UNFCCC Climate Change Talks, Bangkok: Day 3

Today is the third day of the UNFCCC Climate Change Talks in Bangkok, Thailand. One of the last open sessions yesterday, Day Two, concerned the Contact Group on Enhanced Action on the Provisions of Financial Resources and Investment. The session started with the delegates from Canada requesting simplification of the language. They asked that it not concentrate on the Principles in the FCCC/WGLCA/2009/INF.2 . This is the document that contains the revised negotiated text prepared by the facilitators during and after the informal UNFCCC Climate Change meetings of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention in Bonn August 2009.

Today it became apparent that the United States and Canada- and the EU to a certain extent- wanted to bypass the Principles of the Enhanced Action plan on Financial Resources and Investment and instead concentrate on specific language and action. They voiced concern that concentration on Principles took valuable time away from negotiations of substance. Further, as the United States stated, the guiding principles set forth in this section are already covered by the convention. The thinking was that simplicity equals clarity. The United States further indicated that simplicity helps in aiding and reaching agreement with divergent perspectives.

The United States offered that the whole section be deleted. This was in response to the Philippines on behalf of the G77 and China who thought that the principles were a good idea, presented its views on each paragraph of the proposed text. Many of the developing countries sided with the Philippines such as Bolivia and Egypt. Uganda’s response, on behalf of the Africa Group, was that the text was too long and it would be more effective to spend time discussing core issues. Uganda felt that if time was taken to discuss principles, there would not be enough time to discuss the real issues such as financing. Barbados, on behalf of the Alliance of Small Island States, agreed with Uganda.

Later, at a dinner, regarding the Economics of Adaptation to Climate Change, I had informative discussions with delegates from the Philippines and Mali regarding the United States' position and the ratification possibilities by the United States Congress. There had also been discussions about the positive relationship of the delegates from the United States, Brazil, China and Indonesia regarding the United Nation's Reducing Emissions from Deforestation and Forest Degradation in Developing Countries Program (UN-REDD) issues.

Lastly, our thoughts go out to those in Samoa, the Philippines and Indonesia regarding the recent earthquakes and flooding tragedies as well as those who have suffered tragedy in Southeast Asia from the current typhoon.

UNFCCC Climate Change Talks, Bangkok, Sept. 28 - Oct. 1

This week, as part of my work as the Asian Coordinator and as a member of the COP15 Coordination team for Mediators Beyond Borders, I will be at the United Nations Framework Convention on Climate Change (UNFCCC) Climate Change Talks in Bangkok for the COP15 Treaty. We will discuss using mediation as a means for peaceful resolution in climate change disputes as well as adding language to that effect in the upcoming climate change treaty that is now being drafted. The new climate change treaty, COP15, will replace the Kyoto Protocol treaty. The convention is being held at the United Nations Conference Center in Bangkok September 28th through October 9, 2009.


"This is the penultimate negotiating session before COP 15 in Copenhagen in December, at which an ambitious and effective international climate change deal is to be clinched, " according to today's announcement on the UNFCCC web site.

The Kyoto Protocol sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas emissions. These amount to an average of five per cent against 1990 levels over the five-year period 2008-2012.

The Kyoto Protocol as explained by the UNFCCC:

"Under the Treaty, countries must meet their targets primarily through internal national measures. However, the Kyoto Protocol offers them an additional means of meeting their targets by way of three market-based mechanisms:

• Emissions trading – known as 'the carbon market'
• Clean development mechanism (CDM)
• Joint implementation (JI).

"The mechanisms help stimulate green investment and help the nations meet their emission targets in a cost-effective way."

COP15 Climate Change Treaty with Mediators Beyond Borders

In addition to my work for Mediators Beyond Borders as their Asian Coordinator, I am also a member of its Climate Change Treaty, Coordinating Committee. We are actively involved in working towards the inclusion of mediation language in the United Nations Treaty for Climate Change. The Parties to the Treaty are presently working on language to replace the Kyoto Protocol.

The Parties are holding treaty language negotiation conferences in Bangkok, New York, and Barcelona in the next few months, ending with the 15th Conference of the Parties in Copenhagen (COP15) in the first weeks of December. I am honored to be working with other dedicated and skilled mediators at MBB towards Treaty language that includes the option of mediation to peacefully resolve climate disputes. I am also planning on attending one or more of the Treaty Conferences to discuss mediation and climate change.

Below, please see MBB's proposed amendment language.

Thank you to all for the hard work and vision.

Mark Kirwin, Esq.

Proposed Language to Encourage Mediation in Climate Change Treaty

Presented to the 15^th Conference of the Parties

United Nations Framework Convention on Climate Change

Copenhagen, 2009

by Mediators Beyond Borders

Mediators Beyond Borders, an NGO Observer Organization admitted to the 15^th Conference of the Parties (COP 15), together with the organizations and individuals listed below, respectfully submit the following proposal for an Annex on Conciliation for adoption by the 15^th Conference of the Parties.

Background

Article 33, Section 1 of the United Nations Charter provides:

“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Article 19 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change currently governs the settlement of disputes, and provides:

“The provisions of Article 14 of the Convention on settlement of disputes shall apply mutatis mutandis to this Protocol.”

Article 14 of the Convention provides for the settlement of disputes as follows:

“1. In the event of a dispute between any two or more Parties concerning the interpretation or application of the Convention, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice.

2. When ratifying, accepting, approving or acceding to the Convention, or at any time thereafter, a Party which is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, in respect of any dispute concerning the interpretation or application of the Convention, it recognizes as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice, and/or

(b) Arbitration in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration.

A Party which is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedures referred to in subparagraph (b) above.

3. A declaration made under paragraph 2 above shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the Depositary.

4. A new declaration, a notice of revocation or the expiry of a declaration shall not in any way affect proceedings pending before the International Court of Justice or the arbitral tribunal, unless the parties to the dispute otherwise agree.

5. Subject to the operation of paragraph 2 above, if after twelve months following notification by one Party to another that a dispute exists between them, the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be submitted, at the request of any of the parties to the dispute, to conciliation.

6. A conciliation commission shall be created upon the request of one of the parties to the dispute. The commission shall be composed of an equal number of members appointed by each party concerned and a chairman chosen jointly by the members appointed by each party. The commission shall render a recommendatory award, which the parties shall consider in good faith.

7. Additional procedures relating to conciliation shall be adopted by the Conference of the Parties, as soon as practicable, in an annex on conciliation.

8. The provisions of this Article shall apply to any related legal instrument which the Conference of the Parties may adopt, unless the instrument provides otherwise.”

Argument Offered by Mediators Beyond Borders for Proposed Annex

While Article 14 allows for the use of “any other peaceful means,” it does not explicitly mention mediation. While conciliation and the International Court of Justice are provided for, mediation is not mentioned as a method that can be used before, during and after these procedures. And while Section 7 provides for additional procedures to be adopted by the Conference of the Parties in an annex on conciliation, no annex is anticipated for mediation.

Therefore, Mediators Beyond Borders respectfully proposes that COP 15 adopt the following language regarding the mediation of climate change disputes:

Proposed Annex on Conciliation:

“1. (A) Reaffirming the principles set forth in Chapter IV, Articles 33-38 of the UN Charter governing the peaceful settlement of disputes, the parties agree that the parties to any dispute resulting from the interpretation or implementation of this treaty “shall first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

(B) In the event that efforts to negotiate a solution are unsuccessful, parties are encouraged to use mediation to settle their disputes at all stages, including before, during and after conciliation, arbitration, and actions before the International Court of Justice.

(C.) Mediation shall be conducted in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on mediation.”

Respectfully submitted,

Mediators Beyond Borders