The climate divide after Copenhagen and its impact on international climate change law

According to the Frankfurter Allgemeine Zeitung, the new political dynamics on display in Copenhagen are likely to change the way international climate change law is made.  “The format of the consultations at the UN level, in which every member state can exercise veto power, holds no promise for any success. The balancing of interests between those who want to preserve their standards of living and the emerging economies that want to soon reach such levels of prosperity appears to be impossible.”

The consensus rules that govern UNFCCC COP plenaries, set up in the convention itself  – important tools for diplomacy and equity when seeking international accord – encouraged the African country walk-outs that began in Barcelona and enabled Tuvalu’s well-chronicled procedural points of order at COP15.  These principled stands by the have-nots in the climate divide were significant expressions of their deeply felt frustration with the industrialized world’s unwillingness to take responsibility for the impact of their historical CO2 emissions.

But while they acutely underscored the depth of the divide, they also highlighted the cumbersome process of getting to yes.  Put a different way by University of Georgia law professor, Dan Bodansky, “At each successive COP, the inability to make progress on the core substantive issues has been papered over by decisions that focused either on procedure (setting up the two ad hoc working groups on the KP and UNFCCC in 2005 and 2007 respectively) or on less controversial issues, such as adaptation. But this situation could not continue indefinitely, and Copenhagen brought to a head the continued divisions between developed and developing countries.”

COP15 also showcased those fractures within the developing country groups.  Some rough statistics paint a picture of the potential for splits within one half of the climate divide.  The G77 + China no longer counts 77 developing countries among its members, as it did at its founding in the mid-60s.  Rather, it now includes a range of developing countries who contribute to 42% of GHG emissions, 19% of the global GDP, and 76% of the world’s population.  In contrast, the Africa Group, usually thought of in terms of the 50-member African Union or AU bloc, which forms a subset of the G77, presents an entirely different picture:  3% of emissions, 2% of GDP, 13% of population.  Clearly these two groups share a common climate change bond in that they missed the 19th century industrialization that created the current carbon build-up in the atmosphere.  But in terms of current CO2 output, they are night and day.

So, as Professor Bodansky observes, “the Copenhagen Accord reflected a considerable shift by China, India, Brazil and South Africa, which begins to break the so-called ‘firewall’ between developed and developing countries. For the first time, the major developing countries agreed to reflect their national emission reduction pledges in an international instrument and to report on their mitigation actions in biennial national communications, which will be subject to ‘international consultation and analysis under clearly defined guidelines that will ensure that national sovereignty is respected.’ This may seem like a rather modest achievement; but it represents the first time that these countries accepted any type of ‘internationalization’ of their pledges and any kind of international review.”

So where does “Africa” stand in this new definition of the climate divide?  Well, probably the first place to start is a quick geography lesson.  Sarah Palin has plenty of company when she gives a supposedly parallel (ok, I know she’s not concerned about parallelism) list of countries and sticks Africa in the middle of it.  Africa is a continent, folks, composed of 53 countries (if you count the island nations near it; 47, if you limit yourself to the continent).   Climate change is having a different impact on different African countries, with my current neighbors in the Sahel experiencing increasing periods of drought and expanding desertification while South Africa and parts of east Africa are having record rainfall.

Next, we should take a look at a group called BASIC –   Brazil, South Africa (dites le en français, l’Afrique du Sud, et le sigle marche mieux), India and China – and note that these four economies emerging out of the developing country pack played a key role in Copenhagen.  They were in the room for the final negotiating session breathlessly described here.  President Zumu of South Africa was in the meeting room when President Obama and Secretary Clinton swept into it.  Sudan wasn’t.  The blow by blow of the final hours of negotiating the Accord by NRDC’s David Doniger aptly analyzes the shifting alliances beyond the developing/developed country fault lines  (section 4 is especially on point).  So South Africa voted to “take note of” the Copenhagen Accord.  (See this terrific explanation of this term of art and others by the World Resources Institute.)  And Sudan, along with Bolivia, Cuba, Nicaragua, and Venezuela chose not to.  As an increasing number of countries on the African continent continue to see increased but sustainable economic growth as the ticket to modernity, the climate divide will shift even more to focus on current emissions rather than historical industrialization.

Danish Prime Minister Lars Løkke Rasmussen, president of COP15 during its high-level stage, commented after the meeting’s closure that “The top leaders were taking Copenhagen seriously as their deadline and delivered beforehand. Had Obama not been due to attend, I doubt whether the US would have begun committing on long-term finance – which is historical. Had Lula not been due to attend, Brazil would hardly have raised its level of ambitions. Had Wen not been due to attend, China would probably not have opened to some level of international insight as to what it is doing – which actually is a globally politically significant admission.”

Harvard economist Robert Stavins put his new climate divide spin on this starting point. “We may look back upon Copenhagen as an important moment – both because global leaders took the reins of the procedures and brought the negotiations to a fruitful conclusion, and because the foundation was laid for a broad-based coalition of the willing to address effectively the threat of global climate change.  Only time will tell.”

So, on one hand, multilateralism via the United Nations created the UNFCCC, which is the condition precedent for making climate change a serious international issue that heads of state felt compelled to address in Copenhagen.  On the other hand, after 18 years of using the UN apparatus for holding individual countries accountable for their emission reduction promises (if you count from 1992; 38 years if you date it from the Stockholm Declaration), it would appear that multilateralism has run its course.  Do we need smaller groups of countries, organized along varied lines of mutual interests, to move the goals of the Kyoto Protocol forward?  Will this fragmentation discourage mutual cooperation and encourage bilateral bickering?  Just recently, this IntlLawGrrls post noted the Federated State of Micronesia asking the Czech Environment Ministry to do a transboundary Environmental Impact Assessment on proposed renovations to a power plant within its borders, arguing that

the Federated States of Micronesia is seriously endangered by the impacts of Climate change, including flooding of its entire territory and the eventual disappearance of portion of its state, because anthropogenic carbon dioxide (CO2) is the most important driver of current climate change, because [the power plant] is one of the biggest single industrial sources of CO2 emissions in the world and because the commissioning or retrofit of any large coal power plant could play a relevant role in the destruction of the entire environment of our state,

it has “reasonable grounds to believe that its territory will be affected by the significant environmental impacts [from the facility.]”

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