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On Sunday morning, 13 December 2015, the 2015 Paris Climate Summit (COP21) finally wound to close as the last decisions were agreed. At almost 1 a.m. observers representing youth, women, labour unions, research centers, indigenous peoples, and business were asked their opinion. Most media had already left COP21. Cleaners were dismantling the massive structures that had been erected to house thousands of conference participants for two weeks plus two overrun days. The Conference of the Parties of the United Nations Framework Convention on Climate Change had finished their work, late as usual and with an usual outcome.
To his credit, COP21 President, former French Prime Minster and currently French Foreign Minister Laurent Fabius returned to the Hall in the closing minutes to listen to the voices of the observers who he had banned from the negotiations two weeks earlier. One could see the consternation on his face as several observers lambasted the agreement for being too little too late. The youth for example, all but called Fabius a traitor to their generation and pledged to continue to work for the future their leaders had failed to ensure them. The business or BINGO constituency was the lone exception. For them the agreement meant more business opportunities and that the commodification of the planet was guaranteed, at least for near term corporate profits.
Fabius had been grinning like a Cheshire cat a few hours earlier as he graveled down the adoption of the Paris Agreement. It was irrelevant that he had done so without acknowledging the States seeking the floor either in the preliminary drafting Comité de Paris or in the plenary COP21 which convened in record time immediately afterwards. Like the scenes from Sorcosse movies that donned the walls of the Paris train station Gare de Lyon, the celebration in the makeshift Conference Hall in the northern Paris suburb of Le Bourget seemed perfectly scripted.
With his President at his side Fabius had delivered what his ailing Socialist Party needed in France where it was on a path to extinction after being trumped in recent regional elections held on 6 December 2015. The defeat had been so bad that in order to avoid becoming political irrelevant in their own country, Fabius and François Hollande’s party had withdrawn most of its candidates from the second round held the day COP21 ended, Sunday, 13 December. The Socialist Party was desperate enough to do this so that the opposition conservative Republican Party could win seats and thereby avoid a shift to the far right.
The scripted antics at COP21 were a continuation of this political struggle for survival by the French socialists. They needed a celebration, even at a level removed from their own domestic political failings. Another failure might have pushed the far-right over the line and been the kiss of death for Fabius’ party. In the event, they were successful both in pushing through a Paris Agreement with foreign politicians who also desperately needed a reason to celebrate after the fiasco in Copenhagen in 2009, and in fending off the far-right in the second round of regional elections.
Few of the international politicians attending COP21 were sympathetic to the far-right nationalist party of Maria Le Pen. Some of these politicians were involved in similar struggles at home. Thus when French diplomats came, “crying” to States, as an American diplomat who warned he could only speak anonymously to me described it, few governments could refuse to contribute to a celebration that had little to do with what they had agreed to do about climate change.
Most statements by States reflected this tension between the reality of their responsibility and their submission to the polite French pleas.
Fabius’ American counterpart, United States Secretary of State John Kerry congratulated the Frenchman on a job well done in achieving an agreement that “will help the world prepare for the effects of climate change that already here and for those we know are headed our way inevitably.” A congratulatory note that also admitted that not enough had been done to protect people from climate change.
Also notable were those who had left before their States made statements, usually claiming to have unmissable appointments elsewhere. Most notable was the vocal coordinator of the forceful Like-Minded Developing Countries (LMDCs) Professor Gurdial Singh Nijar Sadu Singh, who did not even speak in the closing plenary after having been so vocal during the two-weeks of negotiations. He had already said that he had no problem with the agreement and was in the hall to applaud its adoption. Also absent when their States made statements were Noble Prize winner and the Special Envoy of the President of Timor-Leste José Ramos-Horta and Brazilian Minister of Environment Izabella Mônica Vieira Texiera. Both had been central players in the negotiations.
The European Union’s two envoy, one representing the Commission the other the Council, both spoke and heaped praise on the agreement. China, Russia, and South Africa, speaking on behalf of the 135 States of the G77 plus China, recognized the agreement was not perfect but congratulated the French Presidency on a job well-done. Even the often vocal climate justice advocate, Venezuelan Special Envoy for Climate Change and Ambassador to the European Union in Brussels, Claudia Salerno Caldera, seemed suspiciously ecstatic about the agreement, almost as if she had been part of a paid crowd-for-hire. Fabius and his crew had directed an almost perfect script.
