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Climate Change: the Unfinished Agenda

Between 1 and 11 June 2015 a crucial round of global climate talks took place in Bonn, Germany, under mostly clear skies and moderate Rhine valley temperatures. The setting was picturesque set far enough away from the power plants and strip-mining that characterizes the industrial region just to the north. The talks themselves were held at a shiny new International Conference Center build from the ground up on the site where former West German Parliament buildings stood before reunification and the exodus of most government institutions to Berlin.

In this comfortable setting there were no high expectations and no urgency. Delegates were upbeat, although few could exactly say why. Maybe it was the new conference center that was formally opened for the climate meetings, although it had already been used for climate meetings the year before. Maybe it was the spring weather that made Bonn and even greener city.

Despite the relaxed atmosphere, the meeting was formally known as 42nd meeting of the Subsidiary Bodies of the United Nations Framework Convention on Climate Change (UNFCCC) (known on Twitter by the hastag #SB42 or just SB42) had an urgent task. It was the forum in which significant progress was to be made towards a new climate agreement under the UNFCCC to ensure adequate action to prevent and address the adverse consequences of climate change.

Nevertheless, there was little sense of urgency about the fast approaching December deadline for arriving at a text that could protect the most vulnerable people on the planet from the adverse effects of climate change. Although civil society organizations had raised the alarm before the start of the ten days of meetings, even they seemed to be in a festively upbeat mood at the talks.

Certainly the Secretariat of the UNFCCC seemed constantly enthusiastic about the ‘positive progress’ that was being made in its public statements. This was despite the reality that negotiations for a new climate change treaty to replace the Kyoto Protocol to the UNFCCC, which were likely to be tediously complex and laborious and therefore falling further behind schedule, had not even begun by the end of this Bonn get-together.

When the December deadline for an adequate text was raised with State delegates, most would look down or turn their gaze away. It was as if one were raising an issue of which they were ashamed. And perhaps they had good reason. The planet was literally being destroyed by humankind’s over-exploitation and no adequate action was foreseeable to could stop this tragedy. Moreover the reason there was no adequate action was not due to lack of knowledge about what action should or could be taken. The delinquency was due to a lack of will by States.

Developing countries, despite their best efforts were being stifled by the unrelenting unwillingness of developed States to share the benefits of at least two centuries of over-exploitation of the atmosphere. Developed countries were worried that as the world changes and they can no longer defend their benefits with their armies or disproportionate economic power they would be forced to share their benefits. This developed countries claimed threatened to stagnate their own development. Developing countries and most of civil society characterized this as mere selfishness.

The Catholic Church appears to recognize this position in its just released Encyclical on Climate Change later also took in its morally important encyclical just issued. In paragraph 196 Pope Francis writes that “[r]educing greenhouse gases requires honesty, courage and responsibility, above all on the part of those countries which are more powerful and pollute the most.” This is something that he makes clear has been lacking to date.

The issue of sharing the benefits of our common atmosphere, both today, tomorrow, and as they had accrued historically, was a sticking point on which little or no progress had been made through the past decade of climate talks. It was the ‘elephant in the room’ that was often only indirectly discussed, but which everyone knew was casing the bottle-neck.

Instead, States have avoided direct confrontation on principle by spatting over less controversial words in a new agreement. As a result the draft text, which had begun to take shape at the last climate talks held in Geneva, Switzerland in February of this year was about ten times the length of the UNFCCC, under the auspices of which it was being drafted. The text is also riddled with bracketed paragraphs indicating no agreement has been reached. More importantly as the text currently stands after the Bonn talks, especially in light of its options for both voluntary and de minimus legally binding emissions reduction targets, it appeared to fall woefully short of providing for the action needed to address the adverse effects of climate change.

