The Paris Agreement of 2015 calls for capacity building for developing states as an important step in combatting climate change; a critical component of such capacity building must be creating and enhancing the global legal framework required to insure sustainable development by progressively reducing the danger and risks of climate change for developing countries.
Such a global legal framework can be initiated by the United Nations General Assembly (UNGA) in support of the capacity building goals of the Paris Agreement (2015). Specifically, the UNGA has the legal authority, based on Articles 13, 16 and 85 of the UN Charter, to pass a nonbinding resolution explicitly recognizing the Earth’s atmosphere as a global trust (see “areas,” Art. 85). Or, the UNGA can simply recognize in a nonbinding resolution what is already implicate in the international legal order—namely that the Earth Atmosphere is a global commons that belongs to all as a trust. This resolution can then become the basis for a treaty—initiated by the developing states — that recognizes the Earth’s atmosphere as a global trust as an critical component of the Common Heritage of Humanity.
To do so, such a resolution should contain the following three basic legal principles of fiduciary law to guide subsequent UNGA deliberations and treaty negotiations on climate change. The first principle represents what already exists, though in an implicate form, namely:
RECOGNIZE THE EARTH’S ATMOSPHERE AS A GLOBAL TRUST.
Such a nonbinding resolution can be the first step towards an explicit global legal framework which is needed to establish the subsequent and primary fiduciary responsibilities for the preservation, restoration or restitution of the global atmosphere among states. Such a resolution can build upon and strengthen the principle of “common yet differentiated responsibilities,” as well as already existing legal principles concerning fiduciary duties that are recognized in many members’ domestic jurisdictions. This is the first critical step in the eventual RESTORATION of the Earth Atmosphere to sustainable levels that will secure life and development for future generations.
Such a resolution can also build upon and strengthen the principle of the “Common Heritage of Humanity (mankind).” The Earth’s atmosphere as a global commons is essential to all life on the planet; yet, its legal status as a global trust still needs to be explicitly recognized and reaffirmed in order to allocate proportionate responsibility among all states concerning its preservation and restoration for present as well as future generations. In this way, the current implicate legal order for this global commons becomes fully operative within the Law of Nations and, ultimately, should be embodied in a binding treaty. Initiated by the developing countries, this process can begin with a nonbinding UNGA resolution and then a treaty that recognizes the Earth Atmosphere as a Global Trust. This first principle can stand on its own or as a basis for further action; each one of the legal principles (listed here) are an independent yet interrelated element of a global legal framework to confront and overcome climate change. The next step is thus:
2)CONSISTENT WTH LEGAL CAPACITY BUILDING FOR DEVELOPING COUNTRIES, THE UNGA RESOLUTIONCANRECOGNIZE A STATE’S PROPORTIONATE RESPONSIBILITY.
TO MONITOR, MAINTAIN AND RESTORE EARTH’S ATMOSPHERE AS A GLOBAL TRUST.
So, the UNGA nonbinding resolution, as the first step to a binding treaty, should also recognize that all member-states have a proportionate responsibility to monitor, maintain and restore the atmosphere as a global trust for present and future generations. In this sense, governments are trustees, while the peoples of the world are both trustors and beneficiaries of the Earth’s atmosphere as a global trust.
Simply stated, there will be no further sustainable development without a sustainable global atmosphere that makes continuing progress in achievement critical development goals possible. Reversing climate change, collectively as well individually, to insure sustainable development for all is the greatest and most urgent challenge of our time. In short, we have to insure a sustainable global atmosphere first in order to achieve sustainable development for all present and future peoples. Time is rapidly running out so we have to take decisive and effective action NOW, building on the Paris Agreement’s call for capacity building, beginning with the developing states who, frankly, have the most to lose.
As the Paris Agreement (2015) clearly states, there is a “significant gap” between what was promised and what is needed, so that the current commitments made during COP 21 to cut carbon emissions are simply not enough to prevent increasing global temperatures and thus catastrophic climate change. Extreme weather events, increasing global temperatures and eroding shorelines indicate the effects of climate change are already occurring. In view of this, there is an urgent need to accelerate efforts in every forum available that can contribute to concreteand effective action that reverses the heating up of the Earth’s atmosphere as well as restores it to a sustainable level for life and development.
