The Complexities of a Human Rights-Based Approach

by Lara Shirley

1. The demand for a human rights-based approach

In various side-events and negotiations, the concept of a human rights-based approach has come up several times, especially with regard to indigenous peoples, food security, and water.

This is essentially to ensure justice and effectiveness in the agreements that come out of these negotiations, and is particularly relevant within the context of sustainable development. Human rights are essential for reinforcing the social pillar, which can otherwise get lost between the economic and environmental pillars, as they are more easily measurable and less ignorable, although the economic more so.

There was an open letter written by 22 human rights UN experts calling for the document to contain human rights standards in their development goals in order to be successful. For goals to be effectively achieved, there needs to be accountability: for accountability, there needs to be standards, and human rights can be used as those standards.

2. The excuses against a human rights-based approach

Within the UN, human rights are (technically) non-negotiable: they are its cornerstone and one of the initial motives for its creation. Because of this, giving something ‘rights’ in UN carries a lot of weight and often responsibility as well.

Since a human rights-based approach is to help those who don’t already have rights, those that do have them dislike it because they are benefiting from the current situation. Thus, this proposal is unwelcome for most developed countries (excepting the occasional insertion from the Holy See and Liechtenstein).

Developed countries lamely hide behind a few pretenses to avoid acknowledging this. One of the most common excuses is that because the concept of ‘rights’ is apparently vague, the parties discussing it feel uncomfortable committing to something that they don’t know the definition of, and so they replace it with heavily weakened synonyms: ‘universal access’, ‘non-discriminatory access’, or even a paltry ‘commitment to’.

The US is exceptionally adept at dodging the human rights bullet, and during the food security negotiations even stated that a human rights-based approach is irrelevant to a document on sustainable development, because it is being discussed elsewhere.

However, it must be noted that the G77 is not the greatest advocate for human rights either. While they do push for rights to water and food, indigenous rights remain underrepresented. Some developing countries – China being the most obvious example – see human rights as another form of imperialism from the global North, as another excuse to inhibit economic development and impose culture. One issue being wrangled over in negotiations today was development in developing countries – a right that can be hindered by human rights.

3.  The moral implications of the framework of a human rights-based approach

What made the strongest impression on me – during all the events, but especially the indigenous peoples’ side-event – was this juxtaposition between indigenous representatives earnestly speaking about respect for and protection of their cultures, and their use of a distinctly Western non-indigenous negotiating tool: the UN Charter of Human Rights. Their aims become somewhat diluted because they are defined by these channels formed by a completely foreign mentality. In order to take action at such a high level, in this kind of organization and interacting with certain kinds of people, it is necessary to slot yourself into a bureaucratic shape in order to be comprehended and perhaps even listened to.

Unfortunately, by doing this you lose meaning: perhaps not technical meaning, but underlying significance. This links into the previous paragraph of China’s tussle between human and development rights: rights seem to morph into a mere trade-off, and human rights become just another negotiating tool to be manipulated back and forth instead a symbolic and unifying message.

This is not to say I am criticizing the indigenous people for going through this system, because they want results and the UN has the potential to give them that. Crechin Gordon, a policy analyst at the Indian Law Resource Center, spoke at the indigenous people’s side event and explained that a human rights-based approach is key. When socioenvironmental impacts are discussed, responsibility is invoked on actors to mitigate those impacts. When human rights are discussed, you invoke a duty to not violate those rights in the first place. With their acknowledgement, their violation has at least a chance of being prevented.

Human rights are another convoluted terrain fraught with implications and are far more difficult to navigate then they first appear. However, unlike many UN constituents, human rights actually have the potential to be politically maneuvered by major groups to make a change for the better. More power to them.

The Curious Case of the New Zealand Delegation

By Lara Shirley

The New Zealand delegation started the informal-informal negotiations off with a bang on Monday morning, agreeing with the G77 on a variety of issues.