Even the rare dissent was framed in terms of acceptance of the Paris Agreement. Only Nicaragua’s Minister for the Presidency of Nicaragua Paul Oquist dented the festive atmosphere by recalling that he and others had been denied the floor where they had requested it. Oquist went on to lament the fact that the Paris Agreement does not provide the action that is needed and does not even get close. In fact the COP21 Decision attached to the Agreement actually admits in its paragraph 17 if it is read carefully in conjunction with Agreement. Oquist also questioned how States could suggest in paragraph 52 of the Decision that they were willing to waive the rights of present and future generations to liability and compensation in the vague Loss and Damage mechanism agreed to in article 8 of the Paris Agreement. Finally, Oquist proposed a new provision for the agreement, which he said he had wanted to do before it was adopted but had been prevented by Fabius rush to adopt the agreement. The new provision called for finance to be based on reparations for historical responsibility. This was a proposal that merely reiterated existing international law, but seemed out of place in the fantasy script of the French. After the meeting Oquist confided that “Nicaragua will not ratify a treaty that cannot protect us from temperature increases of more than three degrees.”
Universal adherence to the treaty was a feature that Fabius had proudly touted before the cameras and microphones of the world media. It was however, called into question by the statements of Nicaragua as well as Ecuador and Bolivia. The latter two States regretted that the Agreement was not sufficient to encourage necessary action, although they also pledged alliance to the French brokered Agreement. Ecuador’s new Minister for the Environment, Daniel Vincente Ortega Pacheco, delivered an oration on par with Mark Twain’s oration welcoming Ulysses S. Grant to Hartford when he was campaigning against a candidate preferred by the famed satirist. Much like Twain, Pacheco wrapped some pointed criticisms of the Paris Agreement in an air of compliments. Fabius even referred to him affectionately in thanking him for his intervention, which had criticized the very foundation on which the Agreement was based as well as the fundamental principles of France’s corporatized Socialist Party: consumptive capitalism.
An innocent observer of the Paris Climate Summit reading the Paris Agreement, could easily be excused for falling prey to the pomp and circumstances with which the French Republic celebrated the adoption of the text. Indeed, the business sector and elite government leaders welcomed the text. There were few observers who had followed the process since its inception in 2012. Even fewer were among the elite group of experts whose views goes back to the inception of the United Nations Framework Convention on Climate Change at the Rio Conference on Environment and Development in 1992. But the rare concerned citizens among the crowd were cringing at the hot air being emitted from the crowd at Paris’ Le Bourget airport.
Astute observer organization Third World Network’s climate expert, Meena Rahman, who had been closely following the climate negotiations for more than decade sat silently in her seat has as many around her gave a standing ovation to the French President of COP21. “What are they clapping for, have they seen the Agreement?” she uttered apparently flabbergasted by the public show of ignorant bliss.
The world’s foremost climate scientist, previously at the US space agency NASA, and since his retirement last year a climate justice activist, Dr. James Hansen, broke with his usual diplomatic silence on political events to call COP21 ‘a fraud’ with ‘no action, just promises’. The President of Earth First USA, Mr. Erich Pica, described the agreement saying, “We have a deal that if you look at it from a climate justice perspective; if you look at it from a just transition perspective; if you look at it from a fair share perspectives; it fails all of these tests.”
This is not to say that nothing was achieved. Indeed, slightly more progress was made in the Agreement and accompanying decision then had been made in Copenhagen at the Conference of the Parties’ 15th Meeting (COP15). Indeed, COP15 had ended acrimony and failure to reach any agreement. In Le Bourget, the Paris Agreement was adopted.
The Paris Agreement also includes some worthy aspirations. The preamble, negotiations which were facilitated by the Venezuelan Caldera, contains language on Mother Earth, climate justice, human rights, indigenous peoples, even the rights to health and development. Under international law these lofty principles may influence the interpretation of the operative terms of the Agreement in its articles, but they are not part of them. Speaking to some of the negotiators working on the preamble, many of whom were not international lawyers, it was not clear that they, including facilitator Caldera, understood that the preamble is not part of operative terms of a treaty.
Moreover the Paris Agreement is unusual among treaties in the sense that it includes more aspirational statements than legal obligations. For example, the provisions on transparency (art. 13), among the most important for some States seeking to ensure the integrity of the treaty, allow for “built-in flexibility” that seems to undermine their very essence. Article 15 on implementation and compliance calls for an “expert body” to be established but gives it little, if any, power to do anything but facilitate something that is not quite clear. The proposal by Bolivia to create an international climate justice tribunal with the legal power to hold States to their commitments was rejected late in the negotiations, after being ignored for the early part of the negotiations.
Most vague and noncommittal are the actions to be taken under the Paris Agreement on the crucial issue of mitigation or how much States will cut their emission of greenhouse gases. After being negotiated in a single article the components of mitigation emerged scattered over several articles. Article 2 on the purposes provides for “efforts” to be made to achieve a temperature rise limit of 1.5°C, but only aims to strengthen efforts to respond to the threats posed by climate change by keeping temperature rises “well below 2 °C above pre-industrial levels.” Both developed and developing States now have obligations concerning mitigation. These obligations are no more than those in the UNFCCC for developed countries and concern mainly reporting and no real action, the reporting obligations now also apply to developing States unconditionally according to article 3. For some developing States this creates a serious dilemma as they lack the resource, capacity and technology to fulfil their obligations and the Paris Agreement does not guarantees they will get the help they need.
