RETHINKING CLIMATE FINANCE EFFECTIVENESS

 

O.L

 

A thesis proposal

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

1. ABSTRACT 3
2. BACKGROUND TO THE STUDY/STATEMENT OF THE PROBLEM 5
3. ENGAGING EXISTING KNOWLEDGE 8
4. ANALYTICAL / THEORETICAL FRAMEWORK 13
5. RESEARCH METHODOLOGY 20
6. METHODOLOGICAL CHALLENGES ENVISAGED 22
7. SIGNIFICANCE OF STUDY/ ORRIGINAL CONTRIBUTION 23
8. CHAPTERIZATION 25
9. PROPOSED TIMETABLE 27

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABSTRACT

I set out to answer the narrow but extremely significant question: what is the appropriate institutional design to ensure climate finance efficiency in developing countries? This question and its underlying problems are influenced by the Third World Approaches to International Law (TWAIL).

The total cost of mitigation and adaptation in developing countries has been estimated to be between $170-275 billion per year by 2030.[1] Climate finance is expected to come from a variety of sources, including public, private sources, multilateral, bilateral and alternative sources.[2] Under the Copenhagen Accord,[3] developed countries committed to devote USD100 billion per year by 2020. There is a direct connection between climate finance and the agreed global temperature limits. Hence, the consequence of not paying attention to climate finance effectiveness is grave for the global climate. This commitment has been reaffirmed under the Paris Decision.[4]  It is therefore imperative that efficient institutional structures are put in place to ensure climate finance effectiveness.

But the parameters of climate finance effectiveness do not lend themselves to much clarity. Since climate finance is a newly evolving genre of international jurisprudence,[5] existing frameworks and proposals on climate finance effectiveness have been greatly influenced by analogous principles, such as the principles of development aid effectiveness.[6] I ask why previous attempts to ensure development aid effectiveness have failed to yield the expected results despite the robust framework on aid effectiveness.[7] It is my working hypothesis that these failures are due to the fact that the institutions responsible for development aid effectiveness are designed in the image and after the likeness of those in donor countries.[8] In most cases, the parameters of institutional design are imposed from foreign capitals and the command centers of multilateral institutions without paying careful attention to the problems and needs of recipient countries.[9] Curiously, these challenges are beginning to manifest in the climate finance regime and in the operations of international climate finance institutions.[10]

I will contend that the principles of aid effectiveness provide great insight on climate finance effectiveness; yet, it is a flawed foundation for climate finance effectiveness. In part, it is due to the fundamental differences between the institutional mechanisms of climate finance and development aid.[11] Furthermore, I argue that the institutional design for climate finance effectiveness in developing countries must embrace the diverse sources and multifaceted patterns of authority for climate finance, including private sources which provide the largest chunk of global climate finance.[12]

My approach to institutional design will focus on Nigeria, which presents a lot interesting problems as a leading emitter of GHG on the African continent and a country reputed weak institutional models. I will use doctrinal and qualitative research methods to design an institutional framework for climate finance effectiveness in Nigeria. The proposed thesis will benefit from TWAIL, a critical legal theory that challenges transformational and institutional reform objectives determined outside national processes and imposed on States.[13] It critiques attempts at institutional design, which are capable of reproducing a form of neo-colonialism to the detriment of recipient countries. I seek to use TWAIL’s reformatory agenda to balance the power asymmetries by designing national institutions for climate finance effectiveness that meet local needs and challenges, without compromising accountability, transparency and confidence.

BACKGROUND TO THE STUDY & STATEMENT OF THE PROBLEM

From Rio to Paris, the Common but differentiated Responsibilities (CBDR) principle was the golden thread that ran through negotiations on the governance framework for climate change. A well-affirmed notion in climate change discourse is that the majority of the cumulative carbon emissions come from high income developed countries,[14] while developing low income countries are on the receiving end of the climate change burden.[15] The CBDR principle has legitimized this reality by calling for climate action that reflects the disparate levels of historical responsibility and economic capabilities of States in responding to climate change.[16] Hence, the United Nations Framework Convention for Climate Change (UNFCCC) provides that developed countries should take the lead in combating climate change.”[17] By Article 4.3 of the UNFCCC, taking the lead demands developed countries to provide their developing counterparts with “new and additional financial resources”[18] to enable them “implement their commitments under the Convention”.[19] The adoption of the Kyoto Protocol[20] was a watershed moment in the evolution of the concept of differentiation as it wholly concentrated on emission reduction commitments by Annex I parties.[21] Notwithstanding, the Protocol’s approach to differentiation did not sprout the desired fruits because, according to Rajamani, its variant of differentiation was a “source of irritation to some” developed countries.[22] Hence, they argued that since some developing countries had joined the club of leading emitters, a “nuanced, multifaceted understanding”[23] of CBDR was imperative.

The UNFCCC negotiations from Bali to Paris witnessed a gradual shift in the meaning and tenor of CBDR[24] Ultimately, the 2015 Paris Agreement[25] has now significantly whittled down the Kyoto binary approach to differentiation and abandoned the Annex I, non-Annex I language.[26]” The Paris Agreement attempts to strike a balance between ambition and differentiation by obligating all parties to participate in climate change mitigation in accordance with the targets set in their respective internal nationally determined commitments (INDC).[27] While the obligations for mitigation are undifferentiated,[28] developed countries are still mandated to provide financial resources and “take the lead” in mobilizing climate finance to developing countries, pursuant to their “existing obligations under the Convention”.[29]Apart from developed countries, the Paris Agreement now encourages other parties (including developing States) to provide support on a voluntary basis.[30]Developed countries are required to continue their collective mobilization goal through 2025. Before 2025, the Conference of Parties “shall set a new collective quantified goal from a floor of USD 100 billion per year”.[31] This baseline is expected to be sourced from a “wide variety of sources”, including private finance.[32]

Keeping global temperature below the 2°C warming threshold is dependent on States’ fulfillment of their climate finance obligations. Significantly, the Paris Agreement is the first time an international treaty will make direct connection between climate finance obligations and the agreed warming limits.[33] This has heightened the stakes, and has made the discourse of climate finance of compelling relevance. Hence, the utilization and effectiveness of climate finance in meeting the desired mitigation and adaptation goals in developed countries present salient issues that are worthy of consideration. When one considers the institutional deficiencies in most of the countries designated to receive climate finance support,[34] it becomes a frightening reality that climate finance resources could be misused, misappropriated or even embezzled.[35] There is a tendency to rely on the urgency of the climate crises and the attendant challenges of harsh weather conditions, chronic poverty and loss of livelihood as a reason not to exercise due diligence in designing the institutions necessary for climate finance effectiveness in developing countries.[36]

The question, what is the appropriate institutional design to ensure climate finance efficiency in developing countries, engages with these issues. Other ancillary questions include: How should the institutions be designed in a fragmented climate finance landscape? How should climate finance effectiveness be constructed? Who should determine effectiveness of climatefinance? These questions and many others at the heart of the proposed thesis do not lend themselves to easy answers.

 

ENGAGING EXISTING KNOWLEDGE

Multilateral funding for the environment has been a major preoccupation of the international community since the United Nations Conference on the Human Environment, 1972.[37] This has led to the establishment of several mechanisms for the provision of funds to finance environmental objectives. [38] The UNFCCC framework has also added different layers to the financial architecture of climate change.[39] As a result, there is a robust body of works that address the subject of climate finance and I have benefited from them. Most of these works have been engaged in the literature review accompanying this proposal. In relation to the subject of climate finance effectiveness, I have drawn some important lessons from the literature and I will highlight some of them here. First, the law on climate finance has not been well crystallized as the scholarship on the subject takes a non-legal approach more often than not.[40]

Second, the landscape of climate finance is a fragmented one.[41] Climate finance comes from a “variety of sources”[42] including multilateral, bilateral private and public sources; and it is imperative that its governance structure reflects this heterogeneous array. However, the approach to climate governance, nay, climate finance governance has been state-centric, as only States have historically had the “legitimacy and legal status” to influence climate negotiations and politics.[43]Thus, it is not surprising that most discussions on climate finance effectiveness have focused on public sources of climate finance.[44] But the “diversity, overlap and fragmentation” of transnational climate governance has ensured that it can no longer be looked at with a state-centric lens.[45]This reflects the outlook of mainstream climate governance, which, according to Pattberg and Stripple, manifests a gradual institutionalization of a transnational public sphere where the outcome of rules beyond the State are hardly considered.[46] In an old but relevant treatise, Rosenau presents non-state actors as more generic “spheres of authority”[47], and that these spheres of authority are the building blocks “of a new ontology where states are treated as only one of the many sources of authority”[48] It is necessary to ensure a “continuum of public, hybrid and private sources of authority on the constellation-axis and the continuum of hierarchical and non-hierarchical steering modes on the governance axis.”[49]

If climate finance effectiveness must be properly constructed and designed, there is a need to weaken “state-centric solidarism”[50] and reflect the fusion of diverse sources of finance. Remarkably, the Paris Summit resulted in a strong recognition that the private sector has an essential role to play in the meeting the 2°C global temperature goal.[51] Global climate finance flows surged to $383 billion in 2016 with public finance and private finance amounting to $141 billion and $242 billion respectively.[52] Since more resources are expected to come from private sources of climate finance, it is important to factor it into the discussion on climate finance effectiveness, or as Sarah and Jodoinframe it, “to bring private actors into the discussion on differentiation”.[53] Otherwise, private finance could become the blind spot of any institutional design for climate finance effectiveness.

