Special Issue: 5th Anniversary of the Paris Agreement
“We are taking COP 25 to Chile”[i], announced Carolina Schmidt, Minister for Environment of Chile at a press conference held at COP 24 in Katowice. The Paris Agreement had been adopted in 2015 (COP 21) and approving its rulebook was the essential purpose of the Katowice Conference, in order to allow the full implementation of the agreement. COP 25´s agenda was equally crucial, as it inherited the task of regulating the mechanisms under article 6 and would see the beginning of the updating process of Nationally Determined Contributions, among other relevant negotiations. When Chile was announced as the host country for this conference, it was cause for great local excitement, as many believed that finally, the topic was going to become more visible. COPs are not only a negotiator’s meeting but a global event, attracting the eyes of the world on their development. Environmental NGOs immediately called the Chilean Government to take this opportunity to move forward on real, not just symbolic climate action, starting by stopping the expansion of environmental sacrifice areas and insisting on the non-ratification of the Escazú Agreement.[ii]
This extra attention on Climate Change policy was much needed, given that these were unknown topics to the majority of the population.[iii] For example, in April 2020 a study showed that 80% of university students recognized the importance of climate change and climate action but the same number did not know that COP 25 was soon going to be held in Chile. Another illustrative anecdote is the 2017 presidential campaign when Manuel José Ossandón[iv], a Senator and presidential candidate was questioned about his own vote on the Paris Agreement on live TV and he could not remember either his vote or what this agreement was about.
Despite the sour outcome of COP 25 moving to Madrid, the impact of COP 25 on Chilean society can only be described as huge. It translated into civil society articulation, media coverage, an expansion of academic events and research on climate change, and some very concrete outputs impulse by the government and legislators, such as the first Chilean climate change law[v] and NDC updating process[vi]. In the next paragraphs, I will rely on autoethnography and ethnography (my own experience and observations of the COP 25 processes) to describe the phenomena of planning COP 25 from the host country’s perspective. This is representative of a Third World Approach to International Law and the Paris Agreement that sheds some light on aspects of the Paris Agreement that are often overlooked, and hence, unknown.
The relevance of TWAIL and a word on the Chile-riots
When comparing Chile to other countries of Latin-America, dominant voices argue that the country is “doing better” than its neighbors. Chile is a member of the OECD, it is ranked low in corruption rankings, its per-capita income is one of the highest of the region, it is rated as a secure market for foreign investment, and public institutions are regarded as stable.[vii]
This comparison, however, is embedded into the codes and institutions originating in the global north and uses parameters that say little about the true life of Chileans. Assessing Chile through those colonizer views provides an image of the country that is dramatically incomplete, and hence, false. Third World Approaches to International Law (TWAIL) is “a movement encompassing scholars and practitioners of international law and policy who are concerned with issues related to the global South in its broad conception.”[viii] This extends to scholarship that covers information and concerns that may not “fit” into the interests, aims, and values of global north institutions and scholarship, but is essential for a better comprehension of realities. The Global North-Global South paradigm is at the core of the UNFCCC (United Nations Framework Convention for Climate Change) and the Paris Agreement. The principle of common but differentiated responsibilities[ix] is fundamental on the regime, and the call to taking into account the specific needs and challenges of developing countries is present through different provisions of the convention and the agreement.[x] Hence, a TWAIL approach to international climate change law is essential for a better understanding of those specific needs and challenges.
