Need For Fairness In Climate Change Negotiations: A Third World Perspective

Abstract

This article discusses the history and the prospects of the climate change negotiations and seeks to show that they are structurally and systematically disadvantageous to the countries and the peoples of the Third World/Global South. The article uses the TWAIL approach to discuss the North-South divide and the differing approaches to climate justice. The article then discusses the history of climate change negotiations, in particular, climate finance and loss and damage, and shows that modes of these negotiations have been disadvantageous to the Third World and are unlikely to fulfil their aspirations. The article highlights the need for incorporating certain principles of fairness, not just in substantive law, but also in how negotiations are conducted. It concludes with thoughts on what these principles of fairness may look like, and the role international and domestic courts can play in evolving them.

International negotiations on climate change have been inextricably linked with fairness – both in terms of intergenerational equity and accounting for historical and current inequalities. At the root lies the concern of many states that they are paying more than their “fair” share to deal with climate change, as well as the need for urgent action to deal with climate change. Issues like historical contributions towards climate change, population, the lack of contemporary scientific knowledge about climate change and responsibility, who is disproportionately affected by climate change, and whether certain levels of capability imply a responsibility to act, and so on, are debated endlessly. Thus, reaching an agreement regarding the standard of “fairness” in international climate negotiations has proved almost intractable. This has led to a peculiar situation where, due to a lack of an agreement regarding fairness standards for climate action, states have only been able to agree on broader frameworks and are being forced to endlessly negotiate every piecemeal action. Every issue, such as mitigation, adaptation, climate finance, technology transfer, loss and damage, and so on, is negotiated anew in the Conference of Parties (COPs). The resulting outcome is often a case of too little and too late.

In this article, I have taken a Third World perspective in order to examine the systemic unfairness that results from any lack of a standard on fairness in climate change. In the first section, I discuss theoretical debates on climate justice and the North-South divide on the question of fairness. I specifically discuss Third World Approaches to International Law (TWAIL) and discuss climate justice using a TWAIL perspective. In the second section, I discuss the history of climate change negotiations from a Third World perspective. In this part, I use certain watershed climate conferences to periodise the shifts in climate change negotiations. I use each of these periods to discuss how fairness concerns have been continuously put on the back burner in international negotiations until the sheer existential urgency has forced Third-World states to either abandon the issue or agree to piecemeal action on the basis of vague promises of assistance from the First World. I take the recent negotiations on “climate finance” and “loss and damage” to illustrate this disadvantage. In the third section, I highlight the need for a unified approach towards fairness in climate negotiations. Building on this, in the final section, I conclude with my thoughts on how the principles of fairness may be incorporated into climate change negotiations and what it might look like.

I. Fairness, climate “justice” and the North-South divide

In this article, I conceptualize “fairness” as including both procedural fairness, and substantive fairness in terms of climate justice. Fairness and justice are inextricably interlinked. The idea of “justice” and the extent to which law reflects justice has engaged philosophers and legal theorists for centuries.¹ Rawls conceptualises justice as fairness in the context of political, social, and economic institutions in a modern constitutional democracy.² Further explaining the concept of justice as fairness in his theory of justice,³ Rawls notes that even in divided societies, justice as fairness enables the creation of just structures and background institutions that create a framework in which different conceptions of “good” can be advanced to achieve an “overlapping consensus”, and achieve social unity.⁴

In international law as well, notions of fairness and justice remain ill-defined and debated. In the context of international law, Thomas Franck notes that fairness has both substantive aspects (distributive justice) and procedural aspects (right process) and both may not always go in the same direction.⁵ Noting that fairness is relative and subjective, Franck conceptualises fairness in processual terms as “a process of discourse, reasoning, and negotiation leading, if successful, to an agreed formula located at a conceptual intersection between various plausible formulas for allocation”.⁶ In practice, he articulates two “gatekeeper” principles of fairness: the no-trumping principle (no particular conception of truth or fairness being considered above negotiation) and the maximin principle (an application of the Rawlsian difference principle that permits inequality that benefits as much, or more than proportionately those at the bottom).⁷ Franck also notes the unique issues posed by environmental discourse, such as issues of intergenerational fairness,⁸ and observes that in many environmental problems, approaches involving liability for damage and property entitlement, while useful, have fallen short.⁹ He recognises the need for new concepts that also reflect fairness claims and sees the negotiation of “framework agreements” as a way in which the international community is addressing this on a continuing basis.¹⁰

A. TWAIL and fairness in international law

Third World Approaches to International Law, commonly referred to by the acronym TWAIL, is an intellectual network of scholars sharing similar concerns about countries of the Third World that emerged in the late 1990s as an offshoot of the New Approaches to International Law (NAIL) movement in the United States.¹¹ It did build upon the work of many previous post-colonial scholars in the 1960s and 1970s, dubbed as “TWAIL I” or “first generation TWAIL” while identifying itself as “second generation TWAIL”.¹² Described as a broad umbrella or a loose banner, while lacking a specific “programme”, TWAIL is often characterised by an effort to identify and exorcise the colonial and imperialistic systemic influences from international law and transform it into a fairer system which integrates the third world and its concerns, rather than paying them marginal attention.¹³ One of its central claims has been that formal political decolonisation did not lead to the end of colonial or imperial relations, and TWAIL scholars have questioned the universality and neutrality of international law and sought to expose how coloniality, hegemony, and imperialism have continued in both the epistemic discourse and the praxis of international law.¹⁴ TWAIL scholarship has ranged from interrogating and exposing the colonial origins of international legal regime, as well as specific rules of international law, to discussing the contribution of the Third World to the making of (at least some) international law, to exposing present international law’s complicity in promoting imperialistic tendencies in its rules and regimes and suggesting ways for reform.¹⁵

The term “Third World” is used in TWAIL scholarship as an open, flexible category rather than simply ascribing the identities of the coloniser and the colonised to various countries. In this sense, “Third World” is sometimes broadly described as including those peoples who, despite constituting the majority of the world’s population and being the source of much of its resources, have little control over how the rest of the world arranges their economy.¹⁶ TWAIL scholars have been clear about the heterogeneity of the Third World (as well as the Global North) and their lack of any political unity, and recognise the many diversities, differences, antagonism, hierarchies, and inequalities within them.¹⁷ At the same time, they have been cognisant of the various discriminatory social hierarchies within the Third World and do not advocate a nativist rejection of the West.¹⁸ As Chimni highlights, third-world states are often ruled by people who are increasingly part of a coterie of “transnational ruling elite” who sometimes may make decisions that are contrary to their peoples’ interests,¹⁹ and thus resulting in the need for focusing on the peoples of the third world, rather than merely the states.²⁰ Furthermore, the subjects of TWAIL analysis are not limited to simply the Third World; it is increasingly also applicable to the relatively marginalised peoples within the “First World” (like indigenous peoples and racial minorities) whose structural disadvantages are also enabled by the extant global order.

TWAIL not only exposes the “deep structures” within international law that deny a fair and level playing field to the Third World peoples but also accounts of legal resistance where international law and its doctrines (like sovereignty) are appropriated and utilised by non-western lawyers to breach the Western/non-Western gap.²¹

TWAIL’s preoccupation with questions of fairness in international law is apparent. Different shades of “TWAIL-ers” may have differing conceptions of fairness. However, as Okafor notes, they all seek to “expose, reform, and retrench” the features within international law that maintain an unfair and unjust global order.²² In this background, a TWAIL conception of fairness, while building upon the Rawlsian “justice as fairness” model, would depart from it, by insisting on a model of distributive justice that takes into account the historical injustices and present experiences of various marginalised peoples (rather than being situated behind a veil of ignorance). For instance, Appaiagyei-Atua, theorising the ethical dimension of TWAIL, articulates a theory of community emancipation, which is defined as:

socio-economic and political claims and entitlements which are exercised and enjoyed by human beings qua human beings to enable the realization of potentials, the utilization of capacities and performance of duties that will lead to the meeting of needs and the attainment of development.²³

It seeks to link the global to the local over issues of distributive justice by foregrounding the peoples’ experiences and using it to evaluate the rules of international law.

