COP26 has all the hallmarks of a Greek tragedy

Unfulfilled promises and sound science tell us that the Paris targets will not be met. And deep down we know that 30 years of climate negotiations have failed because, ultimately, there’s nothing to be negotiated. The climate system is becoming unstable. It is us humans who need to change the way we live and how we govern ourselves.

Our tragedy is that the system of international law has been created for maintaining peaceful relations between states, but it fails in relation to the global environment. The atmosphere, the oceans and the biosphere are outside national jurisdictions and hence less important than what is going on within national boundaries. States do not have jurisdiction over the global commons, yet they are free to use them as they wish. The global commons are vital for us all, yet appear as “the other”, removed from daily politics and hardly feature in decision-making about health, housing, transport, education or the economy.

Not by chance, UN Secretary General Antonio Guterres opened COP 26 by saying that “the world treats nature like a toilet” and that “we’re digging our own graves”. His graphic images reflect what is known among international lawyers as the tragedy of the global commons: all people need them, but only a few really protect them and Governments are preoccupied with meeting domestic demands.

There is no easy solution to overcoming this tragedy, but better design of our current system of law and governance seems inevitable. One key design flaw of the current system is its continued assumption that humans are somehow separate from nature. We are not. Nature is not an assembly of natural resources made for human consumption, but a complex interconnected ecological system, called Earth, that humans are part of and need to respect.

The Covid pandemic is a poignant reminder of this and so is climate change in its interconnections with the oceans and biological diversity. We will not be able to tackle climate change without simultaneously addressing the alarming acidification of oceans and the dramatic loss of biodiversity, both losing their functions as carbon sinks and climate stabilisers. Reversing biodiversity loss and halting acidification are illusionary underthe conditions of runaway global warming. In short, an Earth system approach is required for better design of law and governance.

In its Preamble, the 2015 Paris Agreement notes “the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth”. But this has, so far, remained a mere sentiment without tangible action.  

The Earth system needs to be a subject of international law as, for example, the Earth Charter has stipulated. The United Nations and most states, including New Zealand, have yet to adopt the Earth Charter which was drafted by civil society groups, across all nations, cultures and religions, as an ethical framework to guide international law and governance.

In his press conference preceding COP26 Antonio Guterres called for an “emergency platform” that brings together Governments, the United Nations and civil society with the objective of “repurposing the UN Trusteeship Council”. The Trusteeship Council was one of the main organs of the UN to assist territories in Africa, Asia and South America in their transition from colonies to independent states.

When it suspended its operations in 1994, environmental activists, former UN Secretary General Kofi Annan and several states promoted its continuation as an Environmental Trusteeship Council.

This was taken further by the “Earth Trusteeship Initiative” to establish a UN Earth Trusteeship Council that gives voice and weight to future generations and the Earth system. The current Secretary General of the United Nations is supportive of this idea as he has outlined in his most recent Report “Our Common Agenda”. A related proposal is to conceive the Earth’s atmosphere as a global trust with associated state responsibilities to restore and sustain climate stability.

The ball is now in the court of states. New Zealand is in an excellent position to take some leadership here. Prime Minister Jacinda Ardern has at various international fora spoken about the importance of kaitiakitanga meaning guardianship and obligations of responsibility.

With recent legislation granting legal personhood to Te Urewera and Te Awa Tupua (Whanganui River), New Zealand became the first Western country to recognize rights of nature. If our government is serious about giving nature a voice and legal representation, then it should accept Earth trusteeship responsibilities here and promote them internationally. The law is not the problem, just the political will to design it properly.

Some Greek tragedies have had a happy ending. COP26 doesn’t bode too well in this regard, but world leaders, if they have learned anything in recent years, should commit to an “emergency platform” and think about sovereign states as trustees of humanity and Earth, our common home.