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Issue #1441      3 February 2010

The UN’s Kyoto Protocol

The US’s “Copenhagen Accord”

Legal Status

Legal Status

The United Nations Framework Convention on Climate Change (UNFCCC) is an international treaty which is binding under international law on its signatories. It entered into force in 1994 and has been ratified by 192 countries including the United States of America. Under the UNFCCC, governments agreed to collect and share information and launch national strategies for addressing greenhouse gas emissions and adapting to the expected impacts of climate change.The Kyoto Protocol (KP) is a legally binding instrument under the framework of the UNFCCC which contains specific measures for addressing climate change. It was adopted in 1997 and came into force in 2005. It has been ratified by 189 individual countries and the European Union. All Parties to the Protocol are legally bound by its provisions.It has no expiry date.

The so-called Copenhagen Accord has no legal status under the United Nations Framework Convention for Climate Change (UNFCCC). It is not a decision or official document of the Copenhagen climate change conference. It was presented for adoption by the Danish chair following completion of the conference’s official business and was strongly opposed by a number of governments. Consensus is required for the adoption of a document under UN proceedings. The only decision made was that “conference takes note of the Copenhagen Accord of 18 December 2009”. Thus it was neither approved nor disapproved. It is an external document with no legal standing under the UN or the UNFCCC, contrary to the impression given by its name and the actions and statements of some UN officials, media and certain governments since the conference.

It was not subject to the open, transparent negotiating processes of the conference, it was not the work of formal or officially mandated proceedings of the Conference.

Fundamental Principle

Fundamental Principle

One of the most important principles of the UNFCCC and KP is the recognition of “common but differentiated responsibilities and respective capabilities” of developed and developing countries. This principle is legally binding on all parties to these treaties and underlies the approach taken in those instruments. It recognises that:

  • the developed countries are principally responsible for the current high levels of greenhouse gas emissions in the atmosphere;
  • per capita emissions in developing countries are still relatively low;
  • economic and social development and poverty eradication are the first and overriding priorities of developing countries;
  • the share of global emissions originating in developing countries will grow to meet social and development needs.

In accordance with this principle, 37 industrialised countries and the European Union (EU) gave legally binding commitments to reduce their greenhouse gas emissions and provide financial and technological assistance to developing countries to enable them to plan and carry out mitigation and adaptation measures. Mitigation involves measures to decrease the concentrations or volume of emissions. Adaptation refers to action taken to minimise and cope with the effects of global warming.

The developing countries were not subjected to legally binding targets. They gave commitments to collect and submit data and formulate and implement mitigation and adaptation measures. These commitments are conditional on receiving financial and technological assistance which the developed nations are legally bound to provide. Needless to say they failed to provide the required assistance and this remains one of the big issues still to be resolved, although some progress was made on possible mechanisms in Copenhagen and other recent negotiations under the UNFCC framework.

In its opening sentences, the Accord purports to “Being guided by the principles and provisions of the Convention”, but goes on to breach them in its detail. In particular, it overturns the fundamental principle of “common but differentiated responsibilities and respective capabilities” of developed and developing countries that underpins the UNFCCC and Kyoto Protocol (KP).(See opposite for details.)

For example, the Accord obliges developing countries to make commitments to reduce greenhouse gas emissions. It does not make these provisions conditional on developed countries honouring their legal obligations under the UNFCCC regarding financial assistance and the transfer of climate-related technology to developing countries. It further breaches the core principle by making receipt of assistance from developing countries conditional on “international measurement, reporting and verification” of mitigation actions. It also begs the question: Who will do the inspecting and be the arbiter of whether finance is to be made available? The US?

The Accord appears to impose a more stringent and intrusive reporting and verification regime on developing countries than presently applies to developed countries. Even where assistance is not involved developing countries will be subject to “international scrutiny and analysis”. At present, developed countries carry out their own internal reviews and reports; they are not subjected to opening up their books for external inspections.

The international inspections were strongly opposed by China as a breach of sovereignty. They are also opposed by other Third World countries as developed countries could use “failed” reviews as an excuse to hold back funds or impose trade sanctions. The abandonment of the core principle of the UNFCCC and KP enables developed countries to wriggle out of their historical responsibilities and gain new leavers to pressure developed countries.

