On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.10 n.1 Pretoria 2010
Professor of Law, Potchefstroom Campus of the North-West University, South Africa; Research Associate, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Associate, African Centre for Disaster Studies
The African continent is vulnerable to the consequences of climate change. Climate change poses a serious threat to peace and security on the African continent since it may, for instance, result in competition for and conflict about scarce resources. The capacity to adapt may reduce potential conflict, but there are various constraints on the capacity of African countries. Thus, support for climate change adaptation is essential. Africa may increase their adaptive capacity through international negotiations, but African states lack the resources to pursue this goal. The African Union has therefore facilitated the establishment of a common African position on climate change aimed at international climate change negotiations. Accordingly, the main aim of the article is to discuss the pursuit of the enhancement of adaptive capacity and therefore environmental security of African states through Africa's common position on climate change.
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*BA LLB (Potchefstroom), Dr jur (Leiden); Werner.Scholtz@nwu.ac.za
1 Intergovernmental Panel on Climate Change IPCC Fourth Assessment Report Working Group I Report (2007) 866 http://www.ipcc.ch/pdf/assessment-report//ar4/wg1-chapter11.pdf (accessed 31 March 2010).
2 M Hulme et al 'Global warming and African climate change: A reassessment' in PS Low (ed) Climate change and Africa (2005) 29-40.
3 IPCC Fourth Assessment Working Group II Report (n 1 above) 444.
4 IPCC Fourth Assessment Working Group II Report (n 1 above) 443.
5 GA/RES/55/2 of 18 September 2000.
6 IPCC Fourth Assessment Working Group II Report (n 1 above) 450.
7 Resolution 7/23 of the United Nations Human Rights Council recognises the link and requests the United Nations High Commissioner for Human Rights to conduct a study on this relationship. In terms of Resolution 10/4, the Council decides to hold a panel discussion on the relationship between climate change and human rights. See the Annual Report of the UN High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary-General. Report of the Office of the UN High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights, A/HRC/10/61 of 15 January 2009 http://www2.ohchr.org/english/issues/climatechange/index.htm (accessed 31 March 2010). See, for a general overview on the relationship between climate change and human rights, S Humphreys Climate change and human rights: A rough guide (2007).
8 U Schuerkens 'Transformation of local socio-economic practices in a global world' in U Schuerkens (ed) Globalisation and transformation of local socio-economic practices (2008) 8.
9 Africa Environment Outlook 2 Our environment, our wealth (2006) 59. It should, however, be borne in mind that African air pollution is increasing and emissions may rise.
10 Åke Bj0rke (ed) Vital climate graphics Africa: The impact of climate change (2002) 14. See Greenhouse Gas Inventory South Africa 1990 to 2000. http://www.pmg.org.za/files/docs/090812greenhouseinventory.pdf (accessed 31 March 2010).
11 Subsidiary Body for Implementation The Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention http://unfccc.int/resource/docs/2005/sbi/eng/18a02.pdf (accessed 31 March 2010). South Africa ranks in the top 20 greenhouse gas emitters (1,8% of global emissions) and is responsible for 42% of Africa's emissions http://www.africancarbontrust.org/ (accessed 31 March 2010).
12 O Brown et al 'Climate change as the "new" security threat: Implications for Africa' (2007) 83 International Affairs 1141-1151. The notion of 'environmental security' has gained acceptance among international lawyers. 'Environmental security' refers first to the maintenance of an ecological balance, which is necessary to sustain resource supplies in life-support systems. Second, it includes the prevention and management of conflict over scarce or degraded resources. J Brunnée & SJ Toope 'Environmental security and freshwater resources: A case for international ecosystem law (1994) 5 Yearbook of International Environmental Law 46; J Brunnée and SJ Toope 'Environmental security and freshwater resources: Ecosystem and regime building' (1997) 91 American journal of International Law 26-59; G Handl 'Environmental security and global change: The challenge to international law' (1990) 1 Yearbook of International Environmental Law 3. See also J Brunnée 'The role of international law in the twenty-first century: Environmental security in the twenty-first century: New momentum for the development of international environmental law?' (1995) 18 Fordham International Law journal 1742. The second dimension emphasises the traditional dimension of security. See N Schrijver 'Natural resource management and sustainable development' in TG Weiss & S Daws (eds) The Oxford handbook on the United Nations (2007) 592. Conflicts concerning resources are a particular problem. Security Council Resolution 1807 of 2008, eg, recognises the link between the illegal exploitation of natural resources and the fuelling and exacerbating of conflicts in the Great Lakes region of Africa. See, for the latest authoritative legal contribution pertaining to environmental security, (2008) 19 Oxford Yearbook of International Environmental Law.
