* Number of open meetings and plenary meetings.
** Rounded number of participants and NGO and civil society access to and inclusion in discussions.
*** Measured by interviews and discussions with State, NGO and IGO delegates.
**** Measured by interviews and discussions with State, NGO and IGO delegates.
***** Measured by formal submission by June deadline.

This chart is not intended to be a scientific study and is based on ad notes of and an ad hoc sample of participants views collected and summarized here to provide general reflections.

The European Union (EU) is calling for a new commitment period under the Kyoto Protocol, but that's not all and that's not what's really important to the Europeans. In fact observing the EU delegates in Durban one wonders whether they really want a second commitment period at all. Indeed it appears that EU States really don't care about a second commitment period, what they want are the Clean Development Mechanisms (CDMs) and their delegates almost tell you this if you speak with them.

The CDMs and their sister Joint Implementation (JIs) projects that are mandated by the Kyoto Protocol allow EU States to meet or get near meeting their emissions limitations requirements under the Protocol. In fact CDMs and JIs are forms of carbon trading. In other words, they contribute to worldwide emissions by allowing rich polluting States to buy the right to pollute further from poor less developed States that do not use their emission quotas. In other words, States that would not have polluted are now polluting via the proxy of some rich developed country.

On their face CDMs and JIs do not seem compatible with the UNFCCC, which in article 2 requires States to act to keep greenhouse gas emissions below dangerous levels. Nevertheless, they were part of an intricately negotiated compromise in which developed countries agreed to cut their emissions at least a little, and in return developing countries agreed to allow these countries to buy into developing countries' emissions quotas (or in the case of JIs, to trade quotas between themselves) in order to get closer to their individual State commitments.

The EU has made some noteworthy commitments to cut their emissions in the future (after 2012) and is willing to put them into binding legal form in a new commitment period under the Kyoto Protocol. But for them to have a realistic or at least not very painful possibility of achieving these commitments they will need CDMs. This is why they are interested in new commitment periods under the Kyoto Protocol. 

Recently, however, American Professor Daniel Bodansky has pointed out that regardless of whether there are new Kyoto commitment periods after the current ones expire at the end of 2012, the Kyoto Protocol stays alive. The Kyoto Protocol does not expire, it merely continues without commitment periods. The CDMs stay alive, legally, as American Professor Daniel Bodansky has pointed out. Thus even if the EU does not new emissions reduction commitment periods into the Kyoto Protocol the EU can still continue to take advantage of the CDMs. This is perhaps why the EU's support for new commitment periods seems more illusionary than a real commitment.

In such a circumstance, the delicate balance that made the Kyoto Protocol possible dissolves. In other words, developing countries are given a raw deal as they quid pro quo they negotiated has been taken from them, whiel they still appear bound by what they conceded CDMs. This creates a pretty unfair situation and likley an unfriendly environment, but it is also not the complete picture.

The biggest motivation behind the EU's offiical position may be to merely not seem as if it is wanting to have its cake and eat it too. The EU perhaps realizes that the worst scenario would be no new commitment period coupled by developing States' unwillingness to trade carbon with the EU and as a consequence the whole carbon market falling into disrepute, in much the same way as western economic and financial practices have in recent years. If carbon becomes a 'toxic stock' (a trader's description that in the case of CO2 is perhaps too close to reality), then the EU is in dire straits and even a modest effort to achieve the already publicly announced and moderately ambitious emissions limitations targets, will be extremely painful for the European citizenry.

Nevertheless, the Kyoto nay-sayers and the ambiguity with which the EU is speaking make the boycott of the carbon market one strategy that developing countries need to consider. In other words, whether CDMs are mandated or not by the Kyoto Protocol, they are not required and developing countries could just say 'no' to them. 

Perhaps this is what developing countries should be threatening to do if the EU does not really join in pressuring the USA, Canada, Japan, and perhaps Russia to adopt a new meaningful commitment period. If the African countries and their brethren in the G77 don't have the courage to speak strongly and in an unified voice in Durban in Africa, there is unlikely to be another chance, at leaset one that will be in time to make a difference. 

