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FROM COPENHAGEN TO CANCUN- A PATHWAY OF ERRORS THAT DISCREDITS THE UNITED NATIONS PROCESS; ONLY RECOURSE IS TO GO TO THE INTERNATIONAL COURT OF JUSTICE. PDF Print E-mail
Earth News
Posted by Joan Russow
Thursday, 22 November 2012 18:34

 

or events leading up to  the  justification  for Bolivia taking action through the International Court of Justice, or through other legal channels 

 

 By Joan Russow

Global Compliance Research Project, Ecological Rights Associations*

December 15. 2010

 

Bolivian Ambassador Pablo Solon-Romero to the UN

Bolivian ambassador to the UN, Pablo Solon. Photograph: Paulo Filgueiras/UN Photo
 

Why Bolivia stood alone in opposing the Cancún climate agreement

``We were accused of being obstructionist, obstinate and unrealistic. But we feel an enormous obligation to set aside diplomacy and tell the truth

See http://www.guardian.co.uk/environment/cif-green/2010/dec/21/bolivia-oppose-cancun-climate-agreement``

 

 

A sequence of events  DECEMBER 7, 2009 OPENING PLENARY IN COPENHAGEN by  Joan Russow

 

A lost Opportunity

 

On the first day, of the Conference in Copenhagen, Papua New Guinea had proposed that the parties strive for consensus with a fall back on 75%; the request was summarily dismissed by the chair. This voting mechanism was proposed to prevent the conference from descending to the lowest denominator. The proposal was justifiable given that the UNFCCC was adopted by 79% of the UN states at the time.  Unfortunately,   if there had been a fall back on 75 %, there would probably have been a legal agreement with some firm commitments; an agreement supported by most the G77 group –representing over 130 states, along with developing states not members of the G77, and along with many state members of the European Union.   Clearly, this potentially legal agreement would not have been endorsed by the US and other major greenhouse gas emitting states; but it could have been used, both ethically and legally at the International Court of Justice,  to point out   how the major greenhouse gas emitting states, signatories of the Convention have continued to fail to discharge their legally binding obligations under the UNFCCC, including- Article 2, along with other key principles of  the Convention .

 

In Copenhagen, Bolivia  was seriously respecting the emerging science, adhering to principles in the UNFCCC and addressing the urgency  by demanding that the temperature not  rise above 1 degree, and the parts per million must return to 300 ppm.

 

December 8, 2009, Press Conference.

 

Some states are more equal than others

 

At the formal press Conference of the Secretariat, I raised the issue of the dismissing of Papua New Guinea’s proposal of a fall back of 75%. During several prior press conferences every one lamented that there would not be a legally binding document because the US had not been authorized by Congress to enter into a legally binding agreement. At above press Conference of the Secretariat,  I asked Yvo de Boer Executive Secretary of the UN Framework Convention on Climate Change, whether it would not be better for there to be a legally binding agreement among 75% of the states and the US and other states could list reservations. Secretary De Boer answered that the US had to be part of the agreement, and I added that there was a precedent where the US was not part of the Convention on the Law of Treaties and entered a reservation. Obviously not all states are perceived to be equal. So much for the principle of the sovereignty of states in the Charter of the United Nations!

 

 

 DECEMBER 18, 2009: 3am

 

The mighty roared and the mighty flag waved

 

What happened instead at Copenhagen was a striving for consensus with a fall back of around 10% if not 5%; the Copenhagen Accord drafters ignored the pleas of the developing states, not even accommodating common concerns but only the concerns of the major greenhouse gas emitting states. At Copenhagen, in the middle of the night there was the “We have a deal” edict coming from President Obama flanked by American flags. This `deal` `affirmed the limit of 2 degrees, and contained modest and insufficient pledges to reduce greenhouse gas emissions.

 

 It is clear that this edict was an affront to the UN multilateral process, to the procedure of consensus and to the majority of the member states of the United Nations - most of whom were calling for the temperature to not rise above 1.5 if not 1 degree. Not only was it an affront to the UN and to the majority of states but also to principles within the UNFCCC and to peremptory norms within the UN system.

 

Immediately after Cancun,  the developing states that refused to take note of the Copenhagen Accord  should have declared that Take-note Copenhagen Accord to be null and void under Article 53 of the Vienna Convention on the Law of Treaties.

 

Under Article 53 of the Convention on the Law of Treaties, treaties conflicting with a peremptory norm of general international law (jus cogens) are null and void.

"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

 

 To be designated as a peremptory norm, the norm must be accepted and recognized as a peremptory norm by the internationally community of states as a whole. Peremptory norms can be extracted from years of international instruments agreed to by a broad group of states, from widely divergent geographical areas, functioning under a range of legal systems,

These norms are derived from instruments that guarantee human rights including social, economic and cultural rights, civil and political rights, labour rights, women’s rights and indigenous rights; that ensure social justice, that protect and conserve the environment, move away from the overconsumptive model of development and reduce the ecological footprint and that prevent war and conflict.

 

It could have been argued at the ICJ or the Chamber on Environment  Matters in the ICJ, that the Copenhagen  Accord by failing to substantially address the necessary measures to prevent  dangerous anthropogenic interference with the climate system, the Accord would contravene Article 2 of the UNFCCC. In addition the Accord would contribute to the violation of numerous peremptory norms affirmed through years of United Nations negotiations of legally binding treaties, conventions and covenants, conference action plans and declarations and resolutions. And under Article 53 of the Vienna Convention on the Law of Treaties, an agreement would be declared null and void if it violated international peremptory norms.

 

 

DECEMBER 19, 2009 TO NOVEMBER 29, 2010  

 

 Intermezzo between the Copenhagen Accord and the beginning of Cancun

 

Legitimate multilateral inclusive processes

 

Peoples Conference on Climate Change

 

 

After Copenhagen, President Morales, understandably upset with the US ignoring the pleas of the developed states, decided to hold another process in Cochabamba - a process that would enable open interaction among states, civil society and indigenous peoples.  The powerful People’s Agreement which emerged from the April Conference in Cochabamba was endorsed by over 35,000 representatives of civil society, indigenous peoples and some governments.  During the year, Pablo Solon,  the Bolivian Ambassador to the UN, participated in numerous UN processes under the UNFCCC, and valiantly struggled  to include the conclusions of Cochabamba People`s Agreement  in the negotiating documents.

 

August 16; Climate Change  Conference in Bonn

 

In August, Ambassador Solon reported after the climate change conference in Bonn, that proposals from the Cochabamba/Peoples Agreement are still in the negotiating document.

 

``The proposals of “Peoples Agreement” in the texts for the UN negotiations on climate change

After a week of negotiations, the main conclusions of the World Peoples Conference on Climate Change and the Right of Mother Earth (Cochabamba, April 2010) have been incorporated in the document of United Nations on Climate Change, that now have been recognized as a negotiation text for the 192 countries which has been congregated in Bonn, Germany, during the first week august of 2010.

