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Challenges and Options Associated with a Post-Kyoto Protocol Regime
Nikhil Ullal 6440955
A SUCCESSOR FOR THE KYOTO PROTOCOL
- Challenges and Options
NIKHIL R. ULLAL
1
Challenges and Options Associated with a Post-Kyoto Protocol Regime
Nikhil Ullal 6440955
ABSTRACT
This paper seeks to determine the challenges and options associated with a Post-Kyoto Protocol
regime.
Section one introduces the paper, setting out its focus, while also providing a brief overview of
the material to be covered.
Section two investigates the events that led to the landmark Conference of the Parties, in Kyoto
in 1997, which successfully negotiated the terms of the Kyoto Protocol. In doing so, it covers the
history of global warming, as well as the political changes that led to the formation of the
United Nations Framework Convention on Climate Change at the Earth Summit in Rio de
Janeiro in 1992.
Section three covers the details of the Kyoto Protocol, including the terms of the agreement. It
analyses the effectiveness and shortcomings of the first commitment period between 2008 to
2012; analyses the events leading up to an adoption of a second commitment period between
2013 and 2020; and finally predicts the likely effectiveness of this second commitment period.
Section four covers the challenges and options that a future climate change regime replacing
the Kyoto Protocol must overcome, focusing particularly on the distinction between
industrialised and developing countries and the fundamental change in attitude required in
relation to global warming and climate change.
Section five outlines potential climate change replacement regimes that fall into the two main
categories of treaty and non-treaty solutions.
The paper concludes with a recommendation that a combination of non-legal solutions that
envisage the implementation of environmentally friendly policies at local and regional levels be
adopted, before progressing to a national and then finally international political sphere. Also
discussed is the need for the creation of a global climate change authority that can act as a
form of trusteeship over the environment, protecting it for the benefit of future generations.
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Challenges and Options Associated with a Post-Kyoto Protocol Regime
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CONTENTS
INTRODUCTION
4
SECTION 1 – PRE-KYOTO PROTOCOL
5
1.1 History and Origins
5
1.2 The UNFCCC
8
SECTION 2 – THE KYOTO PROTOCOL
2.1 The Third Conference of the Parties
13
13
2.2 The Effectiveness of the First Commitment Period and Shortcomings of the Kyoto
Protocol
16
2.3 The Lead Up to the Second Commitment Period
22
2.4 The Likely Effectiveness of the Second Commitment Period
25
SECTION 3 – CHALLENGES TO BE OVERCOME BY A FUTURE REGIME
27
3.1 The Short Time Frame
27
3.2 The Industrialised and Developing Country Distinction
27
3.3 The Involvement of the United States
29
3.4 An Effective Enforcement Mechanism
30
3.5 The Free-Rider Incentive
31
3.6 Fundamental Change in Attitude
31
SECTION 4 – POSSIBLE REPLACEMENT OPTIONS
4.1 Treaty Solutions
35
35
4.1.1 An Amended Kyoto Protocol
36
4.1.2 The Two Protocol Approach
37
4.1.3 Global Coordination of Emission Taxation
37
4.1.4 The Renewable Energy Protocol
38
4.1.5 The Importance of Non-State Actors
39
4.2 Non-Treaty Solutions
40
4.2.1 Soft Law Documents
40
4.2.2 The “Bottom-Up” Approach
43
4.2.3 A Global Climate Change Authority
45
4.2.4 The Role of Non-Governmental Organisations
48
CONCLUSION
49
BIBLIOGRAPHY
51
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INTRODUCTION
Currently one and a half planets are needed to sustain the human ecological footprint. Back in
1987 one planet was just enough to sustain us all. A point in history has been reached where
humanity has swamped the planet so much that entirely new sets of questions must be raised.
For example, irrespective of what has gone before, humans are now responsible for all ways of
life. Humanity must make conscious day-to-day decisions, at the core of which are serious
considerations of the limitations of the planet.
In a 2008 paper, entitled ‘Target Atmospheric CO2: Where Should Humanity Aim’, Jim Hansen
promoted the idea that greater than 350 parts of carbon per million in our atmosphere is not
compatible with life on earth. As of 2013 this mark has been well and truly overtaken, with
current use of 395 parts of carbon per million, a figure that is rising at two parts per million
every year. In the past 30 years, the earth’s atmosphere has become 5% wetter, oceans 30%
more acidic, and polar ice caps reduced by half.
In light of these continuous environmental effects, and the expiry of the first commitment
period of the Kyoto Protocol at the end of 2012, it is increasingly evident that a replacement
regime needs to be implemented. Indeed, at recent Conference of the Parties meetings under
the United Nations Framework Convention on Climate Change (UNFCCC), it was agreed that
such a regime should be ready for adoption by 2015 and implementation by 2020.
This research paper analyses the challenges and options associated with a Post-Kyoto Protocol
regime and predicts a possible replacement to the Kyoto Protocol that could be adopted in
2015.
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SECTION 1
PRE-KYOTO PROTOCOL
1.1 History and Origins
“Humanity is conducting an unintentional, uncontrolled, globally pervasive experiment, whose
ultimate consequences could be second only to a global nuclear war … it is imperative to act
now!”1
Historians agree that the transition of human people from hunter-gatherers to farmers 11,000
years ago signalled the beginning of our current environmental problem.2 Following this
agricultural revolution, humans no longer fed themselves directly from the environment but
rather began to interfere with the environmental system by viewing it as a commodity, cutting
down forests to build houses, fences and tools. Ultimately, this would spark the next major
development, the Industrial Revolution, in the late 18th to early 19th century, which witnessed
intensive harvesting of the earth’s natural resources for agriculture and fossil fuels. As a result,
humankind experienced a population explosion that saw citizens of the earth grow ten-fold in
a little over 200 years, with an increase in average energy consumption by a factor of twenty.
Needless to say, this careless harvesting of the earth’s resources has seen its stock as an
environmental commodity dwindle quickly.3
In 1896, Swedish chemist Svante Arrhenius became the first man to describe the greenhouse
effect as the phenomenon caused by the sun’s radiation being reflected back off the earth’s
surface and trapped by greenhouse gases (GHGs) in the earth’s atmosphere. In its natural
occurrence, this effect increases the earth’s surface temperature to a global mean of 15°C. It is
this effect that is in part to be thanked for the earth’s ability to sustain life and, when naturally
occurring, causes no harm to the planet.4 However, it is the additional human induced
greenhouse effect that has led to the dire situation encountered today, which has become
universally known as global warming.
1
Statement from the World Conference on the Changing Atmosphere (Toronto, June 1988).
Bosselmann, K., When Two Worlds Collide: Society and Ecology (1995) at 34.
3
Ibid.
4
st
Oberthür, J., & Ott, E.H., The Kyoto Protocol: International Climate Policy for the 21 Century (1999) at 1.
2
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Climate change through global warming is the most serious environmental threat humankind
has faced. It is not a myth but a reality and our response to this threat will determine the
future of our planet. James Estapa, a Professor of Public International Law at the University of
Barcelona has described it as a problem that “spreads out beyond the national frontiers and
affects unevenly both countries and populations, without any consideration to the degree of
their respective historical responsibility in building it up”.5
GHGs are described as natural and anthropogenically occurring atmospheric gases that have
the ability to absorb and re-emit infrared radiation.6 The three main gases that are recognised
as GHGs are carbon dioxide, nitrous oxide and methane; however, compounds such as
tropospheric ozone and halocarbons are also considered to be GHGs.7 It is widely agreed that
the naturally occurring greenhouse effect is being impacted by the continual build-up of these
GHGs in our atmosphere and that this increase is caused by human induced activities. Through
the continuous burning of fossil fuels in energy generation, as well as deforestation, humans
have released more than acceptable levels of carbon dioxide into the atmosphere.
Furthermore, through agricultural activities, changes in land use and other resources, methane
and nitrous oxide are also being released at greater than acceptable levels. Because of GHGs’
ability to trap heat, their increased presence in the atmosphere have altered the natural
working of the greenhouse effect and caused an additional human induced greenhouse effect,
which has led to the global warming phenomenon.8 This increase in temperature has other
widespread effects, such as increased evaporation leading to greater global precipitation and
more frequent storms, as well as melting of the polar ice caps, which has led to an increase of
four to ten inches in sea level over the past century. This figure is likely to continue to rise. 9
Clearly, something must be done to curb the impact of global warming.
It is thought that since the late 19th century the average temperature on the earth’s surface
has increased by approximately 0.5°C. Most environmental scholars agree that any
temperature increase above 2°C is too much; however, current predictions suggest that by
5
Estapa, J.S., “Flexibility Mechanisms in the Kyoto Protocol: Constitutive Elements and Challenges Ahead” (2004)
34 Revue Generale de Droit 107 at 109.
6
United Nations Framework Convention on Climate Change, Article 1.5.
7
Rinkema, R.A., “Environmental Agreements, Non-State Actors, and the Kyoto Protocol: A “Third Way” for
International Climate Action?” (2003) 24 University of Pennsylvania Journal of International Law 729 at 733.
8
Oberthür & Ott, supra note 4 at 3.
9
Arcas, A.L., “Kyoto Protocol: An Adequate Agreement?” (2001) European Environmental Law Review 282 at 283.
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2100, the earth’s surface temperature could have risen by anywhere from 3.5 to 6°C.10 Put
simply, we cannot sustain our current consumption of fossil fuels and GHG emitting activities if
we want to guarantee the future of the next generation.
Despite these widespread and noticeable effects, global warming and the associated climate
change effects did not become a serious political issue until the 1970s11 when the protection
and preservation of the natural environment and its resources became a prevalent issue and
began gaining global recognition. This culminated in 1972 with the United Nations organised
United Nations Conference on the Human Environment in Stockholm, which set out a “need
for a common outlook and for common principles to inspire and guide the peoples of the world
in the preservation and enhancement of the human environment”.12 Although not resulting in
any legally binding obligations, Stockholm was important for the creation of the United Nations
Environment Programme (UNEP) whose mission was “to provide leadership and encourage
partnership in caring for the environment by inspiring, informing, and enabling nations and
peoples to improve their quality of life without compromising that of future generations”. 13
With international concern for the effects of global warming and climate change rising, two
United Nations organisations, the UNEP and the World Meteorological Organisation (WMO),
established the Intergovernmental Panel on Climate Change (IPCC), in 1988, whose function
was to conduct research on the climate change phenomenon.14 In its first report, two years
later, the IPCC called for an international treaty to recognise the problem.15
These events set the tone for the landmark United Nations Conference on Environment and
Development (UNCED) held 3 June to 14 June 1992 in Rio de Janeiro, which has since become
10
Oberthür & Ott, supra note 4 at 4.
Kahn, G., “The Fate of the Kyoto Protocol Under the Bush Administration” (2003) 21 Berkeley Journal of
International Law 548 at 549.
12
United Nations Environment Program 1972 in Pellander, E., “United Nations Overview of Conventions and
Agreements” in Bosselmann, K., Fogel, D.S., & Ruhl, J.B., Berkshire Encyclopedia of Sustainability: The Law of
Politics and Sustainability (eds, 2011) at 474.
13
United Nations Environment Program 2010 in Pellander, E., “United Nations Overview of Conventions and
Agreements” in Bosselmann, K., Fogel, D.S., & Ruhl, J.B., Berkshire Encyclopedia of Sustainability: The Law of
Politics and Sustainability (eds, 2011) at 474.
14
Kahn, supra note 11 at 549.
15
United Nations Framework Climate Change Convention, Climate Change Information Kit, Information Sheet 17
(July 2002)
<http://unfccc.int/essential_background/background_publications_htmlpdf/climate_change_information_kit/ite
ms/300.php> in Rinkema, supra note 7 at 735.