It is important to note that these TWAIL notions of fairness in international law are not aimed at merely ensuring a level playing field for Third World/Global South States – it is well-recognised that there are often deep differences and lack of political unity within the Global South. TWAIL has sometimes been criticised for primarily using a Westphalian state-centric North-South divide, which overlooks the Global Souths in the geographic North and the Global Norths in the geographic South.²⁴ However, as noted earlier, many TWAIL scholars have understood “Third World” to include the marginalised peoples, wherever they may be located.²⁵ These categories have also been criticised to ignore the inter se differences in the negotiating positions of the Global South countries. However, as Mickelson notes, the idea of “Global South” or “Third World” has never been about homogeneity and uniformity; the diversity (in socio-economic, geographic, cultural, and political terms) both within and among developing countries has been well-recognised since the 1950s.²⁶ Indeed, in the context of climate change, sometimes major differences exist in the interests and the negotiating positions of, say, the small island states of the Alliance of Small Island States (AOSIS), the petroleum exporting countries (Organization of the Petroleum Expoerting Countries – OPEC), and the emerging market economies (like Brazil, Russia, India, China, South Africa (BRICS)). The major points of differences exist around issues like market mechanisms, fossil fuel phase-out, and the extent of mitigation burden. For instance, countries like India, Indonesia, Fiji, Papua New Guinea and so on, have supported forest carbon offsets/REDD + (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries), while countries like Bolivia have opposed them and have instead promoted community forest programmes.²⁷ Similarly, OPEC countries have opposed fossil fuel phase-out,²⁸ while the AOSIS, emphasising on the 1.5 degrees mitigation target, called on all major emitters to enhance their commitments, including by fossil fuel phase-out.²⁹ Groupings of major emerging economies, like BRICS, have emphasised the right to development of the developing countries and the need for providing additional financial support and technology transfer to developing countries.³⁰

This is a result of differences in their relative economic and political power, geographies and so on. Sometimes, colonial legacies and continued extractive relations between transnational corporations (usually primarily based out of Global North) and many Global South countries³¹ and propagation of Western development paradigms and so on³² contribute to the difference in climate discourses within Global South. For instance, despite the criticism of Global South countries like India for “reducing ambition” on issues like coal phase-out, developed countries like the United States, Canada, and Australia remain some of the highest per capita consumers of fossil fuel energy (apart from some OPEC countries like Qatar, UAE, etc.).³³ In some cases, to paraphrase Seck, the reality of “overlapping, interdependent sovereignties” (shared between states in the Global South and transnational corporations extracting resources from there) leads to the creation of dependency structures that are reflected in the negotiating stances of those Global South states.³⁴ This is seen, for instance, in cases of global trade in plastic wastes and lithium mining and so forth.³⁵ However, this does not negate the analytical value of the “Global South/Third World” in TWAIL analysis. This is especially because these differences within the Global South do not erase their similar positions on a range of climate issues, including the need for developed countries to take the lead, emphasis on historical responsibility, climate finance, just transition, technology transfer, adaptation support, and loss and damage finance, to name a few.³⁶

As Mickelson argues, while these categories have limitations, there is a need to rethink and “re-embrace” the category of “North-South” by acknowledging that the demands for climate justice are not merely abstract but rather concrete and quantifiable, based on historical disparities and inequalities in present-day per capita emissions.³⁷ A nuanced understanding of the Third World/Global South is needed while articulating a TWAIL vision for fairness in climate change negotiations that does not treat these categories as monoliths. A detailed reframing of the “North-South” categories is beyond the limited scope of this article; however, I have used these categories to focus on the broader trends in international climate negotiations, which I argue structurally disadvantage the Global South (irrespective of their differences inter se). As the subsequent sections show, the North-South divide continues to play out, not just in terms of the outcomes of climate change negotiations but also structurally in the negotiations themselves. This operates to the disadvantage of the Third World (broadly understood, as discussed above) by sidelining and delaying issues of interest to the Third World peoples (as opposed to simply the states).

Further, the relative size, population, and economies may lead some developing countries to be seen as indispensable to arriving at any climate agreement (e.g. China in Copenhagen COP, 2009), while others may be seen as marginal players. In fact, the differences in the relative power within and among the Global South and their negotiating position on climate issues further illustrate the need for having “fairness” in international climate change negotiations. However, this does not remove the relevance of the categories of Global North and South.

TWAIL emphasises promoting a global order that enhances everyone’s human dignity, irrespective of their geographical or socio-economic location. This is sought to be achieved by acknowledging historical injustices and their continued embedded structural effects and actively seeking to ameliorate them. A TWAIL version of the Rawlsian difference principle would, therefore, also include those who were historically disadvantaged and who continued to be structurally disadvantaged, within “least advantaged”. It would not allow certain forms of inequalities that would perpetuate the historical dependency and disadvantage of the Third World (like food insecurity, etc.), even if they were sought to be justified as benefiting the “least advantaged” through doctrines like trickle-down or comparative advantage. In this respect, it would also depart from the no-trumping principle articulated by Franck, as it would see any negotiations that do not acknowledge and are removed from historical and present realities as likely to reproduce those injustices. It would also seek to adopt a bottom-up approach towards distributive justice, learning from the experiences of the “least advantaged”, instead of necessarily subscribing to models like “trickle-down” distributive justice that may not work in many Third World contexts.

B. Climate justice and TWAIL

Justice in the context of climate change is a deeply contested idea. Climate change is perhaps the single biggest problem internationally, having serious consequences for all areas of human activity, as well as for the non-human inhabitants of the planet, altering the geological record sufficiently to be arguably classified as an “epoch”.³⁸ In economic terms, the natural environment was seen as an “externality” in the human search for development, for example as a source of resources or a means of waste disposal, though recently “sustainability economics” has started to change this approach.³⁹ Climate change has serious implications for the global ecosystem,⁴⁰ causing a sixth mass extinction event,⁴¹ and even affecting the evolution of various species.⁴² It also has a comprehensive impact on human society, affecting the survival of states,⁴³ human rights,⁴⁴ demographics,⁴⁵ international politics and security,⁴⁶ economy,⁴⁷ geographies,⁴⁸ race,⁴⁹ and gender,⁵⁰ to name but a few. It is also clear that climate change does not affect everyone equally and often has a disproportionate impact on countries of the Global South and the marginalised, poorer, and disadvantaged peoples. Climate change, if not tackled properly, perpetuates and deepens the existing inequalities and oppressions. This gives rise to serious justice and fairness implications, leading to several attempts at theorising “climate justice”.⁵¹

As global warming and problems of climate change started becoming evident, it was realised that nature does not have an endless capacity to pay for human growth. As the true costs of development started being calculated, the problem of allocation of this “cost” arose. Many scholars have approached climate change from the lenses of distributive justice,⁵² historical justice,⁵³ earth justice (or multi-species justice),⁵⁴ and ethics,⁵⁵ leading to various theoretical frameworks for fairness and climate justice.⁵⁶ Articulations of environmental justice and climate justice often attempt to engage with the four commonly used “pillars” of justice (distributive, procedural, corrective, and social justice).⁵⁷ The complexities of climate change lead to these different “justices” leading to different outcomes, and complicates theorising a standard approach to climate justice. While most approaches to climate justice would allow “differentiation” in favour of the Global South, there are disagreements on the extent of this differentiation, extent to which obligations should be allowed, reciprocity in performance of these obligations, to name a few. The scholarly disagreements on the most appropriate form of climate justice are only a small reflection of the practically intractable political disagreements among states while negotiating the climate change regime, and has led to an identifiable “North-South” divide.

The problem of distributive justice in allocating the cost of climate change has long been politically recognised. For instance, the Founex Conference report (1971) recognised that while developed countries and developing countries both faced environmental problems, their causes and solutions were different.⁵⁸ For the developed countries, these problems arose due to their high level of development, consumption patterns, and so on. However, in case of the developing countries, their environmental problems reflected their poverty and lack of development and endangered the lives of their citizens, which can only be overcome through development itself. The report noted that, for the greater part, unlike developed countries, where development is seen as a cause for environmental problems, developing countries must take a different perspective.⁵⁹

In the Stockholm Conference, India’s Prime Minister, Indira Gandhi, criticised the approach of blaming an increasing population for everything. She highlighted that many advanced economies had reached their position through domination over others, supported by the resources and labour of the colonised countries.⁶⁰ She also described poverty as the greatest polluter and emphasised the priority of developing countries to tackle it. This issue of “historical responsibility” thereafter became an important point in any debate or negotiation on fairness and differentiation in climate change.

