Download Equity, Entitlements and Property Rights under the Kyoto Protocol

Volume 8 Issue 3 1999
Rights under the Kyoto Protocol
Equity, Entitlements and
Property Rights under
the Kyoto Protocol:
the Shape of ‘Things’ to Come
Farhana Yamin
What constitutes a fair response to climate change is the main question underlying many of the unresolved issues in the climate change
debate. It is behind the questions of the level of commitments by
industrialized countries, the type of participation to be undertaken
by developing countries, the structure of the various trading mechanisms, and the nature and magnitude of financial obligations.
What has been missing from the debate, however, are consensus
principles that define equity in the context of this issue.
Eileen Claussen, US Under-Secretary for Energy and Lisa McNeilly, ‘Equity and Global Climate Change: The Complex Elements
of Global Fairness’, Pew Center on Global Climate Change,
October 1998.
Introduction
Equity and fairness are a major motivating force in international decision-making.1 It is now widely recognized
that fairness considerations are central to the evolution
of the 1992 Framework Convention on Climate Change
(FCCC) and the fate of its 1997 Kyoto Protocol. This is
because the question of who will take on commitments,
and when and how these might be implemented, raises
significant distributive and procedural fairness issues
between countries involved in the climate change negotiations. This article provides a timely opportunity to take
stock of the fairness debate in the climate change
regime. It focuses on the distribution-related implications of the targets adopted at Kyoto. Because these
provisions are integrally linked to the Kyoto ‘mechanisms’ this article also examines equity-related concerns relating to Protocol’s provisions concerning emissions trading, joint implementation and the Clean
Development Mechanism. It is anticipated that these
mechanisms will allow Parties, and private entities, to
buy and sell allowances to achieve their Kyoto targets.
Part I examines the meaning of equity and its role in
international negotiations. Part II discusses the equitable
basis for the targets and emissions patterns sanctioned
by the Protocol relevant to establishing ‘entitlements’.
Part III of the article is an inquiry into the legal nature
of the ‘things’ created by the Protocol: assigned
amounts, parts of assigned amounts, emission reduction
units and certified emission reductions. The article uses
the term ‘things’ to avoid use of more loaded concepts
such as ‘property’, ‘commodities’ etc. The article examines who might hold rights to these things and what kind
of rights might be held. It sets out conclusions that could
inform future negotiations concerning the Kyoto mechanisms’ new commitments for developing countries.
Part I: Equity
This section examines the legal concept of equity. There
is no universally agreed meaning of equity in international law. One legal scholar has characterized equity
as ‘considerations of fairness, reasonableness, and policy often necessary for the sensible application of the
more settled rules of law’ which can comprise factual
considerations and legal principles.2
The legal notion of equity is created and applicable in
the context of the international legal order, which consists of principles and rules that are legally binding on
states and other members of the international community in their interactions with each other. States have
the sovereign right to exploit their own natural
resources pursuant to their own environmental and
developmental policies, subject to the proviso that they
bear the responsibility of ensuring that activities within
their jurisdiction do not cause damage to the environment of other states or of areas beyond the limits of
national jurisdiction.3 This means that the question of
how a state allocates responsibility for mitigating or
adapting to climate change (i.e. how it allocates the
costs and benefits of climate change) among various
regions, economic sectors, social groups or individuals
within its territory, is primarily a domestic matter. The
following discussion focuses on the role of equity in
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relation to the allocation of responsibilities as between
states and, in particular, over disputes concerning
access and use of natural resources.
In its judgment on the 1982 Continental Shelf case
(Tunisia/Libya), the International Court of Justice (ICJ),
the principal judicial organ of the United Nations (UN),
explained the nature of equity as follows:
Equity as a legal concept is a direct emanation of the idea of
justice. The Court whose task is by definition to administer justice is bound to apply it.4
The Court went on to state that the application of equity
in an international legal context differed from developments in some national legal systems where equity was
contrasted with the rigid rules of law which had to be
mitigated in order to do justice.5 The Court explained
that ‘in general, this contrast has no parallel in the development of international law’ and that ‘the legal concept
of equity is a general principle directly applicable as
law’.6 As a general principle of law, equity can therefore
be a source of law, rather than merely consisting of considerations necessary for the sensible application of
the law.7
The ICJ recognized in its 1982 Judgment that equity was
relevant when the Court was called upon to apply international law and found that it could choose among several possible interpretations of the law.8 In such cases,
the Court was bound to choose the interpretation ‘which
appears, in the light of the circumstances of the case to
be closest to the requirements of justice’.9 However,
even where equity was called upon to fulfil this function,
the Court explained that equitable considerations had to
lie within the law, and not be seen as something distinct
and opposed to law. In its 1969 Continental Shelf cases
(Germany/Denmark/Netherlands) Judgment, for example, the ICJ stated:
Whatever the legal reasoning of a court of justice, its decisions
must by definition be just, and therefore in that sense equitable.
Nevertheless, when mention is made of a court dispensing justice
or declaring the law what is meant is that the decision finds its
objective justification in considerations lying not outside but
within the rules.10
The specific references to considerations as being part
of the general principles of law and of equitable considerations lying within the rules are intended to distinguish the legal application of equity from a decision
ex aequo et bono.11 A decision ex aequo et bono amounts
to ‘an avowed creation of new legal relations between
the parties’.12 The ICJ is empowered by its statute to
decide a case ex aequo et bono. As this would involve
the Court in non-judicial functions such as conciliation,
compromise and legislation, it may only exercise this
power if clearly requested by Parties to a dispute.
From the above, it is clear that in the absence of a specific request from State Parties to a dispute, equity must
be applied as part of the general principles of law within
the overall framework of the existing law governing a
particular area of dispute. In applying equity, the Court
cannot invent new principles or rules of law nor take
into account equitable factors or considerations, which
lie outside the law. As the Court put it in its 1969 Judgment:
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it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires
the application of equitable principles, in accordance with the
ideas that have always underlain the development of the legal
regime.13
From the above, a number of conclusions can be drawn
from the Court’s exposition of the legal nature of equity
and its functions:
앫 Equity is part of the general principles of law; it is
therefore itself a source of law to which the ICJ can
turn when called upon to apply international law;14
앫 Unless Parties to a dispute clearly request it to exercise its power to decide a case ex aequo et bono, the
Court cannot use equity to make new laws where no
general principles of law (expressed in treaties or the
actual practice of states) exist;
앫 Where several interpretations of the law are possible,
equity requires that all relevant factors or circumstances should be taken into consideration. The relevant circumstances must be legally relevant in deciding a particular case rather than, for example, political
circumstances which may or may not be legally relevant; whether a factor is legally relevant will depend
on the particular characteristic of each dispute including the state practice involved;15 and
앫 Finally, as equity functions within the context of particular legal regimes, the equitable principles and factors which are relevant for achieving an equitable
result in a particular case cannot necessarily be generalized, but depend on the legal and factual circumstances of each case.
