Download The many shortcomings of the Kyoto Protocol are well

Scientists have studied the effects of global warming for decades, however the
climate change agenda has only in the past twenty to thirty years really made itself seen
on the political scene. Since that time, the United Nations Framework Convention on
Climate Change (“UNFCCC”) took place from 1992 to 1994 which in 1997 produced the
Kyoto Protocol.1 The protocol, whose purpose is to create a framework within countries
can combat greenhouse gas emissions, has been ratified by over 150 countries. The
United States has refused to ratify the protocol, finding that doing so would hurt
American economic interests and that the treaty itself is flawed as developing countries
are not required to cut emissions as they are.2 Australia likewise had refused to sign the
protocol, however with a recent change of government the country has ratified the
protocol and thus agreed to make changes to its emissions policies.3 Several European
Union countries have not only ratified the protocol but have made significant progress in
fighting emissions, among them the United Kingdom and Germany.4 As the protocol is
set to expire in 2012 and as negotiations have begun in Bali for its replacement, it is
fitting to look at the protocol to determine how effective the treaty has been and in which
ways it could be improved.
Part I of this paper will give a brief background on the global warming agenda
and the Kyoto Protocol and introduce the main issues involved today. Part II will look at
climate change and the protocol from realist, neorealist, liberal, and neoliberal points of
view. I will argue that while none of the theories precisely covers the entirety of the issue,
each provides helpful analysis in determining how power and law collide in international
politics. Part III will present at a constructivist analysis of the protocol and the global
warming agenda and will focus primarily on the construction of that agenda through
social interaction. It will likewise touch on the New Haven and transnational legal
process schools to help understand how societal influences have helped create legal rules
and how policy-makers implement laws based on mutual understandings between states.
1
Smith, J. The Transatlantic Climate Change Challenge. The Washington Quarterly (Winter 2007-08),
142.
2
Id, 147.
3
Australia Ratifies Kyoto Global Warming Treaty. MSNBC.com.
http://www.msnbc.msn.com/id/22081582. Accessed January 11, 2007.
4
Smith, 141.
Again, I will argue that while this theory provides helpful analysis, it too falls short of
clarifying the entire climate change picture.
I. Global Climate Change and the Kyoto Protocol
The Kyoto Protocol was adopted in 1997 and became a binding treaty in February
2005 after Russia’s deciding vote for ratification.5 The main purpose of the treaty is for
industrialized countries to cut their greenhouse gas emissions, which are believed to be a
main contributor to global warming, within a given time period.6 While all countries
determined the extent of their proposed cutbacks, all industrialized countries which
ratified the protocol committed to a combined goal of a 5% reduction below 1990 levels
by 2012, at the expiration of the protocol.7 Developing countries – which are believed to
be the weakest contributors to global warming but the hardest hit – are not required to
reach any targets, however they must continue to provide information on their emissions
levels.8 Both China and India are included on this list.9 While it appears that the goal will
not be reached by the time the treaty expires, several individual countries have reached
their goals and are continuing to combat emissions.10 Indeed, the European Union and
even some individual states within the United States have made Kyoto law part of their
law.11 Some claim, however, that the protocol barely touches on the severity of the
problem, as much more than a 5% reduction is needed in order to effectively combat
global warming.12
The United States, viewed as the world’s top polluter, has likewise had the
dubious distinction of having one of the worst track records in actually implementing or
promoting global climate change.13 While high-level politicians such as Al Gore have
recognized the need to address the problem of global warming, the political climate since
5
Q&A: The Kyoto Protocol. BBC News. http://news.bbc.co.uk/2/hi/science/nature/4269921.stm. Accessed
January 11, 2008.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
13
Smith,146.
at least the late 1980s – when the issue first appeared on the radar in the United States –
has failed to allow for any concrete action to take place.14 In the 1990s, Gore, as Vice
President, pushed heavily for United States ratification of the Kyoto Protocol, however
President Bill Clinton eventually succumbed to congressional pressure and did not seek
ratification of the treaty. 15 President George W. Bush has not made any effort since that
time to revive the treaty, claiming that by following the treaty United States energy and
gas prices would rise and other ozone-polluting countries such as India and China, which
are not required to lower their emissions, would get an economic advantage. 16 Bush
found that “the Kyoto Protocol was fatally flawed in fundamental ways… but the process
used to bring nations together to discuss our joint response to climate change is an
important one.”17 The United States then, although recognizing the importance of
addressing global climate change issues, refused to sign a treaty which it felt would
adversely affect its interests, as compared with other states.
