#BTColumn – CoP26: The last chance? (Part 1)

The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Alana Malinde S.N. Lancaster & Stefan K. Newton

CoP 26 in Glasgow, Scotland

November 2021 has ushered in what will be the most decisive and impactful global meeting of our immediate, and because of the subject matter, of future generations. To quote the Secretary General of the United Nations, António Guterres at the commencement of the CoP26 Climate Summit on November 1, 2021 in Glasgow, Scotland, “… we [have been, and] are digging our own graves … [by] treating nature as a toilet …”.

This is hardly surprising news, as scientists, stakeholders, and most notably our youth have been unyielding in a single unified cry: the Earth is warming, and with this will cause ecosystemic, economic and the eventual destruction of the Earth’s species, including Homo sapiens.

Sir David Attenborough, the renowned English broadcaster, natural historian, author and environmentalist in his many appeals for climate action has said: “[what we do now, and in the next few years, will profoundly affect the next few thousand years.”

The gravity of anthropogenically catalysted climate change was laid bare in the Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment Report, released in August 2021 as a precursor to the landmark CoP26 in Glasgow, Scotland.

The 3949 pages of the Report may be summarised by the statement that “ … major climate changes are inevitable and irreversible …”. Essentially, therefore, humans from all corners of the Earth, through anthropogenic processes are hastening our own extinction, and with this, we are taking thousands if not millions of species with us.

In short, one single species – Homo sapiens – are the villains of this tragedy.
But, how did we get here? Why is CoP26 so decisive, and why do countries such as the Caribbean and other developing nations (be they small island developing states (SIDS), lesser developed countries (LDCs) or more emergent economies such as those in South Asia (e.g. Sri Lanka), and the famed BRICS (Brazil, Russia, India, China and South Africa)) have the most to lose if the international community fails?

What is CoP 26?
CoP26 was scheduled for 2020 in Glasgow, Scotland, but had to be postponed for one year because of the COVID-19 pandemic. Further, the COVID-19 pandemic has affected the ability of many developing countries, such as the vocal, bullish and heavily impacted Pacific SIDS, to attend and participate in CoP26.

A question which arises is whether this absence will undermine the outcome of CoP26, especially in areas such as loss and damage and climate justice which we examine below.
The Conference of the Parties (CoP) is the supreme decision-making body of the United Nations Framework Convention on Climate Change (UNFCCC).

The UNFCCC refers to the international agreement which, by Article 2, sets out to stabilise greenhouse gas (GHG) concentrations (specifically carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride (SF6) and nitrogen trifluoride (NF3) (which was added for the second compliance period during the Doha Amendment Round) at a level which will prevent

dangerous anthropogenic (human) interference with the climate system.
To realise this ambition, the UNFCCC has Annexes, where parties are broadly divided into “developed” (Annex A) and “developing” (Annex B) countries depending upon their level of development and their emissions. This bifurcation is the basis of the recognition of an emergent principle of international law, which recognises the common but differentiated responsibilities and capacities between countries to combat climate change.

It also acknowledged that climate change is not an issue any one country or group of countries can address solely, but rather requires the efforts of the international community as a whole. Climate change therefore is a “wicked problem” of global proportions, which highlights the challenges to date in successfully addressing it.
The UNFCCC was conceptualised to comprehensively address the issue of global warming, and came into force – along with its sister agreement, the Convention on Biodiversity – in 1992 at the World Conference on Environment & Development.

Structured as a framework agreement, meaning that the vehicle by which its objectives are met would be through other sub-agreements or protocols. Additionally, the treaty caters for a CoP, who would hold meetings annually to assess progress on addressing climate change and to further commitments on reducing GHG emissions (usually by updating or developing new Protocols).

Protocols and agreements under the UNFCCC are meant to be binding, and the two most notable to date are the Kyoto Protocol (CoP3) and the Paris Agreement (CoP21). The former entered into force much later than its intended start date, through the striking of a deal with

Russia to guarantee its acceptance into The World Trade Organisation (WTO).
Essentially, therefore, when Russia signed onto Kyoto, the requisite number of signatures were present to bring it into force, and Russia got an unobstructed admittance into the WTO. What was perhaps a win-win situation at the time, has evolved somewhat today, as Russia may be considered one of the states which has taken an unyielding negotiating position.

