Mediators at COP15 – finding new ways

 Proposed Language to Encourage Mediation in Climate Change Treaty

Presented to the 15th 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

The Copenhagen Climate Change Conference –

What You Can Do

By Kenneth Cloke

In December 2009, delegates from around the world will meet in Copenhagen, Denmark for the 15^th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC).  Copenhagen will provide a critical opportunity for the world’s nations to reach a comprehensive agreement before the commitments set out in the Kyoto Protocol expire in 2012. 

A recent report by the UN Intergovernmental Panel on Climate Change points to COP 15 as the focal point for decisive action by the world’s nations, in the effort to avoid a growing number of potentially disastrous environmental changes. 

Yet a discussion of conflict prevention and resolution mechanisms is missing from the COP 15 Provisional Agenda, and the range and power of environmental mediation and similar techniques is not widely understood or agreed to by the parties who will be expected to sign the agreement that will replace the one adopted in Kyoto.  

Article 14 of the 1992 UNFCCC negotiated in New York and Rio de Janeiro, which is reaffirmed in Article 19 of the Kyoto Protocol, states:

“… 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.” 

However, the International Crisis Group, a nonpartisan conflict analysis advisory organization, has pointed out:

“[A] key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” 

It is clear to experienced conflict resolution professionals everywhere that conflict prevention and resolution mechanisms need to be a core part of the Copenhagen climate change negotiations and an indispensible element in international efforts to implement them afterwards.  Without these mechanisms, global solutions will be much more difficult to negotiate and implement effectively and the time available to us to implement effective solutions is running out. 

It is therefore incumbent on conflict resolution professionals to join together, travel to Copenhagen if possible, and if not, initiate a set of local and international dialogues on how conflict resolution methods can be used to effectively resolve climate change disputes. 

What You Can Do

MBB has been provisionally accepted as an observer organization at the COP 15 meeting, and to my knowledge is the only mediation organization that will be present. We have a simple message: we want to convince the delegates that mediation is a viable option for resolving climate change disputes. 

To achieve this goal, we will bring mediators from around the world to Copenhagen to inform delegates of the advantages of conflict resolution in resolving environmental and climate change issues, and encourage and support all parties in using it. 

For those who are unable to attend the meeting, we will need justifications, explanatory materials and resources on environmental dispute resolution that can be passed out to delegates, and will need lots of local support.  Here, for example, are ten things you can do: 

1. Come to Copenhagen and participate in the Mediation Seminar on December 10 and 11;
2. Attend the COP 15 meeting as a MBB Observer and speak directly to national representatives who are attending the Conference;
3. Email delegates and opinion leaders in your area and encourage them to support ADR;
4. Help fund travel scholarships for mediators in countries affected by climate change who do not have the resources to come to Copenhagen;
5. Contribute blogs to the Forum, a MBB website where people can discuss environmental issues;
6. Contribute articles on environmental conflicts and mediation to “Conflictpedia;”
7. Film brief interviews with knowledgeable people in your area on the value of mediating climate change issues to put on Youtube and the MBB webpage;
8. Collect training materials, stories and case studies on environmental mediation, especially regarding climate change;
9. Contribute names and contact information to a referral list of mediators around the world who are able to mediate environmental disputes;
10. Form an MBB Chapter in your area and help organize dialogues on climate change and ways of resolving environmental conflicts. 

Whether you can attend or not, Copenhagen represents a unique opportunity for mediators to contribute to solving global environmental problems.  The time to act is now.  Please join us and help save the planet. 

Ken Cloke

President,

Mediators Beyond Borders

Place: Glyptoteket, Copenhagen – www.glyptoteket.com 

Date: The 10^th and 11^th December 2009

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15^th Conference of the Parties – COP15 – to the United Nations Framework Convention on Climate Change, UNFCCC. The Denmark meeting is crucial for the international climate change negotiations. The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing and resolving conflict arising because of limited resources and/or the effects of climate change.