The conclusion that in any particular case, equity consists of the application of equitable principles to achieve
an equitable result taking into consideration all the relevant considerations may seem tautological and rather
unhelpful.16 It does, however, signal an important point
that may otherwise be overlooked: the application of
equity relevant to one context cannot necessarily be
transposed and applied to the climate change context
to determine disputes about the equitable allocation of
states’ rights and responsibilities to protect the climate system.17
Emerging international legal and political science
approaches to studying the role of equity in international negotiations also stress the context-specific
meaning that should be given to equity. Thomas Franck’s
work suggests that equity and fairness should be defined
primarily by the degree to which the expectations of the
participants of the process about fairness are satisfied
both in terms of final distributive outcomes and the process by which they can be agreed.18 Social science
research suggests that notions of shared equity and fairness, however inchoate, can forge solidarity amongst the
disparate state and non-state actors who constitute the
international community.19 Climate policy-makers are
anxious to be seen to be achieving equitable results, supporting the view that equity plays a significant role in
defining the range of outcomes considered acceptable in
the international negotiating process.
Equity debates between the members of the international climate policy-making community can thus
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rightly be seen as instrumental (designed to achieve
explicit goals). But at the same time, these equity
debates can be also be seen as expressive
(communicating shared values, collective representation
of problems and building trust and confidence). Discussions about fairness are a form of institutionalized
political dialogue essential for oiling the wheels of
negotiations. They are not a fanciful diversion getting in
the way of the ‘real’ negotiations.
By extending and deepening the horizontal bonds
between members of the climate policy-making community, equity debates contribute to the development
of international law. By giving concrete guidance on the
meaning and application of the general, but constitutional, principles defined in Article 3 of the Convention, for example, negotiations about equity will help
define principles such as sustainable development, common but differentiated responsibilities and the precautionary principle.20 Although part of international
law, these principles are widely acknowledged to be difficult to interpret and apply. They can only become more
concrete and specific through further international discourse about their meaning. The climate regime is still
at an early stage in the discourse of fairness. Its ability
to have this discourse bodes well for future co-operation
because shared values provide a more congenial, and
hence more effective, negotiating environment than one
based on power alone.
Part II: Entitlements
One of the most fundamental equity issues facing the
climate regime is what future emissions levels countries
should aim to achieve. Scientists state that cuts of up to
80% from current levels are required, but are unwillingly
to prescribe individual country targets and time-frames
as there are many different pathways to the Convention’s ultimate objective. The key question for the climate regime is whether countries will define their own
targets and do so without reference to objective criteria
such as economic and human needs and ability to pay.
Rights under the Kyoto Protocol
calculate ‘objectively’ the historical contribution of
Annex I and non-Annex I Parties. Arguing that the critical
factor to be looked at was the contribution to radiative
forcing by groups of countries, Brazil calculated that the
contribution of non-Annex I countries would not equal
that of industrialized countries until approximately the
year 2150. The clear implication was that on a strict
equality basis, developing countries were entitled to
emit another 160 years of emissions before becoming
equal climate culprits. The Brazilian figures were a
response to ‘objective’ figures used by the USA suggesting that emissions from Annex I will equal those from
Non-Annex I Parties by years 2015–2020, and thus justified its case that developing countries should begin to
shoulder some of the burden of climate mitigation. The
US figures calculated emissions from 1950, rather than
from the industrial revolution, and did not look at the
cumulative effect of emissions on radiative forcing.
These proposals illustrate the difficulty of an ‘objective’
approach to determining issues of fairness. What is
clear, however, is that if developing countries come to
accept the case for legally binding targets they will not
do so on the basis of grandfathering, but on the basis of
negotiations regarding their future needs and resources
in the light of their past, low emissions. A widespread
fear, shared by the Claussen Report, is that left to their
own devices, developing countries will adopt targets
incorporating large amounts of ‘tropical hot air’, based
on exaggerated estimates of future needs, that will gut
the environmental integrity of the climate change
regime.22 The Report recommends that Kyoto-style
negotiations, with little transparency and objectivity of
end results, should not be replicated in future negotiations, and that new commitments for developing countries should be based on objective criteria.
The Kyoto Protocol established targets for developed
countries but left the thorny issue of developing country
targets for future negotiations. Most commentators
agree with the Claussen Report that the Kyoto ‘targets
were arrived at through negotiations, rather than a process of defining and applying specific, transparent, criteria’.21 By requiring only modest cuts from current
emission levels (and in some cases, allowing increases),
the Kyoto targets appear to sanction grandfathering as
a formula for allocation of emission entitlements. This
gives developed countries considerable advantages
because it sanctions their high levels of current emissions. It works to the disadvantage of developing countries because of their historically very low levels of per
capita emissions.
Although based on sound environmental considerations,
the double standards for procedural equity are obvious.
Rich countries negotiated their Kyoto commitments with
scant regard to transparency of process and the need
for ex ante (or ex post) justifications, but there is a move
to demand justifications of targets to be adopted by
other countries. This article argues that there is indeed
a compelling need to clarify the basis of all the targets,
including the current ‘entitlements’ established by the
Protocol for developed countries. More than one year
on from Kyoto, most of the climate policy-making community remains in the dark about how Annex B of the
Protocol, listing individual country targets, was negotiated. It is clear the Kyoto targets are not equitably random. It has been suggested, for example, that there is a
certain equitable logic to Annex B targets. Like considerations (high reliance on renewables/gas for example)
appear to have been given similar treatment, and like
groups of countries (the USA, the EU and Japan as
matched economic powers) have been treated similarly.
There is a need to understand what happened at Kyoto
and what factors made a difference to the target outcomes.
