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At a landmark legal hearing in The Hague this week, wealthy countries that are big emitters of planet-heating gases have used the Paris Agreement and other existing treaties on climate change to avoid additional pressure to step up their action to tackle global warming.
Their statements at the International Court of Justice (ICJ) sparked strong criticism from top climate diplomats and advocates who argue that international accords do not place limits on state accountability over climate change.
The two-week hearing is the culmination of years of campaigning by a group of law students from Pacific nations and diplomacy led by the island state of Vanuatu.
Their efforts resulted in a UN General Assembly resolution last year calling on the ICJ to provide an advisory opinion on the legal obligations of states to address climate change and the legal consequences if they fail to do so.
The ICJ says its advisory opinions are not binding. But experts stress that they clarify, rather than create, new law and will be referred to as authoritative documents in future climate litigation and during international climate negotiations.
In total, 98 states are giving oral submissions to the court, alongside a handful of institutions including the Organization of the Petroleum Exporting Countries (OPEC).
Four days into the hearing, a clear divide is emerging between wealthy nations that are historically high emitters and vulnerable nations on the frontlines of climate change that have contributed little to planetary heating.
The event has seen powerful fossil-fuel producing countries – from the United States to Russia – resist what they regard as an attempt to force them to do more to rein in emissions and provide reparations to those suffering because of their carbon pollution.
Paris Agreement plans “not sufficient”
On Wednesday, the United States – which does not fully recognise the authority of the ICJ – told the court that sufficient legal frameworks are already in place to deal with climate change.
Margaret Taylor, legal adviser to the US Department of State, described global warming as the “quintessential collective action problem” which the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement are carefully designed to deal with.
Those treaties, she said, embody “the clearest, most specific and most current expression of states’ consent to be bound by international law in respect of climate change” – and should therefore be the “primary framework” for determining their obligations.
Laurence Tubiana, CEO of the European Climate Foundation and an architect of the 2015 Paris Agreement, said in a statement that the landmark pact should not be misused by countries to “dilute their climate responsibilities and accountability”.
“The Paris Agreement was created as a tool that legally binds countries to display policies and actions, both short and long term, that are consistent with the 1.5C temperature limit,” she said.
Announcing national climate plans (NDCs) with emissions-cutting targets “that too often do not meet these objectives” – currently the majority – “is not sufficient”, Tubiana added.
Taylor told the court, on behalf of the US, that the Paris Agreement does not provide any legal standard against which to judge the adequacy of an NDC or to determine if a country is doing its fair share in global terms. Nor do states breach the agreement if they fail to achieve their NDCs, she added.
Wider international law
Many countries believe that legal obligations should not be limited to existing climate agreements and have asked the ICJ to consider a wide range of written and unwritten international law, including rules on transboundary harm, due diligence and the duty to cooperate and to prevent harm.
The relevance and scope of human rights in the context of climate change has also been hotly debated. States particularly disagree over the applicability of the right to a clean, healthy and sustainable environment. This was acknowledged by the UN General Assembly in a 2022 resolution but has proved difficult to implement.
Mamadou Hébié, associate professor of international law at Leiden University, representing Burkina Faso at the ICJ, said the Paris Agreement does not create any exemption or derogation from the rest of international law.
Zachary Phillips, counsel for Antigua and Barbuda, said compliance with the Paris Agreement is “necessary but may not be sufficient” to comply with unwritten ‘customary’ international law, including the obligation to prevent harm.
Several of the world’s biggest economies – among those most reliant on fossil fuels – have contended this week, however, that they have no obligations beyond the Paris pact and the UNFCCC. Australia, for example, said these are “central instruments” for global cooperation while China appealed to the court to avoid “fragmenting” international climate law.
Call for climate reparations at the ICJ even more urgent after COP29 falls short
Wiebke Rückert, Germany’s director for public international law, said the Paris Agreement strikes a “careful balance” between legal and non-legal commitments and warned that attempts to change that could “seriously” endanger the willingness of states to participate in political processes.
Ghaida Bajbaa, from Saudi Arabia’s energy ministry, said the UNFCCC provides “no basis whatsoever” for the court to authorise limits to fossil fuel extraction and consumption.
This was echoed by Maksim Musikhin, director of the legal department of Russia’s Ministry of Foreign Affairs, who said the transition away from fossil fuels – agreed at COP28 in Dubai last year – is not a legal obligation but rather a political appeal.