 

The most important points that have been incorporated for its consideration in the next round of negotiation before Cancun, that will take place in China, are:

   * 50 % reduction of greenhouse gasses emission by developed countries for second period of commitments from the Kyoto Protocol years 2013 to 2017.
   * Stabilize the rise of temperature to 1 C and 300 parts for million of carbon dioxide in the atmosphere.
   * To guarantee an equitable distribution of atmospheric space, taking into account the climate debt of emissions by developed countries for developing countries.
   * Full respect for the Human Rights and the inherent rights of indigenous peoples, women, children and migrants.
   * Full recognition to the United Nations Declaration on of Indigenous Peoples Rights.
   * Recognition and defense of the rights of Mother Earth to ensure harmony with nature.
   * Guarantee the fulfillment of the commitments from the developed countries though the building of an International Court of Climate Justice.
   * Rejection to the new mechanisms of carbon markets that transfer the responsibility of the reduction in emissions of greenhouse gases from developed countries to developing countries.
   * Promotion of measures that change the consumption patterns of the developed countries.
   * Adoption of necessary measures in all relevant forums to be excluded from the protection of the intellectual property rights to technologies and ecologically sustainable useful to mitigate climate change.
   * Developed countries will allocate 6% of their national gross product to actions relatives to Climate Change.
   * Integrated management of forest, to mitigation and adaptation, without market mechanics and ensuring the full participation of indigenous peoples and local communities.
   * Prohibition of the conversion of natural forest for plantations, since the monoculture plantations are not forest, instead should encourage the protection and conservation of natural forests.``

 

 

October 8. 2010: Tianjin Climate Change Conference

Similarly, Ambassador Solon reported that that many of the key proposals from Cochabamba were still in the agreed to text negotiated in China.

 

Illegitimate Closed Exclusive Processes

 

While Bolivia was involved with open inclusive and multilateral processes, the pro-Copenhagen Accord states were active behind the scenes engaging in many bilateral meetings, or mini events and conferences to pressure states to support the Copenhagen Accord

 

Throughout the year there were these closed ``meetings outside the UN process where the pro-Copenhagen Accord forces were excluding states, (e.g. REDD meeting in Norway) that had not taken  note of the Copenhagen Accord from participating or they were cajoling, coercing or using cheque book diplomacy to encourage developing states, especially vulnerable states, (e.g. vulnerable states meeting in Kiribati) to take note of the Copenhagen Accord. In Kiribati,the most vulnerable states were induced, most likely by the participation of the US, Canada, Japan, Australia and Great Britain, to agree to take note of the Copenhagen Accord in the Ambo Declaration.  

 

 

 

The intent behind the pressure on the most vulnerable was to agree to create a legal binding document out of the Copenhagen Accord, to in essence ignore a second period of Kyoto commitment, and essentially undermine the principles in the UNFCCC.

 

PRE- NOVEMBER 29 2010:  COP16 in Cancun

 

Copenhagen Accord promoted on UNFCCC COP 16 website

The building in Cancun on the Copenhagen Accord discredits the United Nations by compromising on science and principle and by undermining the UNFCCC. Yet the Cancun UNFCCC website prominently displayed the Copenhagen accord.

 

From the Website;

 

Bali Road Map

AWG-KP

AWG-LCA

 

 

COP 15 / CMP

Copenhagen Accord

 

.

 

 

 

On the site is the pronouncement that the Copenhagen Accord has been taken note of by 114 states and that about 36 other states have communicated their indication of potential support. The site then reports that the Copenhagen Accord would then have 140 states taking note of the Accord.  [obviously, without mentioning the devious strategies that had been used to coerce states to join in]

 

Post coercion legitimacy

The site attempts to bestow legitimacy in the following way:

``Conference of the Parties (COP), at its fifteenth session, took note of the Copenhagen Accord of 18 December 2009 by way of decision 2/CP.15. The text of the Copenhagen Accord can be found here.

The chapeau of the Copenhagen Accord lists the following 114 Parties agreeing to the Accord:*

Albania, Algeria, Armenia, Australia, Austria, Bahamas, Bangladesh, Belarus, Belgium, Benin, Bhutan, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cambodia, Canada, Central African Republic, Chile, China, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Djibouti, Eritrea, Estonia, Ethiopia, European Union, Fiji, Finland, France, Gabon, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Kiribati, Lao People's Democratic Republic, Latvia, Lesotho, Liechtenstein, Lithuania, Luxemburg, Madagascar, Malawi, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mexico, Monaco, Mongolia, Montenegro, Morocco, Namibia, Nepal, Netherlands, New Zealand, Norway, Palau, Panama, Papua New Guinea, Peru, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Samoa, San Marino, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Swaziland, Switzerland, The Former Yugoslav Republic of Macedonia, Tonga, Trinidad and Tobago, Tunisia, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Zambia.

Since the issuance of the report of the COP on its fifteenth session, the secretariat has received communications from the following Parties expressing their intention to be listed as agreeing to the Accord:

Afghanistan, Angola, Antigua and Barbuda, Barbados, Belize, Brunei Darussalam, Burundi, Cameroon, Cape Verde, Chad, Comores, Gambia, Guinea-Bissau, Honduras, Jamaica, Kenya, Liberia, Mauritius, Mozambique, Nigeria, Saint Lucia, Timor-Leste, Togo, Uganda, Ukraine, Viet Nam. 
As a result, the total number of Parties that have expressed their intention to be listed as agreeing to the Accord is 140. “

 

Strategic enticement of being part of the herd

And then invites other parties to join

“(Further Parties who wish to be listed, kindly send respective communications to This e-mail address is being protected from spambots. You need JavaScript enabled to view it ``

 

``Communications received from Parties in relation to the listing in the chapeau of the Copenhagen Accord can be found here.``

 

But does support gained through devious means  bestow legitimacy? After careful manipulation, the Copenhagen Accord is given value because it has potentially 70% adherents. This practice of post bestowing post-coercion legitimacy is discrediting the UN. The original fact that the Accord was imposed by a few - the major greenhouse gas emitting states - on the many - the developing and most vulnerable and least developed states - rather than the many -– the developing  the most vulnerable and least developed states –requiring the few that are the primary contributors to greenhouse gas emissions to act  -IS LOST.  Given that it is the major greenhouse gas producing states that have been primarily responsible for climate change should it not now be the 75% of the states - the least responsible and most affected to determine what should be done to attempt to address the urgency of the climate change. And then invite others to join.

 

 

.

 

 

November 29 2010: Cancun Cop 16 Opening Ceremony

 

Compromise is not an act of wisdom; science must not be sacrificed

 

In Cancun, Dr. Molino opened the conference and made a statement that undoubtedly was intended to give credibility to the Copenhagen Accord; he stated that 100 state leaders had agreed that the temperature should not rise above 2 degrees - coincidentally the message in the Copenhagen Accord. Either he was not at Copenhagen or he did not pay attention to the pleas of the developing states representing140 states.  The majority of the developing states were calling for the rise in temperature to remain below 1.5 degrees and some states were demanding that the temperature should NOT rise above 1 degree.

 

As Dr Molina left the plenary, I called out to him from behind the Press barricade, and when he came over, I pointed out that he had made an error when he stated that 100 states had supported the threshold of 2 degrees. I then indicated   that most scientists  now agree that the temperature should not rise above 1 degree, and asked him if he should not be asking for what science demands. He responded ``the US would never agree to anything less than 2 degrees

 

Subsequently, there was a US press Conference by Dr Pershing, the head of the US delegation and after the US press Conference,  I  told Pershing  about my  conversation with Dr Molina. Pershing then engaged in ad homonym critique of Molina, and then I said, ``Science should never be compromised. `` His handlers took him away.

 

Compromise taken to new heights as being an act of wisdom

 

Also at the opening plenary, Christiana Figueras carried the spirit of

compromise to a new level and proclaimed that compromise is an act of wisdom.

