Action-Objective for post -COP26

The Coalition of Climate-Nature-Deliberative Democracy Law Project: the case for a climate-nature ‘’blueprint’’ model law for the ‘Global North’ advanced economies.

And why we need the idea to propagate- without delay

Contents –

COP26 outcome: The Glasgow Climate Pact -key principles & 1.5C Paris Agreement (pg.1-4)
1.5C – Scientific evidence and what it means for global civilisation and nature(pg.4-15)
The case for NDCs and Nature-Positive targets to be enshrined in national laws-(pg.13-16)

i). value judgements (pg.15)

ii) 1.5C global budget, self-allocation and the calculation of NDCs (pg.16-17)

iii). But isn’t the fulfilment of a country’s NDCs enshrined in international law under the Paris Agreement ? (pg.17-18)

iii). Speaking of ‘enforcement’ and international law – such is the irony: a working example (pg.18-19)

The missing link in robust implementation of the Paris Agreement NDCs (pg.20)

5. Nature – entwined with the climate emergency – but yet to be legally interconnected (pg. 20-21)

6. The time is ripe for the post-COP26 climate-nature ‘’blueprint’’ model law (pg.22-23)

COP26 outcome: The Glasgow Climate Pact -key principles & 1.5C Paris Agreement

The final COP26 Draft decision -/CMA.3, ratified as The Glasgow Climate Pact in its preamble, it explicitly states the synergistic planetary emergency of climate and ecology in the context of global justice, and includes the following-

Recalling Article 2 of the Paris Agreement,

4. Recalls Article 2, paragraph 2, of the Paris Agreement, which provides that the Paris

Agreement will be implemented to reflect equity and the principle of common but

differentiated responsibilities and respective capabilities in the light of different national

circumstances;

5. Stresses the urgency of enhancing ambition and action in relation to mitigation,

adaptation and finance in this critical decade to address the gaps in the implementation of the

goals of the Paris Agreement;

Noting decision -/CP.26,1

Also acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity,

Noting the importance of ensuring the integrity of all ecosystems, including in forests, the ocean and the cryosphere, and the protection of biodiversity, recognized by some cultures as Mother Earth, and also noting the importance for some of the concept of ‘climate justice’, when taking action to address climate change,

Recognizing the important role of indigenous peoples, local communities and civil

society, including youth and children, in addressing and responding to climate change, and

highlighting the urgent need for multilevel and cooperative action,

Recognizing the interlinked global crises of climate change and biodiversity loss, and

the critical role of protecting, conserving and restoring nature and ecosystems in delivering

benefits for climate adaptation and mitigation, while ensuring social and environmental

safeguards,

According to comments in The Brussels Times, the Glasgow Pact preamble -whilst not legally -binding – is a clear nod to the case for an international legislation against ecocide. Drafts have already been amendment to the statutes of the International Criminal Court (ICC) that include crimes against humanity and genocide

Concluded remarks at the final lap of COP26 –

*1.5 degrees, but with ‘‘a weak pulse’***

“Negotiations are never easy…this is the nature of consensus and multilateralism”, said Patricia Espinosa, the Executive Secretary of the United Nations Framework Convention on Climate Change (UNFCCC).

She stressed that for every announcement made during the past two weeks, the expectation is that the implementation “plans and the fine print” will follow.

Meanwhile, COP26 President Alok Sharma stated that delegations could say “with credibility” that they have kept 1.5 degrees within reach.

“But its pulse is weak. And it will only survive if we keep our promises. If we translate commitments into rapid action. If we deliver on the expectations set out in this Glasgow Climate Pact to increase ambition to 2030 and beyond. And if we close the vast gap that remains, as we must,” he told delegates.

On the face of it, the text in the pact, while uncommitting, can be read as arguments for international legislation against ecocide.

The pact recognizes “the interlinked global crises of climate change and biodiversity loss, and the critical role of protecting, conserving and restoring nature and ecosystems in delivering benefits for climate adaptation and mitigation, while ensuring social and environmental safeguards,

It also recognizes “the important role of indigenous peoples, local communities and civil society, including youth and children, in addressing and responding to climate change, and highlighting the urgent need for multilevel and cooperative action.”