Already in 1992 when the UNFCCC was adopted it contained only vague obligations of mitigation that urged States to return their greenhouse gas emissions to 1990 levels. These obligations were almost immediately recognized as inadequate. As a consequence, within a few years work began on the Kyoto Protocol. The Protocol increased ambition on emission reductions, but even before it was finally adopted in 2005 its reduction limits were recognized as inadequate. Moreover, the various carbon trading system it introduced often created the impression that States were actually reducing emissions when in fact many States were merely buying the right to pollute the atmosphere from another State. Ironically, the State selling its right to pollute was often one that would not have used it anyway.

The Kyoto Protocol contained emissions limitations for developed countries that were to last until the end of 2012. According to its article 3, paragraph 9, States were required to begin negotiations in 2006 and to agree on new commitments at the end of these negotiations. At the annual climate summit in November 2012 in Doha, Qatar—the country with the world’s largest per capita greenhouse gas emissions—an amendment to the Kyoto Protocol was agreed as a bridging measure. This Doha Amendment was to be in force until 2020 by which time States will have negotiated as new agreement to replace or amend the Kyoto Protocol.

This roadmap had been agreed at Seventeenth Conference of the Parties (COP) meeting in Durban, South Africa the year before. Which created the Ad Hoc Working Group on the Durban Platform for Enhanced Action or ADP. The ADP is mandated to undertake two tracks of negotiations. The first is the track leading to a new legally binding instrument to ensure adequate emissions reduction ambition. The second it the track leading to enhanced ambition on emissions reductions before 2020.

This fury of action that was sparked in Durban was the result of several years of embarrassing inaction. COP15 in Copenhagen ended in acrimony when after the European hosts tried to introduce a pre-cooked package behind the backs of developing countries. The voluntary pledge package, whose practice still haunts the pre-2020 period was inconsistent with both science and the obligations States have under the UNFCCC. The inconsistency stems from the fact that developing States failed to take adequate action or even action that exhibited their leadership in emissions reductions of greenhouse gases as required by the UNFCCC.

The same unwillingness by developed States was on display at SB42. Despite publicity statements from the G7 and some of its member States before and during SB42 most developed States refused to agree to take adequate action on emissions or to help developing States take action. This was evident not only in Bonn, but by the voluntary commitments that had been made public by some developed States. These voluntary commitments were well below what was required to achieve the 1°C cap on temperature rises that would ensure manageable adverse consequences of climate change. The pledges were not even sufficient to achieve the ‘greater gamble’ with the planet’s future that a 2°C cap on temperature rises reflected. In short, the voluntary pledges failed much like was predicted by their critics in Copenhagen.

Furthermore, developed States blocked any discussion of a pre-2020 commitments, making the long-term mitigation gap left by their inadequate greenhouse gas emission reduction pledges even wider than it appears today. Instead, developed States sought to defer discussion of pre-2020 ambition, after having agreed to make it a second stream of discussion at the Durban COP in 2011.

Thus on mitigation little progress was made at SB42. On the crucial issue of what temperature cap is acceptable things seem to go in circle. While experts and reports indicated that science pointed at a maximum allowable temperature rise of 1.5°C and an optimal cap of 1°C, most developed States insisted on 2°C apparently ignoring the best available science. This led the exasperated Angolan delegate speaking for the Least Developed Countries in the closing session of SBSTA to note that for almost 1 billion of of the most vulnerable people people on the planet “the risks are just high … for a temperature increase of 2°C,” and to remind the State Parties that “[a] 2°C increase runs counter to the ultimate objective of the Convention” on Climate Change under whose auspices all the global climate negotiations are taking place and with which they must be consistent. He urged the State Parties to adopted “a 1.5°C pathway for the sake of humanity.”

To add insult to injury, the developed States refused to agree to providing adequate finance, capacity-building, and technology transfer as they had agreed to do in 1992 when they adopted the UNFCCC. The treaty itself calls on Annex I States or developing States to provide these three means of support to developing States. The support enables developing States to contribute to the mitigation of and adaptation to the adverse effects of climate change in a meaningful manner without significantly handicapping their own peoples’ development. Without the support the mitigation efforts of developing States will have to come at the expense of the development of their people. This is an unfair burden in the situation of unequal and inequitable development that exists today. A situation that exists in no insignificant part due to the over-exploitation of the planet’s atmosphere by developed States.

