Lavanya Rajamani (Professor at the International Law Centre for Policy Research, New Delhi and Chair of the ILA 2010 conference panel on Climate Change) has sent in this report of the panel discussions with an emphasis on the role of governments in addressing climate change:
An Afternoon Debating the Future of the Climate Change Regime and the Influence of Human Rights Approaches
An afternoon of conversations on climate change kicked off with a panel discussion featuring Professor Shinya Murase, Sophia University, Professor Joyeeta Gupta, Vrije University and Dr Margot Salomon, LSE. And, continued in the Open Working Session of the ILA Committee on the Legal Principles Relating to Climate Change.
Although climate change is at the top of the international agenda, and tremendous political capital has been expended on it in the recent past, a solution to this vexing problem is far from sight. The United Nations Framework Convention on Climate Change (FCCC), 1992, and its Kyoto Protocol, 1997, contain emissions reduction commitments that are both inadequate and inadequately implemented. Negotiations scheduled to arrive at an “agreed outcome” at Copenhagen in December, 2009, are still ongoing. The non-binding Copenhagen Accord arrived at in December 2009 among heads of states of 28 Parties to the FCCC, takes but a limited step forward.
The Accord agreed to limit temperature increase to 2ºC, but did not prescribe what states would need to do to achieve this goal, or how the burden of achieving this goal is to be shared between states. It allowed states, developed and developing alike, to record their self-selected targets and actions in appendices to the Accord. 138 states have since associated with the Accord and inscribed their targets and actions in its appendices. Early analyses suggest, however, that the pledges countries have inscribed set the world on a 3 ºC or more warming trend. Meanwhile the impacts of climate change continue to prejudicially affect the poor and disadvantaged across the globe. Professors Murase and Gupta provided insights into the ongoing climate negotiations, and Dr Salomon discussed the linkages between human rights and climate change.
Professor Murase laid out three essential criteria for the design of the future climate regime: all major emitters, whether developed or developing, should be included; a flexible, bottom-up approach to commitments tailored to national circumstances should be adopted; and, the base year should be changed from 1990 to 2005 or 2010. Professor Murase proposed exporting the WTO model combining bilateralism and multilateralism into the climate regime. In this model, each sector within a country, for instance Japan, would choose its target. The accumulated sector-based targets would constitute Japan’s provisional national target. Japan would then negotiate with another country, for instance the US, on a “request and offer” basis with a view to agreeing on both their targets. Both States would conduct similar negotiations, in good faith, with other countries, until the chosen global target is reached. Intriguing as this proposal is, it is questionable if reciprocity based models such as the WTO one can be used to resolve a complex problem relating to protection of the global commons, especially the climate change problem which calls on countries to act above and beyond their national interest.
Professor Gupta, for her part, argued for leadership from developed countries, thus far in limited evidence. She drew attention to the limited finances available for climate action, and stressed the need to mainstream climate change in aid, and to bring human rights, and in particular the “right to emit” to bear in the design of the post-2012 climate regime. Professor Gupta ended by calling for a legally binding instrument that prescribes ambitious targets for developed countries. The tensions between the views offered by Professors Murase and Gupta - the former stressing flexible bottom up approaches and the latter legally binding top down approaches - are mirrored in the climate negotiations. As are the differences in their perspectives on the nature and extent of differential treatment offered to developing countries.
These two presentations on the nuts and bolts of the climate change negotiations were complemented by Dr Salomon’s broader perspective on the role and relevance of human rights approaches to climate change. She offered a spirited argument for greater attention to the human rights implications of climate change impacts and for greater ambition in the climate regime so as to ensure that the progressive realization of the core protected human rights can proceed unhindered.
These three provocative presentations and the discussion that followed between the panellists and the audience highlighted the many questions that remain to be answered in this area. Among them:
• the future (or lack thereof) of the Kyoto Protocol
• the legal form and architecture of the future climate regime
• the nature and extent of differential treatment between developed and developing countries
• the role that human rights approaches and thinking can usefully play in the climate regime, and
• the fora, process and procedure most likely to yield results
These questions, among others were raised in the First Report submitted by the ILA Committee on Legal Principles Relating to Climate Change (available at http://www.ila-hq.org/en/committees/index.cfm/cid/1029) and discussed in the open working session of the Committee that followed the Panel discussion.
Lavanya Rajamani
Professor, International Law Centre for Policy Research
New Delhi
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