Two Parties’ proposals during the Kyoto Protocol negotiations illustrate well the differences of approach to equity and entitlements. Prior to Kyoto, Brazil attempted to
The fairness dialogue, and in turn the climate regime,
would be strengthened by attempts to explicate the
basis of current emissions levels, including the pattern
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of emissions sanctioned by Kyoto. The discussions of
the equity issue should, however, be carefully framed,
and the institutional forum carefully chosen, to allow
Parties to articulate and acknowledge their perceived
inequities about the emerging global environmental
order (now as strongly held by the USA as India) whilst
avoiding the possibility of impasse. A carefully structured international dialogue on the basis of emission
entitlements, so far demanded by developing countries
and rejected or treated nervously by developed countries, could prove constructive in clarifying how future
commitments will be handled by the FCCC Conference
of Parties (COP). These commitments will focus on
developing countries in the short term. But by 2005 the
negotiations will turn once again to developed countries
as the Protocol requires Parties to examine commitments for the second commitment period (2013–2017).
Part III: the Shape of ‘Things’
to Come
The Kyoto Protocol mandates developed countries Parties to reduce emission levels domestically or else to
acquire equivalent emissions reductions from others to
ensure that their assigned amounts do not exceed those
specified by the Protocol. Acquisitions can be undertaken via the three ‘mechanisms’ established by the Protocol, each of which will produce a transferable ‘thing’
that can be counted towards compliance.
앫 Joint implementation (JI) under Article 6 of the Protocol will allow Annex I Parties to transfer ‘emission
reduction units’ (ERUs) generated from specific projects.
앫 Emissions trading under Article 17 will allow Parties
listed in Annex B to transfer ‘parts of assigned
amounts’ (PAAs) to each other.
앫 The Clean Development Mechanism (CDM) under Article 12 will allow certified emission reductions (CERs)
generated by sustainable development projects in
developing countries to be used by Annex I Parties.
Details of how each of the mechanisms will work are
sketched out in the Protocol only in broad-brush terms.
The authority for determing how JI and the CDM might
work rests with the FCCC COP serving as the meeting of
the Parties (COP/MOP), and for emissions trading with
the COP. To expedite matters, Parties have agreed that
the COP will work out these details for all three mechanisms simultaneously and make recommendations for
adoption by the first COP/MOP upon entry into force of
the Protocol.23
Key Issues
One of the key tasks before the COP is to work out the
legal nature of PAAs, CERs and ERUs; in particular, who
is capable of having rights in relation to them and what
they are entitled to do. Answers to these issues are
further complicated by the fact that many Parties want
private entities to participate in the mechanisms. Some
of the key issues that need to be discussed are:
앫 Should assigned amounts, PAAs, CERs and ERUs be
considered a form of property belonging to developed
countries and if so, what kind of property?
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앫 Should PAAs, CERs and ERUs be considered fully
interchangeable, i.e. fungible?
앫 What degree of regulatory oversight should the COP
have over transfer transactions? In what circumstances should the COP intervene in the market for
PAAs, CERs and ERUs?
앫 What kinds of non-compliance might occur as a result
of transfer transactions and how should these be
addressed? Should the COP require Parties to maintain compliance reserves and should it be able to
impose trade sanctions?
앫 Should international trade in PAAs, CERs and ERUs be
subject to international or regional trade law regimes
such as the European Community and the rules of the
World Trade Organization (WTO)?
The following section examines some of these issues in
more detail.
Fungibility
A preliminary issue is whether PAAs, CERs and ERUs are
the same thing and fully interchangeable, i.e. fungible.
Fungible goods are mutually interchangeable; they can
be replaced by equal quantities and qualities. Typical
fungible goods are coins. If they are antique or commemorative, even coins can become non-fungible, as if the
individual identity of the coin matters. It is clear that not
all goods are capable of being fungible (e.g. plots of land
are unique). As the coins example suggests, goods that
are normally fungible can also be treated as individual
depending on the circumstances.
Most economists have tended to assume that PAAs,
ERUs and CERs are fungible. Assuming the fungibility of
PAAs, CERs and ERUs tends to emphasize the need to
harmonize the Kyoto mechanisms and to downplay the
distinctive ‘equity’ considerations relevant to their operation. An underlying assumption is that a single, global
market driven by the private sector should emerge. Ironing out the ‘equity inconsistencies’ in the mechanisms
deliberately put in by the Parties therefore favours
efficiency-based imperatives and uniformity of
approaches and procedures.
Denying fungibility is more likely to give Parties greater
choice over how they strike the balance between
efficiency and equity in relation to the three mechanisms
established by the Kyoto Protocol. This is because Parties are likely to find it easier to design bespoke equity
solutions at the level of each mechanism than they are
to design equity solutions that ‘cut across’ all the mechanisms. The three Kyoto mechanisms emerged as three
distinct mechanisms for many reasons that cannot be
elaborated here. These reasons still exist. Because of
these considerations, keeping the PAAs, ERUs and CERs
that result from them distinct makes negotiating sense.
The adaptation ‘fee’ to be collected from the proceeds
of CDM projects is a good example of an ‘inconsistency’
relevant to equity outcomes. Variously called a tax or
surcharge, the adaptation element would take some of
the efficiency gains that would otherwise accrue entirely
to Annex I Parties (and their nationals) and distribute
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them to countries vulnerable to climate change impacts.
Most Annex I Parties have made clear that they only
accepted this tax in the context of the bargains struck
in Kyoto. Post-Kyoto, their public submissions, and virtually all the economics-based literature, suggest ‘gutting’ the substance of this provision ‘to level the playing
field’ between the mechanisms. It is argued that CDM
projects will be ‘disadvantaged’ because the tax will
make them more expensive than equivalent projects
undertaken under the JI provisions or PAAs acquired
under trading.
This obfuscates the equity issue: the adaptation provision reduces the efficiency gains which Annex I Parties
could expect to reap from an equity-unfettered CDM and
distributes them to vulnerable developing countries.
Post-Kyoto, developing countries have tried to apply the
adaptation fee to all the mechanisms. This approach
would still ‘level the playing field’. But it would also force
Annex I Parties to distribute part of the efficiency gains
accruing from all extra-territorial achievement of targets,
not just the CDM. The logic of both sets of Parties
towards ‘harmonization’ shifts attention to ‘global, onehat-fits-all’ type policy solutions. These have proved
impossible to agree in the past and resulted in stalemate.
Climate change participants should aim to balance equity and efficiency concerns and avoid approaches that
tend to prioritize only one of them.