11
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informally known as the Earth Summit. This led to the formation the UNFCCC, which entered
into force in 1994.
1.2 The UNFCCC
The UNFCCC was adopted on 9 May 1992, in New York, after fifteen months of negotiations
over five separate sessions. At the Earth Summit in Rio in June 1992 the UNFCCC was opened
for signature and within a year 165 countries and the European Community16 had signed it and
become Parties to its terms.17 With its 50th ratification, the UNFCCC entered into force on 21
March 1994.18
As a result of its near universal acceptance, the UNFCCC is seen as the basis for international
politics on climate change; however, the price paid for this acceptance was the loss of “hard”
legally binding reduction targets, as a “soft” approach compromised its semblance of universal
acceptance within the international community (meaning that commitments agreed to under
its structure were not legally binding).19 However, despite this concession, the significance of
the UNFCCC cannot be overlooked as it finally provided a hard objective in the fight against
global warming, as well as providing the basic principles and obligations and establishing
procedures and institutions that would come to provide the framework for future political and
diplomatic action in the fight against this phenomenon.20 The three main principles embodied
in the UNFCCC were: sustainable development (development that takes into account the needs
of the current generation without compromising those of future generations); the
precautionary principle (which implies an obligation on states to take action even where the
science is uncertain if irreversible damage could be caused);21 and common, but differentiated
responsibilities (which takes into account the differing stages of development of a country in
16
The European Community was comprised of three international organisations – the European Coal and Steel
Community, the European Economic Community and the European Atomic Energy Community – which shared the
same set of governing institutions (those of the European Economic Community), which would become known as
the European Union in 1993 following the Maastricht Treaty.
17
Oberthür & Ott, supra note 4 at 33.
18
Ibid.
19
Ibid.
20
Ibid.
21
Arcas, supra note 9 at 284.
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setting obligations for them to meet). 22 Related to this common, but differentiated
responsibilities idea was the significant emphasis placed on the role of industrialised countries
by the UNFCCC in curbing climate change and taking leadership in addressing the matter.23 This
assumption was primarily based on the premise that industrialised countries should hold the
greatest accountability for the global warming phenomenon, as they were the largest GHG
emitters and had contributed most to the problem.24
Historically, and up until the 1980s, direct regulation had been favoured as the main global
response to climate change. This approach involved the imposition of a rule that would
specifically prescribe how an entity was to act in mitigating their global warming contribution.
However, the UNFCCC and subsequent Kyoto Protocol sparked a change in how a climate
change response was formulated with the creation of a market-based regulation system,
allowing for greater flexibility and cost efficiency in mitigating climate change effects.25
According to Article 1.2 of the UNFCCC, climate change is defined 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”.26
While no specific reduction targets in GHG emissions were set by the UNFCCC, its ultimate
objective as set out in Article 2 was to achieve “stabilisation of greenhouse gas concentrations
in the atmosphere at a level that would prevent dangerous anthropogenic concentrations’
interference with the climate system. Such a level should be achieved in a time-frame
sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food
production is not threatened and to enable economic development to proceed in a sustainable
22
Williams, D., “Rethinking the Kyoto Protocol: Are There Legal Solutions to Global Warming and Climate Change”
(2006) 5 Washington University Global Studies Law Review 333 at 336.
23
Kahn, supra note 11 at 549.
24
Coghlan, M., “Prospects and Pitfalls of the Kyoto Protocol to the United Nations Framework Convention on
Climate Change” (2002) 3 Melbourne Journal of International Law 165 at 166.
25
Blustein, S., “From the Bottom-Up: Redesigning the International Legal Response to Anthropogenic Climate
Change” (2011) 32 Adelaide Law Review 305 at 309.
26
United Nations Framework Convention on Climate Change, Article 1.2 in Arcas, supra note 9 at 282.
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manner”.27 While the broad nature of the wording allows for varying interpretations, it is
important to recognise its acknowledgement of a “need for adaptation to and mitigation of
climate change”.28 However, the UNFCCC has been criticised for its lack of legally binding
targets and it has been suggested that its absence of ‘hard’ substance has rendered the
UNFCCC ineffective in stimulating change.29
A key aspect of the UNFCCC was its division of countries into three main classifications (with
some overlap between different classifications). Annex I parties included 41 countries that
were made up of industrialised countries and those countries with economies in transition,
such as Eastern European countries. Annex I parties were under obligations to reduce their
GHG emissions as well as to create and maintain ‘sinks’ or natural reservoirs30 for GHGs.
Countries belonging to Annex II were an overlap of 24 Annex I parties who were wealthy
members of the Organisation of Economic Cooperation and Development. Annex II countries
had obligations to provide financial and technical support to developing countries, helping
them reduce their emissions.31 Finally, Non-Annex I countries consisted of the remainder of
UNFCCC parties who were predominantly countries of the developing world and recipients of
the aid provided by Annex II countries. This division also came to serve as the basis for
fundamental obligations under the Kyoto Protocol.32
This distinction is reflected in the difficult nature of the negotiations that took place in the
lead-up to the adoption of the UNFCCC, which were severely hindered by disagreement
between developing and industrialised countries with respect to their varying obligations and
responsibilities. The developing countries’ principal argument was that blame for climate
change should rest solely with industrialised countries, since global warming was a direct result
of their polluting activities, and only they had the financial and technological capabilities to
27
United Nations Framework Convention on Climate Change, Article 2 in Richardson, B.J., “Legislation and Treaty
Notes: Kyoto Protocol to the United Nations Framework Convention on Climate Change”, (1998) 2 New Zealand
Journal of Environmental Law 249 at 249.
28
Oberthür & Ott, supra note 4 at 34.
29
Coghlan, supra note 24 at 167.
30
Carbon sinks are natural/artificial reservoirs that can store carbon compounds for indefinite periods of time
preventing carbon dioxide being released in atmosphere. They are a key part of the carbon sequestration process
which helps remove carbon dioxide from the atmosphere.
31
Estapa, supra note 5 at 111.
32
Rinkema, supra note 7 at 736.
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mitigate the problem.33 This dialogue resulted in an inability to agree to precise reduction
commitments. Therefore the UNFCCC parties opted to follow a similar model to that
implemented by the Montreal Protocol on Substances that Deplete the Ozone Layer, which led
to the adoption of the framework convention style, which allows for the adoption of
subsequent protocols containing hard obligations.34
To resolve the conflict, the ‘common, but differentiated responsibilities’ principle was adopted
whereby industrialised countries take the lead in combating climate change. Consequently,
Annex I countries were required under Article 4(2)(a) to adopt national policies and measures
to limit anthropogenic emissions of GHG and protect and enhance greenhouse sinks with an
aim under Article 4(2)(b) of returning anthropogenic emission output to 1990 levels by the
year 2000.35 However, as time progressed, the need for an agreement that was stronger than
the UNFCCC became evident, with most industrialised countries failing to realise their
voluntary emission reduction targets, and some even increasing their emission levels during
the voluntary period.36
Under Article 7 of the UNFCCC, the annual Conference of the Parties (COP) initiative was set up,
which became the ultimate decision-making body of the regime. Its annual meetings involved
negotiations that eventually led to the emergence of the Kyoto Protocol at COP 3 37 in Kyoto in
1997.38 The aim of the COP was to quantify legally binding emission reduction commitments.39
At COP 1 in Berlin in 1995, the commitments set out in Article 4 of the UNFCCC were
recognised as being inadequate to achieve its ultimate objective and there was a general
consensus that quantified reduction targets within specified time frames must be
implemented for real change to be realised. COP 1 also recognised the need to update existing
international law, as the UNFCCC did not accommodate any provisions relating to GHG
emissions post 2000. Although negotiations for a supplementary protocol did not occur in
Berlin, the parties agreed to initiate a revision process of the UNFCCC, which subsequently
33
Richardson, B.J., “Legislation and Treaty Notes: Kyoto Protocol to the United Nations Framework Convention on
Climate Change” (1998) 2 New Zealand Journal of Environmental Law 249 at 250.
34
Ibid.
35
Ibid.
36
Sheeran, K., “Beyond Kyoto: North-South Implications of Emissions Trading and Taxes” (2006-2007) 5 Seattle
Journal for Social Justice 697 at 702.
37
The number indicates which number conference it was, so COP 3 means the third Conference of the Parties.
38
Oberthür & Ott, supra note 4 at 38.
39
Coghlan, supra note 24 at 167.
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became known as the Berlin Mandate. The Berlin Mandate was recognition of the urgent need
to achieve further commitments addressing climate change. As a result, the Ad Hoc Group on
the Berlin Mandate was established, with the hope of negotiating a new legal instrument,
ready for adoption at COP 3.40
40
Richardson, supra note 33 at 251.
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SECTION 2
THE KYOTO PROTOCOL
2.1 The Third Conference of the Parties
At COP 3 in Kyoto in 1997, the treaty embodied in the Kyoto Protocol was produced. This
document was the result of an unprecedented negotiation process within the international
community to address a serious international issue. The negotiations, however, were not the
product of the mere 12-day gathering in Kyoto but rather the culmination of efforts ongoing
since the UNFCCC was first convened at the 1992 Earth Summit. The Kyoto Protocol saw
foreign heads-of-state, leaders, ministers and organisations elevate the issue of climate change
into the political stratosphere where it could finally get the attention it deserved.41 It aimed to
impose legally binding obligations on parties to meet set emission reduction targets, and also
provide a more effective framework for implementing and monitoring emission reductions
that were made.42 In adopting the Kyoto Protocol the participants recognised that greater
steps needed to be taken to stabilise GHG emissions than were taken in the UNFCCC and that
there was a need for legally binding commitments. Very few countries were engaged in
legitimate efforts to reduce emissions following the voluntary reduction targets implemented
by the UNFCCC, which was a dominating reason in making legally binding obligations a part of
the Kyoto Protocol.43 The Kyoto Protocol was thus a stronger document than the UNFCCC in
two senses: first, it was legally binding, and second, it displayed greater ambition by
attempting a reduction from 1990 levels rather than just matching them.44
The main players in the Kyoto negotiations were the governments of participating countries as
these were the only bodies capable of committing their respective countries to such a
document. However, while environmental issues were at the forefront of the negotiations,
each country’s own perceived and real interests were also factors in the negotiating process,
leading to a fractured and by no means universal consensus.45 This was always going to be the
41
Oberthür & Ott, supra note 4 at 1.
Richardson, supra note 33 at 249.
43
Claussen, E., “Book Review: Carping at Kyoto” (2002-2003) 34 The George Washington International Law Review
247 at 248.
44
Arcas, supra note 9 at 285.
45
Oberthür & Ott, supra note 4 at 13.
42
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case when over 170 countries and hundreds of non-governmental and inter-governmental
organisations were involved in a process that hoped to satisfy all parties’ interests in one
document. 46 While non-governmental and inter-governmental organisations were not
physically involved in the negotiation process that led to the Kyoto Protocol, they remained
extremely influential through their ability to provide information and advice, make policy
recommendations, and provide an outlet for direct lobbying.47 Furthermore, involved in the
negotiation process were international bodies such as the UNEP, the United Nations
Development Programme, the World Bank, the World Meteorological Organisation, and
several others, who provided background information and additional advice through their
expertise in relevant fields.48
In following the UNFCCC framework, the Kyoto Protocol also differentiated between countries.