Many scholars, from the Global South and otherwise, also started highlighting the unfairness in imposing same standards on the developing countries, when they were at a much lower stage of development compared to developed countries, and unlike developed countries, had historically little contribution towards environmental degradation. Professor R.P. Anand,⁶¹ for instance, recognised that environmental pollution and degradation was a global problem and developing countries cannot ignore it. However, at the same time, he noted that there is a difference between “pollution of affluence” and “pollution of poverty” and to those in the third world, bound between their poverty and the “shackles of affluence” in the developed countries, the future seems to be a prison.⁶²

Anil Agarwal and Sunita Narain, writing in 1991, exposed the unstated assumptions and biases in scientific studies and approaches which sought to share blame for climate change with developing countries, on basis of their population and their aspirations for development.⁶³ They note that such studies and their rhetoric that the growth in developing countries is responsible for environmental degradation today and destroying our “common future”, are typical of “environmental colonialism” and would deepen the north-south divide, and whitewash the role and responsibility of the western countries. While they endorse the need for developing countries to take steps to prevent environmental degradation and climate change, they insist that it must not be on the terms and constraints imposed by developed countries. Noting that safeguarding the “common future” should not only mean ensuring equity for the developed countries’ future generations, they propose that global commons such as carbon emissions and carbon sinks should be shared equally on a per capita basis.⁶⁴

Similarly, Vandana Shiva critiqued “Western solutions” to environmental problems, and noted that it was the first wave of “globalism”, in form of colonisation which initiated such environmental degradation in the first place.⁶⁵

Henry Shue, writing immediately after the adoption of the United Nations Framework Convention on Climate Change (UNFCCC),⁶⁶ arguing against a homogenised and undifferentiated emission allowance market, noted that it was inequitable to require that the poor should surrender necessities or be made to pay more for them, so that others retain their luxuries. He argued that the developing countries should have an “inalienable” emission allowance to be used as per their priorities. In this context, he made an important observation that four questions regarding “fair allocation” need to answered for every potential climate action, which can be paraphrased as: (1) allocation of mitigation costs; (2) allocation of adaptation costs; (3) background allocation of resources and fair bargaining; and (4) allocation of transitional emissions.⁶⁷ These questions on fairness remain relevant even today.

The lack of consensus on the above questions of fairness has led to many criticisms of the kind of climate action promoted by the UNFCCC and Kyoto Protocol regimes. For instance, the carbon trading mechanism and flexibility mechanisms of the Kyoto Protocol allow the Annex I State to acquire emission reduction units or carbon offset credits from projects in other Annex I countries or non-Annex countries respectively.⁶⁸ These have been variously criticised for causing harm to communities where these projects have been implemented, or being a masquerade for “green grabbing” or carbon colonialism.⁶⁹

In light of the above a few points may be noted about the TWAIL perspective on climate justice. In my understanding, compared to many other “lenses” towards climate justice, a TWAIL “lens” would focus on seeing climate change actions as a part of the global political economy on development, including a historical perspective as well. As noted by the historian Ramchandra Guha, environmentalists and environmental movements in the Global South have often focused as much (if not more) on issues of human rights, ethnicity, and distributive justice, as issues of ecology, compared to their Global North counterparts.⁷⁰ Chhatrapati Singh, writing in the context of India’s forests, notes that while justice regarding managing forests has many stakeholders (namely, the people, forest dwellers, as well as non-dwellers; future generations; and nature itself), legal reforms concerning the forests must aim at doing justice to the people first, and subsequently to nature and future generations.⁷¹ While he acknowledges that the obligations towards nature and future generations is no less important, but seeks to prioritise “the more immediate obligation” towards to the people.⁷² Climate justice, from a TWAIL perspective, would not necessarily reflect the position of many Global South states, who maybe engaged in their own forms of hegemony, or have other national priorities and interests. As noted earlier, a TWAIL approach to climate justice would include a nuanced understanding of “Global South/North”, and the push for a climate agenda would be just for the “Third World Peoples” regardless of where they are located.

While the increased urgency of climate change and the need to mitigate it would likely temper the above formulations, the key point would remain – that climate justice, social justice, development, and amelioration of poverty cannot be seen separately in different silos. A TWAIL perspective towards climate justice would see it interconnected with the right to development and pursuit of a fairer global economic order. Specifically, in the context of climate actions, it would integrate various forms of climate action; emphasise “fair allocation” of mitigation and adaptation burdens (accounting for per-capita and historically unequal emissions, as far as practicable); ensure the quick delivery of climate finance that is real, additional and adequate and that reaches the peoples most adversely affected by climate change instead of being accounting exercises; and ensure that climate actions do not become a new form of “civilising mission”.

II. Climate justice in international negotiations: a TWAIL perspective

In the context of environment and climate change, TWAIL scholars, while highlighting the continued North-South divide, have also discussed the complex intersections of different factors (like geography, race, gender, economic status, etc.) which compound the vulnerabilities of the peoples affected by climate change.⁷³ Natarajan, for instance, notes that despite the international negotiations often leading developed and developing countries to take opposing sides, the North-South divide is more porous than it appears.⁷⁴ Echoing Baxi,⁷⁵ she notes that interests of resource production, extraction, and consumption are linked across the North and the South in complex ways, which need to be understood to better respond to the ecological problems as well as equity concerns.

Mickelson notes that International Environmental Law as a discipline failed to integrate third-world concerns meaningfully, and has rather “accommodated” them in the margins.⁷⁶ There is a tendency to portray the Third World as a begrudging participant in environmental law and the need to “respond” to their concerns, rather than treating them as an equal active partner. The calls for “integrating” the Third World rather than merely “accommodating” them,⁷⁷ and building fairer environmental and climate regimes have often been deemed as politically unrealistic.⁷⁸ Natarajan has also noted that the Third World had long been wary of the international environmental law project, as it was perceived as a way to mitigate the effects of the mistakes of Western development at the expense of the development of the Third World; however, it has continued to engage with the project.⁷⁹ However, despite the engagement of the Third World with environmental and climate action, there is a narrative that seeks to portray the Third World as uninterested in environmental protection and only focused on poverty alleviation and taking an obstructionist role.⁸⁰ Keeping this in mind, I will seek to challenge this narrative and show that despite the continuous participation of the Third World in climate negotiations, promises made to them have been continuously diluted.

There are many ways of framing the history of the climate change negotiations. For instance, despite the negotiations which led to the making of the UNFCCC being very heavily documented and publicised, the background and standpoint of the observers may lead to very different conclusions about the outcome that was achieved at Rio De Janeiro.⁸¹

From a regime-building perspective, Bodansky, Brunnée, and Rajamani have classified the evolution of the UN climate change regime into four phases, depending on the predominant type of negotiations happening during the specified period: (i) the Agenda-Setting Phase (1985–90); (ii) the Constitutional Phase (1990–95); (iii) the Regulatory Phase (mid 1990s–2005); and (iv) the Second Constitutional Phase (2005–16).⁸² While this classification gives an accurate functional overview of the larger historical trends, it is important to recognise that this does not imply that only one kind of activity occurred in a particular phase, to the exclusion of others.⁸³

Keeping this caveat in mind, I will instead classify global climate action negotiations using certain watershed conferences as markers. These are (i) The Stockholm Era (1970s–1990); (ii) The Rio Era (1990–2009); (iii) The Copenhagen Era (2009–16) and (iv) the Paris Era (post-2016). I have chosen these conferences in particular as they have led to important shifts in the nature of global climate action and have influenced the agenda of negotiation in the following years. I will show that at each phase of climate change negotiations, the Third World countries have been structurally disadvantaged. I will be specifically focusing on the history of international climate finance to exemplify this structural disadvantage of the Third World in climate negotiations.

