By Sandra Arntz, Sjoerd Bakker, Samuel Ballin, Sophie van Dongen and Eliane Iven
1. Introduction
30 November 2023 marked the beginning of the annual Conference Of Parties (COP28), a meeting in which the 198 state parties to the United Nations Framework Convention on Climate Change (UNFCCC) meet to determine the next steps in global action against climate change. The main goal of the UNFCCC is to stabilize the concentration of greenhouse gases in the atmosphere at a level that will prevent dangerous human interference with the climate system and to stabilize the concentration within a time frame that will allow ecosystems to adapt naturally. The Conference of Parties is a formal institution established by Art. 7 of the UNFCCC. It functions as the supreme body of the UNFCCC and takes decisions on implementation and changes to the UNFCCC. The annual conference of this institution thus is an important event in the fields of climate law and human rights law.
Scientists in many fields were closely monitoring the proceedings at COP28, including ourselves. We are five PhD candidates working on Sustainability and Public Law at Radboud University. Some of us are also coordinators and active members of the new NNHRR working group on human rights and the climate crisis. Our research topics all relate to climate change and human rights. In this blog post we will review the topics discussed at COP28 through the lens of our individual research projects.
Part 1 of this blog entry will address the topics of financing the fight against climate change; and the right to a clean, healthy and sustainable environment. Part 2 will revolve around international criminal law and the environment; the rights of people on the move; and trading carbon credits.
2. Further financing the fight against climate change
Eliane Iven strives to distinguish points of optimization within the existing Dutch legal system of inter-government finance in order to increase the (current) success-rate of large, decentralized (transition) tasks. To find these points of improvement, she researches the link between this national financing system and the local and regional roll out of the Dutch energy transition within the built environment. This ongoing national transition task is modelled by the Dutch government to fulfil (inter)national climate goals set in supranational climate agreements, such as the United Nations Framework Convention on Climate Change (‘UNFCCC’) and the accompanying Paris Climate Agreement. Because of this legal connection with international climate law, the research is directly guided by the financial developments of each year’s COP, whose latest shall be discussed here. In addition, the study is also under the influence of international human rights, including the right to life, food, housing and health and the new right to a healthy environment, whose governmental focused obligations and principles shall have to be implemented and respected in the proposed guidelines.
In short: a brief talk through of public international climate finance
Before we take a look at the financial developments that came out of this year’s COP28 in Dubai, it is important to have some deeper understanding of the system of international climate finance. More specifically: the public component of this complex global financing system.
The obligation to provide (enough) financial resources towards climate adaption, climate mitigation and climate change prevention stems directly from the Art. 4(3) annex II of the Framework Convention imposes a legally binding obligation for the economically and industrially well-endowed state parties to the treaty to provide ‘new and additional financial resources to meet the agreed full costs by developing country parties’. These financial resources are therefore aimed to support economically less developed parties with the national implementation of the administrative and climate-oriented obligations that the UNFCCC membership creates.
The UNFCCC then allows two different paths to provide this climate funding. The governments of these economically and industrially developed states can provide their financial resources either directly (from state to state) or indirectly (through climate funds that support the national implementation process of the UNFCCC and (directly) related legal instruments, such as the Paris Climate Agreement). This ‘indirect way’ of providing financial resources is otherwise known as the ‘international financing mechanism’ of the UNFCCC and currently consists of four climate funds: the Green Climate Fund (‘GCF’), the Special Climate Change Fund (‘SCCF’), the Least Developed Countries Fund (‘LDCF’) and the Adaption Fund (‘AF’). The SCCF, the LDCF and the AF are all operated by the Global Environment Facility (‘GEF’). The GCF manages itself. All four of the climate funds emit grants and/or low interest loans for projects and programs that increase national, regional or local climate mitigation and climate adaptation.
In practice, most of the receival and the emission of international public climate funding takes place indirectly. For this reason, the composition and operating budget of the international financing mechanism has been an important subject during recent COP’s. For example: during last year’s COP27, the Conference of the Parties decided to expand the mechanism with a third operating financial entity: a Loss and Damage Fund ('LADF'). While the specific details of the LADF are still unclear, this financial entity has the prerogative to close the financial gap that exists within the current climate funds. This fund will do so by providing financial resources for unavoidable drawbacks of climate change, such as desertification, forest fires and national extinction of animal and plant species.
New financial developments from COP28: ‘A global framework for public climate finance’ and more money towards climate adaption
At this year’s COP28 in Dubai, public international climate finance again took a center stage. Multiple new (funding) agreements have been made to support the general goal of this year’s COP ‘to (further) help the most climate-vulnerable communities and to create more “inclusion” overall’.
1. A Climate finance framework
The first main (public) financial development of this year’s COP is that thirteen countries (Barbados, Germany, France, Ireland, the Philippines, Colombia, Ghana, Kenya, India, Senegal, the United Arab Emirates, the United Kingdom and the United States of America) decided to support a ‘Declaration on a Global Climate Finance Framework’. This financial framework contains ten generic guidelines about constructing and delivering (enough) public climate finance to make finance available, accessible and affordable for (economically vulnerable) UNFCCC state parties. It is currently still unclear if practical and/or judicial governmental financial obligations will stem from this financial framework and what these obligations will be.