They first did this regarding the title – Japan proposed changing the title of the document to “Rio Commitment towards Green Economy”, the G77 stated that they would prefer “The Future We Want” and New Zealand promptly backed them up, earnestly explaining that Japan’s title would not be suitable because it insinuates that sustainable development is a green economy, which New Zealand firmly insisted was not the case. The US suggested merging the two suggestions. Later, New Zealand supported the G77’s language on poverty, both on the point that it was urgent and that it was a priority necessary for sustainable development.

The New Zealand delegation was refreshingly honest and egregious: they noted that it was important to keep Section 1 paragraphs as short as possible, “since this is the only part that people might actually read.” The delegation also made their points concise and focused. Although this may seem superfluous, I think that this is a great strategy: it makes the delegation seem less hostile and thus the other delegations are less defensive and more receptive to comments and collaboration. The negotiations become more enjoyable and less tense.

However, there was a notable shift in New Zealand’s position in the afternoon session that continued on to the evening session and today. New Zealand almost completely stopped siding with the G77 and instead were much more vocal in their opposition, aligning more with the agendas of the US, EU, Canada, Norway, and Switzerland. Much like the other developed countries, if anything remotely threatened their current lifestyle and economic situation, they proposed deletion of it: References to common but differentiated responsibilities, under the pretense that focusing on CBDR was unequal and not fair to the other Rio principles; proposals that developed countries initiate sustainable consumption and production, under the pretense that they were too strong; and even concerns that the green economy cannot allow developed countries to renege on past commitments, under the pretense that this was not “positive” enough.

Of course, it must be noted New Zealand was not completely supportive of the G77 in the morning either. They pushed for text on human rights, which China opposed. They also proposed the deletion of a paragraph by the G77 regarding the three pillars of sustainable development, the urgency of implementing mechanisms for implementation and common but differentiated responsibility. This was supposedly because it was repeated later on in the document, but the paragraphs New Zealand cited as already covering that content regarded various past programmes and declarations and mentioned implementation only in passing. This is a tactic often employed (especially by the US, the EU and Canada) whereupon they state that they are making the document more coherent and concise by removing repetitive paragraphs. However, those paragraphs – while similar – contain key differences that those delegations attempt to eliminate.

Why did this happen? Of course I don’t know with certainty, but I could comfortably imagine that, in one way or another, the New Zealand delegation was reminded that it is a developed country. Its priorities do not lie in supporting anyone that is less fortunate than them. The pressing question for me is not why New Zealand shifted from defending the G77 to attacking them, but rather why they were sticking up for someone other than themselves in the first place. Perhaps their delegate actually had some empathy and honesty, before being forcibly reminded that things here don’t work like that. This is particularly depressing considering how progressive New Zealand is for a developed country – their treatment of the ‘indigenous’ people is (relatively) excellent, none of their energy is nuclear, 31% is renewable, and there is very limited censorship of political expression. The fact that any real chance of change actually happening – that is, those with power supporting those who need it – gets stamped out so quickly is a depressing facet of the UN that we have come across time and time again. The mere act of a developed country somewhat siding with the G77 was radical: a breath of highly welcome fresh air in the stale, crusted environment of the UN negotiating room. It will be missed.

Elusive Unity

by Julian Velez

Unity between the different groups is a key aspect for the outcome of these negotiations, because that is how strong positions on the decisions come about and also that is how agreements come forward. If each country only pushed for their agenda and their agenda only, nothing would happen. Countries work as blocks to find united positions that give strength to their statements. The political influence of block positions becomes a force that can shift things in negotiations. This is particularly important for poor countries because otherwise their small voices wouldn’t be heard in this concert of giants.

Right now the developing economies are not finding a united voice. There is division and they are starting to have conflicts between each others’ positions when their interests are shared within their climatic and economic reality. Developing countries are the ones that are most affected by climate change. They are minor emitters in relation to the developed countries which not only have much higher per capita emissions, but also have a long history of emissions that has brought us to this crucial moment with the world’s environment.

