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I. Global Warming and the Kyoto Protocol

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
Peter G. G. Davies
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Extract

The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States Parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialised countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5 per cent by 2008–2012. Ambassador Raul Estrada-Oyuela, who had chaired the Committee of the Whole established by the Conference to facilitate the negotiation of a Protocol text, expressed the view that: “This agreement will have a real impact on the problem of greenhouse gas emissions. Today should be remembered as the Day of the Atmosphere.” This note seeks to outline in brief the science of climate change, and international activity to combat global warming prior to the Kyoto conference. It then attempts to analyse the terms of the Kyoto Protocol and to draw some conclusions on its significance.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 47 , Issue 2 , April 1998 , pp. 446 - 461
Copyright
Copyright © British Institute of International and Comparative Law 1998

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References

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3. Carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride.

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6. Idem, p.9. Whilst scientists disagree on the precise extent of the global temperature rise, most do agree that a rise must be expected.

7. Ibid. See generally Freestone, D., “International Law and Sea Level Rise”, in Churchill and Freestone, op. cit. supra n.1, at pp. 109–126.Google Scholar

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11. UN Doc.FCCC/CP/1996/5/Add.1, p.7.Google Scholar

12. Ibid. Methane is released from the burning of fossil fuels, and is also produced as a consequence of change in land use to e.g. rice production, and from the gastric processes of ruminants. Nitrous oxide concentrations have been increased in the main as a result of greater use of agricultural fertilisers.

13. Ibid. Hydro fluorocarbons are frequently used as refrigerants, and coolants in airconditioning Systems. Per fluorocarbons are used primarily in aluminium smelters, and sulphur hexafluoride as an insulating medium in electric circuit breakers.

14. See Oberthur, S., “The Second Conference of the Parties” (1996) 26(5) Environmental Policy and Law 146–147.Google Scholar Whilst there remains some doubt as to the precise extent of the effect of global warming on the planet, the Climate Change Convention notes that “Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”: Art.3(3). A “precautionary” approach endorses the adoption of measures to protect the environment from a potentially damaging activity prior to a causal link between such activity and subsequent damage to the environment being conclusively established. On the precautionary principle sec Freestone, D. and Hey, E. (Eds), The Precautionary Principle and International Law: The Challenges of Implementation (1995).Google Scholar

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19. Entry into force took place 90 days after the 50th instrument of ratification as specified in Art.23 of the Climate Change Convention.

20. The EC signed the treaty on 13 June 1992 and ratified on 21 Dec. 1993.

21. The UK signed on 12 June 1992 and ratified the treaty on 8 Dec. 1993.

22. The coalition is made up of those countries thought to be particularty vulnerable to the effects of global warming.

23. Despite the lack of emission targets in the treaty, the EC in its instrument of approval noted that “the Community and its Member States reaffirm the objectives set out in the [EC] Council conclusions of 29 October 1990, and in particular the objective of stabilization of CO2 emissions by 2000 at 1990 level in the Community as a whole” (See Council Decision 94/69/EC of 15 Dec. 1993 (1994) O.J. L33/11, 7 Feb.).Google Scholar

24. Art.2 of the treaty noted: “The ultimate objective of this convention and any related legal instrument that the Conference of the Parties may adopt is to achieve … stabilisation of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate System. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure food production is not threatened and to enable economie development to proceed in a sustainable manner.”

25. Art.17 of the treaty notes that the Conference of the Parties “may, at any ordinary session, adopt protocols to the convention”. The Conference of the Parties meets on an annual basis (Art.7(4)).