A. The Stockholm era: the inception of international climate negotiations

Traditionally, the history of International Environmental Law is divided into pre-1972 and post-1972, with the Stockholm Conference leading to the emergence of modern international environmental law.⁸⁴ The Stockholm Conference catalysed the rapid development of environmental treaties; Edith Brown Weiss estimates that within two decades of the Stockholm Conference, around 1100 treaties dealing with the environment or having environmental provisions were made.⁸⁵ Most of these were structured as separate treaty regimes (either as standalone treaties or framework agreements with optional protocols) for separate problems.

Debate on fairness and differential treatment has been at the heart of these multilateral environmental negotiations since their inception. The apparent dichotomy between environment and development was of particular concern to the Third World countries and they were unwilling to participate in any environmental regime which fettered their developmental policies or delinked the issue of development from the environment. To some extent, there are parallel histories of the lead-up to the Stockholm Conference. The traditional account, popular among developed countries, focuses on the chronological development of various environmental agreements (especially among the Western countries) since the 1950s,⁸⁶ and the emergence of principles such as the prevention of transboundary harm in cases such as Trail Smelter Arbitration and the Lac Lanoux Arbitration.⁸⁷ This account focuses on the environmental conferences (mostly held in Europe and North America) and inclusion of an environmental agenda in international organisations. For instance, in 1968, the resolutions 1346 (XLV) of the Economic and Social Council suggested an international conference on human environment. This was accepted by the UN General Assembly in resolution 2398 (XXIII) of 1968, decided to convene the meeting which would be known as the Stockholm Conference.

The history from the perspective of the Third World countries rather focuses on the process of decolonisation, the struggle of the Third World countries to preserve their economic and political autonomy during the Cold War (the non-aligned movement (NAM) and the New International Economic Order), and the emergence of principles like the permanent sovereignty over natural resources. From the perspective of the Third World, the development of international environmental law can be situated within the larger debate on poverty alleviation and the right to development and limitations thereon.

In the 1960s and 1970s, the developing countries, many of them recently decolonised, demanded a fairer system of international law that promotes their development, as they realised that despite decolonisation, the “rules of the game” of international trade and investment, which they had no role in shaping, continued to disadvantage them.⁸⁸ In academic circles, “Droit International du développement” or “International Law for Development”, was conceived as a new approach to international law, departing from the idea of international law being based on “reciprocity”, and consisting of a set of value-neutral “impartial” rules.⁸⁹ Rather, it was emphasised that international law should be based on solidarity and goal-oriented and focus on reducing substantive inequality between sovereign states.⁹⁰ Politically, the Third-World states led a movement to establish a fairer “New International Economic Order” (NIEO). The General Assembly Declaration on the Establishment of a New International Economic Order (Resolution 3201) of 1974 stated:

It has proved impossible to achieve an even and balanced development of the international community under the existing international economic order. The gap between the developed and the developing countries continues to widen in a system which was established at a time when most of the developing countries did not even exist as independent States and which perpetuates inequality.⁹¹

One of the key principles of NIEO was stated to be the “[p]referential and non-reciprocal treatment for developing countries, wherever feasible, in all fields of international economic co-operation whenever possible”.⁹² This was also reflected in the Programme of Action Resolution, which emphasised that multilateral trade negotiations should be guided by principles of non-reciprocity and preferential treatment of developing countries.⁹³ Although the NIEO did not come to fruition as a formal binding instrument, one of its important contributions was to establish the idea of preferential treatment or “differentiation” for the benefit of the Global South.

It is in this context that international negotiations around environmental treaties took place. As Mickelson notes, the Founex Report on Environment and Development (1971) was as much about expanding the First World idea of environmentalism (to emphasise poverty alleviation) as it was about expanding the Third World idea of development (to include social and environmental aspects).⁹⁴

The Stockholm conference brought the sharp difference in the approaches of the Global North and the Global South into light. The developed countries wished to focus primarily on simply managing environmental problems while the Global South highlighted their limitations and the necessity of focusing on development to ensure basic human rights and food security in their countries.⁹⁵ Ultimately a compromise was made, led by developing countries like India, who recognised that environmental protection and economic development need not be mutually exclusive, with Indira Gandhi noting that the choice was not between ecological values and progress per se, rather, it was between conservation and overexploitation.⁹⁶ Accordingly, the principles adopted at the Stockholm Conference reflected this compromise and laid the seeds of the principle of differential treatment. Principles 11 and 12, in particular, recognised that environmental policies should not hamper the future development potential of developing countries and resources should be made available to developing countries to enable them to preserve and improve the environment.

To some extent, this emphasis on development was seen as a concession made to the Third World. The Cocoyoc Declaration, adopted at a United Nations Environment Programme (UNEP)/United Nations Conference on Trade and Development (UNCTAD) symposium in 1974, explicitly noted that historical consequences of centuries of colonial control were still visible in the great concentration of economic power in a small group of nations, and these unequal economic relationships directly contributed to environmental pressures.⁹⁷ Accordingly, it can be understood that the acknowledgement of the need for differentiation in favour of developing countries and necessity of providing them climate finance and other resources was the original promise made to the Third World by developed states, based on which the developing countries participated in the negotiations for climate action.

By the mid-1980s, scientific research by scientists, primarily based out of developed countries, showed an unmistakable increase in greenhouse gases and consequent human-made global warming.⁹⁸ Scientific institutions such as the Scripps Institution of Oceanography at UC San Diego, which maintained a daily record of global atmospheric concentration of carbon dioxide (CO₂) since the 1960s, show a sharp and continuous uptick in CO₂ concentration (dubbed the “Keeling curve”).⁹⁹ It was recognised that in addition to taking concerted action to deal with pollution and specific consequences of climate change (such as the Montreal Protocol to deal with Ozone Layer depletion) there was a need to address the underlying problems of anthropogenic emissions. Increasingly, countries realised that the global climate and the earth’s ecosystems were deeply interlinked and dealing with their problems required concerted efforts globally. Proliferation of issue-specific environmental treaties also caused logistical and practical problems, such as simultaneous and uncoordinated negotiations, overlapping provisions, duplication of implementation efforts, and so on. This treaty congestion, as Weiss calls it, was especially a challenge for Third World countries which simply did not have the resources and staff needed to effectively participate in so many negotiations.¹⁰⁰

Several workshops and conferences on climate change, such as those in Villach (1985), Toronto (1988), the Hague (1989), and Noordwijk (1990), were organised. Bodansky notes that until about 1990, the governments interested in dealing with climate change were mostly developed countries, and most of the scientific research on climate change were from these countries.¹⁰¹ This is evidenced from the fact that the initial climate conferences were largely held in developed countries, and most of their participants were interested scientists, academics, and officials from developed countries. For instance, the Villach Conference, organised jointly by UNEP, the World Meteorological Organization (WMO), and International Council for Science (ICSU), was attended by scientists from 29 countries, and of around 80 participants, only seven or so were from developing countries of Africa, Asia, and South America, the rest largely being from developed countries, particularly from North America and Europe.¹⁰² Similarly, the proceedings of the Toronto Conference (1988) show that only three of the 13 papers represented a perspective from the developing countries.¹⁰³ There were no participants from small island countries in either conferences. This observation is not to detract from the rigour or the correctness of this research but to highlight the difficulty of participation faced by members of the Third World.

However, in the meanwhile, the developing countries continued to insist upon differentiation and climate finance. For instance, the Hague Declaration on the Environment noted that:

[t]he international community and especially the industrialized nations have special obligations to assist developing countries which will be very negatively affected by changes in the atmosphere although the responsibility of many of them for the process may only be marginal today.¹⁰⁴

The declaration also noted that for countries for whom fulfilling the decisions taken to protect the environment prove to be a “special burden” (essentially developing countries) would receive “fair and equitable” assistance in view of their level of development and “actual responsibility for the deterioration of the atmosphere”. This can be seen as an early formulation of the principle of common but differentiated responsibility, based on historical responsibilities and current capabilities, which would ultimately be a point of fierce contention during the UNFCCC negotiations.

