COP 26 Outcomes and Challenges for International Law
When the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) 26 began in early November 2021, it was filled with promises and pledges. Approximately two weeks later, the final COP resolutions were met with much criticism for a lack of meaningful progress on substantive legal and policy issues. However, the reality of accomplishments from COP26 and the way in which they have paved future issues is more complex and attenuated, yet equally critical.
The extended time between COP 25 in 2019, held in Madrid and hosted by Chile/Spain, and COP 26 in 2021, held in Glasgow and hosted by the United Kingdom, due to the Covid-19 pandemic, saw the generation of enhanced expectations for legal and policy outcomes across all sectors. This was particularly the case around the intersection between human rights and climate change, which has been profoundly impacted by the zoonotic origins of the Covid-19 pandemic, the effects of the pandemic on vulnerable and marginalized communities, the 2021 IPCC report highlighting the short and long-term existential impacts of global temperature increases, and the ever-present issue of migration.
Existing UNFCCC System Links Between Climate Change and Human Rights
From the outset, the inherent connections between the 2015 Paris Agreement on climate change (Paris Agreement) and human rights must be emphasized. Indeed, the Paris Agreement and subsequent COP outcomes have stressed that climate change constitutes a “common concern of humankind.” As part of the preambular framing, there is a recognition of the “intrinsic relationship that climate actions, responses, and impacts have with equitable access to sustainable development and eradication of poverty.” Additionally, the preamble stresses the impacts of climate change on all communities, especially traditionally vulnerable and marginalized communities such as women, children, indigenous and aboriginal communities, migrants, and those with disabilities, including principles of intergenerational equity. Further, the Paris Agreement elevates the recognition of climate justice as a tool against ecosystem-wide damage.
In terms of binding content, the Paris Agreement and the subsequent 2018 Katowice Rulebook provide a framework within which State Parties are to adopt and implement adaptation, mitigation, and loss and damage measures, as well as advance capacity-building efforts, technological development and innovation, and financing mechanisms, especially for the Least Developed States and Small Island Developing States. Each of these efforts necessarily involves connections to human rights concerns and has the potential to profoundly impact the achievement or hinderance of core human rights laws and norms at the national and international levels. As the Katowice Rulebook provides, this includes the creation of a dedicated Transparency Mechanism and associated framework, which are to be guided by principles including the facilitation of “active participation of all relevant stakeholders and takes into account sustainable development, gender, the special circumstances of the least developed countries and small island developing States, and the enhancement of indigenous capacities and endogenous technologies.” In the context of the Technology Mechanism, there is an emphasis on State Parties creating and facilitating technological advancements and transfers in a way that is gender-responsive. The 2019 Madrid Outcomes were highly technical in many ways, for example, facilitating the election of the first Paris Agreement Committee on Compliance members and establishing additional procedural parameters for the Committee’s functioning.
COP 26 Outcomes for the Climate Change and Human Rights Nexus
After two years of discussions regarding the needs of the planet and the needs of humanity in the face of climate change and the Covid-19 pandemic, the 2021 Glasgow Outcomes could perhaps best be described as heavily focused on governance mechanisms and structures. This does not, however, mean that the focus of the Paris Agreement implementation process has shifted away from addressing the nexus between climate change and human rights issues.
Indeed, the Glasgow Outcomes are significantly reflective of the impacts of the Covid-19 pandemic on efforts to address climate change, including in topics such as post-pandemic recovery, incorporation of sustainable development in recovery plans, and the need to address the climate-related or climate-exacerbated harms and vulnerabilities felt by many populations as they also struggle with pandemic impacts. The main policy outcome, the Glasgow Climate Pact, specifically recognizes the need for climate justice actions in certain settings and also “the important role of indigenous peoples, local communities and civil society, including youth and children, in addressing and responding to climate change” as part of the preamble. The Glasgow Climate Pact endorses and seeks to advance the role of youth and youth-led movements in climate advocacy and elevating climate change issues across all levels of government and society. It also again endorses the continued and deepening involvement of indigenous communities in the COP process and at the national level in State Parties. Additionally, and of critical importance given the known impacts of both climate change and the Covid-19 pandemic on women, the Glasgow Climate Pact calls for State Parties to “increase the full, meaningful and equal participation of women in climate action and to ensure gender-responsive implementation and means of implementation, which are vital for raising ambition and achieving climate goals.”