Prof Piers Forster-coordinating Lead Author for the Intergovernmental Panel on Climate Change stated –

“1.5C has become the talisman for the safest we can hope for this century. But the more we learn the more we realise there is no safe limit [for emissions].”

Post-COP26 pledged projections –

1.5C – Scientific evidence and what it means for global civilisation and nature

IPCC AR6 WG1-The Physical Science Basis for Policymakers -the scientific case for 1.5C, states:

In 2019, atmospheric CO2 concentrations were higher than at any time in at least 2 million years

(high confidence), and concentrations of CH4 and N2O were higher than at any time in at least 800,000 years (very high confidence).

Global surface temperature has increased faster since 1970 than in any other 50-year period over at

least, the last 2000 years (high confidence). Temperatures during the most recent decade (2011–2020) exceed those of the most recent multi-century warm period, around 6500 years ago13

Some recent hot extremes observed over the past decade would have been extremely unlikely

to occur without human influence on the climate system. Marine heatwaves have approximately doubled in frequency since the 1980s (high confidence), and human influence has very likely contributed to most of them since at least 2006.

The rate of ice sheet loss increased by a factor of four between 1992–1999 and 2010–2019. Together, ice sheet and glacier mass loss were the dominant contributors to global mean sea level rise during 2006-2018. (high confidence)

Animation: How a Glacier Melts (double-click on the video to open it in the drawing tool )

NASA Video

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The IPCC 6th Assessment Report: Physical Science Basis (diagrams, pg.6-12) assesses five possible climate futures as illustrative scenarios – ‘Shared Socioeconomic Pathways’ (SSP).

The SSP narrative are described by Riahi et al. 2017 –

They start in 2015, and include scenarios with high and very high GHG emissions (SSP3-7.0 and SSP5-8.5) and CO2 emissions that roughly double from current levels by 2100 and 2050, respectively, scenarios with intermediate GHG emissions (SSP2-4.5) and CO2 emissions remaining

around current levels until the middle of the century, and scenarios with very low and low GHG emissions and CO2 emissions declining to net zero around or after 2050, followed by varying levels of net negative CO2 emissions23 (SSP1-1.9 and SSP1-2.6). Emissions vary between scenarios depending on socio-economic assumptions, levels of climate change mitigation and, for aerosols and non-methane ozone precursors, air pollution controls.

Every tonne of CO₂ emissions adds to global warming –

Figure SPM.10 | Near-linear relationship between cumulative CO2 emissions and the increase in global surface temperature

Top panel: Historical data (thin black line) shows observed global surface temperature increase in °C since 1850–1900 as a function of historical cumulative carbon dioxide (CO2) emissions in GtCO2 from 1850 to 2019. The grey range with its central line shows a corresponding estimate of the historical human-caused surface

warming (see Figure SPM.2). Coloured areas show the assessed very likely range of global surface temperature projections, and thick coloured central lines show the median estimate as a function of cumulative CO2 emissions from 2020 until year 2050 for the set of illustrative scenarios (SSP1-1.9, SSP1-2.6, SSP2-4.5, SSP3-7.0, and

SSP5-8.5; see Figure SPM.4). Projections use the cumulative CO2 emissions of each respective scenario, and the projected global warming includes the contribution from all anthropogenic forcers. The relationship is illustrated over the domain of cumulative CO2 emissions for which there is high confidence that the transient climate

response to cumulative CO2 emissions (TCRE) remains constant, and for the time period from 1850 to 2050 over which global CO2 emissions remain net positive under all illustrative scenarios, as there is limited evidence supporting the quantitative application of TCRE to estimate temperature evolution under net negative CO2 emissions.

Bottom panel: Historical and projected cumulative CO2 emissions in GtCO2 for the respective scenarios.

With every increment of global warming, changes get larger

in regional mean temperature, precipitation and soil moisture –

Projected changes in extremes are larger in frequency and intensity with

every additional increment of global warming

Under scenarios with increasing CO2 emissions, the ocean and land carbon sinks are

projected to be less effective at slowing the accumulation of CO2 in the atmosphere.

Estimates of historical CO2 emissions and remaining carbon budgets.