II. (Neo)Realist and (Neo)Liberal Analyses of Kyoto: While the United States Sits Back,
Other Countries Have Stepped up to the Plate
In realist and neorealist theory, one constantly hears rhetoric that law takes a
backseat to politics. When looking at the Kyoto Protocol and the United States’ refusal to
take part in it, one may indeed come to the conclusion that power does trump law as the
United States has sought to protect its national interest instead of joining a treaty which
may adversely affect its power. On the other hand, several countries, including all
European Union countries at the time of ratification of Kyoto, have signed up to the
protocol and several are making marked progress in terms of climate change. One could
thus argue under liberal or neoliberal theory that law is helping to bring countries
together based on common interests in order to bring about positive change. While such
progress is undoubtedly being made, however, realists would argue that such progress
14
Id.
Ebell, M. Kyoto Anniversary: What It Means Today. www.HumanEvents.com. Accessed January 7,
2008, 8.
16
Smith, 147.
17
President Bush Discusses Global Climate Change. The White House Office of the Press Secretary June
11, 2001. http://www.whitehouse.gov/news/releases/2001/06/20010611-2.html. Accessed January 7, 2008.
15
and change is only marginally important, as the world’s top polluters either have not
signed the Protocol (i.e. the United States) or are not required to make significant changes
in their climate policy (i.e. China and India). While neither theory alone necessarily
captures the essence of the climate change dynamic, each provides insight into the
practices taken by all parties involved and into the importance of law, power, and
cooperation which have come to define the climate change agenda.
Both realist/neorealist and liberal/neoliberal theory seek to explain international
relations from a rationalist and positivist perspective. That is, both theories seek to
explain international relations in terms of objective criteria based on causal
relationships.18 In terms of Kyoto and its effects then, theoretical analysis focuses on why
certain countries decided to join it (the EU countries, developing countries, etc) while
others did not (the United States and Australia at the beginning). It also determines to see
how stable the Protocol is – whether it has made states more compliant or whether
progress has been marginal. Realists/neorealists and liberals/neoliberals look at objective
criteria in the material world to make this determination.19 They see what interests kept
states from joining, how states have actually changed their practices to comply with
Kyoto, as well as what steps are being taken from the future. Because these theorists view
the international system as external to the actors themselves, they also assume the
interests and identities they study are inherently given to states which then act
accordingly. They differ, however, as to whether these common interests will always lead
to conflict or whether cooperation is indeed possible. It is from this background that I
will now turn to an analysis of the Kyoto Protocol from realist and neorealist
perspectives.
The United States’ refusal to sign the Kyoto Protocol can be explained from a
realist and/or neorealist perspective, however these theories fail to take into account the
progress that has been made without the presence of the United States. While the United
States protected its own interests in not joining the Protocol, several countries, including
many European Union countries, have come together despite their national interests in
order to make a positive effect on climate change. Realists state that human nature is
18
19
Morgenthau, H. Politics Among Nations: The Struggle for Power and Peace (1967), 4.
Id.
flawed and that humans (and the states which represent them) are continually in a state of
conflict.20 They therefore only seek to protect their interests and security by acting
rationally (i.e. having powerful militaries and alliances).21 Only political, and not moral,
considerations are made.22 States alone are determined as having importance, as they are
the final decision-makers and determine how the state will protect its interests.23
Neorealists make the same assumptions, however they claim that it is the nature of the
international system itself and not human nature which leads to a state of anarchy of allagainst-all.24 Because of the anarchical system, states compete for relative gains in an
attempt to maintain the balance of power.25 Alliances and cooperation in such a system
are rare, as states’ interests rarely will coincide, leading instead to a state of distrust.26
When applied to Kyoto, a realist or neorealist would argue that the United States
is acting to protect its national interest against the power of other countries – either
because it seeks to gain power or because of its place in the international system – by not
signing the Protocol. The United States rejected the terms of the Protocol because it felt
that it would be unfair for China and India to not have to reduce emissions as “developing
countries.”27 Since China has recently passed the United States in emissions, and yet is
also one of the United States’ main economic competitors, the United States felt that
taking an economic loss to comply with Kyoto would hurt its national interest.28 Under a
neorealist analysis, any relative gain that China or India made would effectively undercut
the United States’ power. The United States was not willing to take that risk. Although
the United States has recognized the importance of global climate change on a moral, and
perhaps practical, level, it has refused to participate in a treaty which it felt would
compromise its interests, thereby reaffirming the supreme importance of politics.
