Playing With Fire in Bonn

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 and no action to protect people the world over resulted from these diplomatic chatter. In fact at the Bonn meeting no real conclusions were intended. The meeting was merely meant to explain the differences between States on what action should be taken to address climate change and to build their trust in each other, even if they continue to differ of what to do. Formally, the meeting was meant to launch the discussion of a new legally binding agreement to limited dangerous emissions and to find a way to ensure new and more ambitious action on cutting emissions. These two goals were agreed at COP17 in Durban, South Africa.

Officially the meeting was known as the second meeting of the Ad hoc Working Group on the Durban Platform for Enhanced Action or ADP2. The mandate for this meeting, as do all the inclusive global negotiations on climate change, emanates 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. Virtually ever country in the world has agreed to the first and an overwhelming majority of the world’s States have agreed to the second.

In the Kyoto Protocol States agree to act to prevent the adverse effects of climate change but cutting their emissions a certain level based on their current and historical emissions. 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 emissions of dangerous gases into the atmosphere. In addition, according to the Convention that was agreed to more than twenty years ago, developed States have an obligation to provide the resources that developing States require to protect their citizens from the already unavoidable consequences of climate change and to make humble contributions to mitigating their emissions.

The Convention has been agreed to by more States than have agreed to the UN Charter. Its Kyoto Protocol adds specific emission reduction targets to the obligations. The Protocol contains minimal legal obligations requiring developed States who benefited from over exploitation of the Earth’s atmosphere for decades to limit their emissions. Unfortunately, the emissions limits are not enough to prevent dangerous harm to the atmosphere, but even so they have often not been observed. And to add insult to the injury suffered by mainly developing States by the increased pollution of the atmosphere, several developed States 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. Developing States have contributed negligibly to the damage done to the atmosphere to date, yet they will suffer the most. Some States, like Canada and Japan, have withdrew from the Kyoto Protocol apparently because they fear the responsibility they will bear for failing to meet their emission limitation obligations.

As troubling, when the Kyoto Protocol’s first round of emissions limitation standards expired at the end of 2012, even more States refused to agreed to new limitations for as future period. They did this despite a flood of reports by credible scientific institutions indicating that climate change was threatening the very survival of human life on earth and that time was quickly running out for adequate action to be taken.

Delegates in Bonn seemed to be oblivious to this urgency. 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. Sometimes outside experts contributed, but none of them told the audience anything new. Through the week hardly anything was said that was have already know as States re-entrenched their positions.

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 States 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 States retorted that now they were having a hard time and that they expected developing States to do more.

As the differentiation between developed and developing States is embedded in the Convention. In effect what developed States were saying is that they are refusing to obey international law unless a new law is made that suited them.

Indeed, the ADP process is intended to create that new legally binding instrument, but the new agreement is to be consistent with and under the authority of 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 they rarely articulate it publicly, is because some developed States no longer think that they should bear the burden of the obligations they voluntarily accepted more than twenty years ago. Instead these States claim, developing States should have comparable obligations in a new treaty.

Most developing States in turn 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.

Even the rare innovative suggestions at Bonn were based on old proposals. For example, at one point the Philippines delegate suggested reconsideration of a proposal by Brazil that was made in 1997, before the Kyoto Protocol had ever been drafted. The Brazil proposal calls for the understanding of equitable apportionment of responsibility for climate change and means to enforce this responsibility by fines. The European Union responded by calling for reconsideration of a technical committee’s report on the Brazil proposal, in which several developed States had expressed their concern. The co-chairs agreed to post both the proposal (as well as new paper by Brazil elaborating upon it) and the committee report on the UNFCC ( website.

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. Some States have also already indicate they will not accept the new commitments.

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 States was again used in the form of th e enticement of the loss and damage concept. This concept refers to compensation to developing States when they suffer extraordinary harm from climate change. Developing States 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 States 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.

The ADP was a successor to the Ad Hoc Working Groups (AWGs) on Long-term Comprehensive Action and on the Kyoto Protocol. These AWGs were closed with the promise of a more ambitious and full inclusive action under the ADP. It was evident in Bonn at the second ADP meeting that at its core the problem remains the same. The rich developed States still are unwilling to limit their emissions in accordance with the rules they agreed to more than two decades ago. At the foundation of this unwillingness is a fear about giving up the high standard of living that developed States have acquired and thus sharing their development with the people of developing States who have been long exploited.

At the same time developing States appear to be developing more courage and losing patience with developed States. In the side-meetings of groups like the Like-Minded Developing States, the Africa Group, and even the usually more timid Association of Small Island States. In each of these groups internal meetings delegates indicated that they weer willing to take action without developed States consent and cooperation. They also implied that they would use other measures to ensure that developed States still paid their fair share. Whether this courage of developing States will translate 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. Time 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 a 100 million Africans in the rest of the 21st Century would be sent to the furnaces created by climate change. These developing States begged the international community not to make this mistake. Until today the international community has not heeded this warning and they are still playing with fire that could burn or even extinguish the lives of so many of the most vulnerable people on our planet.

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.

Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.