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.
International-Lawyers.Org Press Statement on COP18: COP18 OUTCOMES WOEFULLY INADEQUATE
COP18 OUTCOMES WOEFULLY INADEQUATE
FOR DEALING WITH CLIMATE CHANGE
International-Lawyers.Org regrets that the State Parties meeting at COP18 to the UNFCCC did not act with the ambition and responsibility that the law and the science requires of them.
The outcomes of COP18 are significantly below the international action that is needed to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.
International-Lawyers.Org notes that when State Parties fail to act in accordance with the UNFCCC and, for those to whom applicable, the Kyoto Protocol, they incur State responsibility towards other States suffering injury from the adverse effects of climate change.
“Climate change hits the most vulnerable hardest. It already affects millions of people in developing countries where resources for adequate adaptation are still lacking. Future consequences will be catastrophic if States with the historical responsibility for climate change do not comply with their international obligations to take the lead in addressing climate change while at the same time enabling developing countries to mitigate and adapt,” said Margreet Wewerinke, an officer in International-Lawyers.Org. She added that “These actions are not a matter of charity; they are required under international law.”
Such State responsibility also extends to the consequences of climate change that interfere with, among other legal protections, individuals' human rights, peoples' rights to self-determination, and States' right to development.
For further information contact International-Lawyers.Org at Office@International-Lawyers.Org.
Latest COP18 texts (Saturday morning)
The final session convenes to be told new texts are coming. President says they are issued in his name and says there are five texts. In reality there are nine texts. As texts appear in back of room, delegates rush to get them virtually trampling over each other as UN Security yells 'get back' and 'take two steps back'. I expect to hear gunshots any minute as delegates don't seem to obey the orders.
The KP (FCCC/KP/CMP/2012/L.9) text holds nothing new and much unfortunate. It calls for de minimus commitments by the 15%, but it does say that these should be upgraded through an opaque and voluntary process to 25% to 40%...how, when, where? States not participating in the second commitment period are denied access to CDMs and Joint Implementation projects. AAU carry over is still 2.5%, but surplus reserve trading is cut .5% down to 2%.
Text on Arrangements between the Conference of the Parties and the Green Climate Fund (FCCC/CP/2012/L.18) are to be drawn up by GCF Standing Committee. Green Climate Fund report (FCCC/CP/2012/L.17) only says it has about 10 billion USD tops and then only for administrative costs. No mention of money for disbursement.
Text on LCA (FCCC/CP/2012/L.14) uses 2 degree benchmark and includes reference to equity and common but differentiated responsibility in Shared Vision, but not integrated in text. Text supports REDD+, but only through workshops and further call for comments by March 2013. Seems REDD+ blocked for another year, but not killed and still a threat to commoditize our planet. Text calls for consideration of new market-based mechanisms, but nothing on non-market mechanisms. Non-market mechanisms could be considered under general call for various approaches (paras. 41-49), but none mentioned. Text delays technology transfer action to COP19 in Warsaw, Poland, next November. Text calls for continued work of Cancun Adaptation Framework and for Adaptation Committee to "consider the establishment of an annual adaptation forum." Extends (really delays) discussion on longterm finance for another year. Similar decision is in Work programme on long-term finance decision (FCCC/CP/2012/L.15). Text also calls for next year's Durban Forum to consider capacity building and calls for vague review of ambition. There is a recognition of the need to respect the survival of countries and protect the integrity of Mother Earth.
Durban Plan of Action decision (FCCC/CP/2012/L.13 is an empty shell that says little. Only calls on Ad Hoc Working Group to keep working, Plan of Work to come later.
On loss and damage a decision is taken to keep studying the situation (FCCC/CP/2012/L.4/Rev.1) on the basis of mainly State submitted information. More significantly there is a decision to create institutional arrangements, but only at COP19. In meantime, UNFCCC Secretariat is asked to prepare an expert meeting, a technical paper on non-economic loss, a technical paper on institutional gaps in and outside UNFCCC system. Could be hopeful, or just more empty future promises.
