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.

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
 

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
 

From an article published in Counterpunch.org on 22 December 2014 by CFJ Doebbler

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.