The UNFCCC Regime at a Crossroads: Can You Trust Anyone Over 30? +

2.1 Key Design Choices & Implications

The basic architecture of the UNFCCC and its Kyoto Protocol was, of course, far from inevitable. It was a product of its time, including in particular the regimes that preceded it, such as the Ozone regime, and the views of the parties that dominated the negotiations. 7 Among the key design choices made were the focus on reducing emissions of six greenhouse gases GHG, the focus on developed country emissions, the attribution of emissions based on where they took place rather than based on where the benefits are realized, the setting of national emission reduction targets based on total emissions relative to the 1990 baseline, the focus on national actors rather than subnational and private actors, and the focus on emission reductions rather than on the best ways to achieve them.

The focus on the six GHGs has generally stood the test of time. However, the choice of the 100-year average in translating methane emissions into CO2 equivalent emissions has not. As pointed out increasingly over the past decade, methane emissions have a much more significant impact on the climate in the short term, meaning that a 100-year average approach significantly underestimates its short-term impact on the climate. This was not a problem in 1992, when human induced climate change was a prediction rather than the crisis (see article by Bharat H Desai in this voulme: “Regulating Global Climate Change: From Common Concern to Planetary Concern”) that it has since become. In this growing crisis, a regime that prioritizes the elimination of methane emissions more would be more likely to buy the global community some precious time to eliminate other sources of emissions. 8

The focus on emissions in developed countries has been a principled part of the UN climate regime. Having said this, the failure of some developed countries to demonstrate leadership and meet their emission reduction commitments resulted in a negotiating dynamic that largely stalled progress in the negotiations for a decade, from 2005 to 2015. In the end, it has resulted in some fundamental changes to the regime, most notably a more bottom-up approach to self-determination of commitments along with an agreement that all countries need to do more to avert the worst consequences of the growing climate crisis.

What has not changed is the approach to attributing emissions. While the baseline has moved from 1990 to a base year to be determined by each individual party, the approach of setting targets against historical emissions and attributing emissions on a geographic basis in the form of national boundaries has not changed. One implication of this has been to create relatively unfair emission reduction expectations on countries with historically very low emissions. 9 The other implication of this is that as industrial production has shifted from developed to developing countries, the latter have inherited the responsibility to deal with these emissions, even for products that continue to be produced for the benefit of consumers in developed countries. This in turn has implications for efforts to internalize the cost of decarbonizing production and manufacturing. 10

The focus on national actors rather than subnational and private actors has gradually changed. Over the past decade, there have been efforts to encourage cities and companies to make decarbonization pledges. 11 This shift was most obvious in Paris, where a large number of non-state actor initiatives started to be officially recognized under the UNFCCC portal created for this purpose. At the same time, the importance of engaging non-state actors in the climate effort was formally recognized in the decision adopting the Paris Agreement. 12 At the other end of the spectrum, efforts to give voice to indigenous peoples both in the global negotiations and in domestic efforts to implement commitments have produced some results. Experience to date with the indigenous platform suggests much work remains to ensure indigenous peoples have an effective voice at the climate negotiations. 13

The focus on emission reductions has had lasting implications for the evolution of the regime. First, this focus has contributed to a broad range of approaches to achieving emission reductions based on perceived national interests. For example, some parties have focused on renewable energy, whereas others have focused on carbon capture and storage. The advantage of the diversity is that there is more likely to be a broad range of solutions available. The downside is that considerable effort has and continues to be put into emission reduction options that risk either not being effective at all in achieving decarbonization, or risk creating other sustainability problems in the process of reducing emissions. Efforts to create a mitigation hierarchy to focus on integrated solutions or to exclude some technologies that clearly do not offer integrated solutions have been largely unsuccessful, though some restrictions were imposed for the use of nuclear and sinks in the Kyoto Protocol’s rules for the Clean Development Mechanism. 14

A related consequence of the regime’s approach to emission reductions has been to allow offsets in various forms to play a prominent role. Emissions trading and other flexibility mechanisms under the Kyoto Protocol set the stage for a flexible approach to offsets, and the bottom-up nature of NDCs along with Article 6 of the Paris Agreement have continued this non-critical approach to offsetting. While credible offsetting can potentially play an important role in encouraging truly essential and hard to decarbonize sectors to contribute to the decarbonization effort while continuing to provide human needs, the liberal approach to offsetting has arguably created more problems than it has solved. Problems with double counting and the environmental integrity of credits are well documented. Less clear is the danger that the offsetting option is undermining motivation of sectors to actually move to full decarbonization. 15

Perhaps even more fundamentally, the focus on emission reductions, while understandable in 1992, ultimately served to sideline much needed progress on adaptation and loss and damage for much of the first 30 years of the regime. The absence of an adequate focus on adaptation and loss and damage, in turn, has created a responsibility vacuum that has contributed to the lack of motivation to take adequate steps to decarbonize in an effort to reduce the cost of adaptation and loss and damage. This responsibility vacuum refers to the problem that public and private actors continue to make choices about the level of effort they are willing to make to decarbonize human activities under their control without considering the adaptation and loss and damage costs of the emissions that continue to be permitted. 16 Many actors responsible for emissions continue to operate under the assumption that they are not liable for the harm the emissions will cause.