In the run-up to the negotiations on UNFCCC, a Ministerial Conference on Atmospheric Pollution and Climatic Change was held in Noordwijk, Netherlands in November 1989, where 67 countries participated. Among other principles, the declaration also included the principle of common but differentiated responsibilities (though not referred to as such). The declaration noted that in view of their contribution and capabilities, the developed countries should initiate domestic action, financially support countries for whom climate action would be an excessive burden and reduce greenhouse gas emissions, considering the developing countries’ need for sustainable development.

It can be concluded from the above discussion that during this period, as the climate change agenda was being shaped, the Third World countries were consciously able to include the key conditions of differentiation (and ensuring their right to sustainably develop) and climate finance, which were seen as their core interest.

B. The Rio Era (1990–2009): UNFCCC and the Kyoto Protocol Regime

The Rio Era negotiations, which were formalised in the UNFCCC, did include the key Third World demands of differential treatment and climate finance; however, the formulations were watered down to achieve agreement with the developed countries. For instance, certain principles such as common but differentiated responsibility (CBDR), inter and intra-generational equity, sustainable development and precautionary principle that were included in the UNFCCC (Article 3). Atapattu notes that most Global South states were in favour of inclusion of these principles (along with others), while the United States and some of the other Global North states were wary of including them, as they did not know where these principles would lead.¹⁰⁵ She also highlights that not only did the developing countries have to compromise on the substance of these principles, but many other principles proposed by them were not included, such as the right to development; liability and compensation for loss and damage; the equal right to ocean sinks; non-imposition of environmental conditions through aid and so on.¹⁰⁶ It is especially important to note that the emphasis on the right of development during the Stockholm Era, which was seen as a major achievement of the Global South, was removed entirely from the conversation during this era.

The contemporary Third World observers did not consider the UNFCCC as a great achievement.¹⁰⁷ As Sokona, Najam, and Huq have noted, the damage to the Third World interests largely resulted from neglect and inattention to the promises made to the Third World.¹⁰⁸ As noted earlier, differentiation and climate finance were negotiated as key pillars of the UN climate regime, as noted by some developed countries themselves in the Bergen Conference (1990). Due to opposition by the United States and considering the nature of UNFCCC as a framework convention, the detailed mechanism for providing climate finance and improving the adaptation and climate resilience of Third World countries was left for future negotiations. However, as the negotiations for the Kyoto Protocol showed, much of the negotiating agenda focused on developing a carbon market.¹⁰⁹ The priority of the COPs shifted towards making rules and regulations to implement mitigation targets and operationalise market mechanism, while issues such as adaptation and building climate resilient infrastructure in Third World countries by providing adequate climate finance took a backburner. This era saw the ethical concerns over climate justice and discussions over “ecological debt” being dismissed as “impractical”, focusing on what the Global North and transnational ruling elites saw as practical market-based solutions, resulting in a dissonance among the marginalised peoples and a deepening North-South divide.¹¹⁰

As feared by many observers, the development of the carbon markets did little to help the Third World or its peoples. In fact, in many cases it enabled “climate fraud”, whereby large polluting corporations were able to obtain millions of dollars in “incentives” and carbon credits without making any major changes in their operations.¹¹¹ At a grassroots level, carbon trading policies often led to “carbon colonialism” – rapid extraction of fossil fuels, which were sought to be “compensated” through offset policies, like afforestation, were done at the expense of traditional communities and local biodiversity.¹¹²

Similarly, the apparently progressive attempts to link human rights and the environment may have led to the replication of the colonial dynamics of power within human rights institutions and caused worse outcomes for the people, where it was imposed as a top-down solution.¹¹³ Gonzalez, in this context, emphasises developing a non-Eurocentric account of the human rights project with respect to the environment and recommends local, grassroots-led approaches, which can better realise the emancipatory potential of human rights.¹¹⁴

The history of negotiation of climate finance further illustrates the disadvantage of the Third World. The need for ensuring availability of financing for building the capacity of developing countries to adapt to climate change and transition to low carbon-footprint economies was felt since the inception of climate negotiations. The Ministerial Declaration at the Second World Climate Conference (1990) in the run to negotiating UNFCCC noted that “[a]dditional financial resources will have to be channelled to developing countries for those activities which contribute both to limiting greenhouse gas emissions and/or adapting to any adverse effects of climate change, and promoting economic development”.¹¹⁵

Initially, climate finance was seen as an extension of the official development assistance being provided by some developed countries to Third World countries. However, the purpose of development assistance was different from climate finance, which is aimed to help developing countries mitigate and adapt to the effects of climate change. Counting development assistance as climate finance was therefore seen as “double counting” and the need for “new and additional” finance (as opposed to repacking existing sources of finance) specifically for climate action was recognised.¹¹⁶

The UNFCCC, which introduced differentiated obligations between developed countries and developing countries (included in Annex I and II), provides that:

the developed country Parties and other developed Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of or access to environmentally sound technologies and knowhow to other Parties, particularly developing country Parties, to enable them to implement the provisions of the Convention.¹¹⁷

It also sought to create a financial mechanism to ensure “provision of financial resources on a grant or a concessional basis”, and was required to have a balanced and equitable representation of parties and a transparent system of governance.¹¹⁸ The Global Environment Facility (GEF) was entrusted with the operation of the financial mechanism in the interim until specific rules were made by the first conference of parties.

In essence, the UNFCCC did little more than recognise the need for climate finance, and put in place a financial mechanism framework without actually defining such “climate finance”, requiring any binding obligations on individual developing states, or creating a detailed institutional procedure regarding climate finance. Decisions on it were postponed, to be subjected to further negotiations at the various COPs. In the first COP, held at Bonn, Germany in 1995, the parties were only able to agree to formalise the role of GEF in operating the financial mechanism.¹¹⁹ No progress was made on negotiating any further targets or commitments for climate finance.

In the meantime, the Kyoto Protocol had established international carbon markets through the “flexibility mechanisms” of Joint Implementation, Clean Development Mechanism (CDM), and International Emissions Trading.¹²⁰ These were seen as an important way of incentivising climate finance flows towards developing countries through market-based methods. Joint Implementation allowed for North-North cooperation, allowing an Annex I party to acquire “emission reduction units” resulting from certain mitigation projects located in another Annex I state.¹²¹ CDM allowed developed countries to obtain “carbon offset credits” from their funded projects in developing countries (non-Annex I countries) if the emission reductions from such project show “real, measurable and long-term benefits related to the mitigation of climate change” which was “additional to any that would occur in the absence of the certified project activity”.¹²² In essence, the Kyoto Protocol system introduced binding emission reduction targets for developed countries, fulfilment of which could be partially “outsourced” to developing countries (which do not have emission reduction obligations) by funding and implementing projects which mitigate climate change in those countries. It is also important to note that while the Kyoto Protocol introduced binding emission cuts for developed countries, it kept climate financing through the aforesaid mechanisms entirely voluntary. It sought to nudge developed countries through the market rather than legally requiring the provisioning of climate finance. It further failed to raise climate finance in any concerted, systematic, or measurable manner.

The introduction of voluntary market-based mechanisms for climate finance was seen by many scholars as a detraction from the developed countries’ responsibility and a backdoor for carbon colonialism.¹²³ Julia Dehm, for instance, highlights the criticism that these market mechanisms could further marginalise those who are already most vulnerable to the adverse effects of climate change.¹²⁴ There have been fears that such CDM projects (like afforestation or renewable energy projects) could in practice mean land grabbing and “green grabbing” at the expense of indigenous people and accelerate the destruction of local ecosystems, and increase poverty.¹²⁵

Subsequent COP decisions continued to incrementally make rules to improve the reporting and transparency regarding climate finance. For instance, the parties in the COP 4 (1998) decided to review the financial mechanism every four years.¹²⁶ COP 7 at Marrakech (2001) created a separate Special Climate Change Fund (SCCF) and Least Developed Countries Fund (LDCF) to finance project adaptation, technology transfer, and capacity building, and to assist least developed countries prepare and implement their national adaptation programmes of action, respectively.¹²⁷ It also created an Adaptation Fund under the Kyoto Protocol to “finance concrete adaptation projects and programmes in developing country Parties”.¹²⁸ However, none of these decisions actually delivered on the promise of delivering the necessary “new and additional” climate finance to the Global South.