Annex I countries consisted of 39 industrialised countries and countries with economies in
transition, while Non-Annex I countries comprised of developing countries. Annex I countries
accounted for over two-thirds of global carbon emissions and, as a result, had binding
reduction commitments to meet under the Kyoto Protocol, while Non-Annex I countries had
no binding commitments.49
The Kyoto Protocol came into force on 16 February 2005 in accordance with Article 24, 90 days
after the ratification of 55 parties to the UNFCCC, which had to incorporate Annex I parties
accounting for at least 55% of the total carbon dioxide emissions of Annex I parties in 1990. As
it stands today, the Kyoto Protocol has 191 parties.50
The main objective of the Kyoto Protocol is set out in Article 3 and provides that Annex I
countries “shall individually or jointly, ensure that their aggregate anthropogenic carbon
dioxide equivalent emissions” of certain GHGs “do not exceed their assigned amounts”. The
overall goal was the achievement of GHG emission reduction in Annex I countries by at least
5% below their 1990 levels during the first commitment period of 2008-2012.51 This equated to
46
Oberthür & Ott, supra note 4 at 13.
Ibid, 29.
48
Ibid.
49
Sheeran, supra note 36 at 703.
50
Ibid, 706.
51
Ibid, 703.
47
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average emission reductions of 5.2% from 1990 emission levels.52 Many scholars have since
pointed out the practicalities associated with a 5% reduction in that emission levels are bound
to increase during the first commitment period and therefore the actual reduction target is
significantly greater than 5%.53 Non-Annex I countries are developing countries such as China,
India and Brazil; these were not given any binding commitments to reduce their emissions by
specific targets.54
The GHG emission reduction targets cover six gases, which are set out in Annex A and are
carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur
hexafluoride. This is significant as the recognition of these GHG emissions means that the
Kyoto Protocol covers all those gases that were not included in the Montreal Protocol on
Substances that Deplete the Ozone Layer (1987). In calculating reduction targets, gases are
combined on a carbon dioxide equivalent basis and then averaged over the first commitment
period of 2008-2012, before being compared with the 1990 base figure. Countries are able to
choose reductions in whatever gas or gas combination they choose, so long as they meet their
reduction targets.
The Kyoto Protocol is one of the most important global agreements of the latter twentieth
century since it recognises the international environmental problem that citizens of planet
earth are currently facing, and also because it proposes possible methods of reducing GHGs
through three separate mechanisms: Joint Implementation, Emission Trading, and Clean
Development Mechanism (CDM). These mechanisms truly contribute to a global solution by
allowing industrialised countries to meet their emission targets under the Kyoto Protocol
through their domestic actions, as well as through international involvement with projects
abroad in developing countries. The three mechanisms operate on a basis that allows
industrialised countries to meet their reduction targets under the Kyoto Protocol by investing
in clean projects of their choice in developing countries and gaining emission credits. Because
52
Arcas, supra note 9 at 286.
Ibid, 287.
54
Hill, T., “UN Climate Change Conference in Durban: Outcomes and Future of the Kyoto Protocol” (2011) 7
Macquarie Journal of International & Comparative Environmental Law 92 at 92.
53
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these mechanisms allow for the trading of such credits, they are often referred to as ‘market
mechanisms’.55
Joint Implementation is facilitated under Article 6 of the Kyoto Protocol and functions on a
basis whereby two industrialised countries are able to finance emission reduction or ‘clean’
projects, with any subsequent emission credits generated from the project being divided
between them.56
Under Emission Trading (Article 17), industrialised countries that have either met or exceeded
their emission reduction targets under the Kyoto Protocol are able to sell excess emissions to
countries that are finding it more difficult to meet their own reduction targets, thereby
offering incentive to perform better under the Kyoto Protocol. 57 Therefore, both Joint
Implementation and Emission Trading allow for combined efforts by two or more industrialised
countries.
The CDM, established in Article 12, is the only mechanism allowing developing countries to be
involved in reducing emissions. It allows industrialised countries to invest in projects that
reduce emissions in developing countries and was designed to allow both industrialised and
developing countries to benefit from such a mechanism by promoting sustainable
development within developing countries and by allowing industrialised countries to reach
their emission reduction targets more economically.58
2.2 The Effectiveness of the First Commitment Period and the Shortcomings of the Kyoto
Protocol
The Kyoto Protocol has failed to identify and address the fact that our civilisation is built on oil,
a finite resource. Our dependence on oil affects all areas of life, from transport, food and
agriculture, to health and medicine, technology to military security.59 Some estimates predict
55
Olawuyi, D.S., “From Kyoto to Copenhagen: Rethinking the Place of Flexible Mechanisms in the Kyoto Protocol’s
Post 2012 Commitment Period” (2010) 6 Law, Environment and Development Journal 21 at 24.
56
Olawuyi, supra note 55 at 24.
57
Ibid.
58
Ibid.
59
Setear, J.K., “Collapse: Can International Law Protect the Earth’s Natural Resources?” (2007) 101 American
Society of International Law in Proceedings 171 at 178.
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an increase in energy consumption of 71% during the period 2003 to 2030 with oil usage
growing from 80 million to 98 million barrels per day. Clearly, there is no way that the oil
resources on this planet can continue to sustain this way of life. We are facing the peaking,
diminishing and eventual scarcity of this natural resource, and yet the Kyoto Protocol does
nothing to address this fact. Increasing demands for oil will at some point exhaust our supply.
There is a fundamental need for a substitute for oil, a need that should stimulate a wider
search for alternative, renewable forms of energy, thereby helping reduce the effect of global
warming.60 Switching the focus from reducing emissions to finding alternative sources of
energy, and making the problem of the dwindling supply of fossil fuels more clear and
prominent, will hopefully compel greater commitment to action in this regard.
Blustein’s stance is apposite here, since it is his belief that the Kyoto Protocol “offers the wrong
diagnosis” to climate change since, in dealing with GHG emissions, it deals with the symptoms
of climate change, rather than the cause; namely, those activities that cause GHG emissions.61
Climate change results from activities producing GHG emissions and therefore surely it follows
that any response to the problem must deal with the activities rather than concern itself with
the outcome? If this is the case, and we concern ourselves with the outcome alone, then we
will be forever chasing a solution that is just out of reach, as emissions will continue,
irrespective of any regime. Because of this misguided focus on outcomes, the Kyoto Protocol is
ineffective in shifting the planet’s energy source toward renewable power over fossil fuel
energy.
A major criticism of the Kyoto Protocol is the distinction it makes between industrialised and
developing countries and its prioritisation of equity for developing countries at the expense of
an effective climate change regime.62 This becomes especially problematic for the Kyoto
Protocol’s first commitment period’s effectiveness as well as for its second commitment period,
given the predicted increase in developing countries’ emissions in the near future.63 For
example, between 1990 and 1998, India, despite being considered a developing country, had a
57% increase in emissions and is now the world’s fifth largest fossil-fuel emitting country. In
China, emissions increased by 39% during the period 1990 and 1996, making China the world’s
60
Setear, supra note 59 at 179.
Blustein, supra note 25 at 312.
62
Sheeran, supra note 36 at 697.
63
Ibid, 704.
61
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second largest fossil-fuel emitting country behind the United States. How can these two
countries be considered developing countries for the purposes of a protocol that aims to
reduce emissions?64 It is predicted that by 2015 the energy needs of the developing world will
have overtaken those of the industrialised. 65 If these developing countries are able to
continually ignore the harmful external impact their emissions have on global climate, then
their emission production will continue to exceed optimal levels and will not be abated to
adequate levels. Furthermore, the exclusion of developing countries from mandatory emission
reductions means that most abatement under the Kyoto Protocol concentrates on those areas
where such abatements could cost the most and therefore is not the most economically and
environmentally efficient option.66 The exemption of developing countries from mandatory
emission reduction targets increases the global cost of climate change by the Kyoto Protocol
mechanisms.67 This result is not desirable for any party.
Ultimately, the emission reduction targets set out in the Kyoto Protocol are far too minimalistic
to make any real and lasting impact on the climate change issue. This is one of the Kyoto
Protocol’s most significant problems. Most environmental and scientific authorities argue that
far deeper cuts are needed, and furthermore that these cuts should have been made a long
time ago. Throughout the early 1990s the IPCC consistently reiterated that at least a 60% cut in
emissions is required in order to prevent a continued increase of GHGs in the atmosphere. 68
For many people the Kyoto Protocol commitments were “neither adequate to address the
issue of climate change nor based on any economic, scientific, or equitable principles”69 and
the Kyoto Protocol itself recognised this fact in noting a need for reconsideration of future
commitments by 2005 in Article 3.9.70 However, despite this, antagonists of the Kyoto Protocol
criticise it for being “an impractical policy focused on achieving an unrealistic and
inappropriate goal”.71 One example in support of this proposition was the case of the United
States. While the Kyoto Protocol was still awaiting ratification in 2002, United States’ emissions
64
Ibid.
Setear, supra note 59 at 180.
66
Sheeran, supra note 36 at 704.
67
Ibid, 705.
68
Richardson, supra note 33 at 258.
69
Srivastava, L., & Pathak, M., “Kyoto Protocol and its Mechanisms” (1998) Climate Change Post-Kyoto
Perspectives from the South at 80 in Estapa, supra note 5 at 112.
70
Estapa, supra note 5 at 112.
71
McKibbon, W.J., & Wilcoxen, P.J., “The Role of Economics in Climate Change Policy” (2002) 16(2) Journal of
Economic Perspectives 107 at 127.
65
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were already 15% above their 1990 levels. Therefore, the Kyoto Protocol’s call for a 7%
reduction from the United States would have meant a 22% reduction in a ten-year period, if
the United States had begun work on their problem immediately.72 As a result of this, Eileen
Claussen argued that the problem with the Kyoto Protocol was not the fact that it set
quantitative targets for emission reduction, but rather that the specific targets negotiated
asked for too much.73 However, these concerns proved immaterial as the United States
withdrew from the Kyoto Protocol in 2001, striking a serious blow to its effectiveness, given
that the United States is the world’s largest emission producer, accounting for 25% of global
emissions, and especially in light of the fact that the United States had spent several years
actively negotiating a treaty framework that would be in its own best interests.74
Another significant criticism lies in the fact that the Kyoto Protocol is a short-term document. It
does not provide a framework for the attainment of long-term emission reduction goals due to
the lack of substantive obligations on developing countries. This sacrifice was made because
the Kyoto Protocol had to be flexible enough to accommodate the differing circumstances of
the vast numbers of participants; as a result it had to drop more stringent provisions that
ultimately would have been more effective. 75 Sources indicate that although the Kyoto
Protocol has resulted in a reduction in GHG emissions, in reality it does little to curb global
emissions, which have increased by half since 1990.
While giving significant attention to setting reduction targets, irrespective of how short-term
these may be, the Kyoto Protocol, fatally, gives little attention to the role of monitoring, which
is essential to determining compliance amongst the parties. The Kyoto Protocol’s compliance
mechanism essentially requires that countries punish themselves for not complying – a
mechanism that is unlikely either to influence behaviour or inspire confidence in the regime.76
The fact that the Kyoto Protocol applies to a set of six GHGs makes it difficult to monitor
emissions of these gases, a difficulty complicated by the fact that the activities causing
emissions of most of these gases are not well understood. The exception is carbon dioxide
72
Claussen, supra note 43 at 250.
Claussen, supra note 43 at 251.
74
Sheeran, supra note 36 at 706.
75
Richardson, supra note 33 at 254.
76
Barrett, S., “Towards a Better Climate Treaty” (2002) Fondazione Eni Enrico Mattei at 1.
