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Loss and Damage is Now a Necessity

Caring More or Less About the Climate

by CURTIS FJ DOEBBLER

Global climate experts and senior politicians from every country on Earth as well as thousands of activist gathered at the Annual Climate Summit or the 19th Conference of the Parties (COP19) of the United Nations Framework Convention on Climate Change in Warsaw, Poland between 9 and 22 November 2013.

The Annual Climate Summit brought together about 10,000 of the most senior government officials, senior scientists, and other experts, including activists, to lead action to protect the environment of the planet on which we live. They come together each year for two weeks to try to decide what coordinated action all States will take because we know if we do not act soon life as we know it will change and could even end much sooner than we had expected. Each meeting seems more urgent than the last. At COP19 this was emphasized by the natural disaster confronting the Philippines, a calamity that was even greater in terms of human costs than a similar event that struck this country during COP18.

Again at the opening of COP19, as he had done at COP18, the Philippines delegate appealed for action with tearful eyes as he described the tragedy in his country. This time he also pledged not to eat any food until an outcome was agreed. But again, delegates dragged their feet taking incremental steps towards adequate climate action that are leading to too little action too late.

Climate change is a natural phenomena, but it is also caused by human action. We know this from decades of studies measuring the effect of human action on our planet’s climate. The effect is that the planet is warming and this is causing significant interferences with individuals’ most basic human rights in all corners of the world. It is so serious that the UN has determined that climate change is the greatest challenge to the most fundamental human rights of the most people facing the international community during the rest of this century. Thus while COP19 is a climate conference it is also about protecting human beings.

Just a few weeks prior to COP19 the well-respected International Panel on Climate Change published its Fifth Assessment Report (AR5) evaluating what we know about the physical science of our planet’s atmosphere. The report said with almost complete certainty that climate change is taking place and that it is caused by the actions of human beings. This conclusion is not different from that of the past four reports, but it does emphasize the urgency of international climate action. Whether this alert is being heard is another question.

While most States participating in COP19 seemed to accept that climate change is now happening, the States most responsible for it over the past almost 200 years still refused to take adequate action to combat its most serious adverse effects. Instead year after year they have ended the Annual Climate Summit with weak watered down outcome documents that provide for very little actions despite the perennial cheers from State delegates when these documents are adopted. COP19 was no exception and as time is running out for effective action, the lack of action agreed in Warsaw was perhaps more pronounced than ever.

As much as COP19 had some strategic importance it was also one of somewhat silly, mundane and unnecessary controversy. The gracious Polish host, for example, seemed to view their commitment to their European neighbors and other primary trading partners, as more important than any climate action. They snubbed their noses at the very annual Climate Summit they agreed to host by simultaneously hosting the World Coal Summit. The clear message was that Poland wants to boost the European coal industry, one of the most destructive contributors to climate change, while can wait to take action to protect the atmosphere we all share. In true European fashion, Poland wanted to send the message that economic profit comes before protecting the human environment. This strange message harkened back to the hypocrisy that was at the foundation of European colonial thinking for centuries.

More surprisingly the Executive Director of Secretariat of the UN Framework Convention on Climate Change and UN Under-Secretary-General for climate change Costa Rican Christina Figueres also seems as concerned with ensuring the continuation of coal pollution as she did with dealing with climate change. She expressed this view by her scurrying over to the opening of the World Coal Summit after participating in the opening of COP19. Then she displayed her insensitivity to the human suffering caused by climate change by banning from COP19 three activists who held a banner drawing attention to to the suffering of the people of the Philippines who had just been subjected to a climate-related natural disaster that left more than 10,000 dead. Figueres had also authorized advertisements from some of the world’s largest polluters all over the facilities at Poland National Stadium in Warsaw where COP19 was held.

These sultry insults to the climate negotiations did have a silver lining of unintended consequences. Both the United States and China announced before COP19 that they were taking steps to cut their dependence on coal. They both justified their actions because of the damaging contribution coal burning makes to climate change. While the action of these powerful countries did not seem to faze either the UNFCCC chief or the Polish hosts, it did to rally some States to provide funds for action to deal with the climate damage that cannot be avoided.

Nevertheless as COP19 opened there was no consensus on any of the many proposals on the table to ensure that developed States, who have legal obligations in the UNFCCC cut their emissions to ensure that levels of carbon dioxide and other greenhouse gases do not rise further above the dangerous level they have already reached. Poland,  its European neighbors and other developed countries appeared primarily concerned about how to maintain the economic benefits that industrialization and over-exploitation of the atmosphere have bestowed on them for decades. Even the Polish youth and the ever powerful Catholic Church, despite a reform minded Pope, seem stuck in an industrial age driven by a segregated world.