Property Rights
The law recognizes many things, but not all, are deemed
‘property’. Legal, political, moral, social and cultural traditions differ greatly, making it difficult to offer a concept
of property accessible, and acceptable, to all. In Western
legal tradition, ‘property rights’ are usually synonymous
with ‘rights of ownership’. Economists tend to define
property rights very narrowly. The economic litmus test
for property is whether someone has a sole claim to the
‘benefit stream’ (or income) such that its enjoyment is
enforced by the state, which will agree to protect it
through the assignment of duties to others who may
covet or somehow interfere with the benefit stream.24
Common usage and law tend to conceive of property
rights/ownership more broadly as a ‘bundle of rights’.
Full ownership is merely the concatenation of different
elements in the bundle; no one element is a necessary
condition for ownership and different forms of ownership combine different elements of the bundle in different ways.25 A simple example is that of landlord and
leasehold tenant. Both have property rights but the tenant’s rights are carved out of the bundle belonging to
the landlord.
There are many different analyses of what is/should be
included in the property rights bundle. The following
exposition has been chosen because it may be particularly helpful for understanding the nature of the things
created by the Protocol and the different interests members of the climate policy-making community can legitimately have in them. The ownership bundle comprises
the following thirteen elements. Elements 1–9 are ‘rights’
which can be enforced against others. Elements 10–13
are restrictions on what the owner can do.26
Rights under the Kyoto Protocol
(1) The right to possess. Possession implies exclusive,
physical control of a benefit stream.
(2) The right to use. Here ‘use’ refers to the owner’s personal enjoyment.
(3) The right to manage. Management confers upon the
holder the authority to decide how and by whom
something may be used, including if others are
allowed access.
(4) The right to the income. Income arises if the owner
foregoes personal use and allows others access in
return for payment.
(5) The right to consume or destroy. This allows the
owner to annihilate the benefit stream. The intertemporal consequences of allowing this are particularly important for environmental issues.
(6) The right to modify. The right to modify is less extensive than that to destroy, but permits the owner to
make changes.
(7) The right to alienate. Alienation allows the owner to
transfer the benefit stream and to abandon ownership.
(8) The right to transmit. Transmissibility allows an
owner to bequeath their interest in a benefit stream.
(9) The right to security. This refers to the immunity of
the owner from arbitrary appropriation of the benefit stream.27
There are four restrictions on the exercise of the rights
(these are elements 10–13):
(10) The absence of term. The absence of term suggests
that full ownership runs into perpetuity. If this is
not intended, the length of ownership must be
stated to limit the term.
(11) The prohibition of harmful use. The exercise of
ownership rights is restricted to ensure no harm
occurs to others, and occasionally, to the owner.
(12) Liability to execution. The benefit stream may be
taken away to repay debts incurred by the owner.
(13) Residuary rules. This covers rules to cover situations where ownership rights have lapsed.
Are Kyoto ‘Things’ Property?
One of the central equity disputes in the Kyoto Protocol
is whether developed countries have acquired the entire
bundle of rights stated in elements 1–9 in relation to
assigned amounts listed in Annex B of the Protocol. If
so, what kinds of restrictions are they or should they be
subject to under elements 10–13?
Although the debate has never taken place explicitly,
elements of the negotiations clearly indicate that Annex
B Parties appear to assume they have the fullest bundle
of rights listed in 1–9 and are not subject to any of the
restrictions listed in 10–13, or if so, only in a very minimalist sense. Developing countries deny they have the
full bundle of rights in 1–9. With the EU, they stress the
need for a number of important restrictions. The
response of both sets of Parties is based on the longstanding legal traditions, philosophic preferences and
economic positions.
Developing countries’ responses are informed by the
general dynamic of North/South relations. Their greatest
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fear is that the issue of climate change will be used by
the North to suppress their economic development.
They fear that Annex B of the Protocol may form the
basis of irrevocable ownership rights for industrialized
countries which fail to provide for growth of emissions
from developing countries. This leads them to challenge
any nuance that may lead to the international recognition that Annex B Parties have property rights over the
assigned amounts. This is one reason why the G77/China insisted that the term ‘emissions budgets’ be
removed from the text of the Protocol in favour of the
term ‘assigned amounts’ which suggests someone has
merely prescribed an amount to reduce rather than
given a (positive) right to emit.
The Protocol ‘grandfathered’ targets, with no or little ex
ante or ex post equitable justification, increase
developing country fears that they will be forced to
accept targets inappropriate to their social and economic capabilities, disproportionate to their historic contribution and their greater vulnerability to the adverse
effects of climate change. Protocol provisions allowing
banking of assigned amounts surplus to compliance
reinforce these fears because of the absence of term: i.e.
the lack of date means that any rights which Annex B
may have over assigned amounts appear to run in perpetuity. This only tends to reinforce developing country
fears that when the time comes for them to assume commitments, the global pie of emissions will either have
been ‘eaten’ by Annex I Parties or else be hoarded and
only available to developing countries at extortionate
prices.
These fears are further exaggerated by the inclusion of
the Kyoto mechanisms. Advocates of the Kyoto mechanisms argue that all distribution issues, other than the
initial allocations, should be left to the ‘free hand of the
market’. This is based on classical free market principles, which assume that the market deals with allocation issues more efficiently. They also assume that any
distribution inequalities produced by the market are
actually in everyone’s interests (and hence equitable)
because the increased efficiency gains from them will
trickle down to ensure that everyone is better off than
they would otherwise be. Finally, in the context of climate change, it is assumed that the efficiency gains
attributable will support the achievement of the Protocol’s objective. But it is quite possible for the Kyoto
mechanisms to be a complete success as economic
instruments and yet fail to deliver the Protocol’s
environmental objective. Because of their weaker financial and economic strength, developing countries fear
that they will not be able to regulate the Kyoto markets.
To compensate for their weaker position (and that of
their businesses and other non-state actors), developing
countries therefore advocate greater multilateral scrutiny over the Kyoto mechanisms.28
Developed country negotiators frame issues quite differently. Instead of responding to developing countries’
fears about the size of their future entitlements, they ask
how developing countries can be expected to have any
entitlements at all when, unlike Annex I Parties, they
have not made any limitation commitments themselves.
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By emphasizing that they can develop rules on how to
trade parts of assigned amounts without reference to the
COP, developed countries also give the impression that
they see themselves as ‘sole owners’ of assigned
amounts, able to design and operate the mechanisms
without COP scrutiny. These responses fail miserably to
convey any understanding of developing country concerns.
