#BTColumn – CoP26: The last chance? (Part 4)

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

by Alana Lancaster and Stefan Newton

Climate finance: Otherwise known as the 100-billion-dollar pledge from the 2015 Paris CoP 21 which is central for developing (Annex B) Countries making the transition to clean energy, transferring technology and many of the actions required to extricate states from their current destructive patterns to those which are in consonance with what now appears now to be a 1.8 degree target instead of the 1.5 degree goal.

Key to measuring the success of CoP 26, will be an adopted agreement to mobilise public and private finance to support the transition to net-zero, and mitigation and adaptation. For SIDS, it is even more pivotal that any decision on finance considers their vulnerability to climate change, debt burdens and exogenous macroeconomic conditions that SIDS are exposed to.

Revitalising momentum on public finance will be symbolic of restoring trust between developed and developing countries. Six years after pledging US$00 billion, developed countries have failed to deliver on their promises. The OECD estimates that only about 65 per cent of the US$100 billion promised at CoP 21 has been delivered on average between 2013 and 2019.

The OECD further estimates that in 2019, total climate finance provided and mobilised by developed countries for developing countries was US$79.6 billion in 2019, an increase of two per cent from 2018. The OECD further states that the US$100 billion mark is unlikely to have been met in 2020, although the necessary verified data needed to finalise this determination officially will not be available before 2022.

Barbadian Prime Minister Mia Amor Mottley has lambasted leaders of developed countries for dragging their feet on climate finance stating “ . . . this is immoral and it is unjust. . . ”. Mottley has frequently attacked the global financial architecture as not being structurally designed to support climate action.

Instead, the system locks debt- burden developing countries out of accessing finance, and subjects them to conditionalities. Specifically, small island developing states (SIDS) only receive two per cent of financing under the UNFCCC framework. Consequently, the flow of international adaptation finance has not kept up with SID’s needs, where commitments made are not accessible enough for SIDS.

Her solution to this problem is a rethink of the IMF’s Special Drawing Rights (SDR) to plug the funding gap on climate action. She advances a proposal for an annual increase of 500 billion a year in the SDRs over the next 20 years, to be placed in a trust to finance the energy transition. She views financing the energy transitions as the real gap that needs to be filled, not the USD 500 billion for adaptation.

At the basis of the SDR proposal is that the near zero borrowing cost of SDR funding uniquely delivers investment on the scale required to transition developing economies and others without adding to existing debt stress of developing countries, with access to funding being conditional on achieving reduced GHG emissions.

The value-added of the proposal is that it advances climate justice, by giving developing countries the right to borrow from developed countries (the group most responsible for the stock of global emissions) at overnight rates and roll-over debt.

Mottley’s position is also echoed by the Prime Minister of Antigua & Barbuda Gaston Browne who at the Thirteen Caribbean Renewable Energy Forum (CREF) was very critical of support that international lending gave to the most vulnerable of states such as Caribbean SIDS, and the failure of the system to come to the assistance of vulnerable states when they were most in need (e.g. after Category 5 + hurricanes etc.).

In his remarks, Brown noted that a re-think of the use of the GDP as a barometer for gauging aid, in favour of a ‘vulnerability index’ for small island states, as the current system disqualifies upper middle-income SIDS such as Antigua & Barbuda, Barbados and The Bahamas.

In the last five years, these states have been hit by severe weather events, and continue to suffer the impacts of slow onset incidents.For private finance, CoP 26 yielded results on its second day, with over 450 of the world’s largest banks and asset managers (representing 40 per cent of the world’s financial assets under management) pledging to align their portfolios with 1.5° C through the Glasgow Alliance for Net-Zero. This means that approximately $130 trillion of private capital will be committed to transforming the economy for net zero.

Rishi Sunak, the UK’s Chancellor of the Exchequer, describes the Glasgow Financial Alliance for Net-Zero as rewiring the global financial system. Through the Glasgow Financial Alliance for Net-Zero, banks and asset managers will commit to high ambition, science-based targets, including net zero emissions by 2050 at the latest, delivering their fair share of 50 per cent emission reductions this decade, and reviewing their targets towards this every five years.

Major initiatives will include divestment in high-intensity emission financing, climate-related reporting, climate risk management and mobilising private finance to developing and emerging economies.

Loss and Damage (L&D): L&D is an issue central to developing countries, that is regrettably being side-stepped by developed countries. Sadly, the lack of focus on L&D places further strain on the trust between AOSIS and developed countries. However, for developing countries, especially small island developing states (SIDS) such as Caribbean and Pacific states, and others under the AOSIS grouping, this is an essential metric which needs to be met if CoP 26 is to have any semblance of ‘success.’

Harms resulting from climate change cause intolerable loss and damage (“L&D”). The projected economic cost of loss and damage by 2030 is estimated to be between USD 290 and 580 billion annually, in developing countries alone. L&D is a significant challenge for both developing and developed countries, as climate change effects are intensifying at a faster pace than anticipated, bringing with it the associated L&D.

Confronted with this stark reality, developed country Parties have chosen to skirt around the issue of L&D at CoP 26 negotiations, as the implications for them are far-reaching.

Article 8 of the Paris Agreement recognises the importance of averting, minimising and addressing L&D. Yet, Article 8 is not an agreed basis for liability or compensation for L&D. Similarly, the UNFCCC Warsaw International Mechanism, established at CoP 19, focuses on research and dialogues around L&D, rather than liability and compensation.

While finance for averting and minimising L&D has been mobilised in the form of finance for mitigation and adaptation, finance for directly addressing L&D remains lacking.

The main achievement of CoP 26 in relation to L&D has been the establishment of the UNFCCC Santiago Network on L&D, which aims to catalyse access to technical assistance on L&D. Still, the Santiago Network is no substitute for mechanisms on L&D liability and compensation desperately needed by developing countries.

