I recall Professor Douglas Johnston, a long time MELP faculty member and member of my PHD committee, predicting back in 2002 that climate change will be too complex a problem for humanity to solve. So far, unfortunately, he has been proven right. Certainly, it can be said that the UN Climate negotiations have not kept pace with our scientific understanding of the problem nor with the availability of solutions. Arguably, the development of the framework convention in 1992 was the last time the UN Climate regime was in step with the science of climate change. At that time, the science was still uncertain. In its first assessment report, the IPCC suggested that it was possible to explain the changes that had been observed based on human GHG emissions, but that the changes could also be explained based on natural variation. In this state of scientific uncertainty, the UN framework convention nevertheless committed developed countries to stabilizing emissions at 1990 levels, and take other important initial measures to prepare for the control of emissions. If these voluntary targets had been met, it would have been difficult to judge the UN framework convention as anything short of a success given the state of the science at the time.
The same cannot be said for the Kyoto Protocol, which was signed at a time when the IPCC was already warning that observed changes could no longer be explained based on natural variation. Subsequent milestones in the evolution of the UN Climate regime show a growing gap between science and action. The third, fourth and fifth AR of the IPCC have communicated growing certainty and alarm, yet there has to date been limited if any progress since the inadequate targets set in the Kyoto Protocol in 1997.
The Copenhagen Accord in 2009 stands out as perhaps the most significant failure in the negotiations to date. What is perhaps worse is that most nations did not meet their UN framework convention target of stabilizing emissions by 2000, and not all nations met their Kyoto targets by the 2012 deadline, Canada and the US among them. Of course, the US never ratified Kyoto, and Canada withdrew in 2012.
Why has the UN Climate regime failed to produce an effective global response to date? The answer to this question is complex, however, there are a number of factors worth highlighting. A technical fix is clearly not as readily available as it was for ozone depleting substances, for example. That is not to say that there are not technologies that can be used to reduce emissions, but solutions involve a wide range of technologies applied in different combinations in different jurisdictions in combination with behavioural and structural changes to human societies.
In other words, solutions are complex, difficult to implement, and they look different in different parts of the world. The activities involved are much more pervasive in terms of their effects on our way of life than was the case for ozone depleting substances. It has also proven to be much harder to bring developing countries along in a manner that does not unduly constrain their ability to develop.
In short, climate change is much more of a challenge to the status quo than other global environmental challenges. It is much more pervasive in terms of human activities and sectors of the economy affected. Perhaps most fundamentally, the stakes are high for all nations, and we are still far from reaching anything close to a consensus of what would be a fair distribution of the burdens, benefits, risks, and uncertainties associated with climate change. The impacts of unmitigated climate change will be distributed unfairly, those who have contributed the least are often at greatest risk. Some nations who contribute the most, seem to have the least motivation to cooperate globally, because they have reason to expect to benefit initially from climate change, and they seem to feel they have the capacity to adapt as impacts become worse even for them.
So what are the prospects for a meaningful climate regime in 2015? The ongoing negotiations have included a broad range of issues. While initial negotiations focused on mitigation efforts by developed countries, other issues have gained prominence in the past 10 years. Global mitigation efforts, adaptation, finance, technology, capacity building, and, most recently, loss & damage all feature prominently in the current negotiations, along with monitoring, reporting and compliance, the legal form of the new agreement, and institutional arrangement needed for effective implementation. Central to the negotiation dynamic are the mitigation effort by developed and key developing countries along with their willingness to commit to financial and other assistance for developing countries.
In the lead up to the Paris Conference at the end of 2015, parties are in the process of making unilateral pledges to reduce their emissions after 2020. It is clear that these initial pledges will be insufficient to meet the stated goal of keeping global average temperature increases below 2 degrees Celsius. The hope is that the review of these targets by parties, researchers and civil society will expose inequities and facilitate a meaningful discussion in Paris on an equitable distribution of the burdens, benefits, risks, and adequacy of meeting the 2 degree goal. The risk, of course, is that in the absence of an agreement on allocation of responsibility, the collective effort will remain insufficient to achieve the 2 degree goal.
To understand the negotiating dynamics it is important to consider potential drivers for climate policy and action among the 195 UN member states involved in the negotiations. Clearly, individual parties will be motivated in their negotiating position by a complex set of factors. Among them will be domestic politics, short and long-term economic factors, expected climate impacts, and resilience, among many others. The combination and weight of these influences will be different for each of the participating states. There are, however, three categories of influences that are worth particular emphasis in assessing the prospects for an effective climate regime.
One of these key influences is self-interest. One the one hand, there is a real danger that individual nations will continue to bet that they can adapt to climate change and avoid the worst impacts without international cooperation, and that they will continue to make decisions based on an assumption that global cooperation is more risky or expensive than a domestic response focused on adaptation and resilience. On the other hand, as the scientific, technological, social, cultural and economic understanding of climate change has improved, it is becoming increasingly clear that while there may be short-term winners in this “game”, in the long term, there are only losers. Effective climate mitigation is the only way toward long-term energy security, food security, and water security, let alone the preservation of natural system and biodiversity. I would argue that the critical “self interest” question for the future of the climate regime therefore is not whether nations will be influenced by self-interest (clearly they will be), but whether nations are willing and able to shift from a short-term to a longer-term view of self interest.
