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Ullal, Nikhil R --- "A successor for the Kyoto Protocol - challenges and options" [2013] NZJlEnvLaw 4; (2013) 17 NZJEL 81

Last Updated: 19 January 2023


A Successor for the Kyoto Protocol — Challenges and Options

Nikhil R Ullal*

This article seeks to determine the challenges and options associated with a post-Kyoto Protocol regime. Following the introduction, part two of the article sets out its focus, while also providing a brief overview of the material to be covered. Part three investigates the events that led to the landmark Conference of the Parties, in Kyoto in 1997, which successfully negotiated the terms of the Kyoto Protocol. In doing so, it covers the history of global warming, as well as the political changes that led to the formation of the United Nations Framework Convention on Climate Change at the Earth Summit in Rio de Janeiro in 1992. Part four covers the details of the Kyoto Protocol, including the terms of the agreement. It analyses the effectiveness and shortcomings of the first commitment period between 2008 and 2012; analyses the events leading up to an adoption of a second commitment period between 2013 and 2020; and finally predicts the likely effectiveness of this second commitment period. Part five covers the challenges and options that a future climate change regime replacing the Kyoto Protocol must overcome, focusing particularly on the distinction between industrialised and developing countries and the fundamental change in attitude required in relation to global warming and climate change. Part six outlines potential climate change replacement regimes that fall into the two main categories of treaty and non-treaty solutions. The

*The author is completing an LLM at the University of Auckland, having graduated from the University of Otago with an LLB and BCom (Marketing Management) in 2012. This article was written for the LLM subject of International Environmental Law at the University of Auckland in 2013. The author was admitted to the bar as a Barrister and Solicitor of the High Court of New Zealand in 2013 and currently works for McCaw Lewis Lawyers in Hamilton: nikhil. He would like to thank Professor Klaus Bosselmann for his teaching, guidance, and encouragement in his research.

article concludes with a recommendation that a combination of non- legal solutions that envisage the implementation of environmentally friendly policies at local and regional levels be adopted, before progressing to a national and then finally international political sphere. Also discussed is the need for the creation of a global climate change authority that can act as a form of trusteeship over the environment, protecting it for the benefit of future generations.


Currently one and a half planets are needed to sustain the human ecological footprint. Back in 1987 one planet was just enough to sustain us all. A point in history has been reached where humanity has swamped the planet so much that entirely new sets of questions must be raised. For example, irrespective of what has gone before, humans are now responsible for all ways of life. Humanity must make conscious day­to­day decisions, at the core of which are serious considerations of the limitations of the planet.

In a 2008 article entitled “Target Atmospheric CO2: Where Should Humanity Aim?” Jim Hansen and others promoted the idea that greater than 350 parts of carbon per million in our atmosphere is not compatible with life on earth.1 As of 2013 this mark has been well and truly overtaken, with current use of 395 parts of carbon per million, a figure that is rising at two parts per million every year. In the past 30 years, the earth’s atmosphere has become 5 per cent wetter, its oceans 30 per cent more acidic, and the polar ice caps have reduced by half.

In light of these continuous environmental effects, and the expiry of the first commitment period of the Kyoto Protocol at the end of 2012, it is increasingly evident that a replacement regime needs to be implemented. Indeed, at recent Conference of the Parties meetings under the United Nations Framework Convention on Climate Change (UNFCCC) it was agreed that such a regime should be ready for adoption by 2015 and implementation by 2020.

This article analyses the challenges and options associated with a post­ Kyoto Protocol regime and predicts a possible replacement for the Kyoto Protocol that could be adopted in 2015.

1 J Hansen and others “Target Atmospheric CO2: Where Should Humanity Aim?” (2008) 2 The Open Atmospheric Science Journal 217–231.


2.1 History and Origins

Humanity is conducting an unintentional, uncontrolled, globally pervasive experiment, whose ultimate consequences could be second only to a global nuclear war ... it is imperative to act now!2

Historians agree that the transition of human people from hunter­gatherers to farmers 11,000 years ago signalled the beginning of our current environmental problem.3 Following this agricultural revolution, humans no longer fed themselves directly from the environment but rather began to interfere with the environmental system by viewing it as a commodity, cutting down forests to build houses, fences and tools. Ultimately, this would spark the next major development, the Industrial Revolution, in the late 18th to early 19th century, which witnessed intensive harvesting of the earth’s natural resources for agriculture and fossil fuels. As a result, humankind experienced a population explosion that saw citizenship of the earth grow tenfold in a little over 200 years, with an increase in average energy consumption by a factor of twenty. Needless to say, this careless harvesting of the earth’s resources has seen its stock as an environmental commodity dwindle quickly.4

In 1896 Swedish chemist Svante Arrhenius became the first man to describe the greenhouse effect as the phenomenon caused by the sun’s radiation being reflected back off the earth’s surface and trapped by greenhouse gases (GHGs) in the earth’s atmosphere. In its natural occurrence, this effect increases the earth’s surface temperature to a global mean of 15°C. It is this effect that is in part to be thanked for the earth’s ability to sustain life and, when naturally occurring, causes no harm to the planet.5 However, it is the additional human­ induced greenhouse effect that has led to the dire situation encountered today, which has become universally known as global warming.

Climate change through global warming is the most serious environmental threat humankind has faced. It is not a myth but a reality and our response to this threat will determine the future of our planet. James Estapa, a Professor of Public International Law at the University of Barcelona, has described it as a problem that “spreads out beyond the national frontiers and affects unevenly

2 Statement from the World Conference on the Changing Atmosphere (Toronto, June 1988). 3 K Bosselmann When Two Worlds Collide: Society and Ecology (RSVP, Auckland, 1995)

at 34.

4 At 34.

5 J Oberthür and EH Ott The Kyoto Protocol: International Climate Policy for the 21st Century (Springer­Verlag, Berlin, 1999) at 1.

both countries and populations, without any consideration to the degree of their respective historical responsibility in building it up”.6

GHGs are described as natural and anthropogenically occurring atmospheric gases that have the ability to absorb and re­emit infrared radiation.7 The three main gases that are recognised as GHGs are carbon dioxide, nitrous oxide and methane; however, compounds such as tropospheric ozone and halocarbons are also considered to be GHGs.8 It is widely agreed that the naturally occurring greenhouse effect is being impacted by the continual build­up of these GHGs in our atmosphere and that this increase is caused by human­induced activities. Through the continuous burning of fossil fuels in energy generation, as well as deforestation, humans have released more than acceptable levels of carbon dioxide into the atmosphere. Furthermore, through agricultural activities, changes in land use and other resources, methane and nitrous oxide are also being released at greater than acceptable levels. Because of GHGs’ ability to trap heat, their increased presence in the atmosphere has altered the natural working of the greenhouse effect and caused an additional human­induced greenhouse effect, which has led to the global warming phenomenon.9 This increase in temperature has other widespread effects, such as increased evaporation leading to greater global precipitation and more frequent storms, as well as melting of the polar ice caps, which has led to an increase of four to 10 inches in sea level over the past century. This figure is likely to continue to rise.10 Clearly, something must be done to curb the impact of global warming.

It is thought that since the late 19th century the average temperature on the earth’s surface has increased by approximately 0.5°C. Most environmental scholars agree that any temperature increase above 2°C is too much; however, current predictions suggest that by 2100 the earth’s surface temperature could have risen by anywhere from 3.5 to 6°C.11 Put simply, we cannot sustain our current consumption of fossil fuels and GHG­emitting activities if we want to guarantee the future of the next generation.

