Law Speak - At last, a climate deal

17 Dec 2015 / 20:55 H.

    PERHAPS the newly-minted climate change agreement may immortalise Paris as the Humphrey Bogart movie did Casablanca. This city of love delivered where Copenhagen and others failed.
    Last Saturday, after two weeks of intense and often rancorous overnight negotiations, the French Presidency overseeing the negotiations at the 21st meeting of the Parties to the UN Framework Convention on Climate Change (UNFCCC), gavelled the Paris Agreement.

    It was four years in the making since the 2011 Durban mandate to develop a legally binding document. It could not have come any earlier.
    Scientists have long warned that fossil fuel burning had to be cut. Else the global warming the carbon emissions caused would see the manifold increase of even greater calamities and havoc and destroy the world as we know it.
    A forecast of melting glaciers swallowing whole island states, submerging farmers' fields and threatening food security.
    The emissions have been accumulating since the developed world embarked in their 1700s Industrial Revolution – burning fossil fuels to produce energy to power their prosperity.
    For sure, the agreement is not an instant panacea for global warming. It will only come into effect if 55 countries representing 55% of the world's present day emissions of greenhouse gases ratify it. And it will enter into force only in 2020.
    But it has perhaps provided a compass, a future direction, to render Mother Earth more – not less – habitable. And slow down the calamities that we see increasing in both frequency and space.
    Yet the birth pangs were evident from the start.
    Throughout the negotiations, developed countries flatly rejected their historical responsibility for creating global warming.
    Ignoring this (as stated in the 1992 UNFCCC) and the Durban mandate which requires enhancing not rewriting the convention, they demanded that all countries bear the same burden – citing the fact that the world had changed since then.
    "We need a dynamic agreement and all must come on board," lectured the US State Under-Secretary John Kerry at one of the nightly negotiating sessions.
    This clouds the reality that fundamentally the world remains the same. As the Like-Minded Developing Countries negotiating group comprising China, India, Malaysia and 25 other countries from across Asia, Latin America and Africa pointed out, the 50% of the world's population they house includes 70% of the world's poorest.
    Non-differentiated requirements would stultify development and jeopardise efforts by developing countries to eradicate poverty and develop sustainably.
    Besides, under the UNFCCC developed countries had an obligation to provide the means of implementation and support for finance, technology transfer and capacity building to developing countries to reduce their dependence on fossil fuels.
    Developed countries repudiated this obligation; instead they wanted to rope in "evolving" or major developing countries or countries "in a position to do so" to share their burden.
    The thrust of the developed countries was clear. They wanted only a mitigation-centric agreement; and a robust scheme to assess at regular intervals the efforts of developing countries in meeting their declared targets to reduce emissions. And to require them to increase these targets periodically – a sort of a "big brother" policing.
    And all this without the necessary financial and technological (needed to switch to renewables) support. Of the US$100 billion a year from 2010 to 2020 they had promised in Cancun, only a paltry US$10 billion had materialised.
    Developing countries remained resolute to the end. Their three-pronged approach was: to secure and build upon the provisions of the UNFCCC; to reflect differentiated efforts across all the elements (mitigation, adaptation, loss and damage provision of finance, technology transfer and capacity building); to facilitate the efforts of developing countries to reach their targets through support from developed countries.
    What finally emerged was a mix of the goals of developed and developing countries.
    First the average global temperature rise is to be kept to well below 2 degrees Celsius above pre-industrial levels – with a future target for 1.5 degrees Celsius.
    Secondly, the agreement is to enhance the implementation of the UNFCCC.
    Thirdly, the nationally intended contributions must be for all elements.
    Fourthly, developed countries are to provide more ambitious absolute economy wide targets. In the text as finally presented it was an obligation for them to do so and to take the lead in doing so.
    Reportedly John Kerry wanted it changed – to secure US Congress approval. But the developing countries had negotiated hard to make it a mandatory obligation. Quite inappropriately, in the final seconds, the secretariat announced several editorial changes – hidden amongst which was the change from the mandatory "shall" to the softer "should". And the president promptly gavelled the agreement as adopted amid protests by several delegates.
    Developing countries can choose the sectors in which to reduce emissions – and are required over time to do the same economy wide targets as developed countries.
    Thirdly, the obligation of developed countries to provide support has been shunted to an accompanying decision. An amount of US$100 billion a year until 2025 to be thereafter enhanced for an amount to be agreed.
    Fifthly, and this was over the strenuous objection of developing countries, a provision requiring developing countries as well to provide information to track the fulfilment of their commitments.
    What they got in return – developed countries must also inform of their support to developing countries for mitigation and adaptation. A global stock-take every five years, from 2023, will assess the collective progress towards achieving the temperature target.
    Countries are expected to ratchet upwards their individual mitigation targets. This is a form of ex ante review which developing countries had successfully fought off barely a year earlier in the 2014 Lima meeting of the parties. Also a balancing proposal was rejected – to allow for adjustment of the target for reasons beyond a country's control – such as severe economic shocks and downturns, unexpected physical calamities, and the like.
    What does it mean for Malaysia? It will have to reduce its carbon emissions by preserving its forests; as well as reduce the use of fossil fuels by the public and private sector and the public generally.
    It will in short have to reduce reliance on fossil fuels for the production of energy and switch steadily to renewables – such as solar and wind. It will have to endeavour to accelerate research and investment in technologies that reduce reliance on fossil fuels.
    And institute other measures such as reducing the use of cars (wider use of public transport for example), and alter consumption and lifestyle patterns – through regulatory as well as softer incentivised schemes.
    Financial support could be sought through the key channel – the Green Climate Fund – to achieve the "conditional" mitigation and adaptation targets set out in our Intended Nationally Determined Contributions (INDCs) which we submitted last month under the UNFCCC – and which could be resubmitted under the agreement in 2020; and to fund access to the expensive Northern-owned technologies for the gradual switch to renewables.
    But it may not be readily forthcoming as past experience shows.
    A final thought. If Malaysia declares itself a developed country in 2020 – when the agreement comes into force – it will have to take on the more onerous obligations of developed countries; in particular to provide support to developing countries. And to maintain a more ambitious mitigation target.
    Gurdial is professor at the Law Faculty, University of Malaya. He was the spokesperson at the negotiations for the Like Minded Developing Countries.
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