JURIST Guest Columnist Curtis Doebbler, professor of law at An-Najah National University in Nablus, Palestine, says that climate change will ravage the African continent if its leaders do not urgently assert their peoples’ rights…

Africa is the richest continent in the world, but you would not know it if you visited the home of the average African citizen. The average African often lacks access to electricity; adequate housing, food, and healthcare – and sometimes even clean drinking water. Concededly, as Western countries like to point out, some of this is due to Africans’ misuse of their own resources and the resources sometimes gifted to them by richer countries. Efficient and effective use of African resources is important, but it is not the greatest problem facing Africa today. The greatest obstacle to African development – and indeed the survival of millions of Africans – is likely the threat posed by climate change.

Africans’ rights to health, life, adequate food and adequate housing, self-determination, humane treatment, water, equal rights, benefit from one’s own resources, and democracy are among those human rights that are very seriously affected by climate change. All of these human rights will be affected by a slight rise in global temperatures of perhaps 2°C. Such a rise will lead to a 6°C increase in sub-Saharan African countries and the consequential loss of agricultural land on a continent where up to 80 percent of some nations’ populations depend on agriculture for survival. The increase in arid land will also likely lead to increasing land disputes.

The situation in Darfur is a striking example. The complicating factors of human intervention have received the most attention. Nevertheless, a much larger culprit is likely the receding belt of land that supports the agrarian products and access to water that are necessary for the survival of both the Southern Darfurian agrarian peoples and the Northern Darfurian cattle herders. The lack of water and land is likely to become an increasing source of conflict in Africa as global warming literally bakes the land, removing its agricultural nutrients and evaporating its water. The warming of Africa will also bring an increase in diseases such as malaria, which is already the largest killer of children.

Lower-lying regions of Africa may completely disappear, denying the indigenous people their way of life and even their right to self-determination. The biodiversity that is the trademark of the African continent could be depleted by as much as 40 percent due to climate change. In other words, almost half the plants and animals that we know today, and on which so many Africans depend, may disappear forever.

As is often the case, women and children in Africa are the first to experience the adverse effects of climate change. Already, NGOs report that women have to spend more time gathering water or firewood or planting crops. The children who often assist their mothers in these tasks are also increasingly likely to be denied the chance to get an education, as they are spending more time helping their families to survive. The susceptibility of children and women in childbirth to deadly disease is also likely to increase as these diseases become more prevalent due to climate change.

In other words, the consequences that climate change might have for the African continent could be even worse than the harrowing damage the gas chambers of the Nazis had for the Jews of Germany. When the G77 representative to the climate change negotiations in Copenhagen last year dared to make this comparison, he was rebuked, apparently because, unlike the Nazi furnaces, it was allegedly not clear who was really responsible for climate change.

What the World Knows

The consequences of climate change described above are widely agreed upon, but this does not mean that everyone has agreed on them. Indeed, two hundred years after it was proven that the world was round, there were still those who challenged this fact. Similarly, despite the fact that the international community has created the Intergovernmental Panel on Climate Change (IPCC), there is still doubt. The hundreds of scientists involved in the IPCC do not do their own research but review the research of thousands of other scientists. It is their concerted opinion that climate change is taking place and that it will have the adverse impacts described above.

Moreover, the IPCC has even given odds as to the chances that these consequences will occur, and the odds are so strong that to bet against them would be tantamount to betting against a football team that is leading 4-0 in the 89th minute of the match. Yet this is exactly what the sceptics have done. They claim that because the outcome is not 100 percent certain, it will not happen.

African countries have not been among these sceptics. Instead, their views during negotiations have been very much based on the climate change science of the IPCC. Although the IPCC was only formed in the 1990s, in less than 20 years it has been able to draw a consistent picture of who and what is causing climate change. It has determined that climate change is largely man made. While the IPCC does not dispute that there are regular climate cycles on earth, it has recognised that these cycles have been significantly accelerated by human activities. In other words, the science shows that human beings cause climate change.