2. An upgrade to the existing budget of climate funds
In addition to this non legal framework about public climate finance, several national governments of economically and industrially developed state parties to the treaty used the momentum of COP28 to 'pledge' additional donations to the climate funds within the international financial mechanism. These financial donations are aimed to fulfil a pre-existing joint financial agreement to co-generate at least $100 million USD of public climate finance per year from the year 2020 onwards.
Australia, Estonia, Italy, Portugal, Switzerland and the United States of America increased their current donation to the GCF, bringing its total deployable budget balance to $12.8 billion USD. Belgium, Canada, France, Germany, Ireland, Norway, Spain, Sweden and the United Kingdom promised additional financial resources to the SCCF, the LDCF and the Adaption Fund, together pledging an additional $174 million USD to the SCCF and the LDCF and an extra $188 million USD to the Adaption Fund. The Netherlands also further financially committed itself to the Adaption Fund, and promised to donate an extra $16.3 million.
Should we be content with these new financial developments?
These new ‘pledges’ to the GCF, the AF, the SCCF and the LDCF together create a 'record amount' of public financial resources. However, recent financial research show that this exclamation is hyper-optimistic at least and it is better suiting to consider these additional financial commitments (somewhat) underwhelming.
Just before COP28 took place, the United Nations Environment Programme (‘UNEP’) published the latest 'Adaptation Gap Report'. A yearly report in which this global authority discusses the current gap between the adaption needs of the economically and climate vulnerable state parties to the treaty and the current amount of (public) financial support that has been accumulated. Reading the report shows that the current adaption needs greatly overflow any of the financial pledges that were made at COP28 (glossary, executive summary). For example: the AF already has a yearly budget deficit of $194-366 billion USD and this deficit is expected to rise further each year (chapter 4).
The additional financial resources that were agreed on during COP28 therefore only create a small dent in the amount of (public) funding that will be needed to successfully implement the UNFCCC and the Paris Climate Agreement. Fortunately, it was recognized during this year's COP that there is a lot more work that has to be done. The governments that were present have agreed that ‘new efforts will (have to) be made to create a new multilateral financial architecture and to accelerate new (governmental) sources of financing’. It will be interesting to see how these plans will unroll at COP29 in Azerbaijan and COP30 in Brazil. I will get back to you on that!
3. Right to a clean, healthy and sustainable environment
Sandra Arntz's research focuses on the extent to which the right to a clean, healthy and sustainable environment is currently protected in the Netherlands and examines whether the Netherlands should recognize this right as a separate human right at the national level.
The right to a clean, healthy and sustainable environment has been recognized as a human right in non-binding resolutions by the UN Human Rights Council (UNHRC) and the UN General Assembly (UNGA). The right to a clean, healthy and sustainable asks states to adopt a multisectoral approach to protecting the environment, fulfil their international commitments on environmental protection and share their good practices, knowledge and ideas on the protection of the environment. The resolutions do not create a human right that people can invoke in court, but send a strong political signal to states, international organizations, business enterprises and other relevant stakeholders to take action to guarantee a right to a clean, healthy and sustainable environment.
During COP28 state parties to the UNFCC were reminded of these resolutions in a submission of the UN Human Rights Office (OHCHR) on the LADF. In this submission, the OHCHR noted it has concerns about the limited reference to and integration of human rights in the submissions to the LADF. The OHCHR stresses that climate change has adverse effects on a wide variety of human rights, including the right to life, food, water and sanitation, health, housing, development, self-determination and culture and the right to a clean, healthy and sustainable environment. Therefore, the OHCHR advises to incorporate explicit references to human rights in the design and governing instrument of the fund. The OHCHR states that explicit references to human rights will support human rights compliance throughout the operationalization and implementation of the fund. Furthermore, according to the OHCHR the fund should integrate human rights principles such as ‘transparency, accountability, inclusiveness, intergenerational equity, equality and non-discrimination’ and act according to the principles of international environmental law, including the precautionary principle and the polluter pays. Whether or not the Transitional Committee, which is in charge of the design, governance and terms of the funds, will fully implement this suggested human rights-based approach to the operationalization of the LADF is yet to be seen. If the Transitional Committee would implement these advices, the LADF could become an instrument which ensures compliance with the right to a clean, healthy and sustainable environment.
Editors’ note: You may read further Part 2 of this blog post, which will be published soon.
Bios:
Sandra Arntz, PhD candidate at the department of Jurisprudence
Sjoerd Bakker, PhD candidate at the department of Administrative Law
Samuel Ballin, PhD candidate at the Centre for Migration Law
Sophie van Dongen, PhD candidate at the department of Jurisprudence
Eliane Iven, PhD candidate at the department of Constitutional Law