Compromise is the sacrificing of principle; and in Cancun by compromising through building on the flawed Copenhagen Accord, through refusing to agree to new commitment  period for the Kyoto Protocol, and through ignoring the emerging science, Cancun conference  would not demonstrate “wisdom.``

Emerging science clearly indicates that the 2 degrees threshold   in the 2007 IPCC report which was based primarily on 2004 and 2005 data is  no longer deemed to be scientifically valid. And that in order to honour and operationalize the firm obligation in Article 2 of the UNFCCC-to prevent dangerous anthropogenic interference with the climate system- states must implement stringent measures to keep the rise in temperature below 1 degree Celsius.

Science and principles cannot be compromised because the major greenhouse gas emitters will only agree to maintain the temperature just  below 2 degrees, because they  refuse to operationalize the principles of the Convention and because they renege on obligations related to the Kyoto Protocol.

 

Consensus process affirmed on first day

Again in Cancun, Papua New Guinea proposed that there be a fall back of 75%. Again there was little support perhaps because some countries such as Bolivia  might have feared that now that 140 states either voluntary or though coercion , or cheque book diplomacy have taken not of the Copenhagen Accord or have communicated their wish to be part of the Copenhagen Accord, that the conference could proceed to make the flawed document legally binding

November 30, 2010: Emergence of The Chair`S Text

 

All references to the Tjanin negotiated text and to proposals from Bolivia and the Cochabamba People’s Agreement have vanished.

The basis of the text is obviously building on the Copenhagen Accord with 2 degrees listed as the ceiling. The following is a section from the text:

 

 

2. We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius, and take action to meet this objective consistent with science and on the basis of equity. We should cooperate in achieving the peaking of global and national emissions as soon as possible, recognizing that the time frame for peaking will be longer in developing countries and bearing in mind that social and economic development and poverty eradication are the first and overriding priorities of developing countries and that a low-emission development strategy is indispensable to sustainable development.

 

 

I attended the Press Conference given by the spokesperson from the Mexican Department of Foreign Affairs.  I asked for the reason for supplanting the Tjanin document which contained the Bolivian recommendations with the Chair`s text. He responded that he did not know. Obviously this is a serious flaw in the UN negotiating process when  the bracketed sections  contained in the negotiating text from Tjanin are removed, by the chair, in favour of the position contained in the Copenhagen Accord 

 

The question has to be answered if the UNFCCC COP process is going to have any credibility.  Why is the Chair of the Conference given the power to remove brackets and defy the UN Negotiating process?

 

I tried to ask at EU press conferences  how they would be incorporating the decisions of the Cochabamba Accord into the negotiations?  But I was not acknowledged because I had already asked a question the day before.

 

I attended Bolivia’s Press Conference on November 30 and  asked Ambassador Solon a question: ``In the event that the Cochabamba proposal to have an international tribunal were not put back into the  negotiating text would he be prepared to join with other developing states to take the major greenhouse gas emitting states to the International Court of Justice?`` He indicated that there had been some discussion.

 

Principles must be operationalized not compromised

Compromising science is not wisdom  and equally compromising principles is not wisdom. Throughout the Chair`s text there is a call to abide by principles in the UNFCCC Convention.

 

 In the UNFCCC are the intergenerational principle, the common but differentiated responsibility principle, and the precautionary principle.

 

The intergenerational principle

The essence of the intergenerational principle is “to protect the climate system for present and future generations” ; the rights of future generations will be violated if the global community fails to act now by committing to strong and immediate reductions on greenhouse gas emissions.  To prevent the devastating impacts of climate change a recent report from UNEP indicated that the pledges in Copenhagen would not even be sufficient to contain the rise in temperature to 2 degrees. The chair`stext only reifies the pledges in the Copenhagen Accord, which the UNEP report indicate would achieve only 60% of the necessary greenhouse gas emissions necessary to prevent the rise in temperature above 2 degrees.

The perpetuation of the inadequate pledges undermines the intergenerational principle. When the report was referred to at the EU press conference, I asked how is it possible then that in Cancun, there seems to be acceptance of the inadequate pledges in the Copenhagen Accord.

 

The principle of common but differentiated responsibility

The essence of the principle of common but differentiated responsibility has been defined in principle 7 of the 1992 Rio Declaration which was adopted by all states at the UN Conference on Environment and Development (UNCED). This principle states that:

“States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. “ (Principle 7, Rio Declaration)  If this principle were seriously operationalized to respect  the major greenhouse gas contributions of the major greenhouse gas emitters, the percentage of greenhouse gas emissions would be mandatory and considerably higher than in the Copenhagen Accord.

 

Precautionary Principle.

The essence of the precautionary principle is that where there is threat of climate change, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent the threat.  By affirming the acceptable limit in the rise in temperature to 2 degrees, the chair`s text does not operationalize the precautionary principle. The 2 degree rise limit was in the 2007 IPCC report which functioned on a ceiling of 90 percent which was  close to full scientific certainty.  To act with precaution, states should take heed of the emerging science that indicates, the situation is much more urgent. While it is important to assist in adaption, prevention is still the best way of embodying the precautionary principle. It was quite clear from the text and from the press conferences that the major greenhouse gas emitting states were more comfortable offsetting their emissions rather than preventing them

 

Throughout the Cancun Conference the interpretation of the three above principles appears to be more the seeking of ways to defy the above principles

 

December 8 2010: Chair`s New Text-

 

Momentary minor appeasement

 

In this text the Chair reintroducing the bracket sections related to `Degrees -  1 1.5 and 2.

 

While the Chair reintroduced the bracket  section on the temperature rise, she did not re-introduce  key Tjainin bracketed section, such as establishing an international  Tribunal.

 

I attended the press conference given by President   Rafael Correaof Ecuador, and asked him : In the event  that the proposal from the Cochabamba conference of having an international  tribunal set up was not in the Cancun text, would he be prepared to join in with other developing  states in taking the most egregious greenhouse gas emitting states to the international court of Justice for failing to discharge their obligations under the UNFCCC and the Kyoto Protocol.  He responded that there had been some discussion about that.

 

 

December 10:  Waiting For Final Text

 

Prior to the release of the final text, I attended a press conference given by Bolivia, by the Chair of the African Caucus and the Chair of the least developed states. They were not able to comment on the final text as it had not yet been released. The representative from the African Caucus stated that the decisions must be based on science and the law. I asked if he thought that the current negotiations were based on science and law if the negotiators were using the 2007 IPCC report based on data from 2004 and 2005 and the ignoring the emerging science, reported by IPCC representative at Copenhagen, that at 2 degrees the poor, the disadvantaged, and the vulnerable would not survive, and at 1.5 degrees they might. 

 

Summit 2 offsetting Summit 1

.

Throughout the conference there were press conferences lauding a million here and a million there bestowed on vulnerable and least developed states instead of firm commitments to substantially reduce emissions to prevent the dangerous anthropogenic levels as required in Article 2 of the UNFCCC. At one of these press conferences, I raised the issue of this being conscience money, perceived to give legitimacy to developed states to do nothing. On the final day Achim Steiner, the head of UNEP was on a panel with yet another magnanimous offer of a few million. He indicated that there were really two summits: The first was the negotiating process and the second one were the agreements to fast track funding to help. I asked if he thought that the second summit offset the pressure on the first summit to seriously reduce emissions. He responded that he disagreed and thought that the Summit II would motivate Summit 1 to move further. I am not convinced!