A second key influence is ethics. Here, the question is to what extent nations will be influenced by a sense of fairness, a sense of responsibility to prevent undue harm to other nations, particularly nations that have contributed little to the problem, have limited capacity to adapt and limited resilience to absorb impacts. An important follow-up question is whether such as sense of responsibility will translate into efforts to reduce GHG emissions to avoid climate change, whether it will result in efforts to help other nations mitigate, whether it will result in a sense of responsibility to assist with adaptation, whether it will result in a sense of responsibility for loss & damage, and ultimately, and ultimately, whether it can achieve all of the above.
A third key influence is liability. To be clear, it is difficult to avoid the conclusion that most developed countries have so far approached the climate negotiations on the assumption that they will not have to bear the burden of climate impacts outside their boarders, other than through voluntary contributions. At the same time, of course, the conventional wisdom is that climate mitigation, even at a much higher level than is currently under way, is cheaper and less disruptive to the global economy than either adaptation or the impacts of unmitigated climate change.
Nevertheless, nations are slow to agree to more meaningful mitigation action. A reasonable explanation for this state of affairs is that nations, when deciding on their climate policy, consider the cost of mitigation, but do not consider the benefits of mitigation. This is understandable given that the benefits are distributed globally. Of course, an equitable agreement on a global effort to mitigate would also distribute the cost of mitigation globally.
An interesting question in the current negotiations is whether the recent inclusion of the Warsaw International Mechanism On Loss & Damage will bring the risk of liability for impacts that are not avoided through mitigation and adaptation to the minds of negotiators and decision makers, particularly those in nations that have contributed the most to climate change on a per capita basis, such as the US, Canada, Australia, and other large and long-term producers, exporters and users of fossil fuels. It seems clear that UN member states will not be able to ignore the question of liability in the long term, but it is difficult to say whether the issue will become the motivator for mitigation that it should be.
So where does all this leave the UN Climate Regime? It seems clear from the science that the issue will not go away. The costs of not addressing the issue will continue to rise, as will the cost of mitigation. It seems inevitable that there will eventually be a much more effective global regime than we currently have in place. The real question is what will be the cost of delay.
• What will be the economic cost of delay, of having to reduce emissions drastically rather than gradually
• What will be the cost of unmitigated climate change in terms of human lives and human suffering
• What will be the cost in terms of human displacement
• What will be the cost in terms of loss of biodiversity, loss of nature
Prospects in the short term are not great in spite of progress signaled by a number of events in 2014, such as the agreement between the US and China, the agreement in Lima that provides a foundation for negotiations toward a meaningful new treaty, and by the growing public support for action as evident by demonstrations, and an ever increasing number of religious and civic leaders getting engaged in the effort.
We currently see in the US the strongest support for action we have had since the Clinton/Gore administration, but still no room for congressional action, no federal legislation, and no likelihood of ratification of the 2015 agreement, no matter how weak or strong, all this in spite of the 2014 US-China agreement. The willingness of Australia, Japan, Canada, Russia, and New Zealand to commit to anything close to their share remains in doubt. It seems clear that none currently have federal governments that are seriously committed to climate action, either out of long term self interest or out of a sense of global equity. The EU expansion to eastern Europe and its economic difficulties since 2008 have made EU leadership on the issue more difficult, though some EU member states continue to show global leadership in their domestic actions and their international commitments.
It remains to be seen whether India’s new government will change course and champion a low emissions development path, or whether it will continue to be a stubborn champion of the rights of developing countries to develop at the expense of progress on climate change. China, Brazil and SA, will be key in bringing developing countries along, and in pushing for fair treatment of developing countries by the developed world. An often neglected question is whether OPEC member states will be made to do their share.
In the end, it seems inevitable that the 2015 agreement will be inadequate, it will not be enough to keep warming below 2 degrees (let alone 1.5, which is what may be needed to save a number of small island states and polar regions). I am hopeful, however, that it can be strong enough to encourage accelerated investment in solutions. If this happens, there may be opportunities to accelerate action beyond what is agreed to in Paris to allow efforts to catch up with the science.
Finally, I believe there is an urgent need for the UN Climate negotiations to tackle (intra-generational) equity, ie allocation among Parties. In my view, much more common ground on equity is necessary before we can achieve adequacy in terms of the global effort. Even if we can create economic incentives to facilitate a race to the top on the solutions without agreement on equity, we will still need to prohibit or restrain the actions that are part of the problem, such as energy from fossil fuels, industrial meat production, and other key contributors to climate change. Such constraints will not happen without more common ground on equity.
The year 2015 promises to be another critical year in the climate regime. In fact, 2015 is seen by some as the last chance of the UN Climate Regime to demonstrate that it is up to the task of facilitating an effective global response to climate change. It is not clear that the situation is as stark for the regime, particularly given the absence of clear alternatives. Significant progress will be critical, but with some progress, the regime will likely struggle for some time to catch up with the level of effort required. Without an agreement in Paris that at least sends a clear signal to investors that shifting their investments from sectors that contribute to the problem to those that contribute to solving it, the UN Climate Regime will, however, lose its relevance.
To download my publications on the UN Climate Regime, see http://ssrn.com/author=715387.
Director, Marine & Environmental Law Institute