Third, there is a wide disparity between financial pledges made and resources supplied to meet climate goals in developing countries.[54] As a result, a significant portion of the existing knowledge on climate finance has been fixated on the supply side of resources,[55] while less attention is paid to the spending, utilization and effectiveness aspect of the discourse.[56] While efforts are being made to ensure “scaled up, new and additional, predictable and adequate funding”[57], there should also be focus on effectiveness.

Fourth, there is no uniform definition or framework for climate finance effectiveness.[58] Depending on who is asked, there are diverse definitions. The development community conceives effectiveness within the framework of the Paris Declaration on Aid Effectiveness, 2005 (Paris Declaration). The Paris Declaration is the most significant international framework for aid effectiveness.[59] The Declaration sets five benchmarks – national ownership, mutual accountability, donor harmonization, alignment and the management of results – against which aid effectiveness should be measured.[60]For the private sector, a cardinal rule of climate finance effectiveness is “maximizing risk-adjusted returns”[61] I found that the concept of the climate finance effectiveness is largely influenced by and anchored on the principles of aid effectiveness. Indeed the principle has evolved to reflect the development community’s provision on aid effectiveness.[62] The Busan Partnership for Effective Development Cooperation[63] stated the need for the extension of development aid principles to govern climate finance.[64]The parameters of aid effectiveness have been consistently invoked by climate finance scholars as the appropriate framework to measure the effectiveness of climate finance.[65] In a proposal for a framework for climate finance effectiveness in Africa, Colland and Reddy argue that the principles enshrined in the Paris Declaration must be an integral part of the framework for climate finance effectiveness.[66] Similarly, the Nairobi Call for Action on Climate Change Finance and Development Effectiveness inextricably links climate finance to development aid and draws extensively from the principles of the Paris Declaration.[67]

I will argue, that while the principles of Aid Effectiveness help to create a conducive environment for the effective utilization of development aid, they offer a flawed premise for the consideration of climate finance effectiveness for a number of reasons. There are fundamental differences between climate finance and development aid: (a) While development aids are voluntary political transfers disbursed from government treasury, there have been efforts “to make climate finance transfers mandatory within a legally binding global agreements”.[68] Indeed, the obligations for the supply of climate finance are expressed in mandatory terms.[69] (b) Development aid is tailored towards developmental and poverty reduction goals, but climate finance has broader goals which include the reduction of global temperature to 2°C (and an uncertain climate future), even though adaptation priorities may also be development focused. (c) In most cases, the principles underlying the climate regime are not compatible with those at the foundation of development aid.[70] For example, the concept of national ownership referred to in the Paris Declaration essentially refers to government ownership,[71] but the climate regime expects that the private sector would be an active participant in climate finance governance. According to Matt Andrews, the concept of ownership “lacks sufficient substance to have practical relevance in many cases, where interventions after the Paris Declaration do not look that different from those that came before”.[72] (d)Apart from the fact that the Paris Declaration has only achieved limited success in ensuring aid effectiveness, it has been shown that the principles of the Declaration are not effective when applied to goals that are not mainly development oriented.[73]

While the principles that flow from development aid have relevant implications, we could be led astray if we transplant the rules applicable to a fundamentally different area of public finance to climate finance. From a practical point of view, I am prepared to carefully evaluate the principles of aid effectiveness and their relevance to climate finance, with a view to modifying them where appropriate.

But my preliminary diagnosis is that a performance framework intended for an area of policy should not be transplanted to another. The principles of law applicable to areas analogous to climate finance should not be transplanted to the climate finance regime as if it were the oracle of Delphi. At best, they should only offer guidance on how to design (or how not to design) a climate finance effectiveness regime  Writing on the relationship between outer space law and the law of the sea, Manfred Lachs, a former President of the International Court of Justice submitted that “[i]t is in any case a serious mistake to employ analogy for the purpose of bringing a new developing branch of international law within the purview of traditional systems inseparable from institutions whose own transmutation is in progress. Analogy must be used creatively.”[74]

ANALYTICAL /THEORETICAL FRAMEWORK

Theory is the reason behind the law; it is the latent or patent analytical predispositions that underlie a discussion. Whether disclosed or not, the discussion of every problem has a theoretical underpinning. Terry Eagleton remarked that “all of human existence is in some sense theoretical”.[75] The theoretical lens through which this research will be conducted is the Third World Approaches to International Law (TWAIL). TWAIL is a critical legal school that engages international law from the perspective of the former colonies. It critiques “the use of international law to further imperial policies”.[76]Its central thesis is that at every port of interaction between international law and third world peoples, there is a “binary logic that preserves the imaginary and material supremacy” of western powers to the detriment of third world peoples[77]Anghie argues that the institutional developments in international law should be seen as caused by issues bordering on colonial order and not as a product of “logical elaborations of a stable, philosophically conceived sovereignty doctrine”[78]. TWAIL reveals that there is a dominant voice international legal scholarship that has fanned the embers of the domination of third world peoples.[79]

TWAIL is not a homogenous school. It is not a “monolithic collegium”[80], but a “chorus of voices” devoid of unanimity as to the approach of engagement with the international legal order.[81] TWAIL scholars are, however, united by the devotion to the intellectual and practical struggle to expose reform or even retrench those features of the international legal system that help to create or maintain the generally unequal, unfair and unjust global order.”[82] TWAIL has diverse analytical tools, three of which stand out for the purposes of this work. First, TWAIL scholars contend that it is important to take world history, and not just western history, into consideration when studying the international legal order.[83] International law ought to be seen through the eyes and the lived history of third world peoples.[84] It extrapolates how international law engendered the colonial encounter and how it has continued to preserve those structures today.

A second analytical tool is the consideration of the equality of third world peoples. As Haskell notes, the promise of formal equality contributed to the decolonization, but created “new forms of domination that shifted the location of violence from the political to the economic spheres of international relations.”[85] The concept of ‘universalization’ is thus a major component of the promise of formal equality of States. TWAIL scholars challenge the use of ‘universalization’ to conceal the domination of third world peoples.[86] The third technique is TWAIL-ers’ keenness to reflect on the ways of presenting “epistemic and ideational resistance to the global hegemonies” that their work reveals.[87]

As a result, TWAIL scholarship has been applied to international law issues arising from trade,[88] economies,[89] outer space,[90] feminism,[91] wars and terrorism,[92] amongst others. A mere peripheral study may not immediately reveal the relevance of TWAIL scholarship to climate change law. Since discussions on climate finance have not always taken a legal approach, it has until now managed to avoid the searchlight of TWAIL. The application of TWAIL reveals the presence of power differentials in the climate regime. I will highlight three interwoven issues of compelling relevance to the research question which TWAIL helps to shed light on.