Legal realists and legal positivists have taken realist and neorealist arguments one
step further, arguing that law is just a tool of the powerful and has no ethical
20
Morgenthau, 3.
Id, 5.
22
Id, 10.
23
Mearsheimer, J. International Relations Theory: Discipline and Diversity: Structural Realism (2007), 73.
24
Id, 72.
25
Waltz, K. Theory of International Politics (1979), 118.
26
Id, 74.
27
President Bush Discusses Global Climate Change.
28
Id.
21
superiority.29 As there is no supranational authority which can regulate the international
law system, states must decide based on their own interests whether or not they will
ascribe to any particular treaty or whether will they comply with any treaty they have
ratified.30 Law can also be used by powerful countries as a way to keep less powerful
countries in check.31 Since for realists states are concerned only with security, they are
unlikely to join treaties which will adversely affect that security and will thus either steer
clear of law or use it as a tool to control other states.32 For this reason, legal positivists
and legal realists claim that treaties are only marginally significant, do not influence state
behavior, and do not change the status quo of the international system.33 From this
perspective, one would claim that since no enforcement mechanism exists to enforce the
Kyoto Protocol, it is only marginally effective. These theorists would further claim that
the Protocol just represents a political battle in which the United States has refused to
participate since its interests will be adversely affected and that law as such has no
independent authority. Since the United States can effectively choose whether or not it
wants to join the Protocol, the international system cannot be seen as having changed and
state behavior cannot be seen as having been influenced.
While realists and neorealists may succeed at explaining the United States’ refusal
to join the Kyoto Protocol as an example of power triumphing over law, the theories have
not succeeded in explaining the proliferation and adherence to the treaty of other nations,
particularly of those in the European Union. The theories fail to explain how some
countries are willing to promote a perceived moral (rather than political) cause which
may actually hurt their national interest and are likewise willing to follow the treaty at the
risk of giving up some sovereignty. The theories also do not adequately explain the
importance of several non-state actors in the climate change dialogue. Likewise, legal
realism and legal positivism fail to explain how the Protocol has been an effective tool of
compliance which has indeed influenced the actions of nations involved. Turning now to
an analysis of the Kyoto Protocol from a liberal and neoliberal perspective, one can begin
Carr, E.H. The Twenty Years’ Crisis 1919-1939: An Introduction to the Study of International Relations
(1964), 159, 163.
30
Sriram, C. International Law, International Relations Theory and Post-Atrocity Justice: Towards a
Genuine Dialogue. International Affairs 82, 3 467 (2006), 471.
31
Id.
32
Greenberg, J. Does Power Trump Law? 55 Stan. L. Rev. 1789 (2003), 1791.
33
Id.
29
to fill these gaps, as theorists in these fields explain that other actors besides states play
an important role in bringing states together to cooperate on matters in which they share
common interests. While the United States may feel that joining Kyoto would not
advance its national interests, several other countries around the world have decided that
it would be in their common interest to promote the Protocol and have taken steps to do
so.
At the outset, the two sets of theories – realism/neorealism and
liberalism/neoliberalism – actually share a number of common assumptions. Both view
the state as the primary actor in international politics and both view the international
system as anarchic.34 Liberals and neoliberals believe, however, that other actors besides
states should be considered as important in international relations and that although the
international system is anarchic, states can indeed come together and cooperate based on
mutual interests.35 For liberals, human reason and will allow states to overcome anarchy
by using international organizations, international law, and regimes to bring about
cooperation and thus peace. While they still believe that states are self-interested, they
also believe that states can overcome transaction costs, mistrust, etc in order to increase
their own benefits.36 Thus, a state will be willing to cooperate as soon as an absolute gain
is acknowledged. In terms of Kyoto then, states have been willing to come together to
promote a common interest in saving the environment. In coming together to create
Kyoto, they were able to overcome transaction costs and set up a system where each
realized that the other would cooperate in this common goal.
Neoliberal institutionalists have looked specifically at how international
institutions affect state action and preferences and have asked whether or not they
actually constrain state behavior.37 They also ask why states are willing to give up some
of their autonomy to pursue these common goals.38 In general, neoliberal institutionalists
have a more optimistic view of international law than realists in that they believe states
will give up autonomy and create common institutions which will in turn influence state
34
Martin, L. International Relations Theory: Discipline and Diversity: Neoliberalism (2007), 111.
Id, 110.
36
Sriram, 469.
37
Martin, 110.
38
Id.