Despite its entry into force, when Kyoto’s first commitment period expired in 2012, there was protracted wrangling to bring its successor for the second commitment period into force. This successor, the Doha Amendment, never fully functioned, as it finally came into force on the same day that Kyoto’s second commitment period expired.

Commitments from 2020 were now contained in the 2015 Paris Agreement, which, when it entered into force in 2016, was considerably less robust than was hoped, especially by developing countries.

Despite this lessening of commitments, developing countries, in particular the Alliance of Small Island States (AOSIS), which includes those in the Caribbean were able to score a significant (but hopefully not Pyrrhic) victory by leading the battle charge on the necessity of cutting GHG emissions by 1.5 ° C, instead of a 2° C warming limit as proposed by developed countries and a group of developing countries called the BRICS (Brazil, Russia, India, China and South Africa), which have high levels of industrialisation.

This 1.5 °C aim is codified in the Paris Agreement, but, for a plethora of reasons outlined below, is becoming difficult to achieve, by the 2050 deadline which has been set for achieving the reduction.

Current Commitments under the Paris Agreement The Paris Agreement
sets out to accomplish a carbon- neutral world by 2050.
Under the Paris Agreement, Conference Parties agreed to several broad commitments to address climate change. Some critics have said that the broad nature of Paris’ commitments dilutes its binding nature, and the non-binding nature of the emissions targets, which is a central and purposeful feature of the Agreement, has led some to opine that the Agreement is in reality nonbinding.

Nevertheless, Paris continues its recognition of the common but differentiated responsibilities principle, and establishes for its parties several commitments.

Key to the Paris Agreement’s goal of lowering greenhouse gas emission is that Parties have each agreed to make and implement nationally determined contributions (NDCs). NDCs embody efforts to reduce (or mitigate) greenhouse gas emissions and to adapt to the impact of climate change.

Additionally, Parties have agreed to make financial flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development. The other celebrated victory at CoP 21 by developing countries from the CoP21 Paris Agreement, was the pledge made by developed countries to provide US$100 billion over the next five year to assist developing country Parties with mitigation and adaptation.

This commitment however has not materialised, and in CoP 26, this will be a major area of contention for both developed countries who have to foot the bill, and by some developing countries, who feel that accessing these funds for capacity building, technology, etc. is not available enough and comes at a tremendous price tag.

There are also diverse views on the provision and use of this funding, especially with respect to other measures required under Paris. Australia for example, has pledged to increase its funding to Pacific SIDS, seemingly in exchange for not addressing the issue posed by its heavy use and export of coal.

This is not welcomed by Fiji and other Pacific SIDS, many of whom are already seeing the effects of climate change. The COVID-19 pandemic has also increased the reluctance of many developing countries such as Indonesia and Malaysia, who have large populations and have been severely hit by the pandemic, to make revised NDC commitments. This is because their position is that funding needs to be more readily available, to provide alternatives to coal and other dirty energy sources, which many countries see as a basis to recover from the impacts of the pandemic.

Therefore, what was viewed as the strength of the Paris Agreement, i.e. a flexible framework that encourages political participation, by placing emphasis on processes rather than on defined mitigation goals, has now proven to be a source of angst. This flexible and voluntary nature of the Agreement has given rise to lax implementation and indifferent application of measures to meet NDCs.

The flexible underpinnings of the Paris Agreement which in 2015 were felt to be its selling point six years ago have now in 2021 turned into a double-edged sword which results in slow progress on emission reduction and mobilising climate finance.

Alana Lancaster is a lecturer in International Environmental & Energy Law at The  University of the West Indies Faculty of Law. She specialises in the law relating to the blue economy, and the interaction between biodiversity law, ocean governance, fisheries and forestry. Alana also researches in the areas of energy law and holds a MSc in Natural Resource Management. Stefan Newton is a UK Chevening Scholar. He has been a consultant to the United Nations Environment Programme and the United Nations Development Programme. Stefan has a focus on the intersection of international economic law, human rights law and climate change. He holds a Master of Laws in International Human Rights Law and a Master of Laws in International Economic Law.