Imagine a society in which murderers decided that murder was legal. It wasn’t that they actually changed the law; they just ignored them and argued that the laws should be changed. Imagine a community in which the rich governed the poor as slaves, denying them the most basic necessities of life. Imagine a world in which the horrors of genocide on a scale involving the lives of hundreds of millions of innocent people, dwarfing the atrocities humankind has committed in the past, were passively accepted. Or a world where human rights are violated on such a massive scale as to make them irrelevant.
Such a world might sound horrifying, and indeed it must be to any rational person, yet even as you are reading this article such a world is unfolding in our midst. Moreover, there seems to be very little concern about it from our leaders in the global North. Meanwhile, our leaders in the global South seem incapable of doing anything to stop it. This is the feeling one gets attending the global talks known as COP18 that kicked off this week in Doha, Qatar, and that will run until 7 December.
The threat that states will be discussing at COP18 is not the work of a deadly new plague or some new global despot. It does not even come from the threat of nuclear annihilation that would bring sudden death. It comes from the creeping threat of something we have studied for decades; something we understand with about 95 per cent certainly; something for which we know the cause and the remedy; and something that is created by human beings. It is the threat posed by the changes in our global climate. The Doha talks, COP18 or the 18th meeting of the Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), is about climate change.
Climate change is such a serious threat that in 1992 more nations than signed up to the Charter of the United Nations signed up to the UNFCCC. They did so “acknowledging that change in the Earth’s climate and its adverse effects are a common concern of humankind.” And in this legally binding treaty the entire global community unambiguously agreed that their “ultimate objective” was to protect us from dangerously destroying the very air that we breath and on which we depend to grow food and nurture our children. They further agreed that action should be taken before it is too late.
When the UNFCCC was adopted, the scientists were pretty sure that time was running out fast, but they were not exactly sure of how fast. To try to clarify how much time we have left, we created the International Panel on Climate Change (IPCC), thousands of the world’s leading scientists who came together to evaluate virtually everything that is being written about the threats posed by climate change. Those scientists told us in 2007 that we need to act now.
The IPCC in its Fourth Assessment Report said that to really protect our atmosphere, emissions must peak by 2015. This means that mainly developed states must stop polluting by 2015. Instead, they have increased their pollution according to a recent United Nations Environment Programme (UNEP) report. Moreover, the UNEP says that the gap between what is being done and what needs to be done is growing. Emissions will then need to be cut by 50 per cent to 100 per cent by 2050 in order to continue to protect our planet’s atmosphere.
In addition, the World Bank reported this week that it is likely that temperature will rise twice as high as the 2°C level that is already considered dangerous. And the World Meteorological Organisation (WMO) noted that we have already surpassed the level of dangerous carbon dioxide that can be tolerated by our atmosphere.
As WMO Secretary-General Michel Jarraud put it in a statement issued with the report, the “billions of tons of additional carbon dioxide in our atmosphere will remain there for centuries, causing our planet to warm further and impacting on all aspects of life on earth. Future emissions will only compound the situation.”
In other words, according to the main international scientific body actually studying climate change in the field around the world, the main reason we need to cut our emissions so much and so quickly is that for the past 200 years we have polluted the air too much. As a consequence, it is not enough that we merely slow down; we actually have to reverse the damage that we have done and are still doing.
Moreover, past pollution has not been by accident or by everyone. Rich developed states have used the atmosphere beyond a sustainable pace to be able to achieve their own development. In the process they have left developing states underdeveloped. Worse yet, by refusing to cut their emissions today based on their historical contributions to global pollution they are denying developing states the chance to ever catch up to them and in some cases literally denying people in developing states the right to life.
This situation is about as close to mass murder as one can get, and then-G77 coordinator and Sudanese Ambassador Lumumba Stanislaus Di-Aping stated this clearly at the COP15 in Copenhagen, Denmark, when he said that if we do not act urgently we will be sending hundreds of millions of Africans to the furnaces to be killed by global warming.
The concept of historical responsibility is major part of the disagreement at the annual round of global climate talks in Doha. Rich developed states that have been identified in Annex I of the UNFCCC don’t want to take their historical responsibility into account. They don’t want to do this because they have contributed the most to polluting our planet over the past 200 years and thus have the greatest responsibility to remedy the situation. They don’t dispute the facts; they just don’t want to give up the privileges they accumulated through over-exploitation of the planet.
Developed states also appear to have little concern for the fact that they have already agreed to shoulder a greater responsibility for climate change in the legally binding UNFCCC. This treaty contains legal obligations requiring developed states to take a greater responsibility than other states.
This responsibility is expressed in the legal principle of common but differentiated responsibilities. According to this principle, developed states that are listed in Annex I of the UNFCCC have special obligations — legal obligations. These obligations include taking the lead in cutting back their emissions of greenhouse gases (GHGs) and providing developing states, or non-Annex I states, new and additional financing so they are able to adapt to the adverse impacts of climate change that can no longer be avoided.
The obligation to cut emissions is the subject of the Kyoto Protocol, which is one of two tracks that have been negotiated since states agreed to the Bali Action Plan at COP13 in 2007. States party to the Kyoto Protocol agreed to cut there emissions by pre-determined amounts that are relative to the contributions to greenhouse gases in the atmosphere that cause climate change. Because of the principle of common but differentiated responsibilities, the Kyoto Protocol obligations to cut emissions only apply to those states known as Annex I states, which are the developed states that have benefited from over-exploitation of the atmosphere.
