Compromises and Double-Speak: The Lima Climate Summit: a Failure in All but Name
Crucial to building a new agreement anchored in already agreed principles and improved ambition is the principle of common but differentiated responsibilities. This principle, properly applied, enables developing countries to continue to develop and places a responsibility commensurate to their historical overexploitation of the planet’s atmosphere on developed countries. It is a principle of fairness and justice. It is the legal principle that is the foundation of the UNFCCC.
Before COP20, with little attention to this principle, however, the UNFCCC Executive Director in her remarks for months, the UN Secretary-General at his High Level Climate Summit on 23 September, and several optimistic delegates predicted some break through success in the negotiations. Instead, in the aftermath of COP20 we are left picking up the pieces after yet another failed attempt to take the action that the science and existing international law tell us is necessary to deal adequately with climate change. Below this piece examines some of the reasons why this was the case.
A New Agreement: Paris2015 text
The main task of COP20 was to provide more form to the new agreement that was to reach by the end of next year. This was to be done in two steps. First, a COP decision was to be agreed that would be a roadmap for getting to an adequately ambitious agreement in Paris in 2015 based on the Adhoc Durban Programme (ADP). Second, progress was suppose to be made in shaping the elements of a text into the text of an agreement (Paris2015 text). In addition, progress was to be made on operationalizing the Warsaw Loss and Damage Mechanism, on finance, and on a process for increasing ambition. Despite the apparent optimism most participants knew that any progress would be difficult, if not impossible.
During the first week of COP20 scant progress was made on elaborating the elements of the Paris2015 text. In most instances, the progress was aimed at clarifying the positions of the State parties, broadly divided by developing and developing countries and their allies. States from each block proposed alternative text for the different components of the treaty. In fact, they proposed alternative texts for almost every substantive article of the treaty. This created a list of alternative proposals pointing in very different directions. For example, developed countries saw the burden of addressing the adverse effects of climate change as a shared responsibility of all States. Developing countries, however, objected. They pointed out that to share the burden equally after it had been caused by the developed countries was unfair. To do so, they said would keep them impoverished. There was no agreement. Like two explorers who cannot decide whether to head out North or South, it was merely agreed that North and South existed. This was heralded as progress by observers seeking at least a ray of hope.
Due to the intransigent positions, by the end of the first week, the Paris2015 text had been all but laid aside. This was because, while that text would be dealt with in meetings in additional February and May 2015, COP20 had to arrive at a decision on how to proceed in Lima. This required agreeing to some minimum rules of procedure and guidelines for progress. The second week, and then some, was devoted to the task of taking a decision in Lima.
Common But Differentiated Responsibilities
Emboldened by the weak leadership of Peru as COP20 President during the first week, developed States addressed this task by renewing their already once failed efforts to circumvent their obligations in the UNFCCC. Their most straight forward attack came in the form of the introduction of language in the COP decision on the Adhoc Durban Platform (ADP) that backed away from the principle of common but differentiated responsibility (CBDR), which is expressly stated in article 3, paragraph 1, of the UNFCCC. Developed states suggested text attempting to qualify this principle as ‘evolving’. One European negotiator explained that this would enable CBDR to be interpreted with more flexibility.
Developing countries, led by the Group of 77 (G77), more than 132 of the United Nation 194 States, maintained that the principle of CBDR had been clearly agreed in the UNFCCC. Furthermore, as is stated in article 4 entitled ‘commitments’, for example, it was further elaborated to mean that wealthier developed countries should provide leadership on climate action by significantly cutting their remissions and ensuring developing countries access to the technology, the capacity building, and new and additional finance for their mitigation and adaptation actions. Developed countries were intransigently unconvinced.
Speaking for about three dozen developing countries on the morning of Saturday, 13 December 2015, while the meeting was still struggling to adopted a text a day after the conference should have concluded, Malaysia explained the problem recognizing that States “started off from different starting points.” Recalling developed countries historical overexploitation of the planet’s atmosphere the Malaysian delegate, supported by the G77 think-tank, the South Centre, said, “Many of you colonized us; so we started from a completely different point and that is why one of the manifestations of differentiation is in the Convention itself.”
