COP28 and Its Shortcomings: The Inadequate Protection of Human Rights

by | Jan 3, 2024

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About Lara Ibrahim

Lara Ibrahim is currently a Judicial Fellow at the International Court of Justice, working with H.E. Judge Sebutinde. She is a DPhil candidate in the Faculty in Law at the University of Oxford, where her doctoral research focuses on extraterritorial human rights obligations of States in the context of climate change. Prior to this, Lara completed the Bachelor of Civil Law at the University of Oxford and her undergraduate Law degree at the University of Sheffield.

The 28th meeting of the Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC), or COP28, was held from 30 November to 12 December in Dubai, United Arab Emirates (UAE). This annual meeting allows State Parties to the UNFCCC to convene, negotiate, and adopt (non-binding) decisions ‘necessary to promote the effective implementation of the Convention’. There was much scepticism ahead of COP28, particularly because its nominated president, Sultan Ahmed Al-Jaber, heads the Abu Dhabi National Oil Company. Nevertheless, the final negotiated decision has been celebrated as ‘historic’ due to its inclusion of a policy to ‘transition away’ from fossil fuels. But the deal still arguably falls short of what is needed to turn the tide on climate change, with governments still failing to recognise climate change as a human rights issue.

There is indeed some cause to celebrate the final outcome of COP28. Most notably, it is the first ever COP in 31 years to recognise the key cause and driver of climate change: namely, fossil fuels. In addition to this, the decision calls on States Parties to triple renewable energy capacity globally by 2030, taking into account the 1.5 degrees Celsius temperature target set out in the 2015 Paris Agreement. Moreover, the conference was able to build on and operationalise last year’s establishment of a loss and damage fund for countries most vulnerable to climate change at COP27. 792 million USD was pledged to the loss and damage fund by the first day of COP28, which signalled cooperation and progression amongst governments.

However, despite the recognition of the need for governments to transition away from fossil fuels, the final decision of COP28, does not go far enough. Firstly, the policy of “transition away” was changed from the original, stronger-worded policy of “phasing out” fossil fuels. The decision also does not elaborate on any timeframe for the transition away from fossil fuels and does not contain any mechanism which will hold governments accountable to this. Littered with loopholes, the final agreement has been characterised by some as simply another ‘win’ for the oil and gas industry. With respect to loss and damage, it has been argued that the 792 million USD pledged ‘covers less than 0.2% needed’ to assist vulnerable States. The United States of America, which is the world’s largest historical polluter, only pledged $17.5 million to the fund, signalling their ‘indifference’ to vulnerable States, and thus to achieving climate justice.

There is a clear need for recognition by all governments that climate change is a human rights issue, threatening rights including the right to life, to privacy, and to a healthy and sustainable environment. Although the need to respect human rights obligations when taking action to address climate change was reiterated in the COP28 decision, no COP decision nor climate change treaty has yet acknowledged that the failure to take sufficient action to address climate change may itself constitute a human rights violation. This recognition would, arguably, force governments to agree to and comply with more stringent obligations, in order to respect both their obligations under international environmental law and international human rights law. For instance, the obligation to phase out the use of fossil fuels is imperative to both the protection of the climate and thus, to the protection of human rights.

Although the final decision reached at COP28 signals a step in the right direction, it leaves much to be desired. Human rights and the pursuit for climate justice must guide future decision-making to combat the climate crisis.

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