The Glasgow Outcomes reflect the tension between existing obligations and pledges of financial support for climate-impacted States from developed State Parties, linking the issues of finance with the ability of Least Developed Countries and Small Island Developing States to implement adaptation and mitigation measures in an inclusive manner.[1] Of particular note is the COP Decision on the Local Communities and Indigenous Peoples Platform, which reflects several years of efforts to operationalize this Platform as a tool for involving indigenous and local community voices in the COP system, thus allowing their knowledge and insights to be more broadly disseminated among State Parties.[2] The Decision then recommends that the work of the Platform and associated governance mechanisms within it be developed and shared with State Parties at the national level so as to facilitate the inclusion of this information in future nationally determined contributions (NDCs). In the COP Decision on Gender and climate change, there is an express link created between the effects of the Covid-19 pandemic on women and particularly on the ways in which already climate-vulnerable women have been negatively impacted by legal and societal responses to the pandemic. The Decision invites State Parties to specifically address gender issues and gender-responsiveness to climate change and associated impacts as part of their reporting requirements under the Paris Agreement, including in their NDCs. To foster a holistic understanding of the impacts of transitioning to a low-carbon economy on women, the Decision further invites collaboration with the International Labour Organisation to generate a report on these concerns and methods of generating opportunities for women in this context.
During COP 26, the Glasgow work programme on Action for Climate Empowerment (ACE) was launched. The ACE “serves as a flexible framework for country-driven action that addresses the specific needs and circumstances of Parties and reflects their national priorities and initiatives while building long-term capacity and expertise in developed and developing countries for implementing ACE, including by promoting strong domestic enabling environments.”[3] Gender inclusivity, inclusion of intergenerational equity principles, and efforts to coordinate between the UNFCCC system and other treaty bodies are emphasized as critical elements of the ACE system.
In the Decision on Matters relating to the forum on the impact of the implementation of response measures, the COP adopted the recommendations of the Katowice Committee of Experts on the Impacts of the Implementation of Response Measures regarding implementation of the first part of the workplan it has generated.[4] This part of the workplan seeks to identify and provide recommendations for State Parties to address the existing and potential negative impacts stemming from response measures to climate change. A core element of these recommendations is that policies, laws and plans adopted in this context be inclusive of community members including women, all aspects of labour, as well as the public and private sectors. Further, the recommendations emphasize the importance of including “complementary policies, such as economic policies, social protection, and labour policies, to help strengthen the outcomes of the implementation of mitigation strategies, plans, policies and programmes including nationally determined contributions and low-emission development strategies.”[5]
Refining the Climate Change and Human Rights Nexus
As the scientific knowledge relating to climate change and associated impacts has become more advanced and nuanced, the effects of these impacts on human rights laws and norms have gained in refinement as well. Indeed, law and society have come to understand that there is an inherent – and existential – link between the need to combat climate change and the need to protect human rights norms. The realisation of this nexus is only the first step on a long road to protecting planetary boundaries while also protecting humanity and fundamental, hard-won human rights norms and laws. In this context, the UNFCCC COP system serves as an example of the acknowledgment of the nexus as the first step in an evolving process of incorporating explicit protections for human rights law, as well as vulnerable and marginalized communities such as indigenous communities and women, into the legal and policy systems developed to combat climate change. This can often seem a slow process, especially in light of the legal and regulatory responses marshalled so quickly to address the Covid-19 pandemic. As has been seen in the short and long-term implications of these quickly created laws to address the pandemic, there is a need for deliberation when creating legal frameworks for non-human rights issues that have a direct impact on human rights norms. While the outcomes of COP 26 reflected a significant advance for human rights concerns in several constituencies and in terms of general recognition of the role of human rights in climate change response, future refinement of the nexus will need to be more holistic and broad-based in order to advance climate change and human rights together.
Dr. Alexandra R. Harrington is a Lecturer in Law at Lancaster University Law School. She is the founder and Executive Director of the Center for Global Governance and Emerging Law, and Research Director of the Centre for International Sustainable Development Law. She has served as Fulbright Canada Special Foundation Fellow at the Balsillie School of International Affairs in Waterloo, Canada and was the 2018 – 2019 the Fulbright Canada Research Chair in Global Governance, based at the Balsillie School of International Affairs. She holds a doctoral degree in law from McGill University Faculty of Law. Dr. Harrington is the author of International Organizations and the Law (2018) and International Law and Global Governance: Treaty Regimes and Sustainable Development Goals Interpretation (2021).
[1] Long-term climate finance, Decision -/CP.26 (2021); Matters relating to the Standing Committee on Finance, Decision -/CP.26 (2021).
[2] Local Communities and Indigenous Peoples Platform, Decision -/CP.26 (2021).
[3] Glasgow work programme on Action for Climate Empowerment, Decision -/CP.26 (2021).
[4] Matters relating to the forum on the impact of the implementation of response measures, Decision -/CP.26 (2021).
[5] Ibid. at Annex I art 2.