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Will Countries Follow Through on the Climate Pledges Made in Paris?

Wednesday, 20 January 2016 00:00 By Hilal Elver and Richard Falk, Truthout | News Analysis
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Prime Minister David Cameron of Britain, top center, and Prince Charles, second from right with other world leaders gathering for a photo at the U.N. climate change conference in Le Bourget, near Paris, November 30, 2015. (Stephen Crowley / The New York Times)UK Prime Minister David Cameron and Prince Charles gather with other world leaders for a photo at the UN climate change conference in Le Bourget, near Paris, November 30, 2015. (Photo: Stephen Crowley / The New York Times)

It is time to move on from the aura of good feelings of accomplishment created by the Paris Climate Change Conference of last December, and begin asking some hard questions. Above all we need to assess whether an agreement that consists of voluntary pledges that gained the participation of every country on the planet is workable, and whether its contribution to slowing global warming should be celebrated or lamented at this stage.

Does the agreement really provide a realistic hope that the international community is going to stop human-caused (anthropogenic) climate change? Or, should the Paris agreement be dismissed as a "fraud" as James Hansen, the renowned climate scientist turned activist, advises? Is every one of the 195 signatories at Paris genuinely committed to and capable of upholding the agreement? The answers to such questions vary depending on who is giving the answers.

It is strange that the agreement never explicitly mentions that "fossil fuels, or coal and oil are going to be phased out."

Fossil fuel (oil, gas, coal) producing countries, along with most energy companies, are not happy with the agreement as its promises of shifts to renewables threaten to eliminate fossil fuels altogether by the end of the century. At the same time, clean energy companies (wind, solar and even nuclear) are understandably enthusiastic, anticipating a surge in governmental and market support for their technologies and dramatic increases in demand for their products.

It is strange that the agreement never explicitly mentions that "fossil fuels, or coal and oil are going to be phased out." Yet everyone in Paris realized that fossil fuels were the elephant in the room. Drafters of the Paris agreement were crafty enough not to use provocative language, while still sending clear signals to energy investors that the future belongs to renewables. We should appreciate the fact that global South countries will continue to rely on traditional energy resources for a long time, and take into account the reality that the global North has been relying on fossil fuels without restriction since the Industrial Revolution.

It is not fair to insist that poor countries stop using fossil fuels because it is bad for the climate, without these richer countries shouldering the financial burden of the costly switch to clean energy, which would impose burdens on poor countries' development and poverty reduction plans. Ideally, this kind of transfer payment would be financed by a tax on transnational financial transactions, hedge fund profits or international airline flights, but this seems unlikely to happen so long as the neoliberal ideologues of global capital are able to pull most of the strings. The Paris agreement is suspiciously silent about how such transfer payments will be financed, leaving it to individual states to decide.

Although the agreement lowered the threshold of tolerable warming by half a degree centigrade (from 2 to 1.5 degrees Celsius), the means to reach the goal is far from adequate. Even in the unlikely event that every country keeps its promises, the average global temperature will rise at least 3 degrees Celsius by the end of the century, and this will cause havoc in many parts of the planet. With this in mind, skepticism about the Paris outcome seems justified. The existence of this wide gap between the predicted average temperature rise anticipated by a consensus among climate scientists and the insufficiency of even full compliance with the Paris targets is a dispiriting reality. There is a reset feature contained in the agreement that would allow parties to make an upward adjustment in the emissions commitment that would be more in keeping with the scientific consensus on global warming. As with other aspects of the agreement, this possibility is voluntary and vague, and so its value in enhancing the climate ambition of governments will depend on their increased dedication to ensuring a prudent future for the planet and upon the degree to which civil society pressures makes such action seem politically expedient, as well as socially responsible.

Reducing Emissions Voluntarily

The climate change regime has a unique structure to differentiate responsibilities among the poor and wealthy parties by taking account of the needs and situations of global South countries, and to assess the historic responsibility of global North countries to explain the imposition of unequal obligations. Carbon dioxide stays in the atmosphere for centuries and accumulates over time, making activities in rich countries responsible for current levels of global warming. Despite this, the Paris agreement avoids mentioning "historical responsibility" as this would be "a red flag" that might agitate the Republican-controlled US Congress, and maybe make some other governments as well so nervous as to repudiate the entire Paris arrangement. Excluding any reference to historical responsibilities was definitely a psychological victory for rich countries, but whether it also has substantive relevance only time will tell.

These richer countries led by the United States also achieved some big victories that were substantive as well as symbolic. They succeeded in weakening the "loss and damage" principle, which was intended to make the richer countries financially responsible for addressing some of the adverse impacts that poorer countries are experiencing due to climate change. Financial responsibility to repair the damage caused by extreme weather events could be extremely expensive, while such damage could be catastrophic for acutely vulnerable low-lying coastal countries and several small island states. Their economic viability and even physical survival seem likely to be at grave risk in the near future.

