CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
20 July 2016
Philippine flag in front of the venue in Le Bourget, France
where the Paris Agreement was negotiated last December. (EV Peria)
Perhaps it is but right that President Duterte got slighted with that over-zealous Ambassador (in my circle of climate advocates, we suspect it’s the French Ambassador, as they are the President of the Conference of the Parties of the UNFCCC this year until the next COP in Marrakesh this November) who asked him whether the Philippines will follow through on the Philippines’s act of joining 195 countries of the world in adopting the Paris Agreement last December 2015 and lest this blog be misunderstood, the President is correct in his insistence that the Philippines has a more important right to development, which is one of the key assertions of developing countries dating back to the earliest North-South debate right after the decolonization of countries in Africa, Asia and Latin America in the early 50s, right after World War II.
Even the UN Framework Convention on Climate Change (UNFCCC) has enunciated this right to development in the principle of common but differentiated responsibilities (or CBDR, as what climate advocates or climate negotiators refer to it) in article 3.1 of the Convention text, which states in full:
In their actions to achieve the objective of the Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following:
1. The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.
This CBDR principle is also found in the opening paragraph of article 4 of the Convention which deals with what countries have to do, or commit, to fulfill their obligations to the Convention.
Basically, CBDR means countries will take action to address climate change depending on their economic and technological capabilities, so, those countries that have the greater means – money and technology – to address climate change, will have to do more, and those with lesser money and technology because they are still developing or least developed, will only have to do what they can and these various obligations or things to do, qualified by the CBDR, is scattered all over the text of the Convention.
In fact, the Paris Agreement was negotiated with the not-so-obvious machination of developed countries and the often grudging and sometimes underhanded, cooperation by some key developing countries, like South Africa, which presided over a Conference of the Parties of the UNFCCC in 2011 where the bargain of agreeing that all developing countries will take on the same obligations as developed countries was struck, and that was the template or platform on which Paris Agreement was based.
If one reads closely the text of the Paris Agreement, CBDR does not distinctly appear as such, but as found in the 3rd preambular paragraph and in its article 2.2, the words are still there but a clause has been added to it, “in the light of different national circumstances”, which effectively waters it down since all countries, including the developed countries, can now beg off from their commitments to provide money and technology, because of what’s in that clause, their difficult or whatever national circumstance.
Indeed, the Paris Agreement has many unpalatable provisions, but there are many ways of dealing with it, including within the mechanisms of the instrument itself, and this will have to be dealt with later, including this blog, when the Philippine Senate conducts its hearings on whether the country should ratify it or not.
But the point of this blog post is this : while President Duterte may have been right in saying what he said to that Ambassador, and that the Philippines will not abide by the Paris Agreement, he effectively loses the moral high ground to China when negotiations now will inevitably ensue after the overwhelming win secured by the Philippines in its case against China over South China Sea in the Permanent Court of Arbitration last 12 July 2016 which even Solicitor-General Calida called the “crowning glory of international law”.
At the outset, this may sound far-fetched, what has compliance with UN Convention on the Law of the Sea or UNCLOS, which is what we will ask of China now, have to do with the climate change treaty, the UNFCCC and its recent evolution, the Paris Agreement?
This is all about a bedrock principle in international law whereby countries are called upon to to comply with their international treaty obligations in good faith.
President Duterte knows his law, so he knows that’s what pacta sunt servanda means.
This will come into play like this – so if former President Fidel V. Ramos or FVR, who will be dispatched to China to negotiate the outcomes of the South China Sea case ruling, he will most likely at the outset ask China to follow its obligations under the UNCLOS, as it is a signatory thereto, like the Philippines, as the said ruling is based on its provisions and he will ask China to comply with what the ruling says.
China will cite this recent junking of the Paris Agreement in response, perhaps saying that, why should we be following our treaty obligations, you Philippines have just expressed you will not follow your own commitments to another international agreement, this Paris Agreement.
But, FVR will say, these two are different.
China will then say, ah, but this is about a country honoring its international commitments, how can you the Philippines call on me to comply with my international treaty commitments when you yourself said you will not follow your own international treaty commitments?
Of course, what will play out here is what Luchie Cruz-Valdez of Aksyon TV 5 said yesterday that, it is interesting which of these two countries now will the international community pressure, if both of these two countries will play it rogue, as in, not follow its international commitments.
But as between Philippines and China, we have effectively given away our key advantage in demanding that China comply with its international law commitments; we could have shown to China we are an international law-abiding country, as in, we follow through in what we commit as limitations on our sovereignty, as what all these international law obligations are all about, in whatever international agreement we have entered into.
Maybe FVR will just ask his Chinese counterpart that they will play golf in the meantime and forget about this South China Sea win for now.