LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW
“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
What happened to Plan A?
Victor and Hope America
Statement of Kamal Nath, COP1, Berlin 1995: 'The adverse effects of climate change are making themselves increasingly manifest even as we meet here. The commitment targets of the Convention as it stands today are woefully inadequate to meet the terrible prospect that confronts us. There is much talk of ‘adequacy of commitments’. What we should actually be talking about is ‘inadequacy of commitments’! Action taken so far gives us little optimism for the future that even present commitments will be met by Annex I countries by the year 2000. Since there is no commitment to even stabilise emissions, leave alone enhance reduction, after the year 2000, even these meagre commit- ments are rendered infructuous and temporary.'
'Emphasizing with serious concern the urgent need to address the significant gap between the aggregate effect of Parties’ mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels ...'
Preamble to the COP21 Paris Decision, December 2015
'It is with a sense of awe and humility that I stand at this podium. This distinguished gathering is the cynosure of eyes and hearts and minds across the five continents of the globe. Berlin, at least for these few days, is the centre of the world. Common people, well-meaning people, concerned people, have great expectations about what we are going to do in this first meeting of the Conference of the Parties to a Convention that seeks to preserve our planet in the way it has been in the memory of humankind.'
From the statement of Kamal Nath, Minister for Environment and Forests, India, to the First Conference of the Parties to the UNFCCC, Berlin, April 6, 1995
Plan A was a global treaty that would limit emissions of greenhouse gases (GHGs) to acceptable levels in line with our scientific understanding. A collective limit or budget might then have been divided equitably between countries. Developed countries would help finance developing countries in their adaptation plans and transitions to clean technologies.
A similar approach had been used successfully to reduce the chlorofluorocarbons (CFCs) that were, until the 1980s, the mainstay of refrigeration, but which were causing fatal damage to the ozone layer.
The UN Framework Convention on Climate Change (UNFCCC) was agreed in 1992 and entered into force in 1994. It has 197 Parties. Its objective is set out in Article 2, as follows:
'The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve ... stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.'
However in the 22 years that have followed global GHG emissions have continued to rise at an accelerating rate. The 1997 Kyoto Protocol set binding limits for developed Country Parties, but was not ratified by the US and did not set limits for developing countries. In 2009 in Copenhagen political divisions between Parties appeared so intractable, and the outcome so unsatisfactory, that the UNFCCC process was in danger of implosion. From that low ebb the 2015 Paris Agreement can be considered a diplomatic triumph.
The success, however, has come at a price:
As it stands, the political process under the UNFCCC leaves the planet on course for warming of 3 to 4 degrees Celsius, an outcome that would pose an unprecedented threat to human civilisation and life on earth. It is misleading to describe such an outcome as a triumph.
However UNFCCC and the Paris Agreement must be interpreted in light of the general principles of international law that demand a science-based, equitable approach to the use of natural resources (including the atmosphere and the oceans). The weaknesses of the Paris Agreement can and should be addressed through the courts.
The clock is ticking: it is time for Plan B.