Without a doubt, the biggest and most disturbing diplomatic success at Paris for the rich countries was to make the agreement appear voluntary in all of its aspects. Even the central pledges ("intended nationally determined contributions" or INDCs) of countries with respect to reductions in greenhouse gas emissions are presented as voluntary. The language of the agreement is worded in ways that allow multiple interpretations, and its behavioral consequences are uncertain at this stage. Parts of it are inflected with a tone of Orwellian doublespeak apparently intended to disguise any differences between agreeing to do something and not being obliged to do what was agreed upon.

The good news is that the agreement will make all national commitments transparent, reviewable and even expandable.

There are many reasons why this feature of the Paris approach is most troublesome. Its presence mainly reflects the United States' diplomatic muscle exerting a downward pressure on the negotiating process that produced a kind of race to the bottom. The Obama administration would be supportive of a stronger commitment process. It is rather the intimidating expectation that any international agreement of this magnitude would be considered as a treaty if it imposed financial and behavioral obligations. This would constitutionally require the agreement to be submitted to the US Senate for ratification by a two-thirds vote, which would be unobtainable, meaning that the treaty would die in the legislative chamber, and likely the Paris undertaking would quickly become irrelevant. It should also be noted that several pivotal global South countries, including Brazil, China and India, also favored this kind of voluntary framing of national commitments, and were content to let the United States do the dirty work of watering down the language of what was agreed upon.

The good news is that the agreement will make all national commitments transparent, reviewable and even expandable. The pledges do not become operative until 2020, and then starting in 2025, after each interval of five years, there will be a review of performances with respect to the fulfillment of pledges and an opportunity to reset the earlier emissions reductions commitment. If a signatory fails to live up to its pledge, it is presumed that it will be asked for an explanation. Will it then face any negative consequences?

The preliminary unnerving answer is that "nothing at all" is likely to follow - at least nothing is prescribed. At most, a process of "naming and shaming" may be forthcoming that could conceivably tarnish the reputation of a state that inexcusably fails to meet its pledge. Of course, if such a non-complying state is the victim of extreme weather events or is in the midst of war, civil strife or economic crisis, its disappointing performance will be overlooked. Even when the excuses for failing to meet the pledges are not credible, the etiquette of diplomacy makes most states reluctant to be critical of one another in public spaces unless the target of criticism happens to be an adversary.

Parallels With Human Rights Commitments

The coming struggle for climate compliance will no doubt resemble the long story of success and failure associated with the Universal Declaration of Human Rights (1950), perhaps the most influential "voluntary" set of commitments ever made. When drafted and approved after World War II there was little expectation that the standards set would be met in practice, but what was created, and proved surprisingly effective, was a normative architecture that bestowed on the human rights community in civil society a powerful tool for the exertion of pressure that did create compliance incentives outside the international instrument itself. It turned out that most governments, although not all, cared sufficiently about their international reputations so that they bent policy to satisfy many of the demands of human rights NGOs. In their turn, the nongovernmental organizations were discreet and deferential, doing their best to avoid embarrassing a government if it cooperated in ending an abusive pattern.

We believe the Paris agreement creates a similar tool that can be used to great advantage by civil society. At this point, it is far from clear whether a soft law or voluntarism of this character will prove nearly sufficient to curtail the menace of global warming. As with human rights, the prospects for implementation will depend on whether nongovernmental organizations and social activists exert sufficient pressure where it is most needed. We cannot be too hopeful about this. Climate activism varies greatly from country to country, and sometimes where needed most, it is absent or weak.

But, there are also some positive developments. It is encouraging that the climate movement is becoming transnational and will be able to highlight the failure of some governments to make INDCs at appropriate levels and to offer criticisms of those that inexcusably fail to fulfill their pledges. If such activism is effective, it will also encourage governments and international institutions to be more vigilant with respect to their own implementation efforts, and could even induce "virtuous circles" of compliant behavior.

In exchange for getting all states to participate, the content of what was agreed upon was seriously compromised.

Settling for a voluntary framework was the biggest departure from the approach taken by the Kyoto Protocol, the earlier climate change regime that had also been greeted with great fanfare when negotiated in 1997. In some respects the comparison is misleading. At Kyoto, only rich countries were made responsible for greenhouse gas emissions reductions. As a result, the United States and several other important countries gave this one-sidedness as their reason for not adhering to the emissions reduction agreement. Therefore, Kyoto was virtually stillborn, engaging only 12 percent of global emissions, and making almost no impact on the dangerous continuing buildup of greenhouse gas emissions despite the positive attention the agreement initially received in environmental circles.