Finance and Loss & Damage
The discussion began cordially with was developing countries expression their appreciation to the developed countries for providing 30 billion USD in fast-track finance that they had pledge to provide in 2009 at the COP held in Copenhagen. At the same time, there was concern about how States would come up with the 100 billion USD per year that was pledged by 2020 and every year there after. This concern was accentuated by the fact that many of the most knowledgeable climate finance voices were suggesting that in reality in excess of a trillion USD would be needed annually.
Developed countries were keen to put their faith in the private sector and market mechanisms, even through most also admitted that only a fraction of the these significant sums could be produced without public commitments.
While head to head discussions were being held about how to come up with adequate finances, the UNFCCC Secretariat and the UN Secretary-General were busy applauding the just over 10 billion USD that had been raised for the Green Climate Fund. One had to wonder however, how that would add up to 100 billion a year by 2020 and how the short coming between the 100 billion that is to be pledged and the more than 1 trillion per year that is needed will be covered. Nobody had answers for these questions.
The final decisions on finance adopted on the Saturday after the meeting should have ended, merely called for more discussions about how the required amount of finance would be found by the Standing Committee on Finance, the Green Climate Fund, the Global Environmental Facility, and the COP. These decisions also reiterated the 100 billion USD figure that had already become discredited as an unrealistic appraisal of the funds might have been viable five years ago if adequate action had been taken, when no action had been taken. Like the COP decision, the finance decisions did not admit defeat, but neither did they accomplish a significant step towards resolving the problem of how the differentiation required under the UNFCCC would be supported.
Because of the failure to adequately mitigate their own emissions or to provide adequate resources to developing countries for adaptation, developed countries agreed at COP19 held in Warsaw, to provide assistance to the worst effected countries. This was done by an agreement to create a loss and damage mechanism. The exact nature of the assistance that will be provided remains as ambiguous as the mechanism itself.
At one extreme, developing countries sought to make it a lex specialismechanism. As such it would be a separate legal regime for dealing with the loss and damage that States, mainly developing States, suffer from the adverse effects of climate change. Such a lex specialis mechanism could extinguish the existing rights to compensation and other types of restitution that effected States already have under international law, abet often without effective means of implementation. Developing States, however, point to its vague mandate as merely providing advice on how States can deal with loss and damage caused by climate change.
Despite the ongoing disagreement, COP20 merely agreed to the makeup of the membership of the Executive Committee of the Loss & Damage Mechanism. It was agreed that it should be balanced between mainly developing and developed countries. What is still left to be seen is what the Loss and Damage Mechanism can actually accomplish.
Real Commitments Forgotten
The final COP20 decision that was hammered out almost two days after the conference was to have ended and after most delegates had already left, said very little about any really commitments on the most important of all issues: how States will limit their greenhouse gas emissions.
Instead of committing to emissions limitations that are more meaningful than those agreed in the deficient Kyoto Protocol or its equally weak Doha amendment, States merely reiterated their intention not to agree to any commitments. The COP20 decision refers to the confusingly named ‘intended nationally determined contributions’ (INDCs) as the standard of action. INDCs are voluntary statements by States about how much they intend to limit their emissions (mitigation) as well as how much they intend to contribute to adaptation, finance, technology transfer and capacity building. But even what would be actually be stated in the INDCs was a point of contention.
Equally contentious was how to ensure that INDCs actually equal what is needed to protect the planet from a climate disaster. While developed States continued to insist on mechanisms to ensure developing countries spend any money provided them correctly, developing States sought assurances that they would actually get adequate money.
In the end, the COP20 decision contains a confusing mix of compromises, double-speak, and often just simple says nothing of any significant meaning.
Planning for Inaction
As the Lima COP indicated, many negotiators are ready to give up on an agreement that will honor what science and existing international law, especially the UNFCCC, require to deal with the adverse effects of climate change. Instead they are resigned to adopting a series of face-saving gestures that leave the most vulnerable people in the world increasingly exposed to the harrowing consequences of climate change.
The writing was on the wall as Peru was chosen to host COP20 about eighteen months ago. Initially Venezuela had been the main contender for hosting the COP for South America, the region whose turn it in the regular geographic rotation. Venezuela was a natural choice as it was one of the most outspoken States calling for adequate action on climate change. Its views on the needed action aligned with the views of the overwhelming number of countries, mainly developing countries.