Despite these widespread and noticeable effects, global warming and the associated climate change effects did not become a serious political issue until

  1. JS Estapa “Flexibility Mechanisms in the Kyoto Protocol: Constitutive Elements and Challenges Ahead” (2004) 34 Revue Générale de Droit 107 at 109.
  2. United Nations Framework Convention on Climate Change, art 1.5.
  3. RA Rinkema “Environmental Agreements, Non­State Actors, and the Kyoto Protocol: A ‘Third Way’ for International Climate Action?” (2003) 24 University of Pennsylvania Journal of International Law 729 at 733.
  4. Oberthür and Ott, above note 5, at 3.
  5. AL Arcas “Kyoto Protocol: An Adequate Agreement?” (2001) European Environmental Law Review 282 at 283.
    1. Oberthür and Ott, above note 5, at 4.

the 1970s12 when the protection and preservation of the natural environment and its resources became a prevalent concern and began gaining global recognition. This culminated in 1972 with the United Nations­organised United Nations Conference on the Human Environment in Stockholm, which set out a “need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment”.13 Although not resulting in any legally binding obligations, Stockholm was important for the creation of the United Nations Environment Programme (UNEP) whose mission was “to provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations”.14

With international concern for the effects of global warming and climate change rising, two United Nations organisations, UNEP and the World Meteorological Organization (WMO), established the Intergovernmental Panel on Climate Change (IPCC) in 1988, whose function was to conduct research on the climate change phenomenon.15 In its first report, two years later, the IPCC called for an international treaty to recognise the problem.16

These events set the tone for the landmark United Nations Conference on Environment and Development (UNCED) held from 3 to 14 June 1992 in Rio de Janeiro, which has since become informally known as the Earth Summit. This led to the formation of the UNFCCC, which entered into force in 1994.

2.2 The UNFCCC

The UNFCCC was adopted on 9 May 1992, in New York, after 15 months of negotiations over five separate sessions. At the Earth Summit in Rio in June 1992 the UNFCCC was opened for signature and within a year 165 countries

  1. G Kahn “The Fate of the Kyoto Protocol under the Bush Administration” (2003) 21 Berkeley Journal of International Law 548 at 549.
  2. United Nations Environment Program 1972 in E Pellander “United Nations Overview of Conventions and Agreements” in K Bosselmann, DS Fogel and JB Ruhl (eds) Berkshire Encyclopedia of Sustainability: The Law of Politics and Sustainability (Berkshire, Massachusetts, 2011) at 474.
  3. United Nations Environment Program 2010 in E Pellander “United Nations Overview of Conventions and Agreements” in K Bosselmann, DS Fogel and JB Ruhl (eds) Berkshire Encyclopedia of Sustainability: The Law of Politics and Sustainability (Berkshire, Massachusetts, 2011) at 474.
  4. Kahn, above note 12, at 549.
  5. United Nations Framework Climate Change Convention, Climate Change Information Kit, Information Sheet 17 (July 2002) < publications_htmlpdf/climate_change_information_kit/items/300.php> in Rinkema, above note 8, at 735.

and the European Community17 had signed it and become parties to its terms.18 With its fiftieth ratification the UNFCCC entered into force on 21 March 1994.19 As a result of its near universal acceptance the UNFCCC is seen as the basis for international politics on climate change; however, the price paid for this acceptance was the loss of “hard” legally binding reduction targets, as a “soft” approach compromised its semblance of universal acceptance within the international community (meaning that commitments agreed to under its structure were not legally binding).20 However, despite this concession, the significance of the UNFCCC cannot be overlooked as it finally provided a hard objective in the fight against global warming, as well as providing the basic principles and obligations and establishing procedures and institutions that would come to provide the framework for future political and diplomatic action in the fight against this phenomenon.21 The three main principles embodied in the UNFCCC were: sustainable development (development that takes into account the needs of the current generation without compromising those of future generations); the precautionary principle (which implies an obligation on states to take action even where the science is uncertain if irreversible damage could be caused);22 and common but differentiated responsibilities (which takes into account the differing stages of development of a country in setting obligations for them to meet).23 Related to this common but differentiated responsibilities idea was the significant emphasis placed on the role of industrialised countries by the UNFCCC in curbing climate change and taking leadership in addressing the matter.24 This assumption was primarily based on the premise that industrialised countries should hold the greatest accountability for the global warming phenomenon, as they were the largest GHG emitters and

had contributed most to the problem.25

  1. The European Community was comprised of three international organisations — the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community — which shared the same set of governing institutions (those of the European Economic Community), which would become known as the European Union in 1993 following the Maastricht Treaty.
  2. Oberthür and Ott, above note 5, at 33.

19 At 33.

20 At 33.

21 At 33.

  1. Arcas, above note 10, at 284.
  2. D Williams, “Rethinking the Kyoto Protocol: Are there Legal Solutions to Global Warming and Climate Change?” (2006) 5 Washington University Global Studies Law Review 333 at 336.
  3. Kahn, above note 12, at 549.
  4. M Coghlan “Prospects and Pitfalls of the Kyoto Protocol to the United Nations Framework Convention on Climate Change” [2002] MelbJlIntLaw 7; (2002) 3 Melbourne Journal of International Law 165 at 166.

Historically, and up until the 1980s, direct regulation had been favoured as the main global response to climate change. This approach involved the imposition of a rule that would specifically prescribe how an entity was to act in mitigating their global warming contribution. However, the UNFCCC and subsequent Kyoto Protocol sparked a change in how a climate change response was formulated with the creation of a market­based regulation system, allowing for greater flexibility and cost efficiency in mitigating climate change effects.26 According to art 1.2 of the UNFCCC, climate change is defined as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to

natural climate variability observed over comparable time periods”.27

While no specific reduction targets in GHG emissions were set by the UNFCCC, its ultimate objective as set out in art 2 was to achieve “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic concentrations’ interference with the climate system. Such a level should be achieved in a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”28 While the broad nature of the wording allows for varying interpretations, it is important to recognise its acknowledgement of a “need for adaptation to and mitigation of climate change”.29 However, the UNFCCC has been criticised for its lack of legally binding targets and it has been suggested that its absence of “hard” substance has rendered the UNFCCC ineffective in stimulating change.30

A key aspect of the UNFCCC was its division of countries into three main classifications (with some overlap between different classifications). Annex I parties included 41 countries that were made up of industrialised countries and those countries with economies in transition, such as Eastern European countries. Annex I parties were under obligations to reduce their GHG emissions as well as to create and maintain “sinks” or natural reservoirs31

  1. S Blustein “From the Bottom­Up: Redesigning the International Legal Response to Anthropogenic Climate Change” (2011) 32 Adelaide Law Review 305 at 309.
  2. United Nations Framework Convention on Climate Change, art 1.2 in Arcas, above note 10, at 282.
  3. United Nations Framework Convention on Climate Change, art 2 in BJ Richardson “Legislation and Treaty Notes: Kyoto Protocol to the United Nations Framework Convention on Climate Change” (1998) 2 NZJEL 249 at 249.
  4. Oberthür and Ott, above note 5, at 34.
  5. Coghlan, above note 25, at 167.
  6. Carbon sinks are natural/artificial reservoirs that can store carbon compounds for indefinite periods of time preventing carbon dioxide being released into the atmosphere. They are a key part of the carbon sequestration process which helps remove carbon dioxide from the atmosphere.

for GHGs. Countries belonging to Annex II were an overlap of 24 Annex I parties who were wealthy members of the Organisation for Economic Co­ operation and Development. Annex II countries had obligations to provide financial and technical support to developing countries, helping them reduce their emissions.32 Finally, Non­Annex I countries consisted of the remainder of UNFCCC parties who were predominantly countries of the developing world and recipients of the aid provided by Annex II countries. This division also came to serve as the basis for fundamental obligations under the Kyoto Protocol.33