2.2 Alternative Approaches

Having briefly discussed some of the key design features of the UN climate regime, it is worth noting some of the alternative approaches that were not chosen. The purpose here is not to attempt to assess whether these alternatives would have resulted in more progress on climate change over the past 30 years, but rather to offer a highlight of the alternatives that have been available to negotiators over the past 30 years. 17

One alternative approach to allocating emissions to parties to the regime would have been a consumption-based allocation. Rather than allocate emissions based on where they take place, a consumption based allocate would allocate all emissions associated with a good or service where it is consumed. 18 An alternative to setting targets in terms of total emissions for each party would have been to use a per capita approach. Both the baseline and any targets for emission reduction could have been expressed in per capita terms. This would have had two obvious implications. First, it would have eliminated change in population as a factor in achieving emission reduction targets. Secondly, it would have reduced the risk of creating the impression that countries with high population, such as India and China, are the worst offenders in terms of emissions. 19

Another alternative would have been to give priority from the outset to resolving the issues of responsibility and liability for the adaptation cost and loss and damage associated with unmitigated climate change. 20 Yet another alternative approach to the UN climate regime would have been to focus on establishing a climate mitigation hierarchy and then promoting research, commercialization, adoption and fair access to climate mitigation solutions considered most promising to achieving integrated solutions to climate change, meaning solutions that ensure a transition to full decarbonization while maximizing other sustainability benefits. Among the solutions likely to be high in such a climate mitigation hierarchy would be the following:

iii.

Energy conservation

Efficient use of energy

Renewable energy

Reduced production and consumption of animal-based protein

Protecting natural carbon sinks

Phase out of fossil fuel subsidies

A concrete alternative proposal rejected in the development of the UN climate regime was a Brazilian proposal to allocate burdens and benefits under the regime based on historical responsibility for the GHG emissions already emitted. A variation to this proposal was the idea that equity should be the driving force behind the allocation of benefits and burdens under the regime. There were a broad range of perspectives on what factors should be considered under the umbrella of equity. In addition to past emissions, factors such as current emissions, social, technical and economic capacity, and access to resources important for decarbonization were proposed at various stages in the evolution of the regime. 21

2.3 Progress on Climate Change over the past 30 years

In this brief exploration of progress on the climate issue over the past 30 years, no attempt is made to formally attribute any particular area of progress to the existence of the UN climate regime or a specific element of the regime. Rather, the more modest objective is to consider how much progress the global community has made over this 30-year period, and how much remains to be done. The attribution of the progress made to the UN climate regime, if this is in fact possible, is left to others. 22

First, the good news. The science of climate change has progressed to a point where there is a scientific consensus that humans are the primary cause of climate change. By 1992, the only comprehensive assessment report prepared by the IPCC up to that point was unable to attribute changes in the climate system clearly to either natural variation or human influence. As importantly, scientists today have a much clearer understanding of the main threats climate change poses to human and ecological systems than they did in 1992. Important work remains in better understanding regional and local impacts, and the impacts on specific ecosystems such as the Amazon and oceans, but we have a clear scientific basis for action.

Beyond a much better understanding of the problem, there have been major technological developments that offer low or zero carbon solutions to some key sectors of human activities, such as electricity, personal transportation, and building design. The list of market ready solutions has grown, and many other solutions are at various stages of the development process. With a few exceptions, most sectors that are associated with significant GHG emissions have a credible path toward decarbonization from a technological perspective, and with appropriate investment and policies, full decarbonization is technically and economically within reach.

There have been significant developments in global efforts to address climate change, including through the evolution of UN climate regime. The regime has evolved from a focus on mitigation efforts in developed countries to one that includes adaptation, loss and damage, finance, access to technology, and capacity building, and one that has engaged all parties in the global decarbonization effort. Some developed countries have significantly reduced their emissions, and a few have a credible plan to reach net zero emissions and perhaps even full decarbonization by 2050. Many developing countries have made significant commitments to decarbonize.