13 Africa Environment Outlook 2 (n 9 above) 36-38.
14 As above.
15 COP 15 of the United Nations Framework Convention on Climate Change took place 7-18 December 2009.
16 See art 4(3), read with arts 4(1)(e) & 4(4). These articles state that developed states shall provide new and additional financial resources to meet the agreed full costs of adaptation by developing states, especially African states and other that are particularly vulnerable to climate change.
17 See art 3(1) of the UNFCCC. W Scholtz 'Different states, one environment: A critical southern discourse on the common but differentiated responsibilities principle' (2008) 33 South African Yearbook of International Law 113-136.
18 The Kyoto Protocol, which was adopted under art 17 of the Convention, follows the blueprint of the UNFCCC. Art 3(1) of the Protocol obliges parties included in Annex I of the UNFCCC to ensure, individually or jointly, that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases included in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B with a view to reducing their overall emissions of such gases by at least 5% below 1990 levels in the commitment period 2008-2012.
19 L Rajamani Differential treatment in international environmental law (2006) 176.
20 Art 4(1)(e) acknowledges the particular vulnerability of Africa and the need for adaptation to climate change.
21 Art 4. In terms of art 4(3), developed country parties shall provide new and additional financial resources to assist developing states to fulfil their obligations.
22 Arts 4(1)(a) & 4(2) read with art 12.
23 Art 4(1)(b).
24 Art 4(1)(1).
25 See art 3(1) read with sub-art (9) of the Kyoto Protocol. See also arts 15 & 17 of the UNFCCC.
26 Art 3(9) states that commitments for subsequent periods are to be determined through the Conferences of the Parties (COPs). See, for a discussion of the onset of the post-2012 process, C Bausch & M Mehling '"Alive and kicking": The first meeting of the parties to the Kyoto Protocol' (2006) 15 Review of European Community and International Environmental Law 196.
27 See arts 3(1) & 4(1) of the UNFCCC. See also J Gupta 'Leadership in the climate regime: Inspiring the commitment of developing states in the post-Kyoto phase' (1998) 7 Review of European Community and International Environmental Law 180-190.
28 A Mumma 'The poverty of Africa's position at the climate change negotiations' (20002002) 19 UCLA journal of Environmental Law and Policy 198. Mumma dissects the African Common Position on the Clean Development Mechanism, Paper 1: Uganda (on behalf of the African Group;, UNFCCC COP, 4th session, FCCC/CP/1998/MISC 7/ Add 2 (1998) in support of his argument. See 199-202. See also AM Halvorssen 'The Kyoto Protocol and developing states - The clean development mechanism' (2005) 16 Colorado journal of International Environmental Law and Policy 366.
29 Mumma (n 28 above) 199-202.
30 W Gerber 'Defining "developing country" in the Second Commitment Period of the Kyoto Protocol' (2008) 31 Boston College International and Comparative Law Review 334.
31 This situation also arises in the instance where African states are grouped together under the banner of a common African negotiating position, especially in relation to climate change. South Africa has very different interests from Lesotho or Madagascar. In this sense, a common position does not necessarily solve the problem of asymmetry. However, the pursuit of a regional common position may group states that have more aligned common interests based on shared problems and values. In general, African states have characteristic problems. The G77 consists of 130 members that exhibit vast differences and interests. In various instances, ideological considerations are the only glue that binds the states; http://www.g77.org/doc/ (accessed 31 March 2010). Thus, the African forum presents a platform for co-operation based on more optimal common interests, which does not imply that asymmetry does not exist.
32 KR Gray & J Gupta 'The United Nations climate change regime and Africa' in B Chaytor & KR Gray International environmental law and policy in Africa (2003) 75.
33 As above.
34 As above.
35 Mumma (n 28 above) 202. See also para 7 of the Strategic Plan to Build Africa's Capacity to Implement Global and Regional Environmental Conventions (Annex 1 to the Action Plan of the Environment Initiative of NEPAD).
