Climate Law Insider 12 – December 2021
-UN Environment Publishes New Emissions Gap Report Ahead of COP26-
On 26 October, the UN Environment Programme published ‘The Emissions Gap Report 2021: The Heat Is On’. This is the 12th edition of an annual series that provides an overview of the difference between where GHG emissions are predicted to be in 2030 based on States’ submitted emissions reduction pledges and where they should be to avert the worst impacts of climate change. The report shows that the new Nationally Determined Contributions (NDCs), combined with other mitigation pledges, put the world on track for a global temperature rise of 2.7°C by end of the century, even if all new unconditional commitments are met. Additional implementation of net-zero targets could reduce global warming by another 0.5°C, but these plans are currently ambiguous and not fully reflected in NDCs. Additionally, these new commitments take 7.5% off predicted 2030 GHG emissions compared to the old commitments. However, reductions of 30 per cent are needed to stay on the least cost pathway for 2°C and 55% for 1.5°C. As of 30 September 2021, 120 countries, representing about 51% of GHG emissions, had communicated new or updated NDCs. To stand a chance of limiting global warming to 1.5°C, the world has eight years to take an additional 28 GtCO2e off annual emissions, over and above what is promised in the updated NDCs and other commitments – equivalent to almost halving current greenhouse gas emissions. For the 2°C target, the additional need is lower: a drop in annual emissions of 13 GtCO2e by 2030. The report also finds that reduction of methane emissions from the fossil fuel, waste and agriculture sectors could help close the emissions gap and reduce warming in the short term. Finally, the report suggests that carbon markets could also help slash emissions, but only if rules are clearly defined and target actual reductions in emissions, while being supported by arrangements to track progress and provide transparency.

Learn more:https://www.unep.org/resources/emissions-gap-report-2021

-UN Committee on the Rights of the Child Dismisses Highly-Anticipated Climate Decision-
On October 12, the United Nations Committee on the Rights of the Child (CRC) found the communication submitted by 16 children inadmissible for failure to exhaust domestic remedies under Article 7 (e) of the Optional Protocol to the Convention on the Rights of the Child. This case originated in September 2019, when 16 children of different nationalities filed a claim alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the UN Convention on the Rights of the Child because these countries were not being ambitious enough when it comes to reducing GHG emissions. As a result, the children allege, this represents a failure to take necessary preventive and precautionary measures to respect, protect, and fulfil the claimants’ rights to life, health, and culture. Despite the negative result for the petitioners, the CRC did accept that States are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders, an extraterritorial appraisal that was anchored in an Advisory Opinion from the Inter-American Court of Human Rights from 2017. The highly-anticipated climate decision has already prompted some reactions from the international law community. Some commentators regard the inadmissibility criteria as a ‘a strong grasp of principle, procedure and pragmatism’, whilst others have suggested the CRC should have been more nuanced by emphasizing the claimants ‘unique circumstances’ before declaring the communication inadmissible. In that same vein, some critiques have thoroughly identified the inconsistencies with the CRC’s approach to the application of the exhaustion of remedies criterion for inadmissibility.

Learn more:https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1351&Lang=en

-COP26 – Struggling to Keep 1.5°C Narratives Alive-
One of the stated goals of the UK Presidency was to keep the 1.5°C target alive at COP26. The tough process of convincing key countries to increase their NDCs in advance of COP26 may have given the negotiators a foretaste of the scale of the challenges ahead. During the two-week negotiations, it also became clear in many negotiating tracks how far away ambitions and implementation of concrete climate policies and legalisations are from the 1.5°C path. However, progress was made in the cover decision: For the first time since the publication of the IPCC’s 1.5°C Special Report, key data on the decarbonization pathways needed for 1.5°C made it into an official COP decision. In particular, the Glasgow Climate Pact reads in paragraph 17: “limiting global warming to 1.5°C requires rapid, deep and sustained reductions in global greenhouse gas emissions, including reducing global carbon dioxide emissions by 45 per cent by 2030 relative to the 2010 level and to net zero around mid-century, as well as deep reductions in other greenhouse gases”. Prior to and during COP26, IPCC authors and scientists lobbied for the inclusion of this wording, including by coordinating an open letter. Following COP26, key signatories to the letter articulated their expectations for what this wording means for COP27. With a more specific operationalization of what achieving 1.5°C means in terms of mitigation, this new text might also be of relevance for national climate policy and related litigation processes.