Estimated remaining carbon budgets are calculated from the beginning of 2020 and extend until global net zero CO2 emissions are reached. They refer to CO2 emissions, while accounting for the global warming effect of non-CO2 emissions. Global warming in this table refers to human-induced global surface temperature increase, which excludes the impact of natural variability on global temperatures in individual years.

Remaining carbon budgets have been estimated for several global temperature limits and various

levels of probability,

Under the five illustrative scenarios,(above) in the near term (2021-2040), the 1.5°C global warming level is very likely to be exceeded under the very high GHG emissions scenario (SSP5-8.5), likely to be exceeded under the intermediate and high GHG emissions scenarios (SSP2-4.5 and SSP3-7.0), more likely than not to be exceeded under the low GHG emissions scenario (SSP1-2.6) and more likely than not to be reached under the very low GHG emissions scenario (SSP1-1.9)27.

Ref. IPCC AR6 WG1

Furthermore, for the very low GHG emissions scenario (SSP1-1.9), it is more likely than not that global surface temperature would decline back to below 1.5°C toward the end of the 21st century, with a temporary overshoot of no more than 0.1°C above 1.5°C global warming.

The case for NDCs and Nature-Positive targets to be enshrined in national laws

Policy-making : premised upon the science; driven by value judgments

The IPCC AR6 WG1 provides the physical science basis but is unable to make assumptions about value judgements – ie. socio-economic human mitigation decisions- or more precisely, the agendas of governments and the influencers in the capitalist system.

Value judgements should also be premised on moral responsibility for equity -as enshrined in 4.1 of the Paris Agreement on CBDR-RC; sustainability of planetary boundaries and the guardianship of thriving natural capital for future generations – both human and non-human species.

For the sake of humanity, flora, fauna and the ecosystems that constitute the Goldilocks nature of Earth, G20 countries arguably have a moral obligation to adopt and apply the most stringent of the given mitigation and adaptation scenarios: SSP1-1.9 as this will determine the course of our globalised world – the knock-on effect of interdependence in our supply chains and financial flows.

In other words- the value judgements of nation states and their governments -especially those advanced economies – will determine whether or not they decide to meet the IPCC science in pursuing policies of a SSP1-1.9 , consistent with meeting the most ambitious commitment of the Paris Agreement of limiting global mean temperatures to 1.5C above pre-industrial levels.

Where a government’s value judgement aligns with SSP1-1.9 then their policies will deliver –

Global carbon budget estimate for a 1.5C World, self-allocation and Nationally Determined Contributions (NDCs)

Whilst the global carbon budget consistent with > 67% of 1.5C chance from 2020 is estimated at 400 Gt CO2 the divvying-up of the global carbon budget among UNFCCC Paris Agreement parties remains elusive and highly problematic in the light of the subjectivity of CBDR-RC. Ultimately, the sum of nations’ NDCs must not exceed the > 67% of 1.5C chance from 2020 is estimated at 400 Gt CO2 as a best-case scenario for human civilization and the safeguarding of the biosphere.

Due to the current agreement that signatory countries to the Paris Agreement self-allocate their national budgets, there remains the challenge that the sum total of these carbon/greenhouse gas budgets will exceed the 1.5C 400 Gt CO2. Further to this, the IPCC Special Report on Global Warming of 1.5°C has indicated that on an annual basis, pathways that limit warming to 1.5°C with no or limited overshoot show 2030 greenhouse gas emissions of about 25–30 GtCO2eq yr-1.

On current Nationally Determined Contributions (NDCs) submissions, unless NDCs collectively, are not made more ambitious before 2030, then the window for a 1.5C limit to mean global warming will be closed.

Therefore, the onus is on the Minority World- especially G20 that account for 80% of emissions and advanced economies that tread the highest carbon and ecological footprints per capita as net -importers and high-net consumers -to ensure that their NDCs are aligned to strict carbon budgets that robustly reflect their consumption.