C. The Copenhagen era (2009–15): dilutions and compromises

The Copenhagen conference was rather infamous for the perceived unfairness of the negotiating process and the consequent walkout by several developing countries.¹²⁹ It also saw the negotiation for the Paris Agreement gather steam, and many principles of the UNFCCC which were seen as fundamental, and not just by the developing countries, were considerably diluted.¹³⁰ As Rajamani notes, the principle of differentiation, in the form of CBDR, was introduced to introduce a “balance of commitments” between the Global North and the Global South.¹³¹ It was hoped that the application of differentiation would meaningfully integrate developing countries within the climate regime, while achieving necessary cooperation from developed countries to meet the climate action goals effectively. However, this principle has been greatly diluted through “self-differentiation” in the post-Copenhagen era.

COP15 at Copenhagen (2009) is often called a watershed, as for the first time the developed countries pledged a specific (non-binding) numerical target of raising a minimum of US$100 billion annually as climate finance for developing countries by 2020 through the “Copenhagen Accord”.¹³² However, it is interesting to note that the Copenhagen Accord (adopted by 29 countries) was seen as a face-saving measure. This is because for the first time, the COP (which takes decisions as per consensus between all parties) could not come to any agreement, and merely “took note” of the Accord, rather than approving it.¹³³ While it was billed as the conference to “seal the deal” and provide definitive clarity on the status of climate change regime after 2012 (when the emission reduction targets under the Kyoto Protocol were due to expire), it failed to achieve those goals,¹³⁴ and only exposed the continuing fault lines that divided the Global North and the Global South. Compared to the negotiations prior to the UNFCCC and Kyoto Protocol, developed countries seemed determined to reverse the Kyoto Protocol position of binding emission cuts on them, and the Annex-based differentiation model of the UNFCCC.¹³⁵ Developing countries saw this as a major dilution of the principle of CBDR and a reversal of the hard-earned progress achieved under UNFCCC and Kyoto Protocol.¹³⁶ The Copenhagen Accord was presented as a fait accompli to the developing countries, most of whom had no role in drafting it, and were told to accept it or else they would not receive the promised financing.¹³⁷ Some developing countries walked out of the conference, dissatisfied with the procedural irregularities in negotiations, and the perceived high-handedness of the Chair in not taking the developing countries into confidence. The “outcome” in the form of the Copenhagen Accord was therefore incomplete, and despite the promises made concerning climate finance, there were no methods to implement those promises.¹³⁸

The “Copenhagen turn” in climate governance moved away from the previous model of “redistributive multilateralism”, as noted by McGee and Steffek, and instead towards a model of voluntary pledges, achieved through weakening the previously agreed UNFCCC model of differentiation.¹³⁹ Despite the general dissatisfaction with the Copenhagen COP, it has had a lasting impact. The dilution done to principles of differentiation and CBDR has proven enduring, leading to an approach of “self-differentiation” in the Paris Agreement.¹⁴⁰ This led to essentially re-setting the climate change framework in the run-up to the Paris Agreement negotiations.¹⁴¹

In a way, the developing countries were presented with a choice between sticking to the previous model of binding emission targets on developed countries (through the application of CBDR) or accepting genuine offers (rather what were said to be genuine offers) of climate finance from the developed countries. Developing countries, most of whom were disproportionately adversely impacted by climate change and needed immense funding to even be able to adapt to (let alone mitigate) climate change,¹⁴² had little real choice but to accept the latter.

Implications of this approach on Climate Finance since the Copenhagen COP have also been immense. Developments in COPs following Copenhagen initially showed some promise, for instance, the establishment of the Green Climate Fund at COP 16 (Cancun, 2010).¹⁴³ However, as developments later showed, these promises did not materialise into reality.¹⁴⁴

The Copenhagen Era also saw increased involvement of non-state actors in the COPs. The Copenhagen COP, for instance, was attended by over 40,000 delegates from various non-governmental organisations (NGOs), international governmental organisations (IGOs), media, and UN agencies.¹⁴⁵ Although this was seen as a positive move, allowing for greater scrutiny by civil society and engagement by climate-oriented groups, in practice, it also permitted legitimisation of corporate capture of negotiations, fossil fuel lobbies, and in some cases co-option of environmental NGOs by corporate lobbies.¹⁴⁶ Both in states of the Global North and the Global South, business lobbies have been able to influence climate policies.¹⁴⁷ The prominent role of the “transnational ruling elite” in climate negotiations has grown increasingly prominent over successive COPs. This has posed dilemmas for grassroots climate movements, who are interested in urgently addressing climate concerns but at the same time are wary of certain forms of climate action that could further “global extractivism” and carbon colonialism.¹⁴⁸ They have been particularly wary of the “corporate capture” of climate negotiations, particularly the influence of fossil fuel companies and predominance of neoliberal market-based solutions, which have in many cases been detrimental to the local communities.¹⁴⁹

D. The Paris Era (2016–): facilitation and soft-push

After the coming into force of the Paris Agreement,¹⁵⁰ there has been some attention given to issues of concern to the Global South, such as climate finance, adaptation, and, more recently, loss and damage. However, the negotiations have proved remarkably slow where Third World interests are concerned.

The Paris Agreement formalised the dilution of the CBDR principle, allowing for a bottom-up “self-differentiation” approach,¹⁵¹ undoing the effect of the hard-fought inclusion of CBDR as a legal principle in the UNFCCC. The self-differentiation and voluntary approach is supposed to better facilitate compliance and induce climate action on a range of issues such as adaptation, transfer of technology, climate finance, and loss and damage. As we arrive at the first Global Stocktake,¹⁵² it is clear that the world is not on a trajectory to meet the Paris Agreement climate goals.¹⁵³ Especially on issues like adaptation, climate finance, climate mobility, which are of importance to the Global South, particularly the least developed countries and the small island states, progress has been slow.

Contrary to what was once hoped, the Paris Agreement has not conclusively settled the key debates around climate action, and been a semi-colon rather than a full-stop in the series of endless negotiations around key issues of climate change.¹⁵⁴ More than three decades of climate change negotiations have only shown that these differences between the Global North and the Global South have not been meaningfully resolved.¹⁵⁵ Rather, the Paris Agreement has only papered over these differences, through deliberately ambiguous formulations which could potentially be interpreted by states differently, continuously deferring actual workable agreement.¹⁵⁶

The issues of loss and damage, as well as climate finance illustrate this continuous deferral of agreement and actual action.

1. Loss and damage in the Paris Era

Many developing countries, particularly those in AOSIS, demanded compensation for ‘loss and damage’¹⁵⁷ caused due to climate change, in addition to mitigation and adaptation, by the developing countries and small island developing states.¹⁵⁸ Pursuant to the decision at COP 18 at Doha to negotiate a loss and damage framework, the Warsaw International Mechanism for Loss and Damage (WIM) was established at COP 19 at Warsaw in 2013.¹⁵⁹ It was intended as a voluntary mechanism, operated under the supervision of the COP, to “promote the implementation of approaches to address loss and damage”.¹⁶⁰

During the negotiation of the Paris Agreement, many developing countries demanded to institutionalise WIM into a permanent body and provide for liability for the developed countries to compensate developing countries for loss and damage. However, a detailed chapter on loss and damage, which sought to create a legal liability on developed states for loss and damage (including for climate migrants), was seen as unacceptable to many developed countries, including the United States. As a compromise, a single article on loss and damage was adopted (Article 8), which continued the voluntary approach of the WIM.¹⁶¹ In fact, the COP decision accompanying the Paris Agreement clarified that Article 8 did not involve or provide a basis for any liability or compensation.¹⁶² This has led to the article being described as a “pyrrhic victory”, essentially relegating these issues to the level of risk management and adaptation.¹⁶³

COP 27 (Sharm El Sheikh, 2022), was hailed as a breakthrough, as Parties agreed to create a separate Loss and Damage Fund, separate from adaptation finance, for countries hit particularly hard by climate disasters.¹⁶⁴ However, there is little clarity on how this fund will be financed (since there is no obligation on developed states to address loss and damage).¹⁶⁵ This has led developing countries to remain cautious, warning against the expansion of the donor base to include developing countries, or fearing that the pledges for loss and damage will also remain unfulfilled, much like the $100 billion pledge of climate finance.¹⁶⁶ There are fears that the fund may simply be palliative, just another in the long list of climate funds that have been set up in the last few decades and whose effectiveness has been questionable.

