Saving Tuvalu

Unlike previous efforts, the substance of the Paris agreement is based on individual countries’ voluntary emissions targets, which each nation was encouraged to submit in the form of Intended Nationally Determined Contributions, or INDCs.

The voluntary nature of these targets is the result of, among other things, the fact that a binding treaty including quantified emissions targets would need to be ratified by the US Congress.

Given political realities in the US, seeking legally binding emissions targets would have effectively excluded at least one of the world’s largest emitters. (During COP21, presidential hopeful Ted Cruz convened a congressional hearing on climate change entitled “Data or Dogma?”, in which he claimed that “for the past eighteen years . . . there has been no significant warming whatsoever” and that CO2 is “good for plant life.”)

The fact that quantified emissions targets were off the negotiating table in Paris sat in tension with growing pressure to establish a global limit for temperature rise. Whereas the 2-degree Celsius threshold identified at Copenhagen has long been the marker separating “acceptable” levels of warming from catastrophic ones, a new limit was asserted by a coalition of vulnerable countries and civil society groups in a mantra that reverberated through the COP halls: “1.5 to stay alive.”

If 2C was a political compromise more suited to northern latitudes, the 1.5 threshold aimed to move vulnerable nations from the peripheral vision of the international system to its focal point. As Tuvalu’s environmental minister proclaimed in his national statement, “If we save Tuvalu, we save the world.”

But things don’t look good for Tuvalu. According to a recent United Nations Environmental Programme (UNEP) report, the current national commitments, if realized, would add up to a 2.7 degree increase in global temperatures above pre-industrial levels — well beyond the “acceptable” range for any part of the globe. Moreover, the large majority of developing countries’ national commitments are at least partially conditional upon international climate finance.

The substantive political problems of the COP therefore concerned whether and how developing countries will be provided with the financial support to respond to climate change; whether the most vulnerable countries will be entitled to compensation for loss and damage suffered as a result of climate impacts; and how the international community will contend with climate-induced displacement.

All these issues hinge on the crucial notion of “differentiation.” This principle, put forth in Article 3 of the UNFCCC, establishes the differential responsibilities of developed and developing nations regarding climate change, based on industrialized countries’ historical responsibility for causing global warming as well as their far-greater capacity to respond to it.

Based on this historical responsibility, developed countries have a legal obligation under Article 4.3 of the UNFCCC to provide developing countries with the resources necessary to reduce their emissions and adapt to climate change.

But while it is the cornerstone of the Convention, the notion of differentiation is something that developing nations cannot take for granted. The US and other wealthy countries have pushed for a reinterpretation of differentiation based on current emissions rather than historical ones, a move that would shift a large part of the burden to BRIC countries.

At the COP, all these problems of responsibility and obligation play out through the nuances of the text. Through all manner of minor turns of phrase and strategic omissions, rich countries continually seek to delink decisions from the provision.

Meanwhile developing countries are continually reinserting textual references to the Articles of the convention where this principle is enshrined. Up until the penultimate draft, the problem of whether the agreement would “be implemented on the basis of . . . common but differentiated responsibility” or would merely “reflect” this principle remained unresolved, although the US had been forced to back off its proposal to delete the relevant article altogether.

Should and Shall

The COP is a massive logistical and infrastructural endeavor that requires transportation, catering, security, and information services for 22,000 registered participants, where everything from lighting to menu design is a diplomatic affair.

Because the very process of negotiation is itself subject to negotiation, trying to keep up with the COP can be a disorienting experience. There is an established schedule of side events, press conferences, and “High-Level Segments,” but the time, location, and details of access to the negotiations themselves are in constant flux.

The confusion of the schedule is not just annoying for observers — it also bears geopolitical weight. During the second week of the COP, many developing nations with fewer delegates complained that they struggled to locate the “informal” discussions and “bilaterals” that COP President Laurent Fabius has convened in order to sort out particularly sticky political problems in the text, undermining their participation in the agreement.

Although Fabius has been praised for avoiding the backroom process that undermined the Copenhagen agreement, the problem of transparency is consistently raised by developing countries through debate over when, where, and how meetings should be conducted.