From this point of view, the Paris agreement is very different from Kyoto. As mentioned, it makes all commitments voluntary, but participation is extended to all countries, rich or poor. "Differentiated responsibilities," or imposing concrete duties on rich countries and leaving poor countries free to act as they wish, has been replaced by a state-by-state approach in which each government indicates what it is prepared to do to cut emissions.Countries make these promises based on national assessments of their specific capabilities and circumstances. It will be important to examine objectively whether some countries submit unreasonably low INDC pledges, as well as to monitor whether the promises made are being kept in good faith.

The Paris approach is also reminiscent of the relationship between the United Nations and its predecessor organization, the League of Nations. The League had treated all countries as having an equal sovereign status, while the UN deferred to geopolitical realities by giving the five winners after World War II a right of veto and permanent membership in the Security Council. In effect, "a Faustian bargain" was struck in which universality of participation was achieved at the price of giving geopolitical actors the discretion to disobey the UN Charter whenever their interests or those of their friends so dictated and to make respect for the authority of the UN essentially voluntary. Paris makes an equivalent tradeoff. In exchange for getting all states to participate, the content of what was agreed upon was seriously compromised, and prospects for compliance diminished, leaving the underlying challenge unmet.

This is not just a conceptual issue. The grossly different material circumstances of states, together with their great disparities in vulnerability and capacity to withstand climate change damage, makes it more problematic to achieve the collective good of climate stability. In this context, the free rider problem seems seriously to weaken incentives to comply, with countries standing to gain if others act conscientiously while they do less than is expected, either by making their INDC as small as possible or by cheating and falling short. This vital concern is nowhere addressed in the Paris agreement, and awaits future efforts to set standards, create a stronger sense of collective responsibility and establish responses in the event of noncompliance.

In sum, the US government, at least the White House and most Democrats, and the majority of Americans are pleased about what emerged from Paris. After all the agreement embodies the US-led insistence on a voluntary approach that is long on rhetoric while being short on commitments. The large US delegation provided influential leadership on drafting issues before and during the conference, fostering an atmosphere of compromise and accommodation among the assembled governmental representatives. Even the energy companies were not too disappointed. They succeeded in avoiding being openly targeted in the agreement. Beyond this, they were provided enough adjustment time.

Delays and Abstractions

Parties do not have to start fulfilling their pledges until 2020. That is when the Paris agreement goes into effect. After this there is another five-year period until assessments of performances are made. This gives energy companies ample time to bring petroleum resources under their control to market and all the while, making large investments in clean energy technology to ensure future returns on capital. Taking an even longer view, these companies have until the end of the century to become clean technology suppliers, and will be benefitted in the process by government subsidies and a downward trend in production costs for renewables.

Transparency and monitoring for the fulfillment of the INDCs are important. China was reluctant, at first, to accept even this limited form of oversight, but in the end went along. It appears that its cooperative posture was brought about by President Obama's skillful courtship. The United States shared with China the status of being dual leader in the shaping of a voluntary approach the contours of which were agreed upon even before the Paris conference began. China seemed satisfied with the agreement, apparently relishing its own prominent role, and in the end promising to make a large financial contribution to the Green Fund established to support the adaptation efforts of poorer countries.

China is also looking forward to selling their cheap and efficient solar technology around the world. At the same time, the severity of China's domestic air pollution problem reached emergency levels during the conference, making urban pollution in the country an urgent priority. The direct link between China's polluted cities and reducing carbon emissions for the sake of climate change may also have encouraged Chinese support of the Paris proceedings.

It may seem strange that climate change negotiations often seem to be more about finance, development and energy policies than about preventing global warming. If you were in the great halls and back rooms where governments were trying to overcome their disagreements, you might well conclude that the conference was about money not emissions. There was a tug of war involving decisions about how much assistance a particular country will receive, and which countries would accept responsibility for contributing specific amounts of funds.

The Paris agreement is awkwardly vague and indefinite about how it will fund its central undertaking to limit global warming.

There are also voiceless communities that were essentially unrepresented in Paris, including 1 billion people struggling with extreme poverty and hunger, 350 million Indigenous people that constitute "nations" that mainly exist as captive communities within sovereign states, and future generations. Only states that are members of the UN participate directly with their voices and votes in international lawmaking conferences. A recent Oxfam report on extreme carbon inequality confirms that the poorest half of the global population of about 3.5 billion are responsible for only around 10 percent of total global emissions attributed to individual consumption, yet live disproportionately in the countries that are suffering most from climate change.