Learn More:https://unfccc.int/sites/default/files/resource/cop26_auv_2f_cover_decision.pdf

-Nothing is Agreed Until Everything is Agreed – Last Minute Political Turmoil About Coal-
The headlines about COP26 ended up being dominated by a last-minute change in the sentence on coal power. During the two weeks of negotiations, it was initially seen as a success that coal, one of the most-polluting fossil fuels, was specifically addressed in a COP decision. However, the mention of coal came with major showdown: shortly before the end of negotiations, India, supported by China, presented an amendment to the wording which read "accelerating efforts towards the phasedown of unabated coal power" ( paragraph 20); in an earlier version of the text negotiators referred to “phase-out” ( paragraph 37). India took a lot of criticism for the requested change, but the "phasedown" wording had been used before in the U.S.-China Joint Glasgow Declaration on Enhancing Climate Action in the 2020s. In effect, the turmoil once again indicated how challenging it will be in the coming years to build bridges between developed countries that have already started fossil fuel phaseouts and developing and emerging economies that are in need of cheap energy sources.

Learn more: https://www.state.gov/u-s-china-joint-glasgow-declaration-on-enhancing-climate-action-in-the-2020s/

-Details on the Governance of Article 6 Signals the Paris Rulebook’s Completeness-
During COP26 in Glasgow, Parties were tasked with agreeing on some outstanding issues to finalize the Paris Rulebook, such as rules for the voluntary cooperation among Parties under Article 6 of the Paris Agreement. Article 6 of the Paris Agreement allows Parties to voluntarily cooperate in the implementation of their NDCs. Parties can either establish direct bilateral or multilateral cooperation (under Art. 6.2) or make use of the new Article 6.4 mechanism, which is a successor of the Kyoto Protocol’s Clean Development Mechanism (CDM) and will be overseen by the newly established Supervisory Body. In addition to these two market-based approaches, Art. 6.8 of the Paris Agreement envisages the development of so-called “non-market” approaches. Negotiation of the rules for Article 6 were delayed since COP24 in Katowice. These new rules include the avoidance of double counting of emission reductions and the requirement of so-called “corresponding adjustments”, in which transactions of reductions seek a transparent equilibrium. Moreover, the rules allow the Kyoto Protocol’s Clean Development Mechanism (CDM) credits to be used for the achievement of NDCs under the Paris Agreement and for activities under Article 6.4. As for the former, Parties agreed on limiting transfer of CDM credits to those activities that were registered from 2013 onwards. Furthermore, resources for adaptation arising from Article 6.2 and 6.4 related transactions were also added to the rulebook. It strongly encourages Parties under Article 6.2 to commit resources for adaptation, while the share of proceeds for Art. 6.4 measures is set at 5% of Article 6.4 emissions reductions at issuance, complemented by a monetary contribution, to be set by the Art. 6.4 Supervisory Body. Moreover, any administrative surplus of the mechanism is to be donated periodically to the Adaptation Fund.

Learn more: https://ukcop26.org/wp-content/uploads/2021/11/COP26-Presidency-Outcomes-The-Climate-Pact.pdf

-Loss and Damage Concerns Are Fleshed Out in COP26 Decisions-
Several climate-vulnerable countries advocated for COP26 to create a new finance facility dedicated to loss and damage, but that was resisted by developed nations such as the United States. Instead, countries landed on creating a new dialogue dedicated to discussing possible arrangements for loss and damage funding. At COP25, Parties had agreed to set up the Santiago Network on loss and damage to provide technical assistance around this issue. Subsequent progress was made at COP26 in defining the network’s form and functions, and the Glasgow Climate Pact also decided that it would be provided with funds. Decisions on the network’s institutional arrangements were deferred until COP27. The governance of the Warsaw International Mechanism for Loss and Damage, established in 2013 at COP19, also remains unresolved, with talks on this due to resume at COP27. Despite these aspirational commitments, financial pledges from Scotland and Wallonia (Belgium) — GBP 2 million and EUR 1 million, respectively — to address loss and damage were the first of their kind and very welcome, as was a similar commitment by various philanthropies. These pledges helped cut through the political debate and put responsibility for finance for loss and damage firmly on the table. The Glasgow Climate Pact also urges developed countries and relevant organizations to provide more support for loss and damage. The call to set up a dedicated financing facility was, however, rejected. Developing countries made concessions on loss and damage to preserve the integrity of the Glasgow Climate Pact, while emphasizing that they would continue to push for a dedicated facility in the Glasgow Dialogue. Loss and damage is likely to be one of the bigger issues leading up to the COP27 summit in Egypt next year.

Learn more: https://unfccc.int/sites/default/files/resource/cop26_auv_2f_cover_decision.pdf

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