Now the bad news. To keep global average temperature increases within 1.5 degrees, the IPCC has concluded that emissions need to be cut in half by 2030, and it seems increasingly clear that the global community needs to reach net zero by 2050. To make matters worse, these estimates are based on the expectation that negative emissions technologies will be able to be used at large scale to take GHG emission back out of the atmosphere once we reach net zero. Much steeper emission reductions are needed if these negative emissions technologies either turn out to be ineffective or to cause too much other harm to be acceptable at a large scale. For the time being, global emissions continue to rise rather than decline, and there is no confidence that we are close to reaching a global peak of emissions.

National emission reduction pledges in the form of NDCs filed under the Paris Agreement are far from adequate, and so are the actions to meet the commitments made. Support for developing countries is not at the scale needed to enable many developing countries to reach their decarbonization goals, let alone accelerate their efforts to help close the ambition gap.

Financial flows generally have not reached the levels needed. As a starting point, subsidies for fossil fuel exploration and use are still higher than investments in climate solutions. Financial flows to developing countries are also still inadequate, particularly when it comes to public funding. Funding for adaptation is lagging far behind the goal of equal support for mitigation and adaptation. Funding for loss and damage has so far been voluntary and miniscule when considered in light of the needs.

Many of the critical technologies are still early in the development process, with commercialization dependent on further research, financial investment, and a more friendly law and policy environment. At the same time, considerable investment appears to be made into questionable technologies such as carbon capture linked with the continued use of fossil fuels, and various geo-engineering technologies that have the potential to cause other planetary scale problems.

Beyond the overall inadequacy of current efforts, there is little evidence that the response to the growing climate crisis is proceeding in a fair and equitable manner. This is the case among states, as illustrated by the mitigation commitments made by national government, by the funding commitments made to assist developing countries, and by the lack of adequate progress on the much-needed support for adaptation and loss and damage. It is also the case within many states, where climate policy is still dominated by those who tend to benefit from the status quo, and the needs of those most vulnerable to the impacts of climate change are inadequately considered both with respect to commitments made and actions taken.

Finally, while it seems clear that technologies are only part of the solutions, it is far from clear whether the willingness to adjust our priorities and way of life to help with decarbonization has shifted significantly over the past 30 years, or how this shift will be achieved. Certainly, there have been jurisdictions that have been successful in shifting transportation from private to public and active transportation, and the COVID pandemic has temporarily reduced travel, but it is far from clear that behaviour change is on the radar of policy makers or the public in the fight against climate change.

3.1 Prospects for meeting the collective goals

At the risk of stating the obvious, the UN climate regime is at a critical stage. According to the IPCC’s 1.5 report and its Sixth Assessment Report, (April 2022) global emissions have to be reduced almost 50% by 2030 to have a realistic chance of meeting the collective goal articulated in the Paris Agreement. Arguably, it is already too late to meet the goal of the UNFCCC of avoiding dangerous human interference with the climate system, as evidenced by climate change induced extreme weather events and sea level rise experienced in many parts of the world already.

Having said this, momentum towards a global peak and subsequent sustained decline in emissions appears to be building, so the prospect of finally turning the corner appears more realistic since Paris than ever before. Most of the major emitters have made significant emission reduction commitments for 2030 that, if met, may keep the “well below 2 degrees” goal within reach. What remains to be done for the UN climate regime is to track the implementation and carry out two Global Stocktake exercises to motivate action to meet commitments made and encourage those in a position to do so to increase the ambition of their commitments and actions. The rest will be up to individual states, particularly all developed nations and China, India, South Africa, and a few other emerging economic powers.

The technologies needed to keep the goals of the Paris Agreement within reach are available, though many need huge investments to achieve full commercialization. From a global perspective, the economic, social, and environmental case for making the transition needed to cut emission in half by the end of the decade is clear. What remains is to ensure the political will to act, to ensure that the transition is not just adequate, but also just, and to implement effective laws, policies, and other governance tools needed to complete the decarbonization effort. 23

3.2 Prospects for finance, adaptation, loss & damage

While controversies over sources of funding, access and accounting continue, ultimately, it looks like the $100 billion finance commitment will finally be met in the next few years, even if with a focus on private sources that will likely continue to favour mitigation over adaptation and loss and damage. While this is an important achievement, the funding has not reached the scale needed to ensure a just transition, particularly in light of delays in many developed countries in leading the decarbonization effort domestically. In addition to the scale of funding needed, a fundamental challenge with finance is how to ensure it is allocated to the most important efforts. This requires trust between donors and host countries, and appropriate safeguards on both donor and host. Corruption in host countries is as problematic in this regard as are conditions imposed by donor countries that push funding in directions that are not in the interest of fair and equitable decarbonization in host countries. 24