36 Strategic Plan (n 35 above) 76-77.
37 This means that it is important to focus on the commonalities in order to overcome the obstacles posed by differential interests. It does not imply that plural interests disappear.
38 Statement of the outgoing Chairperson of the Executive Council of the Ministers of the AU, Nkosazana Clarice Dlamini Zuma (6 July 2003) http://www.africa-union.org/Official_documents/Speeches_&_Statements/other/Dr%20Zuma%20Prime%20 minister(South%20Africa)_%20July%206%20Maputo.htm (accessed 31 March 2010).
39 It is important to bear in mind that the colonial scramble resulted in the fragmentation of Africa. Thus, the colonial legacy bequeathed the continent with mini-states with small populations, miniscule internal markets and a lack of infrastructure. SKB Asante Regionalism and Africa's development expectations, reality and challenges (1997) 28.
40 Expanding capacity in order to establish and advance the interest of Africa concerning climate change must form part of a holistic strategy to address the woes of Africa. It is important to promote the interests of the African continent as a whole and not merely the governing elite that focuses on self-preservation. In this regard, the promotion of good governance on the continent may create a more accountable system that responds to the needs of the people, which could break the culture of authoritarianism that impairs the mobilisation of African resources pursuant to solutions. See AP Mutharika 'Some thoughts on rebuilding African state capability' (1998) 76 Washington University Law Quarterly 285.
41 Integration refers to a process where the economies of states merge into a regional economy. R Davies 'The case for economic integration in Southern Africa' in PH Baker & A Boraine (eds) South Africa and the world economy in the 1990s (1993) 217. See also M Lundahl & L Petersson 'Economic integration efforts in Southern Africa' in M Lundahl (ed) Globalisation and the Southern African economies (2004) 92. See, however, A Smith 'The principles and practice of regional economic integration' in V Cable & D Henderson (eds) Trade blocs? The future of regional integration (1994) 17.
42 RJ Langhammer & U Hiemenz Regional integration among developing states: Opportunities, obstacles and options (1990) 9-10. [ Links ]
43 See, on the role of negotiating blocs and climate change, OR Young International governance: protecting the environment in a stateless society (1994) 38. See, for a discussion of the potential dangers of blocs, D Snidal 'Endogenous actors, heterogeneity and institutions' in RO Keohane & E Ostrom (eds) Local commons and global interdependence: Heterogeneity and co-operation in two domains (1995) 66.
44 Gray & Gupta (n 32 above) 75.
45 Economic Commission for Africa Accelerating Regional Integration in Africa Item 1. Thus, regional integration is a multidimensional process that also includes political and security dimensions; Asante (n 39 above) 7. The first wave of regionalism occurred during the 1950s and primarily related to economic integration. The second wave began by mid-1980. For a theoretical discussion concerning regionalism, see L Fawcett & A Hurrel Regionalism in world politics: Regional organisations and world order (1995) 37-73.
46 M Spicer 'Globalisation, regional integration, economic growth and democratic consolidation' in JB Macedo & O Kabbaj Regional integration in Africa (2002) 163-170; T Murithi The African Union: Pan-Africanism, peacebuilding and development (2005) 5; M Ndulo 'The need for harmonisation of trade laws in SADC' (1996) 4 African Yearbook of International Law 222.
47 C Heyns et al 'The African Union' (2003) 46 German Yearbook of International Law 252-283.
48 Art 2(1) contains the five purposes of the OAU.
49 Murithi (n 46 above) 26.
50 Heyns et al (n 47 above) 259.
51 CAA Packer & D Rukare 'The new African Union and its Constitutive Act' (2002) 96 American Journal of International Law 365-379; [ Links ] T Maluwa 'The Constitutive Act of the African Union and institution building in post-colonial Africa' (2003) 16 Leiden Journal of International Law 157-170. [ Links ]
52 Africa is the world's poorest and most underdeveloped continent. The African continent is characterised by deadly diseases, governments that commit serious human rights violations, military conflict, grinding poverty, illiteracy, malnutrition and inadequate water supply and sanitation, as well as poor health and environmental degradation. The bottom 25 ranked nations of the UN's Human Development Report of 2003 are all from Africa. It is, in particular, the sub-Saharan region that displays underdevelopment and extreme poverty. An estimated 40% of the population live on less than a day. This region accounts for less than 2% of world trade and global GDP. The African continent therefore is in dire need of development in order to better the lives of its people. Human Development Index of the Human Development Report 2003 Millennium Development Goals: A compact among nations to end human poverty http://hdr.undp.org/en/reports/global/hdr2003/ (accessed 31 March 2010). See in this regard S Naidu & B Roberts Confronting the region: A profile of Southern Africa (2005) 47.