Emission Reductions

Emission Reductions

In accordance with the fundamental principle, developed countries made a legally binding commitment to reduce aggregate greenhouse gas emissions by 5.2 percent compared with the base year 1990 over the five years 2008-2012. This is known as the first commitment period. Country-specific, legally binding targets were negotiated and agreed for the 37 developed countries and the EU.The Copenhagen conference had the task of finalising the term of the next commitment period (commencing in 2013), setting an aggregate global target for greenhouse gas emission cuts by developed countries and negotiating country-specific emission reduction targets necessary for developed countries to meet that aggregate target.The key unresolved areas regarding emission reductions are:

  • The target cap on temperature rise – developing countries were seeking 1.5°C, as the most recent scientific findings require. Developed countries sought 2°C. (These are temperature rises above pre-industrialisation levels which have already risen by 0.8°C above that level.)
  • Aggregate, global emission reduction target for 2020 – differences range from 25% to 45% or more. (The conservative Intergovernmental Panel on Climate Change (IPCC) stated that emissions need to be reduced by 40% to stave off the worst effects of climate change based on 2°C. The 2°C would not save a number of smaller island states from sinking or save Africa from the perils of drought. The aggregate of offers by developed countries amounts to a paltry12-19% below 1990 levels by 2020 which could result in a temperature rise of 3°C. This is nowhere near the 45% or more required by science.
  • Proposals for the target reduction by 2050 were 50%, 85% or 95%.
  • The cap on the level of carbon pollution in the atmosphere to achieve the temperature target – 350 part per million (as demanded by science and Third World nations for 1.5°C) or 450 parts per million (rich nation target for 2°C).

The Accord does not give an aggregate emission reduction target for 2020 that developed countries (and developing countries which are also obliged to reduce emissions under the Accord) should collectively achieve.

In the lead-up to and during the Copenhagen negotiations the US, Australia and other developed countries thwarted progress, created chaos and made demands of developing countries to commit to emission reductions that were contrary to the legally binding principles and terms of the UNFCCC and KP. These demands, quite rightly rejected by developing countries, are part of the Accord.

The base year of 1990 has been abandoned. This makes it very difficult for the public to make comparisons. The US has pledged a 17% reduction based on the year 2005. Australia has set a target of 5% based on the year 2000. When compared with the KP’s baseline of 1990, Australia’s figure is closer to 3% – shamefully and disgracefully below what is required.

The Australian government believes it can get most of the 5% from offsets by trading in emissions – the developing countries reduce emissions and Australia gets the credit. The developing country gets no points, no credit for the emission reduction. It could become a race to the bottom for cash-strapped countries competing on international markets. This shifts the burden onto poor countries and makes it even more difficult for them to meet emission reduction targets (which they will have) under the Accord. The priority of economic development takes a backseat under the Accord.

The Accord provides a temperature rise cap of 2°C, a level which is strongly opposed by the Africa Group and Association of Small Island States who are amongst the first and hardest hit countries. They need a 1.5°C cap at the very maximum if they are to survive. The Accord throws a carrot to developing countries, providing an assessment of its implementation in 2015, including the possible consideration of a temperature rise of 1.5°C.

Determination of Targets

Determination of Targets

Targets are determined by a “top down” process. Countries first negotiate aggregate, global targets. Once these have been agreed then individual country emission reduction targets are negotiated according to the specific circumstances of each developed country. These targets are thrashed out and countries have to argue and defend their positions, as well as cooperate and raise offers to ensure the aggregate, global targets can be met.The Copenhagen conference should have finalised the aggregate targets listed in Point 3 above and set the individual country targets for a specified second commitment period commencing in 2013.

The US, which is not a party to the Kyoto Protocol, was obliged to make a legally binding commitment for reductions in greenhouse gas emissions comparable to those of other developed nations. It had agreed to do this at the Bali conference in 2007 under the UNFCCC to which it is a signatory. The developed countries obstructed progress in reaching agreement and the US categorically refused to carry out its legal obligations, some even saying their targets were only on offer under a new agreement or treaty, not under the KP!

The Accord is based on a “bottom up” approach. Each country submits its target which is determined nationally. It is a voluntary, pledge system with no international negotiation or regard to the global aggregate required. Countries can put forward whatever they like, no challenge with no review of their target or requirement for other countries to reach agreement. It will not be subjected to any debate or comparison with other countries’ targets.

No aggregate global target has been set, let alone a negotiated, scientific process to reach that target. It is a hit and miss process, relying more on prayers for the individual targets to add up to cap temperature rises to 2°C.

Inevitably there will be a shortfall (more likely judging by existing offers, a huge gaping hole) in what is required. Pressure will then be placed on developing countries to meet this gap. The burden of emission reduction will yet again be shifted onto the backs of the developing countries.

The Accord sets the date of January 31 for developed countries to submit their pledges for emission reductions by 2020. It is open-ended as to when countries can indicate they wish to be associated with it.

Legal Status of Targets

Legal Status of Targets

Targets adopted are legally binding under international law. There is a compliance mechanism under the Protocol and developed countries are obliged to measure and report on their performance.

The targets being pledged under the Accord are outside of the KP and UNFCCC. There is no compliance mechanism as under the KP to deal with countries that fail to meet their target. It is not an official UN document.

Finance and Technology Transfer

Finance and Technology Transfer

Developed countries have an obligation to make financial and technological commitments to enable developing countries to plan and implement mitigation and adaptation measures at the same time as ensuring their capacity to develop. This includes a global annual allocation of finances and specific developed country commitments that should have been finalised at Copenhagen. The annual amount required are in the vicinity of UN$200 billion per annum.