73
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emitted through fossil fuel combustion, which is the main contributor to global warming. 77
Ultimately, treating these gases as interchangeable commodities has been an unsatisfactory
approach. Victor argues that the lifetime of the gases differ in the atmosphere and therefore
they should be approached separately. Carbon dioxide is the predominant cause of global
warming and therefore the significant basis of a climate change regime is focused on curtailing
carbon dioxide emissions. However, while methane is a strong GHG, it does not remain in the
atmosphere for very long (ten years). On the other hand, compounds like perfluorocarbons
and sulphur hexafluoride are stronger in their effect than carbon dioxide and can remain in the
atmosphere for thousands of years, although they are not as prominent in amount. On this
basis there are problems with targeting gases as one entity. While getting rid of methane is
going to produce short-term results in the next 10 to 20 years, if nothing is done about the
compound gases then future generations are going to be faced with the serious problems
entailed in dealing with these gases. Stronger gases that survive much longer in the
atmosphere should be dealt with on a separate timetable that is stricter and commands
greater importance. An approach that sees all gases as equally harmful could lose the
effectiveness that an approach targeted to each individual gas will have.78 However, in the
alternative, it is not disputed that each gas contributes to the global warming effect.
Governments may find it easier and less expensive to control emissions of some gases more
than others. Methane and Nitrous Oxide “account for about one-quarter of human-caused
global warming”79. Therefore, inclusion of all these gases is essential to make advancements in
methodologies for reducing emissions of pollutants that place the climate at risk. We should be
targeting all pollutants that are affecting our environment.
Christopher Sutter has also criticised the effectiveness of the CDM mechanism implemented by
the Kyoto Protocol, stating that no such mechanism will fulfil the Kyoto Protocol’s objective of
GHG emission reduction, as well as contributing to sustainable development simultaneously.
Sutter says that there is “a clear tendency for the CDM to deliver likely emission reductions but
not to contribute towards host country’s sustainable development”. 80 A further criticism of the
77
Victor, D.G., Crisis and Opportunity: The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming
(2001) ch 1 at 17.
78
Victor, supra note 77 at 23.
79
Ibid, 60.
80
Sutter, C., & Parreno, J.C., “Does the Current Clean Development Mechanisms Deliver as Sustinable
Development Claims: An Analysis of Officially Registered CDM Projects” (2007) 75 Climate Change 76-77 at 13 in
Olawuyi, supra note 55 at 27.
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CDM mechanism is that it does not provide for any criteria in choosing which projects or
countries to invest in. Industrialised countries approach CDM as if it were a business
investment and therefore choose those developing countries with the highest mitigation
potential, that provide for the safest possible investment. Consequently, there is a significant
skew in those developing countries that have been invested in for CDM projects, which has
meant that as of 2010, 67% of developing countries did not have an invested CDM project by
an industrialised country. In fact, as of 2010, the Asian region accounted for over 80% of
implemented CDM projects, while Africa accounted for less than 2%.81 This must lead to
concerns about the effectiveness of the CDM mechanism, and as a result the Kyoto Protocol,
and whether either will truly lend itself toward a more sustainably developed future.
Furthermore, because the Kyoto Protocol allows developing countries to define exactly what a
sustainable development project within their borders entails, this has led several developing
countries, especially in Africa, to lower their criteria for sustainable development in an attempt
to attract potential investments from industrialised countries. 82 This problem could be
overcome by implementing a quota of sorts, limiting the number of projects in which a
particular country can be involved, helping ensure equitable participation in any future climate
change regime.83
Related to CDM and the other market mechanisms is their facilitation of ‘carbon leakage’,
whereby the costs associated with climate change in industrialised countries could cause GHG
emitting businesses that are struggling to meet these costs, to emigrate to developing
countries who do not have sanctions or commitments under the Kyoto Protocol, thereby
resulting in no reduction at all.84
A further shortcoming of the Kyoto Protocol relates to the additionality principle, which is
premised on a test of whether or not a particular project results in reductions that are greater
than the levels that would have occurred under a ‘business-as-usual’ scenario;85 in other words,
whether or not the reductions would have occurred regardless of the existence of the Kyoto
Protocol. This anomaly has led to industrialised countries being able to claim credits for those
81
Olawuyi, supra note 55 at 31.
Ibid, 33.
83
Ibid, 34.
84
Ibid, 23.
85
Ibid, 28.
82
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projects that were ongoing or existed before the Kyoto Protocol was even brought into
existence. Therefore, the actual effectiveness of the Kyoto Protocol may be even less than
currently recognised as projects that were utilised prior to its introduction, which resulted in
emission reductions, cannot be said to have contributed to the overall effectiveness of the
Kyoto Protocol, because they would have occurred anyway.
Ultimately, in light of these concerns and the highlighted shortcomings, as well as the fact that
global GHG emissions have actually increased rather than declined during this first
commitment period, the Kyoto Protocol’s effectiveness is truly questionable, highlighting the
need for a new regime, or amendments to the current one, in order to regain a semblance of
respectability.
2.3 The Lead Up to the Second Commitment Period
In preparation for the conclusion of the first commitment period at the end of 2012, at COP 13
in Bali in 2007, parties to the UNFCCC agreed to embark on a negotiation process to agree a
future climate change regime to be implemented following the end of the first commitment
period. They set a deadline for their agreement at COP 15 in Copenhagen in 2009. 86 The aim of
the Bali COP was to enable “the full, effective and sustained implementation of the Convention
through long-term co-operative action, now, up to and beyond 2012”.87 The negotiation
process was known as the Bali Road Map and described as a ‘two-track’ initiative due to its
pursuit of two main elements involving commitments to:
1. Progress the Ad Hoc Working Group on Further Commitments for Annex I Parties under
the Kyoto Protocol (AWG-KP), whose purpose was to consider further commitments for
Annex I parties for the period beyond 2012;88 and
2. Establish the Ad Hoc Working Group on Long Term Cooperative Action under the
Convention (AWG-LCA)89 whose purpose was to enable an effective implementation of
86
Hill, supra note 54 at 93.
United Nations Framework Convention on Climate Change, Bali Action Plan, Draft Decision
<http://unfccc.int/meetings/cop_13/items/4049.php> in Warnock, C., “International Environmental Law” (20072008) 5 New Zealand Yearbook of International Law 212 at 214.
88
United Nations Framework Convention on Climate Change, Report of the Ad Hoc Working Group on Further
Commitments for Annex I Parties under the Kyoto Protocol on its resumed Fourth Session, Held in Bali from 3 to 15
December 2007, UN Doc FCCC/KP/AWG/2007/5 in Hill, supra note 54 at 93.
87
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the UNFCCC through cooperative action beyond 2012 in order to reach a COP
negotiated outcome. This was essentially to be a long term goal for global emission
reductions and greater domestic action
When Copenhagen and COP 15 eventuated in 2009, no legal agreement was made as planned
under the Bali Road Map. Difficulties arose between industrialised countries (such as the USA)
wanting developing countries (such as India and China) to take on binding emission reduction
targets; and developing countries wanting Annex I countries to take on further binding
emission reduction obligations under further Kyoto Protocol commitment periods.90 These
differences led to a non-legally binding statement called the Copenhagen Accord, whose main
points were that: (i) Annex I countries would commit to quantified reduction targets for 2020
by 31 January 2010; (ii) non-Annex I countries were to implement mitigation actions by 31
January 2010; (iii) in 2015 an assessment of the Copenhagen Accord’s implementation would
take place; and (iv) the AWG-KP and AWG-LCA process would continue and negotiations be
completed by COP 16 in Cancun in 2010.91 The long-term goal of the Copenhagen Accord was
to limit climate change to no more than 2˚C.92 Ultimately, in terms of any binding agreement
post-2012, the COP at Copenhagen, which had been dubbed ‘Hopenhagen’, became
‘Nopenhagen’, with no binding agreement being settled upon.93 For many people, the nonlegally binding character of the Copenhagen Accord, its absence of a global long-term
mitigation goal, and its non-universality, confirm its inability to represent a future climate
change deal.94
At 2010’s COP 16 in Cancun, no post-2012 regime could be agreed upon and once again the
work of the AWG-KP and AWG-LCA was drawn out to COP 17 in Durban the following year.
However, Cancun was significant for the Cancun Agreements, which also recognised that the
effects of global warming should be limited to below 2˚C. These agreements also included
89
United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on its
Thirteenth Session, Held in Bali from 3 to 15 December 2007, UN Doc FCCC/CP/2007/6/Add.1, decision 2/CP.13 in
Hill, supra note 54 at 93.
90
Hill, supra note 54 at 93.
91
Ibid, 94.
92
Bodansky, D., “Current Developments – The Copenhagen Climate Change Conference: A Post-mortem” (2010)
104 The American Journal of International Law 230 at 231.
93
Ibid, 230.
94
Armeni, C., “Legislation and Policy: The Copenhagen Accord and Beyond”, (2010) 12 Environmental Law Review
132 at 139.
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pledges from 76 industrialised and developing countries, which were collectively responsible
for 85% of annual global emissions in 2010, to better control their GHG emissions.
COP 17, held in Durban in 2011, took on added importance in light of the imminent end of the
first commitment period for the Kyoto Protocol the following year.95 The main issue for
agreement at Durban was a choice between implementing a second commitment period under
the Kyoto Protocol after 2012, or alternatively coming up with a new legally binding treaty.
Furthermore, there was discussion on how best to preserve the CDM mechanism post-2012
and how best to progress those initiatives established at the 2010 Cancun COP.96
The key outcome from the Durban conference was an agreement by parties to the UNFCCC to
launch a new process in the hope of developing another legal instrument under the UNFCCC
that would apply to all parties in order to achieve further GHG emission reductions. A new
subsidiary body under the UNFCCC was set up to undertake this process and was labelled the
Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG-DPEA).97 This group
was commissioned to start work immediately and to have it completed no later than 2015 in
order for the new instrument to be adopted at COP 21 in 2015, and to be in force by 2020.98
The Durban Platform is more an “agreement to agree” on a new protocol by 2015 and is
therefore not really enforceable and is dependent on the commitment and interests of the
parties if an outcome is to be achieved by the 2015 deadline.99 The other important point of
the Durban conference was the agreement made by some countries to a second commitment
period under the Kyoto Protocol, demonstrating the commitment of certain countries, in
particular the European Union, of taking formal action to reduce their emissions. Furthermore,
it preserves those mechanisms under the Kyoto Protocol for the post-2012 period.100
Finally, in November 2012, parties to the Kyoto Protocol met at COP 18 in Doha and agreed on
a timetable for a future agreement that would include all countries, rather than distinguish
between industrialised and developing countries. In accordance with the timetable, such a
95
Hill, supra note 54 at 94.
Hill, supra note 54 at 94.
97
Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action – Proposal by the
President (Draft Decision), FCCC/CP/2011/L.10, decision 2, in Hill, supra note 54 at 94.
98
Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action – Proposal by the
President (Draft Decision), FCCC/CP/2011/L.10, decision 4, in Hill, supra note 54 at 95.
99
Hill, supra note 54 at 96.
100
Ibid, 97.
96
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global agreement should be adopted by 2015 and be implemented by 2020. Furthermore, it
was agreed that with the expiry of the first commitment period at the end of the year, a
second commitment period under the Kyoto Protocol would begin in 2013 and run for 8 years,
until 2020, at which point the new agreement, agreed to in 2015, would take over.101
2.4 The Likely Effectiveness of the Second Commitment Period
The second commitment period applies to emissions between 2013 and 2020 and the Doha
COP amended the Kyoto Protocol to accommodate this second commitment period. However,
as of the start of 2013, Japan, New Zealand and Russia have all refused to take on new
emission reduction targets, despite participating in the first-round of commitments between
2008 and 2012. Canada, which withdrew from the Kyoto Protocol in 2012, and the United
States, also do not have any binding targets.102 In the absence of the participation of these
countries, the potential effectiveness of this second commitment period must be questioned.