For those at these margins, the concern is less about the abstractions of money than it is about the concrete issues of daily subsistence, quality of life and even survival. Human rights activists were conscious of the plight of those excluded from real representation in Paris, and did manage to insinuate these social concerns in the text of the agreement, but only in its preamble (rather than among the operational articles). Mention in the preamble gives civil society activists "a hook" with which to raise such issues of climate justice, and provides an ethical context that is relevant to future interpretations of what was agreed upon if issues are brought before an adjudicating institution.

The Paris agreement is awkwardly vague and indefinite about how it will fund its central undertaking to limit global warming. There is an estimated need for $16 trillion over the next 15 years if the average global increase in temperature is to be kept under 1.5 degrees Celsius. Wealthy nations have so far agreed to mobilize $100 billion per year by 2020 to cover both the costs of emission reductions and to defray the adaptation expenses of measures adopted by poor countries to adjust to rising temperatures. This pledge is as voluntary as it gets, and doesn't even take effect until 2025. One consequence is that any loss or damage experienced will not provide the victim society with any entitled basis of recovery assistance. It must rely on charity and its own begging bowl.Judging from past experience the financial goals set are highly unlikely ever to be reached. From all that we know from the past, a dangerous shortfall has been created between what will be needed and what has been pledged.

What Can We Expect Post-Paris?

After this closer scrutiny of the Paris outcome, we need to ask ourselves, "What can we reasonably expect post-Paris?" With the coolness of retrospective eyes, the Paris agreement failed to ensure that necessary concrete steps will be taken to avoid future climate change harms, yet still pretended to the world that finally the challenge of climate change had been successfully met by the collective energies of multilateral diplomacy under UN auspices.

The very obvious shortcomings of the Paris agreement should encourage vigilant and militant transnational activism.

At the same time, there are some bright silver linings. The outcome in Paris did bear witness to a consensus among governments that strong collective action is needed to reduce carbon emissions in coming years to avoid catastrophe. Furthermore, the experiment of making the agreement an evolutionary process, with opportunities for correction every five years, does enable a heightening of commitments if public pressures about climate change grow in the future as the planet continues to warm.

Beyond this, the very obvious shortcomings of the Paris agreement should encourage vigilant and militant transnational activism, and hopefully give rise to a robust climate justice movement that could induce countries to revise their emission pledges upward at the periodic reset five-year intervals, which start at 2025. To confine issues of human rights and climate justice to the preamble, and to exclude considerations of equity and food security altogether, is to reinforce the misleading impression that addressing climate change effectively is only a matter of climate science and economics. In our view, without adding climate justice to the policy equation, unacceptable climate suffering will accompany even good faith efforts to slow down further overheating of the planet. In this respect, the woeful saga of desperate waves of refugees perishing at sea or clinging for life in overcrowded boats is a telling metaphor of an inhumane world order, and a warning of worse to come.

Now that the Paris agreement exists, our attention needs to shift to whether countries are fulfilling their pledges and what can be done to make up for the deficiencies in this supposedly historic approach to climate change. It is particularly opportune to focus on the reset opportunity for closing the gap between what was agreed upon in Paris and what climate experts agree is needed would seem a logical next step. What seems crystal clear is that our human future will depend more than ever on the transnational mobilization of civil society in support of both sufficient emission reductions and climate justice. Governments unless pushed hard lack the political will to do what is needed to ensure a sustainable and just future for the peoples of the planet.

Copyright, Truthout. May not be reprinted without permission.

Richard Falk

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Research Fellow of the Orfalea Center of Global Studies at the University of California, Santa Barbara. In 1965, he acted as counsel to Ethiopia and Liberia in the Southwest Africa Cases before the International Court of Justice. A recent book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Humanitarian Intervention and Legitimacy Wars (2014); Palestine: The Legitimacy of Hope (2014); and Chaos and Counterrevolution: After the Arab Spring (2015). Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine.

Hilal Elver

Hilal Elver is a professor of law and the UN Special Rapporteur on Right to Food (started at June 2014), and a distinguished global fellow of the Resnick Program on Food Law and Policy at the UCLA Law School. Previously she was co-director of the Project on Global Climate Change, Human Security, and Democracy at the University of California, Santa Barbara, where she taught since 2002. She started her teaching career at the University of Ankara Faculty of Law. During this period, she was also appointed by the Turkish government as the founding legal advisor of the Ministry of Environment, then the General Director of Women's Status. In 1994, she became the United Nations Environment Program (UNEP) Chair in Environmental Diplomacy at the Mediterranean Academy of Diplomatic Studies, University of Malta. Her book, Peaceful Uses of International Rivers: Case of Euphrates and Tigris Rivers, was published in 2002; The Headscarf Controversy, Secularism and Freedom of Religion published in 2012 by the Oxford University Press. Her most recent co-edited book with Paul Wapner, Reimagining Climate Change, will be published in March 2016 by the Routledge Press.