Inside the meeting rooms, the pace of events is markedly slower. The working documents are the product of years of negotiations, inaugurated by the Durban Platform in 2011, all of which have led up to the promise of a global agreement for the post-2020 period and an agenda for pre-2020 action in Paris. Lack of consensus is depicted by a succession of nested brackets, resulting in grammatically tortured constructions like this:

[[Developed  country  Parties  [and  other  developed  country  Parties  included  in  Annex  II  to  the  Convention][and Parties  in  a  position  to  do  so]  [should  take  the  lead  and]][All  Parties  in  a  position  to  do  so]  [shall][should][other] provide  [support][[new  and  additional]  financial resources]  to assist  developing country  Parties  with  respect to both mitigation  and  adaptation  [as  well  as  addressing  loss  and  damage]  [and  others  in  a  position  to  do  so  should complement such efforts].]

The weight of global futures that bears on each nuanced shift in language is more, apparently, than the text can withstand. Developing countries strongly favor that climate finance be “provided” by developed countries through public funds, whereas developed countries push for such resources to be “mobilized,” opening the door for private capital to fulfill the bulk of climate finance obligations.

In the final moments leading up to the agreement, the US threatened to back out altogether when a “should” was replaced with a more-legally-binding “shall,” a change that was quickly chalked up to a technical error.

Similarly, the seemingly innocuous afterthought urging “others in a position to do so” to “complement such efforts” carries particular import, as it would include rapidly industrializing nations such as China and India among those responsible for financing the mitigation and adaptation efforts of the rest of the developing world — a proposition that for these countries disavows the West’s historical responsibility for squandering the global “emissions budget.”

Much of the substance of differentiation comes down to the question of “climate finance,” or who will pay for climate change mitigation and adaptation. For many countries, the answer to this has been emissions markets. Through the Clean Development Mechanism (CDM), developed countries with binding emissions reduction obligations under the Kyoto Protocol can “offset” their emissions by purchasing credits from offsetting projects in developing countries, where the cost of mitigation is cheaper.

Criticisms of the CDM for its failure to actually deliver on mitigation are nothing new, whether due to outright fraud or to the inherent flaws in emissions accounting. Equally ubiquitous are documented cases of the land- and resource-grabbing that often accompanies offsetting projects, especially those involving forest offsets. The CDM, as many have argued, is essentially a big loophole designed to enable developed countries to meet their emissions targets on paper without actually investing in infrastructural changes back home.

But since the market essentially collapsed from lack of demand in 2012, arguments in favor of the program have become even less tenable. Offset prices of one to three dollars per metric ton of CO2 undermine the whole economic logic of carbon markets, which is to “internalize” the cost of emissions and thereby provide a disincentive to emit (managing director of the IMF Christine Lagarde recently suggested that an economically efficient price for carbon would be far higher, around $30 per ton).

It was clear in Paris that the emissions trading industry had high hopes that the carbon markets might be revived in a new agreement. At a business-focused side event, Jeff Swartz, Director of Policy for the industry group International Emissions Trading Association, described the group’s lobbying efforts leading up to COP21, which included proposing specific wording for the agreement to delegates in 90 countries.

Whereas the current geography of carbon trading is a fragmented patchwork of regional and national markets, each with their own accounting and verification procedures, the Paris agreement could open the door for new international standards that would enable carbon to circulate seamlessly in globally-integrated markets. “Business wants rules,” Swartz said; it is up to governments, he argued, to create the necessary conditions that will expand foreign investment in climate finance and enable carbon to become a truly “fungible” commodity.

With Brazil and India among those pushing hardest for an expansion of emissions trading, the issue hardly marks a binary division between “developing” and “developed” countries; Patrick Bond recently wrote that “with regard to both world financial markets and climate policy, the BRICs are not anti-imperialist but instead subimperialist.” Nonetheless, the expansion of market-based climate finance such as carbon trading serves developed countries by shifting the burden of climate finance off of their public coffers and onto private markets.

At a COP side event on climate finance, a speaker from the Kenyan government demonstrated the extent to which some developing countries are overhauling their policy infrastructure in order to attract much-needed climate finance in all forms. Outlining Kenya’s “Elaborate Climate Finance Readiness Strategy (ECFRS),” he argued that developing countries need to establish legal, institutional, financial, and reporting frameworks that will make them as “attractive” as possible to the private capital flowing into climate change adaptation and mitigation.