The IPCC has also determined with a high degree of certainty that, since 1750, it has been mainly developed states that have contributed to the release of anthropogenic gases (greenhouse gases) into the earth’s atmosphere that have caused climate change. Even today, although states with large populations release significant amounts of greenhouses gases into the atmosphere as they struggle to achieve equal development, viewed in an historical perspective, or even per capita, even the largest developing states like China and India are way behind the largest polluters, such as the United States, the European Union states, Australia, and Japan.

All of these determinations by the IPCC have formed the basis of the arguments of African negotiators to international talks to ensure action on climate change. The overwhelming majority of the international community has also agreed with the IPCC and its scientific data. This broad agreement has been translated into binding legal commitments.

The primary expression of the international community’s commitment to deal with climate change is theUnited Nations Framework Convention on Climate Change (UNFCCC) that was adopted in 1992 and that has been joined by 194 states to date. This treaty unambiguously defines climate change as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.” The treaty further states that its objective is to achieve a “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.” In other words, greenhouse gas omissions, which are produced by burning fossil fuels or oil and other non-ecological means of producing energy, must be limited.

The UNFCCC further reiterates commitments to basic principles central to combating the adverse effects of climate change. These include the principle that the earth’s environment must be used for the common benefit of all peoples, that states that have benefited the most from the exploitation of the environment must contribute the most to addressing the effects caused by climate change, that preventative action must be taken, and that states must cooperate with each other to ensure sustainable development while addressing climate change. These principles make it clear that climate change is a common problem that all states must cooperate to address.

These principles must also be understood in the context of already existing legal obligations. Among these are international human rights obligations that require states to take action to ensure that activities emanating from their territory do not contribute to climate change when the adverse impacts will have serious consequences for human rights. The duty of states to cooperate has extraterritorial consequences that are expressly stated in some treaties, such as the International Covenant on Economic, Social and Cultural Rights that has been ratified by more than 150 states. Under this treaty, the social and economic welfare of poorer, less developed states is the responsibility of richer, more developed states.

The obligation to cooperate to achieve development and respect for human rights is also embedded in Articles 55 and 56 of the Charter of the United Nations, which according to Article 103, is the supreme treaty for all 192 member states. In other words, the obligations of states to cooperate with each other to address the adverse impacts of climate change could hardly be better established under international law. Nevertheless, as is so often the case, politics has come between the legal obligations to ensure the most basic human rights of individuals and peoples and their realisation.

The Politics of Climate Change

The problem facing Africans today is that there is an increasing risk that legal commitments will be belittled, ignored, and remain unfulfilled. If this happens, the consequences for the continent will likely be catastrophic. The problem is essentially one of sharing resources. Rich, developed countries, which have benefited from centuries of exploitation of natural resources, are unwilling to share the benefits that they have reaped with countries that are less economically developed. At the same time, the rich, developed countries want all other countries, including developing countries, to contribute more to limiting greenhouse gas omissions by taking steps to adapt to and mitigate the adverse impacts of climate change.

African countries, together with many other developing countries, have responded by pointing out the historical responsibility of states that have disproportionately benefited from the unlimited emission of greenhouse gases as they pursued their development. While African governments are not unwilling to cut back on their already meagre emissions of greenhouse gases, they want to ensure that their actions do not handicap their development. For this reason, among other things, they have asked for patent protections on ecologically-friendly technology to be removed, for technology needed to adapt to climate change to be made available to them at affordable prices, and for their obligations to cut greenhouse gas emissions to take into account their current state of development.

The bottom line of these appeals by African countries is that an estimated $500-800 billion would have to be transferred from the economic North to the economic South every year to deal with the adverse effects of climate change without handicapping African development, at least until Africa is able to achieve a state of development on par with the rich, developed countries. To date, the rich, developed countries have offered Africa and other developing countries between $10-20 billion a year – or about 2.5 percent of the minimum amount that is needed. Even this offer has not been made in a legally binding document. And despite this de minimus offer, the rich, developed countries claim that the major concern should be whether the developing countries use this money effectively.