The role of the African countries is crucial for the direction that these negotiations will take. They are being pressured to be divided. The Africa Group is trying to have a united vision for the outcome of Durban; we will see what happens when the ministers and the heads of state come in. These official figures don’t deal with details of the text – they deal with big political deals that are country-driven. They also have interests that are for personal political campaigns. The problem is that some countries have sold out in backdoor financial deals with threats and offers. When this happens, the country blocks can’t make statements as a whole.

The main issue is that the developed countries are pushing for a commitment that will relieve them from more responsibilities rather than giving them the responsibility to fulfill obligations that they had already signed to.  Developed countries are pushing for a deal that will create a good image for them and the Durban COP, while not really holding them to hard obligations. They want to show that they worked hard for a tangible result.

Right now it seems that most developing countries agree with the terms for the outcomes of these conference. Except for AOSIS (Alliance of Small Island States), which doesn’t have a unified position, even publicly.  For example they all want an ambitious, legally binding second commitment period for the Kyoto Protocol. The question in this conference is not whether we have a second commitment period or not – we will have one – the discussion is on how that decision is made. The question is: when it starts operating, how ambitious will it be in terms of emissions reductions, when do certain major emitter parties come into the protocol, and under what conditions they will join the commitment. In a general sense developed countries want to have less pressure for their commitments and developing countries want stronger commitments for developed ones at all levels.

Yesterday the High Level Segment of the convention started; these negotiations are carried forward by ministers and heads of state. Now it all depends on how strong developing countries stand with their block position and whether or not they sell out their position, and with it, the united voice of their group. Another factor is how much developed countries use development aid as a manipulative tool to push their own agendas. It is in this high level segment that all the big deals and bribes happen.

A New Adaptation Framework: Don’t hold your breath for this empty shell

by Graham Reeder

This past week (and year), I’ve been following the issue of adaptation. As many of you know, Climate Change is not just a long-term threat that is looming in the horizon; it is being experienced by people now in a very real way.  The World Health Organisation estimates that climatic changes are causing 150,000 deaths annually; the vast majority of which are in sub-Saharan Africa.

One of the major, but unpublicised outcomes of Cancun was the groundwork for a new adaptation framework. The Bali Action Plan from 2007 laid out a track for mitigation and adaptation to be considered equally, but this has obviously not been the case. Laying out the Cancun Adaptation Framework is basically the first real step in doing anything sincere about adaptation under the convention. Having said this, the first step has truly been a baby step.

Negotiators have been working out how to incorporate the existing elements of adaptation under the convention, namely the Nairobi Work Programme that sets out to research how adaptation to climate change works and where the vulnerability lies, to fit into the new framework. It looks like the overarching body to oversee adaptation is to be the Adaptation Committee, a group of negotiators who will be responsible for creating coherence among adaptation activities and holding workshops. The composition of that committee is still being worked out; parties disagree about whether emphasis should be on the countries who will be doing the adaptation (developing), or the countries who will be financing that adaptation (developed, but not really). Under the Committee, there will be three branches, the first will be the Nairobi Work Programme, viewed as the scientific and technical arm of adaptation that will mostly do research, the second will be a work programme on Loss and Damage associated with the adverse effects of climate change, and the third will be the formation of National Adaptation Plans (NAPs). All of this will be nicely tied together by the Adaptation Fund, which will work with the Green Climate Fund and other partners to finance all of this bustling activity. But wait; don’t get too excited about all of this action yet, remember that the GCF isn’t operationalized, and probably won’t be for a while, and even if the Adaptation Fund gets operationalized, it remains nearly empty. Rich countries aren’t happy that they don’t have more say over where and how the money in the Adaptation Fund gets spent, so they stubbornly don’t fill it despite their obligation to do so.

