Press Statement
Nord-Sud XXI and International-Lawyers.Org - 11 December 2011
 

States should take all necessary measures
to combat climate change

Durban, South Africa – Two days after the Global Climate Talks were supposed to have ended and after most delegates had already left, the talks finally came to a sputtering close with the adoption of a series of inconclusive texts. In light of this failure to take effective international action, International-Lawyers.Org and Nord-Sud XXI calls upon all States to use all necessary means within the UN system to take appropriate action to combat climate change.
                Of the several weak texts adopted by consensus by tired delegates, one contained a long-term plan of action that oddly appears to place the greatest part of the burden of dealing with climate change on developing countries that are the least equipped. Another text on emissions limitations contains no legal or quantified greenhouse gas emissions limitations. And a text creating the Green Climate Fund to combat the adverse impacts of climate change does not specify how the funds, which are estimated to be 100 billion USD a year by 2020, will be raised. None of the legally binding obligations for which the many developing States and environmental NGOs were calling, were realized.
International-Lawyers.Org and Nord-Sud XXI climate change expert Ms Margreet Wewerinke, however, pointed out that “It is beyond question that States have legal obligations to address climate change under the UNFCCC and the Kyoto Protocol.” She added that “[i]n Durban, we have once again seen a failure to fulfil these obligations. All States should therefore ensure that climate change becomes a priority in other United Nations forums, such as the Human Rights Council, and that the legal consequences of inadequate action are considered by the International Court of Justice.”
The UN Human Rights Council has already adopted three resolutions on human rights and climate change and could hold a Special Session on this issue in order to encourage States to take effective action. Special Sessions are a means by which the Human Rights Council can deal with urgent human rights issues.
In addition, the government of the Republic of Palau and the government of the Marshall Islands have both, at the highest levels in their respective governments, expressed their intention to request the UN General Assembly seek an Advisory Opinion from the International Court of Justice. If such a request is made all States will have the opportunity to provide written and legal opinions to the Court.

           For more information please contact: Office@International-Lawyers.Org or +41-79-304-4654 or +27-82-85856683

(States listed last speaker to first speaker)

Formal Plenary

Alternating back and forth between CMP and COP decisions with only a few concerns being expressed by Bolivia, Russia and Nicaragua all the decisions put forward were adopted by consensus.

Informal Stocktaking Plenary

Russia says he is not aware that any decision has been made and wishes to see it in writing

When the return she asks one of the States to speak...I think India. They say they agree on the text.

Chair suspends for 20 minutes.

DRC will support package.

Senegal support package.

USA calls for adoption of full package.

EU speaks again saying it is willing to discuss Norway and India's proposals for equity. 

Norway agrees equity is necessary and that developed nations need to do more...says package is equitable and calls for its adoption.

Gambia calls or legally binding instrument respecting CbDR. Not clear if he supports EU proposal?

Panama is willing to put in more work to get good text.

Chile supports EU proposal.

Cuba says text is not balanced.

Brazil calls for approving the text.

El Salvador congratulates South African for opening up process to all States. Calls for a legally binding agreement.  

Guatemala ....

Pakistan standing behind CbDR....backs adopting document.

Philippines makes a plea for saving KP referring to acitivists' efforts and need fo rlegally binding regime.

Bolivia wants legal regime that allows MRVs, but suggests that Indian Minister is inviting States to think about the link to sustainable development. Emphasizes historical responsibility. Need to be careful to build a regime that links poverty with emissions reductions.  

China calls for ensuring respect for CbDR. Says China is doing more than developed countries and is doing what legally binding treaties require, but developing States are not doing this.

Bangladesh starts by saying "this is a sad night." Disappointed that BAP has been dropped. Wants 2nd CP + LB "deal." appreciates GCF, AC, SC, LTF...but even they are flawed. Calls for agreeing on Chairs package.

Grenada says that if we are serious we must adopt a protocol or a legal instrument. Cannot accept term without limits.

India says climate action must be based on equity. Says it wants legal instrument based on UNFCCC and KP that respects CbDR. She makes impassioned plea for not reopenign the text.

Switzerland calls for adopting a legal instrument.

Colombia says it cannot accept anything less than a legal outcome or waiting until 2020. Says, "we do not accept package of LCA text." 

EU speaks first (Connie Hedegaard, the European Commissioner for Climate Action and former President of the now somewhat disgraced COP15 in Copenhagen). She pleads for new legal instrument, but does not mention that EU has essentially refused  to agree to a new commitment. She calls for adopting cuurent texts.

President calls number of pages (200+) an accomplishment.

At almost exactly 1 am on Sunday, 11 December 2011, the COP-CMP opens addressed by the South African Foreign Minister and President of COP17-CMP7 who pleads for unity invokling everything from guilty, responsbility, the memory of a dead colleague whose condolence book can be signed in the ICC lobby, and Nelson Mandela. It's an impassioned plea, but unlikely to be met by such impassioned action by delegates.