First, my attempt to initiate a conversation between TWAIL and CBDR shines the light on certain issues that are not immediately obvious. The problem of climate change does not arise from avoid – it confers benefits on some, others bear much greater costs.[93] I will argue that by not specifying the basis upon which differentiation “is to be made between countries – capability and/or culpability”,[94] CBDR creates a context of ambiguity with far-reaching institutional implications. Significantly, when differentiation is based on the South’s lack of capacity and not the North’s responsibility, CBDR could become a pretext for significant interventions to assist with climate mitigation that themselves could be geared towards the expansion of neo-liberal market approaches and the regulation that enables them.”[95]When CBDR obscures the history of global emissions while emphasizing climate change as a common challenge, it creates a situation in which “international law continuously disempowers the non-European world, even while sanctioning intervention within.”[96]During the climate change negotiations that led to the Paris Agreement, the US negotiators “categorically rejected” every proposal of “guilt or culpability or reparations” for historical emissions.[97] Instead, they demanded that all States “grow up” and take responsibility for future action on climate change.[98] Ironically, the US has now expressed its decision to withdraw from the Paris Agreement which encapsulates its idea of differentiation.[99] It then becomes clear that those regimes that call for power differentials “to address structural inequalities” can themselves reproduce power differentials.[100]  As will be demonstrated in the thesis, the attempts to frame climate finance as development aid is a feature of the CBDR thesis which argues that climate finance is based on capacity and not culpability.

Second, there is an impressive array of scholars that consider the neo-colonial ramifications of development aid,[101] many of whom ask, but do not answer the question of why aids to developing countries do not succeed. Matt Andrews argues that they fail because they are anchored on institutional designs/ reforms that do not fit into the contexts of developing countries; they are not fit for purpose and are like square pegs in round holes.[102] He argues that these reforms are usually designed with “limited attention to context, involves impressive-looking, but hard-to-produce best practice”[103] that are transplanted to countries in need of the institutional framework. These reforms are channeled by multilateral agencies through “financing, facilitation, and sometimes even implementation of interventions intended to introduce these rules.”[104] The point has been made that long history of development aid failure in developing countries, particularly Africa, is a direct result of the interventionist approach to development aid.[105] In a very recent treatise, Mark Langan considered several development programs and policies in Africa and concluded that, more often than not, they help to lubricate neo-colonial systems of “policy co-optation”.[106] TWAIL’s critique of universalization which was discussed earlier becomes relevant here. TWAIL similarly critiques western interventions in developing countries justified on the ground that they are engaging in a “civilizing mission”.[107]

I will argue that climate finance is not immune from these ne-colonial patterns of policy co-optations. The construction of climate finance effectiveness under this system is capable of derailing the objectives of the climate regime.[108] Indeed, these features manifesting in the climate finance regime. I will give two instances.  First, the Green Climate Fund (GCF) has a readiness program designed to help developing countries receive and utilize climate finance. But there is a disparity between the readiness program and the needs of developing countries.[109] To be able to access climate finance under the GCF, national implementing entities need to be accredited by the GCF Board. Before the accreditation can be given, implementing entities would need to comply with fiduciary, environmental and social standards.[110]The project based approach to ‘climate finance readiness’ has ensured that interventions are assessed on the basis of immediate results, rather than their capacity for transformational change. It has created a situation where national implementing entities work to comply with the criteria for the funds. In most cases, where the objective of a national implementing entity is not well-suited for a particular fund or project, the country would either adapt the entity to suit the fund/project, or would set up another entity to comply with the requirements of the project.[111] This will lead to a proliferation and duplication of national entities. It is reminiscent of what happens in institutional design in developing countries, where “donors provide best practice change scripts and the recipient countries comply, putting on the appearance of change without actually changing”[112] – a situation Andrews et al  describe as “isomorphic mimicry”. This kind of “standardized intervention” does not solve the problem of ineffectiveness but only conceals it. It is submitted that the scope of the standards place more emphasis on “what policies and organizational structures look like rather than what they actually do.”[113]

Second, the concept of transformational change has been intrinsically linked with climate finance effectiveness. Jane Ellis posits that discussions on the institutional effectiveness must create “conditions and capacities necessary for transformational changes within countries.”[114] Several policy documents on global climate finance policy also invoke the concept of transformational change.[115]Christiana Figueres, the UNFCCC Executive Secretary, “[n]othing short of transformational change is required in order to enable the world to shift towards a low carbon, climate-resilient future.”[116] As Winkler and Dubash note, these transformational objectives are usually determined outside the national processes and imposed on States.[117] GCF has conceived transformational change as “low-carbon development futures, with the emphasis on mitigation and metrics.”[118]More often than not, this is not consistent with national sustainable development policies.[119] Winkler and Dudbash caution that this approach to transformational change is capable of producing patterns of colonialism[120] and cause GCF financing to become another donor financing mechanism, “where GHG mitigation becomes an explicit or implicit condition of financing.”[121]  This approach ignores the fact that GHG reduction is not the only goal of the climate regime. In fact, developing countries have diverse adaptation needs.

Third, there is now an acceptance in TWAIL scholarship that States are “no longer the exclusive participant[s] in the international legal process”.[122] Hence, international law fixation on the State conceals the “conflicting internal fractures that experience and influence the constitution of the international legal system” to the disadvantage of these former colonies.[123]This is consistent with the research’s intention to consider effectiveness of diverse sources of climate finance.  I will use TWAIL’s reconstructive and reformative approach to design an institutional framework that would facilitate climate finance effectiveness. TWAIL’s reformative agenda demands gives the opportunity  recalibrate the effectiveness framework of climate finance to give way to a more effective system of governance[124] that would ensure that climate finance meets the right needs in the right places and at the right time.

I will also benefit from institutional design theories and methodologies that are consistent with a TWAIL approach. The Problem Driven Iterative Adaptation (PDIA) is a theory of institutional design that is influenced by TWAIL’s analytical tools and institutional building agenda. Like TWAIL-ers, PDIA scholars argue that the solutions to institutional challenges in developing countries cannot be found in institutional best practices or generic institutional blueprints.[125]They agree with TWAIL-ers that “historical events, geopolitical realities, the advocacy of social movements” are important issues to be considered. [126] PDIA extrapolates that the existing aid architecture is not suitable to address the challenges of effectiveness and advocates for “a complementary, customized and customizable architecture that is fit for purpose.”[127] In summary, PDIA has a four-stage problem-solving process. First, it emphasizes solving locally defined problem in contrast to the transplantation of “best practice” remedies. Second, it seeks a decision making environment that ensures “positive defiance and experimentation” instead of structuring projects and demanding that agents implement them as designed. Third, experimentation is infused in solid feedback structures that ensure experiential learning. And finally, it seeks the engagement of a cross-section of agents to guarantee that reforms are “viable, legitimate, relevant and supportable.”[128]

RESEARCH METHODOLOGY

The starting point would be the doctrinal method with which I will analyze literature, including relevant domestic and international legal instruments relevant to climate change and climate finance.[129] I will also rely on empirical methods of questionnaire and structured interviews to better understand the perspectives of the core decision makers in Nigeria and internationally. Respondents will include government agencies, GCF nationally implementing entities, financial institutions, and private sector participants.

With the aid of Seawright and Gerring’s case selection principles, I have deliberately selected Nigeria as the center for the inquiry on climate finance effectiveness because it is a representative model and presents a useful variation of the theoretical interests at the heart of the proposed thesis.[130] Nigeria is a typical case that represents a “stable, cross-case relationship” across diverse countries in the developing world and in Africa in particular.[131]Although the term ‘Third World’ had become anachronistic since the end of the cold war,[132] its realities are still prevalent in countries now termed developing countries. By every standard, Nigeria is a developing country.[133] Nigeria is a leading oil producer and exporter whose economic mainstay fossil fuel. The oil  sector is the source of 80% percent of government revenue, 50% of her GDP, and 95% of her foreign exchange earnings.[134] The flaring and burning of natural gas and associated natural gas ensured that Nigeria ranked amongst the continent’s leading carbon emitters.[135] At the moment, more than eighty million Nigerians–amounting to fifty percent of the population–do not have access to electricity. But Nigeria is endowed with abundant renewable energy potentials which would ease her transition to a low carbon economy.[136]

Furthermore, Nigeria presents interesting prospects for sourcing and utilizing private finance. It recently launched Africa’s first Sovereign Green Bonds.[137] Decades of colonialism, corruption, institutional inefficiencies and development aid ineffectiveness make Nigeria a veritable case study. I will conceive efficiency within the context of Nigeria’s energy sector. This would help Nigeria efficiently utilize climate finance, leapfrog into an era of sustainable use of renewable energy and significantly adapt to the effects of climate change. Due to the features that Nigeria shares with most countries in the developing world, I anticipate that the findings of this research will be credible as a true picture of the issues being studied and can be applied beyond the Nigerian context.