26. Convention on Long-Range Transboundary Air Pollution (1979) 18 I.L.M. 1442Google Scholar(LRTAP); Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at least 30 Per Cent (1988) 27 I.L.M. 707Google Scholar; Protocol concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes (1989) 28 I.L.M. 212Google Scholar; Protocol concerning the Emissions of Volatile Organic Compounds or Their Fluxes (1992) 31 I.L.M. 568Google Scholar; and Protocol on Further Reduction of Sulphur Emissions (1994) 33 I.L.M. 1540.Google ScholarSee Fraenkel, A., “Convention on Long-Range Transboundary Air Pollution: Meeting the Challenge of International Cooperation” (1989) 30 Harv.Int.L.J. 447–476Google Scholar, and Churchill, R. R., Kutting, G. and Warren, L. M., “The 1994 UN ECE Sulphur Protocol” (1995) 7(2) J.E.L. 169–197.Google Scholar

27. Vienna Convention for the Protection of the Ozone Layer (1987) 26 I.L.M. 1529 (Ozone Convention)Google Scholar; Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 I.L.M. 1550.Google Scholar See Lawrence, P. M., “International Legal Protection for Protection of the Ozone Layer” (1990) 2(1) J.E.I. 17–51Google Scholar, Barratt-Brown, E. P., “Building a Monitoring and Compliance Regime Under the Montreal Protocol” (1991) 16 Yale J.Int.L. 519–570Google Scholar, Mintz, J. E., “Progress Toward a Healthy Sky: An Assessment of the London Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer” (1991) 16 Yale J.Int.L. 571–582Google Scholar, and Downie, D. L., “Road Map or False Trail? Evaluating the Precedence of the Ozone Regime as a Model and Strategy for Global Climate Change” (1995) 7(4) International Environmental Affairs 321–345.Google Scholar See also Benedick, R., Ozone Diplomacy (1991)Google Scholar and Oberthur, S., “Montreal Protocol; 10 Years After” (1997) 27(6) Environmental Policy and Law 432–440.Google Scholar

28. Art.3 of the Climate Change Convention.

29. “The Parties should protect the climate System for the benefit of present and future generations of human kind, on the basis of equity and in accordante with their common but differentiated responsibilities and respective capacities. Accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof” (Art.3(1), empbasis added). On the perceived obligation on the present generation to take effective action to protect the global atmosphere from serious harm for the benefit of future generations sec Redgwell, C., “Intergenerational Equity and Global Warming”, in Churchill and Freestone, op. cit. supra n.1, at pp.41–56.Google Scholar

30. Preamble, Climate Change Convention. Other obligations owed by developed countries rather than by ail parties include responsibility for financing technology transfer to developing States (Art.4(3) and (5)), and to provide financal resources to enable developing States to fulfil their reporting requirements (Art.4(3)). These financial obligations apply to those States in Annex II (Annex I parties apart from the Central and Eastem European Countries).

31. Climate Change Convention, Art.4(1)a.

32. Idem, Art.4(1)b.

33. Idem, Art.4(1)e.

34. Idem, Art.4(1)g.

35. Idem, Art.4(2)a.

36. Idem, Art.4(2)b. Sands, P., Principles of International Environmental Law (1995), p.277Google Scholar, bas noted: “This is dearly something other than a provision requiring a mandatory return to a specified earlier level by a specified date.” Council Decision 94/69/EC (supra n.23) inter alia noted; “The European Economie Community and its Member States declare that the commitment to limit anthropogenic emissions set out in Article 4(2) of the Convention will be fulfilled in the Community as a whole through action by the Community and its Member States, within the respective competence of each.” The Climate Change Convention is an example of a “mixed agreement” where competence is shared between the EC and its member States and, as such, negotiation and implementation of the treaty require joint action by both the EC and the member States. No attempt was made in the decision to draw the line between the EC's and individual member States' competence. On the treaty-making competence of the EC see McGoldrick, D., International Relations ofthe EU (1997)Google Scholar, Macleod, I., Hendry, I. D. and Hyett, S., The Externat Relations of the European Communities (1996)Google Scholar, Neuwahl, N. A., “Joint Participation in International Treaties and the Exercise of Power by the EEC and its Member States; Mized Agreements” (1991) 28 C.M.L.Rev. 717–740.Google ScholarSpecifically on EC participation in environmental treaties see Nollkaemper, “The EC and International Environmental Cooperation— Legal Aspects of Externat Community Powers” (1987) 2 Legal Issues in European Integration 55–91. The Montreal Protocol (supra n.27) controla certain gases such as chlorofluorocarbons which not onty have ozone-depleting characteristics but also contribute to the greenhouse effect (footnote added).Google Scholar