It is for this reason that the IPCC emphasises the imperative for every nation- but first and foremost, the advanced economies for the burden their wealth and consumption has brought to bear on the developing world -and so, in the upholding of the CBDR-RC principles– to reduce to net zero their respective emissions on a steep, near-term mitigation trajectory without delay. And furthermore, that this mitigation trajectory is assigned robust and material targets communicated and recorded explicitly in their NDCs despite the fact, the mitigation inventories that constitute NDCs are beset by a range of uncertainty -eg. many inventories refer to an historical baseline year, such as 1990, to calculate their percentile emissions reductions; however, if the reference year figures are uncertain, then this will affect the assumptions on projected future emissions.

One of the most significant variables is that of emissions intensity improvements that can be based on the data series of the the level of emissions per unit of economic output (GDP).

On Consumption emissions, aviation and shipping

Currently, the greenhouse gas inventory methodology for UNFCCC NDC reporting is based on territorial accounting.- ie emissions that occur within national borders only. International aviation and shipping in reported need only to be reported as memorandum items.

According to DEFRA, UK consumption emissions-also referred to as a country’s carbon footprint are defined as –

‘…emissions that are associated with the consumption spending of UK residents on goods and services, wherever in the world these emissions arise along the supply chain, and those which are directly generated by UK households through private motoring and burning fuel to heat homes ‘(end use).

See more details on analysis of CAT’s UK ‘Almost Sufficient’ targets

But isn’t the fulfilment of a country’s Nationally Determined Contributions (NDCs) enshrined in international law under the Paris Agreement ?

The Paris Agreement/Accord is a UN intergovernmental treaty designed as a hybrid -legal- prescriptive-framework approach -with diplomacy in its flexibility to draw universal acceptance: a stepchange to preceding UNFCCC summits, whereby consensus had been wanting.

Signatory countries to the Paris Agreement are responsible for taking action on both mitigation and adaptation (although the latter is not an obligation that has to be communicated in NDCs) on the global climate goal to –

Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

The binding requirement of the Paris Agreement acts as a legal instrument in that signatory countries must (legally under the aegis of international law) submit their 5-year cyclical NDCs with an obligation to implement these climate action plans set out in their self-determined NDCs and to assess and review , as an iterative process to promote ever increasing ambition in NDC mitigation and adaptation targets, with a backstop to prevent backsliding. Developed countries are directed to “economy-wide absolute emission reduction targets” –ie. energy, waste, industrial processes and product use, agriculture, and land use (LULUCF)).

A concern among activists and social commentators alike will be in regard to the ratification of the details of Article 6 of the Paris Agreement at COP26. This article allows for use of international market mechanisms whereby signatory countries may elect to use the trading of carbon credits and offsets in their respective mitigation efforts.

So, let’s return to the legal-binding status of Paris signatory NDCs. To what extent is this international treaty legal-binding?

Due to the complexity of reaching an accord with world nations, the Paris Agreement had been diplomatically littered with modal verbs – ‘must’, ‘shall’, ‘should’ -each of which denotes differing legal weight. For example, Article 4, paragraph 2) requires each Party to prepare, communicate and maintain successive nationally determined contributions (NDCs) that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions. Shall carries the legal weight of obligation. Thus, every signatory is obliged to legally prepare and submit their respective NDCs but the ambition of their NDCs is a constitutional and political matter for each respective country.1

The Enhanced Transparency Framework covers all substantive aspects of the Paris Agreement but has a specific technical purpose as a mechanism to safeguard good practice in the reporting and tracking of progress of a signatory’s climate action plan, communicated through respective NDCs. Although the ETF is not subject to judicial review, its purpose is to foster mutual trust and integrity among signatories in their obligations to the treaty .

A further, non-mandatory measure under the Paris Agreement/Accord, is the long-term low greenhouse gas emission development strategies (LT-LEDS) that give a cumulative trajectory of a signatory’s NDCs.

Yet ‘enforcement’, in whether or not respective NDCs are achieved, rather than subject to a judicial review under international law, is otherwise implied through the lens of a moral duty and the ethics of cooperative social responsibility: governments’ national and international reputations are at stake as they lie exposed under the scrutiny of the public and corporate gaze. Governments are effectively held to account by dint of ‘public shaming’ should they flout their NDC commitments.