But enough about finance, there will be plenty more on that from my colleagues who follow it more closely. There have been some very interesting arguments between parties about the 3 elements of the adaptation framework, work is still being done in back rooms about the adaptation committee, but the chair of the Subsidiary Body for Implementation (Robert-Owen Jones from Australia) is adamant that negotiations should be as transparent as possible and has kept his meetings on adaptation open to observers.

The group of negotiators who work on adaptation (the adaptation community, as they call themselves) are pretty much the same on all issues. A handful of strong negotiators from the US, Australia, the EU, Norway, Bolivia, Argentina, Colombia, the Cook Islands, and Timor Leste dominate most of the talking space. COA’s very own Juan Pablo Hoffmaister (07), one of the founders of Earth In Brackets, is the lead negotiator for the G77+China (a group of 131 developing countries) on issues of adaptation and works tirelessly to coordinate the group and keep it strong. The adaptation community is forwarding several decisions to the COP on the three components of the framework. They have developed a more solid plan for the work programme on loss and damage, after negotiating serious compromise between AOSIS (the Alliance of Small Island States) and the US/Australia on the issue of creating a mechanism to actually do something about it. The US doesn’t think they’re ready to commit to doing anything about loss and damage, saying that they need another year to learn about what it really means and how to deal with it before deciding on anything, while AOSIS is saying that they don’t need another year of sitting around a conference table twiddling their thumbs, they are suffering in terms of millions of dollars and many lives and need the issue to start being addressed as soon as possible. They have ultimately reached a compromise in which the possibility of a mechanism is mentioned, but there is no commitment to actually creating one.

On National Adaptation Plans, the fight has been a little bit more nuanced. Initial division was between developed and developing countries over involvement of the Global Environment Facility as an interim financer until the Green Climate Fund is created, developed countries wanted the GEF to have nothing to do with NAPs because the last round of adaptation programmes (National Adaptation Programmes of Action) that were focused on urgent and immediate adaptation needs were supposed to be implemented by the GEF and still haven’t been 3 years later. Developing countries also wanted to be clear that NAPs couldn’t just be a planning process, but needed to have an implementation component. The Least Developed Countries are sick of seeing money go towards plans that don’t get follow-through. The latest fight is within the G77 itself though, Least Developed Countries (a group of mostly African countries that also includes parties like Bangladesh and Afghanistan) and “particularly vulnerable countries,” a broader group that also includes some Latin American countries are disagreeing about including mentions of particularly vulnerable countries in the text. The LDC group have always been privileged in adaptation text because their capacity to deal with adaptation themselves is the lowest, but that doesn’t mean that they’re the only ones who are vulnerable. This is where finance becomes important, this fight wouldn’t be happening if there was enough money in the pot to go around, but countries are scrambling over the scraps that rich countries have made available. Because of this, the G77 isn’t united on NAPs, making it a lot harder for them to negotiate strongly on the issue. This is most assuredly part of an EU and US (particularly the UK) tactic to divide and conquer the G77.

On the Nairobi Work Programme, most of the fight has been figuring out how to bring it under the Cancun Adaptation Framework. Because it is the only piece of this puzzle that predates the framework, parties are squabbling over how it should fit into the picture. While most developing country parties want to see them report to the Adaptation Committee and start a new phase that is focused on more applicable adaptation needs, developed country parties are happy with the way things have been going and like that it has mostly produced a bunch of academia on adaptation that can’t be applied in very many contexts. After some tough negotiations, negotiators have agreed to start a new phase (the Durban Phase) of the work programme that will have a few of the elements that developing countries wanted, but still won’t be focused on implementation.

Overall I’ve gotten the impression that adaptation negotiations have been going well, they’ve made progress on issues and have (for the most part) worked in the spirit of compromise. That being said, there is absolutely no way that the work that is being produced by the adaptation community reflects the urgency and needs of climate change adaptation on the ground. In my SBI intervention yesterday I tried to stress that youth and other particularly vulnerable groups really don’t have time to sit around and wait for them to squabble over the placement of commas and that what practitioners already know about adaptation needs to be both implemented and funded.