37. On the Berlin Conference see Oberthur, S. and Ott, H., “The First Conference of the Parties” (1995) 25(4)(5) Environmental Policy and Law 144–156Google Scholar, and Morgan, J. L. (1995) 6 Y.B.Int.Env.J. 225–230.Google Scholar

38. Oberthur and Ott, idem, p.145.

39. Ibid. See further on such opposition infra nn.83–86 and accompanying text

40. Decision 1/CP.1 (UN Doc.FCCC/CP/1995/7/Add.1).

41. Idem, para.1(e).

42. Idem, para.2(b).

43. Idem, para.6.

44. The Second Conference of the Parties was held in Geneva from 8–19 July 1996. A draft protocol had not been drawn up at this stage, and debate underlined the lack of consensus on the approach to be taken in any such protocol. In particular the US argued that new commitments by developing countries were required which the Group of 77 representing developing States strongly opposed. There was also no agreement on whether a timetable for emissions reductions should be adopted under the process or whether an overall objective was all that was required. See generally Oberthur, , op. cit. supra n.14, at pp.197–198.Google Scholar

45. See the Report of the Eighth Meeting of the AGBM, UN Doc.FCCC/AGBM/1997/8.Google Scholar

46. See infra nn.80–82 and 87–96 with accompanying text.

47. See infra nn.97–100 and accompanying text.

48. Sec infra nn.59–71 and accompanying text.

49. Kyoto Protocol, Art.2(1)(a)i.

50. Idem, Art.2(1)(a)ii. Trees and plants are examples of carbon “sinks”, and the oceans of carbon “reservoirs”. The process of photosynthesis in trees and plants removes carbon from the atmosphere. The oceans are a store of carbon.

51. Ibid.

52. Idem, Art.2(1)(a)iii.

53. Idem, Art.2(1)(a)iv.

54. Idem, Art.2(1)(a)vii.

55. Idem, Art.2(1)b.

56. Idem, Art.2(3).

57. See Art.4(1) and (2)a of the Climate Change Convention.

58. Bodansky, , op. cit. supra n.1, at p.509.Google Scholar

59. If all targets are met the actual reduction will amount to 5.2%. Countries in Annex I “undergoing the process of transition to a market economy” (Central and Eastern European States) may use a base year other than 1990 if already agreed by the Conference of Parties to the Convention, or subsequently agreed by the Conference of the Parties to the Protocol. In 1996 the Conference of the Parties agreed that e.g. Remania may use 1989 and Poland 1988 as their respective base years (UN Doc.FCCC/CP/1996/L.13). Such flexibility is envisaged under Art.4(6) of the Convention bearing in mind particular economie and social difficultes experienced in these countries. The Protocol specifically allows for a certain degree of further flexibility to such States in the implementation of their commitments (Art.3(6)).

60. Art.3(3) and (7) of the Protocol. Any increase in emissions due to deforestation since 1990 will also be taken into account in the equation.

61. The gases are noted in Annex A to the Protocol (also noted supra n.3). Any developed country may use 1995 as its base year for hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride if they wish (Art.3(8)).

62. E.g. Australia may increase emissions by 8% and Norway by 1%. Each of the industrialised countries' targets is noted in Annex B to the Protocol.

63. The Protocol will enter into force 90 days after “not less than 55 Parties to the [Climate Change] Convention, incorporating Parties induded in Annex 1 which accounted in total for at least 55% of the total carbon dioxide emissions for 1990 of the Parties induded in Annex I” have ratified (Art.24 of the Protocol).

64. Idem, Art.7(1). The Secretariat is located in Bonn, Germany. Its postal address is PO Box 260 124, D–53153, Bonn, Germany.

65. Idem, Art.8(1).

66. Idem, Art.8(5). When the Conference of the Parties meets as the meeting of Parties to the Protocol, those States that are paity to the Convention but not to the Protocol may participate but only as non-voting observers (idem, Art.13(1) and (2)). Parties to the Protocol will meet annually (Art.13(6)) to review the implementation of the Protocol (Art.13(4)).