METHODOLOGICAL CHALLENGES ENVISAGED

At the moment, I expect to face two main challenges in pursuing the project. The first, which is a methodological concern borders on access to research subjects. Apart from administering questionnaires, I will spend quality time examining official documentations. Since the most of the research subjects are a part of a formal group or organization, access to them may be particularly difficult. But this is not an unusual challenge in empirical research. To address this, I intend to leverage on personal contacts and make opportunistic approaches. I will also admit that the plans and processes of this project are not linear. The design is, therefore, adaptable to evolving circumstances and amenable to flexibility.

The second challenge I envisage is the extant difficulty of tracking the flow of finance from public and private sources in Nigeria. Private finance, for example, flows through different interlinked channels while public finance flows through diverse government agencies, banking and financial institutions and national and sub-national budget.  UNDP’s principles for Tracking Private Climate Finance Flows at the National Level[138] and other pilot studies that provide a check-list of principles on how to track climate finance flows.[139]

A third challenge is that most of the TWAIL scholarship examined begins have an underlying presumption of third world innocence.[140] This false notion of third world innocence may fetter my objectivity and may lead me to neglect certain self-imposed problems of the third world. Madhav Khosla has advocated the need for the emergence of a new TWAIL perspective.[141]I will contend that a modern conception of TWAIL should not stop at deconstructing the neo-colonial foundations of international law; it must also acknowledge the pattern of self-inflicted problems, like corruption, in developing countries. Significantly, African environmental and development projects frequently fall into predictable failure due to mismanagement of project finances, corruption and poor public participation.

SIGNIFICANCE OF STUDY AND ORIGINAL CONTRIBUTION TO KNOWLEDGE

The question of the appropriate institutional design[142] to ensure climate finance effectiveness in developing countries sought to be answered in this thesis is distinctive, in that it has not been presented elsewhere in this manner. I do not seek to rearrange the deck in a sinking ship by designing institutions without paying attention to the underlying issues that would not make them work. Until now, the TWAIL lens has not been applied to frame climate finance effectiveness. The proposed thesis will attempt to expose the fundamental issues at the heart of climate finance and use that as a spring-board to design a structure for climate finance effectiveness. This, I, argue is the only way to ensure the sustainability of the institutions.

Why would anyone bother implementing the recommendations that I will make? I am trying to align local mitigation and adaptation priorities and informed objectives with foreign sources of money. As explained above, one of my main objectives will be to link private and public sources of money to produce an integrated framework. I would seek to convince the GCF and other multilateral climate finance institutions to channel climate finance towards funding national strategies, rather than individual projects. I will argue that if the most would be made of climate finance, public climate finance institutions must be willing to release funds to developing countries in pursuit of national strategies that are locally designed. Developing countries can then use the funding to leverage on private finance via loans, commercial debts, direct foreign investment and equity instruments to create a pool of resources to fund overall national strategies with the oversight of the donor and funding agency.

I have not made a conclusive finding that climate finance will produce the needed outcome; it could well be part of the findings of this thesis to expose the potential or otherwise of climate finance to meet the goal of keeping global temperature below the 2 degrees limit. I will provide some assessment on whether I believe climate finance can make any significant contribution to the reduction of greenhouse gas emissions or to meet adaptation needs.

 

 

 

 

 

 

 

 

 

1. THE FACTUAL AND LEGAL BASIS OF CLIMATE FINANCE

• The Scientific Basis of Climate Change and Climate finance
• Explain the scientific basis of climate change as clearly as possible. How did climate change come to be? Who are the major contributors and pollutants? Who are the most affected? How much time do we have and what do we need to do to halt the decline?
• Why do we need climate finance? How much do we need? Where will it come from? What will it be spent on?
• The Political Aspects of Climate Change and Climate Finance
• Trace the evolution of the influence of politics in the climate change and climate finance negotiations.
• The response to climate change has been state-centric and multilateral. Why?
• Explain the political issues that have characterized climate change and climate finance negotiations.
• Climate change reveals the power differentials between developed and developing countries.
• Countries are divided into negotiation blocs, representing developed and developing countries. These blocs, representing the diverse faces of climate impacts, take positions that are often conflicting. Why do these blocs exist and why do they take conflicting positions?
• The Legal Response to Climate Change and the Legal Basis of Climate Finance
• The legal response to climate change is a result of the political compromises.
• Trace the evolution of the climate finance discussions in the UN negotiation processes.
• Climate finance is included in virtually all the UN climate change treaties (from the UNFCCC to the Paris Agreement), and the decisions of the Conference of Parties that come in between. The following legal principles feature in these documents. Explain each of them in the light of the conflicting positions of developed and developing countries on how the principles are understood and interpreted :
• Common but differentiated responsibilities (CBDR)
• Polluter Pays
• Sustainable development
• Transformational change
• Equity
• Explain climate finance as seen in the Rules book to the Paris Agreement.

 

2. THE INSTITUTIONAL LANDSCAPE OF CLIMATE FINANCE

• What are the sources of climate finance? What are the institutions? Who are the participants? What are the major mechanisms?
• Expound on the following climate finance institutions and mechanism:
• Global Environmental Facility
• Adaptation Fund
• UN REDD
• Least Developed Country Fund
• Special Climate Change Fund
• Green Climate Fund
• The Role of other Non-UNFCCC Mechanisms in Climate Finance
• Bilateral Institutions
• Multilateral and Regional Institutions and Development Banks
• Private Sector
• Map the flow of multilateral climate finance for volume, source and recipients
• Is there coherence in the climate finance landscape?

 

3. THE RELATIONSHIP BETWEEN CLIMATE FINANCE AND DEVELOPMENT ASSISTANCE

• Origins and History of Development Assistance
• Explain the idea of development and how it evolved. What is the legal basis of development assistance? Why is it given? To whom?
• Have a nuanced explanation of the influence of neo-colonialism on the design of international development institutions.
• Explain the relationship between climate change and development; between adaptation and development, as well as mitigation and development.
• The relationship between climate finance and development assistance
• What are the similarities and differences in the evolution of development assistance and climate finance?
• Emphasize that the recipients of development assistance are also the most affected by climate change, and also the most in need of climate finance.
• It is important to emphasize the distinction between climate finance and development assistance. Draw a table comparing and contrasting both regimes.
• The intersection of the global aid system and climate finance architecture
• The institutions responsible for climate finance intersect with those of development assistance.
• Use graphics (ven diagram, etc) to show how these institutions intersect.
• The intersection of these institutions has substantially contributed to the muddling of climate finance and development assistance. The implication of this muddling is that development assistance funds are recycled as climate finance.
• The UNFCCC and the Paris Agreement stipulate that climate finance should be new and additional to development assistance. Explain the differing perspectives of developed and developing countries on the concept of ‘new and additional.’
• The central point of this chapter is to show that:
• While development assistance is gratuitous, climate finance is expressed in obligatory terms under the international treaties.
• While the objectives may overlap at some points, both streams of funds have different legal and political basis.
• Some scholars have opined that there is no point trying to create an artificial distinction between climate finance and development assistance because climate change and adaptation are targeted at the same goals. My response is that, while it may be difficult to separate the funds at the point of implementation, the funds should be separated at the point of mobilization so that we can know which developed country is fulfilling its 0.7% commitment for development assistance and which country isn’t.