53 See the Preamble and art 3 of the Constitutive Act of the AU.
54 Art 3(c).
55 Art 3(f).
56 Art 3(g).
57 Art 3(h).
58 Art 3(j).
59 Art 3(k). Furthermore, the establishment of an African Economic Community is a priority of the AU as this is viewed as a mechanism to promote the socio-economic development of the continent. Regional Economic Communities (RECs), such as the Southern African Development Community, constitute building blocks for the achievement of the objectives of the AU. See art 3(l) of the Act. The AU serves as an example of a multidimensional process of regional integration.
60 See, for a discussion on a common position concerning natural resources in the context of regional integration, C Ayangafac 'Utilising the management of natural resources to forge a union government for Africa' in T Murithi (ed) Towards a union government for Africa. Challenges and opportunities (2008)161-170.
61 Art 3(d).
62 Art 3(i).
63 Art 3(e).
64 Art 3(j).
65 http://www.nepad.org/2005/files/documents/113.pdf 29 (accessed 31 March 2010).
66 Assembly of the AU, 8th ordinary session, 29-30 January 2007, Addis Ababa, Ethiopia, Assembly/AU Dec 134/(VI 11) Decision on Climate Change and Development in Africa Doc Assembly/AU/12/(VIII). See Item 5. See also the AU Assembly/AU Dec 4/(VIII) Declaration on Climate Change and Development. The Sirte Declaration also expresses the concern of the Ministers concerning the threat that climate change poses to the African continent; 10th session of the African Ministerial Conference on the Environment, 29-30 June 2004, Sirte, Libya, Sirte Declaration on the Environment and Development http://www.unep.org/roa/Amcen/ Meeting_Documents/default6.asp (accessed 31 March 2010).
67 Assembly of the AU, 12th ordinary session, 1-3 February 2009, Addis Ababa, Ethiopia, Assembly/AU Dec 236/XII Decision on the African Common Position on Climate Change Doc Assembly/AU/8 (XII) Add 6. See item 3.
68 Item 5.
69 Item 6.
70 See Executive Council, 15th ordinary session, 24-30 June 2009, Sirte, Libya EX CL/ Dec 500(XV) Decision on the Implementation of the Decision on the African Common Position on Climate Change Doc EX.CL/525(XV).
71 Assembly of the AU, 13th ordinary session, 1-3 July, Sirte, Libya Assembly/AU/Dec 257(XIII) Rev 1 Decision on the African Common Position on Climate Change including the Modalities of the Representation of Africa to the World Summit on Climate Change.
72 Assembly of the AU, 13th ordinary session, 1-3 July, Sirte, Libya Assembly/AU/Dec 248(XIII) Decision of the Accession of the African Union to the United Nations Framework Convention on Climate Change and the Kyoto Protocol.
73 AMCEN is a specialised technical committee of the AU. AMCEN is currently discussing the harmonisation and links between itself and the AU Commission. AMCEN's mandate is inter alia to provide advocacy for environmental protection in Africa. Since its creation in 1995, it has fulfilled several roles, such as the development of common positions pursuant to negotiations of international environmental treaties and capacity building in the field of environmental management; http://www.unep.org/ROA/amcen/ (accessed 31 March 2010).
74 Decision 2 deals with the issue of climate change and inter alia refers to the decision of AMCEN to request the 'United Nations Programme, in collaboration with the Commission of the African Union, the secretariat of NEPAD, the United Nations Economic Commission for Africa, the African Development Bank and other relevant intergovernmental institutions to organise a series of preparatory meetings for Africa's climate change negotiators and to provide the negotiators with substantive technical and policy analysis support to strengthen their preparations'. Further, the deliberations of the expert segment of the AMCEN resulted in the development of an 'indicative conceptual outline of a comprehensive framework of African climate change programmes'. This framework is based on the primary priority of adaptation and the need for mitigation, supported by finance, capacity building and technology. See the Decisions adopted by the African Ministerial Conference on the Environment and its 12th session http://www.unep.org/roa/Amcen/Amcen_Events/12th_Session_AMCEN/index.asp (accessed 31 March 2010).