So the Paris Agreement, while absolutely necessary, must not be the end but the beginning of enhanced and accelerated collective efforts to cut emissions, restore the atmosphere and insure a viable global environment for future generations. In short, building on the work embodied in the Paris Agreement (2015), much more still needs be done, beginning with the legal international recognition of the Earth Atmosphere as a global trust.
A global commons belongs to all, and no one state has the right to abuse it for its own purpose or profit. In particular, proportionate responsibility requires that the “Most Industrialized or Polluting States” (the MIOPS) that have historically placed the majority of greenhouse gases (GHGs) in the Global Atmosphere must be the first to take steps and act collectively to restore the Earth’s atmosphere firstly, as the immediate task, to levels below 400 PMM of CO2. Each MIOP state’s proportionately responsibility can be roughly calculated and then can use its own uniquely tailored portfolio of mitigation methods to restore the atmosphere to accomplish this urgent and historic priority of humanity as a whole. At the same time, ALL states have a responsibility to lower carbon emissions emanating from their soil.
To achieve the goals of this Global Trust resolution, the UNGA could, based upon Articles 16 and 85 of the UN Charter, also approve a single trusteeship agreement that recognizes the “area” (Article 85) of the Earth’s atmosphere as a global trust. This would be the beginning of the “United Nations Ecological Trusts” or UNETs. In this way, all states of the United Nations become trustees of the Earth’s atmosphere and their proportionate responsible for its restoration.
3)THE UNGA RESOLUTION SHOULD CALL FOR THE RESTORATION OF THE EARTH’S ATMOSPHERE AS THE MOST IMMEDIATE AND URGENT CHALLENGE FACING HUMANITY.
The ultimate task by all states must be collective efforts to restore the global atmosphere to 350 PPM (See main report below) Thus, the UNGA resolution should call for the RESTORATION of the Earth Atmosphere as a global trust for present and pending generations, thus accepting a historic responsibility of humanity.
The most promising approaches to the restoration of the global atmosphere will involve carbon sequestration or “geoengineering” on a potentially massive scale; in particular, the “Iron Hypothesis” –the placing of Iron particles in the oceans to grow massive plankton blooms has not been empirically tested to the necessary degree or scale of potential oceanic application—beyond feeble “one (or two) shot” attempts and then subsequent very tentative studies. So, the critical restoration of the global atmosphere can be enhanced by developing, a portfolio of mitigation methods; such a portfolio must specifically include concerted efforts to develop an experimental and then ideally, if proven effective, the operational capability to deploy iron filings from ships — the so-called “Iron Hypothesis,” — on a massive scale in the Southern Oceans (NASA, 2015; George, 2007). In particular, the iron ore mines of Argentina are near rail-road lines that lead directly to its southern coast (Puerto Deseado), where the great Antarctica plankton blooms seem to begin. (See Satellite Imagery—Appendix of Report).
It should be pointed out that restoration efforts, broadly defined to include the needed research and development of Green Technologies, as well as subsequent implementation, can also create thousands of jobs throughout the world. China and Germany are already well advanced in developing appropriate green technologies but much more needs to be done. Specifically, we must begin to seriously experiment with, and deploy carbon sequestration methods and technologies to lower the Greenhouse Gases (GHGs) in the atmosphere.
Other potentially large scale carbon sequestration methods must be implemented as well. Untried ways to achieve the massive carbon of carbon should be as varied and innovative as the human imagination and following policy initiatives allow. For instance, vastly expanded and added efforts must include, in memory and honor of Wangari Maathai, the continuous planting a billion trees per year on each of the inhabited mainland continents; there should also be massive and accelerated conservation efforts with energy or electricity as well as recycling, especially throughout the developed world where the waste is greatest.
Time is now not on our side as the danger of irreversible climate change is rapidly growing; so we need to accelerate global climate consultations, continuous negotiations and lasting action. As a global organization, the UNGA can help mobilize the necessary research and development of policies, programs and technologies especially during these special sessions (Discussed Below) to accomplish greater efficiencies in all possible mitigation methods, including healthy carbon sequestration as well more remote techniques as “in stratosphere” and space-based solar screening. In short, every possible mitigation method or every “experiment with Truth” must be tried until one or more mitigation method proves effective.
