"This is arguably the defining moment for the future of climate negotiations, and therefore the planet."
On the final day of the COP19 UN climate talks held in Warsaw from November 11-22, AUT Law School senior lecturer Vernon Rive spoke to Green MP Kennedy Graham about the conference, state of international negotiations, New Zealand’s role, and issues for the future.
Have there been any highlights or notable moments for you over the last few days here in Warsaw?
I think the main difference from previous conferences that I’ve attended of this kind is that, at the beginning, I thought it was much more low-key than previous ones, which I thought would give more space to negotiators to focus seriously on the challenge, having regard to the need to get your elements in place for commitments for a 2014 text. But we’re on the last day, and the negotiators seem to be backtracking and gutting the original draft. You go through the first draft - draft one of the ‘ADP’ resolution and compared to today’s draft four, and you can see easily enough how much has been gutted of it. What that means is that you’re in the same business of kicking the difficult issues down the road to 2014. We’ve been doing that for 20 years, certainly the last five years. The almost existential question hanging in the air is how long can you kick the planet down the road without saving it, with your commitments? So I wouldn’t say it’s a highlight; I would say it’s a significant feature.
I do think the governments came in with a more purposeful intent, but despite Typhoon Haiyan etc, it has not translated into flexibility in negotiating positions. If anything, ironically, it seems to have hardened them. You’re into the business of power play and grievances, historical grievances, and North/South. In a way, the North/South is eroding, but I think that actually all that’s happening is that the negotiators are repositioning themselves in a more complex way than North-South, but the issues of development, and the traditional perception of development, are still on the table. So at what stage do we get a breakthrough on those?
There’s been quite a bit of criticism of the Polish leadership of this conference, allegations of capture by the fossil fuel Industry etc. Is this just green rhetoric or is there something in that criticism in the way this conference has been run?
Yes, I don’t think it’s helped. I prefer to avoid the pejorative tone of the political negotiations being “captured by the corporates”. There’s a tension between traditional fossil fuel corporate interests and emission reductions, obviously. But I know of corporations that are taking a much more constructive and optimistic approach to making energy trump fossil fuels, as opposed to the other way round. So I don’t think we have to presume it’s all darkness and tension in that respect.
I do think, however, that it is correct to say that handing the chairmanship to Poland, and the host of the meeting to Poland, has not helped. And for the life of me I cannot see why we hand out badges of honour in terms of hosting the climate negotiations to high-polluting countries, whether it’s Qatar with oil, or Poland with coal. And it isn’t just the fact that they are dependent on coal in supplying the EU if you like. It is the fact that politically, Polish leadership has basically given a slap in the face to the climate conference, in the sense that the President has not come, and the Cabinet Minister that has been hosting, has just lost his job. So much for the niceties of the host in blessing the UN conference. It’s almost willful destruction of the outcome. And these things don’t help. So much of it is in the political messaging. Why can't they get countries that have got superb, or relatively good, records on climate change to be hosting?
It often said that making international law is an incremental process, and that the slow progress that we have seen here in Warsaw is just the way of the world in terms of developing treaties on complex and difficult issues. But do you have any thoughts on whether this process is working, and whether there are any other realistic alternatives to the annual festival of talk - thousands and tens of thousands of people sometimes coming very long distances to talk about reducing carbon emissions - the irony in that? What are your thoughts on the UNFCCC as a model for decision-making?
What you’re saying in terms of the slow development of international law through multilateral treaty-making - I totally agree. What we’re witnessing really is, you could argue, the final stages of the Westphalian era, which is - depending on your definition - 200 or 300 years old, and more, where you have a multitude of near-totally sovereign entities negotiating a common issue in what they perceive to be their separate best competitive national interests. That is almost a logical incompatibility. And whereas it has worked traditionally with old-fashioned military interaction, where it has worked traditionally with trade negotiations, it does not work with what is so demonstrably a global issue by definition: climate change, and there are others.
The scientists these days, the analysts, have identified planetary boundaries - there are nine of them - and climate change, you could argue ozone depletion, and others, are the best example of a global problem and that is qualitatively different from your historical issues where states have negotiated with sovereign discretion, to negotiate a treaty if they can get agreement. If they get enough commonality as they perceive it, they get agreement; they still have the right to withdraw, and that’s the traditional Westphalian approach. That is not going to solve a global problem of the kind of ozone depletion and climate change. You cannot expect to solve the global atmospheric concentration and reduce emissions into it by jostling around the trough of what I think is now 195 parties, with veto, and all having sovereign discretion, and traditionally interpreting it as, almost in trade mentality: you’ve got to maximise your economic interest vis-a-vis somebody else. It will not work.
What’s the alternative? Is there one?
There is, up to a point. Our institutional mechanics and our legal mechanics will not allow a complete qualitative break, a firewall between what has been the case in the past and what would be the case from now on. It will be evolutionary.
