[By Prof. Bharat H. Desai]

This symbolic message from the UNSG came just five days ahead of COP28, the 28^th meeting of the Conference of Parties to the 1992 UN Framework Convention on Climate Change (UNFCCC). Dubai COP28 (30 November - 12 December 2023), is yet another annual gathering of state parties in the long line up of COP meetings that have so far mysteriously been unable to address the “climate change conundrum” for over  31 years (1992-2023), as this author has described [Preface: EPL 52 (5-6) 2022].

The UNSG was on a three-day official visit to Antarctica. He was accompanied by the Chilean President Gabriel Boric on a visit to Chile’s Eduardo Frei Air Force Base on King George Island. “We are witnessing an acceleration that is absolutely devastating,” Guterres said, reflecting on the unprecedented rate of ice melt in Antarctica.

UNFCCC COP28 (Dubai): Unrealistic Expectations

The air was heavy in Dubai as the COP28 commenced work on 30 November, due to unrealistically high expectations and the increasingly bleak prospects of realizing the 1.5°C  GHG emission target. The vital question remains of what the UNFCCC parties will decide as regards the phase-out of fossil fuel in the face of a climate emergency that has emerged as one of the main drivers of the planetary crisis. This author has extensively examined the gravity of this planetary-level crisis, together with its implications for humankind and the planet, and has explored options for invoking the instrumentalities of International Law to make them work. It is widely accepted that, in order to limit global warming to 1.5°C, GHG emissions must peak before 2025 at the latest and decline by 43% by 2030. In the absence of a major trigger event and a planetary miracle, at the current rate and in view of the dithering exhibited by the state parties, all indicators show that this goal is unrealistic and unattainable. This raises the frightening prospect of a literally burning planet. It has led to the conscientious UNSG running from pillar to post and speaking up through a series of whistle-blowing speeches, ranging from the Stockholm+50 Conference (02 June 2022) to the cry for help from Syangbpoche (the Everest region of Nepal) in the Himalayas (30 October 2023) to the latest visit to Antarctica (25 November 2023).   

Making International-Law Instruments Work

With 198 parties, the UNFCCC was initially designed as a ‘framework convention’. It became one of the first global instruments to designate climate change as a common concern of humankind. The COP of the multilateral environmental agreements provides a platform at a specific periodicity (one, two or three years) to review the work of the convention in question. The UN provides secretariat support to the UNFCCC, hence the usage of the prefix ‘United Nations’. It is called a framework convention because it was adopted as a skeleton framework on 9 May 1992, It then had to be “fleshed out with the required elements in order for it to work to realize the ultimate objective, (Articl2 2), of the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. It led to the adoption of the “related legal instruments”: the 1997 Kyoto Protocol and the 2015 Paris Agreement. The global climate change regime now consists of these three legal instruments.

On 20 March 2023, the IPCC AR6 Synthesis Report explicitly underscored that “Average annual GHG emissions during 2010–2019 were higher than in any previous decade on record” and  observed: “Global net anthropogenic GHG emissions have been estimated to be 59 ± 6.6 GtCO2-eq9 in 2019, about 12% (6.5 GtCO2-eq) higher than in 2010 and 54% (21 GtCO2-eq) higher than in 1990, with the largest share and growth in gross GHG emissions occurring in CO2 from fossil-fuel combustion and industrial processes (CO2-FFI)”. In view of this, the near-future regulatory goal has been pegged at 1.5°C global warming by 2050.  The UNSG, in his address at the Stockholm+50 Conference (2 June 2022) issued a clarion call to address climate change as one of the “triple planetary crises”. The UNEP’s 2022 Emissions Gap Report (27 October 2022) reinforced global concerns that “the international community is falling far short of the Paris goals, with no credible pathway to 1.5°C in place. Only an urgent system-wide transformation can avoid climate disaster”. This prognosis and the subsequent projections have set the stage for exploring possible options for averting the climate-change catastrophe. What lies in store at the Dubai COP28 (30 Nov -12 Dec 2023) and beyond?

Whereas COP27 (Sharm El-Shaik; 6-21 November 2022) was known for the adoption of the decision on loss and damage funding for vulnerable countries hit hard by climate disasters, Dubai’s COP28 is likely to conclude the first global climate stock take mandated vide Decision 19/CMA.1 (2018). This will be a comprehensive assessment of the progress in climate-change action since the adoption of the 2015 Paris Agreement. The Dubai COP28 will take place on the heels of the 2023 UNEP Emissions Gap Report (20 November 2023) which issued the warning that “the world is heading for a temperature rise far above the Paris Agreement goals unless countries deliver more than they have promised”. The UNEP report has predicted that by 2030, the GHG emissions must “fall by 28% for the Paris Agreement 2°C pathway and 42% for the 1.5°C pathway”. Thus, after talking the talk, the assembled states parties at the Dubai COP28 will certainly have their work cut out to walk the walk.

