3. AFRICAN COMMON POSITION POST-CDM
3.6 Interim conclusion
The conceptualisation of equity by African states and its implications on rights and responsibilities under climate change treaties cannot be said to have fully emerged.
Nonetheless, certain trends and common themes come through in the Nairobi Declaration, the Common African Position and the negotiations during the conferences of the parties.
African states insist that based on historical emissions, developed states should carry on with their leading role in climate change action. This responsibility is couched as a compensation for the loss which African states, among other developing states, have suffered due to the exploitative activities of the developed world. In other words, climate change is regarded as a tort arising from the actions of the developed states and these states should, therefore, be liable for the costs associated with climate change. This responsibility serves as a form of restorative justice ensuring that developing states are compensated from the resulting loss of atmospheric space and other consequences of climate change.
Furthermore, this conceptualisation of equity and justice within the UNFCCC framework emphasises the need of the ‘victim’. In other words, climate change responsibilities could not be distributed among state parties without due recourse to the loss suffered by some regions of the world due to the activities of other regions. The developmental needs and objectives of African state parties must, therefore, be determinant factors in the distribution of climate change responsibilities. They insist that the climate change framework must be built in a manner that compensates African states for the loss suffered and gives room for them to pursue their overriding developmental imperatives.
135 The foregoing has been some of the highlights of the African Group’s attempt to give meaning to the principle of equity and fairness in the distribution of rights and responsibilities under the climate change regime. Although the African Group gained more visibility, the positions did not change significantly. As shown above, the arguments insist on compensation for past emissions and the need to ensure that climate change does not lead to a widening of the existing gap in the global distribution of wealth.
4. CONCLUSION
This chapter has investigated the development of the principle of beyond the UNFCCC in 1992, with particular focus on the African position and how this position has evolved since the first Conference of the Parties. To address this, this chapter has examined the Kyoto Protocol and the CDM created under the Protocol, the Nairobi Declaration and the Common African Positions on Climate Change. These submissions have offered an understanding into the conceptualisation of equity by African states beyond the negotiations for the UNFCCC.
As mentioned earlier, the position of Africa on a variety of climate change issues, including the conceptualisation of equity remains inchoate, and sometimes, inconsistent. However, this chapter reveals that the conception of equity leading to the Kyoto Protocol does not depart significantly from the position in the UNFCCC – a distributive justice approach. A strong insistence on the differing capabilities of state parties and the need for those who possess superior financial and technological capacity to take on the primary responsibility for climate change action.
Closely related to this distributive justice conception is the need to bridge the huge developmental deficit among African states. African states insist that their overriding priority continue to be the eradication of poverty and other developmental objectives and climate change action cannot override this. Any imposition of climate change responsibility, they argue, must be accompanied by the necessary finance and technology to carry out such responsibility. Climate change responsibility without an accompanying developmental support was rejected by African state parties.
It is, therefore, not a surprise that the Kyoto Protocol contains a strict unilateral distribution of obligations. The Kyoto Protocol was, practically speaking, an agreement between developed states alone. The protocol placed no duties on developing states. Not only did developed state
136 parties undertake emission reduction, but they also committed to new and additional financial resources to offset the climate change costs incurred by developing state parties.
It is significant to restate that the Kyoto Protocol recognises both the role of developed states as the primary emitters of greenhouse gas and the developmental needs of developing states.
This recognition offers a basis for reaching the conclusion that the Protocol provides a basis for both distributive (needs based) and restorative (compensation based on past injuries) justice conception of equity. Ultimately, the Protocol protects the right of developing state parties to pursue their developmental objectives by ensuring that they are not subject to climate change responsibility which would conflicts with their developmental objectives. Instead, developed parties are to provide developing state parties with the necessary support for discharging their responsibilities under the UNFCCC.
One of the strongest indicators of the Protocol’s commitment to ensuring that climate change action provided developing states with developmental opportunities was the CDM. This mechanism ensured that the discharge of emission reduction obligations by developed states provided developmental benefits to developing states. CDM projects helped to merge climate change action with developmental objectives.
In further development of the international law on climate change, state parties met yearly to flesh out various provisions under the UNFCCC framework. As revealed earlier in this chapter, African states, negotiating through the African Group of Negotiators, developed various policy papers outlining their positions. In summary, these positions reveal a conceptualisation of equity that emphasises restorative justice principles.
In these position papers, African states view climate change and its consequences as a wrong for which developing states, especially African states, are entitled to compensation. African states argued that developing states should be compensated for the resulting loss suffered from the exploitative activities of developed states. The provision of such financial and technological support would allow for African states to engage in climate change action without jeopardizing their developmental objectives. They viewed equity as a tool not only for ensuring compensation for loss within the environmental context but also for ensuring that climate change action is merged with the developmental needs of the African region.
Efforts to further develop the climate change framework led to the creation of the Ad Hoc Working Group on the Durban Platform for Enhanced Action at the 17th Conference of the
137 Parties. This working group was saddled with the responsibility to prepare a new legal instrument on climate change. Among other things, this instrument was to address the allocation of rights and responsibilities under the climate change regime and the implication of equity and differentiation on this distribution. The next chapter examines the negotiations leading up to this instrument and the extent to which equity is codified in the final text of this instrument, which became known as the Paris Agreement.
138 CHAPTER FIVE
EQUITY AND CLIMATE JUSTICE IN THE PARIS AGREEMENT 1. INTRODUCTION
This thesis set forth to examine the conception of equity by African states within the international law on climate change and the extent to which their conception is reflected in the United Nations Framework Convention on Climate Change (UNFCCC) and its protocols.
Chapter three has shown that leading up to the adoption of the UNFCCC, African states, arguing through the Group of 77, adopted both a restorative and a distributive justice approach to the conception of equity and its implication on how obligations are shared under the proposed treaty.
African states argue that since developed states are emit a disproportionate percentage of t greenhouse gases, they should take primary responsibility for climate change action (restorative). Additionally, African states argue that based on the imbalance in the distribution of global wealth, it is obligatory for developed states as the richer members of the international community to undertake the financial and technological cost of climate change action (distributive).
These arguments have been sustained since the UNFCCC was adopted in 1992. The Kyoto Protocol entrenches a restorative justice conception of equity. The Protocol is thus designed to guarantee that the extent of a state party’s obligations is dependent on its position as a major emitter of greenhouse gases and its quantified emissions as provided in Annex B of the Protocol. It also provides compensation to developing states in the form of new and additional financial resources.
The African Group maintained their focus on a restorative justice principle from the Nairobi Declaration to the Common African Positions. African states argued that climate change and its consequences were a loss for which African states were entitled to compensation from those who were responsible for the majority of past emissions. This would further ensure that climate change action does not negatively impact the region’s developmental objectives.
Having established the position of African states on the interpretation and application of equity in the UNFCC and the Kyoto Protocol, this chapter examines the latest climate change treaty,
139 the Paris Agreement on Climate Change. This chapter analyses the conception of equity that African state parties sought to bring into the Paris Agreement, the degree to which the Paris Agreement demonstrates this conception and how the Paris Agreement seeks to deal with the connection between climate change action and the developmental deficit within the African region.
This chapter also analyses the significant changes and differences in the conception of equity in the Paris Agreement when compared with preceding climate change agreements, the UNFCCC and the Kyoto Protocol. Particular attention is placed on issues such as the categorisation of states using annexes, the conditionality of developing states’ obligation on the transfer of finance and technology from developed states and the introduction of the phrase
‘in the light of different national circumstance’ to the application of equity under the Paris Agreement.