35
behavior and create change in the international system.39 Indeed, there has been a strong
move toward law in recent years, as demonstrated by Judith Goldstein.40 As institutions
and laws become more legalized, stronger rules are created which shape the behavior of
actors and create more opportunities for compliance.41 Neoliberals also study regime
theory as a way to explain the effect of regimes (or rules and norms) on the behavior of
states. As more and more international institutions are created, more norms are created
which allows for states’ expectations in a given area to converge. The stronger a regime
is, the stronger those expectations will become and states will become more confident
that other states will comply as trust issues are removed and cooperation abounds.
In terms of climate change, one sees more institutionalization, as more and more
treaties are being signed and more and more countries are choosing to change their
practices. States have been willing to give up their autonomy in order to work on an issue
which they feel needs cooperation from all parties. Indeed, as more climate change
institutions have appeared, so has the climate change regime grown. While barely on the
radar a few decades ago, states have now come together and formed new rules and norms
to determine how they should act to protect the environment. In turn, states, particularly
within the European Union, have changed their behavior based on this expectation of
compliance. With Kyoto in particular, several nations have made significant progress in
overcoming their emissions problems, showing that with the aid of an international
institution change in action is possible. Perhaps most importantly it shows as well that the
participation of the United States is not required to make cooperation possible between
countries on important issues such as climate change.
Liberal and neoliberal theories can be critiqued, however, in the sense that they,
too, can only explain part of the picture. While several European Union and other
countries have come together to make significant progress in the climate change agenda,
the heaviest polluters, China, India, and the United States are barely making headway on
the issue. The question thus remains whether the progress made will even make an
impact if the heaviest hitters are unwilling to make changes themselves. A realist or
39
Id.
Goldstein, J. Introduction: Legalization and World Politics. International Organizations 54, 3 (2000),
385.
41
Id, 386.
40
neorealist would claim that the difference that international law has made is minimal in
the grand scheme of things. Another critique of liberal and neoliberal theory is that it fails
to take account of other actors which help bring about cooperation, including civil society
and individuals. While states have certainly helped bring about collaboration on the
climate change agenda, transnational networks and individuals have likewise helped
bring about the agenda to the forefront as a political issue which no politician can
effectively avoid. I will now turn to an analysis of Kyoto from a constructivist
perspective, which again will help fill in the gaps in understanding the global warming
agenda.
III. Constructivism: A Normative and Social Understanding of the Formation of the
Climate Change Agenda and the Creation of the Kyoto Protocol
Constructivism questions a number or rationalist assumptions concerning
international relations, mainly in relation to the nature of the international system. While
rationalists believe that the international system is determined and that state interests are
therefore given, constructivists believe that the nature of the international system is
socially determined and can thus be changed.42 For neorealists, state behavior is
determined by one’s place in the international system, while for neoliberals behavior can
also be affected by international institutions. Constructivists believe, however, that social
interaction determines interests and thus how states will behave.43 For them, the
international system and the state are mutually constitutive, both influencing each other at
the same time.44 Similarly, as states participate in regimes they both influence the regime
and are influenced by the regime. As states interact with the international system, certain
standards of appropriateness are created and states begin to accept their identities and act
according to what is determined to be “right.” This “hardening” of norms and
expectations then creates a “compliance pull” which states will follow.45 Constructivists
42
Fierke, K. International Relations Theory: Discipline and Diversity: Constructivism (2007), 168.
Id, 170.
44
Id.
45
Goldstein, 393.
43
then do not focus solely on the material world but on which factors influence the
decisions states make as to whether to comply with international law or not.
In terms of climate change and the Kyoto Protocol, one finds constructivism
particularly relevant, as the global warming agenda has been socially constructed and
made a top issue on the international political agenda. As previously stated, scientists
have been pushing the issue for decades, however only in the past few decades has civil
society and the help of individuals such as Al Gore really pushed the issue onto the
political stage. As the global warming regime has formed, states have redefined their
interests based on their interaction with other countries and within their own societies, as
all countries have grasped the importance of protecting the environment. Even the United
States, which has previously denied even the existence of global warming, has caught on
and recently participated in the Bali climate change conference. Australia, too, has been
influenced by the climate change regime, as its new leader has determined that its country
will participate in Kyoto. The constructivist school, therefore, provides a needed glimpse
into the effect which society as a whole has on influencing state interests.