If you go back to the mid-20th century with Hammarskjöld and Hammarskjöldian thought about the teleological interpretation of the UN Charter, and how you might interpret that to get the political body politic at the global level up to speed with what is an emerging global economy and the global technological reach that we have. And if you interpret the Charter in a creative way, it is actually within the institutional and legal competence today to say, well instead of multilateral negotiations, or at least in addition to them, and supplementary to them, you have global executive action in the form of the Security Council. And it is no accident - this is not starry eyed, wishful thinking - and there are problems associated with that obviously, we know what they are.
But the fact is that it is already on the table. The British brought it in 2007, the Germans brought it back on the table in 2010, and again the Germans in February this year for yet another debate on it. There is a Secretary-General report to the Security Council and the General Assembly on the security implications for international peace and security of climate change. They’re getting reasonably close to declaring it a threat to international peace and security. It is possible that the UN Secretary-General has already said that it is a threat, in his view, to international peace and security. So I believe, my own view is, that the issue is going to increasingly become seized by the Security Council. Then the question is well fine, what can it do? And there is veto there, yes, and there is power play there, yes. But that’s as far as we have got in our evolution at the institutional level.
If I had to pin my hopes on a breakthrough on climate change, I would put 50 percent chance of success on the Security Council over the next five years getting something effective - as it has on terrorism, where it has mandated through a binding resolution under Chapter 7 for all states to do certain things - begging the question what would you do on climate change, but there are ways of exploring that, with some creativity on the part of the Secretary General - I’d say 50 percent chance of the Security Council making progress on that, and 5 to 10 percent over the same period of time through multilateral negotiations times 195 sovereign entities.
That’s pretty interesting.
And it doesn’t have to be competitive. The Security Council can feed into the conference, and the conference can feed into the Security Council. The missing link is creativity and political courage, with great respect to the Secretary-General. On his part he’s called a Summit - a great tribute to him to do that. The question is what you do between now and then in preparation. You could have a high-level group of eminent people reporting to him. You could have a technical expert group, loosely of the kind that exists here, but harnessed to the Secretary-General, who then under his Article 99 powers, implied powers, is able to, well he can, there is nothing to stop him, making his own personal initiatives, with Achim Steiner of UNEP, with Christiana Figueres of UNFCCC. But it is the Secretary-General who has to take that political step, before the Summit.
Have you heard anything about anything [being developed] along those lines?
No. Although to be fair, as I say, the Secretary- General did do a report, but that was in response to a General Assembly resolution of June 2009. And the Secretary-General turned around a pretty good report on the subject within three months by September 2009. So they’ve got the capability in the Secretariat. It just requires creativity and a hell of a lot of courage. But, well, that’s what they are there for, isn’t it?
Can we bring it back to a little closer to earth - Middle Earth...
As opposed to New York...
What are your impressions of how New Zealand has fared at this conference? Will it be emerging from this conference with its reputation shinier, or dented? What’s your take on New Zealand’s role in this?
I think it’s a step sideways, at best - some people would say backwards - from Doha. And Doha was pretty bad, because we kept getting the ‘Fossil of the Day’ and we tied equal, I think, first equal with Canada for the Ultimate Fossil for the conference last year, mainly because of gutting the ETS and not having a target. So what’s happened in the last 12 months? The ETS has proved its ineffectiveness, because of the gutting: point 1.
Point 2: you have a 5 percent target, unconditional target, which is compared with the prescription from the UN from 25-40 percent which is required. How can you say that this is sufficient?
Point 3: The government and the Minister here in Warsaw continue to do what I would call “bait and switch”, which is to highlight certain things that the government has done. So you’ve got the Agricultural Research Alliance, Friends of Fossil Fuel Subsidy Reform and so on, which is wonderful to play to an international audience as a creative thing. What it does is, at least what it attempts to do, is take the focus off what New Zealand is substantively doing in its own name, i.e., its targets, and its pathway through the ETS to get there, where we score at 1 out of 10 or less, to these kind of international creative issues where we are tempted to point the finger at other people, and not at ourselves.
But the problem is that actually, strangely enough, people here, they are not fools. They see through that. And so you had this riveting experience of a panel on fossil fuel reform which the New Zealand Minister was very much engaged in and more or less leading it, and innocent questions from the audience that made it clear, so palpably clear, of what I think most people would say would be double standards in terms of New Zealand’s position. Because we have our own various forms, independent studies have shown, of fossil fuel subsidies. But we're developing this international movement against fossil fuel subsidies that are being defined in a way which does not point the finger at New Zealand. They see through this. There was a letter this morning in the Eco Newsletter that said basically New Zealand has slid further back, but being so small, it doesn’t matter. Don’t bother. Compared with Japan, Australia and Canada – bigger countries slipping back. We're slipping back with them, it’s just that we’re smaller. And so we get a free pass out of jail this year round, because bigger brothers and sisters have kept up there with us in terms of looking backwards, rather than forwards.
What about New Zealand’s so-called stewardship and big brother role in the South Pacific of assisting some of its more vulnerable neighbours? What does this conference mean for that relationship?
Well again, it’s a little bit like the innocent researchers and commentators on the fossil fuel panel.