The collective funding commitment from developed to developing nations has not been updated since 2009 in Copenhagen, but the Paris Agreement does anticipate a new finance target for 2025. To ensure developed countries have the resources to decarbonize their societies in step with what is required to meet the goals of the UN climate regime, the scale of mitigation funding needs to increase. More fundamentally, the scale of funding for adaptation and loss and damage is not in line with the harm climate change is already causing in many developing countries who have contributed little to causing the problem, let alone the harm expected if global temperature increases reach 1.5, 2, or 3 degrees. 25

The absence of any agreement on clear principles in the UN climate regime on the allocation of responsibility for adaptation and loss and damage, combined with the scale of the harm expected makes it difficult to foresee avenues for a negotiated solution to the huge funding gap on adaptation and loss and damage. More likely, negotiations will gradually contribute modestly to narrowing the gap, while domestic and international legal systems will be challenged to resolve liability issues as more and more climate liability-oriented litigation is initiated. 26

3.3 Prospects for a just transition

The UN climate change regime has evolved in a complex manner with respect to issues of equity and fairness. On the one hand, with respect to fairness among Parties, developed countries have been slow to live up to their commitment to lead, and the principle of CBDR has been weakened in the Paris Agreement, making a just outcome more challenging. On the other hand, the shift to a more bottom-up approach and the focus on financial flows from developed to developing countries has offered important, if incomplete, avenues for a just transition toward decarbonization. Of course, in spite of progress, the power dynamics that have dominated the evolution of the regime, while they have evolved, have not changed fundamentally, so it is not a surprise that the regime is mostly a reflection of existing power dynamics among Parties rather than a vehicle for a just distribution of impacts and benefits of the transition to a decarbonized, climate altered world community.

Ensuring a just transition within states is an issue that was largely ignored in the UN climate regime until recently. Reference to just transition first emerged in the course of negotiating the Paris Agreement, though ultimately that language is very general and relegated to the preamble. While there have been some efforts to bring non-state perspectives into the regime, such as through the creation of the indigenous platform and efforts to engage sub-national governments and the business community in climate action, the UN climate regime has done little to date to ensure parties’ efforts to implement their NDCs are equitable. Ultimately, this is not surprising given the state centered and bottom up approach of the Paris Agreement, but it does mean that ensuring the vulnerable are adequately protected through the transition to decarbonization is largely left to national and subnational governments along with human rights and social responsibility obligations on public and private actors outside the regime. 27

3.4 Prospects for integration

Of course, the planetary crisis [see Desai, EPL 52, 5-6 (2022)] that climate change represents does not exist in isolation. Rather, it is one of a number of global environmental challenges we face, along with biodiversity loss, various forms of pollution and resource depletion. Furthermore, these environmental challenges are closely inter-connected with each other and with a range of social and economic challenges. Yet, environmental laws generally, and international environmental laws more specifically, have tended to treat these issues as distinct and separate, and have sought to address them one at a time. We have numerous global treaties on environmental issues ranging from ozone layer protection, biodiversity and desertification to organic pollutants and waste. New ones are still being negotiated, including on biodiversity in the high seas and on plastics.

In other words, what is on trial is nothing less than humanity’s basic approach to environmental governance over the past 50 years. 28 The approach has been largely one to try to identify environmental problems associated with human activities either one activity at a time, or one problem at a time, and to seek to identify and manage the undesired impacts one at a time. Given the ever-increasing scale and range of human activities, and resulting range, scale and inter-connectedness of impacts on natural and social systems, it is high time to fundamentally rethink this approach.

An alternative would be to make an effort up front to identify the integrated solutions to the multiple challenges we face and to regulate and govern towards a shared vision of sustainability rather than continue to try to regulate environmental problems one issue at a time. For example, the global community under such an approach would seek to identify sustainable energy, sustainable transportation or sustainable agriculture that considers the broad range of implications of the systems involved before deciding on the best way to decarbonize and move the sector toward sustainability. Done well, this would ensure that the approach to decarbonizing each sector actually and collectively furthers the pursuit of the SDGs.

More broadly, rather than regulate the reduction of GHG emissions, while also trying to regulate air, water and soil pollution, loss of biodiversity, resource depletion, etc, the priority would be to directly and proactively regulate sustainable ways to meet the needs of a still growing global population, with a focus on and clear priority given to meeting basic needs such as food, water, shelter, education, health and wellbeing. This would essentially require a transition from governance approaches that direct private actors on what they cannot do to directing them on what they need to do to become constructive partners in addressing the multiple planetary crisis we find ourselves in. 29