Caribbean SIDS and other developing countries therefore, will need to push for a defensible focus on L&D liability and compensation at CoP 26.

The cruciality of this need was spelt out in pellucid terms by Sir Ronald Sanders, Ambassador Extraordinary and Plenipotentiary to the United States and to the Organisation of American States, who in an October 21, 2021 article, stated that “… [s]mall states cannot go quietly into the dark night; they must rage against the dying of the light … [as] CoP 26 is the last chance saloon …”

Sanders points out that even in the face of the unveiling of a new international criminal law concept of ‘ecocide,’ climate change is not specifically identified as one of those “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread long-term damage to the environment caused by those acts”.

Further, the ‘ecocide’ concept is in its nascent stages, and it will take the International Criminal Court years to incorporate it into its jurisprudence. Even then, developing countries will face the hurdle that several polluting nations, including the United States, are not members of the Court (nor are China, India, Russia for that matter).

Therefore, the establishment of a L&D finance facility capable of addressing L&D needs of vulnerable developing countries is unquestionably a vital priority for SIDs emerging from CoP 26. Le-Anne Roper, the AOSIS’ lead negotiator
on L&D, states “… [there is] the need for a focused push for [L&D] to be treated with the kind of focus that it demands. In terms of finance, the mantra, “… it takes cash to care”,
really does apply…”

The demands for L&D also intersect with the need that Caribbean and other developing states have for climate justice. At the cusp of CoP 26, the Prime Minister of Antigua & Barbuda (which is current Chair of AOSIS) and the Prime Minister of Tuvalu, announced the signing of an historic Agreement for the establishment of a Commission of Small Island States on Climate Change and International Law.

The stated objective of the Commission is to create a body for the development and implementation of fair and just global environmental norms and practices.

However, the feature of the Commission which will occupy the attention of international law in the coming years, is that it will trailblaze a revolutionary legal path to address the L&D to SIDS caused by climate change.

To this end, the Commission is authorised to request Advisory Opinions from the International Tribunal to the Law of the Sea (ITLOS) on the legal responsibility of states for carbon emissions, marine pollution and rising sea levels. This Agreement marks a renewed push by Tuvalu, who had in 2010 considered taking the USA to the International Court of Justice (ICJ) on a similar basis, but lacked jurisdiction.

The Pacific SIDS have also made other attempts collectively (through the collapsed Pacific Alliance) and individually (Palau, Kiribati, and most recently Vanuatu who in October signalled renewed intention to attract support to request an ICJ Advisory Opinion) on the issue of L&D.

Climate Justice: Climate justice is being driven by the youth and other interest groups from both developed and developing countries alike, who are making their presence felt in Glasgow. Activists from Europe, Africa, South America and the Indo-Pacific regions to name a few are hosting side events and staging protests, which largely conclude that the CoP 26 is a failure. Most notably, on November 5, the Swedish climate activist Greta Thunberg, the Ugandan activist Vanessa Nakate and others, including indigenous activists participated in a well-attended, highly diverse “Fridays for the Future March” through the streets of Glasgow.

Prime Minister Mottley at the Seventy-Sixth U.N. General Assembly eloquently made her argument in favour of bringing climate justice ahead of the CoP 26, by invoking Bob Marley’s famous song ‘Get Up, Stand Up’ and asking “who will get up and stand up for the rights of our people?”

In addition to calls for climate justice – which is another concept that will vary among states – the concept of ‘climate debt’ also arises for developing countries like the Caribbean.  Climate debt, which includes the proposal of climate reparations, is couched within the premise that many developed countries’ actions impact negatively on the ability of developing countries to be resilient and resistant to climate change.

These actions include the need to address the principal causes of the climate crisis evidenced in the IPCC’s Sixth Assessment Report, and impediments which threaten the achievement of the objectives of the Paris Agreement.

It also calls for the recognition that developed nations have industrialised at the expense of economic and material extraction from developing states, and that many of these developing states continue to grapple with the fallout from colonisation.

Conclusion

CoP 26 is shaping up to be a protracted negotiation with the world tuned into the biggest make-or-break moment for the continued existence of humanity, as we know it. Overcoming the vast divides on climate action between the largest and most powerful emitters is a Herculean task for developing states, who as the CoP drags on are both despondent but defiantly dignified in their demands.

However, SIDS and other developing countries are keenly aware that it is the insatiable appetite for advancement by the ‘Coalition of Carbon Emitters’ (as Fiji’s President referenced the developed states) that threatens the planet’s very survival.

In its October 30th – November 5th, 2021 cover, The Economist featured three Emperor penguins (Aptenodytes forsteri) adrift on an ice floe in the ‘see no evil, hear no evil and say no evil’ pose, under the phrase “COP-out.”

The lead article outlines that despite the fact that CoP 26 will fail to live up to its hype, it is nevertheless crucial, as it is only through global fora that change can be forced.

Demonstrators outside the Glasgow CoP negotiating complex seem to concur with The Economist, and have been quick to reduce the promises made by leaders as nothing more than “hot air.” Whether this is true, and the two weeks are reduced to the  “ … blah, blah, blah …” articulated by Greta Thunberg, or whether CoP 26 will amaze, and  manifest to be the redeeming moment for the future of Earth, remains to be seen.

For the Caribbean region, the outcome of CoP 26 is most acute, because the impacts of climate change can threaten our statehood, our economies, the environment, and resources Caribbean people rely on heavily for structural protection, food and their livelihoods. In fact, many of our very lives will depend on it. To echo another of Palau’s President’s remarks to world leaders earlier this week, “ …[w]e are drowning, and our only hope is the life-ring you are holding …”

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.