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This text was written by Dan Kuwali * and Bright Nkrumah **
The Just Transition dogma which has been popularized in recent times professes a feasible remedy for the incompatible demands of promoting economic growth while capping emissions. The burning question that remains is the process that countries are or will adopt in transitioning their economies from carbon-intensive sources to a clean energy future. Within this realm, such a process ought to address climate and labour struggles concurrently. In simple terms, states ought to reflect on the welfare of workers as they phase out coal, oil, and gas. It was this aspiration that occupied the thoughts of many activists that attended the just-ended United Nations (UN) Climate Change Conference COP27 in Sharm El Sheikh, Egypt. With coal, oil, and gas being primary energy sources, a radical shift away from these fossil fuels is inevitable. Sadly, the summit closed without delegates reaching an accord on a total shift from fossil fuels.
A Recap of the COP27
Between November 6 to November 18, 2022, global leaders from around 190 countries converged in Egypt to reflect on their commitments as parties to the UN Framework Convention on Climate Change. Two of these commitments relate to: (i) mitigation byreducing carbon footprints by capping emissions; and (ii) adaption by providing the necessary resources for more vulnerable communities to cope with the impact of climate change. By all accounts, the latter was successfully negotiated as delegates agreed to the establishment of a historic ‘loss and damage’ fund (LDF) to enable vulnerable countries to contain climate disasters.
Compliance with human rights obligations
Of particular note from COP27 is the clarion call to comply with human rights obligations in taking action to address climate change. Since climate change is a common concern of humankind, parties are required to respect, promote and comply with their human rights obligations. Considering the effects of climate change, of particular focus are the right to clean, healthy, and sustainable environment, the right to health, the rights of indigenous peoples, and local commonunities. In this case, special attention should be given to protecting the rights of children including those with disabilities and people in vulnerable situations as well as gender equality, empowerment of wormen and intergeration equity. Thus, action to combat climate change should equally promote, and not undermine, human rights including the right to development.
Loss and damage fund
By all accounts, one of the groundbreaking outcomes of the summit was the setting up of the ‘LDF. The fund was momentous as it was the first global giant such as the European Union (EU) and the United States (US) that did not kick the can down the road or raise opposition to its establishment. If fully operationalised, the fund will serve as a buffer for vulnerable countries and populations whose socioeconomic conditions have been worsened by greenhouse gases . These emissions are largely tied to the large-scale industrilisation and overreliance on fossils in the Global North.
The consensus for the establishment of the fund, particularly the affirmation by the advanced, affluent nations has been applauded by both activists and small island countries. The voices of the latter are relevant as their ancestral lands are on the verge of disappearing due to climate change. Ironically, whereas the funding mechanism will seek to ameliorate the loss and damage of resources at the local and national levels, it detracts from handing out any form of payment for purposes of reparation. In other words, one cannot invoke the final text of the summit as a tool to seek compensation for liability or harm suffered. In the eyes of a public interest litigator, the non-binding nature of the summit’s outcome, coupled with the lack of explicit reference to compensation may be seen as a creative strategy by high-emitting states to safeguard themselves from a plethora of looming climate change litigation.
In place of a soft law such as the summit’s outcome, a slew of small island states including Comoros, Guinea Bissau, and Saõ São Tomé and Príncipe legal liability within the UN human rights system demanding compensation. Such an application could constitute one of the largest injury awards and settlements in the history of the UN, based on the harms that climate change has inflicted on local populations. On the other hand, major states such as South Africa that recently witnessed a mass humanitarian crisis due to flood may also seek similar reparation. From hindsight, negotiators from the North ought to be commended for their negotiation prowess in carving a good deal for their countries.
That said, there are still lurking questions that ought to be hammered out before the LDF could be fully operationalised. This is more so as explicit mechanisms for the implementation of the fund remain hazy. To be exact, in light of the short duration of the conference, delegates were unable to clarify contentious issues such as: (i) when the fund will, in practice be launched; (ii) what percentage ought to be paid by which state; (iii) will fossil fuel companies be contributors; (iv) what percentage of the fund ought to be allocated to which recipient state; and (v) how to ensure the fund trickles down to the local indigenes; (vi) how to ensure states honour their timely commitments.
