Author: Ji MA

Climate change litigations are ongoing across the globe: from domestic courts to regional human rights courts, from The International Tribunal for the Law of the Sea to International Court of Justice. Never had I expected such litigations would be discussed in the COP28, a place for negotiating international climate change agreements.

On the morning of Dec. 10, I attended a high-level dialogue between Chief Justices, Supreme Court Justices, and experts explored approaches and solutions to climate change-related disputes arising before domestic or regional courts across the globe. The judges came from Supreme Courts of Nepal, Pakistan, South Africa, Brazil, as well as International Court of Justice (ICJ). Indeed, this is the first time that senior judges have had an official event at a climate COP.

On the afternoon of Dec. 10, in the the International Union for Conservation of Nature (IUCN)Pavilion, several high-profile experts, including Mary Robinson, former President of Ireland, and Christina Voigt, Chair of IUCN World Commission on Environmental Law, also held a panel on “Islands Driving Forward Climate Change Law.” This panel mainly discussed how small island states brought climate change disputes into international courts in the form of advisory opinions. Given the significant of the ITLOS and ICJ opinions, such advisory opinions would have a significant, long-term impact regarding states’ obligations.

Given the seriousness of climate crisis as well as the legislative delay, it is easy to understand the judicial activism in domestic states across the globe. Importantly, the COP28 provide an international platform for judges from different countries to share their unique practices, to talk with each other, to listen each other, and to learn from each other. These judges are practicing transnational judicial dialogue, referring to exchanges among courts and judges that belong to different national and international legal regimes.

Such possibility of transnational judicial dialogue at the COP28 should be attributed to the IUCN World Commission on Environmental Law, which has prepared the submissions and acting as legal counsels for related climate change litigations. However, IUCN may have some conflicting roles in organizing the transnational judicial dialogue and in acting as legal counsels for related climate change litigations.

Indeed, the fascination of international climate change law lays in this aspect: the transnational judicial dialogue can test the limits of many aspects of law: constitutional law, torts, administrative law, international human rights law, law of sea, and etc. The COP28 provides a perfect opportunity to observe this “dialogue” in real, in person.

The Global Stocktake has revealed that the world is falling far short of the greenhouse gas emissions cuts required to avoid the worst effects of climate change. States have to deliver greater emissions reductions. Then how do we move from current greenhouse gas emissions trajectories toward net-zero emissions by mid-century?

Trade can offer such a policy tool – indeed, one that has been largely under-appreciated.  Indeed, the government of the United Arab Emirates (UAE), holding the Presidency of COP28, has declared the first ever thematic Trade Day in the 30-year history of the climate change summit meetings. The Trade House Pavilion held many events on the intersection between international trade and climate change. At COP28, two projects explored how to reconfigure international trade toward a sustainable future.

First, the Remaking Global Trade for a Sustainable Future Project – representing a world-wide network of academics and other researchers – has generated a WTO reform agenda under the banner of the Villars Framework for a Sustainable Trade System. At COP28, I had luckily attended its organized event “Remaking the Global Trade System for a Sustainable Future: From COP28 to MC13” in the Trade House. Through the talk afterwards, I learned that how the founding partners of this project set up a team, slimmed their agenda, elevated this project to international forum, built international consensus, and reform international trade agreements.

Second, the Making the Trade System Work for Climate 2.0 Project also shared its report in the Global Alliance of Universities on Climate Pavilion. It explores three emerging models of cooperation relating to Border Carbon Adjustments (BCAs), namely the G7 Climate Club, the transatlantic talks on a Global Arrangement on Sustainable Steel and Aluminium (GASSA), and the Inclusive Forum on Carbon Mitigation Approaches (IFCMA) launched by the Organisation for Economic Co-operation and Development (OECD); and assesses the prospects for each model.

Compared with the second project, the first project is more systematic, strategic, action-oriented. Indeed, these two projects of reconfiguring international trade aligning with climate change demonstrate two approaches to international law-making. This first is the build-up approach: one group of scholars/policy makers tries to illustrate the need to incorporate new principles/content into existing international agreement; and the second is regional experimental approach: regional state parties would like to make agreement among their small circles and hope their reginal agreement could accepted globally in the future. In the face of the most serious challenge—climate change, these two approaches are ongoing at the same time.

International trade could help to ensure that green technologies, projects, and infrastructure get disseminated across the world at speed and scale. Only with the disseminated green technologies, projects and infrastructure, could the oil-dependent economies transition away from fossil fuels and embrace renewable energies.

“End fossil fuel: Fast, Fair and Forever”! Young generations –their future is at stake—were protesting in the COP 28. One major issue was whether there should be a “phase-out [abated] fossil fuels” language in the final agreement. There emerged several groups of interests against phasing out fossil fuel:

First, the government of the United Arab Emirates (UAE), holding the Presidency of COP28 is an oil-dependent economy; it would be naïve to rely on the UAE to push the agenda to phase out fossil fuel to against its own interests. Second, not only OPEC economies, small countries such as South Sudan and Bahrain derive more than 70% of their revenue from petroleum. All of them are against ending fossil fuel. Third, the most vulnerable states and the least developed states, indeed, want more financial support rather than phasing out fossil fuels. The clear language of financial contribution from developed states means more than phasing out fossil fuels.

Here, I also would like to share the viewpoints of a government official from an oil-dependent state. It does not mean that I agree with what he shared with me. On my last way, when I was waiting for the scheduled closing ceremony, I was told that the closing ceremony would not happen accordingly since the negotiations had not come into fruit. As I sadly sat in the room, I saw another person was also waiting there. I told him that the closing ceremony would not happen that day and he could leave. Then we talked more, we talked for more than two hours. He was a government official from an oil-depend country and shared with me his thoughts about phasing-out fossil fuels:

First, fossil fuels are closely related to economic growth and human progress. As long as there is human demand, we need fossil fuels, not to mention that there is an increase in human demand. One solution would be that: we people go back to 100 years earlier. However, people are not willing to go back. Second, regarding to renewable energy, not every country has that capacity or resources to produce renewable energy. For instance, his country does not have capacity to produce EVs. Third, even if the oil-dependent states have the capacity to renewable energy, what’s the future of their economic growth if they don’t sell oil? What can they sell? Will developed states consistently provide financial support to these oil-depend country? Here, oil industry is an important economic tool.

Ending fossil fuels needs to be linked with green tech transfer as well as financial support. Indeed, anticipating the backlash from oil-dependent economies, in advance of the COP 28, the United States and China in the Sunnylands Statement emphasized the role of tripling renewable energy capacity rather than phasing out fossil fuels, as a practical way to accelerate the substitution for coal, oil and gas generation.

Undoubtedly, the COP 28 achieved significant progress: it is the first time to call states to “transition away” from fossil-fuels. Similar debates in phasing out fossil fuels can still happen in the COP 29 in Azerbaijan, another oil-dependent economy. Young generations—and their future—cannot wait for the hesitation.