A Fossil Fuel Ban Treaty: Corrective Treaty-Making Beyond Consensus

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As the COP28 drew to a close the day before yesterday, the final outcome left many disappointed. The first global stocktake, regarded as the central decision of the conference, was adopted after intense negotiations over the final text. COP 28 could neither agree on the overdue call on parties to phase-out current fossil fuel extractions nor to stop new fossil fuel explorations. Instead, a number of contrived compromises were reached, including a call to a rather unspecified “transition away” from fossil fuels in energy systems and a call to “accelerate efforts” towards a “phase down” of unabated coal power only.

The refusal of some states to recognize the need for a phase out of all fossil fuels in order to restrict global heating to 1.5°C is at odds with recent scientific reports clearly confirming that further expansion of oil, gas and coal extraction will make it impossible to keep global warming within the limits set by the Paris Agreement. Even so, governments of fossil fuel-rich countries are currently planning to produce more than double the fossil fuels by 2030 than the 1.5°C warming limit allows. Given that COP decisions require a consensus of all parties involved, it is highly unlikely that a ban on new exploration and a phase-out of extraction from existing fields and mines will ever be agreed at a COP. It comes as no surprise, then, that states are looking for an alternative course of action.

During the conference Palau, Colombia, Samoa and Nauru formally joined the call for a Fossil Fuel Non-Proliferation Treaty. The announcements were made in Dubai while many civil society organisations and governmental delegations struggled to push for a COP decision to phase out fossil fuel extraction. This treaty-initiative, which has the support of the European Parliament, the WHO, as well as numerous cities and scientific institutions, is spearheaded by 12 states – 11 of which are island nations most affected by the climate crisis. In this blog post I will provide a first assessment of this proposal in the context of other recent treaty initiatives that seek to reform international legal structures against the explicit will and active opposition of major powers. 

As I will argue in this blog post, it is indeed a good idea to negotiate a new treaty to ban fossil fuel extraction, even if some oil, gas and coal exporting countries refuse to participate. The treaty should not, however, be modelled on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which grants five nuclear weapons states the exclusive right to possess nuclear weapons. Instead, the fossil fuel treaty should be modelled on the more recent Treaty on the Prohibition of Nuclear Weapons (TPNW) prohibiting nuclear weapons for all states parties. The latter was adopted in 2017 by the nuclear-have-nots against the fierce opposition of the nuclear-weapon states in order to breathe new life into the moribund disarmament efforts under the old and still existing NPT.

A new fossil fuel treaty should ban all exploration and exploitation of new fossil fuel resources while including common but differentiated obligations regarding the phase out of current extraction. Member states would not only be obliged to ban further exploration, but also to ban the import of fossil fuels extracted from new fields and mines. Despite the expected non-participation of some fossil fuel exporting countries, this new instrument would put political pressure on all governments around the world to stop fossil fuel exploitation and redirect global financial investment from fossil fuels to renewable energy. Even if the new treaty lacked strong enforcement mechanisms and participation was not universal, it would arguably still have a much-needed normative and symbolic effect. Prohibiting the very source of the ensuing climate catastrophe would renounce and condemn a set of extractive practices which, until the 1970s, were seen as a productive and relatively cheap foundation for industrial growth, but which, as we now know, are destroying the very basis of human and non-human life on this planet.

Corrective Treaty-Making

This form of corrective treaty-making is also utilised in other areas of international law by broad coalitions of small and medium-sized states together with civil society organisations seeking to effect reforms in international treaty regimes. It is a rather creative response to a perceived institutional stalemate often caused by powerful states defending the legal and political status quo. In the field of disarmament, scholars have observed new coalitions of nuclear ‘have-nots’ that in many ways break with the old legal status quo of the Nuclear Non-Proliferation Treaty (NPT) and confront the nuclear-weapon states with a new complementary treaty regime (TPNW). The concept of such coalitions is by no means new. Bedjaoui’s notion of ‘solidarité de combat‘, used by scholars in the decolonisation era, has recently been revived by Arnulf Becker Lorca in his analysis of the joint responses and new treaty projects of countries and activists from the Global South after the Covid pandemic within the World Health Organization (WHO).