2. Climate finance in the Paris Era

The Paris Agreement included several references to climate finance.¹⁶⁷ The preamble referred to the special need of least developed countries for “funding and transfer of technology”.¹⁶⁸ Article 9 stipulated that developed countries “shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention”.¹⁶⁹ A review of climate finance efforts was also included in the global stocktake.¹⁷⁰ Article 11 also required capacity building of developing countries to inter alia facilitate access to climate finance.¹⁷¹

However, a deeper analysis of the Paris Agreement reveals that these promises of climate finance do not necessarily include binding obligations. Only Article 9(1) herein creates a hard obligation on conduct on part of the developed states.¹⁷² Even then, the reference to “in continuation of existing obligations under the Convention” makes this obligation ambiguous and diluted since under the UNFCCC there is no binding obligation on each country to provide a specific amount of climate finance; it is a general obligation, moderated by qualifiers like “as appropriate”.¹⁷³ The words such as “Parties are encouraged” in the second paragraph and “Parties should continue” in the third paragraph, are essentially “soft-obligations”, which merely recommend or encourage a particular action without having a binding force.¹⁷⁴ As noted by Rossati and Zahar, these provisions are in the nature of political statements signalling intent, rather than cognisable legal provisions.¹⁷⁵

The COPs conducted after the Paris Agreement came into force have continued to build upon the existing framework of climate finance. COP 26 at Glasgow (2021) for instance, reaffirmed the pledge of developed countries providing $100 billion annually and included specific financial pledges to the Adaptation Fund and the Least Developed Countries Fund.¹⁷⁶ It also agreed to earmark a share of proceeds from market-based mechanisms under the Paris Agreement, specifically to help climate adaptation in developing countries that are particularly vulnerable to the adverse effects.

However, the developments in Climate Finance in the Paris Era has been disappointing for the Global South.

First, there is no binding obligation on individual developed states to contribute to the various climate finance funds. Treaty-based international law (in terms of specific binding obligations on states) on climate finance is almost non-existent.¹⁷⁷ It makes any accountability for failure to provide climate finance (individually or at a collective level) unlikely.¹⁷⁸ The new model of “pledge-and-review” is not just arguably inconsistent with CBDR,¹⁷⁹ but also distracts from the effort to secure finance from developed countries, by also focusing on non-state actors and the expanded donor pool. The gross inadequacy of climate finance for mitigation and adaptation in developing countries is well known.¹⁸⁰ The promise of annual $100 billion climate finance funding has never been fully met. As noted in an Organisation for Economic Co-operation and Development (OECD) report on the aggregate trends in climate finance, US$83.3 billion was provided in 2020 (and even that was accused to be inflated by some developing countries).¹⁸¹

Second, while there seems to be a broad conception of what climate finance means, there is no agreed definition of climate finance in the international climate regime. This has led to problems of double counting, creative accounting, using recycled pledges, and poor transparency.¹⁸² There are also controversies on whether many of the climate funding are truly “new and additional” instead of being reallocation of official development assistance, thereby making developing countries lose the aid they would otherwise receive for poverty alleviation, education, health, and other human development priorities.¹⁸³ These problems remain despite continuous improvements in the reporting and transparency frameworks through successive COPs. The lack of definitional clarity also allows for loans and debt instruments being passed-off as climate finance. As per the OECD figures, US$83.3 billion was provided in 2020, of which only 58 percent constituted public climate finance. Within the public climate finance, around 70 percent of it was in the form of loans (concessional and non-concessional).¹⁸⁴

Third, voluntariness of climate finance is coupled with lack of a single streamlined and transparent framework for climate finance. This has resulted in a maze of different funds, institutions, and regulations that the developing countries wishing to obtain climate finance must navigate. For instance, Philippe Le Houérou notes that in the last thirty years at least ninety-four different green climate funds (not to be confused with the Green Climate Fund (GCF) have been created to finance climate-related projects in emerging and developing countries, of whom as many as eighty-one were active in 2022.¹⁸⁵ This makes it very difficult to have any common standards of evaluating the climate finance flows in a transparent manner or to ensure accountability of these funds on the basis of any principles of international climate and environment governance. Beyond the climate funds created under the climate treaties (like the GCF, the Least Developed Countries Fund (LDCF), etc.) and supervised by the mechanism created under COPs, an increasingly large amount of money going into climate-related projects is being provided from private sources, large pension funds, and multilateral development banks.¹⁸⁶ Such climate funding, due to the lack of proper oversight, has not always resulted in a better outcome for the most vulnerable peoples. There have been many documented instances of displacement of indigenous peoples, land-grabbing, resource extraction, and so on, under the name of climate projects.¹⁸⁷ This exacerbates the fears of climate finance being just another expression of carbon colonialism which only serves the interests of a transnational ruling elite.¹⁸⁸

III. Need for incorporating fairness in climate negotiations

It is important to acknowledge that the commonly identified Global South states no longer (if they ever had) a common position or approach towards climate actions, and sometimes their interests and positions may be contradictory. For instance, some of the more emerging economies may seek to benefit from various market mechanisms, climate finance and may prefer pathways that temporarily “overshoot” the Paris Agreement targets. Other states, including many small island states, may be more interested in urgent and stringent mitigation actions, compensation for their ongoing loss and damage, and would be opposed to the marketisation of climate action. As noted earlier, this article does not argue that a common position exists among the Global South states. Instead, it argues that regardless of the relative positions of individual states, the climate change negotiations have structurally disadvantaged the Third World. As the history of the climate change negotiations shows, major climate treaties do very little to bridge the North-South divide, and merely paper over them using deliberately ambiguous language, setting up open-ended treaties, and endless negotiations over each proposed action. As noted earlier, a TWAIL approach to climate justice would seek to integrate different forms of climate action like mitigation, adaptation, and climate finance, rather than a siloed approach where agreements on certain issues (usually those important to the Third World) keep getting postponed.

Incorporation of fairness considerations is essential to building a durable institutional regime; a regime built purely on hard-headed considerations of power-based bargains is likely to crumble as soon as the relative power of the stakeholders shift.¹⁸⁹ This incorporation may happen in two ways – first is to build an institution/regime, and later introduce “fairness” through subsequent reforms, or second, agreeing on the principles of fairness first and using it to build the regime on that basis. I argue that in case of climate change, the second approach is preferable, and the first approach is likely to forever marginalise Third World interests. Comparisons may be made with international trade negotiations resulting in a “full single-package treaty” in the case of the WTO. Subsequent attempts to reform the WTO regime through the Doha Development Round of negotiations have proved deadlocked and fruitless, despite two decades of negotiations. If anything, the key issues that are of interest to the Global South have gradually been sidelined, and the erosion of their collective bargaining power has resulted in developing countries accepting “best endeavour promises [made to them] in exchange for a legally binding agreement on trade facilitation”.¹⁹⁰ The imbalances within the WTO have led to a situation where the few provisions which are meant to safeguard the interests of the Global South (such as the Special and Differential Treatment) have led to competition within themselves, further weakening their political unity and their chances at achieving substantive reforms.¹⁹¹ Without incorporating fairness considerations, even if an agreement is achieved, it may prove ephemeral and may not provide a lasting solution.

In the case of climate governance, similar patterns may be noticed. A clear principle of differentiation has been eroded, fragmenting the Global South. The current “building blocks” approach to climate change, which incrementally develops different elements of climate governance and incorporates them into a larger framework,¹⁹² is less likely to focus on issues that are urgent for the Global South, such as climate finance or loss and damage. For instance, without consensus on the basic principles of fairness on how to allocate the cost of mitigation, adaptation, and loss and damage, and without any binding obligations on the Global North to financially contribute, creating many climate funds (such as the Loss and Damage Fund, the LDCF, the GCF and so on) with meagre funding is only likely to lead to competition within various least developing countries and small island states, shifting focus away from the larger issues of fairness of the climate regime. Once the climate governance regime is fully established, the “regime resistance” will complicate subsequent attempts at reforms. Thus, if fairness concerns, which are central to all issues concerning climate action, are not addressed at the outset, later attempts to redress the inequities are likely to fail.

