Paris Agreement De-Legitimate Even Before It Is Concluded

“It is already a failure,” exclaimed an exhausted observer to a State delegate nodding her head in disappointment after a Sunday late night session ended in the sprawling Le Bourget airport complex just north of Paris. The State delegate and the observer are both attending this year’s annual global climate change summit known as COP21. The 196 State Parties to the United Nations Framework Convention on Climate Change (UNFCCC) are meeting for two weeks with the intention of concluding an agreement to take action to prevent the dangerous accumulation of greenhouse gases in the atmosphere. The agreement may be the most important treaty that this generation enters into as concerns safeguarding our planet for future generations. Its importance to everyone is evidenced by the extensive media coverage it has received and the 170 Heads of States and many times more ministers who have converged on this northern suburb of Paris, France. But despite the importance of the whole process, it has already been declared a failure by some observers and some State delegates. Why? How could this happen?

The answer lies in phrases that have been constantly bantered around since the October 2015 preparatory meeting in Bonn, Germany, at which the co-chairs of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) stated the process will be open and transparent. As if to cast a cloud over the subsequent work the co-chairs then speedily proceeded to close the primary negotiating sessions to observers. Although the co-chairs appeared to reverse their decision at the very end of the October ADP—after there were no more negotiations to attend in that session—they promptly went back on their decision at the start of the COP21.

On Saturday 28 November 2015, the co-chairs when asked about observer participation during a meeting with a civil society represented at UNESCO Headquarters were pre-COP21 meetings were taking place, stated that observers would be welcome. The Algerian co-chair, Mr. Mr. Ahmed Djoghlaf, in the presence of his colleague American Mr. Daniel Reifsnyder, stated that “no concerns have been expressed to us by States, so all meetings will be open and transparent, I assure you.” Nevertheless, when COP21 started, the first week as a resumed ADP session, the meetings were officially closed to observers. As no State objected and the 134 member G77+ China had prominently urged the ADP Chairs and later the French COP21 President to allow observers into the room, a handful of observers attended late night negotiating session informally and were never asked to leave the room. On Saturday, 5 December, at the end of the first week, this bad situation changed even for the worse. Guards, in some cases, armed guards, were posted on the doors of meeting rooms were formal negotiating sessions were taking place with orders to prevent observers from observing. Meetings were now closed-door meetings by threat of use of force.

Ironically, on rare occasions where overflow rooms were setup, State Party delegates were banned in what appeared to be an effort to ensure complete segregation. Observers could not observe the negotiations, now they could no longer even interact with State delegates if they wanted to watch the main sessions (not the detailed negotiations). Oddly, instead of webcasting the meetings, it was agreed that they should be broadcast only on screens within the huge airport complex. Where any given meeting was being broadcast was always a guessing game. This limited broadcasting also only applied to main contact groups and the spin-off groups or working groups, where most of the text of the new agreement is being decided.

In the second week, when four then five working groups were established, observers were completely eliminated from the negotiations and only given limited access to general report back sessions. These sessions usually charted the progress or lack thereof being made by States with such general language as to render them almost meaningless to observers with even a cursory knowledge of the UNFCCC. Moreover, the promised regular textual updates have not appeared as COP21 reaches the half way point for text to be prepared.

Some of the most important substantive issues are now being decided behind closed doors. These include issues such as whether or not adequate action will be taken to prevent the death of an estimated 155,000,000 people by 2100 from the adverse effects of climate change, whether developed States will be held responsible for failing to live up to the principles and commitments they already agreed to in the UNFCCC in 1992, whether developed States will be able to excluded their responsibility for almost two hundred years of over exploitation of the planet’s atmosphere, or whether a commitment will be made to provide at least the US$ 100 billion developed States agreed to provide for climate finance by 2020.

Another issue that is of crucial importance to small island States that are already facing severe damage that cannot be avoided is known as loss and damage. The State Parties decided to take up this issue at COP18 held in Warsaw, Poland, when they created the Warsaw Mechanism on loss and damage. The mechanism is intended to provide States facing unavoidable losses and damage with support for dealing with thee serious matters. Leaked negotiating texts published by Business Standard show that the United States and the European Union are trying to block Loss and Damage from being taken up in the Paris agreement. These States are insisting that their responsibility be limited or even extinguished. This demand in essence wipes out with the stroke of a pen rights accrued—and repeatedly asserted—by island States and other developing States.