 

December 10: Final Text and Plenary

 

Cobbled text

Late in the Afternoon, the chair`s text was finally released. This text was intended to be the final negotiating text – again 1 and 1.5 was removed leaving only the limit of 2 degrees with some reference to 1.5 down the road taking into consideration of science. The Chair had cobbled up recommendations from the various working groups for the final text.

Spurious definition of consensus redefinition of consensus

 

Documents distributed formally.

 

Plenary called and states were given two hours to review the text.

 

When they returned, concern was justifiably expressed by Bolivia, but most states applauded themselves for such a successful negotiated text. And the chair ruled that consensus could not be blocked by one state and that Bolivia concerns would be noted as a reservation.  NOTE THE SELECTIVE TREATMENT IF THE US HAD NOT AGREED THE AGREEMENT WOULD BE BLOCKED.

Post Cancun

Bolivia announces will seek redress through International Court of Justice for flawed UN process related to Consensus

Bolivia is also justified in seeking redress for the abuse of UN process by not only the major greenhouse gas emitting states but also by the Chair.

Other justifiable legal actions could be taken

In addition the proposal by Bolivia and in the People Agreement from Cochabamba to institute an International Tribunal under the UNFCCC is no longer in the current Cancun Agreement. This leaves no other recourse for Bolivia and other states but to launch cases in the ICJ or in the Chamber on Environmental Matters against the egregious greenhouse gas-producing states that are signatories of the UN Convention on Climate Change, and its Kyoto Protocol.

 

Launching a case of criminal negligence under the ICJ

The International Court of Justice (ICJ) and the Chamber on Environmental Matters under the ICJ are competent organs to address the failure of states to comply with obligations incurred under the UNFCCC;

Given the urgency of the issue of climate change and the reluctance of the major Greenhouse gas emitting states to act, there could be a justifiable case of Criminal negligence.

In the apparent absence of an international definition of what constitutes criminal negligence, there appears to be common components within national statutes of what constitutes criminal negligence.

Canadian common law provides useful guidance because Canada has a system of law drawn from both the Common Law and the Civil Code systems.

Under Canadian law “Environmental negligence” suits focus on compensation for loss caused by unreasonable conduct that damages legally protected interests. Unreasonable conduct means doing something that a prudent or reasonable person would not do, or failing to do something that a reasonable person would do. The plaintiff must establish certain key elements of the tort — cause in fact and proximate cause, damages, legal duty, and breach of the standard of care. Note that fault may be found even in the case of unintended harm if it stems from unreasonable conduct.

The Criminal Code (Section 219) is even clearer that lack of intent to harm is no defence if damage results from conscious acts performed in careless disregard for others: “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where ‘duty’ means a duty imposed by law). Significantly, Section 222(5) (b) states that “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being, by being negligent (emphasis added) (Cited by Bill Rees in his piece “Is Canada criminally negligent”).

United Kingdom common law also provides similar guidance. Under United Kingdom Law: Criminal Negligence need only show that a person failed to act within the standards of a reasonable man. The WHO has confirmed that there are already large numbers of fatalities and will be many more as a result of the failure to act on climate change prevention. Manslaughter can be defined expressly In terms of negligence, but it must be gross. Additionally all statutory offences do not need to employ the word negligence but often impose liability for negligence. The minimum fault element should be based on the reasonable cause to believe. The AR4 IPCC report provides reasonable cause to believe and this is very significantly accentuated by the recent accepted science that things are actually far worse than stated in AR4. You are not required to prove a state of mind although the accused knowledge of the facts is relevant in determining reasonable cause. The offence is still committed if the accused has made an unreasonable mistake of fact and this is a limit to the defence that a person did not know. The need for a mistake to be reasonable as a defence is actually less relevant than before since the Minor v DPP case in 2000. Parliament requires mistakes to be based on reasonable grounds as well. The Statutes often put the burden of proof on the accused such as within the Trade Description Act

Application and enforcement of the transboundary principle in relation to climate change

The ICJ should also be asked for an advisory opinion on the extension and application of the transboundary principle to failure to take seriously the responsibility to not harm other states though the greenhouse gas emissions arising in Nation states.

Under the transboundary principle, that has become a peremptory norm, all states have the responsibility, when carrying out activities in their own jurisdiction – water, air, and land - to not impact on other states, not only on adjacent states. It is clear that the activities in the major greenhouse gas emitting states have impacted on other states. States, as signatories of the UNFCCC, have a legal duty to keep greenhouse gas emissions below the dangerous anthropogenic level. It could be argued that by continuing to ignore their responsibility to other states and by not discharging their legal duty to seriously reduce greenhouse gas emissions, the major greenhouse gas emitting states, especially those with high per capita emissions, are guilty of gross negligence and even criminal negligence. Not acting to reduce greenhouse gases demonstrates dereliction of duty and unreasonable conduct because it is an action that a prudent or reasonable person would not do. A person may be considered to be criminally negligent when he/she does something or omits to do anything that it is his/hers duty to do, and shows wanton or reckless disregard for the lives or safety of other persons

The lack of intent to harm may not constitute a defence if damage results from conscious acts performed in careless disregard for others: The basis of the evaluations should be that “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where ‘duty’ means a duty imposed by law).

Having International Court declare the Cancun Agreement null and void.

There was  an opportunity in Cancun to  be replace “the take note“  Copenhagen Accord with a legally binding Cancun Protocol based on credible emerging scientific and institutional data and on the principle of differentiated responsibility and not on the vested economic interests of the fossil fuel emitting corporate states. Unfortunately, this did not materialize. It is clear that the year-long process of coercing reluctant states to adopt the Copenhagen Accord unfortunately worked.  Sadly, not only the pleas of the most vulnerable states but also the emerging science and fundamental peremptory norms and principles were ignored. Thus the Cancun agreement must be deemed null and void, under Article 53 of the Vienna Convention on the Laws of Treaties.

Invoking Article 22 of the Charter of United Nations to set up an international Tribunal to try major greenhouse gas emitting states for failure to discharge obligations under the UNFCCC and the Kyoto Protocol

In addition the UN General Assembly could invoke Article 22 of the Charter of the United Nations, and set up an international tribunal to investigate the states that continue to engage in practices which will cause the global community to reach the dangerous anthropogenic level of interference with the climate change.

Major greenhouse gas-producing states must be legally forced to implement the actions that would discharge the obligations incurred when they signed and ratified the UNFCCC. In addition, historic emissions should be calculated and an assessment made of the degree of dereliction of duty in the implementation of the UNFCCC. From these assessments, provisions must be made to compensate the states that have been most damaged by the failure to discharge obligations under the Convention (the climate debt). In such cases, a fund should be set up to assist vulnerable states in taking delinquent states to the International Court of Justice. These resources should be put into a fund for the Implementation of the UNFCCC; and the proposal in the Peoples Agreement from Cochabamba of setting up of an international Tribunal to process states that have consistently failed to discharge their obligations under the UNFCCC and the Kyoto Protocol.

Examining the possibility that specific state leaders could be tried under the ICC

The International Criminal Court should be able to extend its jurisdiction to cover crimes against humanity resulting from irreversible consequences of climate change.