Now that the LCA and KP text have been sent to the COP-CMP some delegations are caucusing and NGO are speaking with delegates.

Speaking with a few African and Latin American countries it seems like everyone has serious concerns about the text, but few the backbone to block it. It is sad feeling so many delegations realizing what has to be done, so many delegatioins realizing that what they have done is insufficient.

At about 21:30 AWG-LCA opens working from FCCC/AWGLCA/2011/L.4.

Saudi Arabia criticizes text as putting more emphases on mitigation by developing rather than developed countries. Examples, (1) reporting guidelines for developed countries gone while in para. 41 strengthened reporting for developing countries, (2) developed now are urged to make loss-damage provisions, instead of stronger language of 'shall', (3) asks how SC (part IV) can be independent but operate under COP(?)...says text still needs some work before adoption....flexible on process.

Indonesia has "great concerns" and says text "has not adequate captured the important elements from two weeks of discussion in Durban" and which were in earlier text.

Bangladesh (speaking for LDC) says is is watered down but accepts text a tribute to chair for his long standing service to LCA (22 years).

DRC (African Group) says we need to go beyond merely "urging" countries to do more, says lack of balance on developed and developing countries' obligations and does not reflect CbDR; no clear long term finance; weak mitigation commitments for developed countries and strong commitments for developing countries.

Switzerland says text is weak, thin, "shared vision is nearly blind," but will accept document to promote larger goal of progress. Says we need to agree what is in text is safe, but accepts with regret.

Philippines has difficulties with text (1) not balanced on two tracks of BAP, unbalanced against adaptation, (2) finance also not balanced...where is money, weak language on long term finance and scaling-up. India agrees with concerns of developing countries and also specifically concerned with counting agricultural emissions and omission of trade--understand that trade discussion will be forwarded to next year. 

Tanzania agrees with text, but gives no reason.

Pakistan concerned that adaptation not given full status, SC also should have right to do independent evaluations, long term finance weak, and mitigation biased against developing countries.

Venezuela concerned with bias, (1) 60 paras. with developing countries obligations while only 30 with developed countries obligations, (2) mitigation for developing countries not consistent with CbDR, (3) biased towards market. Not happy with the text, we have to admit that this text is not adequate to go forward. 

Egypt supports DRC and Saudi comments and shares concerns of developing countries, but especially long-term finance which needs further discussion. 

The Gambia (LDCs) concerned about imbalance, long-term finance, but wants document adopted. China concerned with bias, including especially long-term financing and says text needs more work. 

Bolivia says document lacks balance and shares concerns of other developing countries, but agrees on advance on accountability. Points out that there are many obligations for developing countries and few for developed countries. Says CRP.39 is basis for discussion over next year. Says cannot accept document.

Nicaragua concerned with long-term financing, which it says comprises of only studies. Says financing is merely 'creative accounting trick'. Support BASIC ministers statement. Says financial help can't wait. Proposal for GCF has no definition of sources of financing.

UK (for EU) concerned with text, but willing to accept it.

Papua New Guinea concerned with text, but wants it to be basis of discussion in coming year.

Indonesia concerned with LCA making decision on new market based mechanisms and says does not want L.4 document adopted but transmitted for reconsideration next year.

Thailand not balance, weak developed countries compliance scheme. Asks for reconsideration of L4.

Malawi agrees with developing countries concerns.

USA focuses on what we have accomplished (1) GCF, (2) review modalities, (3) agriculture consideration...says we need to adopt text to not renege on Cancun agreement.

Ecuador echoes concerns about imbalance of text, concerned that no clear financing mechanism to provides money not merely form. Says earlier text was better. doe snot want text adopted.

Paraguay calls for completing BAP and ensuring 2nd commitment period for KP.

Kenya expresses concern about mitigation comparability of commitments and list concerns. Does not want text adopted.

Japan wants text adopted. Says text is not balanced but still wants it adopted.

Botswana supports DRC views and Egypt on finance and willing to allow it to be forwarded.

Chair says that he will forward the document to the COP with recommendation for adoption, although he recognizes many concerns. Report adopted.

AWG-LCA text sent to COP.

COP/CMP informal in 30 minutes.

At about 19:15 the AWG-KP began. There was a text and five annexes, but States are proposing numerous amendments to commitment period lengths and LULUCF provisions. No State has rejected it out of hand when the Chair breaks for 15 minutes at 19:55. when Chair tries to reconvene at 20:10 the EU ask for more time (10 mins.) to find consensus among their 27 member States. Australian withdraws its request to strength LULUCF provisions, says they have old text. Gambia (LDCs) asks to bracket para. 12 in FCC/KP/AWG/2011/L.3/Add.1. Russia rejects the brackets around 12bis and says they will not agree to text without brackets. Chair against suspends for 10 mins. for EU.  When they resume the EU proposes new language and dates that make commitment periods vague. Saudi Arabia tries to make proposes to strengthen Kyoto Protocol, but chair rejects. Venezuela (ALBA) criticizes chair for bowing to developing countries proposals and gets applause. EU asks if proposal will be put in text. Venezuela strongly criticizes this. Columbia, Kenya, and  Papua New Guinea recognize EU commitments too weak, but defend them anyway. Nicaragua says that almost all proposals it made in Ministerial consultation have been omitted from draft text goes through a list of concerns. Brazil makes statement of support for respect for views of Nicaragua, Bolivia, and Venezuela, but says text should go into to plenary under responsibility of the Chair. After cutting off any additional speakers and not allowing discussion of agenda point 3, the report of the AWG-KP was adopted and the session closed. KP text goes to CMD.