This distinction is reflected in the difficult nature of the negotiations that took place in the lead­up to the adoption of the UNFCCC, which were severely hindered by disagreement between developing and industrialised countries with respect to their varying obligations and responsibilities. The developing countries’ principal argument was that blame for climate change should rest solely with industrialised countries, since global warming was a direct result of their polluting activities, and only they had the financial and technological capabilities to mitigate the problem.34 This dialogue resulted in an inability to agree to precise reduction commitments. Therefore the UNFCCC parties opted to follow a similar model to that implemented by the Montreal Protocol on Substances that Deplete the Ozone Layer, which led to the adoption of the framework convention style, which allows for the adoption of subsequent protocols containing hard obligations.35

To resolve the conflict, the “common but differentiated responsibilities” principle was adopted whereby industrialised countries take the lead in combating climate change. Consequently, Annex I countries were required under art 4(2)(a) to adopt national policies and measures to limit anthropogenic emissions of GHGs and protect and enhance greenhouse sinks with an aim under art 4(2)(b) of returning anthropogenic emission output to 1990 levels by the year 2000.36 However, as time progressed, the need for an agreement that was stronger than the UNFCCC became evident, with most industrialised countries failing to realise their voluntary emission reduction targets, and some even increasing their emission levels during the voluntary period.37

Under art 7 of the UNFCCC the annual Conference of the Parties (COP) initiative was set up, which became the ultimate decision­making body of the

  1. Estapa, above note 6, at 111.
  2. Rinkema, above note 8, at 736.
  3. BJ Richardson “Legislation and Treaty Notes: Kyoto Protocol to the United Nations Framework Convention on Climate Change” (1998) 2 NZJEL 249 at 250.

35 At 250.

36 At 250.

37 K Sheeran “Beyond Kyoto: North­South Implications of Emissions Trading and Taxes” (2006– 2007) 5 Seattle Journal for Social Justice 697 at 702.

regime. Its annual meetings involved negotiations that eventually led to the emergence of the Kyoto Protocol at COP 338 in Kyoto in 1997.39 The aim of the COP was to quantify legally binding emission reduction commitments.40 At COP 1 in Berlin in 1995 the commitments set out in art 4 of the UNFCCC were recognised as being inadequate to achieve its ultimate objective and there was a general consensus that quantified reduction targets within specified timeframes must be implemented for real change to be realised. COP 1 also recognised the need to update existing international law, as the UNFCCC did not accommodate any provisions relating to GHG emissions post­2000. Although negotiations for a supplementary protocol did not occur in Berlin, the parties agreed to initiate a revision process of the UNFCCC, which subsequently became known as the Berlin Mandate. The Berlin Mandate was recognition of the urgent need to achieve further commitments addressing climate change. As a result, the Ad Hoc Group on the Berlin Mandate was established, with the hope of negotiating a new legal instrument, ready for adoption at COP 3.41


3.1 The Third Conference of the Parties

At COP 3 in Kyoto in 1997, the treaty embodied in the Kyoto Protocol was produced. This document was the result of an unprecedented negotiation process within the international community to address a serious international issue. The negotiations, however, were not the product of the mere 12­day gathering in Kyoto but rather the culmination of efforts ongoing since the UNFCCC was first convened at the 1992 Earth Summit. The Kyoto Protocol saw foreign heads of state, leaders, ministers and organisations elevate the issue of climate change into the political stratosphere where it could finally get the attention it deserved.42 It aimed to impose legally binding obligations on parties to meet set emission reduction targets, and also provide a more effective framework for implementing and monitoring emission reductions that were made.43 In adopting the Kyoto Protocol the participants recognised that greater steps needed to be taken to stabilise GHG emissions than were taken in the UNFCCC and that there was a need for legally binding commitments.

  1. The number indicates which number conference it was, so COP 3 means the third Conference of the Parties.
  2. Oberthür and Ott, above note 5, at 38.
  3. Coghlan, above note 25, at 167.
  4. Richardson, above note 34, at 251.
  5. Oberthür and Ott, above note 5, at 1.
  6. Richardson, above note 34, at 249.

Very few countries were engaged in legitimate efforts to reduce emissions following the voluntary reduction targets implemented by the UNFCCC, which was a dominating reason in making legally binding obligations a part of the Kyoto Protocol.44 The Kyoto Protocol was thus a stronger document than the UNFCCC in two senses: first, it was legally binding; and second, it displayed greater ambition by attempting a reduction from 1990 levels rather than just matching them.45

The main players in the Kyoto negotiations were the governments of participating countries as these were the only bodies capable of committing their respective countries to such a document. However, while environmental issues were at the forefront of the negotiations, each country’s own perceived and real interests were also factors in the negotiating process, leading to a fractured and by no means universal consensus.46 This was always going to be the case when over 170 countries and hundreds of non­governmental and inter­governmental organisations were involved in a process that hoped to satisfy all parties’ interests in one document.47 While non­governmental and inter­governmental organisations were not physically involved in the negotiation process that led to the Kyoto Protocol, they remained extremely influential through their ability to provide information and advice, make policy recommendations, and provide an outlet for direct lobbying.48 Furthermore, involved in the negotiation process were international bodies such as UNEP, the United Nations Development Programme, the World Bank, the World Meteorological Organization, and several others, who provided background information and additional advice through their expertise in relevant fields.49

In following the UNFCCC framework the Kyoto Protocol also differentiated between countries. Annex I countries consisted of 39 industrialised countries and countries with economies in transition, while Non­Annex I countries comprised developing countries. Annex I countries accounted for over two­ thirds of global carbon emissions and, as a result, had binding reduction commitments to meet under the Kyoto Protocol, while Non­Annex I countries had no binding commitments.50

The Kyoto Protocol came into force on 16 February 2005 in accordance with art 24, 90 days after the ratification of 55 parties to the UNFCCC, which had to incorporate Annex I parties accounting for at least 55 per cent of the

  1. E Claussen “Book Review: Carping at Kyoto” (2002– 2003) 34 The George Washington International Law Review 247 at 248.
  2. Arcas, above note 10, at 285.
  3. Oberthür and Ott, above note 5, at 13.

47 At 13.

48 At 29.

49 At 29.

50 Sheeran, above note 37, at 703.

total carbon dioxide emissions of Annex I parties in 1990. As it stands today, the Kyoto Protocol has 191 parties.51

The main objective of the Kyoto Protocol is set out in art 3 and provides that Annex I countries “shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions” of certain GHGs “do not exceed their assigned amounts”. The overall goal was the achievement of GHG emission reduction in Annex I countries by at least 5 per cent below their 1990 levels during the first commitment period of 2008 to 2012.52 This equated to average emission reductions of 5.2 per cent from 1990 emission levels.53 Many scholars have since pointed out the practicalities associated with a 5 per cent reduction in that emission levels are bound to increase during the first commitment period and therefore the actual reduction target is significantly greater than 5 per cent.54 Non­Annex I countries are developing countries such as China, India and Brazil; these were not given any binding commitments to reduce their emissions by specific targets.55

The GHG emission reduction targets cover six gases, which are set out in Annex A and are carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. This is significant as the recognition of these GHG emissions means that the Kyoto Protocol covers all those gases that were not included in the Montreal Protocol on Substances that Deplete the Ozone Layer (1987). In calculating reduction targets, gases are combined on a carbon dioxide equivalent basis and then averaged over the first commitment period of 2008 to 2012, before being compared with the 1990 base figure. Countries are able to choose reductions in whatever gas or gas combination they choose, so long as they meet their reduction targets.