The state’s role, the Kenyan speaker argued, is to provide the accounting frameworks, institutional support, and regulatory environment necessary to “liberate” the private capital flowing through a tangled network of financial channels.

This mandate that the developing state contort itself to the demands of private climate finance was countered by the speaker’s colleagues on the panel. The climate justice activist Mithika Mwenda pointed out that the whole point of climate finance is to support those necessary activities that don’t produce a return on investment.

Likewise, Mariama Williams of the South Centre, a consulting group that assists developing nations in international negotiations, was clear that “Climate finance arises out of one fact: historical responsibility.” This alone distinguishes it from voluntary development assistance.

In practice, however, this distinction is not so simple. According to the Adaptation Finance Accountability Initiative, with some monies going through public budgets, some through national climate funds, some through designated international funds, and some through private markets, tracing the flows of climate finance — and where they ultimately end up — is near impossible.

As Williams pointed out, the very confusion of climate finance flows is a strategy on the part of developed countries to overrepresent their contributions to developing countries. Moreover, as Mwenda described, developed countries tend to direct funds to institutions that they dominate, such as the World Bank, rather than the more democratic funds that serve the Convention.

In this light, the $248 million pledges heralded at COP21 for the Least Developed Countries Fund are not so much a boon as a belated acknowledgement that while billions are reportedly flowing into climate finance, the funds dedicated to making these resources available to the most vulnerable countries remain empty.

This is why developing countries pushed so hard for the qualifier “new and additional” to be added to the text on climate finance — it’s an attempt to ensure that climate finance means more than just a redirection of existing development assistance.

As the environmental minister of Tonga — one of the planet’s most climate-vulnerable nations — explained in his address to the COP, the country is already spending 30 percent of its overseas development assistance on climate change adaptation. Unless the climate finance promised for developing countries comes on top of existing development assistance, it effectively means that these countries will be sacrificing long-term development goals to the demands of basic survival.

Loss and Damage

Across town at Paris’s Grand Palais, the corporate perspective on climate finance was represented at the COP21 Solutions exhibit. Dubbed “The Climate Experience,” the exhibition by major energy, transportation, and beverage corporations sparked a protest in which activists were forcibly removed for calling out the environmental and human rights violations of companies participating in the event.

Inside the Grand Palais’s art nouveau pavilion, a display by the transnational energy, water, and waste management corporation Veolia invited the visitor to “Voyage to the land of +2C” through a set of white curtains. Inside, rather than submerged coastal cities and devastating droughts, the land of +2C was a “circular economy” powered by methane, in which the currency was the “price of carbon.”

Across the pavilion, on a stairway constructed in a form of a glacier, visitors donned goggles to embark on a virtual reality tour of Evian’s sustainability solutions while chickens pecked in the grass of a tiny barnyard maintained by the French oilseed industry group Avril.

Of course “The Climate Experience” for much of the world’s population bears little resemblance to corporate techno-futures of biofuels and cradle-to-cradle plastics. For most, that future is better articulated through the Paris agreement’s language of “loss and damage.” Loss and damage recognizes the limits of adaptation, beyond which affected countries and populations should be subject to some kind of redress for the loss.

But how and by whom this redress should take place is not easy to answer. Climate change is a “threat multiplier” that compounds existing stressors, making the “climate-induced” elements of loss and damage difficult to extricate from the social and political ones.

An average of 26 million people have been displaced annually by natural disasters since 2008, compounding the existing refugee crisis that promises to become still more dire. What exactly counts as “loss and damage” in this instance is hard to pin down, given the tendency for the slow violence of climate change to flip into the fast violence of conflict. In his address to the COP, for example, Al Gore drew a narrative line from drought-induced grain shortages in Russia to the food riots and self-immolation that helped to catalyze the Arab Spring in Tunis.

Yet the language of loss and damage has been crucial for developing countries and activists hoping to pry open a space for the possibility of compensation from high-emitting countries for the impacts of climate change — what some have referred to as climate reparations. Loss and damage compensation would transform the general acknowledgement of historical responsibility into a principle of liability.

However, the complexities of climate change as a form of slow violence make meeting the narrow demands of liability in most legal contexts extremely difficult. Nevertheless Friends of the Earth has argued that existing principles of international law barring states from causing environmental harms outside of their borders could provide a basis for loss and damage liability.