The report of the Standing Committee on Finance (new name) to submit report on tracking climate finance (FCCC/CP/2012/L.).
Nothing really new. No ambition. No money. No adequate decisions to act.
With one day to go and no agreement in sight at COP18 Qatar turns to the Almighty for help
Thursday night the only meeting showing a scheduled for the rest of COP18 was the Friday Muslim prayer service, which the announcement said was opened to all and would include a sermon relevant to the climate talks. That reflects the state of the current talks at COP18: the need to to appear to the Almighty to help us.
Although the AWG-KP text was adopted to be sent to the Ministers, it reads more like a list of unresolved prolems than a coherent text. Of course, a new commitment period will be agreed, but it will be at such a low common denominator that it really won't make any difference.
The LCA text is another matter. So little text has been agreed that more agreements to disagree are reflected in the text then agreed text. The text is literally full of empty space where no text could be agreed. thee is not even agreement on the shared vision that will guide the text. There is also no agreement on any meaningful financing. Yes there are option, but there is no money. Yes, there have been promises, but we have been there before. About 4 billion USD of the promised fast-track financing actually ever materialized as new and additional financing. There is also no ambition in the emission reduction commitments of States. Is that surprising? Not really because the States concerned are those that pulled out of or never joined the Kyoto Protocol.
And the new Durban Plan of Action that is suppose to lead us into the future. Well not much has been done to finalize an elaborated plan of action because it depends on closing the KP and LCA tracks and we are very far from this point.
There will be an outcome most likely, but the chance that any outcome ha can be achieved at this point will help us combat the adverse effects of climate chnage is very slight indeed. We really do need to the inetrevntion of the Almighty.
COP18: Do we recognize that it is the latest in a series of failed climate talks?
Since 2007 when the 13th Conference of the Parties to the UNFCCC (COP13) adopted the Bali Pan of Action as a hopeful effort to put the climate talks back on track the talks have been going backwards. A gullible observer might not know that. Fed with a stuffing media campaign that that puts a happy face on the most tragic outcomes there seems to always be progress.
First, the Bali Plan of Action (BAP) adopted at COP13 in Bali, Indonesia was already a recognition that the climate were bogged down and needed something new. While climate talks have already been going on for well over a decade and half the main thing that had been recognized was that the ambition was too low. Even at the time of the adoption of the UNFCCC in 1992 it was agreed that we needed to do more. It was also agreed that let's at least get a foot in the door with a widely ratified legally binding treaty that establishes agreement on some basic principles and some very basic commitments.
COP14 was merely a housekeeping exercise to really get the BAP bodies, the AWG-KP and AWG-LCA operating fully. They had already met, but the climate talks in Poznan was the really chance to roll them out to the world. Even as the meeting was underway the sights for action were set of COP15 in Copenhagen, Denmark and the fanfare around a high expectation for action at COP15 was underway. There were only very limited expectations for COP14 and no one really cared if they were met or not as most were more administrative or procedural rather than substantive. We did see however that th BAP worked, although with plenty of substantive kinks than needed to be ironed out. The Danish set the expectation, already in Poznan, that they would facilitate this.
Indeed, no COP has had the enthusiasm and expectation for action that is required by law and science that COP15 created. The Danish government used it lavish resources and relatively good logistic infrastructure to draw almost 50,000 people to COP15 with the allure of an expectation of real action on climate change. More than a hundred heads of States pledged to attend COP15 before it started. More, including newly elected US President Barak Obama, fresh from winning both an election and the Nobel Prize for Peace, also agreed to attend as COP15 opened. All the enthusiasm vanished however when it quickly became apparent that what the Danish and their Western co-conspirators had in mind was not a climate agreement based on science and law, not even one based on negotiations, bit one based sole on the interest of the rich and the powerful and those who did not have the courage to stand-up against them. In the end, COP15 was a farce, adopting a set of empty promises that with every passing years seem more and more likely mere lies. The biggest one was probably the bribe that Annex I countries put on the table. They offered 30 billion in fast track financing and 100 billion per year in the future to all States that would sign-on to the Copenhagen Accord. Never mind that we already knew that at least 1 trillion a year would be needed for adaptation and mitigation and an indeterminate, but likely equal amount for technology transfer. But even the 30 billion has not materialized. In absolute numbers about 10 billion has materialized, but most of that old and repackaged rather than the new and additional money that is required by the UNFCCC and the Copenhagen Accord. Less than 4 billion is new an additional. Moreover it all should have been made available by now and it has not been. Developing States were duped. COP15 was doomed to be an even bigger failure every year. Nevertheless the Danish publicity machine painted the Copenhagen Accord as an achievement.
