Are the annual climate summits falling short? These nations are turning to litigation instead

Very few leaders portray the urgency of the climate crisis as effectively as United Nations chief António Guterres. He has criticized world leaders for unleashing "the gates of hell" and warned that the planet is "entering uncharted territory of devastation" following deadly heat waves and floods.

The UN climate summit, also known as COP, is often described as tedious due to its abundance of technical language, slow progress, and the challenge of reaching consensus among participating countries. The question now being raised is whether the process is effective at all. Some small island nations that are threatened by the irreversible impacts of sea level rise are saying no.

For decades, these arduous negotiations have successfully averted several potentially catastrophic levels of global warming. The crowning achievement of COPs was the Paris Agreement, widely regarded as one of the most impactful environmental treaties. This landmark agreement aimed to cap global warming at less than 2 degrees Celsius, with a preference for a 1.5-degree target, a goal that has garnered widespread support from climate scientists, advocates, and the majority of countries.

Prior to these negotiations, the world was on course for an estimated 4 degrees of warming. However, the pledges made by countries following the Paris Agreement have reduced this projection to 2.5 to 2.9 degrees, as indicated by recent UN data.

But the Paris Agreement was intentionally voluntary, largely influenced by the US, and it depends on a mechanism of collective shaming and competitive ambition instead of legal repercussions. According to Payam Akhavan, an attorney for the Commission of Small Island States on Climate Change and International Law, it imposed "very few obligations" on major polluters.

For Pacific Island nations that continue to be victims of the climate crisis, activists say a UN consensus is needed to protect future generations.

Bill Weir/CNN

Historic UN vote secures Vanuatu's request for highest court to determine climate obligations for countries, potentially changing future COPs to require legally binding targets to cut climate pollution. Vanuatu, Tuvalu, and Antigua and Barbuda seek international courts' "advisory opinions" on the matter.

Akhavan told CNN that the shift toward international litigation aims to give more power to the Paris regime by making the 1.5-degree target binding, not discretionary. As world leaders gather in Dubai for COP28, this legal tactic is drawing concern from current and former US climate negotiators, who believe that while diplomacy may be slow, it is effective in making progress.

Countries move farther when they move together

The COPs, both detractors and advocates unanimously concur, are an essential annual gathering, yet one that is laborious and technical. A single misplaced word or punctuation mark can disrupt negotiations, and it frequently takes years for incremental progress to materialize.

"I would say its necessary, but maybe not sufficient," said Sue Biniaz, the deputy for US climate envoy and former Secretary of State John Kerry.

Sue Biniaz, the US deputy climate envoy, at Yale University in New Haven, Connecticut, on October 31, 2022.

Frances F. Denny/The New York Times/Redux

Biniaz is highly experienced in COPs, having served as the lead climate lawyer for the United States for over twenty years and contributed significantly to the drafting of the Paris Agreement.

According to Biniaz and other former leading US climate negotiators interviewed by CNN, it is crucial to consider the entire year leading up to each climate summit, rather than assessing it as a standalone event.

Biniaz told CNN that the annual COPs and the Paris Agreement are necessary and exert pressure on countries, putting us in a much better position than we would be without them. However, reaching agreement among all countries is challenging, especially with geopolitical issues and varying levels of motivation to reach an agreement. The success or failure of COP is influenced by international politics and the dynamics within countries, as seen with the impact of former President Donald Trump's decision to pull the US out of the Paris agreement in 2017, a move that President Joe Biden later reversed upon taking office.

In this June 2017 photo, President Donald Trump after announcing his intention to abandon the Paris Agreement in the Rose Garden of the White House in Washington, DC.

Doug Mills/The New York Times/Redux

Still, former and current US negotiators say climate diplomacy has helped keep the worlds temperature from reaching truly alarming highs.

Jonathan Pershing, former deputy to Kerry and current director of the William and Flora Hewlett Foundation's environment program, commented on the initial scientific assessments, stating that there was a projected incremental temperature gain of about 7 degrees. He emphasized that today, a 7-degree temperature increase is unimaginable. He also noted the remarkable shift in efforts by governments worldwide to limit warming to below 2 degrees, describing it as an "extraordinary transition."

Former US climate envoy Todd Stern told CNN that the yearly summit has also become the primary gathering for global climate action. While the summits were previously attended mainly by government climate negotiators, COP now attracts a much larger audience, including advocates, businesses (including fossil fuel companies), and think tanks from around the world.

In this 2009 photo, Todd Stern, US special envoy for climate change, listens to questions during a press conference in the Bella Center in Copenhagen.

Jens Astrup/AFP/Getty Images

Stern believes that the increasing prominence of COP is a powerful influence, which even groups that previously rejected the existence of climate change can no longer ignore. A delegation from the US House Republicans has attended for the past two years, further indicating the significance of this global event.

Too little, too slow

Lawyers representing small island nations disrupting the status quo at COP argue that the evidence of its failure is evident in the unprecedented heat experienced worldwide this year and the breaking of global temperature records. The governments of the world are striving to limit the rise in global temperatures to 1.5 degrees Celsius, beyond which scientists warn that a warmer world with more frequent severe droughts and intense storms will pose significant challenges.

The concept of 1.5 degrees is no longer just an idea; this summer, the world briefly crossed that temperature threshold. However, scientists caution that it will take several years above that limit to confidently say it has been officially exceeded. The summer gave a glimpse of life at this threshold: Wildfires spread across Europe, major rivers like the Mississippi and the Amazon reached new lows, and hot-tub-like ocean waters killed coral reefs and intensified hurricanes and cyclones.

The potential for an unlivable world weighs heavily on young COP negotiators, who are urging swift action to cut climate pollution.

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Mitzi Jonelle Tan, of the Philippines, center, participates in a Fridays for Future protest calling for money for climate action at the COP27 in Sharm el-Sheikh, Egypt, in 2022.

Peter Dejong/AP/File

Hailey Campbell, a 25-year-old climate adaptation specialist based in Hawaii, successfully advocated for increased official youth representation at COP. She expressed to CNN that it can be disheartening to spend long hours and days at international summits debating the precise wording on climate finance and reducing fossil fuel use, only to return to her home in Honolulu and witness the direct impacts of climate change.

Campbell, who serves as the co-executive director of the advocacy group Care About Climate, stated, "You go back home and you're like, sea level rise is still here, [we] still need to do something about it." She emphasized that the one key outcome she would hope for from this year's COP is a commitment to an equitable phase-out of all fossil fuels.

The small island nations' cases are anticipated to be reviewed by two of the world's highest courts next year. Although the advisory opinions themselves cannot compel countries to take faster action, they are able to "infuse some urgency, some political will, some vision" into the yearly climate discussions and safeguard the "inalienable rights" - the very survival - of these vanishing nations, according to Wewerinke-Singh.