The English School, too, has focused on how a transformation from international
system to international society can take place.46 The English School posits that the
international system and international society exist together and that one can move from a
system focused solely on security to one with shared norms which constrain states and
other important actors. Constructivists take this one step further and conceive of a world
society with shared norms of all of mankind – or the idea of transnational norms in a
global civil society. Indeed, Sriram points out that although the international system is
anarchic, this does not necessarily have to be the case.47 Instead, the self-interested
anarchic state system is socially contracted.48 By using this social construction, we could
instead recreate shared norms which create law and constraint.49 In terms of Kyoto, one
sees that civil society has helped transform ideas into something which has become
important in all countries’ national policy agendas. Laws such as Kyoto have helped
46
Dunne, T. International Relations Theory: Discipline and Diversity: The English School (2007), 131.
470.
48
Id.
49
Id.
47
restrain nations in terms of their emissions. Although not all countries are participating,
the shared norms which have been created are encouraging countries to take part.
Anne-Marie Slaughter likewise has focused on the construction of a transnational
society.50 She states that what happens inside of a state is also important in determining a
state’s interest. Groups within a state may exert great influence over decision-makers and
can likewise influence the agenda of nations. Groups within states may also work across
borders to bring issues they find important to the forefront of international politics.
Stephen Toope likewise shares this understanding of global civil society, as he posits that
it can influence formal decision-makers by creating new values and agendas.51 Global
warming, for instance, has been put onto the world agenda by scientists and has been
taken over by politicians. Indeed, civil society has also led individual states within the
United States to enact their own provisions which comply with Kyoto, most prominently
in California.52 Americans are likewise changing their attitude toward global warming, as
the number of Americans who believe global warming is a serious problem has gone
from 70 percent in 2004 to 83 percent last year.53 It is apparent then that civil society and
groups within countries can have significant influence transnationally and within
domestic society.
From a law standpoint, the New Haven school espouses several ideas similar to
constructivist theories. The New Haven school seeks to look at policy and the process of
decision-making behind the scenes, as do constructivists.54 It posits that decision-makers
will formulate policies and laws which conform with their common interests with other
states based on their expectations and that this will control their behavior. New Haven
theorists are concerned with determining how the law came about what and what it is that
lawyers say and do.55 It looks at how laws are made based on normative goals as well as
how disparity in power determines how rules are formed. Finally, it looks at the way laws
are created, adhered to, and violated based on socio-political context. Transnational legal
50
Slaughter, A. International Law and International Relations Theory: A Dual Agenda. The American
Journal of International Law, 87 2 (1993), 205.
51
Toope, S. The Role of Law in International Politics: Emerging Patterns of Governance and International
Law (2000), 91.
52
Smith, 149.
53
Id, 150.
54
Symposium on Method in International Law. 93 Am. J. Int’l L. 291 (1999), 293.
55
Id, 294.
process also has several similar characteristics of constructivism in that it focuses on the
interaction between states and non-state actors to see how they make, enforce, interpret,
and internalize rules and to see how law constrains decision-makers and affects the
course of international relations.56 For instance, it focuses on how judges come together
to form networks across borders. New Haven scholars, as well as transnational legal
scholars, would thus look at how the climate change issue became a strong issue in terms
of law – enough so that treaties were formed. They would also see which norms affected
policy decision-makers in determining why global climate change was so important.
While civil society and individuals have helped bring about significant strides to
the climate change agenda, the question still remains as to the overall effect they are
having on climate change. While more and more countries recognize the importance of
changing their environmental policies, some of the biggest countries, such as the United
States, China, and India, have not signed up to the Kyoto Protocol and are not currently
making significant progress. Indeed, the United States seems unwilling to participate in a
treaty regime which punishes countries for non-compliance with emissions goals. Thus,
while significant strides are being made as the importance of global warming is
constructed in society, one must ask how much progress is realistically being made. As
the Kyoto Protocol ends in 2012 and another climate regime comes into place, civil
society must push harder and seek to incorporate its aims even more onto the
international political scene in order to make substantial progress.
IV. Conclusion
Global warming has made its way onto the international stage, and all countries,
including the United States, are now aware of the consequences of letting their
greenhouse gas emissions shoot out of control. The question remains, however, as to how
to get states to come together to create effective solutions to the issue. Realists and
neorealists claim that such collaboration is not possible as long as it is not in the most
powerful states’ interests to join such a climate change regime. Liberals and neoliberals
believe that states can come together, as have European Union states, in order to combat
56
Id.
global warming. Finally, constructivists believe that as civil society constructs the global
warming agenda on the international scene norms will be created which will continue to
influence even the most powerful countries. At the beginning of this new century, the
importance of saving the environment has never been more clear. Whether the strongest
countries will continue to withhold support, whether countries will turn to cooperation, or
whether society will force environmental issues into a more prominent position remains
to be seen. By 2012, at least, those questions will begin to find their answers.