67. Idem, Art.8(6). On the future introduction of a non-compliance System see infra nn.101–102 and accompanying text.

68. The Conference of the Parties to the Protocol will be held annually as soon as the Protocol has entered into force. It will be convened in conjunction with the Conference of the Parties to the Convention (Art.13(6)).

69. Art.9(2).

70. Ibid.

71. Art.3(9) of the Protocol.

72. Idem, Art.4(1) and (2).

73. Idem, Art.4(1). If State A and State B failed to meet their joint target level of emisnons, each State would be legally responsible for its own emission levels as established in the joint agreement (Art.4(5)).

74. Department of the Environment, Press Release, 18 12 1997.Google Scholar The UK government bas reaffirmed its election manifesto commitment to a 20% eut in carbon dioxide emissions (see ENDS Report No.266 (1997), p.4)Google Scholar to be delivered by “greater energy effciency, renewable forms of power generation and an integrated transport poticy” (Department of Environment, Press Release, 11 12 1997).Google Scholar The government's ability to bring about this level of reduction has been questioned; see Socialist Environment and Resources Association, Policies to Reduce UK Carbon Dioxide Emissions by 20% (1997)Google Scholar and ENDS Report No.269 (1997), p.6.Google ScholarSee also Independent, 1 10 1997, p.11.Google Scholar It is anticipated that the UK govemment will adopt a revised dimate change strategy in 1998 to take account of the commitments undertaken at Kyoto.

75. Art.4(2) of the Protocol.

76. Idem, Art.4(6).

77. See ENDS Report No.266 (1997), pp.47–48.Google Scholar

78. European Commission Press Release IP/97/1106, 11 12. 1997.Google Scholar

79. See European Commission, “Climate Change—The EC Approach for Kyoto” issued on 1 10 1997Google Scholar; see also Commission Press Release IP/97/829, 1 10 1997.Google Scholar Carbon dioxide accounts for almost 80% of EC greenhouse gas emissions. The EC indicated in 1995 that its carbon dioxide emissions “could grow overall between 5 and 8 per cent in the remaining years of this decade [compared to 1990 levels]” if appropriate action was not taken; see UN Doc.FCCC/CP/1995/Inf.4/Corr.1. See also Independent, 20 05 1996, p.6Google Scholar on the EC's inability to date to reduce carbon dioxide emissions. The EC's climate change strategy post-UNCED bas been severely undermined by its failure to adopt an EC-wide carbon tax. This failure was due mainly to the reluctance of the UK to agree to the imposition of any type of EC-wide environmental taxation. The European Commission bas subsequenthly encouraged member States to take their own domestic action to introduce carbon taxes; see ENDS Report No.244 (1995), p.39.Google Scholar The carbon tax was the linchpin of the Community's strategy post-UNCED; see Europeen Commission, “A Community Strategy to Limit Carbon Dioxide Emissions and to Improve Energy Efficiency” COM(92)246 final, 1 06 1992. Other aspects of the strategy include the ALTENER programme to promote the development of renewable energy sources, the establishing of a carbon dioxide monitoring System, and SAVE (Specifie Action for Vigorous Energy Efficiency).Google Scholar

80. Art.6 of the Protocol. On joint implementation see Kuik, O., Peters, P. and Schrijver, N., Joint Implementation to Curb Climate Change (1994).Google Scholar

81. Idem, Art.6(1)d.

82. Idem, Art.6(2).

83. Art.4(1) of the Climate Change Convention; see supra nn.31–34 and accompanying text.

84. Idem, Art.4(1)c and (5); Art.10(c) of the Protocol Pursuant to a decision at the First Conference of the Parties (UN Doc.FCCC/CP/1995/7/Add.1) the issue of technology transfer will be reviewed at each subsequent Conference of the Parties. The Second Conference of the Parties requested the Secretariat to establish a round table on transfer of technology, which met at Kyoto on 9 Dec. 1997. It underiined the important role of the private sector, which largely owns the intellectual property in environmentally sound technology. It also underlined the importance of multinational funding agencies (Global Environmental Facility, the International Finance Corporation and the World Bank) in “avoiding the failure of technology transfer projects” due to “high incremental costs”; see UN Doc.FCCC/CP/1997/CRP.5, p.3.Google Scholar Art.4(5) of the Climate Change Convention places an obligation on Annex II States (Annex I parties apart from those Central and Eastern European States undergoing transition to a market economy) to finance the transfer of technology to developing countries.

