Lima: Expert Consultation on Global Climate Governance at the Intersection of Human Security & Justice

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On December 9, 2014 in Lima, Peru, The Hague Institute for Global Justice and the Stimson Center convened an informal expert consultation with country delegates, civil society representatives, policy analysts and other climate governance stakeholders on Global Climate Governance at the Intersection of Human Security & Justice. The consultation took the form of a side event to the 20th United Nations Framework Convention on Climate Change Conference of Parties (COP20), and anyone interested in continuing the conversation through an E-Consultation, planned for January 12 through February 13, 2015, is kindly requested to register by clicking here.

The Lima expert consultation was chaired by Commissioner Mrs. Erna Witoelar, founder of the Indonesian Environmental Forum and former Minister of Human Settlements and Regional Development of Indonesia. The event welcomed some thirty experts from fourteen countries in the Global South and North to discuss challenges facing the current global governance framework for climate issues. The consultation followed on discussions initiated during a policy roundtable on Climate Governance, Adaption and Technological Responses held on November 6, 2014 at The Hague Institute.

In conjunction with the expert consultation, two of the Commission’s background paper authors, Mrs. Manuella Appiah and Mr. David Michel, participated in a series of related events at COP20 and conducted on-site interviews with experts and stakeholders about their views on the preliminary findings and recommendations of the Commission’s climate governance-related background research. Key elements of their earlier research is summarized here.

The following summary outlines major outcomes of the expert consultation and the on-site research conducted in Lima.

 

Welcome remarks at the expert consultation

The consultation commenced with an introduction by Mr. David Michel (The Stimson Center, Washington D.C., United States) who stressed the need for all climate governance stakeholders to remember that climate governance is a collective responsibility as we all share the Earth and its resources. An effective environmental framework which aims at combating climate change must address the drivers of climate change, the impact, and the governance model; all three elements are interwoven. The inability of the international community to deliver an effective and balanced framework calls for a new architectural model for climate governance. This architecture needs to include scaling up from local to regional and global levels and learning from the experiences gained at these different levels for international decision making processes.

In her keynote, Commissioner Erna Witoelar emphasized the importance of ensuring that local communities around the world benefit from international climate negotiations. Reflecting on the multiple dimensions of human security, with specific reference to the recent typhoon Hagupit in the Philippines, Commissioner Witoelar stressed the need for global climate policies to comprehensively address human suffering and vulnerability. According to Mrs. Witoelar, human security is closely linked to the right to sustainable development, which encompasses economic development and social wellbeing while protecting the environment and adapting to climate change. However, these elements are often viewed to be in tension with each other and thus far international climate debates struggle to reconcile them. She further stressed the need to build on local, national, and regional experiences, raising them to the global level to demonstrate that all these elements can go hand in hand. Equitable policies promote local ownership, legitimacy, and also effectiveness; because policies perceived to be fair promote popular long-term commitment to these programs. Commissioner Witoelar concluded her remarks with a call for a ‘new agenda for better climate governance’, an agenda which must be rooted in and harmonize the principles of equity, solidarity and efficiency.

During the discussions that followed, the participants were presented with questions which are at the core of the four ‘Climate & People’ background papers under preparation for the Commission. The cross-cutting themes which underpin the questions were the principles of equity, efficiency, justice and solidarity. These themes were deemed to be mutually constituting, mutually defining, and mutually supportive. The interactions between economic development and environmental protection, between ensuring security and justice, and between efficiency and equity, conceived of as mutually reinforcing,  not competing design principles, were introduced as seeds for the discussions to follow.

 

Expert Response to thematic issues

Reforming international climate negotiations, security and justice

Initiating the discussions, Ms. Alexandra Cugler Dyrssen (RAP Red Ambiental Peruana Network Mission) called for the evaluation of the openness of the UNFCCC Conference of Parties and the actual participation of different stakeholders in the process. In this regard, Mr. Deniz Taenzler (adelphi, Germany) called for the need to look at the power imbalance at the negotiating table. The actual ability and capability of fragile states to effectively partake in the discussions deserves more attention. For fragile countries strong regional and sectoral cooperation may be a more adequate forum for addressing their needs than the UNFCCC. Dr. Marie-Claire Cordonier Segger (International Development Law Organization, Netherlands) emphasized that  the UNFCCC provides a heightened level of awareness and engagement for the issue within the highest levels of government. It is, however, neither a mechanism that can easily be replaced by other processes, nor is it the case that the UNFCCC and the other platforms – scientific, economic, and regional cooperation processes – which deal with climate change are mutually exclusive.

The UNFCCC is in her view not meant to be the only platform where climate solutions are to be found or generated. One could even say that the generation of solutions is a by-product of the UNFCCC process. It is a forum for highlighting the differences between parties and facilitating dialogue. Consequently, even though the UNFCCC process is yet to develop the needed solution for combating climate change, an intergovernmental dialogue of this nature may have not been possible without it. Ms. Birgit Lode (Institute for Advanced Sustainability Studies, Germany) called for emulating the successful voluntary framework between the public and private sector which deals with short-lived pollutants and how this can be adapted  at the UNFCCC. Mr. Rei Tang (Stanley Foundation, United States) put forward the need to identify elements of common interests between major stakeholders in the climate debate and to build on these converging interests at the negotiating table in order to enhance efficiency of the outcome. New converging values could be built out of this globally to promote successful outcomes.