Halvorssen proposes that to make the second commitment period more effective, an Annex C
should be incorporated into the Kyoto Protocol, which would consist of fast-growing
developing countries that are heavy GHG emitters, as well as setting up an Annex C Mitigation
Fund. Halvorssen argues that this would be in step with the “common but differentiated
responsibilities” principle and would uphold the UNFCCC goal of achieving 1990 emission levels,
while also promoting sustainable development. He proposes that the mitigation fund would
exist to assist Annex C countries in complying with their new obligations under the Kyoto
Protocol.103
The main shortcoming of the second commitment period is likely to be the fact that countries
are to make their own reduction pledges and therefore the likelihood of this period having any
101
United Nations Framework Convention on Climate Change, Doha Climate Change Conference, November 2012
<http://unfccc.int/meetings/doha_nov_2012/meeting/6815.php>.
102
Greenpeace, “What Happened in Doha? Analysis of the Conduct and Outcome of the COP 18 Climate
Negotiations”, (8 December 2012) Greenpeace
<http://www.greenpeace.org/international/Global/international/briefings/climate/Doha2012/QandAoutcomeDo
ha.pdf>.
103
Halvorssen, A.M., “Common, But Differentiated Commitments in the Future Climate Change Regime –
Amending the Kyoto Protocol to Include Annex C and the Annex C Mitigation Fund” (2007) 18 Colorado Journal of
International Environmental Law and Policy 247 at 248.
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lasting impact on the fight against climate change is insignificant.104 It is believed that for this
second commitment period to make any lasting change, extensive reductions that are upwards
of 50-70% will need to be achieved. The fact that major emitters such as the United States and
Japan have refused to participate, means making this dream a reality will be incredibly
challenging.105
Thus far, the impact of the Kyoto Protocol has been poor. With carbon dioxide emissions
continuing to increase inexorably, and with China, India and the United States planning to build
850 new coal-fired plants between them, allowing for the production of five times more
carbon dioxide into the atmosphere, the Kyoto Protocol’s continued effectiveness throughout
its second commitment period is nearly laughable.106
104
Hill, supra note 54 at 97.
Sheeran, supra note 36 at 707.
106
Setear, supra note 59 at 181.
105
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SECTION 3
CHALLENGES TO BE OVERCOME BY A FUTURE REGIME
May and Kelly adequately summed up the perils associated with treaty negotiations when they
said that “most treaty negotiations … reflect endogenous political, cultural, religious and ethnic
consilience and division, and exogenous influences respecting who should pay for what and
when, who participates and who decides. It reflects the inescapable binomialism of the global
age: north and south, east and west, developed and developing, financially rich and poor,
biologically endowed and barren, givers and takers around the globe”.107 This statement
encapsulates some of the challenges and barriers that a road to a future climate change
regime will be fraught with.
3.1 The Short Time Frame
The immediate challenge that springs to mind when investigating a future climate change
regime to replace the Kyoto Protocol is the relatively short time frame available to work with.
Following the Durban and Doha COPs, it was agreed that a future climate change regime
should be adopted at COP 21 in 2015, ready to be enforced by 2020. This new agreement will
require negotiations and settlement between more than 190 countries, not to mention world
organisations and non-governmental organisations, as was the case in the Kyoto Protocol. 108 It
is therefore an ambitious initiative to have this new regime in place by 2015, albeit a necessary
one. However, it is beneficial that the second commitment period of the Kyoto Protocol has
been implemented as this allows a possible extension toward the 2020 implementation date
for such a regime to be agreed.
3.2 The Industrialised and Developing Country Distinction
Any future climate change regime must abolish the distinction between developing and
industrialised countries. India and China are the two most populous countries in the world, and
are significant GHG emitters, and yet, because they are still considered to be developing and
107
May, J.R., & Kelly, J.P., “The Environment and International Society: Issues, Concepts and Context” in Alam, S.
et al., Routledge Handbook of International Environmental Law (eds, 2013) at 14.
108
Hill, supra note 54 at 96.
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not yet as industrialised as other first world countries like the United States or the United
Kingdom, they were excluded from the Kyoto Protocol. This distinction should be abolished in
any future regime, as preventing climate change will take a concerted effort on a global scale
rather than one taken by industrialised countries only to allow developing countries the same
opportunity to develop that industrialised countries had. While this may seem unfair to
developing countries, it is simply a fact of the serious nature we find ourselves in.109
While inclusion of developing countries will spark controversial equity debates, an emphasis
should be placed on reducing the cost of global abatement as a whole rather than a transfer of
costs from the industrialised to the developing countries.110 The war against global warming
will not be won unless the entire global community is involved. All countries, irrespective of
wealth or size, must play a part in any future regime. While the Kyoto Protocol tries to
encourage this through the ‘common, but differentiated responsibilities’ idea,111 Rajamani
argues that if implementation of the principle defeats the object and purpose of a treaty, then
it has clearly gone beyond the limits of the treaty and should not apply. 112 In order for
sustainable development to prosper, it is sometimes necessary to make sacrifices, and in this
respect economic growth should be sacrificed (balanced) with climate change objectives rather
than taking precedence over them.113It would seem that the seriousness of the problem today
warrants continued involvement from industrialised, and greater involvement from developing
countries, in order to hopefully bring the effects of global warming under control. Countries
such as China and India, which are developing and experiencing exponential growth today, are
far more attuned to this problem than industrialised countries were at a similar stage of their
history and must therefore take greater responsibility. In any event, taking into account the
historical nature of industrialised countries’ GHG emissions may not be entirely fair because
the GHG emission levels of developing countries continues to increase and, if left unrestricted,
is predicted to potentially surpass those of the industrialised world by 2020.114 While there is
certainly a right for the developing world to have the opportunity to develop, this should not
109
Olawuyi, supra note 55 at 31.
Böhringer, C., “The Kyoto Protocol: A Review and Perspectives” (2003) 19(3) Oxford Review of Economic Policy
451 at 462.
111
Halvorssen, supra note 103 at 253.
112
Rajamani, L., Differential Treatment in International Environmental Law (2006) at 162 in Halvorssen, supra note
103 at 255.
113
Halvorssen, supra note 103 at 255.
114
Green, B.A., “Lessons from the Montreal Protocol: Guidance for the Next International Climate Change
Agreement” (2009) 39 Environmental Law 253 at 281.
110
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mean that they are excluded entirely from participation in any cooperative measure to address
climate change, as they are quickly becoming the primary GHG emitters. Furthermore, their
involvement could ultimately lead to increased energy efficiency, which would well serve their
desire to develop their economies and living standards.115 Therefore a future climate change
regime should abolish this distinction between industrialised and developing countries.
Olawuyi advocates the insertion of a provision allowing the annual COP to review the Annex I
and II lists set out in the UNFCCC and provide them with the authority to add or remove
countries as desired, depending on their emission levels over certain periods of time. This
would remove the anomaly currently experienced within the Kyoto Protocol whereby
developing countries such as China and India are exempt from making emission reductions, an
absurdity which certainly needs to be addressed in any new climate change regime.116
Interrelated with this industrialised and developing country conflict is the innate human
tendency to blame others and refuse to accept responsibility, which is another challenge for a
future regime to overcome. In the past, countries have blamed others for their lack of action. A
classic example was the United States’ refusal to ratify the Kyoto Protocol, despite producing a
quarter of the world’s GHG emissions, because India and China did not have any binding
commitments. On the other hand, China and India argued that they should not have to agree
to binding reduction commitments because the United States itself did not have any.117 This
stalemate must be overcome by a future regime. Countries need to realise that a climate
change regime curbing global warming will benefit all global citizens.
3.3 The Involvement of the United States
On this note, the involvement of the United States is crucial for any future climate regime. The
United States is not party to any major international environmental treaty. Although it is a
member of the UNFCCC, that status is not fully operable unless a country is also a member of
the Kyoto Protocol, which the United States has refused to ratify. The United States has
steered clear of environmental treaties that place legally binding obligations upon it, but are
115
Green, supra note 114 at 281.
Olawuyi, supra note 55 at 23.
117
Halvorssen, supra note 103 at 250.
116
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happy to sign up to soft law documents that do not require much of them. As Rajamani put it,
“the United States is an active participant in negotiations, but a reluctant participant in
treaties”.118 While the United States has been engaging far more constructively under the
Obama regime, there are still significant difficulties in it garnering enough domestic support to
allow it to take on environmental commitments at an international level. Therefore, any
consideration of a future regime should involve a determination of the extent to which parties
will allow the United States to influence an agreement it may not ratify and become a party
to.119
3.4 An Effective Enforcement Mechanism
An effective enforcement mechanism must also be conceptualised if a future regime is to have
a greater impact than the Kyoto Protocol and truly make a difference in the war against global
warming. If there were no threat of sanctions for non-compliance then it would only be in very
rare instances that countries actually fulfilled their obligations under any regime. One way of
achieving this could be to convince countries that it would be in their interests to comply with
any future regime. Perhaps an appeal to the moral and emotive could be an effective means of
achieving this. Very rarely will compliance be gained through punitive sanctions, as countries
will simply not accept any regime that proposes such sanctions. However, countries may sign
up if there was a form of ‘big brother’ scenario created whereby countries are put under
scrutiny from others and therefore comply for fear of backlash from other countries. One
possibility is to set up some form of fund, possibly with the World Bank or International
Monetary Fund, and have violating countries transfer revenue into the fund, which can then be
used to either compensate other compliant countries or be put to research and development
purposes.120 In order for an international climate control agreement to be self-enforcing,
countries need to find it in their self-interests to voluntarily participate.121
118
Rajamani, L., “Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of
the Climate Regime” (2009) 58 International and Comparative Law Quarterly 803 at 830.
119
Ibid.
120
Böhringer, supra note 110 at 462.
121
Sheeran, supra note 36 at 701.
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3.5 The Free-Rider Incentive
A future climate change agreement must prevent countries from relying on the abatement
efforts of others in order to save costs, as countries would all be better off if everyone
participated with each other cooperatively. This free-rider incentive for non-compliance and
non-participation has to be overcome.122 Countries are very reluctant to incur the costs of
emission abatement when other countries are able to benefit at their expense, and in a similar
vein, countries are reluctant to incur costs when they can easily free ride on others’ emission
abatement efforts. Countries normally will only voluntarily reduce their emissions where some
private benefit from their reduction will outweigh the costs of those reductions. However,
from a global perspective, this is a less than ideal attitude. For the future, instead of
considering the idea of climate change from a single country’s perspective, it should be looked
at it from a global perspective. Arguably the global benefit from any country’s emission
reduction will exceed the cost of implementing that reduction.123
3.6 A Fundamental Change in Attitude
A distinct problem with a future climate change regime is overcoming the current attitude
displayed towards global warming and the effects of climate change in general. Because the
likely cumulative impact of global warming will not be fully realised until after 2100, there is an
intergenerational attitude that tends to imply it is not a problem for today’s generation to
worry about. 124 Because of this, certain countries portray an ideology that the current
generation has powerful reasoning to continue to pollute, as they will not be substantially
affected by the climate change phenomenon.125 It is this attitude that needs to change: it is an
attitude that is entirely predicated on falsities. Humanity is facing the possibility of a mass
extinction event over the next century. Some optimistic scientists are predicting we could lose
70% of all species on this planet by the turn of the century. The problem does not simply lie in
finding better ways to regulate the economy or a new method of dealing with climate change.
What is truly wrong is that business leaders and all global citizens continue to live on the ideals
122
Böhringer, supra note 110 at 455.
Sheeran, supra note 36 at 699.
124
Gardiner, S.M., “The Global Warming Tragedy and the Dangerous Illusion of the Kyoto Protocol” (2004) 18(1)
Ethics and International Affairs 23 at 29.
125
Ibid, 30.
123
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of human nature and human journey that were inherited 200 years ago at the beginning of the
industrial market era. It is these ideologies that need to change if we are to be successful in
curbing climate change.126 Jeremy Rifkin, a seasoned political campaigner, economist and
environmental lawyer, has summed the issue up when he alerted us to the fact that our
current thinking is so occupied by 200 years of market thinking, that it has nurtured a sense of
selfishness and competitiveness as a logical social construct that is based on a supply system.