COP16 in Cancun, Mexico was no exception. There was much fanfare, although lower expectations and mainly questions. We moved back to the AWG-LCA and AWG-KP tracks, almost admitting that the Copenhagen Accord was a failure, even if few said it. In the end nothing much happened in Mexico again the hatching of a closed door set of decisions that were given to delegates just minutes before they were suppose to shut up and approve them. Some delegates protested, they were ignored. The Cancun decisions got us nowhere, but the UNFCC Secretariat, the Mexican government and the States behind the failed Copenhagen Accord claimed the meeting was a success merely because it made some decisions. No one seemed to care that the principle of consensus decision making had been trampled into the ground by the same States that had hide behind it to prevent climate action based on the law and the science.
COP17, held in Durban, South Africa, gave some renewed hope to activists and States that wanted meaningful climate action based on the law and the science. They hopes were based on low expectations, but maybe at least the Copenhagen Accord and the forced Cancun decision cold be put to rest and we could all get back to the arduous, but slowly progressing task of negotiating AWG-LCA and AWG-KP texts. The AWG-KP urgently needed a text as the first Kyoto Protocol commitment period was expiring fast and waiting until COP18 to renew it would mean a period of no legally binding commitments. Nevertheless the ambition was so low that even getting back ontrack was not achievable. Once again rich Annex I countries derailed any type of ambitious action saying that the terms of the UNFCCC, which they were all legally bound to observe, meant nothing to them. They attempted to extinguish the common but differentiated responsibility principle despite the fact that it was part of international law, both the UNFCCC treaty and likely customary international law. The rich and Annex 1 countries seemed to care little for the fact that the planet was dying and the future of future generations was being squandered while the COPs failed to take meaningful action. COP17 ended with the worse fears being met. Developing countries capitulated to allow the AWG.LCA and AWG-KP tracks to be closed, abet with a weak promise to finish their work. They were warned by a outcry from civil society that they were selling short the future of their very own people, but they had been coerced to such an extent that they appeared incapable of sanding up for their own people. COP17 was an embarrassment and right in the backward of the very continent whose people will suffer the most, dying by tens of millions because of inaction on climate change. Once again, however, wit the help of well-paid journalists from rich Annex 1 countries, the host country spun COP17 into something of a success.
COP18 has been no different. Rich Annex 1 countries again refuse to recognize the law and the science and like spoiled children don't want to give up the advantages that they have obtained by over-exploiting the planet's atmosphere. Rich Annex 1 countries again refuse to agree to meaningful mitigation obligations, in fact, they generally won't agree to any obligations to mitigate their greenhouse gas emissions. At the same time they are even more stingy refusing to provide any new and additional funding or even pay the fast track funding they should have already paid. COP18 looks to be the latest in a series of failed climate talks. No doubt they will agree to a meaningless new Kyoto Protocol commitment period that locks in such a low ambition that it has almost already been achieved and will have very little impact on our planet's climate. And no doubt once again the host will ensure that the well-paid press from rich Annex 1 countries spin COP18 as a success so that we can all go to COP19 in Warsaw and claim another success, so that we can all go to COP20 … The story seems to be continuing infinitely a circular nightmare from which we need to one day wake up and recognize the great damage we have already caused our planet's atmosphere, the very air that we breath and the environment in which we live.