Additionally, he called upon the Commission to encourage stakeholder partnerships which could be used to increase political will within countries that need to strengthen domestic constituencies for action. Such partnerships could be fostered between regions, corporations, and local communities. Mr. Tang also emphasized the need to look at multidisciplinary policy programs and how different ministries and departments in municipalities can take up environmental issues. It is crucial to directly involve finance, justice and defense ministries in climate deliberations from the outset.

Dr. Georgios Kostakos (Foundation for Global Governance and Sustainability, Belgium) referred to the history of the UNFCCC, mentioning how developed countries initially did not want a formal voting process to be included in the UNFCCC’s procedures. This is because they feared majority-voting would mean that developing countries could press the developed countries into an agreement they did not wish to be a part of. Currently, however, developed countries are the first to complain about the difficulty in reaching decisions by consensus at the UNFCCC platform. Strengthening the decision-making mechanism of the UNFCCC is essential. In reference to the deadlock that often occurs in climate negotiations, Dr. Kostakos referred to the need for a system of liability to be part of the UNFCCC. This mechanism need not apply individual country liability but could take the form of a “truth and reconciliation commission” to talk about the rift (‘apartheid’) that exists between developed/industrialized countries and developing countries. The truth and reconciliation commission could perhaps help countries to settle their difference and to devise effective means of combating climate change whilst allowing developing countries to pursue the better standard of living to which they are entitled. This might make the UNFCCC a more effective platform than it currently is. Dr. Kostakos spoke inter alia about the importance of not discrediting or undermining existing institutions –like the UNFCCC– that work as well as they are allowed to by their Member States and are not mandated to act beyond providing a global framework for action, when there is actually no credible alternative. He called for further details and consistent actions to take place in the context of other global, regional, national, local, public, private, not-for-profit, etc. establishments.

 

Engaging other institutions in the climate debate

Ms. Martha Molfetas (E3G, Third Generational Environmentalism and the Climate Briefing Service, United Kingdom) reflected on the fact that climate change impacts every aspect of global governance, development, and finance; and requires a broad scope that incorporates a multifaceted approach. Addressing dangerous climate change cannot be solely reliant on UNFCCC processes, but must utilize other mechanisms of global governance in concert to address the worst consequences and causes of dangerous climate change. Ms. Molfetas mentioned the need to not solely rely on the UNFCCC for climate governance, but to have a nuanced approach to environmental governance linking it to stakeholders like the US Department of Defense and NATO. These institutions have highlighted climate change as a national security issue, creating new policy audiences. Nevertheless, policy makers should be wary of “securitizing” climate decision-making. “Environmental security” is a valuable framework, but it engages a distinct epistemic community and solution set.

Mr. David Estrin (Presidential Task Force on Climate Change and Human Rights, International Bar Association, United Kingdom) referred to the need for the UN Human Rights Council to be formally part of addressing climate change governance. He also mentioned the importance of developing a ‘Ruggie plus’ framework, alluding to the UN Principles on Business and Human Rights, which specifically addresses the role of companies in combating climate change. The link between climate change justice and human rights has been analyzed in a recent report of the International Bar Association. Another participant referred to the need to draft model domestic statutes with explicit remedies for victims of climate change.

Dr. Curtis Doebbler (International-Lawyers.org) called for introducing new elements in the climate negotiations, including human rights and health. The World Health Organization recently held a ministerial conference on health and climate change, which brought together climate and sustainable development professionals to discuss means of empowering stakeholders in supporting health-promoting climate change policies. Many states, however, see climate change as a scientific and technical issue and hence adding these elements to a treaty would emphasize the human security dynamics of climate change. The most effective international forum on climate change today is in his view the World Meteorological Organization (WMO). He suggested that the reason for the WMO’s effectiveness could be  that politics  play little to no role in its decision making and that it uses science as the main basis for its deliberations. This practice could supply a template for the UNFCCC process.

Ms. Gabrielle Kissinger (Lexeme Consulting) has researched the National Action Plans for Climate Change of twelve different countries. One peculiar aspect of these plans, according to her, is the feeble connection they have with the private sector, for instance in the agricultural domain. She considers this is a huge gap as the private sector is crucial for finance and capacity to address adaptation and mitigation challenges. By aligning corporate and private sector actions with government climate change plans the former could be directly engaged in the implementation of the national action plans, thereby bridging the gap between the two. Additionally, Ms. Kissinger mentioned the need to include adaptation risks in international agreements, particularly related to agriculture and food security, which has not been adequately discussed in climate debates. In this regard, it is important to evaluate if and how the green climate mechanism will actually deliver. Further, in her opinion, sectoral silos – with regard to agriculture, forests, water etc. – in the climate discussions have to be broken down.