It is important to understand that Annex I Parties’ framework of reference for discussing these issues is informed
by two traditional legal principles regulating the appropriation of things and territory historically favoured by
them. First, that whoever possesses a territory and exercises actual control over it acquires a legal title. Second,
that as far as terrae nullius (that is, areas subject to no
one) are concerned, the ‘first come-first served’ principle
establishes title, provided there is an actual display of
sovereignty and authority. Developing countries point to
alternative bases: basic needs equality, economic circumstances, historical contributions and the polluter
pays principle. As a whole, developed countries are not
so afraid of devolving distribution responsibilities to
markets. The predominant trend in most developed
countries across Left and Right is the ‘rolling back of the
state’ which translates into allowing markets to decide
how to allocate health care, housing, education and pensions – all previously provided by the state.29
The Convention’s provisions on the legal basis for
entitlements to emit greenhouse gases into the atmosphere were nicely balanced and constructively ambiguous. The Kyoto Protocol has revived these disputes for
two reasons. First, it contains quantified targets the size
and legal nature of which are unclear and potentially
imbalanced in terms of inter-generational and intra-generational equity. Second, the inclusion of the mechanisms inject market disciplines (and allocation
vagaries) into a regime previously underpinned by principles of international co-operation and publicly-funded
assistance.
These principles, not market-based mechanisms, lay at
the heart of the global ‘bargain’ struck at the Earth Summit, and they remain deeply embedded in the Convention’s financial provisions. The Convention mandates
Annex II Parties to provide new and additional funding
to meet developing countries’ agreed incremental costs
of mitigation action. These provisions have been transported into the Protocol, but it is clear to anyone
attending the negotiations that the Kyoto mechanisms
are intended to be the primary delivery vehicles for any
financial and technological transfers.
Where does this lead us on the question of the legal nature of property rights over assigned amounts? This article argues that the ambiguity tolerated by the FCCC on
the issue of entitlement is unlikely to prove ‘constructive’, given the nature of the Kyoto Protocol and its
reliance on market mechanisms. In the long term, markets cannot thrive on legal uncertainty. And neither can
the debate on future commitments, whose resolution
appears to be politically essential if the Protocol is to
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stand any chance of being ratified by the USA. Thus, if
the Protocol is actually to enter into force, and if intergovernmental and private sector trading is to get off the
ground, the underlying equity issues on the size of
assigned amounts and the ‘bundle of rights’ that can
exist in relation to them will have to be addressed.
This article does not suggest that the underlying equity
issues should be resolved. Any final resolution is likely
to quickly become outdated and irrelevant because the
climate regime has to continually respond to fast-changing economic circumstances as well as the latest scientific information. It is worth recalling here the impasse
created over the ‘common heritage of mankind’ principle
in the Law of the Sea negotiations. In view of these considerations, this article recommends that a new kind of
pluralistic and open-ended dialogue, grounded in the
acceptance of different conceptions of equity, should be
devised. The dialogue could be structured, in the first
instance, to allow the climate change policy-making community to clarify what is to be included in the bundle of
rights Annex I Parties have over their assigned amounts,
and then over PAAs, CERs and ERUs. The dialogue must
not only clarify the positive elements listed in elements
1–9 but also address the nature of the restrictions to
be imposed under elements 10–13 described above. This
points once again to the need to consider more closely
issues related to procedural equity.
The idea of a ‘ bundle of rights’ which go towards defining ownership, but can be combined and recombined to
create different patterns of ownership, is also helpful. It
would avoid the rather unsophisticated versions of the
equity dialogue with one side arguing ‘we have full ownership rights’ and the other retorting ‘no, you don’t’.
Precedents from other international regimes provide
some useful insights about how the legitimate interests
of numerous Parties might be struck to produce equitable outcomes. Many different legal concepts have been
used to regulate access and apportioning of benefits
from their use in other natural resources regimes. Each
has been tailor-made for its circumstances. This article
argues that none of the existing ‘models’ should be
applied to the climate change context. These ‘models’
include the following: the doctrine of ‘permanent sovereignty over national resources’;30 the open access model
applicable to many resources in areas beyond national
jurisdiction;31 the common heritage of mankind principle;32 the non-appropriability doctrine; and equitable
access principles.33
Although not a natural resource regime, the Claussen
Report has held up the General Agreement on Tariffs and
Trade (GATT) as a suitable ‘model’ for the climate
change regime to handle developing country commitments. The suggestion that GATT forms something
approaching an equitable regime relevant to the Kyoto
Protocol negotiations indicates how much its basic principles (reciprocity, free trade, competition and market
mechanisms) are defining how other regimes should
function, even though its underlying principles are as
much an expression of a political creed as they are legal
rules defining trade relations.
Rights under the Kyoto Protocol
Who Can Exercise Rights?
The Protocol ascribes responsibilities and duties to sovereign states. But it also envisages other kinds of actors
having dealings with these things. For many Parties,
particularly the USA, the Protocol’s mechanisms are
premised on the active participation of non-state actors.
These actors could include, inter alia, international
organizations,
NGOs,
companies,
multinational
enterprises, research and educational bodies, government agencies and departments, various levels of
municipal and regional governments and, finally, individuals.
The term ‘non-state actors’ specifically excludes states
that are not Parties to the FCCC/Kyoto Protocol. Such
states will have observer status. For the purpose of this
article it is assumed that non-parties to the Protocol will
not be entitled to participate, directly or indirectly, in
the mechanisms in any form whatsoever. This is to
ensure that states join the Protocol and do not free-ride
by remaining outside. This is the reasoning behind the
Montreal Protocol’s restrictions on non-party trade in
controlled substances. The rules of the Kyoto Protocol
mechanisms would obviously have to make clear that
non-Parties cannot pay or otherwise direct non-state
actors to buy/sell on behalf of a non-Party, as this would
simply by-pass the restriction on trade with non-Parties.
From a legal standpoint, there are a number of ways in
which the participation of non-state entities could be
accommodated in the Protocol. One option would be to
endow non-state entities with specific rights and
responsibilities that are recognized in public international law to enable them to deal with PAAs, ERUs and
CERs. Non-state entities would then be subject to international scrutiny by the COP. An alternative way to
accommodate private entities would be to confine international dealings with PAAs, ERUs and CERs to those
entities already recognized in public international law,
with all other entities participating subject to the domestic jurisdiction of a particular Party. Dealings by nonstate entities would not register on the international
legal plane unless specifically sanctioned by states:
trades between entities would be ‘shadowed’ by sovereign to sovereign exchanges.
