For decades the apartheid regime in South Africa subjected the majority of South Africans to insidious discrimination that had no basis in global morality or international law. The minority whites merely thought the black South Africans were inferior. The white South Africans did not try to exterminate their black compatriots; instead they merely ensured that blacks laboured to maintain the standards of living of the white population.

Apartheid in South Africa was one of the greatest scourges to ever confront humankind. The inhumanity of apartheid focused international attention on the struggle to end racial discrimination. International treaties emphasised governments’ commitments to end apartheid in every aspect of daily life, including sports.

The black people of South Africa were, however, the individuals and communities that were finally able to overcome apartheid, through their own blood, sweat and tears they overcame odds stacked against them by the poverty, disease and violence to which they were subjected.

A centre of their struggle was the Natal province and particularly its capital city Durban. Just short of the 25th anniversary of the defeat of apartheid in South Africa, Durban is again at the centre of a struggle against discrimination and for the humanity’s future. The Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC and COP17) and its Kyoto Protocol (CMP7) are meeting in Durban to confront a new kind of discrimination. Instead of being confined to the people of one country, the discrimination related to climate change pits about one seventh of the earth’s population against the other 85 per cent. The 15 per cent living mainly in the rich developed countries of the North seek to maintain the advantages they have gained by over 200 years of over-exploitation of our planet’s resources and atmosphere. By doing so the 15 per cent seek to subject the other 85 per cent to a future of chronic underdevelopment and in some cases poverty, disease, and unbearable environmental catastrophes.

Like the South African apartheid leaders, many of the 15 per cent who seek impose this discriminatory double standard of existence refuse to admit that they are doing anything wrong. Some, for example the UK’s international development secretary, Mr Andrew Mitchell, even boast to the Financial Times about how well the UK is treating the poorer 85 per cent by maintaining their commitment to provide 0.7 per cent of national income in foreign aid to poor countries. Mitchell is silent about the fact that at the same time the UK is also failing to meet the obligations it undertook by ratifying UNFCCC in 1992, or more recently the Kyoto Protocol in 2005, or even more recently the pledges it made in December 2009 to provide new and additional funding to developing countries to help them deal with climate change.

While the British are relatively apologetic about their discriminatory treatment of the 85 per cent, other countries including the United States and Japan are less so. These two countries are among a handful of countries that have declared that they will not cut emissions unless developing countries also do so. In principle this sounds like a sound argument of treating all people equally. The problem is, however, that after two centuries of discriminatory treatment, treating developing countries the same as developed countries merely compounds the past discrimination.

Even the US Supreme Court has recognised in relation to minorities, blacks, and women that sometimes treating equally people who have been discriminated against for long periods of time merely perpetuates —or at least does not adequately address —a history of discrimination. Sometimes affirmative action is necessary. In fact, affirmative action is exactly what the legally binding UNFCCC calls for in paragraph 1 of Article 3 by which states have agreed to “protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.”

The article goes on to state that this means that, “the developed country Parties should take the lead in combating climate change and the adverse effect thereof.” According to the US government, this understanding about obligations is wrong. They point to the fact that while China was an insignificant contributor of greenhouse gas emissions in 1992, today it is the largest contributor. But when emissions are calculated on a per capita basis, the United States and several of its developed allies again rise significantly past the Chinese. And when the cumulative emissions of states over the past 200 years are calculated, developing countries don’t even feature on the charts, which are exclusively dominated by developed countries. To treat developed and developing countries the same would defy the logical of both an individual-based approach as well as history. It would perpetuate the discrimination that has existed over decades against the 85 per cent of the people in the world living mainly in developing countries that has been perpetrated by the 15 per cent living mainly in developed countries.

Such equal treatment of unequals also violates the international law agreed upon by 194 states that have ratified the UNFCCC —more than have ratified the Charter of the United Nations. In other words, by ignoring their legal obligation to take the lead on combating climate change, developing countries are violating international law that protects everyone, not just the 15 per cent, and in doing so they are perpetuating a harrowing legacy of discrimination. Despite this clear indication of discrimination and despite significant efforts that it have made to ensure something valuable is accomplished at COP17, the South African government has failed to address this root cause of the impasse between developed and developing countries. Having overcome its own legacy of discrimination, it was well placed to express its concern about the failure of developed states to abide by their existing legal obligations, which perpetuate a situation of discrimination.

Surprisingly, even the UN High Commissioner for Human Rights, Ms Navi Pillay, herself a native of Durban and an avid anti-apartheid activist, and perhaps the person best placed to explain how discrimination can be overcome by affirmative action, shied away from coming to COP17. Her timidity might have been attributed to the vague UN Human Rights Council resolution on climate change adopted by consensus in September. During the drafting of the resolution initiated by the Philippines and Bangladesh, two countries that are already significantly adversely impacted by climate change, a proposal by Bolivia, which was widely supported by civil society, to request the high commissioner attend the Durban talks was rejected as too radical. Just days earlier the high commissioner’s deputy had asked for guidance on the office’s engagement on climate change. The ambiguous silence of the UN Human Rights Council appeared to make the office even more timid about standing up for the human rights of people affected by climate change.

Similarly, despite urgings from civil society, the World Health Organisation’s director general, Dr Margreet Fung Chan, who is standing unopposed for a second five year term at the helm of the UN’s specialised health agency, did not think it worthwhile to make states aware that tens of millions of Africans could perish due to the increased health risks brought about by climate change. She, too, will not be in Durban, preferring to send a director three levels her junior in the WHO, giving a message that the human consequences of climate change are not front and centre in negotiations on international health action.

Again, it is mainly people in vulnerable social and economic groups who will suffer from the adverse health effects of climate change —especially women and young children. Once again, discrimination rears it ugly head due to our inaction on climate change. And once again we do not appear to be up to the challenge.

Even the more precise legal obligations in the Kyoto Protocol appear to be ridiculed, instead of respected, by some states. Canada, for example, announced at the opening of the Durban climate talks that it would not accept a new commitment period under the Kyoto Protocol when the current emissions limits expire at the end of next year. In doing so, the Canadian government seemed oblivious to the obligation to agree to a new commitment as stated in Article 3, paragraph 9 of the Kyoto Protocol. This obligation at least requires that states act in good faith. Canada’s action was an unambiguous manifestation of bad faith.

When South African President Jacob Zuma addressed the Informal Ministerial Consultations on COP17 in September he warned that the leaders assembling in Durban for COP17 “need to provide leadership towards the future, not only based on self-interest, but also guided by the common good”. The discrimination that underlies the lack of effective action on climate change is in the end perhaps the greatest threat to the common good.

The writer is an international lawyer, professor of law at Webster University in Geneva and the Geneva School of Diplomacy and International Relations.

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