75 Several regional consultations have taken place http://www.unep.org/roa/amcen/docs/AMCEN_Events/climate-change/Brieing-Phase2-ClimateChange.pdf (accessed 31 March 2010).
76 http://www.unep.org/ROA/amcen/Projects_Programme/climate_change/default. asp?ct=SR (accessed 31 March 2010).
77 This session was a follow-up to the 12th session held in Johannesburg, 10-12 June 2008, which also dealt with climate change.
78 UNEP/AMCEN/12/9 http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID= 589&ArticleID=6199&l=en&t=long (accessed 31 March 2010). The Executive Council has endorsed the Declaration. See 15th ordinary session of the Executive Council 24-30 June 2009, Sirte, Libya EX CL/Dec 502(XV) Decision on the Report of the African Ministerial Conference on the Environment (AMCEN) Special Session on Climate Change Doc EX CL/519(XV).
79 See eg item 3.
80 See items 1 & 2.
81 See item 34.This is in line with art 4(1)(b) of the UNFCCC.
82 The Decision on the African process for combating climate change emphasises that 'Africa's priorities are to implement climate change programmes in such a way as to achieve sustainable development'. UNEP/AMCEN/12/9, annex II.
83 See item 23.
84 Paper 2: Algeria on behalf of the African Group, AWG-LCA 6, FCCC/AWGLCA/2009/ MISC 4 (Part I). The initial Algiers declaration served as a reference document for African negotiators at COP 14/CMP 04 held in Poznan, Poland, in December 2008. Prior to this document, a draft African position paper for COP 12 and COP/MOP 2 was the outcome of a meeting organised by AMCEN and UNEP in September, 2006 in Naivasha, Kenya.
85 Session 9 of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol. COP 11 serving as the Meeting of the Parties (CMP1) to the Kyoto Protocol established the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) in order to discuss future commitments for industrialised states under the Protocol. See Decision_/CMP01.
86 Session 6 of the Ad Hoc Working Group on Long-term Co-operative Action under the Convention (AWG-LCA). This subsidiary body was established at COP 13 and is responsible to conduct a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term co-operative action, now, up to and beyond 2012, in order to reach an agreed outcome at COP 15. See Bali Action Plan, FCCC/CP/2007/6/Add 1 1, Decision 1/CP 13.
87 The COP 13 of the UNFCCC and the COP/MOP 3 were held in Bali in 2007. The conference delivered a 'road map' that includes the Bali Action Plan on how to reach a post-2012 agreement before the expiry of the first commitment period of 2008-2012. See, for a discussion of the Bali Action Plan, L Rajamani 'From Berlin to Bali and beyond: Killing Kyoto softly?' (2008) 57 International and Comparative Law Quarterly 909-939; C Spence et al 'Great expectations: Understanding Bali and the climate change negotiating process' (2008) 17 Review of European Community and International Environmental Law 142-153; J Depledge 'Crafting the Copenhagen consensus: Some reflections' (2008) 17 Review of European Community and International Environmental Law 154-165.
88 Para 1.
89 Art 2 of the UNFCCC prescribes that the stabilisation of greenhouse gases should be achieved within a period to enable inter alia 'economic development to proceed in a sustainable manner'.
90 Negotiating text of the Ad Hoc Working Group on Long-term Co-operative Action under the Convention, FCCCA/AWGLCA/2009/8; Revised negotiating text of the Ad Hoc Working Group on Long-term Co-operative Action under the Convention, FCCC/AWGLCA/2009/INF 1; Reordering and Consolidation of text in the Revised Negotiating text of the Ad Hoc Working Group on Long-term Co-operative Action under the Convention, FCCC/AWGLCA/2009/INF 2 and Non-paper 31 of 20 October 2009 of the Contact Group on Enhanced Action on Adaptation and Its Means of Implementation. Refer also to Decision 1/CP.10, FCCC/CP/2004/10/Add 1 and FCCC/CP/2005/5/Add 1, Decision 1 CP 11.