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Will Countries Follow Through on the Climate Pledges Made in Paris?

Wednesday, 20 January 2016 00:00 By Hilal Elver and Richard Falk, Truthout | News Analysis
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Prime Minister David Cameron of Britain, top center, and Prince Charles, second from right with other world leaders gathering for a photo at the U.N. climate change conference in Le Bourget, near Paris, November 30, 2015. (Stephen Crowley / The New York Times)UK Prime Minister David Cameron and Prince Charles gather with other world leaders for a photo at the UN climate change conference in Le Bourget, near Paris, November 30, 2015. (Photo: Stephen Crowley / The New York Times)

It is time to move on from the aura of good feelings of accomplishment created by the Paris Climate Change Conference of last December, and begin asking some hard questions. Above all we need to assess whether an agreement that consists of voluntary pledges that gained the participation of every country on the planet is workable, and whether its contribution to slowing global warming should be celebrated or lamented at this stage.

Does the agreement really provide a realistic hope that the international community is going to stop human-caused (anthropogenic) climate change? Or, should the Paris agreement be dismissed as a "fraud" as James Hansen, the renowned climate scientist turned activist, advises? Is every one of the 195 signatories at Paris genuinely committed to and capable of upholding the agreement? The answers to such questions vary depending on who is giving the answers.

It is strange that the agreement never explicitly mentions that "fossil fuels, or coal and oil are going to be phased out."

Fossil fuel (oil, gas, coal) producing countries, along with most energy companies, are not happy with the agreement as its promises of shifts to renewables threaten to eliminate fossil fuels altogether by the end of the century. At the same time, clean energy companies (wind, solar and even nuclear) are understandably enthusiastic, anticipating a surge in governmental and market support for their technologies and dramatic increases in demand for their products.

It is strange that the agreement never explicitly mentions that "fossil fuels, or coal and oil are going to be phased out." Yet everyone in Paris realized that fossil fuels were the elephant in the room. Drafters of the Paris agreement were crafty enough not to use provocative language, while still sending clear signals to energy investors that the future belongs to renewables. We should appreciate the fact that global South countries will continue to rely on traditional energy resources for a long time, and take into account the reality that the global North has been relying on fossil fuels without restriction since the Industrial Revolution.

It is not fair to insist that poor countries stop using fossil fuels because it is bad for the climate, without these richer countries shouldering the financial burden of the costly switch to clean energy, which would impose burdens on poor countries' development and poverty reduction plans. Ideally, this kind of transfer payment would be financed by a tax on transnational financial transactions, hedge fund profits or international airline flights, but this seems unlikely to happen so long as the neoliberal ideologues of global capital are able to pull most of the strings. The Paris agreement is suspiciously silent about how such transfer payments will be financed, leaving it to individual states to decide.

Although the agreement lowered the threshold of tolerable warming by half a degree centigrade (from 2 to 1.5 degrees Celsius), the means to reach the goal is far from adequate. Even in the unlikely event that every country keeps its promises, the average global temperature will rise at least 3 degrees Celsius by the end of the century, and this will cause havoc in many parts of the planet. With this in mind, skepticism about the Paris outcome seems justified. The existence of this wide gap between the predicted average temperature rise anticipated by a consensus among climate scientists and the insufficiency of even full compliance with the Paris targets is a dispiriting reality. There is a reset feature contained in the agreement that would allow parties to make an upward adjustment in the emissions commitment that would be more in keeping with the scientific consensus on global warming. As with other aspects of the agreement, this possibility is voluntary and vague, and so its value in enhancing the climate ambition of governments will depend on their increased dedication to ensuring a prudent future for the planet and upon the degree to which civil society pressures makes such action seem politically expedient, as well as socially responsible.

Reducing Emissions Voluntarily

The climate change regime has a unique structure to differentiate responsibilities among the poor and wealthy parties by taking account of the needs and situations of global South countries, and to assess the historic responsibility of global North countries to explain the imposition of unequal obligations. Carbon dioxide stays in the atmosphere for centuries and accumulates over time, making activities in rich countries responsible for current levels of global warming. Despite this, the Paris agreement avoids mentioning "historical responsibility" as this would be "a red flag" that might agitate the Republican-controlled US Congress, and maybe make some other governments as well so nervous as to repudiate the entire Paris arrangement. Excluding any reference to historical responsibilities was definitely a psychological victory for rich countries, but whether it also has substantive relevance only time will tell.

These richer countries led by the United States also achieved some big victories that were substantive as well as symbolic. They succeeded in weakening the "loss and damage" principle, which was intended to make the richer countries financially responsible for addressing some of the adverse impacts that poorer countries are experiencing due to climate change. Financial responsibility to repair the damage caused by extreme weather events could be extremely expensive, while such damage could be catastrophic for acutely vulnerable low-lying coastal countries and several small island states. Their economic viability and even physical survival seem likely to be at grave risk in the near future.

