The following is a guest post by Jennifer Kelleher, LLB Law with European Studies (German and History), LLM in Comparative and European Laws. Jennifer previously interned at the Office of the Co-Investigating Judges in Cambodia and is currently working with the International Council of Environmental Law on Arctic Law and Policy.
Next month, 191 countries will come together in Copenhagen under the auspices of the UNFCCC (United Nations Framework Convention on Climate Change) to discuss climate change, global warming and the possibility of a legally binding treaty. With under a month to go and certain governments still unclear about what position they will take, is there still a possibility of a binding legal treaty to succeed the Kyoto Protocol and govern global warming and climate change successfully?
There has been optimism and pessimism in equal measure. The United Nations secretary general, Ban Ki-moon, has shown confidence that world governments will be able to come to an agreement. EU Council President Carl Bildt said that his climate change talks with the Indian government in New Delhi, with President Barrack Obama in the United States and with Russian leaders “indicated significantly that they had moved (in) the right direction, toward compromise, in the upcoming Copenhagen summit”. Chinese Foreign Minister Yang Jiechi has spoken publicly about reaching a “fair and reasonable” outcome. Jairam Ramesh, Minister for the Environment in India, has said that India is ready to discuss carbon emission reduction targets at Copenhagen.
At the other end of the spectrum, German Chancellor Angela Merkel has urged the United States and China to show their hands, saying that contributions from both are paramount and without their attendance, she may not even attend the meeting. The UK government has all but resigned hope for a legal treaty, with a spokesperson for the Department of Energy and Climate Change hoping now for a politically binding agreement. At the Asia-Pacific Economic Cooperation (APEC) meeting in Singapore over the weekend, Obama ceded that a binding treaty in Copenhagen would be out of the question opting instead for a political agreement with no decisions likely to be made on emissions targets and financing.
Scientific data currently shows how 50 billion metric tonnes of carbon dioxide enters the atmosphere annually from industry, power generation, transport and deforestation. According to the Intergovernmental Panel on Climate Change, an aggregate emission reduction by industrialised countries of between minus 25% and 40% over 1990 levels would be required by 2020 in order to ward off the worst effects of climate change. Global emissions need to fall by at least 50% by 2050. Even under this scenario, there would be an only a 50% chance of avoiding the most catastrophic consequences. There is a widespread consensus that global warming is urgent and binding action is timely. Impetus is placed on this conference more than others as policy makers are now working in the shadow of the 2012 Kyoto deadline. So what are the complications to signing a treaty?
Two issues stand in the way. Firstly, cutting emissions is proving a sticking point amongst the major players, namely India, China and the U.S. China hopes to follow a similar legal treaty as was laid out by the Kyoto Protocol meaning that rich “Annex I” countries would take the initiative when it comes to reducing CO2 emissions. Poorer, developing nations such as China and India would not be obliged to set their own mandatory targets until 2020 as they do not bear the same historic responsibility for climate change that developing nations do. However, China and India are now amongst the world’s largest producers of carbon dioxide, so to the U.S. a legal treaty adopting the measures of Kyoto would be inequitable. Crucially however, the Obama Administration must also show their support to even moderately cut emissions and commit to a deadline. UNFCCC Executive Secretary Yvo de Boer has stressed the urgency for the U.S. to announce a clear mid-term emissions target. To date, the U.S. has not shown any concrete action on cutting their emissions and Bush rejected the binding commitments of Kyoto insisting that capping greenhouse emissions on such a large industrialized nation would ‘hurt jobs’ and was ‘bad policy’. A bill that would for the first time set limits on greenhouse gases is currently stalled in the Senate. John Kerry, who helped to author the climate bill, concedes that it will not reach the Senate floor until next spring when even then 60 out of the 100 Senators will be needed to endorse it. Obama simply could not risk making America’s international promises before they are made at home. It leads to the question whether domestic U.S. policy can halt international action.
Secondly, cutting carbon is an expensive lengthy process, with a financial scheme needed for developing countries to make the transition to a low carbon economy. With the world emerging from a recession, climate change may not prove top of any governments’ financial agenda. Much of the legal infrastructure of the protocol is based on the principle, including the clean development mechanism, which allows developed countries to meet their CO2 targets by investing in clean projects in the developing world. The G20 Summit held last week at St. Andrews, UK provided an opportunity to discuss and fine-tune a budget for a potentially binding legal treaty. Finance ministers failed to reach any kind of concrete conclusion. There, U.K. Chancellor Alistair Darling urged those in attendance to treat climate change with the same urgency as the world economic recession. Aligning with the sceptics, Dr. Richard Dixon of WWF said “The G20 Finance Ministers meeting turned out to be a mostly irrelevant sideshow on the way to the talks in Copenhagen in a months’ time…If we are to keep the planet below the danger threshold of a 2ºC temperature rise, the rich nations of the world are going to have to help developing countries follow a low-carbon development path and help them cope with the impacts of current and future climate change. We wanted to see solid proposals on how the money would be raised, managed and distributed and an indication of how soon the countries most vulnerable to climate change will receive assistance. The G20 has failed to deliver and the real work will now have to be done at Copenhagen.”
Amongst the negotiators next month are those countries belonging to the Alliance of Small Island States (AOSIS) many of whom are low lying developing countries. Leon Charles, chair of the AOSIS indicated the dangers for those islands, “2ºC is really not a safe level for small island states. For many of them it would be like a death sentence in the long run.” Members of the Least Developed Countries (LDC’s) that includes 33 African States will also attend. Real effects of global warming already being felt in those countries range from sea level rise in Senegal to glaciers disappearing in the Rwenzori Mountains in Uganda. Other impacted effects due to more frequent droughts include food shortages, malnutrition, and famine. Lack of clean water and arable land can mean environmental refugees that in turn can lead to internal conflicts over water and land between different ethnic groups. A group of 11 countries calling themselves V11 urge larger nations such as the U.S. and China to attend Copenhagen. Bangladesh, Barbados, Bhutan, Ghana, Kenya, Kiribati, the Maldives, Nepal, Rwanda, Tanzania and Vietnam met in the Maldives and urged all countries to “redouble their efforts at reaching a binding, ambitious fair and effective agreement” in Copenhagen.
Despite the missed opportunity for signing a new legal treaty in 3 weeks time, there may be sense and sensibility in delaying a legal treaty for another 12 months. The thinking behind a 2009 deadline was to set the bar before the expiration of Kyoto in 2012, as was pledged by participants in Bali, Indonesia two years ago. However, the UNFCCC meeting at Copenhagen is an annual event and world leaders will meet again next year in Mexico or Germany.
WWF has offered an ideal template for the deal saying that “it should include ambitious emission reduction targets from industrialized countries, recognition and support for developing country actions, commitment to scaled up climate finance especially for adaptation, and a new institutional and governance arrangement under the guidance of the UN.”
This template, if to be used, and to be effective, could possibly be achieved with more time to hammer out the important finer details. The G20 Finance Ministers remain split over how much money it should offer to developing countries as climate aid and whether this should come on top of existing aid budgets. There is also the continuing dispute over what format a new deal should take, with the U.S. insisting that Kyoto be scrapped, angering China and India. A domestic U.S. cap on emissions would surely invigorate international negotiations. A global legal framework needs to work for everybody from Antigua to Ethiopia to the United States. It must be aspirational but likewise practical implementation is the name of the game. Perhaps, for now, a politically binding deal including a strict deadline to agree upon carbon emission reduction targets and detailed financial schemes would be more beneficial. If not, Copenhagen risks becoming another expensive, bureaucratic talking shop.
The United Nations Conference on Climate Change will take place between 7th and 19th December.