91 http://beta.worldbank.org/content/economics-adaptation-climate-change-study-homepage (accessed 31 March 2010).
92 On the issue of financing: MJ Mace 'Funding for adaptation to climate change: UNFCCC and GEF developments since COP-7' (2005) 14 Review of European Community and International Environmental Law 225-246.
93 Art 12.8 of the Kyoto Protocol. See para 8 of the FCCC/CP/2001/13/Add 1 Decision 5/CP 7. See also FCCC/KP/CMP/2008/11/Add 2, Decision 1/CMP 4.
94 http://climate-l.org/guest-articles/ga25.html (accessed 31 March 2010). On 31 August 2009, the Fund held in trust ,48 million. See Status of Resources of the Adaptation Trust Fund, AFB/B 7/10.
95 Para 3. This issue relates to the two-track structure of the negotiating process under the AWG-KP and the AWG-LCA. In general, Annex I states are reluctant to accept new emission targets under Kyoto for the post-2012 period unless other major emitters accept emission commitments as well. They accordingly prefer a single new comprehensive agreement that would replace the Protocol. Developing states oppose a one-track approach and emphasise that the AWG-KP process should receive equal attention in order to make progress. They do not want to replace the established 'firewall' between Annex I and non-Annex I states with a new legal agreement. It must, however, be borne in mind that developing states hold different views concerning the AWG-LCA result. For instance, Brazil, South Africa, India and China (BASIC group) have demanded that developed states accept a second commitment period under Kyoto, but have opposed the establishment of a new legal agreement that addresses their emissions. Some small island states are in favour of a new legal agreement that would address the emissions of more advanced developing states. See, for a discussion in this regard, K Kulovesi & M Gutiérrez 'Climate change negotiations update: Process and prospects for a Copenhagen agreed outcome in December 2009' (2009) 18 Review of European Community and International Environmental Law 229-243.
96 Para 3.1. The document uses the language of the Bali Action Plan since it refers to developing and developed states instead of Annex I and non-Annex I parties. The only reference to the latter categorisation occurs when reference is made to numerical targets. The document does not define developing and developed states.
97 This is in accordance with the IPCC Report, which prescribes reductions of 10-40% for developed states by 2020 and 40-95% by 2050. IPCC Fourth Assessment Working Group III Report 90. The position does not state whether mitigation should be taken on a national or international level. This is in line with paragraph 1(b) of the Bali Action Plan that leaves this option open since it refers to national/international action on climate change.
98 This was also an issue of disagreement during COP 14, which was held in Pozna . IISD Reporting Services Earth Negotiations Bulletin http://www.iisd.ca/climate/cop14/ (accessed 31 March 2010). The African Group recently walked out from negotiations at Barcelona (AWG-KP 9 and AWG-LCA 6) to protest the 'business as usual' attitude of developed states. The African bloc complained that the industrialised states' carbon cut was too small and they refused to return until more was done by the rich nations http://www.guardian.co.uk/environment/2009/nov/04/africa-walk-out-climate-talks-barcelona (accessed 31 March 2010).
99 See NH Stern The economics of climate change: The Stern Review (2007) 201-202.
100 The USA under the new administration took a u-turn on American climate change policy and returned to the negotiations in 2009. The US announced their reluctance to ratify the Kyoto Protocol since the goal that they had to commit to was unfeasible. The USA will have to make up for lost time and reduce emissions by 2012 below 1990 levels. This will prove extremely difficult. The US favours a bilateral approach under a multilateral umbrella. See US Submission on Copenhagen Agreed Outcome, AWG-LCA 6, FCCC/AWGLCA/2009/MISC 4 (Part III). See further T Skodvin & S Andresen 'An agenda for change in US climate policies: Presidential ambitions and congressional powers' (2009) 9 International Environmental Agreements 263-280. See also the American Clean Energy and Security Act (the Waxman-Markey Bill) http://www.govtrack.us/congress/bill.xpd?bill=h111-2454 (accessed 31 March 2010).