In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction will be a major part of the Copenhagen Mediation Seminar, with discussions of conflict prevention and resolution. Our aim is to gather 100 mediators to create a new Manifesto showing the infrastructure to peaceful conflict resolution.

Please already now reserve this important seminar for 100 mediators attending from all parts of the world. More information will come shortly.

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders – Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindelov of Nordic Mediators

During eleven days in December 2009 delegates from throughout the world will meet in Copenhagen for the 15th Conference of the Parties (COP 15) to the United Nations Framework Convention on Climate Change (UNFCCC). The Denmark meeting is crucial for the international climate change negotiations. In December 2007 the parties to the UNFCCC agreed at Bali, Indonesia that negotiations on a future agreement have to be concluded at COP 15. The decision reflected the increased emphasis on the need for swift action made in the latest report by the UN Intergovernmental Panel on Climate Change. The Bali delegates also recognized that 2009 would be a critical opportunity for an agreement before the commitments set in the Kyoto Protocol expire in 2012.

A Critical Issue
The International Crisis Group, one of the world’s leading independent, non-partisan conflict analysis advisory organizations, stresses that “a key challenge today is to better understand the relationship between climate change, environmental degradation and conflict and to effectively manage associated risks through appropriate conflict prevention and resolution mechanisms.” Conflict preventive measures and resolution mechanisms need to be part of the climate change negotiations, both in Copenhagen and beyond.

At the December 2007 United Nations Conference on Climate Change in Bali, Indonesia, the German Advisory Council on Climate Change presented a report, World in Transition – Climate Change as a Security Risk. Based on research into environmental conflicts, the causes of war, and climate impacts, the report states that climate changes could “overstretch many societies’ adaptive capacities within the coming decades. This could result in destabilization and violence, jeopardizing national and international security to a new degree.”

Drawing on the work of international experts and organizations including the United Nations Environmental Programme (UNEP), the report notes, though, that “climate change could also unite the international community, provided that it recognizes climate change as a threat to humankind” and adopts “a dynamic and globally coordinated climate policy.” If the international community “fails to do so,” the report emphasizes, “climate change will draw ever-deeper lines of division and conflict in international relations, triggering numerous conflicts between and within countries over the distribution of resources, especially water and land, over the management of migration, or over compensation payments between the countries mainly responsible for climate change and those countries most affected by its destructive effects.” In its introduction to the report, the UNEP website states that “combating climate change will be a central peace policy of the 21st century.” Conflict preventive measures and resolution mechanisms should be part of the climate change negotiations, both in Copenhagen and beyond.

Scientists See the Need 
In addition, the scientific community recognizes that global climate change issues challenge our ability to deal with a changing environment containing huge potential for conflict. In March 2009 over 2500 delegates from nearly 80 countries participated in the International Scientific Congress on Climate Change: Global Risks, Challenges & Decisions in Copenhagen, Denmark. At the end of the conference the delegates presented a set of key messages that included cautions about conflict and climate change.

• Key Message 2: Social Disruption stated that “recent observations show that societies are highly vulnerable to even modest levels of climate change, with poor nations and communities particularly at risk. Temperature rises above 2C will be very difficult for contemporary societies to cope with.”
• Key Message 3: Long Term Strategy stressed that “rapid, sustained, and effective mitigation based on coordinated global and regional action is required to avoid ‘dangerous climate change’ regardless of how it is defined. Delay in initiating effective mitigation actions increases significantly the long-term social and economic costs of both adaptation and mitigation.”
• Key Message 4: Equity Dimensions emphasized that “climate change is having, and will have, strongly differential effects on people within and between countries and regions, on this generation and future generations, and on human societies and the natural world.”

The delegates recommended the use of tools and governance practices to address these fundamental concerns. Conflict preventive measures, conflict transformation and resolution are essential to meet climate change challenges. They should be addressed at the Copenhagen Climate Change Conference and beyond.