Without a doubt, the biggest and most disturbing diplomatic success at Paris for the rich countries was to make the agreement appear voluntary in all of its aspects. Even the central pledges ("intended nationally determined contributions" or INDCs) of countries with respect to reductions in greenhouse gas emissions are presented as voluntary. The language of the agreement is worded in ways that allow multiple interpretations, and its behavioral consequences are uncertain at this stage. Parts of it are inflected with a tone of Orwellian doublespeak apparently intended to disguise any differences between agreeing to do something and not being obliged to do what was agreed upon.

The good news is that the agreement will make all national commitments transparent, reviewable and even expandable.

There are many reasons why this feature of the Paris approach is most troublesome. Its presence mainly reflects the United States' diplomatic muscle exerting a downward pressure on the negotiating process that produced a kind of race to the bottom. The Obama administration would be supportive of a stronger commitment process. It is rather the intimidating expectation that any international agreement of this magnitude would be considered as a treaty if it imposed financial and behavioral obligations. This would constitutionally require the agreement to be submitted to the US Senate for ratification by a two-thirds vote, which would be unobtainable, meaning that the treaty would die in the legislative chamber, and likely the Paris undertaking would quickly become irrelevant. It should also be noted that several pivotal global South countries, including Brazil, China and India, also favored this kind of voluntary framing of national commitments, and were content to let the United States do the dirty work of watering down the language of what was agreed upon.

The good news is that the agreement will make all national commitments transparent, reviewable and even expandable. The pledges do not become operative until 2020, and then starting in 2025, after each interval of five years, there will be a review of performances with respect to the fulfillment of pledges and an opportunity to reset the earlier emissions reductions commitment. If a signatory fails to live up to its pledge, it is presumed that it will be asked for an explanation. Will it then face any negative consequences?

The preliminary unnerving answer is that "nothing at all" is likely to follow - at least nothing is prescribed. At most, a process of "naming and shaming" may be forthcoming that could conceivably tarnish the reputation of a state that inexcusably fails to meet its pledge. Of course, if such a non-complying state is the victim of extreme weather events or is in the midst of war, civil strife or economic crisis, its disappointing performance will be overlooked. Even when the excuses for failing to meet the pledges are not credible, the etiquette of diplomacy makes most states reluctant to be critical of one another in public spaces unless the target of criticism happens to be an adversary.

Parallels With Human Rights Commitments

The coming struggle for climate compliance will no doubt resemble the long story of success and failure associated with the Universal Declaration of Human Rights (1950), perhaps the most influential "voluntary" set of commitments ever made. When drafted and approved after World War II there was little expectation that the standards set would be met in practice, but what was created, and proved surprisingly effective, was a normative architecture that bestowed on the human rights community in civil society a powerful tool for the exertion of pressure that did create compliance incentives outside the international instrument itself. It turned out that most governments, although not all, cared sufficiently about their international reputations so that they bent policy to satisfy many of the demands of human rights NGOs. In their turn, the nongovernmental organizations were discreet and deferential, doing their best to avoid embarrassing a government if it cooperated in ending an abusive pattern.

We believe the Paris agreement creates a similar tool that can be used to great advantage by civil society. At this point, it is far from clear whether a soft law or voluntarism of this character will prove nearly sufficient to curtail the menace of global warming. As with human rights, the prospects for implementation will depend on whether nongovernmental organizations and social activists exert sufficient pressure where it is most needed. We cannot be too hopeful about this. Climate activism varies greatly from country to country, and sometimes where needed most, it is absent or weak.

But, there are also some positive developments. It is encouraging that the climate movement is becoming transnational and will be able to highlight the failure of some governments to make INDCs at appropriate levels and to offer criticisms of those that inexcusably fail to fulfill their pledges. If such activism is effective, it will also encourage governments and international institutions to be more vigilant with respect to their own implementation efforts, and could even induce "virtuous circles" of compliant behavior.

In exchange for getting all states to participate, the content of what was agreed upon was seriously compromised.

Settling for a voluntary framework was the biggest departure from the approach taken by the Kyoto Protocol, the earlier climate change regime that had also been greeted with great fanfare when negotiated in 1997. In some respects the comparison is misleading. At Kyoto, only rich countries were made responsible for greenhouse gas emissions reductions. As a result, the United States and several other important countries gave this one-sidedness as their reason for not adhering to the emissions reduction agreement. Therefore, Kyoto was virtually stillborn, engaging only 12 percent of global emissions, and making almost no impact on the dangerous continuing buildup of greenhouse gas emissions despite the positive attention the agreement initially received in environmental circles.