 

 

FROM COPENHAGEN TO CANCUN- A PATHWAY OF ERRORS THAT DISCREDITS THE UNITED NATIONS PROCESS; ONLY RECOURSE IS TO GO TO THE INTERNATIONAL COURT OF JUSTICE.

 

or events leading up to  the  justification  for Bolivia taking action through the International Court of Justice, or through other legal channels 

 

Joan Russow

Global Compliance Research Project December 15. 2010

www.climatechangecancun

·         prepared for and posted on the Watershed Sentinel BLOG http://www.watershedsentinel.ca/documents/From%20Copenhagen%20To%20Cancun.pdf

 

A sequence of events

 

DECEMBER 7, 2009 OPENING PLENARY IN COPENHAGEN

 

 A lost Opportunity

 

On the first day, of the Conference in Copenhagen, Papua New Guinea had proposed that the parties strive for consensus with a fall back on 75%; the request was summarily dismissed by the chair. This voting mechanism was proposed to prevent the conference from descending to the lowest denominator. The proposal was justifiable given that the UNFCCC was adopted by 79% of the UN states at the time.  Unfortunately,   if there had been a fall back on 75 %, there would probably have been a legal agreement with some firm commitments; an agreement supported by most the G77 group –representing over 130 states, along with developing states not members of the G77, and along with many state members of the European Union.   Clearly, this potentially legal agreement would not have been endorsed by the US and other major greenhouse gas emitting states; but it could have been used, both ethically and legally at the International Court of Justice,  to point out   how the major greenhouse gas emitting states, signatories of the Convention have continued to fail to discharge their legally binding obligations under the UNFCCC, including- Article 2, along with other key principles of  the Convention .

 

In Copenhagen, Bolivia  was seriously respecting the emerging science, adhering to principles in the UNFCCC and addressing the urgency  by demanding that the temperature not  rise above 1 degree, and the parts per million must return to 300 ppm.

 

December 8, 2009, Press Conference.

 

Some states are more equal than others

 

At the formal press Conference of the Secretariat, I raised the issue of the dismissing of Papua New Guinea’s proposal of a fall back of 75%. During several prior press conferences every one lamented that there would not be a legally binding document because the US had not been authorized by Congress to enter into a legally binding agreement. At above press Conference of the Secretariat,  I asked Yvo de Boer Executive Secretary of the UN Framework Convention on Climate Change, whether it would not be better for there to be a legally binding agreement among 75% of the states and the US and other states could list reservations. Secretary De Boer answered that the US had to be part of the agreement, and I added that there was a precedent where the US was not part of the Convention on the Law of Treaties and entered a reservation. Obviously not all states are perceived to be equal. So much for the principle of the sovereignty of states in the Charter of the United Nations!

 

 

 DECEMBER 18, 2009: 3am

 

The mighty roared and the mighty flag waved

 

What happened instead at Copenhagen was a striving for consensus with a fall back of around 10% if not 5%; the Copenhagen Accord drafters ignored the pleas of the developing states, not even accommodating common concerns but only the concerns of the major greenhouse gas emitting states. At Copenhagen, in the middle of the night there was the “We have a deal” edict coming from President Obama flanked by American flags. This `deal` `affirmed the limit of 2 degrees, and contained modest and insufficient pledges to reduce greenhouse gas emissions.

 

 It is clear that this edict was an affront to the UN multilateral process, to the procedure of consensus and to the majority of the member states of the United Nations - most of whom were calling for the temperature to not rise above 1.5 if not 1 degree. Not only was it an affront to the UN and to the majority of states but also to principles within the UNFCCC and to peremptory norms within the UN system.

 

Immediately after Cancun,  the developing states that refused to take note of the Copenhagen Accord  should have declared that Take-note Copenhagen Accord to be null and void under Article 53 of the Vienna Convention on the Law of Treaties.

 

Under Article 53 of the Convention on the Law of Treaties, treaties conflicting with a peremptory norm of general international law (jus cogens) are null and void.

"A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character."

 

 To be designated as a peremptory norm, the norm must be accepted and recognized as a peremptory norm by the internationally community of states as a whole. Peremptory norms can be extracted from years of international instruments agreed to by a broad group of states, from widely divergent geographical areas, functioning under a range of legal systems,

These norms are derived from instruments that guarantee human rights including social, economic and cultural rights, civil and political rights, labour rights, women’s rights and indigenous rights; that ensure social justice, that protect and conserve the environment, move away from the overconsumptive model of development and reduce the ecological footprint and that prevent war and conflict.

 

It could have been argued at the ICJ or the Chamber on Environment  Matters in the ICJ, that the Copenhagen  Accord by failing to substantially address the necessary measures to prevent  dangerous anthropogenic interference with the climate system, the Accord would contravene Article 2 of the UNFCCC. In addition the Accord would contribute to the violation of numerous peremptory norms affirmed through years of United Nations negotiations of legally binding treaties, conventions and covenants, conference action plans and declarations and resolutions. And under Article 53 of the Vienna Convention on the Law of Treaties, an agreement would be declared null and void if it violated international peremptory norms.

 

 

DECEMBER 19, 2009 TO NOVEMBER 29, 2010  

 

 Intermezzo between the Copenhagen Accord and the beginning of Cancun

 

Legitimate multilateral inclusive processes

 

Peoples Conference on Climate Change

 

 

After Copenhagen, President Morales, understandably upset with the US ignoring the pleas of the developed states, decided to hold another process in Cochabamba - a process that would enable open interaction among states, civil society and indigenous peoples.  The powerful People’s Agreement which emerged from the April Conference in Cochabamba was endorsed by over 35,000 representatives of civil society, indigenous peoples and some governments.  During the year, Pablo Solon,  the Bolivian Ambassador to the UN, participated in numerous UN processes under the UNFCCC, and valiantly struggled  to include the conclusions of Cochabamba People`s Agreement  in the negotiating documents.

 

August 16; Climate Change  Conference in Bonn

 

In August, Ambassador Solon reported after the climate change conference in Bonn, that proposals from the Cochabamba/Peoples Agreement are still in the negotiating document.

 

``The proposals of “Peoples Agreement” in the texts for the UN negotiations on climate change

After a week of negotiations, the main conclusions of the World Peoples Conference on Climate Change and the Right of Mother Earth (Cochabamba, April 2010) have been incorporated in the document of United Nations on Climate Change, that now have been recognized as a negotiation text for the 192 countries which has been congregated in Bonn, Germany, during the first week august of 2010.

 

The most important points that have been incorporated for its consideration in the next round of negotiation before Cancun, that will take place in China, are:

   * 50 % reduction of greenhouse gasses emission by developed countries for second period of commitments from the Kyoto Protocol years 2013 to 2017.
   * Stabilize the rise of temperature to 1 C and 300 parts for million of carbon dioxide in the atmosphere.
   * To guarantee an equitable distribution of atmospheric space, taking into account the climate debt of emissions by developed countries for developing countries.
   * Full respect for the Human Rights and the inherent rights of indigenous peoples, women, children and migrants.
   * Full recognition to the United Nations Declaration on of Indigenous Peoples Rights.
   * Recognition and defense of the rights of Mother Earth to ensure harmony with nature.
   * Guarantee the fulfillment of the commitments from the developed countries though the building of an International Court of Climate Justice.
   * Rejection to the new mechanisms of carbon markets that transfer the responsibility of the reduction in emissions of greenhouse gases from developed countries to developing countries.
   * Promotion of measures that change the consumption patterns of the developed countries.
   * Adoption of necessary measures in all relevant forums to be excluded from the protection of the intellectual property rights to technologies and ecologically sustainable useful to mitigate climate change.
   * Developed countries will allocate 6% of their national gross product to actions relatives to Climate Change.
   * Integrated management of forest, to mitigation and adaptation, without market mechanics and ensuring the full participation of indigenous peoples and local communities.
   * Prohibition of the conversion of natural forest for plantations, since the monoculture plantations are not forest, instead should encourage the protection and conservation of natural forests.``

 

 

October 8. 2010: Tianjin Climate Change Conference

Similarly, Ambassador Solon reported that that many of the key proposals from Cochabamba were still in the agreed to text negotiated in China.