Mr. Denis Taenzler (adelphi, Germany) mentioned the need for international efforts on humanitarian aid and peacebuilding to be explicitly linked to climate discussions.

 

Means of sanctioning non-compliance to the future Paris Agreement on climate change

In response to a statement on the means of sanctioning actions which are detrimental for the environment and promoting compliance with a future global climate change agreement, Dr. Marie-Claire Cordonier Segger (International Development Law Organization, Netherlands) called for adapting the terminology used to refer to environmental crimes. Using a phrase such as ‘crimes against future generations,’ is preferable to employing a vocabulary of ‘ecocide’, which could be a lightning rod for contestation.

Dr. Curtis Doebbler (International-Lawyers.org) called for introducing new elements in the climate negotiations, including human rights and health. The World Health Organization recently held a ministerial conference on health and climate change, which brought together climate and sustainable development professionals to discuss means of empowering stakeholders in supporting health-promoting climate change policies. Many states, however, see climate change as a scientific and technical issue and hence adding these elements to a treaty would emphasize the human security dynamics of climate change. The most effective international forum on climate change today is in his view the World Meteorological Organization (WMO). He suggested that the reason for the WMO’s effectiveness could be  that politics  play little to no role in its decision making and that it uses science as the main basis for its deliberations. This practice could supply a template for the UNFCCC process.

Prof. Dr. Markus Gehring (Centre for European Legal Studies, Cambridge University, United Kingdom) called for the adoption of a peer review mechanism for the enforcement of climate obligations comparable to the system within the UN Human Rights Council. He also called for exploring the possibility in the future treaty to allow for the cancellation of the membership of countries which systematically fail to live up to their obligations as set forth in the agreement. Reflecting on the issue of compliance, Mr. Linehan Cornor (Presidential Task Force on Climate Change and Human Rights, International Bar Association, United Kingdom) referred to the fact that regional level emissions reduction frameworks have proven to be more effective than at the international level over the years due to their compliance mechanisms. An example is the EU sanctioning mechanism, which is linked to a tight emissions trajectory for member states. The EU mechanism could be emulated at the global level.

Dr. Curtis Doebbler (International-Lawyers.org) referred to the fact that the provisions on compliance and sanctions of the current UNFCCC negotiating text are the weakest part of the draft agreement..  Under international law causality is not very relevant to State responsibility for legal obligations such as those established in the UNFCCC. Instead it is merely necessary to find an act that is attributable to a State. If that act is not in compliance with an international obligation that State is responsible for an international wrongful act and its attendant consequences.” Mr. David Estrin (Presidential Task Force on Climate Change and Human Rights, International Bar Association, United Kingdom) mentioned the need for a tribunal where individuals could request an advisory opinion on their rights in light of the impact of climate change. It is crucial that an adjudicating body on environmental values be well equipped with the cutting-edge expertise to allow it to take well-substantiated decisions.

 

Trade, intellectual property rights and climate change

Prof. Dr. Markus Gehring (Center for European Legal Studies, Cambridge University, United Kingdom) mentioned that renegotiating the WTO agreement is not needed to align climate governance with trade. The Dispute Settlement Body of the WTO has administered several decisions in the past which allow countries to restrict trade in an effort to combat climate change. Examples of past decisions of the WTO which confirm the WTO members’ autonomy to determine their own environmental objectives include US — GasolineBrazil — Retreaded Tyres and US — Shrimp-Turtle. On the issue of restricting intellectual property rights to promote green technology transfer, according to Prof. Gehring, even though technology transfer is very important in climate governance, this should be properly regulated and should not include depriving (small) enterprises of their main source of revenue. He considers it peculiar that calls to promote the transfer of green technologies multiply even as technologies which actively contribute to pollution and environmental degradation (for example oil drilling equipment) remain fiercely protected. Green technology transfer is essential, but should be properly financed.

Overall conclusion Expert Consultation

A change in the global societal mindset is needed in order to establish a comprehensive low-carbon society. The enabling environment for this societal change must be cultivated. An enabling environment is available when physical, financial, and institutional barriers to using renewable energy resources have been removed. Transitioning to a low carbon lifestyle in small island developing states, for example, kills two birds with one stone: it is an adaption as well as a mitigation mechanism. There is an ongoing transformational change in the private sector with regard to climate finance. Concrete steps for promoting climate governance include:

  • Policy makers could use the mechanisms of domestic law, rather than a compliance mechanism incorporated in international treaties, to enforce adherence to collective climate obligations. Domestic laws could be employed to regulate short-lived Green House Gases (GHG) pollutants. Policy makers should draft a “model statute” for domestic law on climate remedies.
  • The UN should empower a Special Rapporteur on climate change.
  • Policy makers should be wary of creating new international institutions for which there is currently little appetite.
  • The current climate regime has weak compliance and enforcement mechanisms. International law already recognizes the principle of “attribution”, by which a state may be held liable if it contributes to a problem (even if it is not the solely responsible contributor) in contravention of its international obligations.
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