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COP 28: What gains for environmental rights?


Holding the first global stock take on climate action, the negotiations of this COP 28 in the UAE fueled many hopes and delivered some steps forward but also disappointments. Over a year after the global recognition of a human rights to a clean, healthy and sustainable environment, the international community again struggled to live up to the principle of “people-first”.

In the midst of stormy debates with phasing out of fossil fuels and climate finance at their centre, civil society present and international organizations put commendable efforts into promoting strong human rights guardrails across the spectrum of issues at play. Unfortunately, a human rights-driven global strategy has not sufficiently caught on yet.

Nevertheless, for the first time in history, the conference formally acknowledged the need to move away from fossil fuels. A memorable gain towards net-zero. Abandoning fossil fuel is a human rights imperative. Not only are fossil fuels the main driver of climate change leading to a range of threats to human life, but their exploitation is also associated with gross human rights violations across the globe. The operation model of fossil fuel exploitation projects requires horizontal expansion across lands that are either occupied or ought to be preserved. Several companies have come under fire for land-grabbing, causing mass displacement, exacerbating violence and abuse by local law enforcement often targeting environment human rights defenders.

The notion of fossil fuel “phase-out” has not made it into the final text at the benefit of “call[ing] on Parties” to “accelerate the phase-down of unabated fossil fuels”. However, there is no clear definition of “unabated” and the final text offers dubious solutions such as carbon capture and utilization and storage. The uncertainty of these pathways which assume carbon capture and storage capability greater than what is conceivably achievable is worrying. Let’s be reminded that every successful mitigation scenario necessitates a drastic drop in fossil fuels. Overall, the final text of the conference contained feeble and scarce human rights language. It simply  “encourages Parties […] to implement climate policy and action that is gender responsive, fully respects human rights, and empowers youth and children”. It also only comes as far as ‘encouraging’ States to deliver inclusive and gender-responsive climate action. 

During the Conference, States adopted a framework for the Loss and Damage Fund designed to assist and support vulnerable countries in coping with the consequences of extreme weather. This long-awaited agreement– a major stride itself – exemplifies the same tendency to relegate human rights to the background of deliberations. Before the conference, any reference to human rights was removed from the proposal of the Transitional Committee on the operationalization of the new fund.  

The Presidency of COP28 presented a novel package of declarations, introducing many topics long neglected by the high profile conference. Among them ‘COP28 UAE Declaration on Climate and Health’ aims to place health at the heart of climate action and accelerate the development of climate resilient, sustainable and equitable health systems.

The Declaration marks a world first in governments acknowledging the growing health impacts of climate change on communities and countries. It also acknowledges the large benefits to people’s health from stronger climate action, including by reducing air pollution and lowering health care costs.   

For the first time, Health Ministers are attending the annual UN climate conference alongside their peers from Environment Ministries. This signals a shift in how climate policies are considered, with a stronger focus on the social implications of government decisions. The Declaration covers a range of action areas at the nexus of climate and health, including building more climate-resilient health systems, strengthening cross-sectoral collaboration to reduce emissions and maximize the health benefits of climate action, and increasing finance for climate and health solutions. 

Food systems, responsible for about a third of global GHG emissions, was also spotlighted in the COP28 UAE Declaration on Sustainable Agriculture, Resilient Food Systems, and Climate Action. Signed by over 130 countries, this initiative could offer new wind to a call for future formal negotiations on food systems. Importantly, it calls on States to fully include food and agriculture into their Nationally Determined Contributions (NDCs). However, to the disappointment of many, the text leaves out any mention of the livestock industry which generates high amounts of emissions and is in constant growth.

Regarding other contentious solutions, negotiations on carbon markets, namely article 6 of the Paris Agreement, did not reach a final agreement. The already booming voluntary carbon markets include a great lack of transparency; inefficient or outright fake stand-alone projects; lack of ownership of local communities; overestimation of emission reduction; and violations of land rights. It is therefore crucial that bilateral or multilateral emissions trading agreements  and the global carbon market overseen by a UNFCCC Supervisory Body does not replicate those shortcomings. The proposed text at the conference lacks essential human rights safeguards and monitoring and transparency requirements that did not reflect the demands of local communities who will ultimately benefit from the projects in which traded carbon units would materialize.  

On the global goal on adaptation, Parties agreed to “ensure intergenerational equity and social justice, taking into consideration vulnerable ecosystems, groups and communities and including children, youth, and persons with disabilities”, also referencing human rights. However, the final text removed mentions of achieving universal access to safe and affordable potable water, universal health coverage and climate-resilient health systems, and ensuring that at least 30 per cent of ecosystems are maintained, enhanced or restored.  Instead, the text urges – instead of encourages –  Parties to attain more vaguer social goals. Some Parties advanced the reasoning that adaptation is highly context-specific and excessive details would not be pertinent. A two-year work programme will establish which “indicators” can be used to work out how well adapted they are in the future. 

Negotiations on the just transition led to the inclusion of human rights within the final preamble. It also acknowledges for the first in the context of adaptation that just transitions (plurals) include social protection and the recognition of labour rights.  

Taken into perspective, it is important to remember that the outcomes of COP28, albeit lukewarm, represent the lowest common denominator among Parties with vastly conflicting interests. Its value will be proven in the ability of climate justice actors, among State and non-state actors alike, to leverage the commitments of States and pursue change on the ground. In consequence, the lack of operative paragraphs, the absent mention of quantified goals, and the paper-thin social dimension of the talks leave little to claim before any sort of accountability mechanism.   

On the other hand, environmental rights are overall getting increased recognition in courts. The political process taking place during UNFCCC conferences is but one side of a multifaceted global climate justice movement. The historic advisory opinion process engaged by Vanuatu and a core-group of countries represents a novel avenue for international recognition of the primacy of human rights over other interests. Across many regions climate litigations made headway although, about 70% of cases are brought before U.S courts. For the efforts of environmental human rights defenders to be reflected into high-level political forums, protection of civil society is paramount. However, human rights defenders, especially women and girls, face target surveillance, arbitrary detention, violent and reprisals. States continue to apply or enact new laws and regulations which punish, deter, or hinder cooperation with the UN according a new report. Such practices nip in the bud any form of advocacy in the name of frontliners of this climate crisis and thereby renders global forums on climate action defective. In the lead up to COP29 , the Geneva Centre reiterates that the path to climate justice includes justice for all.  

Year of publication: 2023

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