Speaking of ‘enforcement’ and international law – such is the irony: a working example

According to a whistle-blowing report in the Guardian a spanner has been thrown into the works on the route to global decarbonisation: an internationally- binding energy charter treaty (ECT) ratified in 1994- two years after the UNCED Rio Earth Summit which saw the inception of the UNFCCC – threatens to stymie the financial investments of governments’ public funds for decarbonisation to a green transition. The ECT allows foreign investors to sue governments for their losses incurred as a consequence of the decisions to phase out fossil fuels. The reneging on contracts may potentially result in governments facing a slew of lawsuits filed by energy corporations over governmental policies that could damage the former’s profits.

‘’Separate analysis of the treaty shared exclusively with the Guardian showed a 269% increase in cases in 2011-20 compared with the previous decade.“

According to a Friends of the Earth report, this year, the European Court of Justice has now ruled that within the EU jurisdiction, EU investors will no longer be able to sue member EU States : Investor-State Dispute Settlement (ISDS) cases using the Energy Charter Treaty are “not applicable” within the EU – i.e. between an investor in the EU and an EU member state. Specifically, article 26 of the Energy Charter Treaty (ECT), which allows for so-called corporate court arbitrations, is not valid intra-EU.

Let’s be clear: the ECT is a legally binding trade and investment agreement with a 20-year sunset clause that binds signatories to its legal obligations for two decades.

The missing link in robust implementation of the Paris Agreement NDCs

Ultimately, despite the caveats and inconsistencies inherent in the communicating of NDCs as an obligation to the Paris Agreement, there exists a colossal missing link to the realisation of Paris Agreement’s 1.5C mitigation target:

That countries are not legally obliged to deliver on their NDCs and adhere to near-term carbon budgets
Nor to align their NDC ambitions to reflect their historical responsibility and capabilities (CBDR-RC)
Nor to account for international aviation, shipping and consumption emissions (for net-consumer countries)
Nor provision for meaningful citizenship involvement in deliberation and decision-making
Nor to interrelate climate mitigation and adaptation targets with the overarching biosphere goal : for a Nature-Positive future that is imperative for civilisation to hold within its planetary boundaries

Nature – entwined with the climate emergency – but yet to be fully, legally interconnected

The Right to a Healthy Environment -adopted resolution by the United Nations Human Rights Council, 8th October 2021

According to Yann Aguila, this is the first step towards a ratification of such a right by the UN General Assembly-the main policy-making organ of the UN, comprising all member States which could be the very catalyst to lead to an international, legal covenant on the Right to a Healthy Environment. However, whilst this remains tantalizingly in the offing, this is not legally binding unlike the 1966 Human Rights covenant .

Many member States do have national and regional laws that encapsulate in varying guises -both in terms of procedurally and substantively, where ‘the right to a healthy’ environment may carry different connotations.

In terms of procedural aspect, this is in regard to the recourse within legislation that facilitates the ‘claimant’ to seek judicial action against the body responsible for safeguarding but failing to protect the rights of the individual such as to a healthy environment.

In terms of the substantive element, according to Aguila, this protects the elements of the natural environment that enable a dignified life. It englobes the preservation of basic human rights such as the right to life, clean water, food, etc.

As a ‘claim right’ as opposed to a ‘liberty right’ – this former assumes there to be the ‘rights-holder’ (the ‘victim/s’ whose rights to a healthy environment have been violated or infringed upon) and the failure in the ‘positive-obligation’ of third parties- otherwise considered the perpetrator responsible for the cause of the violation – often in the form of the State/Government or corporation. Examples of ‘claim right’ cases have been demonstrated under the following jurisdictions such as those of the Urgenda case and the German BverfG Order of the First Senate decision.

However, despite the numerous regional and national pieces of legislation that have been passed to protect the human right to a healthy environment-let alone, Nature’s right- to safeguards against environmental harm of the biosphere – there is no international mechanism to monitor whether or not States with such legislation actually implement their laws whereby the State/corporation/third party may be fully held to account for its failure to uphold the respective environmental law -either under judicial review or under constitutional law in a criminal court.

Furthermore, many national and regional laws constitute an anthropocentric focus. However, in the context of the climate and ecological emergency – and the recognition that extractive capitalism and excessive consumption, against a backdrop of global inequity and injustice- is resulting in the breaching of sustainable planetary boundaries, it is surely, an ecocentric perspective that puts nature at the core, that must be adopted going forward. It is such a paradigm that is described in the UN Rights of Nature.