IV. Concluding thoughts: what fairness in climate change negotiations may look like?

In the context of structural problems such as the lack of fairness in climate change negotiations discussed earlier, there are different types of reforms that may be advocated, each with its own limitations. The most effective reforms may be long-term structural reforms, but achieving these would require fundamental changes in the extant global order, and capitalist power relations. In the long-run, systemic reforms would require support from outside of formal diplomatic arenas, courts, legal fora, and, indeed, outside international law. Social movements on climate change may help create popular support for climate justice through what Gorz called a strategy of “non-reformist reforms”,¹⁹³ such that it becomes difficult for countries to take negotiating positions that ignore issues of climate justice. Movements like calls for fossil fuel divestment have been identified as using such strategies.¹⁹⁴ While many differences exist between environmental movements in the Global North and Global South,¹⁹⁵ there are increased commonalities in the struggles of the oppressed and marginalised globally that necessitate linkages between them.¹⁹⁶ Linking development and climate actions and climate justice are no longer only found in movements located in the Global South, but are also realised in the Global North (e.g. post-Sandy housing crisis in New York and proposals for the “Green New Deal” in the US).¹⁹⁷ These structural “non-reformist” reforms may also require a gradual transformation of the consumption-led capitalist international order, which would make both intra- and inter-state climate justice possible. However, by their very nature such “non-reformist reforms” would require a global groundswell of popular support, and could help bridge the North-South divide on climate issues only in the long-term.

However, the nature of the climate emergency necessitates more immediate action. The second type of reform is more of the medium-term substantive reforms that can guide the direction in which climate negotiations are conducted within the present international legal order. These types of reforms may involve ensuring substantive fairness in the negotiating process. From a TWAIL perspective, ensuring this fairness needs to go beyond processual fairness by ensuring that climate negotiations respect certain “red lines” of substantive fairness. This would depart from some of the assumptions in Franck’s “gatekeeping principles” (like no-trumping) in ensuring fairness. As noted in the previous sections, in determining these “red lines” the TWAIL approach would build upon the Rawlsian difference principle but also would also insist upon accounting for historical and consequently present structural disadvantages. This approach discourages forms of climate action that would create a permanent divide between global have and have-nots, or perpetuate colonially created dependencies.¹⁹⁸

The nature of the climate change problem effectively gives greater negotiating power to the biggest emitters. No effective solution is possible if even one of the top emitters does not join it. Considering the near-universal participation in the UNFCCC and the Paris Agreement and recognition of the global nature of climate change, it could be argued that all states have a duty under customary international law to, inter alia, participate in good faith in negotiating for international climate action. This would include the obligation to negotiate courses of action that ensure the continued survival of all states and minimise the violation of human rights of the people adversely affected by climate change. This obligation, in practice, would preclude the States’ withdrawal from the negotiating process and would shape the direction of the negotiations to the benefit of the subaltern and the most disadvantaged peoples. For instance, it would preclude those mitigation pathways, which would lead to a sharp rise in emissions and consequent loss and damage in low-lying countries or certain countries of the Global South.¹⁹⁹ It could also mean that proposals that continuously renegotiate principles such as that of CBDR would not be allowed.

Even as many countries are reluctant to link climate change with human rights in climate treaties, or entertain notions of having a binding and “fair” mitigation obligation, a plethora of national, regional, and international climate litigation pushed by many climate NGOs seek to raise climate ambitions and the “soft-law” of Paris Agreement and other climate treaties into binding obligations (and have successfully done so, in some cases).²⁰⁰ Domestic and regional climate litigation, being jurisdictionally circumscribed, may be of limited help in ensuring fairness in international climate negotiations (including fair allocation issues), though successes in the historically biggest emitter countries is likely to help. Further, issues like jurisdiction, standing, and other constitutional limitations like the division of power may prevent Third World concerns like climate finance from being litigated. These issues may be something that the international courts, like the International Court of Justice, may like to consider in the ongoing climate change advisory opinion.²⁰¹ On the question of the obligation of states with respect to climate change and legal consequences thereof, a finding to the effect that requires states to observe principles of fairness and good faith in their climate negotiations could help in this regard. Further, findings of positive obligations regarding climate change on states, by national courts, regional courts, and international courts (for e.g. the recent International Tribunal for the Law of the Sea (ITLOS) Advisory opinion)²⁰² could also help in this direction by precluding endless delays on negotiating certain agendas.²⁰³ However, to make these substantive reforms possible, it may require favourable judgments, recognition of limited negotiations on climate change, and a substantive notion of fairness, which may not be achieved within a short time frame.

The third type of reform that can be helpful from a Third World perspective, is short-term incremental, procedural reforms. These reforms, by themselves, may not lead to fairness in climate change negotiations, but may gradually add up and make more substantive and structural reforms possible.

From a procedural perspective, climate negotiations have prioritised achieving consensus over adopting decisions through fractious voting. Theoretically, it provides equal voice to each State in the negotiating process. However, the Global North can marshal much more resources which it may invest in the negotiating process such as having a much bigger diplomatic corps, or better scientific or technical expertise. A study has suggested that the level of a states’ vulnerability to climate change may be one of the determinants of the success of their negotiating position.²⁰⁴ However, many Third World states do not have the technical expertise or the resources to accurately show how they would be affected by climate change, beyond just relying on common Intergovernmental Panel of Climate Change (IPCC) reports or other studies generated in the Global North. For instance, recently in its submission before the ITLOS, in the ongoing case relating to climate change, Timor-Leste noted that “there is very limited data as to the effects of climate change on Timor-Leste. As such, it is difficult to comprehensively report and monitor the impacts of climate change on its marine environment”.²⁰⁵ It also highlighted that it needed technical support and financing to develop accurate reporting abilities on emissions and climate change impacts.²⁰⁶

This lack of resources often works to the disadvantage of the delegations from the Global South countries in climate negotiations as well. Despite the relative increase in the size of their official delegations in recent years, the size of delegations of Global South states, particularly small island states, remain smaller than their Global North counterparts.²⁰⁷ Further, sometimes many of their delegates are NGO and industry representatives, rather than technical experts or diplomats. Although there is no clear empirical evidence linking the size of state’s delegations with negotiation outcomes,²⁰⁸ the lack of parity in the negotiation resources points just adds to the structural disadvantage that the Global South faces. This needs to be mitigated by providing greater support to the countries of the Global South, particularly the least developed countries and the small island states. The UNFCCC Secretariat could provide trained personnel to work with diplomats from these countries, to help them make their case more effectively. The negotiating process also could be made fairer by maintaining transparency on the representatives of NGOs, corporations, industry lobbies, and so on. As non-state entities have started playing an important role in climate negotiations,²⁰⁹ there is a need to ensure that the voices representing the subaltern are not drowned out by the lobbies representing the transnational ruling elites. The slogan “no taxation without representation” had become popular among the founders of the United States.²¹⁰ It is now high time to say “no emissions without representation”. That would, at least procedurally, ensure that the Global South, representing the majority of the world’s population and the biggest victims of climate change, are given a correspondingly higher voice. It could also shift the negotiating agenda from the Global North issues such as development of carbon market, to urgent Third World issues of adaptation, climate mobility, and loss and damage.

It is not my case that climate change negotiations should be put on standby till the North-South divide is bridged or some absolute fair standards are agreed. That is not feasible considering the urgency of the climate issue. However, I argue simply that the price of this urgency should not be paid mostly by the Third World (including the Third World within the First World), as has been the case so far. Inverting the negotiating structure to allow the Third World to help set the agenda for the climate change may change the narrative and lead to fairer and quicker outcomes. That would also create a more lasting and effective climate governance regime. These relatively modest suggestions, while being limited, could make climate change negotiations fairer, within the existing legal framework. While being limited, these incremental reforms may cumulatively add up to make medium-term substantive reforms and long-term structural reforms possible.

Ultimately, all these three types of reforms have their own limitations, but considering the nature of climate emergency, each of them is important, particularly to ensure that climate transition is fair towards to the Third World.