From this point of view, the Paris agreement is very different from Kyoto. As mentioned, it makes all commitments voluntary, but participation is extended to all countries, rich or poor. "Differentiated responsibilities," or imposing concrete duties on rich countries and leaving poor countries free to act as they wish, has been replaced by a state-by-state approach in which each government indicates what it is prepared to do to cut emissions.Countries make these promises based on national assessments of their specific capabilities and circumstances. It will be important to examine objectively whether some countries submit unreasonably low INDC pledges, as well as to monitor whether the promises made are being kept in good faith.

The Paris approach is also reminiscent of the relationship between the United Nations and its predecessor organization, the League of Nations. The League had treated all countries as having an equal sovereign status, while the UN deferred to geopolitical realities by giving the five winners after World War II a right of veto and permanent membership in the Security Council. In effect, "a Faustian bargain" was struck in which universality of participation was achieved at the price of giving geopolitical actors the discretion to disobey the UN Charter whenever their interests or those of their friends so dictated and to make respect for the authority of the UN essentially voluntary. Paris makes an equivalent tradeoff. In exchange for getting all states to participate, the content of what was agreed upon was seriously compromised, and prospects for compliance diminished, leaving the underlying challenge unmet.

This is not just a conceptual issue. The grossly different material circumstances of states, together with their great disparities in vulnerability and capacity to withstand climate change damage, makes it more problematic to achieve the collective good of climate stability. In this context, the free rider problem seems seriously to weaken incentives to comply, with countries standing to gain if others act conscientiously while they do less than is expected, either by making their INDC as small as possible or by cheating and falling short. This vital concern is nowhere addressed in the Paris agreement, and awaits future efforts to set standards, create a stronger sense of collective responsibility and establish responses in the event of noncompliance.

In sum, the US government, at least the White House and most Democrats, and the majority of Americans are pleased about what emerged from Paris. After all the agreement embodies the US-led insistence on a voluntary approach that is long on rhetoric while being short on commitments. The large US delegation provided influential leadership on drafting issues before and during the conference, fostering an atmosphere of compromise and accommodation among the assembled governmental representatives. Even the energy companies were not too disappointed. They succeeded in avoiding being openly targeted in the agreement. Beyond this, they were provided enough adjustment time.

Delays and Abstractions

Parties do not have to start fulfilling their pledges until 2020. That is when the Paris agreement goes into effect. After this there is another five-year period until assessments of performances are made. This gives energy companies ample time to bring petroleum resources under their control to market and all the while, making large investments in clean energy technology to ensure future returns on capital. Taking an even longer view, these companies have until the end of the century to become clean technology suppliers, and will be benefitted in the process by government subsidies and a downward trend in production costs for renewables.

Transparency and monitoring for the fulfillment of the INDCs are important. China was reluctant, at first, to accept even this limited form of oversight, but in the end went along. It appears that its cooperative posture was brought about by President Obama's skillful courtship. The United States shared with China the status of being dual leader in the shaping of a voluntary approach the contours of which were agreed upon even before the Paris conference began. China seemed satisfied with the agreement, apparently relishing its own prominent role, and in the end promising to make a large financial contribution to the Green Fund established to support the adaptation efforts of poorer countries.

China is also looking forward to selling their cheap and efficient solar technology around the world. At the same time, the severity of China's domestic air pollution problem reached emergency levels during the conference, making urban pollution in the country an urgent priority. The direct link between China's polluted cities and reducing carbon emissions for the sake of climate change may also have encouraged Chinese support of the Paris proceedings.

It may seem strange that climate change negotiations often seem to be more about finance, development and energy policies than about preventing global warming. If you were in the great halls and back rooms where governments were trying to overcome their disagreements, you might well conclude that the conference was about money not emissions. There was a tug of war involving decisions about how much assistance a particular country will receive, and which countries would accept responsibility for contributing specific amounts of funds.

The Paris agreement is awkwardly vague and indefinite about how it will fund its central undertaking to limit global warming.

There are also voiceless communities that were essentially unrepresented in Paris, including 1 billion people struggling with extreme poverty and hunger, 350 million Indigenous people that constitute "nations" that mainly exist as captive communities within sovereign states, and future generations. Only states that are members of the UN participate directly with their voices and votes in international lawmaking conferences. A recent Oxfam report on extreme carbon inequality confirms that the poorest half of the global population of about 3.5 billion are responsible for only around 10 percent of total global emissions attributed to individual consumption, yet live disproportionately in the countries that are suffering most from climate change.

