UN talks resulted in a new global pact in Paris, but other forms of dialogue could be useful to resolve a long-running dispute between developed and developing countries
Archbishop Desmond Tutu chaired South Africa’s truth and reconciliation commission after the end of apartheid (Pic: N Photo/Jean-Marc Ferré)
The Paris conference was acclaimed as a diplomatic triumph, but it left much to be done.
There is a long list of tasks including agreement on the rules that will guide how the deal is implemented, but the real challenges are the fundamental underlying disagreements that shape all aspects of the negotiations.
These revolve around questions such as how to share global mitigation efforts between developed and developing countries and how to help vulnerable countries that suffer loss and damage from climate impacts.
It may not be possible to reach agreement through traditional negotiations, but it’s where experience and ideas from the area of transitional justice could help.
UN climate negotiations in Bonn (Pic: UNFCCC/Flickr)
Transitional justice involves processes and mechanisms – for example truth and reconciliation commissions – that have helped countries to make a transition from violent conflict and human rights abuses to peace and reconciliation.
There are great differences between global climate policy issues and the terrible circumstances where transitional justice approaches have evolved, but there are also parallels.
Climate change raises questions about global justice and what many see as historical wrongs, and it is widely recognized that climate change is impacting human rights.
There are intractable, long-standing differences between countries that currently stand in the way of a strong, united global response to climate change.
One of the aims of the new agreement is to hold the global temperature increase to well below 2C and to “pursue efforts” to limit the increase to 1.5C. Countries’ current contributions will not even come close to holding warming below 2C.
Finding a way forward is increasingly urgent and will need to involve tackling questions that the Paris conference did not resolve.
One area that could benefit from an innovative approach surrounds issues such as financing and loss and damage where the negotiations have had little or limited success.
Civil society organizations have been advocating for urgent emission reductions and increased financing and tackling climate justice challenges through initiatives such as the Carbon Levy Project, which is proposing a global fossil fuel extraction levy.
There is now growing interest in exploring if lessons from transitional justice could help to resolve some of the deep and long-standing differences between countries in the international negotiations.
Transitional justice is one of the issues explored in The Many Faces of Climate Justice: Exploring the Principles of Climate Justice, a collection of papers commissioned by the Mary Robinson Foundation – Climate Justice.
Another ground-breaking project, led by Sonja Klinsky, is currently evaluating how experience from peace and reconciliation efforts could help to address international climate policy questions.
Experience from transitional justice could help on the ground, for example in situations where communities have been displaced by climate impacts or by the impacts of inappropriate mitigation initiatives.
It could also involve, for example, learning from experience with the sharing of collective reparations that have been provided as part of transitional justice processes.
At the global level one option could include a symbolic apology to those damaged by climate impacts.
Breaking the mould
The international climate negotiations often appear stuck in retelling the same story, with countries reiterating the same positions.
Borrowing from transitional justice, one approach could involve creating a new space for a dialogue that aimed to establish the shared truth (or common vision that allows different perceptions of the truth to exist together) that is essential for reconciliation and moving forwards.
It seems unlikely that such a space could be found in the current setting of the UN climate negotiations, even if a country or group of countries were willing to lead such an initiative.
An external, independent “eminent persons panel” or similar group could potentially be one alternative, but experience with such groups has been mixed.
Conciliation commission
Another way of creating a space for a new dialogue could involve making use of conciliation, one of the (so far inactive) dispute settlement options available under the UNFCCC.
A dispute could concern a very wide range of issues, for example a question related to loss and damage.
If a party notifies another party (or parties) that they have a dispute and if the dispute is not settled within 12 months it must be submitted to conciliation, if one of the parties requests this (see UNFCCC Article 14).
A conciliation commission is formed by each party to the dispute appointing an equal number of members, who jointly appoint a chairperson.
Conciliation commissions address legal questions, but also other aspects of disputes, which can involve clarifying facts. A conciliation commission makes a final recommendatory award. The award is not legally binding, but it could carry considerable moral force and answer legal questions.
It might be possible for a conciliation commission to find creative solutions that would not be possible in the context of the negotiations.
Much would depend on the composition of the commission and a careful and constructive design of the entire process, from identification of the dispute to the final award. Countries, including those not directly involved, would need to feel fully confident in the process.
A conciliation commission may not be the best route forward, but it is one potential option.
The urgent need to strengthen global climate action means that new routes for solving disagreements between countries and finding ways forward in the negotiations need to be explored, including routes not considered before.
Joy Hyvarinen is Adviser to VERTIC. This article reflects her personal views.