In doing so, the rather obvious ethical rule of application is that such mitigation or sequestration technologies should not be deployed if the actual damage that they cause is greater than the growing danger and increasing devastating consequences of continuing, unabated global climate change. In short, there is now a cruel yet unavoidable calculus of cost-benefits calculations concerning the benefits and inevitable consequences of simply doing nothing, such as droughts, migrations and increasing extinction events. For instance, critics of carbon sequestration in the oceans often cite the unintended potential consequences of large scale deployment of technologies based on the Iron Hypothesis; yet, there is a massive and growing toxic orange algae bloom growing off the coast of California RIGHT NOW (2016) caused by increased temperatures and unabated climate change. This toxic bloom is causing a massive and growing kill-off of fish, the seabirds or mammals that rely upon them So, not doing anything—and thus allowing such unintended consequences to GROW, has to be calculated against the possible and still hypothetical unintended consequences of carbon sequestration methods. In short, the deadly costs of doing nothing more are very steeply increasing…….
So, “Policy Purists” who advocate “carbon cuts or nothing!”– which was perhaps an appropriate attitude and approach twenty years ago — are now possibly the greatest hindrance to climate progress and even human survival. There are now rapidly increasing costs of doing nothing can to be measured, calculated and compared, even roughly, against the inevitable cost/benefits of carbon sequestration methods, geo-engineering and the R/D of new technologies; the time has now simply passed when ethically “ideal” or “pure” cost free measures were perhaps feasible. The Earth is rapidly heating up to uninhabitable levels, or will in the next years and decades, the polar ice caps and glaciers are melting at unprecedented levels, sea levels are rising and extreme weather events are spreading as well as intensifying; in view of deeply troubling developments, we need to intensify our efforts through a collective commitment to climate policy pluralism and have a variety of strategies, methods and approaches to stabilizing the Earth’s climate; so far, it becoming increasingly obvious—except to rabid climate deniers and ironically environmental purists– that carbon cuts alone simply aren’t working. The Paris Agreement even states that, even if fully implemented, the agreement will leave significant gaps in the action that is needed. Furthermore, what if “Plan A”—the Paris Agreement and the promised carbon cuts—simply doesn’t work in time, or are too little too late? The specter of the similar yet largely unsuccessfully Kyoto Protocol based largely on the same process of voluntary carbon cuts by states, should caution us not to place all our hopes again in only one approach or plan. In view of this, we need, first and foremost, a truly experimental approach to try simultaneously other diplomatic approaches and collective methods to prevent further catastrophic climate change. Back in 2010, the Chilean government and people employed exactly such an experimental approach to a pressing danger to human life, and the dramatic results continue to inspire the world
EXPERIMENTS WITH TRUTH: THE TIME TO ACT IS NOW.
When thirty three Chilean miners were trapped over 2,000 feet below the surface in 2010, the Chilean government wisely initiated rescue operations by using three different drill operations, actually called “Plan A,” “Plan B,” and “Plan C.” In doing so, the Chilean government and people displayed an extraordinarily experimental and manifold policy response to rescuing the trapped men. Specifically, in sharp contrast to current international climate negotiations or efforts— focused mainly on the COP diplomatic process and Paris Agreement– the Chileans very wisely decided very early to fund as well as employ a variety of operational policy options and thus deploy several alternative ways to rescue the miners. In fact, two drills failed to reach the miners—Plans A and C. Fortunately, the Chilean government had the foresight not to place all its hope in simply one drill or plan, and so the second drill, Plan B, finally broke through and created the escape shaft that rescued the trapped miners. The key lesson from this dramatic rescue seem to be: Any wise policy that wants actual results has to employ backup and alternative policy options in case “Plan A” falters or fails.The Chileans’ very astute decision was to deploy several “live” options simultaneously and make each fully operational was critical to the rescue of the miners; this example of powerful policy pluralism that used several options is a powerful and inspiring illustration of what the great Mahatma Gandhi would describe as enduring “Experiments with Truth.”
Gandhi’s critical insight and idea was that, when facing a crisis, a person must be willing to experiment with a variety of ways to seek the truth in action, and not simply be fixed on one way forward. In fact, his method included learning even from his opponents, knowing that they contained part of the truth as well. He was never willing to throw away any possible avenue to greater insight, understanding and thus effectiveness. This extraordinarily experimental and innovative mindset embodied by Gandhi’s life is exactly what is needed among the globe scientific community, policymakers and citizens as we confront the unparalleled crisis of climate change.Specifically, at this late date, we simply cannot rely upon one method alone, such as carbon cuts—as important as these are—to roll back climate change. In the spirit of Gandhi, we need to develop a portfolio of mitigation methods that includes carbon cuts, carbon sequestration, and conservation, as well as intense Research and Design (R&D) efforts to develop new green technologies. The Earth scientists and policymakers need to begin to “experiment” with a whole host of mitigation methods on a potentially vast scale if we are going to succeed in reversing climate change, and thus survive.