The effort to exclude observers have come under criticism from human rights quarters. United Nations’ independent expert on the Promotion of a Democratic and Equitable International Order, Mr. Alfred de Zayas, stated that, “The meaningful participation of civil society in the international climate negotiations is essential to achieving a just and sustainable international order.” He also issued a press release Monday expressing “his concern at reports coming to him from several civil society actors … that indicate that they are being blocked from attending crucial negotiating sessions” at COP21. The UN expert goes on to point out that articles 19, providing for freedom of expression, and 25, providing for participation rights, of the International Covenant on Civil and Political Rights, were being interfered with.

Perhaps even more surprisingly, it appeared that European Union States were among those supporting the exclusion of observers. Unlike, the G77 and Like-Minded Developing Countries, the European Union did not defend the participation rights of observers. The European Unions action runs in in sharp contradiction with the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

Similarly the silence of the American United Nations Special Rapporteur on human rights and environment, who is himself attending COP21, and who was repeatedly asked to intervene on behalf of observers, appeared to be in striking contradiction with his recent report that focused on best practices in relation to popular participation in decision-making.

The secrecy of the negotiations at COP21, like climate change itself, was of man-made origins. It is based on decisions made by the COP21 President, French Foreign Minister Laurent Fabius, and the Executive-Secretary of the Secretariat of the United Nations Framework Convention on Climate Change, Ms Christiana Figueres. Most disturbingly these two individuals have been constantly touting the openness and transparency of the process. The claims now appear at least misleading and perhaps “blatant lies” as they were called by one observer who asked for his name to be withheld out of fear that the UNFCCC Secretariat might retaliate against him.

Moreover, the exclusion of observers handicaps small delegations from developing countries that often rely on observers for advice and to report on multiple discussion going on at once. This practice of exclusion has also spilled over to the treatment of developing countries. In one instance, a leading developing country negotiator was not told of negotiations taking place on an issue he followed and on which he held strong views. This was an apparent attempt to negate his views.

The lack of openness and transparency also revives memories of about the fiascos at the Copenhagen and Cancun COPs (15 and 16 in December 2009 and 2010), during which efforts were made to reach agreements secretly with a limited number of countries or to exclude certain States because of their views. For example, in Cancun, the Bolivian Ambassador Pablo Salon was told that his attendance was urgently required at a room far from the plenary hall where the State Parties were about to meet to adopt the outcome document. Instead, no meeting was taking place away from the main hall and the host Mexicans tried to quickly commence the meeting in the main hall without the Bolivian head of his delegation. Only fast thinking by his colleague, who was in the room, prevented the meeting from going ahead and adopting an outcome to which Bolivia ultimately objected.

At the October ADP meeting, the South African Chair of the G77+China expressed her concern at the co-chairs effort to produce a non-paper for consideration by States that removed mainly text proposed by developing countries without duly consulting them. Ambassador Joyce Mxakato-Diseko, representing the G77 where more than 85% of the world’s population live, compared this treatment to apartheid when the views of South Africa’s black majority were often ignored or denied altogether.

At COP21 it was observers whose participation was denied. Observers have been treated like second class citizens unable to exercise the important function of ‘observing’ that the name given to them by the UNFCCC implies. The situation created by banning observers harkens back to the days and ways of apartheid where a set of elites controlled the rest of the people. Such a system did produce a legitimate form of government then and it highly unlikely that it can produce a legitimate climate agreement now. Instead the lack of transparency suggests that this generation of political leaders and especially the COP21 Presidency, are failing future generations in much the same way that the apartheid leaders of South Africa failed their people. As was the case under years of colonialization of others, France has again shown a tendency to decisions in secret based on threats, enticements and compromises that are removed from public scrutiny. No matter the outcome of COP21, this legacy may haunt the French and all of us anywhere in the world for generations to come.

Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.