a coal train headed to the largest coal export terminal in the Southern hemisphere and unfurled a banner: “Greed wreaked Copenhagen. Now its up to us”. Six years later, global leaders are celebrating a “landmark” agreement that nonetheless fails people and the planet.  Substitute “Copenhagen” for “Paris” and the message is the same, and the same spirit of continuous struggle will be necessary to contest the vested interests and the drive for accumulation that has brought us to the brink of planetary disaster.

 

Julia Dehm (Postdoctoral Fellow, Rapoport Center for Human Rights and Justice) jdehm@law.utexas.edu

 

[1] See also Lucas Chancel and Thomas Piketty, “Carbon and Inequality: from Kyoto to Paris” (3 November 2015, Paris School of Economics) <http://piketty.pse.ens.fr/files/ChancelPiketty2015.pdf>.