He calls for a revolution of consciousness that parallels the ideas of Christopher Stone, who is
noted for highlighting that humanity is reaching a stage where it needs to equate intrinsic
values of nature with ecological law. In his paper, ‘Should Trees Have Standing’, Stone
describes the way in which our society, over 2000 years of civilisation, has evinced an
increased empathy and ability to feel compassion for other groups of people. Over time human
morality has shown itself capable of increasing and embracing new groups, such as women.
From within a patriarchal power structure, the thought that women were the equal of men
seemed outrageous, but over time that view has changed. More recently, attempts to think
across national and geographical boundaries to overcome racist attitudes have been witnessed.
The next step should now occur, resulting in social compassion for the entire planet.
Another challenge a future climate change regime would face is a re-conceptualisation of how
cost-effective, sustainable solutions are viewed. The current view is that the more sustainable
a solution, the more expensive it is going to be. Projects that could make a significant
difference in climate change require new and expensive technologies, whereas those projects
that will make no lasting change or impact are more affordable and less costly. Industrialised
countries are currently forced to choose between investing in projects that will involve new
technologies that come at significant cost but produce the most sustainable outcome, or
alternatively, settle for a more cost-effective solution, but a solution that does not have any
real and lasting sustainable outcome.127 In today’s business driven world it comes as no
surprise as to which option is favoured. Therefore, when a cleaner technology, with greater
cost but greater sustainability potential, will result in the same emission reduction as a dirtier,
cheaper technology, with adverse environmental effects and less sustainability, there is a
126
127
Ripper, V., “Occupy Love” (2012) Video Documentary.
Olawuyi, supra note 55 at 27.
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prevalence for countries to opt for the cheaper, dirtier technology. 128 This is an attitude that
must change if humanity is to have any real effect on climate change.
Related to this is the unavoidable factor of realpolitik, both in domestic and international
politics.129 Whether it be a domestic or an international regime, issues of power, practicality
and materiality will continually be at the forefront of leaders’ minds, as opposed to ideological,
moral or ethical notions. A repositioning of such attitudes must occur so that the latter factors
are in the forefront of leaders’ thought processes, in order for effective change to occur.
Several participants saw the targets set by the Kyoto Protocol as being too ambitious; a point
encapsulated by the request from the United States’ delegation during negotiations that
anything made of wood above one foot in height be deemed a forest and therefore a carbon
sink.130 Clearly, this initiative failed but it is indicative of the attitude of several countries
toward finding an international climate regime and is just one of many hurdles that a future
regime must look to overcome. However, the general consensus now is that an effective
solution to climate change is going to require far greater emission reduction than the Kyoto
Protocol did during its first commitment period. It is believed that a stabilisation of
atmospheric concentration of GHGs at current levels will only limit the increase in average
global temperature to 3.5˚C by 2100. However, stabilisation of atmospheric concentrations at
current levels will require a 50-70% reduction in global emissions plus further reductions
thereafter. It is clear then that a future climate change regime will have to take drastic action
to effect this change.131 In any event, some scholars have noted “even a 3˚C rise in global
average temperature would devastate the global environment, place human survival in grave
danger, and risk the collapse of the world economy”.132 Consequently, in 2007, the IPCC
outlined that far deeper cuts in global emissions would be required to prevent dangerous
anthropogenic interference with our climate system.133 Therefore the ultimate challenge for
128
Olawuyi, supra note 55 at 27.
Freeland, S., “The Kyoto Protocol: An Agreement Without A Future?” (2001) 24 University of New South Wales
Law Journal 532 at 536.
130
Kahn, supra note 11 at 550.
131
Sheeran, supra note 36 at 706.
132
Bluemel, E.B., Unravelling the Global Warming Regime Complex: Competitive Entropy in the Regulation of the
Public Good (2007) in Halvorssen, A.M., “UNFCCC, The Kyoto Protocol, and the WTO – Brewing Conflicts or Are
They Mutually Supportive?” (2007-2008) 36 Denver Journal of International Law and Policy 369 at 370.
133
Intergovernmental Panel on Climate Change, “Contribution of Working Group III to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change” (2007), Technical Summary, at p 39 and p 90.
129
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any future regime is to ensure industrialised countries achieve far deeper reductions in
emissions than those implemented by the Kyoto Protocol.134
As Klaus Bosselmann noted, “in no other area of social reality does our blindness towards
nature become so crassly obvious as in the present economy. The fixation on economic growth
and its underlying values has accelerated ecological suicide to such an extent that even
immediate ‘zero growth’ and the switch to an economic development along the lines of
ecology could hardly stop the processes of destruction that have already been set in
motion”.135 Any future climate regime needs to place a far greater emphasis on the actual
ecological and environmental threat we are facing, rather than the economic consequences of
doing something about it. The solution must be found far more quickly than it took to develop
the Kyoto Protocol. We no longer have decades of time at our disposal to determine what to
do. As Halvorssen points out, the “solution must be found by crafting equitable bargains,
tailored to the issue of climate change, regarding economic and environmental issues between
industrialised and developing countries”.136 While these economic factors certainly come into
focus in environmental protection regimes, countries need to stop looking at them as sunk
costs. Instead of counting the increased costs borne by its economy, countries should focus
their attention on the long term investment being advantageous, as it is more costly, and
sometimes impossible, to repair rather than prevent environmental damage.137
134
Morgenstern, L., “One, Two or One and a Half Protocols? An Assessment of Suggested Options for the Legal
Form of the Post-2012 Climate Regime” (2009) Carbon and Climate Law Review 235 at 236.
135
Bosselmann, supra note 2 at 63.
136
Halvorssen, supra note 103 at 251.
137
nd
Kiss, A., & Shelton, D., International Environmental Law (2 ed, 2000) at 4.
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SECTION 4
POSSIBLE REPLACEMENT OPTIONS
4.1 Treaty Solutions
In recent years, deliberations concerning a post-2012 (when the Kyoto Protocol’s first
commitment period ended) climate change regime generally revolved around either
negotiating amendments to the Kyoto Protocol (which has come to fruition in light of the
Durban and Doha conferences installing a second commitment period) or to develop an
entirely new protocol under the UNFCCC. The AWG-KP and AWG-LCA, initiated as part of the
Bali Action Plan at COP 13 were given the task of designing a mandate that would develop a
comprehensive outcome.138
The structure of the negotiating process has raised two questions: (1) whether negotiations
should result in two outcomes, one under the Kyoto Protocol, and one under the UNFCCC – or
a single, combined outcome that brings both together; and (2) whether the outcome should be
legally binding in nature.139 In any event, all future regimes share the same common goal or
objective, “to limit greenhouse gas levels in the atmosphere while fostering adaptation to the
impacts of global warming”.140
Aldy and Stavins have described the policy architecture for a future climate change regime as
falling in three principal categories: targets and timetables, harmonised natural policies, and
coordinated and unilateral national policies.141 A targets and timetables approach is essentially
what the Kyoto Protocol envisaged, whereby emission reduction targets for specific countries
are established over a particular timeframe. Harmonised domestic policies focus more on
national policy action rather than goals and involve countries agreeing on similar domestic
policies such as domestic tax on carbon, thereby achieving their own cost-effective emission
controls within domestic borders. The final category, coordinated and unilateral national
138
Bodansky, supra note 92 at 233.
Ibid.
140
Bausch, C., Mehling, M., “Tracking Down the Future Climate Regime – An Assessment of Current Negotiations
Under the UN” (2007) Carbon and Climate Law Review 4 at 6.
141
Aldy, J.E., & Stavins, R.N., Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto
World (2007) at 5.
139
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policies is a bottom up approach whereby domestic policies drive participation and compliance.
Such an example would be the linkage of independent national and regional tradable permits
systems.142
4.1.1 An Amended Kyoto Protocol
One replacement option to the Kyoto Protocol would simply be to replace it with a new one,
albeit with some amendments, such as imposing new legally binding commitments on all
parties irrespective of whether they are industrialised, economies in transition, or developing.
The treaty would therefore place obligations on all countries in the same legal and institutional
framework.143 Morgenstern describes this as a “one and a half protocols approach” and
envisages the adoption of new quantified reduction commitments for existing parties. 144 The
advantage of a new protocol is that it ensures the continuation of a coherent legal framework
and therefore provides a greater degree of legal certainty as well as coherent operational and
administrative structures. 145 While this would provide comparability in commitment and
actions taken, replacing the Kyoto Protocol could cause significant backtracking by countries
from their current commitments as industrialised countries may attempt to take on softer
targets under any new legal regime.146 The current market system of the Kyoto Protocol sets
out targets for emission reductions and offers incentives to industrialised countries thereby
encouraging them to participate in climate change regimes and enabling them to achieve their
targets at the lowest cost possible. However, it must be questioned whether this is the correct
mindset to adopt. Instead of encouraging participation through incentives, the fundamental
mindset needs to change and a future regime should foster one that encourages industrialised
countries to participate of their own accord. The market-based approach enables a worldwide
global attack on climate change with countries being able to participate from anywhere in the
world.
147
Furthermore, market mechanisms could enable technology transfer from
industrialised to developing countries, which could assist the developing countries to solve
social, environmental and economic challenges within their own borders. Furthermore, market
mechanisms allow countries to tackle climate change on two fronts, domestically through their
142
Aldy & Stavins, supra note 141 at 5-6.
Rajamani, supra note 118 at 818.
144
Morgenstern, supra note 134 at 241.
145
Ibid, 240.
146
Ibid.
147
Olawuyi, supra note 55 at 26.
143
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own legislation within their own borders, and also transnationally, via regimes such as the
Kyoto Protocol and within the market provided for by these market mechanisms.148 Market
mechanisms do have flexibility to their advantage, which allows industrialised countries to
pursue emission reduction projects anywhere on earth.149 However, if a market mechanism is
utilised in the next climate change regime, it must be done so in a way that is not as
disorganised, disjointed and ineffective as the one currently implemented under the Kyoto
Protocol regime.150
4.1.2 The Two Protocols Approach
Alternatively, what Morgensten describes as a “Two Protocols Approach” 151 could be adopted
whereby Parties follow two protocols by amending or extending the Kyoto Protocol, while
complementing it with a new one under the UNFCCC. By keeping the Kyoto Protocol, the risk
of backtracking from commitments is reduced and the institutional framework and complex
mechanisms agreed on under the Kyoto Protocol remain in place, eliminating the need for
further, time-consuming and costly discussion. It would see parties to the Kyoto Protocol
continue to have obligations under that document, while non-Kyoto parties could take on
obligations under the new UNFCCC regulated protocol. However, such a two-protocols
approach would impede comparability and could lead to higher costs due to the additional
complexity of having two treaties.152
4.1.3 Global Coordination of Emission Taxation
Another future climate change approach could be a global coordination of emission taxation.
Governments could implement taxes that begin at low levels but rise over time in accordance
with levels and adjustments set by an international agreement. Victor argues that by
controlling the price of emissions, businesses are able to anticipate costs and plan for better
long-term investments.153 However, significant monitoring and enforcement problems could
148
Olawuyi, supra note 55 at 33.
Ibid, 25.
150
Van Asselt, H., & Gupta, J., “Stretching Too Far? Developing Countries and the Role of Flexibility Mechanisms
Beyond Kyoto” (2009) 28 Stanford Environmental Law Journal 311 at 357.
151
Morgenstern, supra note 134 at 240.
152
Ibid, 241.
153
Victor, supra note 77 at 19.