This did not suit the rich and politically powerful developed countries. To get their way they went to Peruvian President Ollanta Humala and convinced him to put forward his country to host COP20. Peru’s relative irrelevance to the last decade of COPs made them a natural choice for developed countries seeking to fight the real battles on their home turf at next year’s COP in Paris.
Peru obliged, but quickly exposed the game being played when some of its diplomats, including those at COP19, did not even know that they were to host COP20. Similarly, Peru’s diplomats at the United Nations in New York and Geneva seemed total bewildered by the mention of the climate change summit.
Western States also preyed on the fact that Peru’s President Ollanta Humala, although in the past a close friend of Venezuela’s strong-minded President Hugo Chavez, had evolved into a leader closer to past Peruvian President Alberto Fujimori, who had been propped up by Western power until he fled the country. Fujimori eventually returned to Peru and is currently serving a 25-year prison sentence for his crimes against humanity. Today Keiko Fujimori, the former right-wing dictator’s daughter and current candidate for President in the 2016 elections, agrees with many of Humala’s policies, which often appear critical of Venezuela’s socialism.
For developed countries, Humala and Peru seemed to provide an adequate setting for maintaining the benefits they had gained by their historic overexploitation of the planet’s atmosphere. And if there was to be a battle at least it would not be a battle they had to fight in hostile territory.
As if to put authoritarian tendencies on display and warn delegates that derogations from the status quo were not welcomed, COP20 was held in a military compound. The military compound was in Lima’s sprawling upscale San Borja neighbourhood and securely guarded by legions of police, military police, and soldiers nestled within the security of barbwire, tank blockades, and security cameras. Even as the COP was taking place military jet and helicopters made fly-overs and a several points, explosive could be heard detonating as delegates negotiated.
To pay for this extravaganza, or merely to profit from it, Lima’s hotels and restaurants often tripled their prices, something is admittedly common at UN Conferences. Even money changers offered about 30% less when exchanging dollars or Euros than they did a few weeks ago. It was not that Peruvian Soles had increased in value, it was just that the UN was in town.
By the time COP20 started the writing was on the wall. Ironically, even United States Secretary of State John Kerry observed in his flying second visit to the COP that “we are still on a course leading to tragedy.” He failed to note that it is few wealthy nations like his own that need to show leadership to in order to avoid tragedy.
It is hard to avoid the conclusion that once again the COP meeting did not inspire the leadership that is necessary for global climate action. It failed to move us closer towards taking adequate action as time was quickly running for many of the most vulnerable people exposed to climate change.
For some it may already be to late. Low lying island States, such as the Maldives are already doomed to disappear under the rising sea tides. Thousands of vulnerable people in countries like the Philippines have already succumb to storms of increasing intensity. And, as the chief negotiator for the 133 States that make up the Group of 77 or the G77, Sudanese Ambassador Lumumba Daping, warned already half a decade ago, unless we act now as many as one hundred million sub-Saharan Africans will die due to the adverse effects of climate change.
When the Ambassador Lumumba Daping stated the grime reality at the Copenhagen Climate Summit in 2009, several wealthy States dismissed as scare mongering. Today, the harrowing scenarios he predicted coming true. Still, the same governments that benefited from almost two centuries of overexploitation of our planet’s atmosphere continue to obstinately defend these ill-gotten gains, even as others have to bear the deadly consequences. It is hard to see how this can be called anything, but a failure.
From an article published in Counterpunch.org on 22 December 2014 by CFJ Doebbler
COP19 ends with a whimper and scarey omen for COP20
A text on Loss and Damage was so confusing that even the COP19 President Korolec said he wasn't sure what it meant.
A text on Finance kept the issue alive, but didn't add much money. The results for the Adaptation Fund whcih set itself a modest goal of 100 million USD, when an estimated 400 to 650 billion USD is needed annually, was achived, but the Green Climate Fund remains empty. At the same time the US does not even want to talk abotu longterm finance, but even in the short term only 6 billion of the meagre 100 billion to be raised by 2020 and then for each year thereafter has been raised. Again reasonable estimates say at leaset 1 trillion is needed annual to mitigate and adapt to climate change by 2020 and this figures goes up every year that we do not take effective action.
