As discussed in Part 1 of this article, the UNFCCC processes have been delivering a significant measure of common understanding about the overall level of global ambition required. Part 2 will discuss how the main problem is the ‘per state’ contribution. This is a perennial problem since the Conference on the Human Environment in 1972 first noted differentiated responsibilities between developed and developing nations. However, by carefully following the understandings and undertakings which states have signed up to in the UNFCCC process, it is possible to set out some common principles that should guide ‘per state’ contributions.
Part 2. What does that overall ambition require on a ‘per state’ basis?
The UNFCCC process has delivered a number of phrases and items that address the issue of state responsibilities to the global commons.
At Lima in 2014, all parties committed to:“reaching an ambitious agreement in 2015 that reflects the principle of common but differentiated responsibilities and respective capabilities, in light of different national circumstances;”
The phrase “common but differentiated responsibilities and respective capabilities,” was included in the UNFCCC in 1992 and is understood to refer explicitly to the distinction between developed and developing nations.
The first principle of the UNFCCC makes this absolutely clear:
1. 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 is no suggestion of equal contributions from all parties. The reverse is the case: if you are a developed country, it has been agreed that your contribution should be more than that of an undeveloped country. The UNFCCC contains extensive provision for developed nations to assist developing nations financially with sustainable development. Also, the UNFCCC does not contain any principle that countries with small emissions, whether developed or not, have lesser obligations because of their small contribution. The commitments of developed countries under the UNFCCC and the Kyoto Protocol follow this principle that ‘developed country Parties take the lead’ and obligations exist relative to each countries abilities and not the size of their emissions compared to the global total. Any country that proposed lesser ambitions on the basis that it only makes a small contribution to the global total would be acting against the UNFCCC. That is probably why no country has ever made that argument before the UN (although it seems to be a popular political discourse in some countries!).
The Lima conference in 2014 added the words “in light of different national circumstances.”
In other words, “in light of different national circumstances” allows a revisiting of those states that are undeveloped but whose circumstances may have changed, which may place them in the developed ‘camp’. China is a key example.
Most importantly, those words do not allow developed countries to go behind their undertakings in the UNFCCC and argue for a lower responsibility for their state in order to protect vulnerable sectors of their economies.
The UNFCCC also provides that:
2. The specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change, and of those Parties, especially developing country Parties, that would have to bear a disproportionate or abnormal burden under the Convention, should be given full consideration.
The ‘particular vulnerabilities’ are listed in the UNFCCC. These are:
(a) Small island countries;
(b) Countries with low-lying coastal areas;
(c) Countries with arid and semi-arid areas, forested areas and areas liable to forest decay;
(d) Countries with areas prone to natural disasters;
(e) Countries with areas liable to drought and desertification;
(f) Countries with areas of high urban atmospheric pollution;
(g) Countries with areas with fragile ecosystems, including mountainous ecosystems;
(h) Countries whose economies are highly dependent on income generated from production, processing and export, and/or on consumption of fossil fuels and associated energy-intensive products; and
(i) Landlocked and transit countries.
The UNFCCC also invokes the precautionary principle, and the notion that acting early saves costs:
3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.
Particularly pertinent in this regard is the comment in the recent IPCC review that “emissions need to be cut significantly and immediately, in particular to minimize effort and keep it cost-effective”.
Finally, the UNFCCC contains a principle of ‘sustainable development’.
Article 3(4) The intention is that developed countries make their current developments sustainable, and developing countries continue to develop, but in a sustainable manner. Specifically, this concept does not contain any notion that developed countries may produce increasing levels of GHGs. As noted above, the UNFCCC contains extensive provisions for developed nations to assist developing nations financially with sustainable development.
Given those requirements, what are the obligations, in international law, of individual parties?
In considering contributions by each state, it is important to begin at the right starting point, that is, avoiding ‘dangerous’ climate change, which means an overall ambition of reductions of 70-95% by 2050 (ie 35 years from now) and zero emissions by 2060-2080 including deep net emission reductions in the second half of the 21st century.
This means that all parties will be zero emitters by, or shortly after 2050, and there will also need to be extensive negative emissions after 2050.
Given those timeframes, the per-state obligations within the UNFCCC work themselves out very quickly. On the basis of the UNFCCC distinctions between states, three principles seem to be readily apparent:
- Any carbon budget that remains within the next 35 years must go as far as possible to assist sustainable development in developing vulnerable countries. This will be their ‘last chance’ to use the valuable remaining atmospheric resource to adapt to coming climate change – for example by pouring concrete to build coastal defences.
- Developing countries must be given a very tight, and very fast diminishing carbon budget, which should be applied as far as possible to developing technologies for low, zero and negative emissions.
- It would be inequitable to require developing vulnerable countries to engage in negative emissions immediately. Under UNFCCC principles, that should be the task of developed nations for at least a few decades after 2050.
As can be seen, these conclusions are driven mainly by the very small carbon budget that remains.
There is some similarity between this conclusion and the Oslo Principles recently announced by a panel of eminent international jurists. Those principles start with the notion that every person is entitled to a carbon budget, and ultimately, the same carbon budget. It proposes steadily reducing the current per capita budgets of each state (or increasing for some developing countries), to a global per person budget that sits within a 2 degree warning target. All states would operate within a requirement that:
23. Neither high cost nor the lack of financial means can, alone, excuse a State’s failure to meet its obligations to achieve GHG reductions or constitute a defence against legal sanctions that may be imposed as a consequence of such a failure. To avoid such sanctions, a State must show excessive hardship or extraordinary circumstances beyond the State’s control that have prevented the State from meeting its obligations.
The Oslo Principles could be adapted to provide for a rapidly reducing per person carbon budget, but providing that developing country budgets reduce much more rapidly than those for developed countries, and provide a ‘negative budget’ for developed countries after 2050.