4. CLIMATE FINANCE EFFECTIVENESS AND AID EFFECTIVENESS

• Evolution of Aid Effectiveness Principles
• Emphasize that development effectiveness principles evolved because of concerns that aid was failing. Examine the literature that opposes aid and the one that supports it.
• Look at the Principles of Aid Effectiveness and how they have evolved (from the 2002 Monetary Consensus to the 2005 Paris Declaration on Aid Effectiveness, to the 2011 High Level Forum on Aid Effectiveness)
• Relevance of Aid Effectiveness Principles to Climate Finance
• Are some of issues that affected the effectiveness of aid effectiveness present in climate finance?
• Are the principles of aid effectiveness applicable to climate finance? To what extent are they applicable? Is there a limit to their application?
• Ownership of climate finance by developing countries
• Isolate ownership from the principles of aid effectiveness and discuss it in the light of international climate finance.
• Ownership is important because it is at the heart of both development assistance and climate finance.
• Emphasize the neo-colonial aspect of climate finance that is a result of lack of ownership by developing countries.
• Since climate change is an issue that affects all countries, should developing countries be allowed to have ‘ownership’ of climate finance funding? Should there be exclusive access in an inclusive environment?
• What can we learn from the tragedy of the anti-commons in understanding climate finance ownership?
• Draw from general ideas of ownership and why ownership can improve certain outcomes. Why would we decide that instead of holding property in common, we would like to have it owned?
• There is something a little different in ownership of climate finance than in general arguments of ownership as a whole. If we assume that climate finance is a common pool, so that the finance arrangement is viewed as a public good, what does it mean to grant ownership in a public pool?
• What are the possible advantages and drawbacks of ownership in climate finance?
• Rent seeking can arise if there is ownership of climate finance.
• The conclusion will be that ownership is a necessary but not sufficient condition for climate finance effectiveness.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[1]Bert Metz, “The Climate Financing Problem: Funds Needed for Global Climate Change Mitigation Vastly Exceed Funds Currently Available” in Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk, eds, Regulatory and Funding Strategies for Climate Change and Global Development (New York: NYU Press, 2009) 42-47; World Bank, World Development Report: Development and Climate Change (Washington, DC: World Bank, 2010) pp.22.

[2]Decision 2/CP.17, Par. 66.UN.Doc. FCCC/CP/2011/9/Add.1.

[3]UNFCCC, Decision 2/CP.15, Copenhagen Accord, (December2009) FCCC/CP/2009/11/Add.1, para. 8.

[4]UNFCCC, ‘Decision 1/CP.21 Adoption of the Paris Agreement’ (29 January 2016) FCCC/ CP/2015/10/Add.1, para. 115.

[5]Alexander Zahar, “The Paris Agreement and the Gradual Development of a Law on Climate Finance” (2016) 6:1-2 Climate Law 75-90.

[6]Richard Colland&Trusha Reddy, “Towards a Framework for National Climate Finance Governance in Africa” (2012) Heinrich Böll Foundation, online: <https://za.boell.org/sites/default/files/towards_a_framework_for_national_climate_finance_governance_in_africa_final.pdf> 1-31 at 3, 8, 9; Nigel Thornton, “Realising the Potential; Making the Most of Climate Change in Africa”(2011)  prepared for the African Development Bank & OECD using case study material written by Cameron, Peter Grant, Gemma Norrington-Davies, Jeff Zingel and Nigel Thornton, online: <http://www.oecd.org/dac/environment-development/48597031.pdf>

[7]Tomi Ovaska, “The Failure of Development Aid” (2003) 23:2 Cato J. 175-188; Miroslav Prokopijević, “Why Foreign Aid Fails” (2007) 1 Pano Economics 29-51.

[8] Matt Andrews et al, “Building Capability by Delivering Results: Putting Problem-Driven Iterative Adaptation (PDIA) Principles into Practice” in Whaiteset al, eds, A Governance Practitioner’s Notebook: Alternative Ideas and Approaches (Paris: OECD, 2015) 123-133.

[9]Ibid.

[10]Jacob Werksman, “From Coercive Conditionality to Agreed Conditions: The Only Future for Future Climate Finance” in Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk, eds, Regulatory and Funding Strategies for Climate Change and Global Development (New York: NYU Press, 2009) 189-196.

[11]Neil Bird & Jonathan Glennie, infra note 65.

[12]Marcel Brinkman, “Incentivizing Private Investment in Climate Change Mitigation” in Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk, eds, Regulatory and Funding Strategies for Climate Change and Global Development (New York: NYU Press, 2009) 135-142; YuliaYamineva& Kati Kulovesi, “The New Framework for Climate Finance Under the United Nations Framework Convention on Climate Change: A Breakthrough or an Empty Promise” in Erkki Hollo, Kati Kulovesi& Michael Mehling, Climate Change and the Law (New York: Springer, 2013) 191-223.

[13]Obiorah Okafor, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both? (2008) 10:4 International Community Law Review 371-378.

[14]Although it must be acknowledged that some emerging economies have recorded significant economic improvements and have now joined the tribe of leading emitters. Despite this, there is still a wide gap between developed countries and their developing counterparts around the world.  See: Harald Winkler &LavanyaRajamani, “CBDR&RC in a Regime Applicable to All” (2013) 14:1 Climate Policy,  102–121.

[15] Ting Wei et al,  “Developed and Developing World  Responsibilities for Historical Climate Change and CO2 Mitigation” (2012) 109:32   Proc Natl Acad of Sci USA 12911-12915.

[16]LavanyaRajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University Press, 2006)130-175; SébastienJodoin& Sarah Mason-Case, “What Difference Does CBDR Make? A Socio-Legal Analysis of the Role of Differentiation in the Transnational Legal Process for REDD+” (2016) 5:2 Transnational Environmental Law pp. 255-284.

[17]United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) [UNFCCC], Article 3(1). See also the Preamble to the UNFCCC, which notes that “the largest share of historical and current global emissions of greenhouse gases has originated in developed countries…”

[18]UNFCCC, supra note 17, Article 4.3.

[19]Ibid, Article 4.7.

[20]Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).

[21] Kyoto Protocol, Articles 2.1, 2.2, 2.3, 3.1, 4, 5, 6, 7, 8, 9, 10 etc;  Jutta Brunnée& Charlotte Streck, “The UNFCCC as a Negotiation Forum: Towards Common but More Differentiated Responsibilities” (2013) 13:5 Climate Policy, pp. 589–607 at 593.

[22]LavanyaRajamani, “The Changing Fortunes of Differential Treatment in the Evolution of International Environmental Law” (2012) 88: 3 International Affairs 605-623 at 606.

[23]Brunnée&Streck, supra note 21  at589.

[24]Ibid at 594-597.  For a comprehensive discussion on the details of the evolution of CBDR see also Sarah &Jodoin, supra note 16; LavanyaRajamani, “Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities ad Underlying Politics” (2016) 65:2 493-514;  Alexander, Climate Change Finance and International Law (London and New York: Routledge, 2017) 8-19.

[25]Paris Agreement, Paris (France), 13 Dec. 2015 (in UNFCCC Secretariat, Report of the Conference of the Parties on its Twenty-First Session, Addendum, UN Doc. FCCC/CP/2015/10/Add.1, 29 Jan. 2016, Annex).

[26]Sandrine Maljean-Dubois, “The Paris Agreement: A New Step in the Gradual Evolution of Differential Treatment in the Climate Regime?” (2016) 25 Review of European, Comparative & International Environmental Law 151-160 at 3, 7.

[27]Rajamani, supra note 24 at 513; Paris Agreement, supra note 25at Preamble, Article 2.2.

[28]See Article 4 of the Paris Agreement.

[29]According to Zahar, while the UNFCCC preserved voluntarism by providing that developing States “may on a voluntary basis propose projects for financing”, the Paris Agreements strikes out voluntarism and provides for climate finance is the expediter of mitigation action: Zahar, supra note 24 at 71-73

[30]Paris Agreement, supra note 25,Article 9(2).

[31]UNFCCC, ‘Decision 1/CP.21 Adoption of the Paris Agreement’ (29 January 2016) FCCC/ CP/2015/10/Add.1, para. 53.

[32]Report of The Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011, Decision 2/CP.17, Par. 66.UN.Doc. FCCC/CP/2011/9/Add.1.

[33] Alexander Zahar, “Gradual Development of a Law on Climate Finance, supra note 5 at 75; Alexander Zahar, Climate Change Finance, supra note 24 at 74; Paris Agreement, supra note 25, Article 2.

[34]Transparency International, “Climate Change Funds: Safe From Corruption” (2014), online: <https://www.transparency.org/news/feature/climate_change_funds_safe_from_corruption>

[35]Transparency International, “Corruptions Risks and Mitigating Approaches in Climate Finance” <http://www.u4.no/publications/corruption-risks-and-mitigating-approaches-in-climate-finance-2/>; Transparency International, “How Corruption Affects Climate Change” (2017)< https://www.transparency.org/news/feature/how_corruption_affects_climate_change>

[36]Colland& Reddy, supra note 6 at 3.