Similarly, with regard to the climate crisis, broad coalitions of smaller states, led by small island states, have already exerted considerable pressure on major powers in recent years to introduce institutional reforms, such as the attempt to explore new legal avenues for a right to compensation for climate-related damage for ‘particularly affected’ countries through a Vanuatu-led request to the UN General Assembly for an advisory opinion from the International Court of Justice. In contrast to the decolonisation era, these broad coalitions of small and medium-sized states are not necessarily composed only of states from the Global South. What binds these coalitions together is a common reaction against a perceived standstill or even regression in the realisation of the objectives of the respective international legal regimes. While the degree of coordination and conflict within these coalitions varies, they can arguably be seen as joint attempts by the less powerful to breathe life into regimes whose substantive goals are of existential importance not only to these states.

All this coincides with another recent trend in international institutions, namely the shift from classic NGO representation to privileged participation rights of ‘most affected organisations’. NGOs based in the North have been replaced over the past decade by grassroots organisations composed mainly of individuals personally affected by the decisions of a particular regime, such as smallholder farmers from the Global South in the Food and Agriculture Organization. Taken together, these trends arguably justify speaking of ‘coalitions of the most affected’, involving both public and private actors, who are currently resisting and transforming international norms and institutions in various ways.

The observed coalitions seek to correct perceived regime deficiencies through new binding law, whether from within, alongside or across existing legal regimes. Surabhi Ranganathan, in her groundbreaking work on ‘strategically created treaty conflicts’, has shown how hegemonic powers (especially the United States) have managed to exercise and even alter multilateral treaty regimes through a strategic move into bilateral treaty-making in order to counter the objectives of law-making conventions such as the United Nations Convention on the Law of the Sea or the Rome Statute. In a similar, though reversed, way, broad coalitions of the most affected are currently trying to create new multilateral treaty law in order to put pressure on a small number of hegemonic powers to reform international legal structures. One of the first examples of counter-hegemonic treaty-making by broad coalitions of the most affected was the International Treaty on Plant Genetic Resources for Food and Agriculture, known as the ‘seed treaty’, which at the beginning of the new millennium sought to correct a hegemonic Western-dominated intellectual property regime for agricultural seeds established in the 1990s by the Union for the Protection of New Varieties of Plants and the TRIPS regimes. 

These observed processes of corrective treaty-making usually aim at transforming vaguely formulated objectives of existing regimes into concrete, binding and therefore now effective obligations of states. They can amount to substantial reforms of a given legal regime through creating competing norms against the resistance of status-quo oriented governments and private actors. Of course, joint recourse to new formal treaty law by the weak cannot bind those states, which do not ratify, but it helps to create a new norm hereby putting political pressure on an increasingly isolated group of governments by condemning their harmful practices. Transforming entrenched economic and social practices requires a transformation of norms fostered through clear and concrete prohibitions.

Banning Fossil Fuels Through New Treaty Law

Modelled on these antecedents, and in particular the Treaty on the Prohibition of Nuclear Weapons (TPNW), the new treaty should prohibit fossil fuel exploration and set clear deadlines for the extraction from existing fields and mines. It should also include a provision to strengthen cooperation in the transformation of energy infrastructures from fossil fuels to renewable energies. In order to respect the principle of common but differentiated responsibilities, countries whose per capita emissions are below the threshold needed to meet the 1.5°C degree limit would have to phase out later than those that emit more per capita and per year than their remaining share of emissions would allow. The new treaty, initiated by those most affected and supported by a broad coalition of states, would stand alongside the Paris Agreement and refer to its binding targets. Apart from a monitoring mechanism, which could involve the International Panel on Climate Change, the treaty should not provide for the creation of new institutional structures or enforcement mechanisms. Its primary role would be one of (symbolic) norm-transformation, a role that international law has traditionally been able to play quite successfully, albeit at times also for less benign political projects.

If only because of time constraints, it seems clear that fossil fuel exploitation will not be averted by a powerful global institutional structure regulating the world’s economies. It will either be averted by local and domestic action resisting fossil fuel exploitation and pushing for a transition to renewable energy, or it will continue to wreak havoc on our planet. A legal condemnation in the form of new treaty law could help local and domestic actors in their acts of resistance, including strategic litigation, against an increasingly life-threatening status quo.

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