The Kyoto Protocol is one of the most important global agreements of the latter 20th century since it recognises the international environmental problem that citizens of planet earth are currently facing, and also because it proposes possible methods of reducing GHGs through three separate mechanisms: joint implementation, emissions trading, and clean development mechanism (CDM). These mechanisms truly contribute to a global solution by allowing industrialised countries to meet their emission targets under the Kyoto Protocol through their domestic actions, as well as through international involvement with projects abroad in developing countries. The three mechanisms operate on a basis that allows industrialised countries to meet their reduction targets under

51 At 706.

52 At 703.

53 Arcas, above note 10, at 286.

54 At 287.

55 T Hill “UN Climate Change Conference in Durban: Outcomes and Future of the Kyoto Protocol” (2011) 7 Macquarie Journal of International & Comparative Environmental Law 92 at 92.

the Kyoto Protocol by investing in clean projects of their choice in developing countries and gaining emission credits. Because these mechanisms allow for the trading of such credits, they are often referred to as “market mechanisms”.56 Joint implementation is facilitated under art 6 of the Kyoto Protocol and functions on a basis whereby two industrialised countries are able to finance emission reduction or “clean” projects, with any subsequent emission credits

generated from the project being divided between them.57

Under emissions trading (art 17), industrialised countries that have either met or exceeded their emission reduction targets under the Kyoto Protocol are able to sell excess emissions to countries that are finding it more difficult to meet their own reduction targets, thereby offering incentive to perform better under the Kyoto Protocol.58 Therefore, both joint implementation and emissions trading allow for combined efforts by two or more industrialised countries.

The CDM, established in art 12, is the only mechanism allowing developing countries to be involved in reducing emissions. It allows industrialised countries to invest in projects that reduce emissions in developing countries and was designed to allow both industrialised and developing countries to benefit from such a mechanism by promoting sustainable development within developing countries and by allowing industrialised countries to reach their emission reduction targets more economically.59

3.2 The Effectiveness of the First Commitment Period and the Short- comings of the Kyoto Protocol

The Kyoto Protocol has failed to identify and address the fact that our civili­ sation is built on oil, a finite resource. Our dependence on oil affects all areas of life, from transport, food and agriculture, to health and medicine, technology to military security.60 Some estimates predict an increase in energy consumption of 71 per cent during the period 2003 to 2030 with oil usage growing from 80 million to 98 million barrels per day. Clearly, there is no way that the oil resources on this planet can continue to sustain this way of life. We are facing the peaking, diminishing and eventual scarcity of this natural resource, and yet the Kyoto Protocol does nothing to address this fact. Increasing demands for oil will at some point exhaust our supply. There is a fundamental need for

56 DS Olawuyi “From Kyoto to Copenhagen: Rethinking the Place of Flexible Mechanisms in the Kyoto Protocol’s post 2012 Commitment Period” (2010) 6 Law, Environment and Development Journal 21 at 24.

57 At 24.

58 At 24.

59 At 24.

60 JK Setear “Collapse: Can International Law Protect the Earth’s Natural Resources?” (2007) 101 American Society of International Law in Proceedings 171 at 178.

a substitute for oil, a need that should stimulate a wider search for alternative, renewable forms of energy, thereby helping reduce the effect of global warming.61 Switching the focus from reducing emissions to finding alternative sources of energy, and making the problem of the dwindling supply of fossil fuels more clear and prominent, will hopefully compel greater commitment to action in this regard.

Blustein’s stance is apposite here, since it is his belief that the Kyoto Protocol “offers the wrong diagnosis” to climate change since, in dealing with GHG emissions, it deals with the symptoms of climate change, rather than the cause — namely, those activities that cause GHG emissions.62 Climate change results from activities producing GHG emissions and therefore surely it follows that any response to the problem must deal with the activities rather than concern itself with the outcome? If this is the case, and we concern ourselves with the outcome alone, then we will be forever chasing a solution that is just out of reach, as emissions will continue, irrespective of any regime. Because of this misguided focus on outcomes, the Kyoto Protocol is ineffective in shifting the planet’s energy source toward renewable power over fossil fuel energy.

A major criticism of the Kyoto Protocol is the distinction it makes between industrialised and developing countries and its prioritisation of equity for developing countries at the expense of an effective climate change regime.63 This becomes especially problematic for the Kyoto Protocol’s first commitment period’s effectiveness as well as for its second commitment period, given the predicted increase in developing countries’ emissions in the near future.64 For example, between 1990 and 1998, India, despite being considered a developing country, had a 57 per cent increase in emissions and is now the world’s fifth- largest fossil fuel­emitting country. In China, emissions increased by 39 per cent during the period 1990 to 1996, making China the world’s second­largest fossil fuel­emitting country behind the United States. How can these two countries be considered developing countries for the purposes of a protocol that aims to reduce emissions?65 It is predicted that by 2015 the energy needs of the developing world will have overtaken those of the industrialised.66 If these developing countries are able to continually ignore the harmful external impact their emissions have on global climate, then their emission production will continue to exceed optimal levels and will not be abated to adequate levels. Furthermore, the exclusion of developing countries from mandatory emission reductions means that most abatement under the Kyoto Protocol concentrates

61 At 179.

  1. Blustein, above note 26, at 312.
  2. Sheeran, above note 37, at 697.

64 At 704.

65 At 704.

66 Setear, above note 60, at 180.

on those areas where such abatements could cost the most and therefore is not the most economically and environmentally efficient option.67 The exemption of developing countries from mandatory emission reduction targets increases the global cost of climate change by the Kyoto Protocol mechanisms.68 This result is not desirable for any party.

Ultimately, the emission reduction targets set out in the Kyoto Protocol are far too minimalistic to make any real and lasting impact on the climate change issue. This is one of the Kyoto Protocol’s most significant problems. Most environmental and scientific authorities argue that far deeper cuts are needed, and furthermore that these cuts should have been made a long time ago. Throughout the early 1990s the IPCC consistently reiterated that at least a 60 per cent cut in emissions is required in order to prevent a continued increase of GHGs in the atmosphere.69 For many people the Kyoto Protocol commitments were “neither adequate to address the issue of climate change nor based on any economic, scientific, or equitable principles”70 and the Kyoto Protocol itself recognised this fact in noting a need for reconsideration of future commitments by 2005 in art 3.9.71 However, despite this, antagonists of the Kyoto Protocol criticise it for being “an impractical policy focused on achieving an unrealistic and inappropriate goal”.72 One example in support of this proposition was the case of the United States. While the Kyoto Protocol was still awaiting ratification in 2002, US emissions were already 15 per cent above their 1990 levels. Therefore, the Kyoto Protocol’s call for a 7 per cent reduction from the United States would have meant a 22 per cent reduction in a 10­year period, if the United States had begun work on their problem immediately.73 As a result of this, Eileen Claussen argued that the problem with the Kyoto Protocol was not the fact that it set quantitative targets for emission reduction, but rather that the specific targets negotiated asked for too much.74 However, these concerns proved immaterial as the United States withdrew from the Kyoto Protocol in 2001, striking a serious blow to its effectiveness, given that the United States is the world’s largest emission producer, accounting for 25 per cent of global emissions, and especially in light of the fact that the United States had spent

67 Sheeran, above note 37, at 704.

68 At 705.

  1. Richardson, above note 34, at 258.
  2. L Srivastava and M Pathak “Kyoto Protocol and its Mechanisms” in W Gupta and KSK Kumar Climate Change: Post-Kyoto Perspectives from the South (Tata Energy Research Institute, India, 1998) 79 at 80 in Estapa, above note 6, at 112.
  3. Estapa, above note 6, at 112.
  4. WJ McKibbin and PJ Wilcoxen “The Role of Economics in Climate Change Policy” (2002) 16(2) Journal of Economic Perspectives 107 at 127.
  5. Claussen, above note 44, at 250.

74 At 251.

several years actively negotiating a treaty framework that would be in its own best interests.75

Another significant criticism lies in the fact that the Kyoto Protocol is a short­term document. It does not provide a framework for the attainment of long­term emission reduction goals due to the lack of substantive obligations on developing countries. This sacrifice was made because the Kyoto Protocol had to be flexible enough to accommodate the differing circumstances of the vast numbers of participants; as a result, it had to drop more stringent provisions that ultimately would have been more effective.76 Sources indicate that although the Kyoto Protocol has resulted in a reduction in GHG emissions, in reality it does little to curb global emissions, which have increased by half since 1990.