149
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arise with such a taxation system. Any international body set up to assess taxation policies may
be far too intrusive and domineering than governments are likely to tolerate.154 Environmental
taxation has become quite common throughout the European Union, although very unpopular
in the United States. It could operate on a basis whereby poor environmental performers i.e.
those who release a lot of emissions, are faced with a higher tax on those emissions, whereas
those who perform more economically and promote good environmental behaviour receive
the benefit of a lower tax. This would enhance incentive to chase down alternative means of
power production such as solar, hydro and wind.155 However, while this does have theoretical
appeal, it is believed that monitoring and enforcement of such a regime would be extremely
difficult.156 David Victor, in analysing the Kyoto Protocol said, in relation to carbon taxes,
“monitoring and enforcement are extremely difficult … in practice, it would be extremely
difficult to estimate the practical effect of the tax, which is what matters.” 157 Furthermore,
experience has shown that the strongest impediment to the adoption of a carbon tax is the
concern over international competitiveness. Those countries that have already adopted such
taxes have done so at relatively low levels and allowed their most energy-intensive exportoriented industries to be exempt from such a tax.158
4.1.4 The Renewable Energy Protocol
One of the key obstacles to an effective Kyoto Protocol has been the lack of effective
substitutes for GHG-producing technologies. If more renewable energy sources were available
then GHG emissions would be less. Article 5 of the UNFCCC and Article 2(1)(a)(iv) of the Kyoto
Protocol ask parties to implement polices that promote “research on … development and
increased use of, new and renewable forms of energy, of carbon dioxide sequestration
technologies and of advanced and innovative environmentally sound technologies”. 159
Therefore the pursuit of a new climate change regime whose focus is aimed more at research
and development of new technologies rather than actual emission reduction is another
154
Victor, supra note 77 at 19.
Arcas, supra note 9 at 291.
156
Böhringer, supra note 110 at 462.
157
Victor, supra note 77 at 86.
158
Clémençon R., “The Bali Road Map: A First Step on the Difficult Journey to a Post-Kyoto Protocol Agreement”
(2008) 17 The Journal of Environment & Development 70 at 90.
159
United Nations Framework Convention on Climate Change, Articles 2(1)(a)(iv) and 5 in Peloso, C., “Crafting an
International Climate Change Protocol: Applying the Lessons Learned from the Success of the Montreal Protocol
and the Ozone Depletion Problem” (2009-2010) 25 Journal of Land Use and Environmental Law 305 at 327.
155
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possibility (although some form of policy will need to be initiated in the short term to curb
immediate GHG emissions). Therefore, one possibility is a combination of a protocol aimed at
reducing current emissions, and another aimed at research and development, taking a view to
the future, in order to help make the move away from fossil fuels sustainable and
achievable.160 For example, since the Kyoto Protocol was implemented, Carbon Capture and
Sequestration (CCS) technologies have been created, and these should certainly play a role in
future climate change regimes. This technology acts by collecting and concentrating carbon
dioxide gas in the atmosphere, before transporting it and storing it permanently in geological
formations, which could lead to significant reductions in atmospheric carbon dioxide.161
However, there could be difficulties in implementing a defined legal and regulatory framework
for this technology to operate in. When the Kyoto Protocol was first envisaged, CSS technology
was not around and could therefore not be used as a climate change mechanism. However,
given the potential for this new technology, and other technologies that have been developed
since the Kyoto Protocol, it is certainly one that any future regime should take into account.162
4.1.5 The Importance of Non-State Actors
In the fight against global warming, non-state actors have become just as important as
countries in helping curb international environmental issues. However, the current climate
change regime embodied in the Kyoto Protocol relies exclusively on national governments to
implement their reduction targets and pays no heed to these non-state actors. If an agreement
system were added to a future climate change regime that had the power to involve and bind
non-state actors to future commitments, then it would do a world of good (literally) in the fight
against global warming. After all, it is these non-state actors who are the polluters, rather than
the governments themselves. If the governments were to create laws and sign up to
international policies that bound these non-state actors to commit to binding reductions, then
this would go a long way to curbing global warming.163 Furthermore, the involvement of such
actors would prevent national and international policies from failing through corporate
160
Barrett, S., & Stavins, R., “Increasing Participation and Compliance in International Climate Change Agreements”
(2003) 3 International Environmental Agreements: Politics, Law and Economics 349 at 353.
161
Olawuyi, supra note 55 at 30.
162
Ibid, 34.
163
Rinkema, supra note 7 at 731.
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lobbying.164 Among non-state actors, multinational enterprises are among the primary agents
of GHG emissions in the world and are therefore considered some of the primary agents
needed to cooperate in positive change. If British Petroleum were listed as an Annex I country,
its 1998 GHG emission levels would have ranked it as the 17th greatest emitter amongst Annex
I countries. 165 One would hate to consider where the world’s largest energy producer,
ExxonMobil, would be ranked.
4.2 Non-Treaty Solutions
Quite often, binding treaty negotiations can be overshadowed by doubts about compliance
and how effective legal obligations will be. When the subject of negotiations is uncertain, with
distant goals and unforetold economic consequences, these doubts do not help in creating an
atmosphere that is conducive for change. More effective and successful goal setting would
occur in non-binding frameworks whereby the main concern is not on specific reductions or
compliance but on ascertaining the goals that make the most environmental sense, which
must be achieved in order to prevent climate change.166
4.2.1 Soft Law Documents
When observing traditions in history, it is clear that the ordinary people, not those in power,
have created massive, positive change. Governments and leaders only exercise power,
whereas the real power lies with the people they govern. The public need to decide whether
their loyalties lie with governments or with human values, people and communities. Two of
the most important documents in human history are the United Nations Charter and the
Universal Declaration of Human Rights; both are soft law documents. Each document arose
from the public wanting to be a part of a particular type of community. Civil disobedience is
synonymous in our history with achieving great things. The women’s vote, abolishment of
apartheid, abolishment of segregation and the Civil Rights Movement – all were a product of
civil disobedience, of the public having had enough. Whenever a great generation stands up, it
164
Rinkema, supra note 7 at 731.
Ibid, 744.
166
Peloso, C., “Crafting an International Climate Change Protocol: Applying the Lessons Learned from the Success
of the Montreal Protocol and the Ozone Depletion Problem” (2009-2010) 25 Journal of Land Use and
Environmental Law 305 at 328.
165
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has stood on idealism and moral courage. This is what movements like Occupy have done and
are continuing to do, and what we need to continue. Events such as Occupy Wall Street and
The Arab Spring are slowly changing the way people think and bringing greater attention to
these issues but it needs more to make a difference.
Despite being a soft law document, there is arguably no other document that has been more
influential on thinking than the Universal Declaration of Human Rights. This idea of soft law is
described by some as being declarations of strong policy ideas and is merely one mechanism of
how the international community could reach a consensus more easily if in practical terms,
heads-of-states and governments are not expected to stand up and ratify, but simply advance
a general consensus.
The fundamental thinking regarding protection of the environment, and what ‘environment’
means, needs to change. As a reference point, take notice of family law and its paramount
protection of the child. Under family law, the child is sacred and its protection should be nonnegotiable. Something similar to this is needed in environmental law. A law is needed that
dictates that the protection of the environment is non-negotiable. By no means does this mean
that humans are unable to interfere with the environment, but it does impose limits before
damaging the natural environment.
Another possible form of soft law document could be implemented as a tool to take power
away from the fossil fuel industry through divestment. The global public could appeal to
institutions such as colleges and other organisations to sell their stock in fossil fuel companies.
In the Fight Against Apartheid, 155 colleges and universities were convinced by their student
body to give up their divestment in pro-Apartheid companies. The University of Berkley alone
forced the sale of $300 billion of stock in such companies. Unity College in Maine has already
divested all stock in fossil fuels, a $13 million endowment, of which none is now in the hands of
fossil fuel companies. The Mayor of Seattle has agreed that this would be an excellent means
of getting money out of fossil fuel companies. There are now over 250 movements on
campuses around the United States that are challenging the social respectability of fossil fuel
companies. It certainly would seem ironic for universities to invest in fossil fuel companies
when their investment could bring about the destruction of civilisation, destroying the lives
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and futures of those people they are educating. Universities and other institutions should take
their money augmented in endowments away from the fossil fuel problem makers and redivert it to problem solvers. McKibben argues that once a person realises what evil is, they
have a moral responsibility to do something about it, and in this case, that is to withdraw their
funding. Divestment work could have the ambition of transforming thousands of institutions in
the United States to be allies rather than adversaries.
Obviously, the long-term solution to climate change is clear: humanity needs to make the
move to renewable energy and do it quickly. The divestments in fossil fuel companies should
be redirected toward renewable energy equivalents. While it would be one of the hardest
tasks humanity has faced, it is by no means impossible. Following World War II, the world’s
economy was devastated; however, it did not take decades or years to restructure the
industrial economy but mere months. Over the next decade, it should be possible to
restructure the world’s global economy once again.167 Humanity is faced with a situation
where there can be either have an ecologically sustainable economy for everybody or no
economy for anybody.
Concerns over compliance with such a soft law document could be alleviated by increased
scientific evidence and media publicity, raising public awareness of the problem and the
subsequent need to address it.168 “Soft law rules have the necessary flexibility to enable the
international community to progress in the new domain, especially to approach problems for
which international cooperation is a new concept, such as the conservation of biological
diversity or the control of movements of hazardous substances”.169 By generating any future
climate change regime as a soft law document, there is greater potential for seeking increased
recognition in the United Nations, such as in a General Assembly Resolution.
4.2.2 The “Bottom-Up” Approach
Another alternative to the Kyoto Protocol would be the implementation of environmentally
friendly policies at regional and local levels. In many countries climate change is viewed more
167
McKibben, B., “Do the Math Tour” (2012) Video Documentary.
Kiss & Shelton, supra note 137 at 52.
169
Ibid, 52.
168
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as a domestic problem than an international one. Because climate change involves nearly
every area of domestic policy – industrial, agricultural, energy, transportation and land-use – it
raises significant domestic sensitivities and, therefore, while building domestic policies to
address the problem would be extensively complicated, the alternative of building an
international policy regime that tries to cater to each country’s own domestic sensitivities is
incomparable.170 This new legal approach would gain momentum through unilateral efforts
within countries themselves. It would allow countries to develop their own responses to
climate change that is specific to their own jurisdiction, without having to cooperate within a
prohibitively broad, global model seeking to align the views of nearly 200 different countries.
The approach would allow countries to utilise their own success on a domestic front to
generate momentum for multilateral arrangements that could become the catalyst for an
eventual replacement international regime.171 “Supranational, national and sub-national actors
such as the European Union, the United Kingdom and California have, for some time, been
developing regulations to respond to the problem of climate change which extends beyond the
scope of the international climate change regime”.172 In doing so, these jurisdictions have
initiated action that encompasses a larger geographic scope at a higher level of government.
California has already initiated significant support for such action.173 In April 2013, the city of
Santa Monica adopted a Bill of Rights for Sustainability, which fundamentally protects the
rights of ecological systems as the benchmark against which any form of development can
occur. It minimises corporate rights and introduces a new bylaw providing for the quantified,
non-negotiable rights of nature. It goes on to describe ways in which communities can design
parameters under which development can occur. While there are different methodologies on
this the underlying idea is essentially the same in the promotion of a strong sustainability
approach by setting the integrity of ecological systems as the benchmark against which any
development can occur.174
170
Bodansky, D., “A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime” (2011) 43
Arizona State Law Journal 697 at 710.
171
Blustein, supra note 25 at 306.
172
Ibid, 314.
173
Ibid.
174
Biggs, S., “Legalising Sustainability? Santa Monica Recognises Rights of Nature” (11 April 2013) Global Exchange
<http://www.globalexchange.org/blogs/peopletopeople/2013/04/11/legalizing-sustainability-santa-monicarecognizes-rights-of-nature/>.