In the Reparations case, the ICJ defined an international
person as ‘capable of possessing international rights and
duties % and [having the] capacity to maintain its rights
by bringing international claims’.34 It also stated that in
any legal system, ‘the subjects of law are not necessarily
identical in nature or extent of their rights, and their nature depends on the needs of the community’. The ICJ
decision on the international status of the United
Nations (UN) states that the key element of international
legal personality is the ability to bring international
claims. In a similar vein (relevant to the US domestic
level), Christopher Stone writes that the hallmark of a
right-holder is the ability to bring a claim, at its behest,
to be granted relief for its own injuries, which gives it
benefits.35 This makes clear that FCCC/Kyoto Protocol
Parties can tailor-make legal personalities for the array
of non-state actors.
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Apart from international organizations such as the UN,
there is no consensus on whether any of the other nonstate actors are suitable subjects of international law.36
Rules and state practice are patchy, incomplete and
essentially contested, even in the relatively few specialized branches of international law where their direct
action is allowed.37 Giving legal rights and responsibilities beyond observer status to non-state actors goes
way beyond current practice.
No Party has expounded an entitlement claim ‘thick’
enough to ground a property right to the satisfaction of
all others. Developing countries reject allocations based
on grandfathering. Long after Kyoto, they consistently
stress that Annex B evidences that Annex B Parties have
possession of assigned amounts, but that this does not
equate to ownership. If you cannot own assigned
amounts, it follows that you cannot be the full owner of
smaller denominations: PAAs, ERUs and CERs.
It is likely to be resisted by many developing and former
Soviet bloc countries on the grounds that this might
strengthen the legal position of non-state entities under
public international law at their expense. Loss of effective sovereignty concerns are hardly surprising given
that the three richest individuals in the world hold
assets that are greater than the combined wealth of the
48 poorest countries.38 What is surprising is that most
multinationals have also resisted greater direct participation at the international level. No doubt this is due to
their fear of greater multilateral scrutiny and legal
accountability. For these reasons, the granting of
additional rights and responsibilities to non-state entities in the climate sphere is an unlikely option.
There are other good policy grounds to reject property
rights in assigned amounts and their components.
Increased scientific knowledge and inter-generational
equity considerations may justify a future re-allocation
of current assigned amounts between Parties. This must
be possible without the need to pay the original assignee
compensation. The US acid rain trading programme
specifically states that allowances granted to participating entities do ‘not constitute a property right’.39 This
provision allows regulators to reduce or limit the number of allowances issued without a corresponding duty
to compensate the ‘owners’, provided this is not done
in an arbitrary manner.
Economists would argue that the second option, which
requires a ‘shadow’ system of domestic and international trades, would increase bureaucracy and limit
greatly the economic benefits of the Kyoto mechanisms.
It is possible that a sui generis regime for climate change
to facilitate the direct participation of non-state actors
in the Kyoto mechanisms could emerge. This depends
on the extent to which the climate policy-making community continues to regard the climate regime important
enough to break with certain legal traditions. This in
turn depends on whether the climate issue is considered
politically and economically important enough to sanction the creation of new legal entities and relations by
anything more than a handful of countries.
Insights for the Climate Regime
Based on the above, this article suggests that the following insights should guide the construction of the bundles
of rights in relation to the Kyoto things. These can
inform the discussion of the rules, principles and guidelines being developed for emissions trading, as well as
the inter-linkages to the other mechanisms:
앫 No one should be allowed to claim sole ownership
rights over assigned amounts.
Even a cursory examination of the Protocol illustrates
that the COP or the COP/MOP exercises functions that
correspond to many of the 13 elements of ‘ownership’
identified above. Because the ultimate authority to
define, and where appropriate, redefine, Parties’ rights
relating to the mechanisms are vested in the COP or
COP/MOP, no individual Party can claim the full bundle
of rights. Parties’ ability to deal with PAAs and ERUs will
always be subject to COP oversight. The proper scope
of the COP’s authority needs to be clear and settled to
avoid uncertainty and unnecessary bureaucracy.
앫 PAAs, CERs and ERUs should not be recognized as
property rights.
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272
앫 PAAs, CERs and ERUs should retain their distinctive
character
Parties’ expectations about fairness may be better satisfied if the legal distinctness of PAAs, CERs and ERUs is
recognized. This will allow tailor-made ‘bundles of rights’
to be agreed that respect the equity and environmental
circumstances relevant to the intended operation of
the mechanisms.
앫 Rules should clearly prohibit harmful use of rights to
buy/sell PAAs, CERs and ERUs.
Michael Grubb’s suggestion about the principle of ‘emission conservation’ appears to fall into the category of
restrictions.40 The principle is designed to ensure that
the climate system suffers no more harm as a result of
the exercise of Annex B Parties’ right to trade than would
result if there had been no trading. The principle is
restrictive because it is meant to prevent environmental harm.
앫 Rights to use PAAs, ERUs and CERS should not run
in perpetuity.
Assigned amounts should not be conceived of as permanent appropriations, but limited to a reasonable period
of time. Surpluses should not be bankable ad infinitum. If
surpluses have not been used for, say, two commitment
periods, they should expire. The length of expiry for
CERs should be very carefully considered to allow the
possibility of it taking back CERs which developing countries have alienated as part of the settlement of equity
considerations relevant to the size of any targets that a
developing country may accept at a future date. This
would help address the inequities arising from the ‘lowhanging fruit’ harvest now possible under the CDM,
which may result in all the cheaper abatement options
being used by Annex I Parties, leaving developing countries with the most expensive ones.
Rules developed for the mechanisms must describe what
can be done in the normal course of Protocol business
Volume 8 Issue 3 1999
with PAAs, CERs and ERUs, as well as what can be done
when transactions result in non-compliance or Parties
act, or are suspected of acting, in bad faith.