Agreement has still to be reached on the mechanisms to deliver financial and technological assistance.

The poor countries would like it done under a UN body. The rich countries would like it left to the likes of the World Bank, the G20, and private sector.

Developing countries are seeking the lifting of intellectual property rights (patents etc) that restrict their access to climate-related technology. Again the developed countries oppose this.

Developing country commitments for development and implementation of mitigation and adaptation measures are conditional on receipt of financial and technological assistance from developed countries. So far it is has not been forthcoming.

The Accord commits developed countries to providing US$30 billion for the three-year period 2010-2012 for “balanced allocation between adaptation and mitigation measures” by developing countries. This amount is peanuts. A common demand from developing countries is US$200 billion per annum now – a fraction of what the US spends on its war machine.

“In the context of meaningful mitigation actions and transparency on implementation, developed countries commit to a goal of mobilising USD 100 billion a year by 2020 to address the needs of developing countries.” (Italics added.) Committing to mobilising is not a firm commitment to give. The money referred to is not necessarily new money not already committed in other contexts. It is conditional on “meaningful mitigation actions and transparency” – no guarantees of a cent. “The funding will come from a wide variety of sources, public and private, bilateral and multilateral….” Governments are committing very little, if anything, instead handing it over to the World Bank and private sector.

There is no promise of funds for adaptation beyond 2012.

The Accord turns on its head KP provisions that make developing country obligations conditional on their receiving assistance.

The big carrot for developing countries is the US$30 billion and prospect of more in the years to come. The developed countries are bribing desperate governments by only putting this money on the table under the Accord. The choice is the Accord and a few dollars or the Kyoto Protocol and no money.

Equity

Equity

The principle of “common but differentiated responsibilities and respect for capacity” recognises that rich and poor countries are not on an equal footing when it comes to responsibilities and capacity to take climate change action. Their historical contributions to climate change and present needs and capabilities to take measures are different and their responsibilities correspondingly defined. The recognition and application of historical and current differences provides a far more equitable basis than treating all countries in the same manner.

There is no equity in the Accord with its abandonment of the basic principle of the UNFCCC and KP. Treating the rich and the poor on the same footing is not equity. The Accord is heavily biased in favour of the developed countries, lets them off the hook regarding their responsibilities, provides opportunities for developed countries to shift the burden onto the backs of third world countries and provides mechanisms for them to dictate and retard the development of Third World countries. The Accord adopts the negotiating stance of the developed countries and contains significant and dangerous compromises on the part of those developing countries that choose (or are bribed or succumb to political pressure) to associate with it.

Future of KP and UNFCCC

Future of KP and UNFCCC

The Copenhagen climate change conference passed resolutions adopting the draft texts from the two main working groups – one under the UNFCCC and under the Kyoto Protocol. These documents recorded the outcomes of several years of negotiations by the parties to the Convention and the Protocol. Legally, these are the documents that should be discussed in future negotiating sessions during the coming year and at the next Meeting of Parties in Mexico scheduled to commence at the end of November this year.

The task before the international community is for the remaining differences to be resolved and these key documents to be finalised so that countries can begin preparations to meet their commitments for the second commitment period commencing in 2013. This is the legally binding obligation of parties to the UNFCCC and the KP.

The US as the only major developed country which is not a Party to the KP should sign the Protocol and carry out its historical and current responsibilities. It has made by far the largest contribution to greenhouse gas emissions and is still one of the largest emitters per capita in the world.

The future of the human species depends on the retention of and full implementation of the UNFCCC and the KP. Nothing less will suffice.

The Accord is silent on the future of the Kyoto Protocol. The Secretary of the UNFCCC, Yvo de Boer, invited governments that wish to be associated with the Accord to inform him by January 31, and they will be added to an attached list. His actions are highly irregular to say the least, considering the document is not a document of the UNFCCC.

If the Accord goes ahead, it will spell the death of the KP. It contradicts and negates key provisions in the KP and Convention. If widely accepted, it will be used as an excuse to abandon the KP and to amend the UNFCCC to make it consistent with the new, far weaker Accord. It is a shadow of the KP and totally inadequate in terms of meeting the urgency and demands of saving the human species.

The aim of the Western powers is to kill the KP and amend the UNFCCC to bring the Convention into line with its weaker provisions. This would enable them to:

  • Pull back on their responsibilities and shift the burden onto the backs of the poorer, less developed nations;
  • Hinder the development of the major developing countries, in particular China and India, that pose a threat to US global economic domination;
  • Develop mechanisms, funds and other approaches that give the US, Australian and other developed countries’ corporations new profit-churning opportunities from climate change measures.

Unfortunately they are gambling with the future of humanity in their pursuit of profits. As Bolivian President Evo Morales told representatives in Copenhagen, it is a battle of “the culture of life and the culture of death”. If the Accord replaces the KP, the “culture of death”, capitalism, will have won the day and doomed the human species to the same fate as it has brought upon thousands of other animal and plant species through its actions in the pursuit of private profit.

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