And on REDD COP19 agree to a text that faours market mechanisms, but also included non-market approaches.
Most environment NGOs assessed COP19 as a failure.
In light of that assessment their weer some pretty worried faces when the COP19 President announced that he had worked closely with Peru and France, where the next two COPs will be held and that these two coutries shared responsibility for the outcome at COP19.
International Law Matters to Climate Change
To many international law may appear as a lofy idea that has little consequence for the practical action to address climate change. May delegate and their governments representing almost very person on the planet understand that international law is the foundation upon which international relations rests and the common denominator that has been agreed among States.
In relation to climate change, international law is particularly important. The core document of international climate change law has been agreed to by every country in the international community, developing countries as well as developed countries, rich countries as well as poor, and large countries as well as small. This document is the United Nations Framework Convention on Climate Change (UNFCCC).
The UNFCCC contains the most fundamental principles for combating climate change. They are principles that States considered for decades before putting them down on paper and solemnly agreeing to abide by them. More importantly, perhaps, it is attempts by some States to ignore or violate this international law that is at the foundation of the international community's failure to take adequate action to date to protect all people from the adverse effects of climate change.
The UNFCCC is based on good science. It's ultimate objective is to ensure that dangerous emissions by humans do not interfere with the global climate system. The Nobel-prize winning International Panel on Climate Change (IPCC) has just recently released its fifth report stating with almost absolute certainty that climate change is being caused by human action.
The UNFCCC was drafted and exists to deal with the human action that is causing climate change. Wile it does no always prescribe exact remedies, it lays down principles that must be respected when any action to deal with climate change in article 3.
One of the most frequently cited of these principles is that action should be taken based on common but differentiated responsibilities and respective capabilities. This means that States who have contributed more to climate change, not merely right now, but since at least 1850, should take more action to cut their emissions. The reason for this principle is that many States—for example, the United States, Australia, and most European States—developed for decades by over-exploiting the Earth's atmosphere. These States became wealthy and developed, while many other States remained poor.
This principle is reiterated in the greater commitments that Annex 1 States have in article 4 and elsewhere in the UNFCCC as well as in the Kyoto Protocol and in any new treaty under the UNFCCC.
Today the situation is changing and many developed States are developing, but the situation it is far from changed. It will take decades if not centuries for most developing States to catchup to the level of development enjoyed by Annex I countries. Imposing legal obligations on them without providing them the means to achieve these obligations will ensure they never catch up.
Moreover, the UNFCCC expressly states that it was meant to address climate change in an equitable manner. Equity requires that all States be allowed to develop to the same general level. In today's word it is impossible to claim that Americans are people who have some higher value than the people of the Maldives. Under international human rights law all people are of equal value. All people have the right to health, to life, to a healthy environment, and the right to equally enjoy these rights. The principle of non-discrimination is even a pre-emptory principle of international law. This does not mean there are not differences, but only that everyone should be give the same opportunities, the same chances.
The UNFCCC's principles ensure all States the same chance to protect their people. The failure to respect these principles and act on the basis of them, denies States this opportunity. Climate change effects us all, but only when we respect the principles of international law that all States have agreed upon can we successfully address the adverse effects of climate change.
ADP suspended with reiterations
Playing with Fire
This past Friday the latest round of global climate talks ended at the UN's climate headquarters in Bonn, Germany. Once again the talks were inconclusive. In fact this time no real conclusions were intended. The meeting merely meant to explain the differences between the countries and to build their trust in each other, even if they differ. And formally the meeting was meant to launch new and more ambitious action in furtherance of the agreement reach in 2011 in Durban.
Officially the meeting was convened as the Ad hoc Working Group on the Durban Platform for Enhanced Action or the ADP. Its second session was thus known as ADP2. It's mandate emanated from the UN Framework Convention on Climate Change and its Kyoto Protocol. These two interrelated treaties form the basis of international obligations to which States have agreed to accomplish the end of protecting our planet's atmosphere from the most harmful human interference.