앫 The climate regime should define the extent and
character of rights in relation to PAAs, CERs, and
ERUs to generate legal certainty for the climate and
other international regimes
The COP and COP/MOP have extensive legal powers,
including where to draw the line between multilateral
regulation and Parties’ discretion. The kind of policy-relevant questions that need to be decided include: should
it be possible for a Party to ‘mortgage’ parts of their
assigned amount rather than permanently transferring
these to the account of another? Should a Party be able
sell the whole of its assigned amount? Should a
developing country (and its entities) be entitled to generate CERs without Annex I participation? Should the
COP be legally empowered to stop a Party that had given
notice of withdrawal from ‘cashing in’ its assigned
amount? Should the COP insist that all or some Parties
maintain compliance reserves in advance of any compliance breach? And should it be able to impose trade
sanctions for persistent non-compliance, and if so under
what circumstances?
In cases of non-compliance, because monetary damages
would rarely be appropriate to make good the damage
to the environment, collective remedies should provide
for actual performance as well as fines. Fines would punish and check abuses of the right to alienate the benefit
of income (through excess sale of parts of assigned
amounts, for example). If non-state actors participate in
the mechanisms, the legal status and powers (or
functions) of each category of non-state entity must be
determined. The clarification must include what collective and individual remedies are available to compel performance of these functions/rules.
Other international legal regimes, such as the
GATT/WTO, should not, directly or indirectly, seek to
regulate trade in PAAs, CERs and ERUs. Trade-related
aspects of the Kyoto mechanisms should be considered
by the dispute- and compliance-related processes established by the FCCC and Kyoto Protocol. It remains
unclear, for example, whether PAAs, CERs and ERUs can
be characterized as ‘goods’, ‘services’ or financial instruments, if indeed they fall into any of these categories.
Conclusions
The climate regime is in the process of defining rules to
regulate the access and use of highly valuable resources.
It is doing so in the context of the globalized, de-regulated market economy. This poses fundamental challenges to the traditional legal order. Because of their
overtly political, value-laden character, there is a tendency to sweep equity considerations relevant to climate
change under the carpet. Policy-makers believe that equity discussions involve a high risk of deadlock because
if participants insist on their viewpoints, there is no
objective way to solve disputes on a consensual basis.
Rights under the Kyoto Protocol
In a negotiating community as large and diverse as that
of climate change, and one operating without agreed
rules of procedure, these beliefs are understandable. Ignoring equity issues tends to result in the prioritization
of efficiency-based objectives. Undue focus on efficiency
alone will not serve the climate regime well.
Equity lies at the heart of the two critical issues facing
the regime: the development of new commitments and
the operation of the Kyoto mechanisms. At this particular stage in time, the climate regime will benefit from
an explicit, detailed consideration of equity. Negotiations about equity in the climate context will help
define principles, rules and norms fundamental to the
development of international law, such as sustainable
development, in the next millennium. Successful solutions devised by the climate community will not only
make the planet safer. They will also contribute to the
development of international law.
Notes
1. For an overview of the literature on equity and climate change,
see Banuri et al., chapter 3, in ‘Climate Change 1995, Economic
and Social Dimensions of Climate Change’, Second Assessment
Report, ed. Bruce et al., Intergovernmental Panel on Climate
Change (Cambridge, Cambridge University Press, 1996). See
also Tim O’Riordan and Jill Jaeger, ‘Beyond Climate Change
Science and Politics’, in Politics of Climate Change; a European
Perspective, O’Riordan and Jaeger (eds), (London, Routledge,
1996), M. Thompson, and S. Rayner, chapter 4, ‘‘Cultural Discourses’ in Institutional Frameworks for Political Action’, in
Human Choice and Climate Change, The Societal Framework, Volume 1, Steve Rayner and Elizabeth Malone (eds), (Battelle
Press, 1998). For post-Kyoto equity discussions, see Eileen
Claussen and Lisa McNeilly, ‘Equity and Global Climate Change:
The Complex Elements of Global Fairness’, Pew Center on Global Climate Change (October 1998); Benito Müller, ‘Justice in
Global Warming Negotiations, How to Obtain a Procedurally
Fair Compromise’, Oxford Institute for Energy Studies,
(December 1998); Lasse Ringius, ‘Differentiation, Burden-sharing and Leadership in the EU’, CICERO (1998); Daniel Kammen
and Ann Kinzig, ‘Aiming for Equity, National Trajectories of Carbon Emissions: Analysis of Proposals to Foster the Transition
to Low Carbon Economies’, Global Environmental Change, 8(3),
183–208 (1998); Christina Batruch, ‘Hot Air as Precedent for
Developing Countries? Equity Considerations’, Working Paper
W71, International Academy of the Environment, Geneva (1998);
Philippe Cullet, ‘Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues’, Paper
for the International Environmental Law Research Centre
(1998).
2. Brownlie, Principles of Public International Law (Third Ed.), (New
York, Oxford University Press, 1979), at 27.
3. Principle 2 of the Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992), reprinted in 31 ILM
876. See Annex for full text of this Principle; see also Principle
21 of the Declaration of the U.N. Conference on the Human
Environment in Report of the United Nations Conference on the
Human Environment, U.N. Doc. A/CONF.48/14/Rev.1, U.N. Sales
No. E.73.IIA.14 (1973), reprinted in 11 ILM 1416.
4. Case Concerning the Continental Shelf (Tunisia/Libya Arab
Jamahiriya), 24 February 1982, ICJ Rep. 1982, at 60, para. 71.
5. Id. This restricted view of equity is still held by some legal scholars, see e.g. Brownlie, n.2 above.
6. Id. The sources of international law are set out in Article 38(1)
of the ICJ’s Statute.
7. There have been many attempts to summarize the general principles of law. See generally Bin Cheng, General Principles of Law
as Applied by International Courts and Tribunals (Cambridge,
Grotius Publications, 1987).
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Rights under the Kyoto Protocol
8. Continental Shelf Case (Tunisia/Libya Arab Jamahiriya), n.4
above; see also Article 38 of the ICJ statute, n.6 above.
9. Id.
10. North Sea Continental Shelf Cases, 20 February 1969, ICJ Rep.
1969. The judgment was adopted by 11 votes to 6. Several of
the dissenting judges appended dissenting opinions on the
application of equity and equitable principles to the cases.
11. See Article 38(2) of the ICJ Statute.
12. Hersch Lauterpacht, The Development of International Law by
the International Court (New York, Praeger, 1958), at 213.
13. In that case, the legal regime concerned the continental shelf.
See ICJ Rep. 1969, at 47, para. 85.