If you listened to the Minister’s speech in the Plenary, the message is, how important we regard the Pacific, and what we are doing for the Pacific. So we focus on renewable energy in Tuvalu. Population of Tuvalu is, what is it, 600 people or thereabouts? It is tiny. [Ed - current population is around 10,800] So while this is good, and while it is right that we do focus on the Pacific, and while it’s fair enough that we demonstrate, more or less, what we are doing in terms of renewable energy for the Pacific, it’s well-intentioned, that’s fine. More bait and switch. More smoke and mirrors. Because what it doesn’t do is prove to the satisfaction of the Pacific or an insightful New Zealand public that we are substantively promoting a New Zealand policy that acknowledges the Pacific, namely our 5 percent target and our own gutting of our ETS, which means that we’re just emitting more. If you have a look at our emissions projections, they're tripling. They’re going from roughly 30m [GT CO2] in 1990 to 98m in 2028.
Now how can you do that, and then turn to the Pacific and say ‘we regard your future as very very important’? Because they are going to go under, literally, some of their islands. And it’s coming through in what they are saying here at the conference. They’re not actually thanking New Zealand for its renewable energy efforts in the Pacific, although they’ll thank us bilaterally. But putting it in a global context, it isn't even worth 10 seconds in a Plenary statement. But what is, is the fact that we don’t have a proper target. And that our Prime Minister John Key just signed on as a “climate leader” in the communiqué at the last Pacific Islands Forum. But they know, the Pacific Island leaders know, that we’re actually not delivering substantively on that rhetoric.
So what between now and Lima next year? What needs to happen from your perspective?
Globally, crunch time is going to come. But you do have to ask, if it doesn’t come after Hurricane Sandy and Typhoon Haiyan, what has to happen for the crunch time to come where there is a breakthrough in generating flexibility on the part of, both, I guess, the G20 and top 15-20 of countries who are negotiating? If they don’t do it in 1992 and they don’t do it in 2007, and they don’t do it in Copenhagen in ‘09, and we set it up again in Durban in  for 2015…well, this is the moment. We’ve basically collapsed and failed on the first hurdle which was Copenhagen. This is the second hurdle which is between now and Lima, and Lima and Paris, 24 months. This is arguably the defining moment for the future of climate negotiations and therefore the planet. Because if it collapses the second time in 2015 and that is roughly the year in which the scientists say global emissions are meant to peak - and they are continuing to rise right now - then at what stage, do you have a third hurdle? After the date at which global emissions are meant to peak? And so, right, we’ve got our negotiations finalised, we’ve got our indicative elements in place, solved equity, and here are our 195 commitments. Is that going to happen within the next two years? And if it doesn’t, will it happen before 2020?
So, there’s nothing new here in terms of the next 24 months compared with what we’ve known for at least the last five years, if not longer. There’s no new element. It’s just that we continue to baulk at the hurdle. And at some stage, we've got to jump over it. And if we don’t do it by 2015 in Paris, then we’ve certainly, I think, lost the game in terms of multilateral negotiations. And then let’s see what happens with the Security Council after that.
The temptation, hearing all of this, might be, for many people, to become very despondent and disengaged with the process...
We’ve just got to recognise the magnitude of the challenge. If we want to jump over the cliff today, we can, but I recommend that we don’t. There are two kinds of denial. There is the skeptical industry denial, which is losing the game, and they are denying the fact of climate change. But then there’s the kind of denial that’s alive and well in the UN corridors here, which is, it is too difficult and embarrassing to have the figures explicitly in front of us so, so we leave it to the IPCC, and UNEP, out there, and they produce their stuff just before the conference. But you do not see it explicitly in terms of Secretary-General or UN documentation that is in front of us. So there is a form of denial there that we are negotiating something, and we’ll get there, we’ve got to allow time, allow for evolution, this year, next year, sometime, never, we’ll get there. Obviously, traditional multilateral machinery times 195 sovereign states, you would, over 50 years. Maybe 25. We’ve got to do it in a couple of years.
Hence the need to be crunching the numbers.
Yes. We’ve got to crunch the numbers and we’ve got to recognise the magnitude of the challenge. And that’s another role for the Secretary-General, who could be setting it up by ensuring that all of the delegates are aware: you have a session on the IPCC, the magnitude of the challenge, here’s the emission trend; here’s the temperature trend - business as usual - here is what’s required. Should have been the first item. Then you recognise the magnitude of the challenge.
I know, I’m sure you know, anyone who’s gone through a personal crisis in life, or a family crisis or a corporate crisis or a national crisis: you actually get a sense of relief when you have acknowledged, whether it’s an addiction or a crisis - you have acknowledged the nature and magnitude of the problem...Then you get into the business of starting to think rationally, get into the business of handling it. You might not win it, you might not solve it. At least you’ve got your faculties together to start.
We’re in denial here, about the magnitude of the challenge. Even though people know it as individuals - they’ve got kids back home. I talk to New Zealand diplomats - they’re worried; they’ve got kids. I talk to businessmen - they’re worried; they’ve got kids. But they’re playing a particular role, and the role is easier if you’re in denial.
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