On the eve of the opening of COP17 in Durban, South Africa there are mixed expectations as new and improved Kyoto Protocol emissions commitments by developed States rise to the top of the agenda. But just behind are concerns about State responsibility, financing, technology transfer, and a long-tern strategy for dealing with climate change.

Expectations from developing countries, about 80% of the those countries participating in COP17, are increasingly focusing on the consensus that new emission limits need to be agreed to go into effect immediately after the current de minimus limits expire at the end of 2012. These countries are increasingly emphasizing the scientific and legal requirement to agree to such new limits and the error and even illegality of the developing countries' arguments against a new commitment period.

For example, developing countries point out that article 3, paragraph 9, of the Kyoto Protocol requires States to agree to a new commitment period. Therefore, States that fail to do so are acting in bad faith and in violation of their obligations under the Kyoto Protocol. This includes all the developing States that are refusing to agree to a new commitment period, except the US that has not ratified the Kyoto Protocol. The US, developing States argue, is also in violation of its international obligations but under the UNFCCC, which requires States to limit the release of greenhouse gases into the atmosphere below dangerous levels and based on the best available science. The US, by opposing any action based on the best available science and in accordance with the principles in the UNFCCC--which include the principle of common but differentiated responsibilities based on capacity and the principle that developed countries must take the lead--is in violation of this treaty for failing to act in good faith to achieve its objectives, principles, or commitments.

The issue of State responsibility for climate change, especially for the consequences that will be unavoidable because of the failure of the international community to take effective action to prevent or mitigate climate change, will also feature on the agenda, if only because Palau and the Marshall Islands are preparing to seek an Advisory Opinion from the International Court of Justice via the UN General Assembly. This will be a request that all States will have to weigh in on in the coming year. Their positions vis-a-vis action in Durban will be relevant opinio juris that could affect their future international legal liability.

States will have another chance to come up with a new financing mechanism after the body mandated to come up with a proposal failed in its task. This will be an uphill battle given the huge costs involved in adaptation and mitigation (an estimated as much as 1 trillion USD per year by 2020) and increasing selfishness of developed States to keep the advantages they have gained by their hyper-exploitation of the planet's atmosphere for more than two centuries.    

With the clock ticking towards the time when it will be too late to save the planet's atmosphere, States still could not come to an agreement in Panama to take adequate action to address climate change.

Instead gaps between the action that States are willing to take and what is needed to protect the planet’s atmosphere from dangerous levels of greenhouse gases remains. Developed States claim that some of the fast growing developing States (especially Brazil, China and India) should do more to cut their emissions. The developed States that make these claims usually fail to mention that the UNFCCC puts the main burden on developed States, that these developing States have contributed very little to climate change throughout history, that these developing States still contribute very little per capita, and that even today these developing States are cutting their emissions more than developed States. In other words, it appears that developed States seek to perpetuate an inequitable world where they can pollute and develop more than the States that have in the past and are suffering the most from pollution today.  

So too does a gap remain between the financing needed to help developing States adapt to climate change and to ensure adequate mitigation. An estimate as high as 1 trillion USD is needed per year to adequate adaptation and mitigation. In Copenhagen and again in Cancun State agreed to provide 100 billion (10% of 1 trillion) USD per year by 2020 in new and additional financing and 30 billion in fast-start financing. To date only about 10 billion has been pledged and only about 7.5 billion has actually materialized and only about 3 billion I s new and additional financing. Moreover, almost daily this financing gap is growing as inadequate action is being taken on mitigation.

The lack of progress in Panama bodes badly for COP17 that will take place in Durban, South Africa starting on 29 November 2011 and lasting for two weeks. It will be the last chance for state to agree to new legally binding emission limits as is mandated by the Kyoto Protocol. Without such limits there will be no meaningful legal obligation for State to cut their emissions after 2012.

The Durban COP is looking increasuingly as an emergency session, when Sattes will have their last chance to decide if they will save the planet for future generations.

States ranging from the G77 to the European Union to the African, Asian and AOSIS are voicing strong support for new commitment periods under Kyoto.

The US (which has remained outside Kyoto) as well as China, Russia and Japan continue to block progress on establishing a new commitment period. Some frustrated delegates have suggested that the rest of the world go ahead with a new commitment period and leave these four States behind, also ensuring that they are penalized by the rest of the world for their failure to cooperate. The European Union a close trading partner of the US and Russia does not seem to support this approach.