With the UN Framework Convention on Climate Change, the Kyoto Protocol, is one of the international legal instruments agreed to by all but a handful of States in which they agree to act to prevent the adverse effects of climate change. The problem is that most States, particularly developing States that agreed to the greatest responsibilities to act, have merely failed to act as they agreed.
The UN Framework Convention provides general principles and a few general commitments for action. Among its general principles is the principle that States must act in an equitable manner towards each other. Another principle is that all States must act in accordance with their common but differentiated responsibilities. The way that these principles have been translated into commitments for States in the Convention is by requiring the States that have exploited the atmosphere the most to take the most action to protect it. This means that developed States, whose development was in no insignificant part due to their exploitation of the atmosphere, have the greatest responsibilities to limit their CO2 emissions. In addition, according to the Convention they agreed to more than twenty years ago, this means that developed States have an obligation to provide the resources needed for poor countries to protect their citizens from the already unavoidable consequences of climate change.
The Convention has been agreed to by more States than have agreed to the UN Charter. Its Kyoto Protocol adds specific CO2 emission reduction targets to the obligations. The Protocol contains minimal legal obligations requiring developed countries who benefited from over exploitation of the Earth's atmosphere for decades to limit their CO2 emissions. The limits are not enough to prevent dangerous harm to the atmosphere, but even they have often not been observed. And to add insult to the injury suffered by developing countries, many of which contributed negligibly to CO2 emissions over the course of recorded history, several developed countries refused to agree to new emissions reductions targets as the Kyoto Protocol requires them to do when the old one's expired at the end of last year. Some States, like Canada, withdrew from the Kyoto Protocol because of their fear of responsibility for failing to meet their emission limitation obligations.
For a week about two hundred delegates and a handful of civil society and profit-sector attendees listened to panels, roundtables, and workshops in which the positions that States have held for the better part of the last decade were reiterated.
Developing States called for equitable treatment to be interpreted as requiring that developed States allow them to catch up to them in development terms. This, developing States argued, requires the sharing of resources, including technology, information, and financial means. Several developing countries expressed very strongly the view that they should not be forced to choose between raising their people out of poverty and providing them social and economic development and combating climate change. Richer developed countries retorted that now they were having a hard time and that they expected developing countries to do more.
The differentiation between developed and developing countries is embedded in the Convention. In effect what developed countries were saying is that they are refusing to obey the law unless a new law is made that developing countries have to obey.
The ADP process was intended to create that new legally binding instrument. The agreement is to be consistent with and under the authority o the currently existing Convention. At the same time the agreement is suppose to increase the ambition of States to cut their CO2 emissions. States agreed to this second track of the ADP process because it was unanimously recognized that the current action lacks ambition and will lead to a global average temperature rise of more than 2°C. Such global warming will cause serious suffering and even death to the poorest and most vulnerable people in the world.
Despite the clearly laid out mandate, developed States still want to keep the door open for a new treaty to replace the Framework Convention. The reason for this, although thy rarely articulate it, is because some developed States n longer think that they should bear the burden of the obligation they voluntarily accepted more than twenty years ago. Instead these States claim, developing States must have comparable obligations in a new treaty.
Most developing States in tun have generally rejected creating new obligations for themselves while they are poor and less economically developed. Alternative, some developing States have left the door open for accepting obligations, but only after developed States have shown good faith in meeting their already exiting obligations. This chicken-and-egg game has been playing itself out for years at the climate talk and Bonn was no exception.
While political games appear to stay the same, the climate continues to deteriorate.
Even the rare innovative suggestions were sometimes based on old proposals. For example, at one point the Philippines suggested reconsideration of a proposal by Brazil that was made in 1997, before the Kyoto Protocol had ever been drafted, to provide an understanding of equitable apportionment of responsibility. The suggestion was prompted by the unwillingness of some developed States to admit that equity required more action from them. The European Union responded by calling for reconsideration of a technical committee's report on the Brazil proposal, in which several developed States express their concern.
The delegates also heard that although at the last annual global Climate Summit held in Doha, Qatar in December 2012, an extension of commitments under the Kyoto Protocol was finally agreed upon, the text has yet to be ratified by a single State, according to the Secretariat of the UNFCCC.