[37]United Nations General Assembly, United National Conference on the Human Environment (15 December 1972) A/RES/2994, online:<http://www.refworld.org/docid/3b00f1c840.html>

[38]Luis Gomez-Echeverri& Benito Müller, “The Financial Mechanism of the UNFCCC A Brief History” (2009) ECBI Policy Brief  <http://www.oxfordclimatepolicy.org/publications/documents/ecbiBrief-FMHistory.pdf> 1, 4, 7.

[39]Yamineva&Kulovesi, supra note 10; FarhanaYamin& Joanne Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004) 272.

[40]Alexander Zahar distinguishes between legal and non-legal climate finance scholarship. See Zahar,supra note 24 at 51-65 for a list of general scholarship on climate finance with implications.

[41]Laurence Boisson de Chazournes, “Is There Room for Coherence in Climate Financial Assistance?” (2015) 4:3 Laws 541-558; Richard Stewart, Bryce Rudyk& Kiri Mattes, “Governing a Fragmented Climate Finance Regime” (2011) 3 The World Bank Legal Review 363-88 at 382-386; Daniel Bodansky, “The Future of Climate Governance: Creating a More Flexible Architecture” in Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk, eds, Regulatory and Funding Strategies for Climate Change and Global Development (New York: NYU Press, 2009) 48-52.

[42]Babara Buchner et al, “Global Landscape of Climate Finance 2017” (2017) A CPI Report, online<https://climatepolicyinitiative.org/publication/global-landscape-of-climate-finance-2017/>1-7.

[43]ChukwumerijeOkereke& Sally Tyldesley, “From Rio to Copenhagen: Multilateral Agreements, Disagreements and Situated Actions” in Stewart Lockie, David Sonnerfield& Dana Fisher, eds, Routledge International Handbook of Environmental Change (New York: Routledge Taylor and Francis Group. 2014) 109.

[44]This assessment is informed by a review of relevant scholarship.

[45]Robert Falkner, “International Climate Politics between Pluralism and Solidarism: An English School Perspective” in Olaf Corry & Hayley Stevenson, eds, Traditions and Trends in Global Environmental Politics: International Relations and the Earth (Abingdon, Oxon: Routledge, 2017) 40-41.

[46]Phillip Pattberg& Johannes Stripple, “Beyond the Public and Private Divide: Remapping Transnational Climate Governance in the 21st Century” (2008) 8 Int’l. Environ. Agreements 367-388.

[47]James Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World (Cambridge: Cambridge University Press, 1997) 39.

[48]Pattberg&Stripple, supra note 46 at 372.

[49]Ibid at 373; Tanja A. Börzel& Thomas Risse, “Public-Private Partnerships: Effective and Legitimate Tools of International Governance” in E. Grande & L. W. Pauly, eds, Reconstituting Political Authority: Complex Sovereignty and the Foundations of Global Governance (Toronto: University of Toronto Press, 2005Montreal) 195-216; Jane Nelson, “The Private Sector and Aid Effectiveness: Toward New Models of Engagement” HomiKharas, Koji Makino, Woojin Jung, eds., Catalyzing Development: A New Vision for Aid (Washington; Brookings Institution Press, 2011) 84-111.

[50]Robert Falkner, supra note 45 at 41.

[51]Alina Averchekova, “Enagaging Private Sector and Mobilizing Private Finance through Mitigation Actions in Developing Countries” in Anil Markandya, IbonGalarraga& Dirk Rübbelke, eds, in Climate Finance: Theory and Practice (Singapore: World Scientific Publishing Co., 2017) 56.

[52]Babara Buchner et al, supra note 42 at 1.

[53]Jodoin& Sarah, supra note 16 at 279.

[54]Bert Metz , supra note 1; Ensuring Climate Finance Effectiveness in Africa: Tools Strategies and Emerging Lessons for African Civil Society Workshop Hosted By Heinrich Böll Foundation, Pan African Climate Justice Alliance, Transparency International Kenya 21-23 May 2013 Villa Paradiso Manor, Magaliesburg, South Africa online:<https://za.boell.org/sites/default/files/downloads/WORKSHOP_REPORT_ENSURING_CLIMATE_FINANCE_EFFECTIVENESS.pdf> p.6.

[55]More discussions have focused on tracking climate finance flows, opportunities for raising additional resources and estimating the volume of resources needed now and in the future. See Jan Steckelet al, “From Climate Finance Toward Sustainable Development Finance” (2016) 8:1 Wiley Interdisciplinary Reviews: Climate Change 1-8; Neil Bird, Simon Billett& Cristina Colόn, “Direct Access to Climate Finance: Experiences and Lessons Learned” Discussion paper (London: ODI/UNDP, 2011) online: <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7479.pdf> ; Indira Masullo, Gala Larsen, Louise Brown & Lisa Dougherty-Choux, “Direct Access to Climate Finance: Lessons Learned by National Institutions” November 2015, online: <http://www.wri.org/sites/default/files/22DIRECT_ACCESS_TO_CLIMATE_FINANCE_LESSONS_LEARNED_BY_NATIONAL_INSTITUTIONS.pdf>

[56]Jan Steckel, Ibid.

[57]Copenhagen Accord, supra note 3 at para 8.

[58]Jane Ellis et al define climate finance effectiveness “as the extent to which an intervention achieves its stated aim(s)”: Jane Ellis, Randy Caruso & Stephanie Ockenden, “Exploring Climate Finance Effectiveness” (2013) Paper No. 4 Climate Change Expert Group pp. 5. This definition is inadequate because it does not reveal what the aims are and who sets them; see also , Barbara Buchner et al, “Public Climate Finance: A Survey of Systems to Monitor and Evaluate Climate Finance Effectiveness” (2012) Climate Policy Initiative Report, online: <https://climatepolicyinitiative.org/wp-content/uploads/2012/07/Public-Climate-Finance-Survey.pdf> 37.

[59]Aid Effectiveness principles were developed in Monterrey Consensus (2002); Washington: First Roundtable on Development Results (2002); Rome Declaration (2003); Marrakech: Second Roundtable on Development Results (2004); Paris Declaration on Aid Effectiveness (2005); Hanoi: Third Roundtable on Managing for Development Results (2007); Accra: Third High Level Forum on Aid Effectiveness (2008); and Busan: High Level Forum on Aid Effectiveness (2011). But the principles enunciated in the Paris Declaration are the cornerstone of international aid effectiveness.

[60]Martin Sjöstedt, “Aid Effectiveness and the Paris Declaration: A Mismatch between Ownership and Results-Based Management” (2013) 33:2 Public Admin Dev 143-155.

[61]Jane Ellis, supra note 56 at 7; Marcel Brinkman, “Incentivizing Private Investment in Climate Change Mitigation” in Richard B. Stewart, Benedict Kingsbury, and Bryce Rudyk, eds, Regulatory and Funding Strategies for Climate Change and Global Development (New York: NYU Press, 2009) 135-142.

[62]Ibid.

[63]Busan Partnership For Effective Development Co-operation, Fourth High Level Forum on Aid Effectiveness, Busan, Republic of Korea, 29 November – 1 December 2011, online: <https://www.oecd.org/development/effectiveness/49650173.pdf>

[64]Ibid at para.34.

[65]Catherine Cameron, “Climate Change Financing and Aid Effectiveness: Ghana Case Study” (2011) OECD, online: <http://www.oecd.org/dac/environment-development/48458430.pdf> ; Gemma Norrington-Davies & Nigel Thornton, “Climate Change Financing and Aid Effectiveness: Kenya Case Study” (2011) OECD, online: <http://www.oecd.org/dac/environment-development/48458443.pdf>; Climate Change Financing and Aid Effectiveness: Tanzania Case Study” (2011) OECD, online: <http://www.oecd.org/dac/environment-development/48458474.pdf>; Neil Bird & Jonathan Glennie, “Going Beyond Aid Effectiveness to Guide the Delivery of Climate Finance” (2011) Overseas Development Institute Background Note, online: <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7106.pdf>; Colland& Reddy, supra note 6.

[66]Colland& Reddy, supra note 6 at 9.

[67] “The Nairobi Call for Action on Climate Change Finance and Development Effectiveness: An African Approach to Accountable and Effectiveness Climate Finance” Nairobi, 21-23 September 2011, online: <http://www.oecd.org/dac/environment-development/48922223.pdfhttp://www.oecd.org/dac/environment-development/48922223.pdf>.