After over twenty years of negotiations, (since Rio in 1992), the Paris Climate Agreement (2015) is Plan “A.” It’s the only Plan that is “alive.” It’s a good start, but –by its own admission- even if all carbon cuts are achieved, more will need to be done to save us and the planet from the ravages on oncoming climate change. In view of this, the crucial question must be raised: What if the Paris Agreement doesn’t work, or–more likely—proves absolutely necessary but not still not sufficient? Most alarming, what options will we have in five or ten years, despite all the promises and meetings dedicated to cutting carbon, if Plan “A”—the Paris Agreement–simply isn’t enough to prevent irreversible climate change? This is not an academic question; if the Chileans had relied on only “Plan A”—the first drill—the miners would have perished.
In contrast, we now need the highly innovative and experimental mindset that Gandhi brought to the problems he faced, which he described as “Experiments with Truth” to the global effort to restore the Earth Atmosphere and thus survive. Specifically, the current UNFCCC plans and post Paris Agreement (2015) to cut carbon emissions are important and must continue. At the same time, different issues require different forums to be addressed successfully – lest complex issues become hopelessly intertwined. At the very least, we need multitrack efforts—consisting of diplomatic, policy and ultimately technical steps to develop and deploy carbon sequestration methods around the globe. In particular, we need to mobilize much more human energy, commitments, more ideas and resources to insure our own survival; the urgency of the issue is growing by the hour.
So, leaders, diplomats and citizens need to commit themselves to a vast mobilization to overcome climate change; as such, there should be a variety of forums or (as Gandhi states) “Experiments with Truth,” that provide a variety of possible ways forward. In short, the UNFCCC must continue to focus on carbon cuts, UNETs could focus on carbon sequestration and other mitigation methods designed and developed to remove CO2 from the global atmosphere, while restitution efforts could be pursued through the ICJ. Simply stated, we need to Experiment with the Truth, and not risk all on the possibly erroneous idea that we have, at least discovered the one true way to address climate change.
Like the Chileans in 2010, we must now develop a portfolio of operational policies and methods — Plans A, B, C, etc.—until one or more are proven to work successfully. This pluralistic approach to remedial plans and policies must include, as a priority–prolonged and experimental deployment of iron in the Southern or even other oceans, as well as other methods, to insure the long-term effectiveness of the “Iron Hypothesis” to lower C02 levels, (even partially or marginally) in the Earth Atmosphere…..(See Appendix III). In the spirit of Gandhi, the scientific “best practice” must involve constant “experimentation” in all aspect of possible applications, study of the inevitable though often unseen consequences and then subsequent technical corrections rather simply giving up on the idea due to one shot ”scientific” studies, which has been the pattern in the past.
Once successful methods are carefully tested and applied, then all member-states must then become fully engaged in ongoing efforts to restore the Earth’s atmosphere to, at the very least, the immediate goal of stable Greenhouse Gases (GHGs) below the level of 400 PPM of CO2 and the ultimate goal being restoration of the atmosphere to 350 PPM of CO2 (Hansen et al, 2008). The collective or regional ability to do this via a portfolio of mitigation methods currently exists, or can be ideally developed in vastly accelerated Research and Design (R&D) programs; yet, if we wait any longer, our collective or regional ability to do so will undoubtedly degrade due to environmental changes or destruction –not to mention the possibilities of economic decline or even wars occur. In short, we must be inspired and infused with the Gandhian idea of “Experiments with Truth” until the grave danger of global climate change is successfully addressed and overcome, and intensify our collective efforts immediately. In this regard, global political, religious and local leaders must call forth their peoples a vast mobilization to overcome climate change, to a whole variety of “Experiments with Truth” to combat climate change until the grave and growing threat facing humanity is past.