85. Earth Negotiations Bulletin (13 12. 1997), Vol. 12, No.76, p.10.Google Scholar Art.11 of the diinate Change Convention provides for a financial mechanism. The Global Environmental Facility operates this mechanism on an interim basis under a Memorandum of Understanding with the Conference of the Parties; see UN Doc.FCCC/CP/1996/9. The Facility bas provided for the transfer of technology in projects such as an “efficient industrial boilers project in China, the solar thermal-electric project in India, and the renewable energy small power project in Indonesie”; see UN Doc.FCCC/CP/1996/8. The Protocol reaffirms Annex II States' commitment to funding such technology transfer and the cost incurred by developing countries in providing updated national inventories of greenhouse gases ( Art.11 of the Protocol).

86. See Earth Negotiations Bulletin, idem, pp.34–35.

87. On this type of joint implementation see Parikh, J. K., “Joint Implementation and North–South Cooperation for Climate Change” (1995) 7(1) International Environmental Affaire 22–41.Google Scholar

88. Art.12(3)of the Protocol.

89. Idem, Art.12(9).

90. Earth Negotiations Bulletin, supra n.85, at p.13.Google Scholar

91. See Goldman, T. and Hajost, S. A. (1993) 3 Y.B.I.L. 143.Google Scholar

92. Art.2(3)b of the Protocol.

93. Idem, Art.8.

94. Idem, Arts.12(10) and 3(12).

95. Decision 5/CP.1 in UN Doc.FCCC/CP/1995/7/Add.1. By June 1996 the Secretariat had received notification of 13 ongoing projects and 17 planned projects under the pilot phase; see UN Doc.FCCC/CP/1996/14/p.5.Google Scholar

96. Art.12(7) of the Protocol.

97. Idem, Art.16bis notes: “The Parties included in Annex B may participate in emissions trading for the purposes of fulfilling their commitment under Article 3 of the Protocol”

98. Idem, Art.3(10).

99. See United Nations, Controlling Carbon Dioxide Emissions: the Tradeable Permit System (1995), p.17Google Scholar, which indicates such purchasing and selling of permits “is the basis on which any international commodity market works. Those who have more than tbey want sell to those with deficits, at a profit.” On tradeable permits see also Bohm, P., An Analytical Approach to Evaluating the National Net Costs of a Global System of Tradeable Carbon Emission Entitlements: With Special Emphasis on the Effects on Different Country Categories (1994).Google Scholar

100. Earth Negotiations Bulletin, supra n.85, at pp.15–17.Google Scholar

101. Art.17 of the Protocol.

102. Idem, Art.19. Any amendment to the Protocol will be made by consensus if at all possible. If no consensus is reached, it will be adopted “by a three-fourths majority vote of the Parties present and voting at the meeting” (Art.19(3)). The amendaient will become binding on tbose parties which deposit instruments of acceptance “on the ninetieth day after the date of receipt by the Depositary of an instrument of acceptance by at least three-fourths of the Parties to this Protocol.”; Art.19(4). The Depositary of the Protocol is the UN Secretary-Generat Art.22. On the issue of non-compliance, see Heister, J., Mohr, E., Stahler, F., Stoll, P. and Wolfrum, R., “Strategies to Enforce Compilance with an International Carbon Dioxide Treaty” (1997) 9(1) International Environmental Affairs 22–53.Google Scholar At Kyoto the US proposed a System which would penalise a State exceeding its initial emission targets by reducing any subsequent emissions quota for that country by the amount it had over-emitted in the initial commitment period: see Earth Negotiations Bulletin, supra n.85, at pp.31–32.Google Scholar

103. Europeen Commission, op. cit. supra n.78.Google Scholar

104. The US is responsible for approximately 23% of global emissions. By contrast Japan is responsible for 5%, Germany for almost 4% and the UK for 3%; see Independent, 7 06 1997, p.8.Google Scholar

105. European Commission, op. cit. supra n.79, at p.22.Google Scholar