To be fair this may not have been all the host’s fault, but perhaps merely business as usual. Since COP15 in December 2009 the Annual Climate Summits have turned out varied and often conflicting results. At COP15 Copenhagen developed countries tried to protect their advantages by trying to force an agreement on countries. Although it did not work, subsequent COPs in Mexico, South Africa, and Doha managed to ensure no more than limited progress towards combating the adverse impacts of climate change.

At each of these COPs developed countries urged that the responsibility for cutting emissions be shared more equally by developing States. Any progress towards the legally agreed objective of cutting emissions was thus held hostage by developed States who have benefited from centuries of excess pollution with threats of equal obligations that would handicap the development of the developing States. Developed States called this equity or merely said it was necessary, of course, without stating that they were defining necessity as the protection of their accrued benefits. Developing States’ demurs only resulted in draws in which developed States refused to take adequate action or to support developing States to take action to green their economies.

The principle of treating all States the same ignores the basic principles of the UN Framework Convention on Climate Change (UNFCCC) that differentiates between developed and developing States or Annex I and non-Annex I States. The Annex I States agreed to take on the historical responsibility for their actions. Such responsibility was morally, and is now legally, justified. Yet developed States seem to be having second thoughts as they are pressed by harder economic times. They seem oblivious to the fact that they still enjoy a significant advantage in development and that this advantage no small part accrued due to their ability to pollute without restraints.

Developed States argue in effect that if any progress towards ambitious emissions limits must be financially lucrative for them. Again this means that the States who have built up advantages through pollution are to be rewarded. It also means that developing States will suffer even more. In short, developed States want to remain developed while preventing developing countries from catching up.

This tug-of-war was behind the battles at COP18 held in Doha, Qatar in December 2012. It is also why COP18 ended with a whimper instead of resounding action. There was general relief that new commitment period under the Kyoto Protocol was adopted, but significant frustration at how weak the extension was and with the fact that it did not apply to some of the developed States that pollute the most. And since COP18 few States have actually ratified the Kyoto extension. As a result the Kyoto extension has been a Pyrrhic victory, but was perhaps better than a complete defeat.

At COP19 the same battles were fought. Developed States dangled the allure of REDD, Loss-and-Damage, a functoning Technology Centre, capacity-building, and financing in front of developing States. At the same time, developed States threatened not to fulfill their legal obligations in each of these areas unless developing States capitulated to their demands for taking even greater responsibility for cutting emissions of carbon dioxide. In large part the developed states prevailed.

It is ironic that combined, although developing States account for less greenhouse gas emissions, developing States are already voluntarily doing more to cut their emissions than their more developed counterparts. In addition, developing States are acting with much more serious consequences for their own development than developed States when taking similar actions.

One of the ways alleged to be a win-win is REDD, a UN-sponsored package of projects to encourage reforestation and combat deforestation. Without a doubt it is a good idea to protect our forests, but REDD tries to do it through economic incentives that don’t really combat climate change. Instead these incentives allow countries with forests to sell the benefits forest have as sinks—absorbing CO2—and the commitment not to cut down forests, which releases CO2  to developed countries or their transnational corporations. These ‘buyer’ then acquire the right to pollute themselves. Like other forms of carbon-trading it is usually a zero sum game. In other words, while the pollution due to deforestation is avoided, other forms of polluting our common atmosphere are allowed or sometimes even created.

At the same time, REDD often tramples the basic human rights of indigenous peoples. These peoples have often contributed the least to climate change, but they suffer the most. REDD significantly contributes to that suffering by making the divestment of land rights final and often irreversible and by converting the sacred land of indigenous peoples into a mere monetary commodity. Perhaps most unfairly of all, indigenous peoples offer us the answer to sustainable living. They have often lived in harmony with nature for centuries. REDD schemes often, however, mean that indigenous lessons and values are ignored in the name of profit or profit-driven economic development.

COP19 moved closer to making REDD an inherent part of strategies to deal with climate change and a new climate agreement that is to be finalized by 2015 and go into effect in 2020. Many reservations remained about REDD, but with the help of the UNFCCC Secretariat, REDD inched closer to being a long-term reality. The UNFCCC Executive Director, a former carbon market lobbyist, has continuously touted REDD as a major part of the answer for dealing with climate change. After four COPs at the helm, however, she must realize that this is a false promise from which even REDD proponents shy away. Nevertheless, for Ms Figueres REDD is a major part of the answer and indigenous peoples and their knowledge and experience count for little.