While giving significant attention to setting reduction targets, irrespective of how short­term these may be, the Kyoto Protocol, fatally, gives little attention to the role of monitoring, which is essential to determining compliance amongst the parties. The Kyoto Protocol’s compliance mechanism essentially requires that countries punish themselves for not complying — a mechanism that is unlikely either to influence behaviour or inspire confidence in the regime.77 The fact that the Kyoto Protocol applies to a set of six GHGs makes it difficult to monitor emissions of these gases; a difficulty complicated by the fact that the activities causing emissions of most of these gases are not well understood. The exception is carbon dioxide emitted through fossil fuel combustion, which is the main contributor to global warming.78 Ultimately, treating these gases as interchangeable commodities has been an unsatisfactory approach. Victor argues that the lifetimes of the gases differ in the atmosphere and therefore they should be approached separately. Carbon dioxide is the predominant cause of global warming, and therefore the significant basis of a climate change regime is focused on curtailing carbon dioxide emissions. However, while methane is a strong GHG, it does not remain in the atmosphere for very long (10 years). On the other hand, compounds like perfluorocarbons and sulphur hexafluoride are stronger in their effect than carbon dioxide and can remain in the atmosphere for thousands of years, although they are not as prominent in amount. On this basis, there are problems with targeting gases as one entity. While getting rid of methane is going to produce short­term results in the next 10 to 20 years, if nothing is done about the compound gases then future generations are going to be faced with the serious problems entailed in dealing with these gases. Stronger gases that survive much longer in the atmosphere should be dealt

  1. Sheeran, above note 37, at 706.
  2. Richardson, above note 34, at 254.
  3. S Barrett “Towards a Better Climate Treaty” (2002) 54 Nota di Lavoro Fondazione Eni Enrico Mattei at Summary.
  4. DG Victor Crisis and Opportunity: The Collapse of the Kyoto Protocol and the Struggle to Slow Global Warming (Princeton University Press, Princeton, NJ, 2001) ch 1 at 17.

with on a separate timetable that is stricter and commands greater importance. An approach that sees all gases as equally harmful could lose the effectiveness that an approach targeted to each individual gas will have.79 However, in the alternative, it is not disputed that each gas contributes to the global warming effect. Governments may find it easier and less expensive to control emissions of some gases more than others. Methane and nitrous oxide “account for about one­quarter of human­caused global warming”.80 Therefore, inclusion of all these gases is essential to make advancements in methodologies for reducing emissions of pollutants that place the climate at risk. We should be targeting all pollutants that are affecting our environment.

Sutter has also criticised the effectiveness of the CDM mechanism imple­ mented by the Kyoto Protocol, stating that no such mechanism will fulfil the Kyoto Protocol’s objective of GHG emission reduction, as well as contributing to sustainable development simultaneously. Sutter says that there is “a clear tendency for the CDM to deliver likely emission reductions but not to con­ tribute towards [the] host country’s sustainable development”.81 A further criticism of the CDM mechanism is that it does not provide for any criteria in choosing which projects or countries to invest in. Industrialised countries approach CDM as if it were a business investment and therefore choose those developing countries with the highest mitigation potential, and provides for the safest possible investment. Consequently, there is a significant skew in those developing countries that have been invested in for CDM projects, which has meant that, as of 2010, 67 per cent of developing countries did not have an invested CDM project by an industrialised country. In fact, as of 2010, the Asian region accounted for over 80 per cent of implemented CDM projects, while Africa accounted for less than 2 per cent.82 This must lead to concerns about the effectiveness of the CDM mechanism, and as a result the Kyoto Protocol, and whether either will truly lend itself toward a more sustainably developed future. Furthermore, because the Kyoto Protocol allows developing countries to define exactly what a sustainable development project within their borders entails, this has led to several developing countries, especially in Africa, lowering their criteria for sustainable development in an attempt to attract potential investments from industrialised countries.83 This problem could be overcome by implementing a quota of sorts, limiting the number of

79 At 23.

80 At 60.

  1. C Sutter and JC Parreño “Does the Current Clean Development Mechanism (CDM) Deliver its Sustainable Development Claim? An Analysis of Officially Registered CDM Projects” (2007) 84 Climatic Change 75 at 89 in Olawuyi, above note 56, at 27.
  2. Olawuyi, above note 56, at 31.

83 At 33.

projects in which a particular country can be involved, helping ensure equitable participation in any future climate change regime.84

Related to CDM and the other market mechanisms is their facilitation of “carbon leakage”, whereby the costs associated with climate change in industrialised countries could cause GHG­emitting businesses that are struggling to meet these costs to immigrate to developing countries which do not have sanctions or commitments under the Kyoto Protocol, thereby resulting in no reduction at all.85

A further shortcoming of the Kyoto Protocol relates to the additionality principle, which is premised on a test of whether or not a particular project results in reductions that are greater than the levels that would have occurred under a “business as usual” scenario;86 in other words, whether or not the reductions would have occurred regardless of the existence of the Kyoto Protocol. This anomaly has led to industrialised countries being able to claim credits for those projects that were ongoing or existed before the Kyoto Protocol was even brought into existence. Therefore, the actual effectiveness of the Kyoto Protocol may be even less than currently recognised as projects that were utilised prior to its introduction, which resulted in emission reductions, cannot be said to have contributed to the overall effectiveness of the Kyoto Protocol, because they would have occurred anyway.

Ultimately, in light of these concerns and the highlighted shortcomings, as well as the fact that global GHG emissions have actually increased rather than declined during this first commitment period, the Kyoto Protocol’s effectiveness is truly questionable, highlighting the need for a new regime, or amendments to the current one, in order to regain a semblance of respectability.

3.3 The Lead-up to the Second Commitment Period

In preparation for the conclusion of the first commitment period at the end of 2012, at COP 13 in Bali in 2007, parties to the UNFCCC agreed to embark on a negotiation process to agree a future climate change regime to be implemented following the end of the first commitment period. They set a deadline for their agreement at COP 15 in Copenhagen in 2009.87 The aim of the Bali COP was to enable “the full, effective and sustained implementation of the Convention through long­term co­operative action, now, up to and beyond 2012”.88 The negotiation process was known as the Bali Road Map and described as a “two­

84 At 34.

85 At 23.

86 At 28.

  1. Hill, above note 55, at 93.
  2. United Nations Framework Convention on Climate Change Bali Action Plan Draft Decision <> in C Warnock “International

track” initiative due to its pursuit of two main elements involving commitments to:

(1) Progress the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG­KP), whose purpose was to consider further commitments for Annex I parties for the period beyond 2012;89 and

(2) Establish the Ad Hoc Working Group on Long­term Cooperative Action under the Convention (AWG­LCA),90 whose purpose was to enable an effective implementation of the UNFCCC through cooperative action beyond 2012 in order to reach a COP­negotiated outcome. This was essentially to be a long­term goal for global emission reductions and greater domestic action.

When Copenhagen and COP 15 eventuated in 2009, no legal agreement was made as planned under the Bali Road Map. Difficulties arose between industrialised countries (such as the USA) wanting developing countries (such as India and China) to take on binding emission reduction targets; and developing countries wanting Annex I countries to take on further binding emission reduction obligations under further Kyoto Protocol commitment periods.91 These differences led to a non­legally binding statement called the Copenhagen Accord, whose main points were that:92

(1) Annex I countries would commit to quantified reduction targets for 2020 by 31 January 2010;

(2) Non­Annex I countries were to implement mitigation actions by 31 January 2010;

(3) in 2015 an assessment of the Copenhagen Accord’s implementation would take place; and

(4) the AWG­KP and AWG­LCA process would continue and negotiations be completed by COP 16 in Cancun in 2010.