These contradictions indicate that at its core the problem remains the same. The rich developed countries don't want to limit their emissions in accordance with the rules they agreed to more than twenty years ago. They are afraid to give up their hight standard of living and to share their development with the people of developed countries who they have exploited for years.
Skeptics point to the Green Climate Fund that was also agreed at COP18 in Durban. It is suppose to be the major fund for assisting developing States both in mitigating their emissions of anthropogenic gases. Although a Secretariat has been created it has hardly any money and is not yet operational. The basis of this Fund was to be new and additional, fast-track financing of 30 billion US dollars that was suppose to have been provided by 2012. Hardly any of this money has materialized.
At COP18 the carrot and stick approach of developed countries was again used in the form of th e enticement of the loss and damage concept. This concept refers to compensation to developing countries when they suffer extraordinary harm from climate change. Developing countries jumped at the prospect of actually getting some financing, even though they have gotten hardly any of what they have already been promised for more than twenty years.
Few developing countries even noticed that they already had a legal right to what they were being offered. Indeed, when climate change interferes with the enjoyment of fundamental human rights a State under whose jurisdiction the victims are found has a legal claim for quite significant damages. These damages can be recovered against any State that has not complied with its legal obligation to mitigate climate change, for example, by failing to cut its CO2 emission, or a State that has failed to comply with its obligation to provide new and additional finances or the transfer of technology to a State that requires such resources to protect people under its jurisdiction. This is not new law, this merely the application of age old rules of State responsibility for actions that violate an international obligation and can be attributed to a State. The fact that there may not be an appropriate legal forum in which to sue the 'wrongdoing' State does not distract from the fact that a wrong has been done for which compensation, among other forms of redress, is due.
Moreover, even if the contribution of a single State to climate change is small, what is important is that the State has either acted in accordance with its international obligations or not. The basic obligations as explained above are found in the UN Framework Convention. The include basic duties of mitigation and the sharing of financial resources, technology and knowledge. In other words, if climate changed has caused harm and a State has contributed to causing climate change by failing to meet its Convention obligations, that State may be responsible for all the damages suffered by people anywhere.
The fact that even a States that is small cause of harm due to its illegal act can be responsible for disproportionate damage is a consequence of the sovereignty of States. With the significant rights of sovereignty come this basic responsibility. Of course, if a State thinks other States have contributed to damages it is at liberty to claim against them. Such claims and whether they are made at all should not limit the recover of the victims of human rights abuses due to climate change.
In this context the loss and damage effort seems as if developed States are trying to sell a car they stole from it owner, developing States, back to the owner. In addition to cheating the owner, the seller is likely also trying to provide a justification for his or her own initially illegal act. And they are playing on the fear of the owner. Indeed, it might be easier for an owner who can afford to do so to buy back their own car from a thief and to thereby avoid a confrontation with a bully. Whether it is the proper way for a government representing hundred of thousands or even millions of people to act is more questionable.
Nevertheless despite the litany of broken promises. Developed States act as if they have been insulted when developing States indicate that they just don't trust them anymore. The indignity of developed States coupled with the financial pressure they can exert on developing States, has cowered some developing States into submission in recent years. However, as the comparative economic strength of developed States has weaken in comparison to their developing States counterparts, the latter have begun to again exercise their sovereign independence.
In Bonn the courage of developing States began to show, not in plenary meetings, but in the side-meetings of groups like the Like-Minded Developing Countries, the Africa Group, and even the usually more timid Association of Small Island States. Whether this courage will be translated into action that will convince the minority of States, mainly developed States to act as they have agreed to address the adverse effects of climate change, is yet to be seen.
Timing is running out.
At the COP15 held in Copenhagen in 2009, the Group of 77, a group of more than about 130 States and the majority of the UN Member States, stated that if action was not take immediately more than 100 million Africans would be sent to the furnaces created by climate change in the rest of the 21st Century. These developing States begged the world not to make this mistake. Still today the international community seems not to have heeded this advice and they are still playing with fire that could burn or even extinguish the lives of so many o the most vulnerable people on our planet.
**The auhor Dr. Doebbler is an international human rights lawyer who attended the ADP2 meeting in Bonn from 29 April to 3 May 2013 and who has published several articles in peer reviewed law journals on the responsibility of States for the human rights of victims of climate change.