Transcript Greenhouse Equity as the Basis for Future Global Emission

GREENHOUSE EQUITY AS THE BASIS FOR
FUTURE GLOBAL EMISSION REDUCTIONS:
PRAGMATIC PANACEA OR IDEALISTIC
IMPEDIMENT?
Werner Scholtz
Professor of Law: Potchefstroom Campus
Research Associate: South African Institute for
Advanced Constitutional, Public, Human Rights
and International Law.
Justice is conscience, not a personal conscience
but the conscience of the whole of humanity.
• “International environmental justice, therefore, is a useful
lens to analyze the problem of climate change because
the costs and benefits of climate change are unevenly
distributed. For a just and fair arrangement to be set up,
the costs and benefits of climate change must be equally
distributed in order to allow more and more countries to
cooperate ... No country will be willing to participate in an
agreement that seems unjust or unfair. At stake is the
protection of the global environment ..."
{Ruchi Anand International Environmental Justice A
North-South Divide (Ashgate Publishing, 2004) at 55.}
Forests are the lungs of our land, purifying
the air and giving fresh strength to our
people.
• Tension between equity (the right of developing states to
pursue development et al) and pragmatism (global action –
thus participation of developing and developed states).
• How to solve tension through negotiations which would result in
post-2012 emission targets?
• Article 3 UNFCCC: principles which shall guide the actions of the
Parties pursuant to the objective and implementation of the
provisions of the Convention.
• (Objective of the Convention to achieve stabilization of greenhouse
gas concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference with the climate system - also
applicable to any related legal instruments that the Conference of
the Parties may adopt).
How often misused words generate
misleading thoughts.
• A 3(1): “The Parties should protect the
climate system for the benefit of present
and future generations of humankind, on
the basis of equity and in accordance with
their common but differentiated
responsibilities”
Life is fundamentally one.
• Bali Action Plan affirms the importance of the
principles of the UNFCCC.
Thus, it may prima facie seem that these
principles may guide negotiators towards a
solution (CBDR principle is based on equity).
• Kyoto Protocol based on CBDR principle.
• Kyoto Protocol may serve as an example for
future emission targets.
• Basis of equity (and CBDR): developing states
should not be encumbered with any compulsory
emission reductions.
The deep ecology movement is the ecology
movement which questions deeper.
• But: not all states share a uniform
approach.
• Not as simple.
• Inclusion of targets on the basis of CBDR
in Kyoto resulted in the refusal of the USA.
The adjective 'deep' stresses that we
ask why and how, where others do not.
• USA: Emission reduction targets for all states:
pragmatic, but not equitable.
• Developing: Voluntary targets and differential
provisions on the basis of CBDR: equitable, but
not pragmatic.
• Divergence concerning interpretation and
application of principle may lead to impasse.
• Both (emitters) needed to cooperate in order to
find solution.
It has been said that man is a rational
animal. All my life I have been searching for
evidence which could support this.
• “What might be”: on the basis of the
aforementioned principles.
• Alexy: principles are optimisation
commands. The mandatory degree of fulfillment
of principles depends on the actual facts as well
as the legal possibilities. The legal possibilities
are determined by countervailing principles and
rules. Principles may accordingly be fulfilled in
different degrees.
Reality in our century is not
something to be faced.
• Potential problems that exist in the international
structure, which may hamper a global solution.
Accordingly, I also acknowledge factual
reality ("what is“) from an international
relations perspective in order to generate
solutions which are realistic.
• “What might be” must take into account “what
is”.
Denying realism amounts to
megalomania.
• International relations (IR) theory may explain “what
is”.
• Realist schools: anarchic system of sovereign states
that pursue their own national interest. Relations
between states are therefore determined by military and
economic power. No universal principles that guide state
action and states must follow a pragmatic approach to
resolve issues that may arise. (It is not my intent to suggest that realism is
the only perspective that may shed light upon the dynamics of international environmental law, but
that the realist approach to the importance of self-interest and the primary role of state actors as
well as the absence of universal values may shed light on the issue at hand.)
• States (USA) prioritize the preservation of nation-state
autonomy and have therefore been unwilling to act as
guardians of the global environment.
Everything has been figured out,
except how to live.
• States will not be able to guarantee state security
through the pursuit of mere narrow national interests as
all states have a common interest in the survival of
humankind.
• But even common interest is a mere convergence of
self-interest.
• Global problem may not really result in a truly global
consensus as not all states are affected in the same
manner.
• Differential threats may not induce required altruistic
state action.
• Also: Optimal: agreement on basis of universal
acceptance of equity: result in international
cooperation. However, not realistic due to realpolitik.
The whole problem with the world is that fools and
fanatics are always so certain of themselves, and
wiser people so full of doubts.
• Emissions must be based on CBDR
• But how? “What is” makes this nearly
impossible in order to establish a “what
might be” which may ensure survival of
humankind.
• Thus, the actual circumstances must
determine application of CBDR.
• Take into account self-interest, lack of
universal values and role of power.
The Truth shall set ye free, but first
it shall make ye miserable.
• Certain “more developed” developing
states may incur emission targets.
• This does not constitute departure from
CBDR and equity.
• Optimisation of CBDR through generous
differential provisions need to
“compensate” states for their contribution.
In individuals, insanity is rare; but in groups,
parties, nations and epochs, it is the rule.
• How? Point of departure:
• Developing states not a single entity.
• Framework? Factors: Whereby the situation of
states should be assessed on an individual
basis.
• Human Development Index may be used to
differentiate between developing and developed
states. Accordingly developing states that
annually emits GHGs above a threshold may be
encumbered with emission targets.
New opinions are always suspected, and
usually opposed, without any other reason
but because they are not already common.
• Other developing: national policies on a
voluntary basis in terms of Article 4(2)(b)
of the UNFCCC.
• May “graduate”.
• Concrete differential provisions.
• Thus, “what might be” tempered by
“what is” to further survival of all
humankind.