Addressing all, but most importantly, the last question is crucial in light of the unfulfilled commitments under existing climate instruments. At the time of writing, the 2020 commitment made by developed states to contribute a yearly USD 100 billion climate funding to alleviate the plight of vulnerable states had still not been fulfilled. This trajectory begs the question of the realization of the proposed loss and damage fund. It is, therefore, hoped that delegates in the next COP28 (to be held in Dubai) will be able to tease out the details of LDF.
In the area of mitigation, the outcome of the summit was somewhat unsatisfactory. From the onset, negotiators re-echoed the need to keep global warming to 1.5 °C above pre-industrial levels. This accord is worth noting as a hike in temperature beyond this benchmark will be suicidal for Africa and the similarly situated continent. An increase above this threshold is likely to intensify climate risks such as deluges, drought, and food and water insecurity in the coming years. To this end, delegates at the summit emphasized the urgency to half current emissions by 2030. With the average temperature of the planet already shooting up to about 1.1°C, there is still general concern about whether the 2030 projection is a feasible timeline to contain warming within the desired 1.5 °C.
While the negotiators ought to be commended for their striking observation, the inability to reach a consensus on phasing out air pollution was discouraging. The filibustering of the proposal to transition from dominant fossil fuels by oil producers and large emitters was concerning as fossils constitute the biggest source of global warming and ultimately climate disasters. Although the text of the summit underscores the urgency for phasing out coal, it backtracked from applying the same yardstick to oil and gas exploration or subsidies. This double standard somehow underscores the dominance and influence of the fossil fuels industry at the negotiation table. In the end, the outcome of the summit raises concerns regarding the political will of states to phase down fossil fuels and cap rising global temperatures.
It is, therefore, not ironic that some African nations are agitating to be permitted to equally industrialised or develop their economies through the exploration, consumption, and sale of fossil fuels. The focus on fossils as a lucrative market in Africa has largely been triggered by the ongoing Russia-Ukraine conflict. With pro-Ukrainian Western countries cutting economic ties with Russia, the fall in the supply of oil and gas has nudged developed states to explore new oil fields, in Africa. Against this backdrop, the continent sees this new development as a break to improve the livelihood of its citizens. This aspiration could be assessed on three layers: (i) use fossil fuels to address energy insecurity; (ii) use locally sourced oil, gas, and coal to power domestic industries; and (iii) increase foreign earned revenue through export of excess fossils.
Ideally, given their vulnerability to climate risks, African countries ought to explore clean energy rather than charting the same course of hydrocarbon. Even then, the sad reality is that a disproportionate percentage of these states lack the needed technology to move to greener industries rather than fossils. As a consequence, a growing number of African countries such as Mauritania, Namibia, Senegal, and Tanzania are fostering relations with European-based oil and gas companies to extract their resources from the ground to bolster local energy supply and export. Most concerning is that while there are talks of hydrocarbon exploration and expansion in Africa, there is less talk of how to capture the resultant emissions. This trend somewhat implies that instead of providing technological intervention for renewables, Western states are more inclined to remodel Africa into a fossil field.
Investment in hydrocarbon or oil and gas projects in Africa may cease if there is considerable capital injection by Western countries to help fund renewable technologies across the continent. In the absence of this intervention, African countries are inclined to address the enduring energy poverty and economic situation through fossil fuels. The proclivity is underscored by three core reasons: (i) the abundance of the fossils under the ground; (ii) the lack of technology to tap renewable sources; and (iii) the cheaper price of fossils in a competitive market. With new emerging oil fields across Africa, the large-scale expansion or use of fossils will likely heighten the current global carbon budget. Ultimately, the increase in carbon dioxide will intensify global warming beyond the desired 1.5 degrees Celcius. On the brighter side, the adoption of the LDF has the potential of being used for the construction of boreholes for cattle herders, irrigation systems for subsistent farmers, and families whose homes have been washed by the flood. But this can only happen if such a fund is well managed and states make timely contributions.
*Dan Kuwali is an Affiliated Professor specialized in International Law and International Affairs, Raoul Wallenberg Institute of Human Rights and Humanitarian Law; Extraordinary Professor of International Law, Centre for Human Rights, University of Pretoria; Executive Director, Centre for Strategic Studies, Malawi University of Science and Technology (MUST); and Commandant, National Defence College, Malawi.
** Dr Bright Nkrumah is a member of the Board of Directors of the African Studies Association. He was a Landhaus Fellow at the Rachel Carson Center for Environment and Society, University of Munich.Nkrumah is the author of Seeking the right to food: food activism in South Africa (2021 Cambridge University Press).