14. For a non-exhaustive attempt at codifying the general principles
of law, see Bin Cheng, n.7 above, in particular, Appendix I.
15. The ICJ stated in the 1985 Libya/Malta Judgment ‘[i]n relation
to continental shelf delimitation, although there may be no
legal limit to the considerations which States may take into
account, this can hardly be true for a court applying equitable
procedures. For a court, although there is assuredly no closed
list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has
developed within the law, and to the application of equitable
principles to its delimitation, will qualify for inclusion. Otherwise, the legal concept of continental shelf could itself be fundamentally changed by the introduction of considerations strange
to its nature’. (1985) ICJ Rep., at 40, para. 48.
16. Recognizing this, the ICJ in its 1982 Judgment stated that whilst
its terminology was generally used, it ‘is not entirely satisfactory because it employs the term equitable to characterize both
the result to be achieved and the means to be applied to
achieve this result’. (1982) ICJ Rep., at 59, para. 70.
17. For one example of this see Legal and Institutional Aspects of
Joint Implementation under the UN Framework Convention on Climate Change, Institute of Social Studies International Services,
Netherlands, 31 December 1993, at 57.
18. Thomas Franck, Fairness in International Law and Institutions
(Oxford, Clarendon Press; New York, Oxford University Press,
1995), at 8.
19. See O’Riordan et al., ‘Institutional Frameworks for Political
Action’, in Steve Rayner and Elizabeth Malone (eds), n.1 above.
For a legal perspective of solidarity as a basis for inter-state
relations, see R. McDonald, ‘Solidarity in the Practice and Discourse of Public International Law’, 8 PCE Int’l L Rev. 259 (1996),
and Philippe Cullet, n.1 above.
20. On the ‘constitutional’ nature of these principles see article by
Jaume Saura, ‘Mechanisms to Adapt the Climate Change Regime
to the Particular and General Needs of Parties’ (1999), a paper
for the EUFCCC Project. See also Clarke, Jhaveri and Yamin,
‘The Rio Declaration: a Case Study’ prepared for the EUFCCC
Project, FIELD Working Paper (1997), which examines how the
principles underpinning the FCCC have been incorporated,
interpreted or applied in treaties and international judicial bodies.
21. Claussen and McNeilly, n.1 above, at 8. See also Müller, n.1
above; Lasse Ringius, ‘Differentiation, Leaders and Fairness:
Negotiating Commitments in the European Community’,
CICERO (1997/98); Kammen and Kinzig, n.1 above; Grubb, Vrolijk and Brack, The Kyoto Protocol – A Guide and Assessment
(London, Royal Institute for International Affairs, 1999).
22. See Batruch, n.1 above.
23. To simplify discussion, the term COP is used in the remainder
of this article, although formally it is the COP/MOP that has the
legal authority to deal with Protocol matters.
24. Daniel Bromley, Economic Interests and Institutions: the conceptual foundations of public policy (Oxford, Blackwell, 1988).
25. See Bhaskar Vira, ‘Rights, Property Rights and their Protection – implications for the analysis of environmental policy’,
Oxford Centre for the Environment, Ethics and Society
(OCEES), Research article No. 2, August 1995.
26. The following elements are quoted directly from Vira, id., at 13,
and are based on Becker, ‘The Moral Basis of Property Rights’,
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27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
in J. R. Pennock and J.W. Chapman (eds), Property (New
York, 1980).
Following the Hohfeld classification of rights/duties, elements
1, 4 and 9 are described by Becker (id.) as ‘claim-rights’. This
means that there are corresponding duties on others to allow
the right-holder to exercise her right. The duties may involve
positive assistance or simply the passive condition of non-interference. Elements 2, 5 and 6 are described as a
‘liberty/privilege’. This means that the owner may undertake a
particular action and is under no obligation to take others’
interests into account. Elements 3, 7 and 8 are described as
‘powers’. This means that the right owner may bring about a
particular consequence for others who are under a liability to
accept the new situation even if it is to their disadvantage.
See Farhana Yamin, ‘Bi-lateral, Multi-lateral and Other
Approaches to the CDM’, WRI/CSDA/FIELD article (October
1998).
See B. Guy Peters, ‘Globalization, Institutions and Governance’,
European University Institute, Robert Schuman Centre, (1998).
See Ayesha Diaz, ‘Permanent Sovereignty’, Environmental Law
and Policy, 1995.
Fisheries on the high seas, for example. There are, however,
various sectoral and specific geographic regimes where open
access rules are displaced in favour of later, more specialized
rules, e.g. whaling and Antarctica.
Initially applied to the deep sea bed in UNCLOS and substantially revised by the 1994 Agreement. The concept also applies
to the resources of the Moon and, more controversially,
according to developing countries, to the whole of outer space.
These are most developed for international watercourses and
widely used in determining access/benefits to the geo-stationary orbit.
Reparations for Injuries suffered in the Service of the United
Nations Case, ICJ Advisory Opinion, 11 April 1949, ICJ Rep. 1949
at 174.
See C. Stone, Should Trees Have Standing? And Other Essays on
Law, Morals and the Environment (New York, Oceana, 1996).
See the Reparations Case, n.34 above, where the ICJ recognized
the legal personality of the UN.
Donna Arzt and Igor Lukashuk, ‘Participants in International
Legal Relations’, in International Law, Classic and Contemporary
Readings, Charlotte Ku and Paul Diehl (eds), (Lynee Rienner
Publishers, 1998).
Philip Johnston, ‘These Americans are Richer than 48 Nations’,
Electronic Telegraph (10 September 1998), citing UNDP Human
Development Report 1998.
Ss 7651(b), Title IV Clean Air Act 1990 states that ‘An allowance
allocated under this sub-chapter is a limited authorisation to
emit sulphur dioxide in accordance with the provisions of this
sub-chapter. Such allowance does not constitute a property
right. Nothing in this sub-chapter or in any other provision of
law shall be construed to limit the authority of the US to terminate or limit such authorisations.’
Michael Grubb, ‘Implementing the Kyoto Mechanisms: Rules for
Emissions Trading’, Paper for the EUFCCC Project (1999).
Farhana Yamin is Programme Director of the Climate Change Programme at the Foundation for
International Environmental Law and Development
(FIELD). This article is based on research carried
out for the Project to Enhance Policy-Making
Capacity under the Framework Convention on Climate Change and the Kyoto Protocol, funded by
the European Commission, DGXII (EUFCCC
project).