It was very quickly realised that the Kyoto Protocol commitments were insignificant and would not protect the planet and its inhabitants from the worst effects of climate change. For this reason the Kyoto Protocol itself foresees states making new commitments by the end of 2012.
Almost every state in the world is party to the Kyoto Protocol although the United States and more recently Canada are important exceptions. These naysayers to the otherwise global consensus on GHG emissions reductions have recently been joined by Japan, New Zealand, Russia, and maybe Australia, who although parties to the Kyoto Protocol refuse to participate in a new commitment period. This refusal comes despite the fact that the Kyoto Protocol itself obliges state parties to agree to a new commitment period. These recalcitrant states just don’t seem to care what the law says.
Another track of negotiation agreed in Bali in 2007 was that of a plan or Long-term Comprehensive Action (LCA). This work is supposed to conclude with a blueprint for enhanced future action based on the UNFCCC. In particular, it is supposed to come up with equivalent commitments for states that are not parties to the Kyoto Protocol.
The LCA has made consistent progress. Nevertheless, developed states, especially those not party to the Kyoto Protocol or those that refuse to participate in the new commitment period, have blocked adequate action. For example, the United States with a few allies refuses to agree to meaningful commitments to cut their GHG emissions. Instead of commitments they want only “pledges” without any legally binding force and based on whatever they think is appropriate.
The US, the world’s second largest overall producer of GHGs, has made a unilateral non-binding pledge to cut its emissions by 17 per cent from 2005 levels by 2020. This cut is woefully short of what is needed. Moreover, a report by the PBL Netherlands Environmental Assessment Agency that was released at the Doha talks this week found that the United States is even unlikely to meet this pledge.
The largest group of developed States, which is itself a party to the UNFCCC, the European Union, has pledged to cut emissions by 20 per cent from 1990 levels by 2020. Like the United States, the EU is unlikely to achieve its pledge if carbon trading is not included and it should not be. Carbon trading allows rich states to buy the right to pollute from poorer, less developed states that would otherwise not pollute as much. It is zero sum game that runs expressly contrary to the UNFCCC’s goal of limiting dangerous levels of emissions. It also provides leverage by developed states over developing states to allow them to keep developing while suggesting that developed states should not develop. That developed states receive short-term resources from selling carbon credits is ironic as they are at the same time prevented from developing in the only way that is possible for them, which is by increasing their GHG emissions.
To date, what developed states have suggested as appropriate for their pledges to cut emissions have left the bulk of the burden on developing states. Instead of respecting the legal principles that they agreed to in the UNFCCC, developed states are both violating them and trying to change them to put the burden on states that have already suffered centuries of underdevelopment.
Other outstanding LCA issues that developed states refuse to even discuss include the impact of unilateral actions they are taking to protect themselves against the adverse impacts of climate change while failing to assist developing states to be able to do the same. Again, this is a legal obligation in the UNFCCC.
Similarly, developed states are blocking progress on the sharing of intellectual property that developing states require for cutting their emissions and for saving their people from the already unavoidable consequences of climate change. Once again, taking steps to facilitate technology transfer is a legal obligation in the UNFCCC.
The funding shortfall
One area that has experienced resistance from developed states, but which developing states and many NGOs have been pushing hard to have discussed, is loss and damage, which refers to compensation for the harms caused by climate change that can no longer be avoided. Although it is likely to be discussed in Doha, after several regional meetings have taken place to discuss it, there is unlikely to be much progress made. The reason for this is that compensation for loss and damage require recognition of duties to act. Although such duties exist, as indicated above, there is little will to act among developed states that would have to provide the compensation.
One way that developed states could address both the loss and damage that developing states will suffer, and technology transfer, is by providing adequate funds to developing states. To facilitate this, states established just this year the Green Climate Fund to be based in Seoul, South Korea.
Like the Global Environmental Facility established in the UNFCCC and to be replaced by the Green Climate Fund (because it was not effective enough), the new fund has woefully insufficient money available to it. Developed states have not even made good on their promises of $30 billion in fast track new and additional funding, or re-committed to provide the $100 billion they committed to providing three years ago.
A recent Oxfam report entitled “The looming climate ‘fiscal cliff’” claims that two-thirds of the money pledged by developed states is really repackaged aid already given and not the “new and additional” funds the UNFCCC requires. Moreover, the report points out that the Green Climate Fund has been left largely an empty shell without adequate funds.
The combination of developed states’ failure to act to limit emissions and their failure to provide new and additional financing to developing states shows extraordinary disdain for existing international law, even while they are busy violating it.
For this reason, perhaps, developed states have favoured an approach agreed in general at COP17 in Durban, South Africa. According to developed states, this approach calls for closing the Kyoto Protocol and LCA tracks and focusing on an entirely new plan that does not abide by the already agreed UNFCCC legal obligations.
This new plan would treat rich and poor equally. Developing states would have burdens equivalent to those of developed states. It would lead to a world in which the people of developing states would not only bear unfair burdens, given the far lower levels of development their states have achieved or been permitted to achieve, but where “equivalent burdens” would mask developing states’ citizens paying for the development of developed states. It would lead to 100 million Africans being killed by our inaction on climate change by the end of this century.
Unless developing states can prevail and convince the minority of the world (its developed states) that they have benefited long enough and that now is the time for them to share, the world described in the first paragraph of this article might be the reality that we leave for future generations, some of whom are already born and others who are not yet born. These future generations might be faced with the impacts of discrimination against the most vulnerable that could make past genocides pale in comparison. The thought is as horrifying as is the reality of our inaction on climate change. But does anyone really care?
The writer is president of INTLawyers, a Geneva based NGO promoting global justice.