[68] Bird & Glennie, supra note 65 at p. 2; Robert Falkner, The Handbook of Global Climate and Environmental Policy (U.K.: Wiley-Blackwell, 2013) 492; Recently, the US government subtly threatened the member-states of the UN General Assembly that, should they vote in favour of a Resolution condemning the relocation of the US Embassy in Israel to Jerusalem, it would would be hesitate to give aid. This is an interesting political example of development aid asa tool of political influence and control. See Peter Beaumont, “Trump Threatens to Cut Aid to Countries Over Jerusalem Vote” (21 December 2017), online: <https://www.theguardian.com/us-news/2017/dec/20/donald-trump-threat-cut-aid-un-jerusalem-vote>

[69]See UNFCCC, Art. 4; Paris Agreement, Art. 9

[70]See Bird &Gleene, supra note 65 at 2.

[71]SmithaNakhooda, “The Effectiveness of International Climate Finance” (2013) Working Paper 371, online: <https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/8344.pdf> 2-5.

[71]The OECD DAC defines national ownership as “the effective exercise of a government’s authority over development policies and activities, including those that rely – entirely or partially – on external resources. For governments, this means articulating the national development agenda and establishing authoritative policies and strategies.” See also Par Marie von Engelhardt, International Development Organizations and Fragile States: Law and Disorder (Switzerland: Palgrave Macmillian, 2018) 70; WilliemBuiter, “‘Country Ownership’: A Term Whose Time Has Gone” (2007) 17: 4/5 Development in Practice pp.647-652.

[72]Matt Andrews, The Limits of Institutional Reform in Development: Changing the Rules for Realistic Solutions (Cambridge: Cambridge University Press, 2013) 211-212.

[73]On the fact that the Paris Declaration did not yield a positive outcome when applied to state building Processes in South-Sudan, see ReCom, “How Effectively were the Paris Principles applied to State-Building in South Sudan?”, online: <https://www.wider.unu.edu/sites/default/files/RB2014-How%20Effectively%20Were%20the%20Paris%20Principles%20Applied%20to%20State-Building%20in%20South%20Sudan.pdf>

f>; For how the Paris Declaration fared when applied to war-torn Afghanisatan, see Rebecca Roberts, “Reflections on the Paris Declaration and Aid Effectiveness in Afghanistan” (2010) Afghanistan Research and Evaluation Unit Policy Note Series, online: <https://areu.org.af/wp-

content/uploads/2016/02/1013E-Reflections-on-the-Paris-Declaration-and-Aid-Effectiveness-in-Afghanistan.pdf>

[74]Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law Making (The Netherlands: MartinusNijhoff Publishers, 2010) at 21. This is n agreement with Lord Coke’s dictum that “he who knoweth the law, and knoweth not the reason thereof, soon forgetteth his superfluous learning”: William Everett Britton & Ralph Stanley Bauer, Cases on Business Law (1922) 629.

[75]Terry Eagleton, The Significance of Theory (Oxford: Blackwell 1990) 25.

[76]Antony Anghie, “The Evolution of International Law: Colonial and Postcolonial Realities” (2006) 27:5 Third World Quarterly 739 at 751-52.

[77]John D. Haskell, “TRAIL-ing TWAIL: Arguments and Blind Spots in Third World Approaches to International Law” (2014) 27:2 Canadian Journal of Law & Jurisprudence 383-414 at 387.

[78]Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007) 6-7.

[79]James ThuoGathii, “TWAIL: A Brief History of Its Origins, Its Decentralized Network, and a Tentative Bibliography” (2011) 3:1 Trade L. & Dev. 26 at  31.

[80]Obiora Okafor, “Newness, Imperialism, and International Legal Reform in our Time: A TWAIL Perspective” (2005) 43:1/2 Osgood Hall L.J 171 at 177.

[81]Obiora Okafor, “Globalism, Memory and 9/11: A Critical Third World Perspective” in publié par Fleur Johns, Richard Joyce, SundhyaPahuja, eds, Events: The Force of International Law (New York: Routledge Taylor and Francis, 2011) 234 at 237.

[82]Ibid.

[83]Ibid at 239

[84]Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007) 312

[85]Haskell, supra note 77 at 391.

[86]Okafor, supra note 81 at 239.

[87]Ibid at 239.

[88]Ravinder Rena, “Impact of WTO Policies on Developing Countries: Issues and Perspectives” (2012) 4:3 Transnational Corporations Review (Canada) 77-88; Sarah Anderson, Views from the South: The Effects of Globalization and the WTO Third World (Chicago: First Food Books, 2000).

[89]MuthucumaraswamySornarajah, “Economic Neo-Liberalism and the International Law on Foreign Investment” in Anthony Anghieet al, eds, Third World Approaches to International Order: Law, Politics and Globalization (Leiden: MartinusNijhoff Publishers, 2003) 173.

[90]TimiebiAganaba-Jeanty, Cosmopolitan Approaches To International Law: Finding The Right Lens To View The Freedom Of Outer Space, Unpublished DCL Dissertation, (McGill University, 2016).

[91]Vasuki Nesiah, “The Ground beneath Her Feet: TWAIL Feminism”in Anthony Anghieet al, eds, Third World Approaches to International Order: Law, Politics and Globalization (Leiden: MartinusNijhoff Publishers, 2003) 133.

[92] M. Mandell, “Opinion: Illegal Wars and International Criminal Law” in Anthony Anghieet al, eds, Third World Approaches to International Order: Law, Politics and Globalization (Leiden: MartinusNijhoff Publishers, 2003) 117; Okafor, Globalism supra note 81.

[93]Karin Mickelson, “South, North, International Environmental Law, International Environmental Lawyers” (2000) 11 YB Intl Env L 52, 53.

[94]LavanyaRajamani, supra note 16 at 195; cited in Julia Dehm, “Carbon Colonialism or Climate Justice? Interrogating the International Climate Regime from A TWAIL Perspective” (2016) 33:3Winsdor Yearbook of Access to Justice 129-161 at 141.

[95]Ibid at 143.

[96]See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007) 312.

[97]See Patrick Bond, “Climate debt owed to Africa: What to demand and how to collect?” (2010) 2:1 African Journal for Science, Technology, Innovation and Development 83.

[98]Cited in Dehm, supra note 94 at 141.

[99]Valerie Volcovici, “U.S. Submits Formal Notice of Withdrawal From Paris Climate Pact” Reuters (4 August 2017), online: < https://www.reuters.com/article/us-un-climate-usa-paris/u-s-submits-formal-notice-of-withdrawal-from-paris-climate-pact-idUSKBN1AK2FM>.

[100]Dehm, supra note 94 at 143.

[101] W. Easterly, The White Man’s Burden: Why the West’s Effort to Aid the Rest Have Done So Much Ill and So Little Good (New York: Penguin, 2006); H. Doucouliagos& M. Paldam, “The Aid Effectiveness Literature: The Sad Results of 40 Years of Research” (2009) 23 Journal of Economic Surveys 433–461.

[102]Matt Andrews, LantPrichett, SalimahSamji& Michael Woolcock, “Building Capability by Delivering Results: Putting Problem-Driven Iterative Adaptation (PDIA) Principles into Practice” in  Alan Whaites, Eduardo Gonzalez, Sara Fyson and Graham Teskey, eds, A Governance Practitioner’s Notebook: Alternative Ideas and Approaches (Paris: OECD, 2015) 123 at 131.

[103]Matt Andrews, supra note 72 at 3.

[104]Ibid at 4.

[105]See Mark Langan,  Neo-Colonialism and the Poverty of ‘Development in Africa (Switzerland: Springer, 2017) 61; T. Killick, “Principals, Agents and the Findings of Conditionality” (1997) 9 Journal of International Development 483-496; P. Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done about It. Oxford: Oxford University Press, 2007); Dambisa Moyo, Dead Aid: Why Aid is Not Working and How Therie is A Better Way for Africa (London: Allen Lane, 2009); S. Djankov, J.G. Montalvo, M. Reynal-Querol  “The Curse of Aid” (2008) 13 Journal of Economic Growth 169–194; W. Easterly, “The Lost Decades: Developing Countries’ Stagnation in spite of  Policy Reform 1980–1998” (2001) 6  Journal of Economic Growth 135–157.

