Law Speak - Climate change: what next?

AT long last the unprecedented typhoons, tropical storms and massive rains are delivering dramatically a chilling message: climate change is here and must be addressed urgently.
The IPPC (Intergovernmental Panel on Climate Change) has warned that future global warming should be limited to below 2°C relative to the pre-industrial level. Else even greater catastrophes will follow. This requires drastic cuts in burning coal and fossil fuels (greenhouse gases) – long used to power industries and economies.
Countries sought to do this through a binding UN Framework on Convention on Climate Change – to "stabilise greenhouse gas concentrations at a level that would prevent dangerous anthropogenic (human) interference with the climate system". The convention confirms that developed countries bear primary historical responsibility: their long years of burning coal and other gases for industrialisation produced the carbon that has led to these soaring temperatures. Hence their obligation to reduce carbon emissions.
The convention also recognises that developing countries energy consumption, while much less per capita, would grow as they developed. This would generate the release of more carbon. To avoid this without impairing their development they needed technology to achieve greater energy efficiency. This comes at a costly price as the needed technology is in the hands of developed countries (through patents and the like). They would also need to build their capacity to use these technologies.
So the convention establishes that the extent to which developing countries are to take action to reduce carbon emissions depends on the financial, technology transfer and capacity-building support received from developed countries.
The more given the more could be undertaken. That is the deal – "common but differentiated responsibility". Developed countries are to take the lead in combating climate change.
The convention set no binding limits on greenhouse gas emissions nor established enforcement mechanisms. To overcome which the 1997 Kyoto Protocol was concluded. It established legally binding obligations for developed countries to reduce their greenhouse gas emissions.
And here's why we are in a greater mess.
First, the US refused to join although it is the world's largest emitter of greenhouse gases. Second, some other main emitters have walked away from the protocol to avoid the 2nd round of their deeper commitments.
Then came a turning point in the climate change negotiations. Governments agreed in Durban to develop a fresh universal, legal agreement to deal with climate change beyond 2020.
But the negotiations for this agreement have been marred by the posture of developed countries. In particular they want to avoid the common but differentiated responsibility principle agreed to in the Framework Convention. They want all countries to commit to emission reductions; and they also refuse to provide the necessary support to developing countries.
Developing countries are strenuously resisting this. Without support their development would go into a downward spiral. And impair their ability to deal with poverty eradication and the litany of other woes that come with stultified development.
Malaysia is a case in point. Our main carbon emissions come from the energy sector – some 75% (as well as from forest destruction and degradation). To substantially reduce the emissions we need energy efficient technology; as well as other financial support for the higher cost in developing and using alternative sources: renewables and the like.
The government has set up the Green Tech Malaysia organisation. It seeks to boost the development of "green" technology. Its financing scheme gives rebates on interest that banks charge for loans for such projects. The government also guarantees 60% of the financed amount. Yet less than half of the projects it has approved have secured financing from banks. Besides, the organisation is asking the government for more money to extend its scheme.
All this suggests that finance is essential; and the heavy reliance on the private sector may be misplaced if we are serious about reducing emissions.
Similarly, financial support is needed to make up for the revenue lost from forgoing the commercial exploitation of forests. Forests absorb, and are a major repository of, carbon. And we have loads of forest acreages.
With support, developing countries will have the means to fulfil, and even increase, their commitments for actions to reduce carbon emissions. And to undertake adaptation works to avoid anticipated damage. As well as secure funds for the loss and damage that ensues.
Developed countries agreed in a 2010 meeting in Cancun to establish a Green Climate Fund to provide financing – rising to US$100 billion (RM431.09 billion) a year by 2020 to support mitigation actions by developing countries. And this is where the problem lies.
After half a decade only a fraction of the amount – US$10 billion – has materialised!
So what about the on-going negotiations? The recent September negotiations in Bonn resulted in a debacle. No structured concrete, cohesive and negotiable text emerged. This is ominous. There are barely another 10 negotiating days left to conclude a binding agreement in Paris by December.
A new mandate has been given to the co-chairs of these negotiations to produce a negotiable text based on the submissions of parties; and developing countries are hankering to begin negotiations in the next October round. They fear that otherwise a text, inimical to their interests, will be "parachuted" in from above in the last remaining hours; and they will be pressured to accepting it. A "bad" agreement will have serious implications for future socio-economic development.
Ultimately the will of the developing countries to remain steadfast will determine the outcome.
Malaysia is heavily invested in these negotiations as part of the Group of G77 plus China; as well as the Like Minded Developing Countries group.
Gurdial is professor at the Law Faculty, University of Malaya. Comments: letters@thesundaily.com