So, much more can and must be done…..For instance, besides planting trees on a global scale, other promising methods of carbon sequestration include: a) the Carbon Capture and Storage (CCS) Project, which is showing increasing promise and use in capturing the carbon generated by power plants; b) the use of the common mineral Olivine to capture carbon from the atmosphere; c) Carbon Farming, as illustrated in the Marin Carbon Project (Cited in Main Report). For instance, carbon farming could become a global method of sustainable development; d) Vast Conservation Efforts, including massive efforts to reduce electrical usage (like many institutions in the United States, my own university keeps lights on in hallways night and day, and I go around turning as many of them off as I can—the waste is prodigious, and typical of many institutions and buildings in entire cities at night in the US), as well as much greater mandated fuel efficiencies for cars. The key is that, consistent with Gandhi’s idea of “Experiments with Truth,” all methods of carbon cuts, carbon sequestration, conservation as well as research and development must be utilized and accelerated until the Earth climate is stabilized, and climate change is reversed. Why this is not occurring now on a massive scale mobilized by state governments is simply baffling; it is also dangerously delusional of the very real global threat of irreversible climate change that is rapidly overtaking us.
This is still within reach; if there are enough or even the same number of entrepreneurial scientists and engineers that, say, work in defense industries or space agencies, this goal should be within human possibility to obtain. But time is rapidly running out. So, the Paris Agreement (2015) was the beginning; the Paris negotiations finally resulted in the entire world recognizing the grave threat of climate change; now, states and peoples must undertake massive “Experiments with the Truth” and take the next critical steps to cut back carbon emissions as well as publically or politically hold those states accountable that continue to be most wasteful of the global commons. The first step in allocating such proportionate responsibility is by declaring the Earth’s atmosphere as a global trust that belongs to all, including future generations.
NO SECOND CHANCES: TIME IS RUNNING OUT…..
-THE NEED FOR ANNUAL UNGA MEETINGS ON CLIMATE CHANGE
In short, this report recommends that every possible global forum be pressed into service to address and overcome climate change; in particular, the United Nations General Assembly (UNGA)—the largest permanent diplomatic community in the world; the UNGA should meet in Emergency Sessions yearly to enhance and insure “the progressive development of international law and its codification” (Articles 16 and 20 of the UN Charter) by initiating treaties and diplomatic initiatives specifically devoted to RESTORING THE EARTH ATMOSPHERE (See Appendix I and II after Main Report).
Furthermore, with the UNGA in New York, as well as the internet, cyber-conferences or skype available worldwide, there is simply no need any longer for any policymaker, diplomat, NGO representative, press person or academic to board a jet and fly vast distances to yet another conference on the environment and adding millions of metric tons of CO2 to the atmosphere in the process. It is cruelly ironic that self-appointed environmental elites travel from conference to conference, year after year, continent to continent to verbally decry climate change while physically contributing very significantly to the problem that they conceptually deplore…In doing so, they are becoming a poisonous part of the problem—in fact, they are making it much worse– and are not contributing to any enduring solution. So, the jet setting of diplomats and environmental activists should end, unless absolutely necessary. As an alternative, the UNGA and its permanent diplomatic community, as well as the surrounding NGO and media communities as a whole can be pressed into service and meets in Emergency Sessions yearly to promote and mobilize the massive mitigation methods necessary, including other conservation or reforestation efforts intended to restore the global atmosphere (by lowering the levels of CO2 via carbon sequestration and other mitigation methods) while restitution efforts could be pursued through the International Court of Justice (ICJ) as well as COP. The ultimate goal of such simultaneous efforts to save, restore, preserve and perpetuate the Earth Atmosphere as a Global Trust for all of life on the planet Earth. Such Emergency Meetings by the UNGA should continue until the Earth’s atmosphere is reduced to a sustainable level of 350 PPM of CO2.
So, there are a variety of Gandhian “Experiments with Truth” that the UNGA could attempt to overcome the growing threat of climate change. Another possibility, perhaps latent in the UN Charter, is to reconstitute the Trusteeship Council consisting of all member-states of the UNGA (Art. 86) to administer UNETs during such special sessions. If this occurred, the reconstituted Trusteeship Council would presumably have legal powers determined by a specific trusteeship agreement (Article 87, Para. D) to help enforce its policies and decisions. (See below in full proposal on the drafting history concerning the deliberate legal vagueness and permissiveness of trusteeship agreements.)
In short, humanity as a whole, as represented by the UNGA, can meet this historic challenge of reversing global climate change by acting now to mobilize fully the global resources necessary to reverse climate change and RESTORE the Earth’s atmosphere as a global trust belonging to all. If we fail to act now, human life and time on Earth could rapidly become past tense. So, if we don’t act NOW, we will not get a second chance.