Even States that oppose REDD’s commodification of the environment seemed eager at COP19 to get some money from it. For that reason States adopted no less than seven decision moving REDD forward. To try to put the impression of some success on their efforts developing States highlighted the fact that new market mechanisms were not emphasized and that lip-service was given to considering non-market approaches. At future climate meetings debates are sure to continue about how both new market and non-market approaches should play a role and much attention should be given to the existing approach to REDD which is almost exclusively market oriented.

Another good idea that was high on the agenda in Warsaw is the compensation for loss and damage. It was the last substantive item to be decided at COP19.  It refers to a process for taking precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. It is another good idea, but it is also an idea that needs to be dealt with cautiously so as not to extinguish rights that States have under international law and so as not to provide States most affected by climate change yet another broken promise.

The irony of Loss and Damage is that it would not have occurred and a response would likely no have been needed if States had observed their obligations under the UNFCCC in good faith and in accordance with the objectives of article 2. In other words, if developing States had been assisted with adequate new and addition finance, capacity building and access to technology, many of them may not have suffered loss and damage or at least could have dealt with it. And if developed States had mitigated their emissions as required by the UNFCCC and its Kyoto Protocol the loss and damage that is being addressed may not have even occurred. Having missed the opportunity to prevent the adverse effects of climate change, Loss and Damage has now become a necessity.

In arduous negotiations developing States pushed for an independent Loss and Damage mechanism with integrity and financing. To make their point they walked out of marathon talk at around 4 a.m. on the last Tuesday morning implying that developed States were not negotiating in good faith. The next day, however, both sides sat down again. The final decision—the Warsaw international mechanism for loss and damage associated with climate change impacts—was not adopted until late Saturday afternoon. And when the text appeared it was clear that COP19 had agreed to an ambiguous compromise text in which it seemed that indeed a mechanism will be created, but that, as COP19 President Korolec described it, there is a mechanism that has yet to be defined. In addition, it appears as if the mechanism will be confined to adaptation matters under the Cancun Adaptation Framework.

Perhaps most dangerously for developing States, loss and damage may also turn out to be a way of extinguishing legal rights that they already have or trading these rights for illusionary promises of compensation from funds that do not even exists. No funding for the Loss and Damage mechanism was agreed and it was not even clear whether the mechanism would actually compensate countries. The decision itself merely mentioned “enhancement of support … including finance, technology transfer and capacity-building,” but these are all obligations that Annex 1 States already have, but have not honored.

It is the differentiation in obligations between Annex I developed States and non-Annex I developing States that characterizes the foundational principles of the UNFCCC that were agreed by all States in 1992. In the UNFCCC, States agreed to take on common but differentiated responsibilities based on their capabilities. This means that States that had polluted the earth’s atmosphere longer and more intensively agree to cut their pollution and pay for other to play their part. The States that have been the primary polluters for a very long time are listed in Annex I to the UNFCCC. Other States may be added as they develop, but taking into account there historical contributions as well as their per capita contributions. There were no similar obligations for developing States. This is what developing States want to change.

Changing this agreement, however, ignores several important facts. First, the developed States listed in Annex I of the UNFCCC still have significantly higher levels of development. It will still take some time, probably decades for developing States to catch up. Second, imposing emissions obligations on developing States without providing them the means to green their development can significantly handicap their development. Third, despite not having legally binding obligations to cut their emissions, collectively developing States have cut their emissions at greater rates than developed States. They have done this despite the failure of developed States to fulfill their obligations to provide adequate new and additional finance, capacity-building and easy access to the necessary technology.

For more than a decade developed States have dragged their feet with support for developing countries. They have refused to provide access to affordable technology. A Technology Executive Committee and the Climate Technology Centre and Network that had already been agreed upon are step forward. However, but with developed States still refusing to discuss intellectual property rights, whether adequate technology transfer will take place, as required by the UNFCCC, remains very uncertain.

Similarly, capacity-building appears to take place as much at UNFCCC meeting—which should be a negotiating forum—as it does in countries. Successive UNFCCC meeting have been workshop oriented, meaning that instead of negotiating States are still merely trying to understand the problem. Moreover, instead of their capacity being built developing States are still being drained of some of their most talented citizens.

