COP26 and the Flawed Design of International Law
With respect to climate change, the Earth’s atmosphere should be recognized as a global trust that obliges states to restore and sustain climate stability. With respect to future generations and the Earth system, we need a UN Earth Trusteeship Council. If the international community does not embrace institutional changes of this nature, then it is left with negotiated environmental measures. As COP26 has demonstrated yet again, such measures are too little, too late.
The recent Climate Summit in Glasgow had all the hallmarks of a Greek tragedy. The protagonists, conscious of their world stage, fervidly expressed their concerns and ambitions.
They pledged to meet the targets that they set themselves in Paris six years earlier. The audience, however, sensed failure. Unfulfilled promises, sound science, and new promises tell us that the Paris targets will not be met. And deep down, we know that 30 years of climate negotiations have failed because, ultimately, there’s nothing to be negotiated.
The climate system is deteriorating, and we experience the impacts with accelerating frequency and intensity. While new emissions reduction targets have been agreed on, there is no consensus on how they could be achieved or even how important they are. The overarching concern of States has been to protect their national interests against the common interest. By not even realizing this as a paradox, the protagonists of COP26 acted like tragic figures.
Our tragedy is that the system of international law has been created to maintain peaceful relations between states, but it fails in relation to the global environment. The atmosphere, the oceans, and the biosphere are outside national jurisdictions and are hence less important than what is going on within national boundaries. States do not have jurisdiction over the global commons, yet they are free to use them as they wish. The global commons are vital for us all, yet appear as “the other”, removed from daily politics and hardly feature in decision-making about health, housing, transport, education, or the economy. Not by chance, the Secretary-General of the United Nations, Antonio Guterres, opened COP 26 by saying that “the world treats nature like a toilet” and that “we’re digging our own graves”.1 His graphic images reflect what is known among international lawyers as the tragedy of the global commons: all people need them, but only a few really protect them, and Governments are preoccupied with meeting domestic demands.
There is no easy solution to overcoming this tragedy, but a better design of our current system of law and governance seems inevitable. As a first step, we need acceptance that there is a design flaw in the current system of global governance. The design flaw is twofold. The first flaw can be described as the paradox of sovereignty.2 It lies in the fact that states must be able of binding themselves to validate international law, but also be incapable of being bound to maintain their sovereignty. Conventionally, this paradox can either be ignored as not practically existing or seen as solvable through ongoing consensus-building between states. However, this does not work for matters that are global by nature and require urgent action.
That is why the UN system provides for urgent action authorized by the Security Council, for example, with respect to preventing war, genocide, and other imminent disasters. The issue here is not the effectiveness, or lack of it, of the UN Security Council, but the blindness of the UN system towards ecological disasters. These tend to unfold slowly, yet when their full scale is realized, it is typically too late. States become mere bystanders in a situation where the urgency of environmental problems such as climate change is obvious. This calls for a legally binding obligation to act once the precautionary principle is triggered, but such an obligation does not currently exist, not to mention the notorious lack of enforceability. Significantly, Article 3.3 of the 1992 UN Framework Convention on Climate Change stated that the Parties “should”, not “must”, take precautionary measures to anticipate, prevent or minimize the causes of climate change. And the 2015 Paris Agreement does not even mention the precautionary principle or precautionary measures. In the Anthropocene, the design flaw of lacking state obligations to protect the global environment will even more so lead to uncontrollable developments and ultimate disaster.
This brings us to the second, even greater design flaw of the current system of international law with its roots in Western epistemology. It is the assumption that humans are somehow separate from nature. We are not. Nature is not an assembly of natural resources made for human consumption, but a complex interconnected ecological system, called Earth, that humans are part of and need to respect.
The Covid-19 pandemic is a poignant reminder of this and so is climate change in its interconnections with the oceans and biological diversity. We will not be able to tackle climate change without simultaneously addressing the alarming acidification of oceans and the dramatic loss of biodiversity, both losing their functions as carbon sinks and climate stabilizers. Likewise, reversing biodiversity loss and halting acidification are illusionary under the conditions of runaway global warming. In short, an Earth system approach is required for better design of law and governance. In its Preamble, the 2015 Paris Agreement notes “the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth”. But this has, so far, remained a mere sentiment without tangible action.