On World Environment Day 2021, a group of UN experts released a statement as follows:

“A surge in emerging zoonotic diseases, the climate emergency, pervasive toxic pollution and a dramatic loss of biodiversity have brought the future of the planet to the top of the international agenda”.

In 2021, the European Parliament voted in favour of setting in motion the process of creating a EU Nature Restoration Law-setting legally binding targets for restoration targets of 30% of both land and seas as well as specific sub-targets for habitats, species and ecosystems, taking into account the special role played by the latter for climate change mitigation and adaptation.In June 2022, the EU Commission proposed binding EU nature targets – …the text includes strong elements such as the overarching objective for area-based restoration measures on 20% of the EU land and sea area by 2030, as well as time-bound restoration obligations for natural habitats, covering terrestrial, coastal, freshwater and marine ecosystems. However, the remit does not include legally binding standards on ecocide within EU global supply chains and outsourced extractivism that fuels EU consumerism.

Let’s be clear, unless Nationally Determined Contributions, 2030 climate-nature commitments and net-zero targets by the advanced economies are codified in law, will they be worth the paper these pledges are written on ?

And whilst the campaign to make statute Ecocide as the 5th crime, as an integral part of the Rome Statute of the International Criminal Court (ICC) makes inroads, there is no time to waste in forging ahead to call on our advanced economies to take full responsibility for their part in the climate and ecological breakdown caused by their historical exploitation of extractivist Capitalism and colonialism, on which they have built their wealth at the expense of the Majority World.

The time is ripe for the post-COP26 climate-nature ‘’blueprint’’ model law

In the privileged Global North/ Minority World, it is our countries’ moral and socio-economic imperative -backed by science- to own up to and take prompt, respective responsibility for the climate-nature emergency by setting forth an urgent agenda for the passing of national CEE laws premised upon the principles of the Climate and Ecological Emergency Blueprint, inspired and based on Zero Hour’s campaign for the UK CEE Bill . (Simplified version for translation).

This is the one expeditious, robust route that will facilitate a cascade of socio-economic transformative adaptation with the inclusion of civic involvement, to safeguard the biosphere and global society in the face of intensifying planetary breakdown and the heightened risk of a global cataclysm.

Finally, the climate-nature ‘’blueprint’’ model law encapsulates -through its dual climate-nature objectives premised upon CBDR-RC, *stipulations of standards to safeguard against ecocide and extractive, exploitative consumption along supply chains and with the *embedded mechanism of a citizens’ assembly to work in tandem with experts and parliament, the very principles that constitutes the preamble of the UNCOP26 Glasgow Pact –

Recognizing the important role of indigenous peoples, local communities and civil

society, including youth and children, in addressing and responding to climate change, and

highlighting the urgent need for multilevel and cooperative action,

Recognizing the interlinked global crises of climate change and biodiversity loss, and

the critical role of protecting, conserving and restoring nature and ecosystems in delivering

benefits for climate adaptation and mitigation, while ensuring social and environmental

safeguards

1 Draft decision entitled “Glasgow Climate Pact” proposed under agenda item 2(f) of the Conference of the Parties at its twenty-sixth session.

https://cop26platform.unfccc.int/cop26/auth

1 NDCs under Article 4 are self-determined and hence the scope of the NDC is decided by each Party, including any

mitigation targets contained therein, recognizing that developed countries should undertake an economy-wide

absolute emissions reductions target, while developing countries are encouraged to work towards such a target over

time (Article 4.4).

12 Throughout this SPM, ‘main driver’ means responsible for more than 50% of the change.

27 The AR6 assessment of when a given global warming level is first exceeded benefits from the consideration of the illustrative

scenarios, the multiple lines of evidence entering the assessment of future global surface temperature response to radiative forcing,

and the improved estimate of historical warming.

NHaines-M 30/11/2021

The Coalition of Climate-Nature-Deliberative Democracy Law Project

1.5 degrees, but with ‘‘a weak pulse’

Animation: How a Glacier Melts (double-click on the video to open it in the drawing tool )

*1.5 degrees, but with ‘‘a weak pulse’***