Ocean tribunal opinion
The extent to which state obligations on climate change are limited to the UNFCCC was a key pillar of discussion at the International Tribunal for the Law of the Sea (ITLOS) which this year issued its own advisory opinion on climate change.
ITLOS ruled that countries need to go beyond their commitments under the Paris Agreement to protect the oceans from the impact of greenhouse gas emissions. The ICJ will have to take this opinion into account, in addition to a forthcoming one from the Inter-American Court on Human Rights.
Ralph Regenvanu, Vanuatu’s special envoy for climate change who opened the ICJ hearings on Monday, said in response to the US’s statement that climate change treaties are essential but cannot be “a veil for inaction or a substitute for legal accountability”.
“These nations – some of the world’s largest greenhouse gas emitters – have pointed to existing treaties and commitments that have regrettably failed to motivate substantial reductions in emissions,” he said. “There needs to be an accounting for the failure to curb emissions and the climate change impacts and human rights violation that failure has generated.”
Legal experts say Trump could quit Paris pact – but leaving UNFCCC much harder
Ashfaq Khalfan, climate justice director for Oxfam America, said it was “absurd” for the Biden administration to make arguments against clearer legal obligations on climate change given the upcoming presidency of Donald Trump, who has vowed to withdraw the US from the Paris Agreement for a second time when he takes office.
The ICJ hearing continues until December 13 in The Hague, with other big greenhouse gas emitters such as the UK still to speak.
(Reporting by Isabella Kaminsky; editing by Megan Rowling)
The post Big emitters accused of hiding behind climate treaties at international hearing appeared first on Climate Home News.
Big emitters accused of hiding behind climate treaties in international hearing
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Countries have completed the first “global review” of their progress towards reversing nature loss by 2030 at the COP17 biodiversity talks in Yerevan, Armenia.
The review “notes with deep concern” that, unless action is “rapidly accelerated”, the goal to reverse nature loss and meet a set of 23 targets by 2030 “will not be achieved”.
It “urges” countries to accelerate action, including by “increased ambition in addressing the gaps”.
Much of the discussions in Yerevan focused on how to raise the necessary funds to help developing countries protect nature.
Some major economies pushed to expand the range of nations that are expected to provide finance, with countries agreeing at the end of the two weeks of talks that non-donors that want to contribute can “signal interest” before COP18.
This came after developed countries failed to meet a target to significantly ramp up nature finance over the last few years.
It also came as a landmark fund agreed at COP16 in Colombia to pay communities for the genetic resources derived from nature stands nearly empty two years on.
The Yerevan talks marked the halfway point of the “Kunming-Montreal Global Biodiversity Framework” (GBF), the “Paris Agreement for nature” first made in 2022 and due to be achieved by 2030.
During the nearly 12-hour-long final plenary, countries voted for Quito, Ecuador, to host the COP18 nature talks, which will be held in 2028.
Countries managed to sign off on all the major negotiation texts, marking a stark contrast to COP16, which ran so far over time that the Colombian presidency lost “quorum”, forcing talks to resume in Rome months later.
Below, Carbon Brief has detailed analysis of all of the key outcomes from COP17.
Formal negotiations
Finance
Finance, predictably, was at the heart of the discord and deadlock at the Yerevan talks.
At COP17, discussions on finance had to achieve several outcomes.
The first part – to take stock of biodiversity finance mobilised so far to meet the nature deal’s goals – fell under the global review.
As the global report noted, developed countries failed to meet their commitments to raise “at least $20bn a year by 2025” for nature. Delegates pointed to falling aid levels and a sharp 27% decline in environmental funding for the 2026-30 period.
The second part was to agree on how to mobilise resources for the next four years, to meet the GBF’s goals and targets.
Calls to “broaden the contributor base” of who pays to protect nature – and whether that should include emerging economies – became the most fraught element of the talks.
Eventually, countries agreed on what Switzerland described as a “super, mega-delicate” text. It hinged on major “political compromises”, with “no major winner or loser”, according to Kenya.
Per the decision, countries that want to be included on a list of developed country donors can “signal interest” through bilateral, confidential consultations before COP18 and every alternate COP after.
Finally, countries also agreed on criteria to shape and resource a new, permanent financial mechanism to protect nature after 2030.
However, this did not immediately take the form of a new fund under the COP that biodiverse countries have demanded since 2022, deferring the mechanism’s institutional structure to COP18.
Resource mobilisation discussions at the GBF’s halfway mark were supposed to agree on how to close the “biodiversity finance gap” and to “increase resources from all sources” to “at least” $200bn per year by 2030, as set out in target 19 of the GBF.