101 This is also the position of most developing states. The issue of differentiation was rejected during COP 14.
102 It seems that no general definition of this concept exists. Various states have made proposals concerning the link between NAMAs and other mitigation mechanisms. The African group identifies two registries, namely, a registry on national actions that are nationally funded and a registry for actions with international (multilateral) support. The UNFCCC will implement MRV measures in relation to the second registry.
103 See in this regard Submission from South Africa, Dialogue Working Paper 18, UNFCCC, Dialogue on Long-Term Co-operative Action to Address Climate Change by Enhancing the Implementation of the Convention.
104 Para 3.2.
105 This is in line with art 4.7 of the UNFCCC.
106 Para 3.3.
107 See R Howse & MJ Trebilcock 'The free trade-fair trade debate: Trade, labour, and the environment' in JS Bhandari & AO Sykes (eds) Economic dimensions in international law: Comparative and empirical perspectives (1997) 224-30.
108 G 77 and China Proposal Financial Mechanism for Meeting Financial Commitments under the Convention, AWG-LCA 3, FCCC/AWGLCA/2008/MISC 2/Add 1.
109 This refers to the potential to reduce emissions from deforestation and forest degradation.
110 Para 3.2.
111 See, for a discussion of this issue, I Fry 'Reducing emissions from deforestation and forest degradation: Opportunities and pitfalls in developing a new legal regime' (2008) 17 Review of European Community and International Environmental Law 166-182.
112 This part of the discussion does not represent an analysis of the content of the common position since this is the concern of para 5.
113 This is not unique to the African continent. The European Union, eg, also has to grapple with asymmetry between member states, but have produced a common position on climate change and a comprehensive regulatory framework. See M Peeters 'European climate change policy: Critical issues and challenges for the future' (2005) 16 Yearbook of International Environmental Law 179-210. Various institutional differences, however, exist between the AU and the EU. The degree of differentiation between member states is not the same in both organisations and political will and commitment concerning co-operation often falls short in the AU. See also W Scholtz 'Environmental harmonisation in the SADC region: An acute case of asymmetry' in K Meesen et al (eds) Economic law as an economic good: Its rule function and its tool function in the competition of systems (2009) 385-397.
114 In the instance of climate change, the survival of humankind is the common interest of all states. States therefore need to co-operate pursuant to the common interest. The common interest of states may serve as a driving force in the creation of rules that address the common concern. For a discussion of the incorporation of common interest in the matrix of state behaviour pursuant to environmental security, see W Scholtz 'Collective (environmental security): The yeast for the refinement of international law' (2008) 19 Oxford Yearbook of International Environmental Law 150.
115 This was indeed the case during COP 15. See para 7. A discussion of state behaviour usually reflects that states pursue their own national interests. See D Armstrong et al International law and international relations (2007) 270. This statement does not imply that state interest is the sole explanation for state behaviour. See M Koskenniemi From apology to utopia: The structure of international legal argument (2006) 59. The pursuit of individual state interest may not be beneficial to other member states of the AU.
116 My statement implies that solidarity, as a moral principle of international law, should form the basis for the actions of African states in this regard. This implies that states should not take into consideration only their own interests in shaping their international interests, but also those of other members or the interests of the AU, or both. This may amount to wishful thinking, but wishful thinking is required. See R Wolfrum 'Solidarity amongst states: An emerging structural principle of international law' in P-M Dupuy et al (eds) Völkerrecht als Wertordnung: Festschrift für Christian Tomuschat (2006) 1087-1101. Art 3(a) includes 'solidarity between the African states and the peoples of Africa' as one of the objectives of the AU.
117 The implication of this statement is that instances may arise where individual state interest may defer to the collective continental interest. This requires political will and commitment of member states to the objectives and principles of the AU, which needs to counter criticism that the AU is a 'mere "talk shop" for travel-loving ministers'. See J Hall 'Politics: African Union struggles to achieve concrete goals' The New York Amsterdam News 19-25 June 2003 2. This viewpoint adheres to the Action Plan of the Environment Initiative of the New Partnership for Africa's Development (NEPAD), which recognises that inter-African partnerships as well as partnerships between African states and the international community are key elements of a common vision pursuant to sustainable development.
118 See art 3(l) of the Constitutive Act of the AU.
119 ECOWAS has already adopted a common position on climate change http://allafrica.com/stories/200909170199.html (accessed 31 March 2010).