Environmental Law” (2007– 2008) 5 New Zealand Yearbook of International Law 212 at 214.

  1. United Nations Framework Convention on Climate Change Report of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol on its resumed Fourth Session, Held in Bali from 3 to 15 December 2007 UN Doc FCCC/KP/ AWG/2007/5 in Hill, above note 55, at 93.
  2. United Nations Framework Convention on Climate Change Report of the Conference of the Parties on its Thirteenth Session, Held in Bali from 3 to 15 December 2007 UN Doc FCCC/ CP/2007/6/Add.1, decision 2/CP.13 in Hill, above note 55, at 93.

91 At 93.

92 At 94.

The long­term goal of the Copenhagen Accord was to limit climate change to no more than 2˚C.93

Ultimately, in terms of any binding agreement post­2012, the COP at Copenhagen, which had been dubbed “Hopenhagen”, became “Nopenhagen”, with no binding agreement being settled upon.94 For many people, the non­ legally binding character of the Accord, its absence of a global long­term mitigation goal, and its non-universality confirm its inability to represent a future climate change deal.95

At 2010’s COP 16 in Cancun no post­2012 regime could be agreed upon and once again the work of the AWG­KP and AWG­LCA was drawn out to COP 17 in Durban the following year. However, Cancun was significant for the Cancun Agreements, which also recognised that the effects of global warming should be limited to below 2˚C. These agreements also included pledges from 76 industrialised and developing countries, which were collectively responsible for 85 per cent of annual global emissions in 2010, to better control their GHG emissions.

COP 17, held in Durban in 2011, took on added importance in light of the imminent end of the first commitment period for the Kyoto Protocol the following year.96 The main issue for agreement at Durban was a choice between implementing a second commitment period under the Kyoto Protocol after 2012, or, alternatively, coming up with a new legally binding treaty. Furthermore, there was discussion on how best to preserve the CDM mechanism post­2012 and how best to progress those initiatives established at the 2010 Cancun COP.97 The key outcome from the Durban conference was an agreement by parties

to the UNFCCC to launch a new process in the hope of developing another legal instrument under the UNFCCC that would apply to all parties in order to achieve further GHG emission reductions. A new subsidiary body under the UNFCCC was set up to undertake this process and was labelled the Ad Hoc Working Group on the Durban Platform for Enhanced Action (AWG­ DPEA).98 This group was commissioned to start work immediately and to have it completed no later than 2015 in order for the new instrument to be adopted at COP 21 in 2015, and to be in force by 2020.99 The Durban Platform is more

93 D Bodansky “Current Developments — The Copenhagen Climate Change Conference: A Post­mortem” (2010) 104 The American Journal of International Law 230 at 231.

94 At 230.

  1. C Armeni “Legislation and Policy: The Copenhagen Accord and Beyond” (2010) 12 Environmental Law Review 132 at 139.
  2. Hill, above note 55, at 94.

97 At 94.

  1. Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action

— Proposal by the President (Draft Decision) FCCC/CP/2011/L.10, decision 2 in Hill, above note 55, at 94.

  1. Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action

an “agreement to agree” on a new protocol by 2015 and is therefore not really enforceable and is dependent on the commitment and interests of the parties if an outcome is to be achieved by the 2015 deadline.100 The other important point of the Durban conference was the agreement made by some countries to a second commitment period under the Kyoto Protocol, demonstrating the commitment of certain countries, in particular the European Union, of taking formal action to reduce their emissions. Furthermore, it preserves those mechanisms under the Kyoto Protocol for the post­2012 period.101

Finally, in November 2012, parties to the Kyoto Protocol met at COP 18 in Doha and agreed on a timetable for a future agreement that would include all countries, rather than distinguish between industrialised and developing countries. In accordance with the timetable, such a global agreement should be adopted by 2015 and be implemented by 2020. Furthermore, it was agreed that with the expiry of the first commitment period at the end of the year, a second commitment period under the Kyoto Protocol would begin in 2013 and run for eight years, until 2020, at which point the new agreement, agreed to in 2015, would take over.102

3.4 The Likely Effectiveness of the Second Commitment Period

The second commitment period applies to emissions between 2013 and 2020 and the Doha COP amended the Kyoto Protocol to accommodate this second commitment period. However, as of the start of 2013, Japan, New Zealand and Russia have all refused to take on new emission reduction targets, despite participating in the first round of commitments between 2008 and 2012. Canada, which withdrew from the Kyoto Protocol in 2012, and the United States also do not have any binding targets.103 In the absence of the participation of these countries, the potential effectiveness of this second commitment period must be questioned.

Halvorssen proposes that to make the second commitment period more effective an Annex C should be incorporated into the Kyoto Protocol, which would consist of fast­growing developing countries that are heavy GHG emitters, as well as setting up an Annex C Mitigation Fund. Halvorssen argues

— Proposal by the President (Draft Decision) FCCC/CP/2011/L.10, decision 4 in Hill, above note 55, at 95.

100 At 96.

101 At 97.

  1. United Nations Framework Convention on Climate Change Doha Climate Change Conference (November 2012) < php> .
  2. “What Happened in Doha? Analysis of the Conduct and Outcome of the COP 18 Climate Negotiations” Greenpeace (8 December 2012) < Global/international/briefings/climate/Doha2012/QandAoutcomeDoha.pdf> .

that this would be in step with the “common but differentiated responsibilities” principle and would uphold the UNFCCC goal of achieving 1990 emission levels, while also promoting sustainable development. He proposes that the mitigation fund would exist to assist Annex C countries in complying with their new obligations under the Kyoto Protocol.104

The main shortcoming of the second commitment period is likely to be the fact that countries are to make their own reduction pledges and therefore the likelihood of this period having any lasting impact on the fight against climate change is insignificant.105 It is believed that for this second commitment period to make any lasting change, extensive reductions that are upwards of 50 to 70 per cent will need to be achieved. The fact that major emitters such as the United States and Japan have refused to participate means making this dream a reality will be incredibly challenging.106

Thus far, the impact of the Kyoto Protocol has been poor. With carbon dioxide emissions continuing to increase inexorably, and with China, India and the United States planning to build 850 new coal-fired plants between them, allowing for the production of five times more carbon dioxide into the atmosphere, the Kyoto Protocol’s continued effectiveness throughout its second commitment period is nearly laughable.107


May and Kelly adequately summed up the perils associated with treaty nego­ tiations when they said that “most treaty negotiations ... reflect endogenous political, cultural, religious and ethnic consilience and division, and exogenous influences respecting who should pay for what and when, who participates and who decides. It reflects the inescapable binomialism of the global age: north and south, east and west, developed and developing, financially rich and poor, biologically endowed and barren, givers and takers around the globe.”108 This statement encapsulates some of the challenges and barriers that a road to a future climate change regime will be fraught with.

  1. AM Halvorssen “Common, But Differentiated Commitments in the Future Climate Change Regime — Amending the Kyoto Protocol to Include Annex C and the Annex C Mitigation Fund” (2007) 18 Colorado Journal of International Environmental Law and Policy 247 at 248.
  2. Hill, above note 55, at 97.
  3. Sheeran, above note 37, at 707.
  4. Setear, above note 60, at 181.
  5. JR May and JP Kelly “The Environment and International Society: Issues, Concepts and Context” in S Alam and others (eds) Routledge Handbook of International Environmental Law (Routledge, Oxon, 2013) at 14.