It is time that the developing countries use the leverage they have acquired from a changing world of much different economic and financial conditions. While it might seem logical to wait until their development has progressed a little further, the planet and hundreds of millions of Africans may not have the time to do so.

http://international-lawyers.org/Documents/Exploring%20the%20Legal%20Basis%20of%20a%20Human%20Rights%20Approach%20to%20Climate%20Change.pdf

As COP17 opened there are several noticeable changes.

First, India has a new chief negotiator with charismatic Jairam Ramesh being replaced by the stronger Jayanthi Natarajan, who with China seems intent on holding the line for the developing countries. As a result there is unlikely to be a back down on the Kyoto emission limitation extensions, but instead a confrontation.

Second, the BRICS have reverted back to speaking merely as the BASIC group, which means that Russia may not have been won over on Kyoto as appeared from the strong BRICS statement that Russian had joined earlier this summer.

Third, despite the fact that Argentinean Ambassador Jorge Arguello, who has led previous G77 delegations hasn't arrive yet, Ambassador Ms. Silvia Merega, the Argentina Director General for Environmental Issues at the Ministry of Foreign Affairs has made strong representations on behalf of the G77, indicating that the Group may be more unified than previously thought.

Fourth, while the G77 may be more unified the EU seems to be splintering. Its position on a new Kyoto commitment period has been becoming increasingly diluted.

Fifth, and no surprisingly, the big question is how to get a new commitment period. This seems to be overshadowing the other work on technology transfer, MRV, capacity building and finance that is moving ahead so slowly.

Sixth, the human rights language that is still in the LCA text and the Durban documents seems not to be in a new proposal that is being discussed.

For decades the apartheid regime in South Africa subjected the majority of South Africans to insidious discrimination that had no basis in global morality or international law. The minority whites merely thought the black South Africans were inferior. The white South Africans  did not try to exterminate their black compatriots, instead they merely ensured that blacks laboured to maintain the standards of living of the white population.

Apartheid in South Africa was one of the greatest scourges to ever confront humankind. The inhumanity of apartheid focused international attention on the struggle to end racial discrimination. International treaties emphasized government's commitments to end apartheid in every aspect of daily life, including sports.

The black people of South Africa were, however, the individuals and communities that were finally able to overcome apartheid, through their own blood, sweat and tears they overcame odds stacked against them by the poverty, disease, and violence to which they were subjected.

A centre of their struggle was the Natal province and particularly its capital city Durban. Just short of the 25th anniversary of the defeat of apartheid in South Africa, Durban is again at the centre of aa struggle against discrimination for the humanity's future. The Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC and COP17) and its Kyoto Protocol (CMP7) are meeting in Durban to confront a new kind of discrimination. Instead of being confined to the people of one country, the discrimination related to climate change pits about one seventh of the earth's population against the other 85% of the people in the world. The 15% percent living mainly in the rich developed countries of the North seek to maintain the advantages they have gained by over two hundred years of over-exploitation of our planet's atmosphere. By doing so the 15% seek to subject the other 85% to a future of chronic under-development and in some cases poverty, disease, and unbearable environmental catastrophes.

Like the South African apartheid leaders, many of the 15% who seek impose this discriminatory double standard of existence refuse to admit that they are doing anything wrong. Some, for example, the United Kingdom's international development secretary Mr. Andrew Mitchell even boasts to the Financial Times about how well the UK is treating the poorer 85% by maintaining their commitment to provide 0.7% of national income to foreign aid to poor countries. Mitchell is silent about the fact that at the same time the UK is also failing to meet its obligations it undertook by ratifying UNFCCC in 1992, or more recently the Kyoto Protocol in 2005, or even more recently the pledges it made in December 2009 to provide new and additional funding to developing countries to help them to deal with climate change.

While the British are relatively apologetic about their discriminatory treatment of the 85%, other countries including the United States and Japan are less so. These two countries are among a handful of countries who have declared that they will not cut emissions unless developing countries also do so.In principle this sounds like a sound argument of treating all people equally. The problem is, however, that after two centuries of discriminatory treatment, treating developing countries the same as developed countries merely compounds the past discrimination.