The Dilution: From Differentiation to NDCs

Over the years, the primary legal bulwark for addressing the issues of equity and climate justice in the global climate-change discourse has been the criteria of differentiation (CBDR&RC; Preambular para 7 and Principle 3.1 of UNFCCC). It was a negotiating masterstroke amid the rush to adopt the UNFCCC before the Rio Earth Summit (UNCED 1992). It emanated from razor-sharp clarity and strategizing by some ace negotiators from the developing countries, however, efforts were swiftly underway to blunt the edges and dilute the core of this fundamental criterion of differentiation to establish state responsibility for harm (adverse impacts) caused to the global atmosphere (“the largest share of historical and current global emissions of greenhouse gases has originated in developed countries”; Preambular para 3), Many scholars, bureaucrats and civil-society groups from the developing countries were co-opted in this process. As a member of the official Indian delegation, this author clearly observed these subtle efforts at various COP meetings, in other intergovernmental processes, and on the sidelines. This resulted in the 1997 Kyoto Protocol being given a decent burial once it became clear that none of the Annex - I countries were prepared to comply with their legal obligations, and brought in a new voluntary criterion, as set out in the 2015 Paris Agreement, of “nationally determined contributions” requiring “all parties to undertake and communicate ambitious efforts” (Article 3, Paris Agreement). The direct effect of these NDCs, was to knock-out the principle of equity that required only equals to be treated equally (since developed and developing countries are not equivalent in their contribution to the atmospheric harm caused). As a corollary, the UNFCCC’s basic premise that “per capita emissions in developing countries are still relatively low and that the share of global emissions originating in developing countries will grow to meet their social and development needs” (Preambular para 4) was also sidelined. Notwithstanding the fact that responsibility for global climate change is something we all have in common, it was to be given effect in a differentiated, stratified, and staggered way. As this author has contended, the leadership principle that required that the “developed countries parties should take the lead” (Article 3.1) was also crucified as a condition precedent (Article 4.7: “extent to which developing country parties will effectively implement their commitments under the convention will depend on the effective implementation by developed country parties of their commitments under the convention”) before the developing countries were called upon to reduce their part of the GHG emissions. As a result, the stage of working out the criteria and elements for determining whether any such lead was in fact taken by the developed-country parties, has never been reached.      

The Road Ahead

In view of the above legal stratagems and the crafting of tools and techniques to stabilize GHG emissions enshrined in the instruments on the global climate chessboard, the regulatory approach appears to be floundering somewhat. A sort of ‘fatigue effect’ has set in; a proliferation of national climate-change litigations and an exasperated effort by the UNGA (vide resolution 77/276 of 29 March 2023) to seek an advisory opinion of the International Court of Justice (ICJ). The ICJ, if it accepts jurisdiction and agrees to provide an opinion to the UNGA, will be required to provide an answer to two specific questions: (i) what are the legal obligations of states under international law for protection of the climate system from emissions of GHG and (ii) what are the legal consequences for states under these obligations? The court has fixed 22 January 2024 as the last date for the filing of written statements. What can the principal legal organ of the UN do to nudge the states and the UNGA into resolving the global climate change conundrum?

Since it adopted the famous resolution 43/53 of 8 December 1988, the UNGA has been the principal conductor of the grand climate-change orchestra. It has invoked the normativity of ‘common concern’ and triggered the process for the UNFCCC negotiations (1990-1992). After a full three decades, it is therefore high time for the UNGA to rise to the occasion and elevate common concern to the higher pedestal of planetary concern to provide future direction to the 1992 UNFCCC and to the 2015 Paris Agreement processes. Some breakthrough took place on the opening day (30 November 2023) of the COP28 resulting in initial funding assurance of US $ 475 million for “loss and damage” fund (agreed at COP27) as well as the “UAE Declaration on a New Global Climate Finance Framework”. Still, there have been some concerns of the Global South as regards, “urgency of making the means of implementation, particularly climate finance, available to the developing countries to achieve their climate ambitions and implement their NDCs”.   

This author has put in place a series of successive scholarly processes, including the 2022 EPL Special Issue [EPL 53 (5-6) 2022], the 2023 IOS Press book on Regulating Global Climate Change, a special EPL landing page for Dubai COP28 and moderation of the forthcoming global webinar on Averting the Global Climate Catastrophe (10 December 2023). Cumulatively, these aim to sow some ideational seeds to try to find answers to the global climate problematique. Premised upon the principle of state responsibility and differentiation, it will require an earnest walking of the walk by those states responsible for the climate-change problem in the first place to comply with all legal obligations, consequences and requirements. Ensuring that the global climate-change regulatory architecture works remains the biggest challenge to securing our planetary future.