Tuesday, October 19, 2021
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UK’s blessing for the carbon bad guys

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THOUGH it has featured far less than it should in public discussion about mitigating climate change by reducing carbon emissions, the fact is that the enormous and continuing growth of emissions by the newly industrialising countries (NICs) including China and India make global reductions impossible. These countries are principally responsible for the doubling of global emissions between 1992 and 2012 during the first phase of international climate change law, and are principally responsible for the redoubling now taking place during the second phase. This, of course, makes the UK’s domestic policy pointless, for even if UK emissions were reduced to zero the impact on global emissions would be negligible. It is as if the UK were emptying a bath with a spoon whilst China is filling it with a bucket, with India proposing to repeat what China is doing, and other countries such as Brazil also making significant additions.

What has been almost completely absent from public debate, however, is an awareness that the UK, and other parties to UN climate change Treaty law, have bindingly agreed that the NICs can do precisely this. The increase to the already enormously costly domestic reductions which UK citizens will now be required to make so the government can claim to give a ‘global lead’ going into COP26, will be rendered completely fruitless by the international legal commitments that UK governments have agreed for over a quarter of a century.

International climate change law is based on the 1992 UN Framework Convention on Climate Change. This Convention’s objective was stated in the very general terms of the ‘stabilisation’ of emissions at a level which would prevent ‘dangerous anthropological interference’ in the climate, and the Convention imposed no concrete reductions commitments at all on any party. But, crucially, Article 4(7) bindingly provided that ‘The extent to which developing country Parties will effectively implement . . . the Convention . . . will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.’ The NICs are classified as developing countries, and so Art 4(7) is a permission to these countries to emit as much as they wish in accordance with their plans for economic growth and poverty eradication. This is the legal reason why global emissions growth has been so large.

Why did the UK and other countries agree to this? In terms of principle, the Convention was based on a strategy of ‘common but differentiated responsibilities’ under which, as a matter of ‘climate justice’, the reductions burden should be borne by the developed countries. More prosaically, it is inconceivable that the NICs would have agreed the Convention had they believed it posed a check to their economic growth. Whatever the balance of these reasons, agreeing Art 4(7) has meant global reductions of emissions have been impossible from the outset. The developing countries’ responsibilities are so differentiated they have never existed.

The attempt to get the NICs to make reductions commitments, of which the 1997 Kyoto Protocol was part, collapsed in disarray at the 2009 Copenhagen Conference, when those countries made it absolutely clear that they would make no such commitments. The second phase of international climate change law has abandoned the attempt to agree binding reductions commitments. The Paris Agreement remains based on the common but differentiated responsibilities strategy, and so the 2°C ‘target’ in Art 2(1) is nothing of the sort. It is a purely aspirational statement, the aspiration to be realised ‘in the context of . . . efforts to eradicate poverty’. All parties have to do is make regular statements of their independently determined plans for emissions. The NICs statements involve no alteration to growth. This has drawn criticism, but it was in the Agreement, which actually strengthens the NICs’ permission to emit as much as they wish. Art 4(4) explicitly confines ‘undertaking economy-wide absolute emission reduction targets’ to the developed countries alone. Developing countries, including the NICs, ‘should continue enhancing their mitigation efforts’. Absolute reductions are reductions that actually reduce, but these mitigation efforts are those which have caused and are causing such growth in global emissions. Nothing about this will change at COP26.

Suppressio veri is as deplorably misleading as suggestio falsi, especially when one party is bound to have superior knowledge to the other, and even more when that party is under a duty to make things as clear as possible. The UK public largely believes that there is a binding international commitment to reduce global emissions. This is because the UK’s irrational climate change policy has been sustained over a quarter of a century by governments failing to be clear about their legal position. Far from those governments obtaining a binding commitment to global reductions, global reductions are rendered impossible by the only significant binding commitment that those governments actually have agreed. At the Conservative Party conference to be held soon before a Conservative government hosts COP26, the government has a duty to make this clear to the public. Basic constitutional decency, certainly as espoused by the Conservative Party, demands no less. But one unfortunately fears that in this respect, as in so many others, this government is Conservative only in the sense that the wooden horse was Trojan.

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David Campbell and Kevin Dowd
David Campbell is Professor of Law at Lancaster University and Kevin Dowd is Professor of Finance and Economics at Durham University.

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