4.1 The Short Timeframe

The immediate challenge that springs to mind when investigating a future climate change regime to replace the Kyoto Protocol is the relatively short timeframe available to work with. Following the Durban and Doha COPs, it was agreed that a future climate change regime should be adopted at COP 21 in 2015, ready to be enforced by 2020. This new agreement will require negotiations and settlement between more than 190 countries, not to mention world organisations and non­governmental organisations, as was the case with the Kyoto Protocol.109 It is therefore an ambitious initiative to have this new regime in place by 2015, albeit a necessary one. However, it is beneficial that the second commitment period of the Kyoto Protocol has been implemented as this allows a possible extension toward the 2020 implementation date for such a regime to be agreed.

4.2 The Industrialised and Developing Country Distinction

Any future climate change regime must abolish the distinction between developing and industrialised countries. India and China are the two most populous countries in the world and are significant GHG emitters, and yet, because they are still considered to be developing and not yet as industrialised as other first-world countries like the United States or the United Kingdom, they were excluded from the Kyoto Protocol. This distinction should be abolished in any future regime, as preventing climate change will take a concerted effort on a global scale rather than one taken by industrialised countries only to allow developing countries the same opportunity to develop that industrialised countries had. While this may seem unfair to developing countries, it is simply a fact of the serious predicament we find ourselves in.110

While inclusion of developing countries will spark controversial equity debates, an emphasis should be placed on reducing the cost of global abatement as a whole rather than a transfer of costs from the industrialised to the developing countries.111 The war against global warming will not be won unless the entire global community is involved. All countries, irrespective of wealth or size, must play a part in any future regime. While the Kyoto Protocol tries to encourage this through the “common but differentiated responsibilities” idea,112 Rajamani argues that if implementation of the principle defeats the object and purpose of a treaty, then it has clearly gone beyond the limits of the

  1. Hill, above note 55, at 96.
  2. Olawuyi, above note 56, at 31.
    1. C Böhringer “The Kyoto Protocol: A Review and Perspectives” (2003) 19(3) Oxford Review of Economic Policy 451 at 462.
  3. Halvorssen, above note 104, at 253.

treaty and should not apply.113 In order for sustainable development to prosper, it is sometimes necessary to make sacrifices, and in this respect economic growth should be sacrificed for (balanced with) climate change objectives rather than taking precedence over them.114 It would seem that the seriousness of the problem today warrants continued involvement from industrialised, and greater involvement from developing, countries in order to hopefully bring the effects of global warming under control. Countries such as China and India, which are developing and experiencing exponential growth today, are far more attuned to this problem than industrialised countries were at a similar stage of their history and must therefore take greater responsibility. In any event, taking into account the historical nature of industrialised countries’ GHG emissions may not be entirely fair because the GHG emission levels of developing countries continues to increase and, if left unrestricted, is predicted to potentially surpass those of the industrialised world by 2020.115 While there is certainly a right for the developing world to have the opportunity to develop, this should not mean that they are excluded entirely from participation in any cooperative measure to address climate change, as they are quickly becoming the primary GHG emitters. Furthermore, their involvement could ultimately lead to increased energy efficiency, which would well serve their desire to develop their economies and living standards.116 Therefore a future climate change regime should abolish this distinction between industrialised and developing countries. Olawuyi advocates the insertion of a provision allowing the annual COP to review the Annex I and II lists set out in the UNFCCC and provide them with the authority to add or remove countries as desired, depending on their emission levels over certain periods of time. This would remove the anomaly currently experienced within the Kyoto Protocol whereby developing countries such as China and India are exempt from making emission reductions, an absurdity

which certainly needs to be addressed in any new climate change regime.117 Interrelated with this industrialised and developing country conflict is the

innate human tendency to blame others and refuse to accept responsibility, which is another challenge for a future regime to overcome. In the past, countries have blamed others for their lack of action. A classic example was the US refusal to ratify the Kyoto Protocol, despite producing a quarter of the world’s GHG emissions, because India and China did not have any binding commitments. On the other hand, China and India argued that they should not

  1. L Rajamani Differential Treatment in International Environmental Law (Oxford University Press, Oxford, 2006) at 162 in Halvorssen, above note 104, at 255.

114 At 255.

115 BA Green “Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement” (2009) 39 Environmental Law 253 at 281.

116 At 281.

117 Olawuyi, above note 56, at 23.

have to agree to binding reduction commitments because the United States itself did not have any.118 This stalemate must be overcome by a future regime. Countries need to realise that a climate change regime curbing global warming will benefit all global citizens.

4.3 The Involvement of the United States

On this note, the involvement of the United States is crucial for any future climate change regime. The United States is not party to any major international environmental treaty. Although it is a member of the UNFCCC, that status is not fully operable unless a country is also a member of the Kyoto Protocol, which the United States has refused to ratify. The United States has steered clear of environmental treaties that place legally binding obligations upon it, but is happy to sign up to soft law documents that do not require much of them. As Rajamani put it, “the United States is an active participant in negotiations, but a reluctant participant in treaties”.119 While the United States has been engaging far more constructively under the Obama regime, there are still significant difficulties in it garnering enough domestic support to allow it to take on environmental commitments at an international level. Therefore, any consideration of a future regime should involve a determination of the extent to which parties will allow the United States to influence an agreement it may not ratify and become a party to.120

4.4 An Effective Enforcement Mechanism

An effective enforcement mechanism must also be conceptualised if a future regime is to have a greater impact than the Kyoto Protocol and truly make a difference in the war against global warming. If there were no threat of sanctions for non­compliance then it would only be in very rare instances that countries actually fulfilled their obligations under any regime. One way of achieving this could be to convince countries that it would be in their interests to comply with any future regime. Perhaps an appeal to the moral and emotive could be an effective means of achieving this. Very rarely will compliance be gained through punitive sanctions, as countries will simply not accept any regime that proposes such sanctions. However, countries may sign up if there was a form of “big brother” scenario created whereby countries are put under scrutiny from others and therefore comply for fear of backlash from other countries.

  1. Halvorssen, above note 104, at 250.
  2. L Rajamani “Addressing the ‘Post-Kyoto’ Stress Disorder: Reflections on the Emerging Legal Architecture of the Climate Regime” (2009) 58 International and Comparative Law Quarterly 803 at 830.

120 At 830.

One possibility is to set up some form of fund, possibly with the World Bank or International Monetary Fund, and have violating countries transfer revenue into the fund, which can then be used to either compensate other compliant countries or be put to research and development purposes.121 In order for an international climate control agreement to be self-enforcing, countries need to find it in their self­interests to voluntarily participate.122

4.5 The Free-rider Incentive

A future climate change agreement must prevent countries from relying on the abatement efforts of others in order to save costs, as countries would all be better off if everyone participated with each other cooperatively. This free­ rider incentive for non­compliance and non­participation has to be overcome.123 Countries are very reluctant to incur the costs of emission abatement when other countries are able to benefit at their expense; and in a similar vein, countries are reluctant to incur costs when they can easily free­ride on others’ emission abatement efforts. Countries normally will only voluntarily reduce their emissions where some private benefit from their reduction will outweigh the costs of those reductions. However, from a global perspective, this is a less than ideal attitude. For the future, instead of considering the idea of climate change from a single country’s perspective, it should be looked at it from a global perspective. Arguably, the global benefit from any country’s emission reduction will exceed the cost of implementing that reduction.124

4.6 A Fundamental Change in Attitude

A distinct problem with a future climate change regime is overcoming the current attitude displayed towards global warming and the effects of climate change in general. Because the likely cumulative impact of global warming will not be fully realised until after 2100, there is an intergenerational attitude that tends to imply it is not a problem for today’s generation to worry about.125 Because of this, certain countries portray an ideology that the current generation has powerful reasoning to continue to pollute, as they will not be substantially affected by the climate change phenomenon.126 It is this attitude that needs to change: it is an attitude that is entirely predicated on falsities. Humanity is

  1. Böhringer, above note 111, at 462.
  2. Sheeran, above note 37, at 701.
  3. Böhringer, above note 111, at 455.
  4. Sheeran, above note 37, at 699.
  5. SM Gardiner “The Global Warming Tragedy and the Dangerous Illusion of the Kyoto Protocol” (2004) 18(1) Ethics and International Affairs 23 at 29.