For those at these margins, the concern is less about the abstractions of money than it is about the concrete issues of daily subsistence, quality of life and even survival. Human rights activists were conscious of the plight of those excluded from real representation in Paris, and did manage to insinuate these social concerns in the text of the agreement, but only in its preamble (rather than among the operational articles). Mention in the preamble gives civil society activists "a hook" with which to raise such issues of climate justice, and provides an ethical context that is relevant to future interpretations of what was agreed upon if issues are brought before an adjudicating institution.

The Paris agreement is awkwardly vague and indefinite about how it will fund its central undertaking to limit global warming. There is an estimated need for $16 trillion over the next 15 years if the average global increase in temperature is to be kept under 1.5 degrees Celsius. Wealthy nations have so far agreed to mobilize $100 billion per year by 2020 to cover both the costs of emission reductions and to defray the adaptation expenses of measures adopted by poor countries to adjust to rising temperatures. This pledge is as voluntary as it gets, and doesn't even take effect until 2025. One consequence is that any loss or damage experienced will not provide the victim society with any entitled basis of recovery assistance. It must rely on charity and its own begging bowl.Judging from past experience the financial goals set are highly unlikely ever to be reached. From all that we know from the past, a dangerous shortfall has been created between what will be needed and what has been pledged.

What Can We Expect Post-Paris?

After this closer scrutiny of the Paris outcome, we need to ask ourselves, "What can we reasonably expect post-Paris?" With the coolness of retrospective eyes, the Paris agreement failed to ensure that necessary concrete steps will be taken to avoid future climate change harms, yet still pretended to the world that finally the challenge of climate change had been successfully met by the collective energies of multilateral diplomacy under UN auspices.

The very obvious shortcomings of the Paris agreement should encourage vigilant and militant transnational activism.

At the same time, there are some bright silver linings. The outcome in Paris did bear witness to a consensus among governments that strong collective action is needed to reduce carbon emissions in coming years to avoid catastrophe. Furthermore, the experiment of making the agreement an evolutionary process, with opportunities for correction every five years, does enable a heightening of commitments if public pressures about climate change grow in the future as the planet continues to warm.

Beyond this, the very obvious shortcomings of the Paris agreement should encourage vigilant and militant transnational activism, and hopefully give rise to a robust climate justice movement that could induce countries to revise their emission pledges upward at the periodic reset five-year intervals, which start at 2025. To confine issues of human rights and climate justice to the preamble, and to exclude considerations of equity and food security altogether, is to reinforce the misleading impression that addressing climate change effectively is only a matter of climate science and economics. In our view, without adding climate justice to the policy equation, unacceptable climate suffering will accompany even good faith efforts to slow down further overheating of the planet. In this respect, the woeful saga of desperate waves of refugees perishing at sea or clinging for life in overcrowded boats is a telling metaphor of an inhumane world order, and a warning of worse to come.

Now that the Paris agreement exists, our attention needs to shift to whether countries are fulfilling their pledges and what can be done to make up for the deficiencies in this supposedly historic approach to climate change. It is particularly opportune to focus on the reset opportunity for closing the gap between what was agreed upon in Paris and what climate experts agree is needed would seem a logical next step. What seems crystal clear is that our human future will depend more than ever on the transnational mobilization of civil society in support of both sufficient emission reductions and climate justice. Governments unless pushed hard lack the political will to do what is needed to ensure a sustainable and just future for the peoples of the planet.

Copyright, Truthout. May not be reprinted without permission.

Richard Falk

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Research Fellow of the Orfalea Center of Global Studies at the University of California, Santa Barbara. In 1965, he acted as counsel to Ethiopia and Liberia in the Southwest Africa Cases before the International Court of Justice. A recent book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Humanitarian Intervention and Legitimacy Wars (2014); Palestine: The Legitimacy of Hope (2014); and Chaos and Counterrevolution: After the Arab Spring (2015). Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine.

Hilal Elver

Hilal Elver is a professor of law and the UN Special Rapporteur on Right to Food (started at June 2014), and a distinguished global fellow of the Resnick Program on Food Law and Policy at the UCLA Law School. Previously she was co-director of the Project on Global Climate Change, Human Security, and Democracy at the University of California, Santa Barbara, where she taught since 2002. She started her teaching career at the University of Ankara Faculty of Law. During this period, she was also appointed by the Turkish government as the founding legal advisor of the Ministry of Environment, then the General Director of Women's Status. In 1994, she became the United Nations Environment Program (UNEP) Chair in Environmental Diplomacy at the Mediterranean Academy of Diplomatic Studies, University of Malta. Her book, Peaceful Uses of International Rivers: Case of Euphrates and Tigris Rivers, was published in 2002; The Headscarf Controversy, Secularism and Freedom of Religion published in 2012 by the Oxford University Press. Her most recent co-edited book with Paul Wapner, Reimagining Climate Change, will be published in March 2016 by the Routledge Press.


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