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Investment treaties must be aligned with climate goals

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In a speech at the OECD Investment Treaties Conference, Mary Robinson urged for a wide-reaching policy and legal rethink to stop fossil fuel companies profiting at the expense of climate action.


Read Mary Robinson's speech

Thank you DSG Takeuchi for those kind words. It is a pleasure to be back at the OECD and to join your work here today.

Our topic today, on aligning investment treaties with the Paris Agreement, could scarcely be more urgent given the existential nature of the climate and nature crisis confronting all of humanity.

Today I am here to speak to you not as a technical specialist on investment treaties. Rather, I am here as Chair of The Elders, the group of independent global leaders founded by Nelson Mandela who work for peace, justice, human rights and a sustainable planet.

The Elders have worked on the climate and nature crisis since we first came together in 2007, and it is a top priority for us, as part of a strategy focused on existential threats, and fostering leadership commensurate with the scale of the crises facing humanity.

And I am also speaking as a grandmother – an “angry granny” if I may say so, who is deeply concerned about the type of world my grandchildren and future generations will inherit if we do not step up and take the necessary, urgent action to tackle the climate and nature crisis.

Right now, we are failing to rise to the challenge. The science is clear, we can see all around us the increasingly dire climate impacts unfolding, and that it is the poorest and those least responsible people in the world who bear the brunt.

This is why we need what The Elders are calling “long-view leadership”, that moves beyond short-term business and electoral cycles to deliver truly sustainable policy solutions.

Looked at through this prism, investment treaties can seem frankly bizarre. How can it be possible in today’s political, economic and environmental climate that fossil fuel companies can make such exorbitant profits from delaying climate action?

Simply consider the growing number of Investor State Dispute Settlement (ISDS) claims brought by fossil fuel companies against governments wanting to take action to tackle the climate emergency.

I cannot overstate just how perverse this is. At COP28 in Dubai last December, for the first time ever, nations committed to transition away from fossil fuels. Yet here these fossil fuel companies are still seeking financial compensation from states for the action states themselves have decided is necessary to tackle the climate and nature crisis!   

I checked the statistics before I arrived here. There have been 349 fossil fuel ISDS claims – one-fifth of all known claims. As of today eight of the top-ten largest ISDS awards – each for over 1 billion US dollars -- have involved fossil fuel investors. Fossil fuel companies have historically secured at least 82.8 billion US dollars in damages – that’s billions of public money that could have gone into stopping and fixing the climate emergency. It’s over 6 times the available pledged funds of 12.8 billion dollars currently available under the Green Climate Fund.

Just imagine how much progress we could be making on tackling the climate crisis if that money was spent on building resilience and shifting to a clean, green energy revolution rather than paying fossil fuel companies!

Something clearly does not add up!

What, then, can states, institutions like the OECD and responsibly-minded businesses do to restore sanity and sustainability?

Firstly, any credible government climate policy must start with clear and consistent signals to financial markets and business.

Article 2.1(c), sometimes referred to as the Paris alignment of financial flows, is essentially about increasing sustainable expenditure and reducing harmful expenditure, in order to achieve mitigation and adaptation goals. Many policy measures can be put in place that support public and private actors to clean up financial flows, including:

  • Carbon pricing
  • Green budgeting
  • Transparent reporting and disclosures about climate risks, impacts and investments
  • Just transition policies and other measures to incentivise moving away from fossil fuels
  • Financial products such as green, blue and sustainability-linked bonds

But Governments cannot sign up to the Paris Agreement and other elements of the UNFCCC process and expect financial markets and business to align with climate objectives, if the same governments continue to provide benefits to fossil fuel investment through the backdoor.

We need to stop this cognitive policy dissonance!

So every government, and indeed every government department, has climate responsibilities. Especially those with a material impact on the energy transition.

And not least in developed countries – OECD members - who have committed themselves to lead the fight against climate change. They must move first, set an example and become the leaders of a just green energy transition that will benefit the whole world.

And this, ladies and gentlemen, is where we reach the heart of the matter for all of you gathered here today: because no-one must escape climate scrutiny when it comes to meeting their climate policy responsibilities.

We all have to be part of the solution – everyone – and at a minimum that requires ending or sharply reducing benefits for fossil fuels. This must include subsidies, tax breaks and other perverse incentives. I do not underestimate the complexity of the policy and legal challenges facing you in reforming investment treaties to remove these perverse incentives, while preserving the value that investment treaties bring to the global economy. But that is your job, at this conference and beyond, and I know you can do it.

I believe there are legal parameters and concepts that can take into account that fossil fuels were initially deemed a valuable asset and so compensation in the context of investment treaties was appropriate. But now that we know the harm caused by fossil fuels, particularly to the most vulnerable, there is no justification for compensation when governments are also taking the necessary measures to protect people from the climate and nature crisis. This is all the more true because fossil fuel companies have known for decades of their impact on global warming. 

Recently, I accepted an invitation to be a guardian of the planetary boundaries outlined by Johan Rockstrom and his colleagues at the Potsdam Institute.  I believe that judges and arbitrators, particularly those involved in cases on Investment Treaties, should be fully instructed on the science of climate and nature, so that the decisions handed down can be aligned with the Paris Climate Agreement.

And so in closing, allow me to offer three benchmarks for your work that colleagues in the climate community- but also your grandchildren - will judge you upon:

First, do not engage in greenwashing. It is increasingly illegal and bad for business to convey false impressions about climate benefits. Greenwashing a government by denying it has a fossil fuel problem or by selling solutions that are unlikely to do much will be called out; so don’t do it.

Second, be concrete. You have spent two long years discussing the climate challenge for the investment treaty regime. You have set the stage for action. That is good. You have put this on the global agenda, as DSG Takeuchi noted.

But now - you must use your technical and political skills – and personal commitment inside your governments - to push for and achieve concrete and transformative action.

Third; be faster, by shifting into a crisis mindset. I – and many other global leaders and citizens – simply do not buy the argument that you cannot achieve lasting reform quickly. 

The task ahead may seem daunting. But the imperative for action is inescapable, and I encourage you to take inspiration from the words of Nelson Mandela:

“It always seems impossible, until it is done.”

Thank you.

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