 

Illegitimate Closed Exclusive Processes

 

While Bolivia was involved with open inclusive and multilateral processes, the pro-Copenhagen Accord states were active behind the scenes engaging in many bilateral meetings, or mini events and conferences to pressure states to support the Copenhagen Accord

 

Throughout the year there were these closed ``meetings outside the UN process where the pro-Copenhagen Accord forces were excluding states, (e.g. REDD meeting in Norway) that had not taken  note of the Copenhagen Accord from participating or they were cajoling, coercing or using cheque book diplomacy to encourage developing states, especially vulnerable states, (e.g. vulnerable states meeting in Kiribati) to take note of the Copenhagen Accord. In Kiribati,the most vulnerable states were induced, most likely by the participation of the US, Canada, Japan, Australia and Great Britain, to agree to take note of the Copenhagen Accord in the Ambo Declaration.  

 

 

 

The intent behind the pressure on the most vulnerable was to agree to create a legal binding document out of the Copenhagen Accord, to in essence ignore a second period of Kyoto commitment, and essentially undermine the principles in the UNFCCC.

 

PRE- NOVEMBER 29 2010:  COP16 in Cancun

 

Copenhagen Accord promoted on UNFCCC COP 16 website

The building in Cancun on the Copenhagen Accord discredits the United Nations by compromising on science and principle and by undermining the UNFCCC. Yet the Cancun UNFCCC website prominently displayed the Copenhagen accord.

 

From the Website;

 

Bali Road Map

AWG-KP

AWG-LCA

 

 

COP 15 / CMP

Copenhagen Accord

 

.

 

 

 

On the site is the pronouncement that the Copenhagen Accord has been taken note of by 114 states and that about 36 other states have communicated their indication of potential support. The site then reports that the Copenhagen Accord would then have 140 states taking note of the Accord.  [obviously, without mentioning the devious strategies that had been used to coerce states to join in]

 

Post coercion legitimacy

The site attempts to bestow legitimacy in the following way:

``Conference of the Parties (COP), at its fifteenth session, took note of the Copenhagen Accord of 18 December 2009 by way of decision 2/CP.15. The text of the Copenhagen Accord can be found here.

The chapeau of the Copenhagen Accord lists the following 114 Parties agreeing to the Accord:*

Albania, Algeria, Armenia, Australia, Austria, Bahamas, Bangladesh, Belarus, Belgium, Benin, Bhutan, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cambodia, Canada, Central African Republic, Chile, China, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Djibouti, Eritrea, Estonia, Ethiopia, European Union, Fiji, Finland, France, Gabon, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guyana, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kazakhstan, Kiribati, Lao People's Democratic Republic, Latvia, Lesotho, Liechtenstein, Lithuania, Luxemburg, Madagascar, Malawi, Maldives, Mali, Malta, Marshall Islands, Mauritania, Mexico, Monaco, Mongolia, Montenegro, Morocco, Namibia, Nepal, Netherlands, New Zealand, Norway, Palau, Panama, Papua New Guinea, Peru, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Samoa, San Marino, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Swaziland, Switzerland, The Former Yugoslav Republic of Macedonia, Tonga, Trinidad and Tobago, Tunisia, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Zambia.

Since the issuance of the report of the COP on its fifteenth session, the secretariat has received communications from the following Parties expressing their intention to be listed as agreeing to the Accord:

Afghanistan, Angola, Antigua and Barbuda, Barbados, Belize, Brunei Darussalam, Burundi, Cameroon, Cape Verde, Chad, Comores, Gambia, Guinea-Bissau, Honduras, Jamaica, Kenya, Liberia, Mauritius, Mozambique, Nigeria, Saint Lucia, Timor-Leste, Togo, Uganda, Ukraine, Viet Nam. 
As a result, the total number of Parties that have expressed their intention to be listed as agreeing to the Accord is 140. “

 

Strategic enticement of being part of the herd

And then invites other parties to join

“(Further Parties who wish to be listed, kindly send respective communications to This e-mail address is being protected from spambots. You need JavaScript enabled to view it ``

 

``Communications received from Parties in relation to the listing in the chapeau of the Copenhagen Accord can be found here.``

 

But does support gained through devious means  bestow legitimacy? After careful manipulation, the Copenhagen Accord is given value because it has potentially 70% adherents. This practice of post bestowing post-coercion legitimacy is discrediting the UN. The original fact that the Accord was imposed by a few - the major greenhouse gas emitting states - on the many - the developing and most vulnerable and least developed states - rather than the many -– the developing  the most vulnerable and least developed states –requiring the few that are the primary contributors to greenhouse gas emissions to act  -IS LOST.  Given that it is the major greenhouse gas producing states that have been primarily responsible for climate change should it not now be the 75% of the states - the least responsible and most affected to determine what should be done to attempt to address the urgency of the climate change. And then invite others to join.

 

 

.

 

 

November 29 2010: Cancun Cop 16 Opening Ceremony

 

Compromise is not an act of wisdom; science must not be sacrificed

 

In Cancun, Dr. Molino opened the conference and made a statement that undoubtedly was intended to give credibility to the Copenhagen Accord; he stated that 100 state leaders had agreed that the temperature should not rise above 2 degrees - coincidentally the message in the Copenhagen Accord. Either he was not at Copenhagen or he did not pay attention to the pleas of the developing states representing140 states.  The majority of the developing states were calling for the rise in temperature to remain below 1.5 degrees and some states were demanding that the temperature should NOT rise above 1 degree.

 

As Dr Molina left the plenary, I called out to him from behind the Press barricade, and when he came over, I pointed out that he had made an error when he stated that 100 states had supported the threshold of 2 degrees. I then indicated   that most scientists  now agree that the temperature should not rise above 1 degree, and asked him if he should not be asking for what science demands. He responded ``the US would never agree to anything less than 2 degrees

 

Subsequently, there was a US press Conference by Dr Pershing, the head of the US delegation and after the US press Conference,  I  told Pershing  about my  conversation with Dr Molina. Pershing then engaged in ad homonym critique of Molina, and then I said, ``Science should never be compromised. `` His handlers took him away.

 

Compromise taken to new heights as being an act of wisdom

 

Also at the opening plenary, Christiana Figueras carried the spirit of

compromise to a new level and proclaimed that compromise is an act of wisdom.

Compromise is the sacrificing of principle; and in Cancun by compromising through building on the flawed Copenhagen Accord, through refusing to agree to new commitment  period for the Kyoto Protocol, and through ignoring the emerging science, Cancun conference  would not demonstrate “wisdom.``

Emerging science clearly indicates that the 2 degrees threshold   in the 2007 IPCC report which was based primarily on 2004 and 2005 data is  no longer deemed to be scientifically valid. And that in order to honour and operationalize the firm obligation in Article 2 of the UNFCCC-to prevent dangerous anthropogenic interference with the climate system- states must implement stringent measures to keep the rise in temperature below 1 degree Celsius.