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National governments experience greater capability to manage and catalyse responses to
climate change because each “owns and manages a significant number of assets; its programs
affect the ability of others to adapt; it is an important provider of technical, fiscal, and other
support; and it plays a crucial role in dealing with impacts that cross geographic and
jurisdictional boundaries”.175 If national governments are able to realise their capability in
using their sovereign powers to develop and implement appropriate domestic legal
approaches to mitigate climate change, this could provide the catalyst that leads to bilateral
and multilateral programs that extend beyond these national arrangements. However, for this
to occur, individual countries must take ownership of their responsibility to do something
about climate change, and until this happens, any international legal response, while attractive
theoretically, will fail in practice. 176 Key to future implementation will be the ability to
internationally integrate with other regimes. If national policies are designed with legal
frameworks that have the flexibility to integrate and co-exist with foreign legal arrangements,
it allows these national regimes to support multilateral and future international approaches to
climate change mitigation regimes.177
As Bodansky termed it, this “bottom-up” approach would allow countries to tackle
environmental policy in their own way.178 “International pledges grow out of, and reflect,
domestic policies, rather than being superimposed on them”.179 If this is correct, then surely
the role of an international regime should not be defining what each country must do, but
helping to generate domestic political will by raising the profile of the issue amongst the
general public, who can then force governments to initiate action at local, regional, domestic
levels. 180 A global climate change authority could provide support and advice on how
governments could implement domestic policies and then provide for reporting mechanisms
to ensure countries are playing their part.
Europe is at the forefront of developing alternative strategies for dealing with climate change.
For over a decade now, Europe has been successful in introducing proposals that establish
175
Smith, J.B., “Adapting to Climate Change: A Call for Federal Leadership” (2010) Pew Centre on Global Climate
Change in Bluestein, supra note 27 at 315.
176
Blustein, supra note 25 at 316.
177
Ibid, 319.
178
Bodansky, supra note 170 at 710.
179
Ibid.
180
Ibid.
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national legal regimes that are aimed at reducing emission levels from a domestic perspective,
while still contributing to an overall international regime i.e. the Kyoto Protocol. 181 For
example, the European Union has set unconditional 20% reduction, and 30% conditional
reduction, midterm targets for itself by 2020.182 In addition to this, emission reduction and
renewable energy trading initiatives are being introduced on a regional basis, which could also
signal the way of the future.183 In the last decade or so, essentially since the Kyoto Protocol
negotiations, there has been a marked increase in domestic jurisdictions enforcing some form
of emission reduction scheme as part of their policy. All this is aimed at pursuing
environmentally friendly objectives.184 In its first commitment period of the Kyoto Protocol,
the European Union opted to meet its commitments jointly and therefore each Member State
of the Union was differentiated under a European “bubble” which took domestic conditions of
each Member State into consideration. This internal distribution of their reduction
commitments helped the European Union accommodate differing commitment levels from its
Member States but still allowed it to present a common position at international
negotiations.185
4.2.3 A Global Climate Change Authority
Another alternative for a new climate change regime, that has serious potential, is to drop the
decentralised approach of the Kyoto Protocol and its predecessors and instead look to the
creation of a global climate change authority that acts as trustee of the environment.
Theoretically, the fundamental basis that underlies a need for a global climate change
authority in response to global warming is premised on Garrett Hardin’s influential writing,
‘The Tragedy of the Commons’. The central theme of this piece is that what he refers to as the
commons, or open access resources, are being overexploited and therefore destroyed. 186 In
Hardin’s scenario, the Earth’s environment is the global common that, without intervention
limiting access to it, remains unprotected. The tragedy occurs because without government
181
Freeland, supra note 129 at 534.
Van Asselt & Gupta, supra note 150 at 360.
183
Freeland, supra note 129 at 541.
184
Jeffrey, M., “Where Do We Go From Here? Emissions Trading Under the Kyoto Protocol” (2001) 24 University
of New South Wales Law Journal 571 at 571.
185
Mehling, M., & Massai, L., “The European Union and Climate Change: Leading the Way Towards A Post-2012
Regime?” (2007) Carbon & Climate Law Review 45 at 51.
186
Blustein, supra note 25 at 307.
182
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intervention no emitter of GHG has an incentive to reduce its emissions because this would
only serve to reduce their own benefits. As a result, this leads to the depletion and degradation
of the atmospheric commons as the accumulation of GHG in the atmosphere causes global
warming and severe climatic changes.187 This is where the global climate change authority
would intervene and act as trustee for the environment, protecting it for the use of future
generations.
The notion of a global climate change authority acting as an environmental trustee of
ecological systems has been around for a while and is premised on the basis that such an
authority would protect the environment for the benefit of present and future generations.188
These trusteeship models have become quite prevalent within the United Nations system.
They are directly accountable to their members and are dependent both on membership rules
and money. The United Nations system has a number of groups working with a trusteeship
mandate where they are able to act on behalf of those who are unable to act for themselves.
For example, it is quite common in ex-colonies, especially in Africa. Essentially it is a way of
trying to act on behalf of the people. One particular example is the World Health Organisation
acting on behalf of humanity because the eradication of global disease is assumed to be a
positive for everybody, and countries were in agreement with this. Why could the same not be
said for a climate change authority that acts as trustee on behalf of humanity because the
protection of our natural environment is assumed to be a positive for everybody? There are
probably no organisations on the planet that are as powerful as the World Trade Organisation,
the World Bank, and the International Monetary Fund. All three of these organisations are
examples of trusteeships and act on behalf of an entity that is incapable of acting for itself.
From these examples it is clear that there has always been a certain amount of support, even
from countries, for these types of organisations and therefore to suggest the development of a
world climate authority in a similar vein is certainly a measured and viable option.
There are inherent references to this type of trusteeship idea throughout international
environmental law documents. In his book, Facing Mount Kenya, Jomo Kenyatta notes that: “A
man is the owner of his land … But insofar as there are other people of his own flesh and blood
187
Ibid, 308.
Taylor, P., “The Global Perspective: Convergence of International and Municipal Law” (2013) 1 Environmental
Law for A Sustainable Society 143 at 163.
188
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who depend on that land for their daily bread, he is not the owner, but the partner, or at the
most a trustee for the others. Since the land is held in trust for the unborn as well as for the
living, and since it represents his partnership in the common life of generations, he will not
lightly take it upon himself to dispose of it”.189 Furthermore, Principle 2 of the Stockholm
Declaration also displays a concern for future generations, stating that, “The natural resources
of the earth, including the air, water, and flora and fauna and especially representative
samples of natural ecosystems, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate”.190 Finally, Article 4 of
the United Nations Educational, Scientific and Cultural Organisation World Heritage
Convention and Principle 3 of the Rio Declaration also take the time to mention these future
generations.191
There are two main objections to this form of international governance by a global climate
change authority. Firstly, they could be viewed as undemocratic in that power is taken away
from elected governments and shifted to unaccountable institutions whose decision makers
are protected from open public scrutiny. Secondly, their ability to enforce the necessary power
required to take effective action for the common good in imposing their collective will on
individual countries.192 However, in any event, such an authority will still be able to overcome
the issue of addressing a need for more effective international cooperation in tackling global
climate change within a legitimate and publicly accountable institution.193
4.2.4 The Role of the Non-Governmental Organisation
Another approach would be to allow environmental non-governmental organisations to play a
bigger role in moulding environmental public opinion. Several non-governmental organisations
have unrivalled access to the media and propaganda sources and can therefore become very
influential. This has become apparent in recent times, with an increasing number of
multinationals committing to GHG emission reduction through recognition of the commercial
benefits associated with market mechanisms, such as those implemented by the Kyoto
189
Kiss & Shelton, supra note 137 at 15.
Ibid.
191
Ibid.
192
Ibid, 37.
193
Ibid.
190
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Protocol.194 Non-governmental organisations could play their part by influencing public opinion
to put pressure on decision-makers and leaders to support environmentally friendly policies.195
One way of influencing opinion in this way could be to shift focus from preventing global
warming, which is such a huge task it could promote feelings of helplessness, to one where the
actual personal effects of global warming are emphasised. For example, instead of portraying
global warming as causing a warmer climate, focus could instead be switched to the effects of
this warmer climate, such as no snow for skiing, or no Pacific Islands in which to holiday. Public
participation in environmental and development projects has been increasingly recognised as
enhancing the success of such projects. Such public involvement can rarely occur at an
international level and therefore if domestic public perception is increased it can lead to more
awareness at an international level.196 One example of this is the Occupy movement that
spread around the world. This movement showed how the power of multiple domestic actions
could have a profound global effect. Part of this increase in public awareness would simply
mean greater education. Scepticism towards the reality of climate change through inadequate
knowledge continues to dampen public response and makes some politicians less willing to
expend the capital required to address the issue. The promotion of public awareness can
increase compliance and motivate change.197
194
Freeland, supra note 129 at 541.
Arcas, supra note 9 at 292.
196
Lin, J., “Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work” (2005) 9
Singapore Year Book of International Law 280 at 282.
197
Peloso, supra note 166 at 327.
195
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CONCLUSION
There is considerable debate and divergence of opinion as to what regime should replace the
Kyoto Protocol. However, what has become evident is that unwilling participants can no longer
rely on the age-old excuse that there is not enough evidence of global warming to warrant
action. In his opposition to the United States ratifying Kyoto Protocol, George Bush made
reference to “the incomplete state of scientific knowledge of the causes of, and solutions to,
global climate change”.198 It is this type of attitude that has been at the root of our slow
response and lack of willingness to acknowledge climate change as a cause for concern;
however, the evidence is on the table now and therefore this can no longer be the case.
The impact actions today have for society in the long term should be recognised. If we were to
fast-forward 200 years, those who want to promote economic growth today may be seen as
evil and placed in the infamous annals of our history. How is it possible to be so sure that
policies and actions today are morally sound and can be justified against the thoughts of future
generations? How can present thinking be revised to comprehend thinking as future
generations may do? Because of the dilemma the planet is now facing, these are questions
that must be answered.
Addressing climate change will effectively require a second industrial revolution and the
sooner planning for the future starts, the greater the chances of success. In order for a
comprehensive regime to be adopted in time, the international community must unify in one
direction and overcome cultural and economic differences as well as their vulnerability to
climate change. To overcome these obstacles, thereby stimulating further development, a
clear timeline and a shared vision is needed.199 The problem with climate change is that it
seems too big to take on alone, and only when working with as many other people and
countries as possible can a difference truly be made.
In working toward the future, humanity needs to learn from the past, what worked and what
did not. Clearly the Kyoto Protocol has been ineffective during its first commitment period in
institutionalising any change. There is serious doubt that the second commitment period will
198
199
Financial Times, Friday May 18 2001 at 8 in Arcas, supra note 10, at 289.
Bausch & Mehling, supra note 140 at 15.
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be any different. The replacement regime that offers the most potential is to utilise a
combination of non-treaty regimes. As Aldy said, “because no single approach guarantees a
sure path to ultimate success, the best strategy may be to pursue a variety of approaches
simultaneously”. 200 It should begin with non-governmental organisations influencing the
general public to stimulate change from their local and regional councils, which will then feed
up into national governments. This domestic action approach to climate change mitigation
provides autonomy and flexibility, allowing countries to develop legal responses to climate
change that reflect the particularities of their own jurisdictions. In doing so, the domestic
regimes can provide the momentum for an international response that can encompass a
broader jurisdictional scope.201 As this movement gathers momentum, steps should be put in
place to implement a global climate change authority based on a trusteeship model to protect
the environment for the benefit of mankind.
As Bill McKibbon, founder of the environmental organisation 350.org said, “we are in the last
minute of the last quarter of the biggest game humanity has ever faced”.202
200
Aldy & Stavins, supra note 141 at xii.
Blustein, supra note 25 at 321.
202
McKibben, supra note 167.
201
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