Chile has a neo-liberal socio-economic model. It was implemented by a Military Dictatorship that lasted 17 years and (1973-1990), was promoted by the USA and other foreign influences. This administration turned the Chilean socio-legal model into a playground for neoliberalism and was able to crystalize this model in an almost impossible to change the Constitution that is still in place. The rhetoric used to justify this colonizer model is known: economic growth eventually leads to a better life for many. This rhetoric has been challenged by many. Chilean former President Allende, addressing the UN General Assembly in 1972, focused on the need to look at reality and challenge such assumptions: “The outlook which faced my country, just like many other countries of the third world, was a model of reflex modernization, which as technical studies and the most tragic realities demonstrate, excludes from the possibilities of progress, well-being, and social liberation more and more millions of people, destining them to a subhuman life.”[xi]
Indeed, many Chileans (including myself) have witnessed the absolute failure of this system. Our ecology has been devastated, natural resources plundered and in hands of foreign companies, and the consequent subhuman life conditions for millions who are deprived of access to basic rights such as a healthy environment, health services, education, just compensation for their work, a reasonable pension, among many others that are essential for human development. Despite the complete dismantlement of civil society after 17 years of dictatorship, the social movement has become stronger, and 2019 was precisely the year that demonstrated that.
On October 18, 2019, in a totally unplanned and spontaneous manner, after the Metro ticket price was raised, people just said “enough”. Indeed, “Chile woke up”.[xii] By the million and across different cities and regions Chileans protested. And the movement quickly demanded more than the metro ticket. The slogan was “it is not 30 pesos, it is 30 years of abuse”. The protests were strongly repressed by the military and the police but continued until COVID-19. The riots were used as an excuse to move COP 25 to Madrid. An excuse, I say, an opinion that will be further developed in the following section.
For now, I will finish this contextual introduction commenting that as part of this social movement, a constitutional reform vote was added to the agenda. Despite COVID, it was voted on in October 2020. 78% of the population voted yes to a reform to the Constitution. In locations with high environmental conflicts, this reached 90%. Apparently, Chileans disagree with the opinion others have about their life quality and are calling for a radical change. A second reading shows how environmental depredation is at the core of these social injustices. As others have started to pick up, the social movement and the environmental movement are closely connected, and COP 25 from a Chilean perspective is a testimonial to that.[xiii]
It is important to reflect, as scholars, on the importance of placing attention on local experiences, knowledge, and perceptions when studying International Law. In the following paragraphs, an account of some of these perceptions will be offered, focusing particularly on the process of planning COP 25.
TWAIL to COP 25: Planning the event as a testimonial
The process of planning COP 25 in Chile had a challenging start. Carolina Schmidt -COP25 president and Minister for Environment- and President Piñera proposed January 2020 as a date for COP, given the APEC conference was scheduled for December in Chile. Patricia Espinosa, the UNFCCC Executive Secretary, did not accept this request, and the date was set for 2-13 of December 2019.[xiv] The government promptly announced Santiago as the location, and the challenge to find a venue began For the event, they decided to build a conference center in Cerrillos, a peripheral area of Santiago. This was massively criticized. Firstly, because the justification used for the decision was that the only venue sufficiently large was already booked, which is clearly a weak argument, given the abundance of other suitable buildings and the Administrative powers that could have been used to use to secure any location, booked or not.[xv] Second, the sustainability behind a built-from-scratch temporary location is questionable. And finally, some saw a possible motivation to keep the local population and civil society away from the event.