This is only one of several examples of how he principle of common but differentiated responsibilities (CBDR) that is enshrined in article 3, paragraph 1 of the UNFCCC has been revised. Already in article 2, paragraph 2, an exception to CBDR had been made by allowing States to view the principle “in light of differentiated national circumstances.” This vague phrase will, for example, allow developed States to undertake de minimus mitigation if they believe that their economies will suffer. Already developing States bear the heaviest burdens of mitigation, now they are likely to be locked into doing so for a long time to come.
In a last minute change of vital importance to the light mitigation obligations, the US demanded that the obligations of developed countries to take the lead “economy-wide absolute emissions reduction targets” be made aspirational in article 4, paragraph 4 by changing the word “shall” to “should”. Just like a director responding to the demands of one of his star actors, Fabius obliged Kerry of the US, by deciding on a technical revision that erased one of the most stalwart demands of developing countries by arguing it was a typographical error.
Even before this change, in preliminary advice to some developing countries, a group of international lawyers wrote that “[t]he Paris Agreement is not a good agreement for developing States. It weakens CBDR and does not provide any certainty or enhancement of developed countries commitment to obligations for finance, capacity-building, or access to technology.” The group goes on to suggest that States should continue negotiations into 2016 as “this treaty requires much more careful study than time in Paris allows.” These comments, however, ignore the fact that the rush to adopt a treaty that will not enter into force until 2020 was based more on French domestic politics then on international concern for climate change.
One might have thought that if short term French politics dictated against effective action now, at least a commitment will be made for the future. Article 4, paragraph 1, makes such hopes a distant wish by merely calling for the “global peaking of greenhouse gas emissions as soon as possible [emphasis added].” Such vague terminology is unusual in a treaty and would usually indicate poor drafting. In the Paris Agreement such vague phrases are endemic.
Unclear also are the provision on loss and damage, which in UNFCCC parlance means assistance to States for the harm they will inevitably suffer because mitigation and adaptation has been too little and too late. The commitment to loss and damage is something for which developing States, particularly small island States, had fought hard. At the same time the United States did not want to be put in a position where it might have to pay for the damage it had caused by centuries of over polluting the air more than any other nation.
The United States requested that there be limitation of their liability, a limitation that completely waived past, present and future claims of liability and any claims for compensation. Such a broad waiver of responsibility is unheard of in international relations. Nevertheless, Kerry cajoled and coerced them to accept such terms in the Decision as a condition for agreeing to allow loss and damage to be mentioned in the Paris Agreement. Even where waivers of liability or compensation do appear, for example in treaties ending wars, such as the Soviet-Japanese Joint Declaration made on 19 October 1956 at the end of World War II, the waiver of rights comes with significant guarantees of compensation. In this case there is only a waiver.
The waiver has been moved out of the Paris Agreement to paragraph 52 of the COP21 Decision. By this paragraph the States agree “that article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” While confined to the article on loss and damage this agreement of the State Parties to the UNFCCC will function as an authoritative, yet not refutable, interpretation of the article under international law. In effect it will mean that neither in article 8 on loss and damage due to paragraph 52 nor elsewhere in the Paris Agreement due to silence on the matter, is a right to compensation created. While this does not in and of itself extinguish existing and future rights, it will undoubtedly be used to do so, especially if an effort is made to shape the Warsaw International Loss and Damage Mechanism into a mechanism for indemnifying States for the unavoidable damages they suffer. It may also have the dual function of being a tool of intimidation against the States that have suffered the most damage that prevents them from trying to create a mechanism for compensation.
In the end the Paris Agreement may merely be a paper as the Brazilian youth delegate called it in her address to the conference in the wee hours of Sunday morning. Perhaps an even better description would have been an analogy to the agreement by the authorities of a person on death row to provide a god French meal to an innocent person about to be executed after a miscarriage of justice. While the offer of a good French meal might be seen as a minimal act of humanity, it loses its humanitarian meaning in the context of an execution of an innocent person. The offer of a meal is then merely a part of the immoral act of a wrongfully killing.
With almost all the delegates heading to get some sleep or to celebrate after they had finished congratulating themselves for several hours in the Hall, the chore of speaking truth to power with integrity was left for the observers speaking at the very end of COP21. The representatives of observer constituencies of indigenous peoples, women, labour unions, and youth all criticized the Paris Agreement as inadequate. Only the business observer constituency seemed pleased.
But perhaps the most honest assessment came from a nameless young person who I saw struggling through the doublespeak of the text while apparently holding back her tears in an-out-of-the-way corner. I asked her if she was okay. Her reply, referring to the political leaders who seemed so distant from her as she looked disappointingly at the Paris Agreement text was simply, “How could they do this to us?”