Net Zero = Not Zero

Does the Carbon Market Deal promote the Right to a Healthy Environment enshrined in Principle 1 ofThe Stockholm Declaration?

By Tabitha Thijm, Nov 19, 2021

Edited on Dec 1, 2021 by Juliette Rattier Final edit on Dec 2, 2021 by Olessya Dadema

According to the United Nations (‘UN’), climate change refers to long-term shifts in temperatures and weather patterns.[1] The drastic shift in climate conditions has posed a threat to human health and diminished the survival rate of animal species. These shifts are caused by excessive greenhouse gas (‘GHG’) emissions which are generated by burning fossil fuels, deforestation, and the farming of livestock. Luckily, governments across the globe have been working towards a common framework within the scope of International Environmental Law to prevent, remedy as well as punish actions contributing to climate change. Brief History Governments around the world realized that, in order to effectively combat climate change, they would have to work together on a common objective. This objective, namely the protection of the environment as a human right, was enshrined for the first time in Article 1 of the Stockholm Declaration,[2] which has set a foundation for numerous international environmental agreements. Acts such as the adoption of the UN Framework Convention on Climate Change (‘UNFCCC)’[3], the Kyoto Protocol[4] and the recent Human Rights Council Resolution 48/13[5] are just a few examples of the multilateral cooperation between governments in regard to environmental law. A turning point in this cooperation is the adoption of the Paris Agreement[6], which broadened the scope of the Kyoto protocol and made it legally binding on all 196 countries who attended the UN Climate Change Conference, COP21, including developed and undeveloped countries.[7] The aim of the Paris Agreement was to address the negative impact of climate change and to propose a global framework for the reduction of GHG emissions to limit the effects of climate change. More specifically, Article 2(1) of the Paris Agreement[8] sets the goal to limit global warming to below 2 degrees pre-industrial levels, which is referred to as ‘Net Zero’. Net Zero Net Zero refers to a system in which the GHG released into the atmosphere is balanced by the removal of GHG out of the atmosphere. At the most recent UN Climate Change Conference, COP26, a carbon market deal was struck with the aim to secure Net-Zero. The COP26 was focused on the implementation of the Paris Agreement and strove to enhance collaboration between governments, through mobilization and adaptation. Additionally, a few mechanisms were adopted to fulfil the objective set out in the Paris Agreement, one of them being the ‘Carbon Market Deal.’ The Carbon Market Deal Also known as ‘Cap and Trade’, or ‘Carbon Offsetting’, the Carbon Market Deal was regarded as paramount for the reduction of GHG emission during COP26. Indeed, the 200 States which attended the COP26 finally struck a deal establishing the rules governing the international trade of carbon for the reduction of emissions. This mechanism was first introduced in Article 17 of the Kyoto Protocol[9], along with the Clean Development Mechanism (‘CDM’) and Joint Implementation (‘JI’)[10], and was re-established under Article 6 of the Paris Agreement[11] as one of the approaches for the reduction of emission levels. Article 6 specifically allowed governments to buy offset credits that represent emission cuts of other governments.[12] Concerns Although the Carbon Market Deal is asserted to be a ‘Natural Climate Solution’ (‘’NCS’), it has faced a lot of backlash from local communities, activists, and indigenous people groups. These groups claim that carbon offsetting under Article 6[13] constitutes a diversion from a systemic global change, namely by bolstering the pursuit of profit at the cost of the right protected under Principle 1 of the Stockholm Declaration.[14] Indeed, projects implemented for the facilitation of the carbon market have raised the question of whether the carbon market compromises human rights. Incidents such as the flooding of indigenous lands and forceful displacement in Panama caused by the hydroelectric dam in Barro Blanco that was registered under the Clean Development Mechanism of the Kyoto Protocol[15], are what causes cynicism towards governments.[16] Furthermore, the integrity of the carbon market scheme is questioned to be just another greenwashing stunt that allows fossil-fuel-heavy countries and companies to offset their way to Net Zero, continuing to burn fossil fuels whilst relying on buying credits from more environmentally friendly countries. If environmental integrity is not ensured, international carbon market mechanisms do not achieve their objectives – they would neither reduce emissions nor cut the costs of mitigating climate change.[17] Conclusion Addressing the double-edged sword that comes with the enforcement of measures in International Environmental Law such as the Carbon Market Deal is never easy. But it is crucial when measures have adverse effects on marginalized communities. Not only does it invalidate the right of indigenous people under the UN Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) in cases such as in Barro Blanco, but it does not provide any reassurance of proper regulation and remedy. This is especially considered when big corporations are not directly held accountable and are often idolized for greenwashing. Moreover, the conspicuous involvement of big polluting corporations in international conferences such as the COP26 challenges the credibility of measures such as the Carbon Market Deal. Luckily, there are NGOs, such as the Centre for International Environmental Law (CIEL), which strive for the enforcement and the protection of environmental law, as well as for the promotion of human rights and a just and sustainable society. Their opinions are important to consider, as they often contribute to holding international actors such as businesses and governments accountable. But their scope is often limited. Additionally, there is no guarantee of systemic change when transitioning to low-carbon economy schemes such as carbon trading. Some activists are of the opinion that carbon offsetting constitutes a distraction, namely solely solving problems that have a minor effect, to preserve the current capitalistic system which promotes profit over the right to a healthy environment. If there is no systemic change, Principle 1 of the Stockholm Declaration[18] cannot effectively be enforced, and the right to a healthy environment is not guaranteed.

[1] United Nations, 'What is Climate Change?' (United Nations) <https://www.un.org/en/climatechange/what-is-climate-change> accessed 19 November 2021. [2] 'Declaration of the United Nations Conference of the Human Environment' (Stockholm 5-16 June 1972) (6 June 1972) Principle 1. [3] Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). [4] Kyoto Protocol to the United Nations Framework Conventions on Climate Change (adopted 25 March 1998, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol). [5] UNCHR Res 48/13 (8 October 2021) UN Doc A/HRC/RES/48/13. [6] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016). [7] ibid art 2. [8] art 2(1). [9] 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change. [10] Kyoto Protocol to the United Nations Framework Conventions on Climate Change (adopted 25 March 1998, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol). [11] Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) art 6. [12] ibid. [13] ibid [14]Nina Lakhani, ‘A Continuation of Colonialism: Indigenous Activists Say their Voices Are Missing at COP26’ The Guardian (Glasgow, 3 November 2021) <https://www.theguardian.com/environment/2021/nov/02/cop26-indigenous-activists-climate-crisis> accessed 19 November 2021. [15] Kyoto Protocol to the United Nations Framework Conventions on Climate Change (adopted 25 March 1998, entered into force 16 February 2005) 2303 UNTS 162 (Kyoto Protocol). [16]Amnesty International, ’Panama 2015/2016; Indigenous Peoples’ Rights’ (Amnesty International) <https://www.amnesty.org/en/location/americas/central-america-and-the-caribbean/panama/report-panama/> accessed 19 November 2021. [17]Lambert Schneider, Stephanie La Hoz Theuer, ‘Environmental integrity of international carbon market mechanisms under the Paris Agreement’, (2019) Vol 19:3 386-400 Taylor & Francis Online <https://www.tandfonline.com/doi/full/10.1080/14693062.2018.1521332> accessed 19 November 2021. [18] 'Declaration of the United Nations Conference of the Human Environment' (Stockholm 5-16 June 1972) (6 June 1972) art 1.