As part of the plan to organize the COP, the Government (Ministry for Environment and the Ministry of Foreign Affairs) organized a series of 6 workshops for the involvement of civil society in the planning process. Those workshops (many of which I attended) were mainly focused on explaining their ideas and plans about the venue, the green zone, areas allocated to civil society and to business, and updates on their progress and decisions. Some organizations with more experience at other COPs perceived the government as unprepared, and unaware of what a COP really entailed. Their plans seemed somewhat improvised. It is worth taking into account that up to COP 24, there was only one Chilean Environmental NGO accredited as an observer for the COP process. By the 4th workshop (August) the Government was still unable to confirm the physical space in the venue that was going to be allocated to the Chilean Civil Society, and how they were going to allocate it. Some proposals and ideas emerging from Chilean NGOs were disregarded, and the Government offered a 100 square meter space to be used by industry, academia, and NGOs collectively and paying a fee.[xvi] A very frustrating part of the Civil Society then decided to run independently, align with the Mayor of Cerrillos, and host a parallel COP in a neighboring city hall building.[xvii] The Cumbre de los Pueblos, a regional Latin-American NGO coalition did the same.[xviii]
The social movement dramatically interrupted this planning process. Less than 2 months prior to COP 25 taking place, the protests started and the state of emergency was enacted, which translated into an immediate restriction of freedoms of movement and gathering, and brutal police and military repression.[xix] Environmental NGOs -already organized- promptly reacted and condemned such violations.[xx] During the following days, the President announced that COP 25 was not going to be held in Chile, using the social movement protests as an excuse. Once again, the opinion of the Civil Society was not taken into account. Indeed, the day prior to this announcement, some environmental NGOs had responded to an invitation to a meeting with Minister Schmidt via a declaration, asking the government to carry on with COP 25 as planned, but to develop it in a context of democracy and observance of human rights. Once again, the Civil Society opinion was disregarded. Public statements are testimony of this disagreement.[xxi] This is a clear contradiction to the text of the Paris Agreement, which encourages parties to enhance climate change education, training, public awareness, public participation, and public access to information and does not align to the spirit of the transparency framework established for the implementation of the PA.[xxii]
In parallel, there were more substantive discussions: a now very organized environmental civil society formed different coalitions[xxiii] and started campaigning and advocating more strongly for the ratification of the Escazú Agreement (regional agreement on public participation), as well as a more ambitious NDC, among other demands. These demands are still at the core of the work environmental and social organizations are doing in Chile. In view of the Constitutional Reform, there is a strong focus on advocacy, education, and promotion of an Ecological constitution that respects the rights of peoples and the rights of nature.
The engagement and work of Chilean civil society around COP 25 exceeds this simple testimonial example. However, this exercise does provide clear evidence of the impact that being chosen to host this event had as a social catalyzer in Chilean society, the intrinsic relationship between environmental and social justice, and the relevance of exploring such approaches of considerations when discussing COPs, the Paris Agreement, and International Law as a discipline.
Monserrat Madariaga is a Chilean lawyer and PhD Candidate at UCL. Her research, which is supported by a scholarship from the Government of Chile, focuses on the relationship between Civil Society and Climate Change Law and Government.
[i] Personal translation. See video on the Minister’s twitter account: https://twitter.com/CarolaSchmidtZ/status/1073664591513772032
[ii] The Escazú Agreement is a regional agreement protecting access to information and public participation in environmental matters, as well as promoting climate justice and the protection of environmental activists. Full text available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-18&chapter=27&clang=_en . See this calling to government also on: https://www.cooperativa.cl/noticias/pais/medioambiente/ong-cuestionan-preparacion-de-chile-para-recibir-cumbre-medioambiental/2018-12-15/143515.html
[v] For a comment on this legislation, see Madariaga, M. ´Is Chile Building Good Climate Governance? Reflections on the Drafting Process of the Climate Change Framework Law´ Environmental Law Review. For the legislation and its legislative discussion visit: https://www.camara.cl/legislacion/ProyectosDeLey/tramitacion.aspx?prmID=13728&prmBOLETIN=13191-12
[vi] See the 2020 Chilean NDC in Spanish at: https://mma.gob.cl/wp-content/uploads/2020/04/NDC_Chile_2020_español-1.pdf and in English at: https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/Chile%20First/Chile%27s_NDC_2020_english.pdf
[vii] See, for example: https://www.bbc.com/news/world-latin-america-50123494
[ix] See the preamble and principle 3.1 of the UNFCCC, available at https://unfccc.int/resource/docs/convkp/conveng.pdf
[x] Principle 3.2 UNFCCC and the preamble and article 4 of the Paris Agreement, available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf
[xi] Extract taken from Shad Hammouri, “Revisiting Allende’s 1972 Speech at the United Nations General Assembly: Histories Repeated with a Twist”, available at: https://twailr.com/revisiting-allendes-1972-speech-at-the-united-nations-general-assembly-histories-repeated-with-a-twist/
[xii] Slogan used to describe the spontaneous social movement that started manifesting on October 2019.
[xvi] Personal participant observation notes.
[xxii] Articles 12 and 13 of the Paris Agreement.