Science and principles cannot be compromised because the major greenhouse gas emitters will only agree to maintain the temperature just  below 2 degrees, because they  refuse to operationalize the principles of the Convention and because they renege on obligations related to the Kyoto Protocol.

 

Consensus process affirmed on first day

Again in Cancun, Papua New Guinea proposed that there be a fall back of 75%. Again there was little support perhaps because some countries such as Bolivia  might have feared that now that 140 states either voluntary or though coercion , or cheque book diplomacy have taken not of the Copenhagen Accord or have communicated their wish to be part of the Copenhagen Accord, that the conference could proceed to make the flawed document legally binding

November 30, 2010: Emergence of The Chair`S Text

 

All references to the Tjanin negotiated text and to proposals from Bolivia and the Cochabamba People’s Agreement have vanished.

The basis of the text is obviously building on the Copenhagen Accord with 2 degrees listed as the ceiling. The following is a section from the text:

 

 

2. We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth Assessment Report with a view to reduce global emissions so as to hold the increase in global temperature below 2 degrees Celsius, and take action to meet this objective consistent with science and on the basis of equity. We should cooperate in achieving the peaking of global and national emissions as soon as possible, recognizing that the time frame for peaking will be longer in developing countries and bearing in mind that social and economic development and poverty eradication are the first and overriding priorities of developing countries and that a low-emission development strategy is indispensable to sustainable development.

 

 

I attended the Press Conference given by the spokesperson from the Mexican Department of Foreign Affairs.  I asked for the reason for supplanting the Tjanin document which contained the Bolivian recommendations with the Chair`s text. He responded that he did not know. Obviously this is a serious flaw in the UN negotiating process when  the bracketed sections  contained in the negotiating text from Tjanin are removed, by the chair, in favour of the position contained in the Copenhagen Accord 

 

The question has to be answered if the UNFCCC COP process is going to have any credibility.  Why is the Chair of the Conference given the power to remove brackets and defy the UN Negotiating process?

 

I tried to ask at EU press conferences  how they would be incorporating the decisions of the Cochabamba Accord into the negotiations?  But I was not acknowledged because I had already asked a question the day before.

 

I attended Bolivia’s Press Conference on November 30 and  asked Ambassador Solon a question: ``In the event that the Cochabamba proposal to have an international tribunal were not put back into the  negotiating text would he be prepared to join with other developing states to take the major greenhouse gas emitting states to the International Court of Justice?`` He indicated that there had been some discussion.

 

Principles must be operationalized not compromised

Compromising science is not wisdom  and equally compromising principles is not wisdom. Throughout the Chair`s text there is a call to abide by principles in the UNFCCC Convention.

 

 In the UNFCCC are the intergenerational principle, the common but differentiated responsibility principle, and the precautionary principle.

 

The intergenerational principle

The essence of the intergenerational principle is “to protect the climate system for present and future generations” ; the rights of future generations will be violated if the global community fails to act now by committing to strong and immediate reductions on greenhouse gas emissions.  To prevent the devastating impacts of climate change a recent report from UNEP indicated that the pledges in Copenhagen would not even be sufficient to contain the rise in temperature to 2 degrees. The chair`stext only reifies the pledges in the Copenhagen Accord, which the UNEP report indicate would achieve only 60% of the necessary greenhouse gas emissions necessary to prevent the rise in temperature above 2 degrees.

The perpetuation of the inadequate pledges undermines the intergenerational principle. When the report was referred to at the EU press conference, I asked how is it possible then that in Cancun, there seems to be acceptance of the inadequate pledges in the Copenhagen Accord.

 

The principle of common but differentiated responsibility

The essence of the principle of common but differentiated responsibility has been defined in principle 7 of the 1992 Rio Declaration which was adopted by all states at the UN Conference on Environment and Development (UNCED). This principle states that:

“States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. “ (Principle 7, Rio Declaration)  If this principle were seriously operationalized to respect  the major greenhouse gas contributions of the major greenhouse gas emitters, the percentage of greenhouse gas emissions would be mandatory and considerably higher than in the Copenhagen Accord.

 

Precautionary Principle.

The essence of the precautionary principle is that where there is threat of climate change, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent the threat.  By affirming the acceptable limit in the rise in temperature to 2 degrees, the chair`s text does not operationalize the precautionary principle. The 2 degree rise limit was in the 2007 IPCC report which functioned on a ceiling of 90 percent which was  close to full scientific certainty.  To act with precaution, states should take heed of the emerging science that indicates, the situation is much more urgent. While it is important to assist in adaption, prevention is still the best way of embodying the precautionary principle. It was quite clear from the text and from the press conferences that the major greenhouse gas emitting states were more comfortable offsetting their emissions rather than preventing them

 

Throughout the Cancun Conference the interpretation of the three above principles appears to be more the seeking of ways to defy the above principles

 

December 8 2010: Chair`s New Text-

 

Momentary minor appeasement

 

In this text the Chair reintroducing the bracket sections related to `Degrees -  1 1.5 and 2.

 

While the Chair reintroduced the bracket  section on the temperature rise, she did not re-introduce  key Tjainin bracketed section, such as establishing an international  Tribunal.

 

I attended the press conference given by President   Rafael Correaof Ecuador, and asked him : In the event  that the proposal from the Cochabamba conference of having an international  tribunal set up was not in the Cancun text, would he be prepared to join in with other developing  states in taking the most egregious greenhouse gas emitting states to the international court of Justice for failing to discharge their obligations under the UNFCCC and the Kyoto Protocol.  He responded that there had been some discussion about that.

 

 

December 10:  Waiting For Final Text

 

Prior to the release of the final text, I attended a press conference given by Bolivia, by the Chair of the African Caucus and the Chair of the least developed states. They were not able to comment on the final text as it had not yet been released. The representative from the African Caucus stated that the decisions must be based on science and the law. I asked if he thought that the current negotiations were based on science and law if the negotiators were using the 2007 IPCC report based on data from 2004 and 2005 and the ignoring the emerging science, reported by IPCC representative at Copenhagen, that at 2 degrees the poor, the disadvantaged, and the vulnerable would not survive, and at 1.5 degrees they might. 

 

Summit 2 offsetting Summit 1

.

Throughout the conference there were press conferences lauding a million here and a million there bestowed on vulnerable and least developed states instead of firm commitments to substantially reduce emissions to prevent the dangerous anthropogenic levels as required in Article 2 of the UNFCCC. At one of these press conferences, I raised the issue of this being conscience money, perceived to give legitimacy to developed states to do nothing. On the final day Achim Steiner, the head of UNEP was on a panel with yet another magnanimous offer of a few million. He indicated that there were really two summits: The first was the negotiating process and the second one were the agreements to fast track funding to help. I asked if he thought that the second summit offset the pressure on the first summit to seriously reduce emissions. He responded that he disagreed and thought that the Summit II would motivate Summit 1 to move further. I am not convinced!

 

December 10: Final Text and Plenary

 

Cobbled text

Late in the Afternoon, the chair`s text was finally released. This text was intended to be the final negotiating text – again 1 and 1.5 was removed leaving only the limit of 2 degrees with some reference to 1.5 down the road taking into consideration of science. The Chair had cobbled up recommendations from the various working groups for the final text.