African negotiators have pointed out that the problem is not how the governments use the money, but if it will ever even materialise. Indeed, the record of the rich, developed countries of keeping their promises to provide resources is not very good. These countries agreed more than three decades ago to provide one percent of their GDP to overseas development assistance. They have reiterated this agreement many times since lowering the rate to 0.07 percent of GDP, yet only a handful of rich, developed countries have honoured this commitment, and many developed countries have never even come close to doing so. Many of the developed countries refuse to even recognise their legally binding obligations to cooperate to ensure respect for universal human rights.

As a consequence, the rich, developed countries have taken positions obstructing any efforts to get them to live up to the obligations that they have already agreed to in the UNFCCC and subsequent treaties aimed at implementing these obligations. The Copenhagen Accord – promulgated after secret negotiations at the last meeting of the states party to the UNFCCC – is one such effort. This instrument attempts to replace binding legal obligations with discretionary commitments. It also effectively calls for the end of existing binding legal commitments, such as the Kyoto Protocol.

At the same time, as most developing states are defaulting on the commitments to limit greenhouse gas emissions that they agreed to in the Kyoto Protocol, which implements the UNFCCC, they are pushing for its non-renewal and its replacement with lower targets that would most certainly lead to the 6˚C temperature rise in Africa and the deadly consequences noted above. Worse yet are the games being played to remove the most competent African actors from climate negotiations. Under pressure from Western countries, especially the United States, the government of Yemen, which heads the G77, has virtually ignored the input of the well-respected former Sudanese negotiator, Lumumba Di-Aping. At the same time, Yemen admits to having neither the expertise nor the resources to defend the interests of developing states by itself.

Some developing countries have even been forced to turn to developed countries to request that they pay for the developing countries’ advisors. One such country, presumably on the advice of its Western advisors, even agreed to a negotiating position during the last meeting of the state parties in Copenhagen that meant that its own country would disappear from the face of the earth, submerged by rising sea waters due to the melting polar ice caps. Under pressure from developed countries, and developing countries that had been so pressured, the African chief negotiator from Algeria, Kamel Djemouai, has been silenced, and the Ethiopian prime minister, Meles Zenawi, who speaks for Africa at high-level meetings, has taken positions that will not prevent the disastrous consequences of climate change for his continent.

Earlier this year, African Union states renewed the Ethiopian prime minister’s mandate to represent Africa. As a consequence, the slow but consistent progress towards an “African science-based approach to climate change” has been stalled. The Ethiopian prime minister has even steered the African position in the direction of US President Barack Obama’s “gentlemen’s agreement,” or the Copenhagen Accord. This happened even though adoption of the accord as the point of reference is likely to condemn millions of Africans to death from the adverse consequences of climate change. The rationale for this reversal was never explained, except to the extent that it was the most achievable outcome.

As the meeting leading to the next Conference of the Parties to the UNFCCC (COP16, to be held in Cancun, Mexico, in November-December 2010) begins in earnest, the African position on climate change action remains unclear. One option for African states at COP16 is to stick with their science-based approach, which is reflected in submissions that they have made to the meeting, and perhaps even more consistently in the submission made by Bolivia, which many African states joined. These submissions demand, among other things, that global temperature increases be kept under 1˚C, that developed countries bear their historical responsibility for climate change by providing developing countries with adequate resources for adaptation and mitigation, and that that developed countries ensure affordable access to ecologically-friendly technology for meeting energy needs.

The alternative championed by primarily rich, developed countries in the Copenhagen Accord foresees no historical responsibility, de minimus and non-binding financial commitments, no commitments on technology transfers, and allows global warming to continue at a pace that will make Africa a furnace of death and destruction.

The decisions that African leaders make might be the most important decisions they will ever make for ensuring a future where their peoples’ human rights can be respected. In making these decisions, African leaders might want to remember the counsel of Ghanaian Walter Rodney, who warned almost a half-century ago that if Africans don’t have the courage to stand up for their rights, no one else will.

Curtis Doebbler is a professor of law at An-Najah National University in Nablus, Palestine. His personal website is http://doebbler.net.