Developing countries, which make up the overwhelming majority of countries in the world, are pushing hard to main the principle of common but differentiated responsibilities that was agreed to in article 3 of the UNFCCC.

Developing States have also been pushing for discussions and decisions about how adaptation and mitigation will be financed. Developing States, citing the lack of fast start financing that had been promised but not delivered after Copenhagen (2009), want better means of monitoring that developed countries live up to their pledges. Developed States only want to discuss the governing mechanisms for any financing. 

South Africa, the host of COP17, has its Minister International Relations and Cooperation , Ms Maite Nkoana-Mashabane, attending the meetings. South Africa has also made a calls, joined by the 136 State G77+China, for text to be drafted that can be discussed in Durban starting 28 November 2011 at COP17.

Both closed door and open (observer NGOs admitted) discussions are taking place in Panama, but few plenaries. BINGOs are holding some extravagant receptions to ensure business interests...often over environmental interests. 

Some ENGOs appear to be less supportive of an outcome based on the UNFCC and Kyoto regimes. CAN, a mainly US based NGO, wants G77+China to make concessions, apparently putting the burden for dealing with climate change on developing counts who have benefited the least over the last 150 years and suffered the most.

Other ENGOs are consistently pushing for respect for the UNFCC and Kyoto regimes. For example, TWN supports the regime agreed to in the UNFCCC, which puts a higher burden on developed countries to make the effort needed to cut emissions so as to prevent dangerous levels.   

Even as she attempted to congratulate and encourage the Technology Executive Committee (TEC) that has been formed to assist in technology transfer between countries, Ms Christiana Figueres, the conservative former business lobbyist and Costa Rican Executive Secretary of the UNFCCC said that the chair and vice-chairs should treat all view equally, but failed to recognize that the overwhelming number of State (and therefore views) come from the global South. By recommending that all views be treated equally she was in fact suggesting that the views of a few rich and powerful countries have as much weight as all the rest of the countries in the world. Such thinking is discriminatory and does not reflect the basic principle upon which the UN was established, which is the equal sovereignty of all States. Thus while Ms Figueres encouragement to the TEC is welcome, once again she has shown an inherent bias against the majority of the countries in the COP of the UNFCCC.

Earlier this year Ms Figueres attempted to lobby India on behalf of commercial industry. Such action have significantly discredited the UNFCCC head who took over after the Copenhagen Conference in 2009 in which the then Executive Secretary Evo de Boer was accused of being biased against the majority of the countries in the COP. 

The majority of State might be wondering if it is even possible to find an unbiased Executive Secretary for the UNFCCC who will recognize the views of the majority of States.

The preparatory COP17 meeting  continues in Panama through 7 October.

The 47-Member State UN Human Rights Council (HRC) adopted on Friday, 30 Septmber 2011, a resolution on Human Rights and Climate Change by consensus (without the need for a vote). The resoution had 45 co-sponsors, Bolivia, the government that has led the international community on climate chnage did not co-sponsor it.

The resolution calls for a seminar to be hled before the 19th HRC in March 2012, but with the report to be presented to the 20th HRC in June 2012 after COP17, UNCTAD XIII and Rio+20, all important meetings that will consider climate change.

The resolution does mention very breifly the HRC's own Social Forum in 2010 that focused on climate chnage and during which NGOs unanimously requested the HRC to appoint a Special Rapporteur or to create another special mechanism on climate change.

The Maldives, that has often supported the position of Western States who do not want strong action on climate change, through its British adviser, sought to stop the resolution, before finally agreeing to it. The Maldives, who had put climate change on the HRC agenda has recently sought to remove it from the HRC concerns, instead preferring to talk abou tthe more general subject of the environment.

A proposal by Bolivia to request the UN High Commissioner for Human Rights to attend COP17 was rejected by co-sponsors, even though the High Commissioner's deputy had requested guidance on her involvement in climate change. 