The talks were largely dominated by a push, led by the JUSCANZ bloc of developed countries, to “broaden the contributor base”. This could see emerging economies, such as Qatar, China, Saudi Arabia and India, being added to the list of countries that pay to protect nature.
Article 20 of the UN Convention on Biological Diversity (CBD) states that developed countries “shall provide new and additional financial resources” to developing countries to meet the costs of implementing measures to protect nature.
The text states that other countries – including emerging economies – may “voluntarily assume” these obligations to pay. However, it adds that this list of developed countries “shall” be reviewed periodically and amended “if necessary”.
The list was last amended in 2006.
(See this “jargon buster” which explains the specific meaning and legal weight of various terms and verbs used in UN formal documents.)
Discussions around this fraught subject had reached a dead end at intersessional talks this year, but resurfaced in Yerevan.
The first “non-paper” had four different options for expanding the contributor base. These ranged from using the World Bank’s country income groups “as a proxy” to identify high-income countries, to commissioning a study on the impacts of being included on the list.
By 21 October, the number of options swelled to eight, including two from Saudi Arabia and one from Peru.
Some countries “expressed concern” that certain options were based on a CBD secretariat study on “what constitutes a developed country”, Earth Negotiations Bulletin reported.
By the end of the first week, it was clear that the finance deadlock would have to go into informal ministerial consultations for any consensus to emerge.
At a press conference on 28 October, Christopher O’Sullivan, Ireland’s nature minister and representing the EU delegation, told Carbon Brief:
“Our position isn’t that we want to pull back in terms of contributing…but it’s been 20 years since that list was added to, times have changed and there are new realities. We just simply want those new realities reflected. I don’t fully understand why there’s so much opposition to that.”
The EU chose not to comment on which countries it would like to see on that list.
Lim Li Ching from the Third World Network, meanwhile, called the push for others to “assume the obligations” of developed countries “sheer hypocrisy”, adding that any country could make a voluntary contribution. She told Carbon Brief:
“At a forum like the CBD, this linking of income status with finance does not take into account where historical and current responsibilities lie. If you want to generate more funding for biodiversity, let’s look at sovereign debt burdens and rules, which are inequitable for developing countries. But if you can fund wars, and provide resources for your defence industry, then you know where the priorities are.”
On 29 October – at a plenary meant to adopt final texts for the most contentious subjects – Norway’s Gaute Hanssen announced that resource-mobilisation discussions would go into a smaller “friends of the chair” meeting.
Facilitated by Carolina Caceres from Canada and Imèn Meliane from Tunisia, the meeting would discuss the most contentious elements of a draft decision that had swelled to 112 brackets, denoting areas of disagreement on specific details in the text.
While the meeting was open to all, countries that were called to be present included Brazil, Canada, Chile, China, the EU, Fiji, Norway, Russia, Switzerland, Saudi Arabia, South Africa and the UK.
At the same time, a “non-paper” text by finance and environment ministers laid out countries’ red lines and compromises.
At the end of COP17, countries welcomed a final compromise text, with Kenya thanking the “strong women” co-chairs who strove to strike a “delicate” balance.
China, Saudi Arabia, Switzerland and Fiji cautioned against any further interventions, with Brazil warning: “If we open this text, we will never close it again.”
While the final decision “recognises” that “contributions from more parties would improve the mobilisation” of biodiversity finance, it steered away from issuing criteria to expand the list of donor countries.
The text makes it clear that no additions to the list would be made without inviting and confidentially consulting with interested countries, to secure their explicit consent.
Instead, the CBD secretariat “invites” countries keen to be on the list and “assume the obligations” of developed countries to “signal interest” before COP18 and at every alternate COP thereafter.
At the same time, developing countries can contribute to meeting the GBF and biodiversity convention’s goals on a “voluntary basis”, with contributions not implying inclusion on the list.
A negotiator for China told Carbon Brief at the closing plenary:
“We welcome this balanced document. It was a very long discussion that has gone [on] since [2022 nature talks in] Nairobi. But actually this time, there were a lot of sensitive issues, [there were] a lot of critical things we didn’t open in the contact groups; it mainly went to the high-level discussion.”
The decision also establishes a financial mechanism for nature funding after 2030 under the governance of the COP, a key ask from developing countries.
However, it defers decisions on what form this mechanism would take – whether this would be a new fund or based on existing arrangements – until COP18.