Developed States even refused to agree in writing to the commitment of providing US$100 billion per year, instead hinting that most of this money would come from private enterprise, which is a myth that has been disproved throughout the history of international finance.

The 2020 agreement is to be finalized by COP21. This meeting will be held in Europe, by regional rotation, in Paris, France from 30 November to 11 December 2015. COP21 will focus on a text to extend, amend, or replace the Kyoto text, but even this is not yet decided. Developed States blocked discussion of the legal nature of the text in Bonn. The focus at SB42 was rather on streamlining a text that had grown to 90 pages at the last meeting in Geneva in February 2015. The text presented late on 11 June was down to 85 pages, with most it still fashioned in alternative language. Indeed, agreement on the alternatives will significantly shorten the text. However, if strategies for reaching agreement on the few areas were progress was made are any indication of how this will progress there is little hope for an adequate text by December.

While references to protecting the fundamental human rights of all people appears in several paragraphs of the streamlined draft agreement, mainly in the preamble, their meaning remains ambiguous. Even if human rights remain in the final text it is unlikely their will be any accountability mechanism to enforce them. Little was said about the Climate Justice Tribunal that Bolivia called for at the last meeting of the Ad Hoc ADP Geneva and was demanded by civil society representing the Least Developed Countries in Bonn.

One issue on which agreement was reached after a half decade of negotiations was action concerning forests, known as REDD+ or Reducing Emissions from Deforestation and Forest Degradation, three outcome decisions were reached that are expected to be adopted at COP21. These decisions should institutionalize processes for supporting the protection of forests, which are vital to our atmosphere and our planet’s survival. However, the hard questions were either ignored or they were pushed aside to be considered in the future.

For example, the heated debates on how market or non-market mechanisms should be treated was resolved by merely lumping them altogether and thus deferring decisions on them to the States making use of the REDD+ facility both as donors and recipients. Indeed, and somewhat oddly, the parallel discussion on market or non-market mechanisms in the Subsidiary Body for Scientific and Technical Advice (SBSTA) was inconclusive. Safeguards related to REDD+ were also, although without any guarantees that adequate funding will materialize for both the carbon and non-carbon benefit-based forest activities. The REDD+ guidelines also ignored vital issues like the land rights of indigenous peoples.

Similarly the review of States mitigation actions between 2013 and 2015 was not concluded and will have to be taken up again in Paris. This will be too late for this discussion to meaningfully inform the action that need to be agreed to in the new agreement.

Guidance regarding the implementation of the Doha Amendment to the Kyoto Protocol that intended to be ratified by all the 194 States that have ratified the UNFCCC is unlikely to have much influence on the slow pace of ratifications that remains at just 32 States. Several States, in fact, emphasized specific language from the confusing legalese that characterized the guidance, each State apparently arriving at different conclusions as to how it applies.

Thus even where advances were made they appears to be Pyrrhic victories that fall far short of the action necessary to address the adverse effects of climate change on some of the most vulnerable.

Meena Raman of the Third World Network described the current state of the COP21 agreement as “being shaped to be an agreement with no teeth, with no meaning, with no hope, with no ambition and with no equity.” Echoing the call of G77 coordinator and Sudanese Ambassador from a half decade earlier, she warned that and “[i]f the content of the legally binding agreement is to do nothing that will condemn the world’s poorest.”

To date the urgent calls of civil society, to which now has been added the call of popular Catholic Pope Francis, have fallen on deaf ears. Tim is quickly running out to change this by COP21 in December, perhaps our last chance to provide for a sustainable future for our planet.

Curtis FJ Doebbler is a visiting adjunct professor of law at Webster University.

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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.

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