TEXT OF RESOLUTION:

The Human Rights Council,

       Guided by the Charter of the United Nations, and reaffirming the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Vienna Declaration and Programme of Action,

       Bearing in mind that 2011 marks the twenty-fifth anniversary of the Declaration on the Right to Development,

       Recalling its resolutions 7/23 of 28 March 2008 and 10/4 of 25 March 2009, on human rights and climate change, and 16/11 of 24 March 2011, on human rights and the environment,

       Reaffirming the United Nations Framework Convention on Climate Change and the objectives and principles thereof, and emphasizing that parties should, in all climate change-related actions, fully respect human rights as enunciated in the outcome of the sixteenth session of the Conference of the Parties to the Convention,

       Reaffirming also the commitment to enable the full, effective and sustained implementation of the United Nations Framework Convention on Climate Change through long-term cooperative action, now, up to and beyond 2012, in order to achieve the ultimate objective of the Convention,

       Reaffirming further the Rio Declaration on Environment and Development, Agenda 21, the Programme for the Further Implementation of Agenda 21, the Johannesburg Declaration on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development, and recognizing that human beings are at the centre of concerns for sustainable development and that the right to development must be fulfilled so as to equitably meet the developmental and environmental needs of present and future generations,

       Welcoming the decision to organize, in June 2012, the United Nations Conference on Sustainable Development in Rio de Janeiro, Brazil, and taking note of the invitation of the General Assembly, in its resolution 64/236 of 20 December 2009, to organizations and bodies of the United Nations to contribute to the preparatory process for the Conference,

       Recognizing the challenges of climate change to development and to the progress made towards the achievement of the Millennium Development Goals, in particular with regard to the goals on the eradication of extreme poverty and hunger, on environmental sustainability and on health,

       Acknowledging that, as stated in the United Nations Framework Convention on Climate Change, the global nature of climate change calls for the widest possible cooperation by all countries and their participation in an effective and appropriate international response, in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions,

       Acknowledging also that, as stated in the United Nations Framework Convention on Climate Change, responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter, taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty,

       Reaffirming that all human rights are universal, indivisible, interdependent and interrelated,

       Taking note of the report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights, the panel discussion on the relationship between climate change and human rights, held on 15 June 2009, at the eleventh session of the Human Rights Council, and the 2010 Social Forum, which focused on the relationship between climate change and human rights,

       Emphasizing that climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights, including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and the right to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence,

       Expressing concern that, while these implications affect individuals and communities around the world, the effects of climate change will be felt most acutely by those segments of the population who are already in vulnerable situations owing to factors such as geography, poverty, gender, age, indigenous or minority status and disability,

       Recognizing that climate change is a global problem requiring a global solution, and that effective international cooperation to enable the full, effective and sustained implementation of the United Nations Framework Convention on Climate Change in accordance with the provisions and principles of the Convention is important in order to support national efforts for the realization of human rights implicated by climate change-related impacts,

       Affirming that human rights obligations, standards and principles have the potential to inform and strengthen international and national policymaking in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes,

       1.             Reiterates its concern that climate change poses an immediate and far-reaching threat to people and communities around the world and has adverse implications for the full enjoyment of human rights;

       2.             Requests the Office of the United Nations High Commissioner for Human Rights:

       (a)           To convene, prior to the nineteenth session of the Human Rights Council, a seminar on addressing the adverse impacts of climate change on the full enjoyment of human rights, with a view to following up on the call for respecting human rights in all climate change-related actions and policies, and forging stronger interface and cooperation between the human rights and climate change communities;

       (b)           To invite States and other relevant stakeholders, including academic experts, civil society organizations and representatives of those segments of the population most vulnerable to climate change, to participate actively in the seminar;

       (c)           To invite the secretariat of the United Nations Framework Convention on Climate Change, the United Nations Environment Programme and the United Nations Development Programme to help organize the seminar, informed by the best available science, including the assessment reports and special reports of the Intergovernmental Panel on Climate Change;

       3.             Decides that the seminar will build on the previous work of the Human Rights Council and its mechanisms, such as the Social Forum and relevant special procedures, while taking into account the outcome of the sixteenth session of the Conference of the Parties to the United Nations Framework Convention on Climate Change, held in Cancun, Mexico, in 2010, and any pertinent issues arising from the seventeenth session of the Conference of the Parties to the Convention, to be held in Durban, South Africa, in 2011;

       4.             Requests the Office of the High Commissioner:

       (a)           To submit to the Human Rights Council, at its twentieth session, a summary report on the above-mentioned seminar, including any recommendations stemming therefrom, for consideration of further follow-up action;

       (b)           To make available to the Conference of the Parties to the United Nations Framework Convention on Climate Change, at its eighteenth session, the summary report of the seminar;

       5.             Requests the Secretary-General and the High Commissioner to provide all the human and technical assistance necessary for the effective and timely realization of the above-mentioned seminar and summary report;

       6.             Decides to remain seized of the matter.