120 See FDP Situma 'Africa's potential contribution to the implementation of international environmental law' (2000) 10 Transnational Law and Contemporary Problems 415.
121 It is important to recall that the AU also faces various challenges, such as funding, that may have an influence on the implementation of environmental measures. See, eg, H Richardson 'The danger of oligarchy within the pan-Africanist authority of the African Union' (2003) 13 Transnational Law and Contemporary Problems 255-275; D Obowu 'Regional integration, development, and the African Union agenda: Challenges, gaps and opportunities' (2003) 13 Transnational Law and Contemporary Problems 211-253.
122 Climate Network Africa is an example of a Civil Society Organisation that plays an active role concerning climate change in Africa http://www.unep.org/civil_society/Registration/index2.asp?idno=2561 (accessed 31 March 2010).
123 This is in line with the objective of art 3(g) of the Constitutive Act, which is to 'promote democratic principles and institutions, popular participation and good governance'.
124 ACHPR/Res 153 (XLV09).
125 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) (SERAC case) paras 52-53. See for a discussion D Shelton 'Decision regarding communication 155/96' (2003) 96 American Journal of International Law 937-942.
126 Mutharika (n 40 above) 283.
127 The deliberations of AWG-LCA 6 provided input for a negotiating text prepared by its chair (FCCC/AWGLCA/2009/8) and resulted in a revised negotiating text (FCCC/ AWGLCA/2009/INF 2). See art 20(2) of the Kyoto Protocol.
128 It is not my intention to dissect COP 15 and its outcomes in detail. I shall briefly refer to issues of relevance for the current discussion. For an analysis, see D Bodansky 'The Copenhagen Climate Change Conference: A post-mortem' http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1553167 (accessed 31 March 2010).
129 COP 15 took place from 7-19 December 2009 in Copenhagen; http://unfccc.int/2860.php (accessed 31 March 2010).
130 This view was reflected in the unofficial slogan for the conference, 'seal the deal'.
131 Reportedly, 29 states reached the accord. These states represent major emitters, the most vulnerable as well as least developed states. For a discussion of the Copenhagen Accord and COP 15, see L Rajamani 'Neither fish nor fowl' http://www. cprindia.org (accessed 31 March 2010). States may associate themselves with the accord through notification and are included in the list of states in the chapeau; http://unfccc.int/files/parties_and_observers/notifications/application/pdf/ notification_to_parties_20100118.pdf (accessed 31 March 2010).
132 Due to objections by a group of states (led by Sudan, Venezuela and Bolivia), the COP was unable to adopt the accord. Instead the COP took 'note of' it.
133 This seems to be in line with para 1 of the Bali Action Plan, which reads that the COP 'decides to launch a comprehensive process ... in order to reach an agreed outcome The inclusion of 'agreed outcome' implies that the Bali Action Plan is not prescriptive on the legal form or content of the COP 15 result.
134 Mexico will host COP 16 during December 2010.
135 South Africa will host COP 17 during December 2010.
136 http://www.iisd.ca/vol12/enb12455e.html (accessed 31 March 2010).
137 The appeal constitutes a new proposal for the negotiations and some see it as a betrayal of the African continent. The most controversial issue was the provision for a start-up fund of billion per annum for 2010-2012; http://ecadforum.com/News/2166 (accessed 31 March 2010).
138 The AU Assembly recently endorsed the leadership of Zenawi for COP 16 and COP 17. AU Assembly, 14th ordinary session, 31 January 2010-3 February 2010, Addis Ababa, Ethiopia, AU/Assembly/Dec 281 (XIV), Decision on the 15th Conference of the Parties to the United Nations Framework Convention on Climate Change and the Kyoto Protocol, Doc Assembly/AU/10 (XIV).
139 Para 3.
140 Para 8.
141 Para 10.
142 Para 9.
143 The Accord makes provision for a system of 'pledge and review' for mitigation commitments and actions. For a list of QER pledges, see http://unfccc.int/home/items/5264.php (accessed 31 March 2010).
144 Para 5. For a list of NAMA pledges, see http://unfccc.int/home/items/5265.php (accessed 31 March 2010).
145 Para 11.
146 Para 6.
147 See AU Assembly (n 138 above).
148 Murithi (n 46 above) 7-38.