At COP19 finance was a major issue for all States, but for different reasons. The developing States called for new and additional finance to be put on the table. The developed States balked. Although no less than seven decisions were taken on financing, except for the replenishment of the Adaptation Fund and the enhancement of REDD, only the most stingy and inadequate amount of funds materialized. And while States agreed to continue to discuss Long-term Finance, despite the remonstrations of the United States, but there was no plan for coming up with the promised 100 billion USD per year by 2020.

Perhaps the most noticeable accomplishment concerning financing was the recognition by the UNFCCC Secretariat that 100 billion USD was inadequate as real cost are likely to be over 1 trillion USD per year.

The financing gap is painfully apparent in variety of other ways. There is practically no money in the newly established Green Climate Fund or the Environmental Facility that was established under the UNFCCC. The Adaptation Fund, which is vital to developing States was scheduled to run out of funds next year before a 100 million USD replenishment was agree in Warsaw. In the last hours of the meeting, Poland’s deputy environment minister Ms Beata Jaczewska, announced that States had agreed to put 100 million dollars into the Adaptation Fund. She did not tell the gathered reporters that this figure was based on vague commitments and oral statements made by States. Whether this money will ever materialize and especially whether it will be new and additional money from donors is a question that still begs an answer.

The pledges certainly did not seem to impress the Polish hosts. As COP19 was coming to an end, on the next to last day, the COP President and Polish Environment Minister Marcin Korolec was fired by his government so that, according to Prime Minster Donald Tusk his government could undertake a “radical acceleration of shale gas operations.” In other words, Minister Korolec’s meagre defense of the environment seemed to be at odds with his government’s intention to support a polluting fossil fuel industry.

This Polish action seemed to set off a fury of environment bashing happenings. The United States announced that it was refusing to announce emissions reductions for further two years and a Canadian delegate tweeted that his delegation was acting to protect the Canadian people, implying that Canada did not care at all about the rest of the world. Japan and Australia had already added their voices to this embarrassing show of insincerity to deal with climate change by announcing that they backing away from commitments they have already made. Some observers were left asking if COP19 had not taken us backwards. Hundreds of the largest environmental NGOs answered this question by walking out of COP19 a day before it ended.

Nevertheless, the Polish hosts, working closely with Peru and France, the two future hosts in 2014 and 2015, hammered out an agreement on the Durban Platform for Enhanced Action so as to be able to keep working towards a new Protocol to the UNFCCC by 2015, to enter into force by 2020. The agreement, however, actually agrees to little and to nothing binding. In fact, the agreement takes a step back from the legal obligations agreed to in UNFCCC. Referring to “voluntary cooperation” and calling for both developed and developing States to submit emission reductions plans, although the UNFCCC only makes this an obligation for Annex 1 (developed) States. What consequence this vague break from the parameters of equitable differentiated contributions will have is yet to be determined, but several developed States were already touting it as having broken down the firewall between Annex 1 and non-Annex 1 States. If developing States are saddled with too heavy burdens then many of their citizens will perish from the damage caused by lack of development, perhaps even before the adverse effects of climate change impact them.

COP19 finally ended Saturday evening, 23 November, about 24 hours later than planned. Although UNFCCC officials and States tried to paint it as a success, most more neutral observers were critical. Friends of the Earth issued a press release stating, “This summit has been shrouded in farce—dominated by rich, industrial nations who have put the interests of big polluters first. They leave Warsaw with an agreement that will allow them to do as they please.” This assessment echoed that of most environmental NGOs and some politicians. Canadian Green Party leader Elizabeth May, for example, asked “Is Warsaw the worst climate conference ever?”

COP19 is likely be remembered for the audaciousness of the greed and selfishness that some of the most developed, most powerful, and richest States showed in the face of a global challenge. The problem of agreeing on adequate action to address the adverse effects of climate action remains unresolved and with little progress being made towards a resolution for another year.

Warsaw was hostile territory, but neither Lima, Peru, where next year’s COP20 will be held, nor Paris, France where the text of new protocol to the UNFCCC that is to enter into force by 2020 is suppose to be agreed, are much better venues. At his closing press conference on Saturday evening the Polish COP19 President Marcin Korolec acknowledged that both Peru and France deserved credit for the outcome of COP19. This does not bode well for the next two opportunities that States have to try to protect our planet and its people from the dangers of climate change. If as much progress as was made in Warsaw is made in Lima and Paris, our failure will be felt to a much greater extent than has been this year.

Dr. Curtis Doebbler is a international human rights lawyer who has been following the climate talks since 2007 and has published several articles in peer reviewed law journals on the responsibility of States for the human rights of victims of climate change.