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.
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.