In Paris, loss and damage was a red line issue for both vulnerable countries and high-emitters. Vulnerable countries insisted that loss and damage from both “slow onset” and “extreme” events be acknowledged as an issue distinct from adaptation, and pushed for the establishment of a “climate change induced displacement facility” to coordinate migration and planned relocation. Meanwhile the US threatened to back out altogether if the text allowed for liability, and insisted that a waiver be added that explicitly barred this possibility.

Performing Justice

As negotiations stretched on in midnight-to-5 AM meetings, there was a general sense of drama around the possibility of collapse. In the final hours of negotiations, COP President Laurent Fabius warned that Paris must not become “Copenhagen with more police.”

But US brinksmanship notwithstanding, there was always going to be an agreement. As Fabius made clear in his plea to delegates in the final hours, a failure to come out with something would have compromised “the very credibility of multilateralism and the international community as an entity able to respond to global challenges.” The reality is that the COP’s function as a performance of international consensus is probably too important at this juncture for even the least-cooperative nations to let it fail entirely.

What, then, was accomplished in Paris?

The final agreement is a stripped-down compromise text that has lost much substantive detail, but in which some crucial provisions remain. Language on human rights, gender equality, the rights of indigenous peoples, and the need for a just transition — the product of years of work on the part of civil society groups and indigenous movements — have been relegated to the preamble of the text, weakening their legal import.

The temperature goal also falls in a middle ground, with a commitment to staying “well below 2C above preindustrial levels” and a promise to “pursue efforts” to keep it below 1.5. The legal structure of the agreement itself — based on non-enforceable voluntary emissions reductions — makes these targets purely rhetorical.

Differentiation is less strict than in some previous agreements (like the Kyoto Protocol), but it cuts through the entire text. Article 2, in a somewhat awkward compromise, asserts that “The Agreement will be implemented to reflect [my emphasis] equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.” This overarching statement — which the US wanted to delete entirely — is an important gain for developing countries.

The section on finance, now in Article 9, clearly states that “Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention.”

It also “encourages” other Parties to do so voluntarily, to the apparent satisfaction of India and China who had strongly resisted being subject to the obligations of the major historic emitters in the West.

But the $100 billion promised in the decision text accompanying the agreement is actually a figure that was already negotiated eight years ago in Cancun; its presence in this text is simply testament to the unceasing work of activists and developing country parties to prevent the US and other rich countries from backsliding on this promise. It is also a number that pales in comparison to the $500 billion spent annually on fossil fuel subsidies, which receive scant mention in the agreement.

Moreover, the crucial details surrounding the $100 billion figure — primarily the provision that these monies be “new and additional,” that they be grant-based, and that they come primarily from public coffers — have evaporated, and the Article encourages the “mobilization” of resources “from a wide variety of sources, instruments and channels.” Giving substance to this, Article 6 establishes a new mechanism for cooperation on “internationally transferred mitigation outcomes” — newspeak for emissions trading.

The agreement gives loss and damage its own section separate from adaptation, makes permanent the Warsaw Mechanism on Loss and Damage (established in 2013 and previously set to expire in 2016), and establishes a task force to address climate displacement.

In place of liability or compensation, however, the text prioritizes insurance-based solutions for vulnerable populations. As a final nail to the issue of reparations, the US has succeeded in gaining a general waiver that “Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”

Thus what has really been accomplished at the COP is the slow, careful work by which rich countries refuse to substantively accept their historical responsibility (and that of the corporations whose agendas they support) for the environmental devastation that threatens lives and livelihoods, and the very existence of many nations, around the globe.

Each strategic delay, each subtle weakening of language, each return to the passive voice reduces our capacity for collective action, helping to lock in irreversible climate change that condemns many nations to wholesale extinction. This is the banal, bureaucratic work of slow violence.

But this is work that is far from complete. Developing countries have fought successfully and made significant gains in this process; indeed, since the 1972 Stockholm Convention on the Environment that helped to inaugurate the Third World Forum, international environmental politics has been an important arena in which formerly Third World countries have asserted national sovereignty.

In regard to climate change, however, the uneven geography of vulnerability intersects with that of geopolitical power, such that it is the most vulnerable countries who can least afford the hardline negotiating strategies that might undermine an agreement.