Even the US Supreme Court has recognized in relation to minorities, blacks, and women, sometimes treating equally people who have been discriminated against for long periods of time merely perpetuates or at least does not adequately address a history of discrimination. Sometimes affirmative action is necessary. In fact, affirmative action is exactly what the legally binding UNFCCC calls for in paragraph 1 of article 3 by which States have agreed to "protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities."  

The article goes on to state that this means that "the developed country Parties should take the lead in combating climate change and the adverse effect thereof."According to the United States government, this understanding about obligations is wrong. They point to the fact that while China was an insignificant contributor of greenhouse gas emissions in 1992, today they are the largest contributor. But when emissions are calculated on a per capita basis, the United States and several of its developed allies again rise significantly past the Chinese. And when the cumulative emissions of States over the past two hundred years are calculated developing countries don't even feature on the charts which are exclusively dominated by developed countries. To treat developed and developing countries the same would defy the logical of both an individual-based approach as well as history. It would perpetuate the discrimination that has existed over decades against the 85% of the people in the world living mainly in developing countries that has been perpetrated by the 15% living mainly in developed countries.

Such equal treatment of unequals also violates the international law agreed upon by 194 States who have ratified the UNFCCC, more than have ratified the Charter of the United Nations. In other words, by ignoring their legal obligation to take the lead under on combating climate change developing countries are violating international law that protects everyone, not just the 15% and in doing so they are perpetuating a harrowing legacy of discrimination.Despite this clear indication of discrimination and despite the significant efforts that it has made to ensure something valuable is accomplished at the COP17, the South African government has failed to address this root cause of the impasse between developed and developing countries.  Having overcome its own legacy of discrimination it was well placed to express its concern about the failure of developed States to abide by their existing legal obligations  which perpetuate a situation of discrimination.

Surprisingly, even the UN High Commissioner for Human Rights, Ms Navi Pillay, herself a native of Durban and an avid anti-apartheid activist, and perhaps the person best placed to explain how discrimination can be overcome by affirmative action, shied away from coming to COP17. Her timidness might have been attributed to the vague UN Human Rights Council resolution on climate change adopted by consensus this past September. During the drafting of the resolution initiated by the Philippines and Bangladesh, two countries that are already significantly adversely impacted by climate change, a proposal by Bolivia, which was widely supported by civil society, to request the High Commissioner attend the Durban talks was rejected as too radical. Just days earlier the High Commissioner's Deputy had asked for guidance on the Office's engagement on climate change. The ambiguous silence by the Human Rights Council appeared to make the office even more timid about standing up for the human rights of people affected by climate change.

Similarly despite urging from civil society, the World Health organizations Director General Dr. Margreet Fung Chan is is standing unopposed for a second five year term at the helm of the UN's specialized health agency did not thin it worthwhile to make States aware that tens of millions of Africans could perish due to the increased health risks brought about by climate change. She too will not be in Durban, preferring to send a Director three levels her junior in the WHO and sending a message that the human consequences of climate change are not front and centre at the negotiations on international action.

Again, it is mainly people in vulnerable social and economic groups who will suffer from the adverse health effects of climate change and especially women and young children. Once again discrimination rears it ugly head due to our inaction on climate change. And once again we do not appear to be up to the challenge.

Even the more precise legal obligations in the Kyoto Protocol appear to be ridiculed, instead of respected, by some States. Canada, for example, announced at the opening of the Durban climate talks that it would not accept a new commitment period under Kyoto Protocol when the current emissions limits expire at the end of next year. In doing so the Canadian government seemed obvious to the apparent obligation to agree to a new commitment article 3, paragraph 9 of the Kyoto Protocol. This obligation at least requires that States act in good faith. Canada's action was an unambiguous manifestation of bad faith.

When South African President Jacob Zuma addressed the Informal Ministerial Consultations on COP17 in September of this year he warned that the leaders assembling in Durban for COP17 "need to provide leadership towards the future, not only based on self-interest, but also guided by the common good." The discrimination that underlies the lack of effective action on climate change is in the end perhaps the greatest threat to the common good.



*Dr. Curtis FJ Doebbler is an international lawyer, professor of law at Webster University in Geneva and the Geneva School of Diplomacy and International relations  and President of International-Lawyers.Org. He can be reached at curtis@doebbler.net.