Climate change negotiations as a source of legal dynamism
"Much of the rhetoric around the excruciatingly slow climate change negotiations gives the impression that the process is stuck in perpetual stasis."
While there is some truth in this notion, caused largely by the fact that the negotiations are primarily driven by national rather than global interest, it is also true that the imperative to keep country Parties at the negotiation table, and the compromises that this entails when the table seats virtually all of the world's nations, has resulted in the development and/or elaboration of certain of the principles of international environmental law.
The most recognisable international environmental legal principle is that of sustainable development which has also become a feature of many national legal systems, including South Africa's. It is worth mentioning that the principle's inclusion in this country's constitutional dispensation does not mean that the parameters of the principles are clearly defined or universally acknowledged. Sustainable development is a foundational feature of the international climate change regime. This article briefly considers two other international environmental legal principles - the negotiations have imbued the first with a greater depth and are currently the platform upon which the future of the principle is being determined, and have become a very public forum for the elaboration of the second.
The principles are:
•Common But Differentiated Responsibilities ("CBDR"); and,
•Loss and Damage.
Both of these delimit the relationship between developing and developed country Parties and, consequently, are vital for South Africa's international role in the negotiations and the development of the national climate change legal regime which flows from our Conventional obligations.
Common But Differentiated Responsibilities
Principle 7 of the Rio Declaration which emerged from the 1992 World Summit on Sustainable Development provides that (in respect of sustainable development): "In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command."
In the international legal area, the principle of CBDR evolved from the notion of the common heritage of mankind. CBDR recognises historical differences in the contributions of developed and developing States to global environmental problems and their respective economic and technical capacities to respond to such problems and, consequently, is a manifestation of the principle of equity in international law. The United Nations Framework Convention on Climate Change ("UNFCCC") was opened for signature at the 1992 World Summit and CBDR is woven into its fabric. CBDR is the very first principle among the suite required to guide country Parties' actions in achieving the UNFCCC's objective, namely preventing dangerous anthropogenic interference with the global climate system by both mitigating greenhouse gas emissions and taking steps to adapt to climate change. Article 3 paragraph 1 of the UNFCCC provides: "The Parties should 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. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof".
There are, at least, two legal consequences of CBDR in the UNFCCC. Firstly, it requires all country Parties to participate in international response measures aimed at achieving the Convention's objective. Secondly, it imposes differing obligations on country Parties in respect of their participation in such measures. For example, while developing country Parties might be required to seek to implement sustainable development (as a means of responding to climate change), developed country Parties might be required drastically to reduce their greenhouse gas emissions and to support the actions of developing country Parties through technology transfer and capacity building. Consequently, CBDR in the UNFCCC provides for asymmetrical rights and obligations and reflects the further principle of equity by placing more responsibility for responding to climate change on developed countries.
It is interesting to note that over twenty years of negotiation CBDR was scrupulously used in UNFCCC documentation and, in particular, the set of formal agreements emerging from the annual Conferences of the Parties. However, in the climate change sense, CBDR also reflects a dated geopolitical reality, one in which the developed countries were self-evidently the largest emitters of greenhouse gas. By the end of the first decade of the twenty-first century this was no longer the case. Whereas the United States was the largest emitter when the UNFCCC was formulated, by 2010 this role had been assumed by China. In addition, emissions from developing countries are set to exceed that of the developed world by approximately 2030. This means that the traditional idea of CBDR may no longer be appropriate as we move into the future.
Inter alia for this reason, the 2011 UNFCCC Decision providing for the establishment of the Durban Platform for Enhanced Action on climate change appears to equalise responsibility by launching "...a process to develop a protocol, another legal instrument or an agreed outcome with legal force under the United Nations Framework Convention on Climate Change applicable to all Parties, through a subsidiary body under the Convention" (UNFCCC Decision 1/CP.17). The dynamic between the use of the words "applicable to all Parties" juxtaposed against the idea that a future legal agreement will have force "under the United Nations Framework Convention on Climate Change", which some justifiably argue specifically includes CBDR, is cause for robust negotiation and debate as developing countries seek to secure their differentiated legal status in the face of the developed world's proposal to dismantle such status.
South Africa's international presence poses some difficulty if the premise upon which this country will continue to negotiate is that its developing country status and responsibility for responding to climate change remain inviolate. This is because the message sent by the country's participation in political and economic formations such as BRICS is that South Africa is able to play in the same space as countries with economies and populations that are orders of magnitude greater than our own. Whether this is de facto the case is debateable. However, it will become increasingly unconvincing for South Africa to argue that its international peers are large (and in the case of Russia, developed) economies, yet still requiring to be treated like a developing country in the climate change negotiations.
Loss and Damage
The climate negotiations are also the forum at which the newer international environmental legal principle of loss and damage is being elaborated. UNFCCC Decision 3/CP.18 "...recognises the important and fundamental role of the Convention in addressing loss and damage associated with climate change impacts, especially in developing countries that are particularly vulnerable to the adverse effects of climate change, including by promoting leadership, collaboration and cooperation, at the national, regional and international levels and for a broad range of sectors and ecosystems, in order to enable coherent and synergistic approaches to address such loss and damage." One commentator is of the view that this decision foreshadows a time when "developing nations that are particularly vulnerable to the adverse effects of climate change" might have a right to redress from major polluting nations for any "loss and damage" (Fred Pearce, Should Polluting nations be liable for climate damages? Yale 360, http://e360.yale.edu/content/print.msp?id=2609).
However, the outcome of more recent negotiations has tended to downplay the "right to redress" aspects. The round of negotiations held at the end of 2013 in Poland established the Warsaw international mechanism, under the UNFCCC's Cancun Adaptation Framework, "...to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change" (UNFCCC Decision -/CP.19). The objective of the mechanism is to enhance knowledge and understanding of comprehensive risk management approaches and to strengthen dialogue, coordination and synergies amongst stakeholders. At this point the mechanism's work programme is limited to knowledge sharing, information gathering and providing technical guidance and support and making recommendations flowing from these activities. This means that it will play a role in developing a better understanding of the impacts of climate change and the still hazy notion of vulnerability and adaptation, especially slow onset events. This decision lacks the legal teeth that developing country Parties were seeking but keeps the principle of loss and damage very visible in the international arena and at the climate negotiation table.