On the other hand, “non-outcomes suit the powerful,” by substituting the “performance of care” for substantive policy. Speaking for the Caribbean community, Barbados admonished delegates that the failure to acknowledge these uneven capacities and vulnerabilities constituted a “benign neglect” that would condemn island nations to “certain extinction.” In this context, climate change is not simply an unintended byproduct of colonial history, but an ongoing act of imperial violence.

Looking at the COP as a process of slow violence raises questions about the meaning of climate justice in the context of the UN system. In her coverage of Israel’s 1962 prosecution of Nazi SS commander Adolf Eichmann, Hannah Arendt reflected on the basic juridical problem at the heart of the trial: to what extent could criminal law provide justice for the kind of “administrative massacre” perpetrated by the German state bureaucracy?

In the final paragraphs of her postscript to the trial report, Arendt distinguished between the notion of individual guilt and the fact of political responsibility, which “every government assumes . . . for the deeds and misdeeds of its predecessor and every nation for the deeds and misdeeds of its past.”

“It is quite conceivable,” she argued, “that certain political responsibilities among nations might some day be adjudicated in an international court; what is inconceivable is that such a court would be a criminal tribunal which pronounces on the guilt or innocence of individuals.”

Based on the process in Paris, such an institution would not be the UNFCCC, either. Through the principle of differentiation based on historical emissions, the UNFCCC establishes this notion of political responsibility as the basis for an international legal framework for contending with climate change. Nevertheless, the reality of international negotiations means that it falls far short of holding Parties accountable to this in practice.

If justice requires the capacity to judge, to allocate responsibility for wrongdoing, how is climate justice to be achieved in an institution that requires the consent of those who bear the lion’s share of that responsibility? What does the promise of a “just transition,” relegated now to the non-operative preamble of the text, mean without the ability to enforce that justice?

The lesson from COP21, as a political process and spectacle, is not only that our international institutions remain woefully inadequate for facing the structural violence that underpins modern life. Arendt highlights how the performance of justice, by failing to confront its own limitations, risks perpetuating the atrocities it seeks to address. The COP21 was nothing if not such a performance, in which the language of “climate justice” was invoked by heads of state and delegates from rich countries and poor alike.

The ongoing violence of climate change demands that, rather than seeking justice in an institution fundamentally incapable of delivering it, we confront the question inspired by Nixon. How do we create institutions that hold actors responsible for “a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all”?

The Paris Agreement is not an outcome to be celebrated or rejected, but a series of foot- and handholds along a path that remains a steep climb.

The presence of loss and damage, the up-front acknowledgement of differentiation, the mandated reporting and updating of national contributions every five years, and the mention of a 1.5 Celsius temperature limit all provide imperfect tools with which to demand state policy that would make the targets meaningful.

All of these tools, as Kate Aronoff has noted, are the results of years of struggle, and all of them will continue to be grasped by activists at the forefront of that struggle. As Carroll Muffett, president and CEO of the Center for International Environmental law, put it:

It’s simply easier [if the mention of human rights is] in the operative text; but I can tell you, lawyers like me, and lawyers around the world, will be taking those existing rights, they’ll be taking this preamble, and they’ll be taking every word of this text against any party who tries to block human rights.

Because it’s international in scope, the agreement can provide a common point of gravity among a diversity of local movements on the front lines of the struggle to keep fossil fuels in the ground, to address climate-related displacement, and to prevent land grabbing under the guise of sustainable development.

Much of this will have to happen at the national or sub-national level, as it is in domestic law where the goals articulated in the INDCs will or will not take legal form. With the recognition that “the legalities standing in the way of justice” demand that environmental activists, labor unions, indigenous movements, and coalitions of climate-vulnerable peoples continue to take climate justice into their own hands, the Paris agreement may provide a framework for strengthening existing solidarities and forming new ones.

There is a danger, however, that the COP process itself, in its attritional slowness, will drain vital energy and resources from efforts to build more effective climate justice institutions. Without rejecting the international process as simply dysfunctional, we should be wary of how its particular functions can absorb and redirect activist energy that might be better spent elsewhere.

As Sarah Bracking and M. K. Dorsey caution, “having an inflated and not very well proved faith in the ability for supranational structures to change our future . . . detracts from efforts to build it ourselves in the everyday now.” In these efforts, the Paris Agreement might be one more tool in the shed, but only if it is taken up with the understanding that the institutions capable of delivering on climate justice are yet to be built.