The Earth system needs to be a subject of international law as the Earth Charter has stipulated. While endorsed by IUCN and UNESCO, the United Nations and most states have yet to adopt the Earth Charter which was drafted by civil society groups, across all nations, cultures, and religions, as an ethical framework to guide international law and governance.
In a recent address to the UN General Assembly, UN Secretary-General Guterres stated that “COVID and the climate crisis have exposed profound fragilities as societies and as a planet”. He continued: “Let’s be frank. Today’s multilateral system is too limited in its instruments and capacities, in relation to what is needed for effective governance of managing global public goods. It is too fixed on the short term. We need to strengthen global governance. We need to focus on the future. We need to renew the social contract. We need to ensure a United Nations fit for a new era”. To address the “planetary emergency”, he proposed an “emergency platform”.3 This and other proposals are detailed in the Secretary-General’s Report “Our Common Agenda”.4 The Emergency Platform would not be a permanent institution but would be triggered automatically in crises of sufficient scale and magnitude. Its purpose is to respond to singular events and, in this way, make the international crisis system ready. However, the Report goes further. Concerned with overcoming systemic failures of the current system of international law, it aims for giving future generations a voice and providing for effective governance of the global commons. To this end, the Report recommends “the repurposing of the Trusteeship Council” that has been suspended since 1994. It notes that “previous commissions and secretaries-general, along with some Member States, have proposed a repurposing of the Council to enhance the governance of the global commons”.
An early proponent of global commons governance was former Swedish Prime Minister Olof Palme who hosted the 1972 Stockholm Conference “Only One Earth”. In his opening address, he asked states “not to relinquish their national sovereignty, but use it for the common good” by “safeguarding our common property” and, in this way, “give a new dimension to the concept of state sovereignty”.5 Maurice Strong, the Secretary-General of the 1972 Stockholm Conference and the 1992 Rio Earth Summit, championed the idea of national sovereignty to include trusteeship responsibilities for the global commons.6 In 1992 he founded the Earth Council as an alliance of NGOs and a drafting platform for the Earth Charter. The Earth Charter became the key driver for overcoming the two mentioned design flaws of international law, i.e., the sovereignty paradox and anthropocentric reductionism. The Earth Charter promulgates the need for protecting the integrity of Earth’s ecological systems – beyond utilitarian interests – and associated state obligations. The 2018 Hague Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship articulate the reasons, scope, and depth of the concept of Earth Trusteeship and aim for recognition by the United Nations.
The UN report “Our Common Agenda”, Stockholm+50 and the 2023 Summit for the Future offer a window opportunity for overcoming the tragedy of the global commons. With respect to climate change, the Earth’s atmosphere should be recognized as a global trust that obliges states to restore and sustain climate stability.7 With respect to future generations and the Earth system, we need a UN Earth Trusteeship Council. If the international community does not embrace institutional changes of this nature, then it is left with negotiated environmental measures. As COP26 has demonstrated yet again, such measures are too little, too late.
1 UN Meetings Coverages and Press Releases SG/SM/20997, 1 November 2021 https://www.un.org/press/en/2021/sgsm20997.doc.htm
2 S. Betton, Sovereignty, International Law and Democracy, The European Journal of International Law, Vol.22(2), 373 at 377.
3 UN Meetings Coverages and Press Releases SG/SM/20918, 21 September 2021
4 Our Common Agenda – Report of the Secretary-General, United Nations September 2021
5 Statement by Prime Minister Olof Palme in the Plenary Meeting, 6 June 1972; http://www.olofpalme.org/wp-content/dokument/720606a_fn_miljo.pdf
6 M. Strong, What kind of United Nations?, 2001 https://www.mauricestrong.net/index.php?option=com_content&view=article&id=160&Itemid=85
7 K.Bosselmann, “The Atmosphere as a Global Commons”, in: Jaria Manzono, J. and Borras, S. (eds.), Research Handbook on Global Climate Constitutionalism (Edward Elgar, 2019), 75-87.