[106]See Langan, supra note 105 at 64: “a modern conception of neo-colonialism need not deny that African elites may welcome aids as a channel for lubricating their own patronage networks…However, a modern critique of neo-colonialosm must highlight the strategic objectives of the donor community in promoting their own economic and corporate interests in Africa. Further discussions on the neo-colonial aspects of development aid in Africa include Kwame Nkrumah, Neo-Colonialism: The Last Stage of Imperialism (London: Thomas Nelson & Sons Ltd., 1965) sixth Printing—New York International Publishers, 1976; Dambisa Moyo, Dead Aid: Why Aid is Not Working and How There is A Better Way for Africa (London: Allen Lane, 2009).

[107] James ThuoGathii,supranote 77 at 31; U. Natarajan, “The Civilizing Mission and the ‘Gentle Civilizer of Nations’: Third World Approaches to the Iraq War and the Rule of Law” (2007), presented at the Australian and New Zealand Society of International Law, online: <http://cigj.anu.edu.au/cigj/link_documents/Publications/Natarajan_Restorin g_Rule_ANZSIL_Conf_2007.pdf>

[108] Jacob Werksman,supra note 10.

[109]Eunkyoung Hong & Tomonori Sudo, “Enhancing Readiness Programs for the Green Climate Fund”(2014) 12 Korea International Cooperative Agency online: <https://www.jica.go.jp/jica-ri/publication/other/jrft3q0000002ayp-att/Enhancing_Readiness_Programs_for_the_Green_Climate_Fund.pdf > pp. 11

[110]Indira Masullo, Gala Larsen, Louise Brown & Lisa Dougherty-Choux, “Direct Access to Climate Finance: Lessons Learned by National Institutions” (2015), online:<http://www.wri.org/sites/default/files/22DIRECT_ACCESS_TO_CLIMATE_FINANCE_LESSONS_LEARNED_BY_NATIONAL_INSTITUTIONS.pdf>

[111]Ibid at p.17: “For example, the Adaptation Fund NIE in Senegal, the CSE, was recently accredited by the GCF. Right after this, it received a number of project proposals from the private sector. The CSE is not well-situated to handle private sector projects, so Senegal is considering accrediting a second institution to the GCF.”

[112]Matt Andrews et al, supra note 8 at 124

[113]Matt Andrews, supra note 8 124.

[114]Jane Ellis et al, supra note 58 at 8.

[115]The UNFCCC Secretariat defines Nationally Appropriate Mitigation Action as “any action that reduces emissions in developing countries and is prepared under the umbrella of a national governmental initiative…and can be policies directed at transformational change within an economic sector, or actions across sectors for a broader national focus.”:Alina Averchekova, supra note 51 at 66.

[116]Quoted in Harald Winkler &NavrozDubash, “Who Determines Transformational Change in Development and Climate Finance” (2016)16:6 Climate Policy, 783-791; UN News Centre, “Private sector role in climate change fund for poorer countries focus of UN meeting”(9 September 2011), online: <http://www.un.org/apps/news/story.asp?NewsID=39496#.WkI8s1WnGUk>

[117]Winkler &Dubash, Ibid.

[118]Ibid at 783.

[119]Ibid.

[120]Ibid at 787, 788.

[121]Ibid at 785.

[122]B.S. Chimni, Third World Approaches to International Law: A Manifesto” (2006) 8 International Community Law Review 3 at 13; TWAIL scholarship critiques the lack of attention to  the “vast and interlocking system of private and public actors and regimes” as a situation “carried over from the 19^th century than corresponding to any reality in global governance.”; Haskell, supra  note 77 at 399.

[123]Haskell, supra note 77 at 399. According to Rajagopal, the fixation on State and international institutions, “privileges agents and doctrines that traditionally are associated with the more privileged statuses within local and global spheres of influence, and thereby indirectly excludes those marginalized groups and alternative identity politics… whose ‘lived experiences’ tend to take place outside the remit of official state channels”: Rajagopal, “International Law and Social Movements: Challenges of Theorizing Resistance” (2003) 41 Colum J Transnat’l L 397 at 410-16.

[124]Haskell, supra note 77 at 400.

[125]Matt Andrews, supra note 8 at 123.

[126]Ibid at 131.

[127]Ibid at 130.

[128]Ibid.

[129] Terry Hutchinson, “Defining and Describing What We Do: Doctrinal Legal Research” (2012) 17 Deakin L. Rev. 83, at 101.

[130]Jason Seanwright& John Gerring, “Case Selection Techniques in Case Study Research: A Menu of Qualitative and Quantitative Options” (2008) 61:2 Political Research Quarterly 294-308.

[131]Ibid at 299.

[132]R.B.J. Walker, “Space/Time/Sovereignty” in M.E. Denham and M.O. Lombardi eds., Perspectives on the Third World Sovereignty: The Post Modern Paradox (Ney York: St. Martin’s Press, 1996) 13 at 15.

[133]ToluLawal& Abe Oluwatoyin, “National Development in Nigeria: Issues, Challenges and Prospects” (2011) 3:9 Journal of Public Administration and Policy Research 237-241;The World Bank, “Nigeria at a Glance”, online: <http://www.worldbank.org/en/country/Nigeria/overview>  last updated on 1 April 2017;UN, “Country Classification: Data Sources, Country Classifications and Aggregation Methodology”, online: <http://www.un.org/en/development/desa/policy/wesp/wesp_current/2014wesp_country_classification.pdf>.

[134] Simon WarikiyeiAmaduobogha, “Environmental Regulation of Foreign Direct Investment in the Oil and Gas Sector” in Festus Emiri and Gowon Deinduomo, eds., Law and Petroleum Industry in Nigeria: Current Challenges (Lagos: Malthouse Press Ltd, 2009) at 108; S.O Oyedepo, “Energy in Perspective of Sustainable Development in Nigeria” (2013) 1:2 Sustainable Energy 14- 25.

[135]Aminu Hassan, “Gas Flaring in Nigeria: Analysis of Changes in its consequent carbon emission and reporting” (2013) 37:2 Accounting Forum 124 at 124; UJ Orji, “An Appraisal of the Legal Framework for the Control of Environmental Pollution in Nigeria” (2012) 38 Commonwealth Law Bulletin 321 at 342.

[136] For a detailed review of Nigeria’s renewable energy potentials, see TC Chineke and EC Igwiro, “Urban and Rural Electrification: Enhancing the Energy Sector in Nigeria using Photovoltaic Technology” (2008) 9:1 African Journal of Science and Technology 102-108.

[137]Nigerian Investment Promotion Commission, “Climate Welcomes First Meeting of Nigeria Green Board Advisory Group”, online: < http://www.invest-nigeria.com/climate-bonds-welcomes-first-meeting-nigeria-green-bond-advisory-group/>; Background Paper: Issuing Nigeria’s Green Bonds, online: <https://medium.com/@TheAsoVilla/issuing-nigerias-green-bonds-990f6d03dcb8>.

[138]UNDP, Tracking Private Climate Finance Flows at the National Level: Proposed Country-Level Methodology (Oxford Consulting Partners, 2015), online: <http://procurement-notices.undp.org/view_file.cfm?doc_id=93783>;UNDP, Tracking Private Climate Finance Flows at the National Level in Thailand: Methodology for Tracking Private Climate Finance Flows in Energy Sub-Sectors” (24 October 2016), online: <http://procurement-notices.undp.org/view_file.cfm?doc_id=93783>

[139]See also [139] Neil Bird et al, “Climate Public Expenditure and Institutional Review (CPEIR): A Methodological Note” (2012) online: <https://www.odi.org/publications/6191-cpeir-methodology-climate-finance-national-public-expenditure>.

[140]Aganaba-Jeanty, supra note  90 at 118.

[141]Madhav Khosla, “The TWAIL Discourse: The Emergence of a New Phase” (2007) ICLR 9 291. In her discussions on the failure of development aid, Moyo also considers the neo-patrimonial and tendencies of elites in developing countries. See Dead Aid, supra note 105.

[142]I distinguish between institutions and organizations. “If institutions can be defined as the ‘rules of the game’, organizations are how we structure ourselves to play”: Department for International Development, “Promoting Institutional and Organizational Development” (London: Department for International Development, 2003), online: <http://www.eldis.org/vfile/upload/1/document/0708/DOC18045.pdf> p. ii.