Now AWG-LCA to follow in a few minutes....but no new LCA text (still FCCC?AWGLCA/2011/L.4 from 9 December 2011)? 

At around 18:15 spoke with H.E. Ms. Bomo Edna Molewa, the South African Minister of Water and Environmental Affairs. She was very optimistic. She was waiting outside the Sabi Star room because she could not get in. She said the Chair was enforcing the rule very strictly that only two delegates per state were allowed in the room. She said, "Everyone is welcome to stay here as long as they want we will provide them the friendly African hospitality." She also said that the African Group was very united, but that the G77 was "more diverse" and therefore "not as united."

UNFCCC Secretariat arrives at Baobab with green-shirted young assistants carrying boxes of papers. Stocking keeping in more like pep-rally...but when the team is losing badly and time is running out. 

At 6 pm there was suppose to be President's stocktaking, but she is still involved in negotiations. Many negotiators are out of room getting something to eat and some going to Stocktaking. NGOs probably outnumber negotiator in the still about 600 people still at ICC. Proposals range from just going home after suspending the session, adopting whatever they reach and sending the rest to the next COP, rejecting everything which leaves us at stocktaking exercise on LCA and with four options for KP. One delegate told me that if they reject everything there will be more bracket and ten KP options by the time we look at it again.

Rio+20 Co-Chair Ambassador Ash says that they could continue in Rio. The prospect of a trip to Rio de Janeiro might be enough to halt negotiations. One delegate was overheard saying she is not coming back tomorrow if there is sunshine. Right now it is raining...both inside and outside the ICC.

The lack of trust runs beyond the State parties as NGOs and the UNFCCC itself are extremely cautious about sharing information with each other. States' negotiators are also giving increasingly generic answers. It is hard to see much progress in such an environment of distrust.

At about 14:30 an Indian negotiator emerged from the Kosi room where closed door negotiations are taking place to explain that there still were no numbers on the table in relation to mitigation pledges meaning that States are heading towards agreeing to new commitment periods under the Kyoto Protocol merely to empty them of any meaning. Several AOSIS members were very careful about saying anything of meaning. At about 15:00 a Nicaraguan delegate also lamented that they States were not yet negotiating mitigation numbers. And a Saudi Arabian said he thought the GCF was now agreed and it would have legal personality and be based in either Bonn or Geneva. At 4 pm still no COP as the hall's doors remain closed an guarded. For the first time in two weeks, Executive Secretary Figueres is nowhere to be seen. Although it is possible, the UNFCCC's lack of transparency prevents confirmation of this.

The new LCA text appears on the UNFCCC website this morning. The Shared vision has been cut from 81 paragraphs to 4. Gone is any mention of equity, historical responsibility, human rights, a climate court, Mother Earth or intellectual property. What is left is a rather meaningless reference to sustainable development. If this is adopted, the very principles of international climate change law will be significantly depleted. The mitigation section focuses on reporting, mainly by developing countries. REDD+ is unapologetically reaffirmed in an expanded text as are other market-based approaches.  A section on response measures also appears to have been elaborated slightly. It appears the form and membership criteria of the Adaptation Committee has been agreed. Long-term financing has been boiled down to seven vague paragraphs from several times this and essentially deferred. There are no real commitments contained in the text, except perhaps to continue to think about the issue. Technology transfer and capacity building seem to be the carrot that developed countries have thrown to the developing countries as both are expanded or contain some degree of commitments. The Review provision reiterate some of the UNFCCC principles but nothing more. Human rights are not considered. Reporting guidelines, biennial reporting and consultation guidelines and the indicative list of activities for the Adaptation Committee and Criteria for selecting hosts of CTCNI have been kept, but pruned. Annexes on long-term financing and a timeline for review have been omitted. It would seem as if the developed countries got most of what they wanted and developing countries little of what they need.

Overnight four texts emerged that appears to foreshadow not only the death of the Kyoto Protocol, but also the most fundamental principles of the UNFCCC. As US delegates celebrated, the G77 met until almost daybreak to consider what, if anything could be done to save the text, short of all out rejection.

It also emerged that developing States were being advise voluntarily by American lawyers who sometimes appeared put their own interests over those of the States. For example, the lawyers appear to have advised States to accept REDD+ as a fait compli when REDD+ had raised significant concerns from G77 and African countries.