by Kennedy Graham
In my previous post I reviewed the broad outline of the COP 19 at Warsaw, which concluded on Saturday.
In short, we avoided short-term failure, Copenhagen-style, but did not achieve enough for long-term success.
Long-term success is what is required.
So what are we doing wrong, and what can we do right, in the future?
It depends on whether we:
(a) do the same but better; or
(b) do something different.
(a) Doing the same but better
As I pointed out post-Doha, there is much that is wrong with both the nature and the style of UNFCCC negotiations. Let’s look at their nature later (below). Consider first the style.
The main shortcoming in operational style of the current negotiations is a lack of empirical and analytical focus.
- The empirical work is done by the IPCC. Its assessment reports address the scientific findings of climate change, their expected impact, and ‘response options’.
- The analytical work is done, partly by IPCC, mainly by independent think-tanks (Climate Analytics, PIK, ECOFYS and others). There is extraordinarily detailed and sophisticated modelling and number-crunching done by researchers there.
Neither the empirical nor the analytical work is fed directly into the diplomatic negotiations. The IPCC and think-tank reports form, at best, the backdrop to the negotiations – shadows on Plato’s cave wall. They subliminally influence the negotiators, but not consciously, as in surface consciousness – as in explicitly, in-your-face UN documentation on the desk in front of you.
As a result, the parties default to abstract principles of traditional diplomatic interests, focusing on draft language that reflects obsolescent national positions – competitive trade-style. What is missing is a distillation of the empirical and analytical work, in the form of UNFCCC COP documentation. If they were to have this in front of them, the parties would be obliged to acknowledge both the scale and magnitude of the challenge, plus optional (detailed, prescriptive) response strategies.
(b) Doing something different
There is a fundamental disconnect between 20th-century international conference machinery and a 21st-century global challenge. The old machinery is not suited to the new task.
There are too many parties. It is not possible to find a global solution to a global problem through negotiation among 195 sovereign entities claiming a national sovereign right to obstruct. The twenty years or so of UNFCCC-COP negotiations proves this to be the case. We can, and no doubt shall, go for another 20 years with this, repetitively proving to our satisfaction that the mechanism is not delivering, at least in time.
If international negotiations are inadequate, is there an alternative or supplementary mechanism available? An alternative does, in fact, exist under the UN Charter – best described as global executive action. This is to engage the UN Security Council to put climate change on its agenda.
The Security Council has the primary responsibility, acting on behalf of all member states (i.e. the General Assembly), to maintain international peace and security. It has enforcement powers under Chapter VII to prevent aggression, breaches of the peace and any threat to the peace. Under these powers, if it determines there is a threat to peace, it may make decisions that are binding on all member states.
This is an enormous power. It is why member states, such as New Zealand, vigorously aspire to become a member of the Security Council, as often as occasion allows. Why the permanent five refuse to concede their privileged, and obsolescent, status.
Those powers, crafted 68 years ago, were expected to apply to inter-state warfare. But the Council has creatively determined all kinds of things to be a threat to the peace – especially global terrorism, gross and systematic abuses of human rights, military coups, civil wars.
In 2007, the Security Council first discussed climate change. In 2009, the Secretary-General provided a report to the Council on the implications of climate change for peace and security. The Council adopted a presidential statement, describing climate change as a risk multiplier. The SG said that, in his opinion, climate already is a threat to the peace. In February ’13, the Council heard directly from leading scientists about the nature of the global threat of climate change.
The Security Council is inching its way towards declaring climate change to be a threat to peace and security.
Will it ever make that determination? Would China or some other state, veto? If it did agree, so what?
The difference is several-fold.
- With 15 member states rather than 195 contracting parties to a specific treaty, the Council is more likely to get agreement, as the months and years go by, far faster than the UNFCCC. If the major emerging economies outside the P-5 (India, Brazil South Africa) were recruited to attend Security Council meetings on climate change under article 31 (albeit without vote), there would be sufficient representation.
- The doctrine of implied powers would enable the UN, acting through the Council, to give effect to decisions that it deems necessary for the full exercise of its overall responsibilities under the Charter.
- The Council could establish a subsidiary body under article 29 responsible for collating the empirical and analytical work referred to above, and feed it into the Council’s deliberations. This would fill the lacuna in the negotiations that bedevils progress to date.
- The Secretary-General could, acting article 99, could take more initiative in bringing before the Council, through the subsidiary body or directly, further evidence and ‘response options’. The climate crisis demands new leadership at the global level.
Is all this an excessive luxury? As one jurist has put it, is such an action ultra vires or ultra-innovator?
It will be tempting for some to shy away from according such power to the Security Council. It has already proven too tempting for some to deny climate change. The fact is, the Council has already undertaken such decision-making, in resolutions 1373 and 1540 with regards to terrorism. It would be an interesting survey of global opinion whether the world’s people regarded global terrorism or climate change as the greater threat. Perhaps both qualify for such powers.
The adoption by the Security Council of climate change in the manner above would not necessarily pre-empt the UNFCCC negotiating process. It could be seen as supplementary to it. But it could also act as a catalyst. Decisions emanating from the Council could galvanise the UNFCCC into faster and more far-reaching action.
One thing is certain. Something needs to change.
 Stefan Talmon, ‘The Security Council as World Legislature’ (AJIL, 99(175); and Eric Rosand, ‘UN Security Council as Global Legislator – Ultra Vires or Ultra-Innovator’ (Fordham ILJ, 28(3) 2004).
Tags: Article 29, Article 99, Chapter VII, Climate Analytics, climate change, COP19, copenhagen, ECOFYS, IPCC, PIK, Secretary-General, UN Charter, UN General Assembly, UN Security Council, UNFCCC, Warsaw