Spurious definition of consensus redefinition of consensus

 

Documents distributed formally.

 

Plenary called and states were given two hours to review the text.

 

When they returned, concern was justifiably expressed by Bolivia, but most states applauded themselves for such a successful negotiated text. And the chair ruled that consensus could not be blocked by one state and that Bolivia concerns would be noted as a reservation.  NOTE THE SELECTIVE TREATMENT IF THE US HAD NOT AGREED THE AGREEMENT WOULD BE BLOCKED.

Post Cancun

Bolivia announces will seek redress through International Court of Justice for flawed UN process related to Consensus

Bolivia is also justified in seeking redress for the abuse of UN process by not only the major greenhouse gas emitting states but also by the Chair.

Other justifiable legal actions could be taken

In addition the proposal by Bolivia and in the People Agreement from Cochabamba to institute an International Tribunal under the UNFCCC is no longer in the current Cancun Agreement. This leaves no other recourse for Bolivia and other states but to launch cases in the ICJ or in the Chamber on Environmental Matters against the egregious greenhouse gas-producing states that are signatories of the UN Convention on Climate Change, and its Kyoto Protocol.

 

Launching a case of criminal negligence under the ICJ

The International Court of Justice (ICJ) and the Chamber on Environmental Matters under the ICJ are competent organs to address the failure of states to comply with obligations incurred under the UNFCCC;

Given the urgency of the issue of climate change and the reluctance of the major Greenhouse gas emitting states to act, there could be a justifiable case of Criminal negligence.

In the apparent absence of an international definition of what constitutes criminal negligence, there appears to be common components within national statutes of what constitutes criminal negligence.

Canadian common law provides useful guidance because Canada has a system of law drawn from both the Common Law and the Civil Code systems.

Under Canadian law “Environmental negligence” suits focus on compensation for loss caused by unreasonable conduct that damages legally protected interests. Unreasonable conduct means doing something that a prudent or reasonable person would not do, or failing to do something that a reasonable person would do. The plaintiff must establish certain key elements of the tort — cause in fact and proximate cause, damages, legal duty, and breach of the standard of care. Note that fault may be found even in the case of unintended harm if it stems from unreasonable conduct.

The Criminal Code (Section 219) is even clearer that lack of intent to harm is no defence if damage results from conscious acts performed in careless disregard for others: “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where ‘duty’ means a duty imposed by law). Significantly, Section 222(5) (b) states that “a person commits homicide when, directly or indirectly, by any means, he causes the death of a human being, by being negligent (emphasis added) (Cited by Bill Rees in his piece “Is Canada criminally negligent”).

United Kingdom common law also provides similar guidance. Under United Kingdom Law: Criminal Negligence need only show that a person failed to act within the standards of a reasonable man. The WHO has confirmed that there are already large numbers of fatalities and will be many more as a result of the failure to act on climate change prevention. Manslaughter can be defined expressly In terms of negligence, but it must be gross. Additionally all statutory offences do not need to employ the word negligence but often impose liability for negligence. The minimum fault element should be based on the reasonable cause to believe. The AR4 IPCC report provides reasonable cause to believe and this is very significantly accentuated by the recent accepted science that things are actually far worse than stated in AR4. You are not required to prove a state of mind although the accused knowledge of the facts is relevant in determining reasonable cause. The offence is still committed if the accused has made an unreasonable mistake of fact and this is a limit to the defence that a person did not know. The need for a mistake to be reasonable as a defence is actually less relevant than before since the Minor v DPP case in 2000. Parliament requires mistakes to be based on reasonable grounds as well. The Statutes often put the burden of proof on the accused such as within the Trade Description Act

Application and enforcement of the transboundary principle in relation to climate change

The ICJ should also be asked for an advisory opinion on the extension and application of the transboundary principle to failure to take seriously the responsibility to not harm other states though the greenhouse gas emissions arising in Nation states.

Under the transboundary principle, that has become a peremptory norm, all states have the responsibility, when carrying out activities in their own jurisdiction – water, air, and land - to not impact on other states, not only on adjacent states. It is clear that the activities in the major greenhouse gas emitting states have impacted on other states. States, as signatories of the UNFCCC, have a legal duty to keep greenhouse gas emissions below the dangerous anthropogenic level. It could be argued that by continuing to ignore their responsibility to other states and by not discharging their legal duty to seriously reduce greenhouse gas emissions, the major greenhouse gas emitting states, especially those with high per capita emissions, are guilty of gross negligence and even criminal negligence. Not acting to reduce greenhouse gases demonstrates dereliction of duty and unreasonable conduct because it is an action that a prudent or reasonable person would not do. A person may be considered to be criminally negligent when he/she does something or omits to do anything that it is his/hers duty to do, and shows wanton or reckless disregard for the lives or safety of other persons

The lack of intent to harm may not constitute a defence if damage results from conscious acts performed in careless disregard for others: The basis of the evaluations should be that “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where ‘duty’ means a duty imposed by law).

Having International Court declare the Cancun Agreement null and void.

There was  an opportunity in Cancun to  be replace “the take note“  Copenhagen Accord with a legally binding Cancun Protocol based on credible emerging scientific and institutional data and on the principle of differentiated responsibility and not on the vested economic interests of the fossil fuel emitting corporate states. Unfortunately, this did not materialize. It is clear that the year-long process of coercing reluctant states to adopt the Copenhagen Accord unfortunately worked.  Sadly, not only the pleas of the most vulnerable states but also the emerging science and fundamental peremptory norms and principles were ignored. Thus the Cancun agreement must be deemed null and void, under Article 53 of the Vienna Convention on the Laws of Treaties.

Invoking Article 22 of the Charter of United Nations to set up an international Tribunal to try major greenhouse gas emitting states for failure to discharge obligations under the UNFCCC and the Kyoto Protocol

In addition the UN General Assembly could invoke Article 22 of the Charter of the United Nations, and set up an international tribunal to investigate the states that continue to engage in practices which will cause the global community to reach the dangerous anthropogenic level of interference with the climate change.

Major greenhouse gas-producing states must be legally forced to implement the actions that would discharge the obligations incurred when they signed and ratified the UNFCCC. In addition, historic emissions should be calculated and an assessment made of the degree of dereliction of duty in the implementation of the UNFCCC. From these assessments, provisions must be made to compensate the states that have been most damaged by the failure to discharge obligations under the Convention (the climate debt). In such cases, a fund should be set up to assist vulnerable states in taking delinquent states to the International Court of Justice. These resources should be put into a fund for the Implementation of the UNFCCC; and the proposal in the Peoples Agreement from Cochabamba of setting up of an international Tribunal to process states that have consistently failed to discharge their obligations under the UNFCCC and the Kyoto Protocol.

Examining the possibility that specific state leaders could be tried under the ICC

The International Criminal Court should be able to extend its jurisdiction to cover crimes against humanity resulting from irreversible consequences of climate change.

 

*File:U.S. Navy Boatswain's Mate 3rd Class Wesley Malcher guides a Royal Canadian Navy CH-124 Sea King helicopter for landing on the guided missile frigate USS Ford (FFG 54) during Exercise Trident Fury 2013 130513-N-QY316-028.jpg

 

Last Updated on Saturday, 30 November 2013 13:14
 

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