Rio and Kyoto Precedents
The COP 15 Provisional Agenda, reviewed in Bonn, Germany in early June, lists a range of essential issues, from emission reduction to technology transfer. Conflict prevention and resolution mechanisms are missing from the Agenda despite the fact that Article 14 of the 1992 UNFCCC (negotiated in New York and Rio de Janeiro and reaffirmed in Article 19 of the Kyoto Protocol) states that “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.” This article, though, is not sufficient to address the complex conflicts between nations and peoples likely to emerge as climate change impacts accelerate. Conflict preventive measures and resolution mechanisms should be part of the talks in Bonn, Copenhagen, and beyond.

Beyond Rio and Kyoto, there is precedent for putting conflict resolution on the Climate Change Conference agenda. A number of UN treaties and conventions that deal with environmental issues include conflict or dispute resolution mechanisms. For example, the UN Convention on the Non-Navigational Uses of International Watercourses, adopted in 1997 by the UN General Assembly, specifies conflict resolution methods. Agenda 21, the Environment and Development Agenda administered by the United Nations Environmental Program (UNEP) emphasizes conflict resolution. Article 39.3 specifies the need:

• g) To identify and prevent actual or potential conflicts, particularly between environmental and social/economic agreements or instruments, with a view to ensuring that such agreements or instruments are consistent. Where conflicts arise, they should be appropriately resolved;
• h) To study and consider the broadening and strengthening of the capacity of mechanisms, inter alia in the United Nations system, to facilitate, where appropriate and agreed by the parties concerned, the identification, avoidance and settlement of international disputes in the field of sustainable development, duly taking into account existing bilateral and multilateral agreements for the settlement of such disputes.

An Important Commitment
Climate change negotiators and decision-makers should affirm the commitment that people, communities, and nations will not be in violent situations due to conflicts that arise as a consequence of climate change. Politicians, diplomats, and specialists who attend the Climate Change meetings should consider conflict prevention measures and resolution mechanisms.

The climate change crisis challenges people throughout the world to invent and implement innovative ways to mitigate and thwart climate changing causes and effects. The crisis calls for new methods for nations and people to overcome differences and work together with the objective of preventing, minimising and resolving conflict arising because of limited resources and/or the effects of climate change.

In a Manifesto from 9th July 1955 issued in London, Albert Einstein and other leading scientists urged humanity to find peaceful means for the settlement of all matters based on new ways of thinking. An important new way of thinking features the use of the collaborative, participatory, and pluralistic conflict resolution processes like mediation and facilitation. Construction of a new global conflict prevention and resolution infrastructure is critical to a comprehensive international climate change policy. Such construction can start with the Copenhagen conference, with discussions of conflict prevention and resolution along side the negotiations of scientific and technical issues of climate change.

Copenhagen DK, Corvallis and Santa Monica USA – 22 May 2009

Gregg Walker, Tina Monberg, and Kenneth Cloke of Mediators Beyond Borders
Jens Emborg, Mie Marcussen, Lone Clausen, and Vibeke Vindeløv of Nordic Mediators

The authors’ affiliations:
Gregg Walker, Ph.D., Professor of Speech Communication, Oregon State University, USA (gwalker@orst.edu)
Tina Monberg, Mediator, exam. psychotherapist and lawyer, Mediationcenter Ltd., Denmark (tm@mediationcenter.dk)
Kenneth Cloke, Mediator, President of Mediators Beyond Borders, California, USA (kcloke@aol.com)
Jens Emborg, Ph.d. MMCR, Associate Professor of Environmental Conflict, University of Copenhagen, Denmark (jee@life.ku.dk)
Mie Marcussen, M.Sc., MMCR, Mediator, President of Nordic Mediators, Private Consultant, Denmark (kontakt@miemarcussen.dk)
Lone Clausen, MMCR, Developing Aid and Crises Expert, Private Consultant, Danmark (lc@direkte.org)
Vibeke Vindeløv, Dr., Professor of Mediation and Conflict Resolution, University of Copenhagen, Denmark (Vibeke.Vindelov@jur.ku.dk)