126 At 30.

facing the possibility of a mass extinction event over the next century. Some optimistic scientists are predicting we could lose 70 per cent of all species on this planet by the turn of the century. The problem does not simply lie in finding better ways to regulate the economy or a new method of dealing with climate change. What is truly wrong is that business leaders and all global citizens continue to live on the ideals of human nature and the human journey that were inherited 200 years ago at the beginning of the industrial market era. It is these ideologies that need to change if we are to be successful in curbing climate change.127 Jeremy Rifkin, a seasoned political campaigner, economist and environmental lawyer, has summed the issue up when he alerted us to the fact that our current thinking is so preoccupied by 200 years of market thinking that it has nurtured a sense of selfishness and competitiveness as a logical social construct that is based on a supply system. He calls for a revolution of consciousness that parallels the ideas of Christopher Stone, who is noted for highlighting that humanity is reaching a stage where it needs to equate intrinsic values of nature with ecological law. In his 1972 article entitled “Should Trees Have Standing?”, Stone describes the way in which our society, over 2000 years of civilisation, has evinced an increased empathy and ability to feel compassion for other groups of people.128 Over time, human morality has shown itself capable of increasing and embracing new groups, such as women. From within a patriarchal power structure, the thought that women were the equal of men seemed outrageous, but over time that view has changed. More recently, attempts to think across national and geographical boundaries to overcome racist attitudes have been witnessed. The next step should now occur, resulting in social compassion for the entire planet.

Another challenge a future climate change regime would face is a recon­ ceptualisation of how cost­effective, sustainable solutions are viewed. The current view is that the more sustainable a solution, the more expensive it is going to be. Projects that could make a significant difference in climate change require new and expensive technologies, whereas those projects that will make no lasting change or impact are more affordable and less costly. Industrialised countries are currently forced to choose between investing in projects that will involve new technologies that come at significant cost but produce the most sustainable outcome, or alternatively, settling for a more cost­effective solution, but a solution that does not have any real and lasting sustainable outcome.129 In today’s business­driven world it comes as no surprise as to which option is favoured. Therefore, when a cleaner technology, with greater cost but greater sustainability potential, will result in the same emission reduction as a dirtier,

  1. V Ripper “Occupy Love” (2012) video documentary.
  2. CD Stone “Should Trees Have Standing? — Toward Legal Rights for Natural Objects” (1972) 45 Southern California Law Review 450–487.
  3. Olawuyi, above note 56, at 27.

cheaper technology, with adverse environmental effects and less sustainability, there is a prevalence for countries to opt for the cheaper, dirtier technology.130 This is an attitude that must change if humanity is to have any real effect on climate change.

Related to this is the unavoidable factor of realpolitik, both in domestic and international politics.131 Whether it be a domestic or an international regime, issues of power, practicality and materiality will continually be at the forefront of leaders’ minds, as opposed to ideological, moral or ethical notions. A repositioning of such attitudes must occur so that the latter factors are in the forefront of leaders’ thought processes, in order for effective change to occur.

Several participants saw the targets set by the Kyoto Protocol as being too ambitious; a point encapsulated by the request from the US delegation during negotiations that anything made of wood above one foot in height be deemed a forest and therefore a carbon sink.132 Clearly, this initiative failed, but it is indicative of the attitude of several countries toward finding an international climate change regime and is just one of many hurdles that a future regime must look to overcome. However, the general consensus now is that an effective solution to climate change is going to require far greater emission reduction than the Kyoto Protocol did during its first commitment period. It is believed that a stabilisation of atmospheric concentrations of GHGs at current levels will only limit the increase in average global temperature to 3.5˚C by 2100. However, stabilisation of atmospheric concentrations at current levels will require a 50 to 70 per cent reduction in global emissions plus further reductions thereafter. It is clear then that a future climate change regime will have to take drastic action to effect this change.133 In any event, some scholars have noted that “[e]ven a 3˚C rise in global average temperature would devastate the global environment, place human survival in grave danger, and risk the collapse of the world economy”.134 Consequently, in 2007, the IPCC outlined that far deeper cuts in global emissions would be required to prevent dangerous anthropogenic interference with our climate system.135 Therefore the ultimate challenge for any

130 At 27.

  1. S Freeland “The Kyoto Protocol: An Agreement without A Future?” [2001] UNSWLawJl 35; (2001) 24 University of New South Wales Law Journal 532 at 536.
  2. Kahn, above note 12, at 550.
  3. Sheeran, above note 37, at 706.
  4. EB Bluemel “Unraveling the Global Warming Regime Complex: Competitive Entropy in the Regulation of the Global Public Good” (2007) 155(6) University of Pennsylvania Law Review 1981 at 1983 in AM Halvorssen “UNFCCC, the Kyoto Protocol, and the WTO — Brewing Conflicts or are they Mutually Supportive?” (2007– 2008) 36 Denver Journal of International Law and Policy 369 at 370.
  5. Intergovernmental Panel on Climate Change “Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change” (2007) Technical Summary at 39 and 90.

future regime is to ensure industrialised countries achieve far deeper reductions in emissions than those implemented by the Kyoto Protocol.136

As Klaus Bosselmann noted, “in no other area of social reality does our blindness towards nature become so crassly obvious as in the present economy. The fixation on economic growth and its underlying values has accelerated ecological suicide to such an extent that even immediate ‘zero growth’ and the switch to an economic development along the lines of ecology could hardly stop the processes of destruction that have already been set in motion.”137 Any future climate change regime needs to place a far greater emphasis on the actual ecological and environmental threat we are facing, rather than the economic consequences of doing something about it. The solution must be found far more quickly than it took to develop the Kyoto Protocol. We no longer have decades of time at our disposal to determine what to do. As Halvorssen points out, the “solution must be found by crafting equitable bargains, tailored to the issue of climate change, regarding economic and environmental issues between industrialised and developing countries”.138 While these economic factors certainly come into focus in environmental protection regimes, countries need to stop looking at them as sunk costs. Instead of counting the increased costs borne by their economies, countries should focus their attention on the long­term investment being advantageous, as it is more costly, and sometimes impossible, to repair rather than prevent environmental damage.139


5.1 Treaty Solutions

In recent years, deliberations concerning a post­2012 (when the Kyoto Protocol’s first commitment period ended) climate change regime generally revolved around either negotiating amendments to the Kyoto Protocol (which has come to fruition in light of the Durban and Doha conferences installing a second commitment period) or developing an entirely new protocol under the UNFCCC. The AWG­KP and AWG­LCA, initiated as part of the Bali Action Plan at COP 13, were given the task of designing a mandate that would develop a comprehensive outcome.140

  1. L Morgenstern “One, Two or One and a Half Protocols? An Assessment of Suggested Options for the Legal Form of the Post­2012 Climate Regime” (2009) Carbon and Climate Law Review 235 at 236.
  2. Bosselmann, above note 3, at 63.
  3. Halvorssen, above note 104, at 251.
  4. A Kiss and D Shelton International Environmental Law (2nd ed, Transnational Press, Ardsley, NY, 2000) at 4.
  5. Bodansky, above note 93, at 233.

The structure of the negotiating process has raised two questions:141

(1) whether negotiations should result in two outcomes — one under the Kyoto Protocol, and one under the UNFCCC — or a single, combined outcome that brings both together; and

(2) whether the outcome should be legally binding in nature.

In any event, all future regimes share the same common goal or objective: “to limit greenhouse gas levels in the atmosphere while fostering adaptation to the impacts of global warming”.142

Aldy and Stavins have described the policy architecture for a future climate change regime as falling into three principal categories: targets and time­ tables; harmonised national policies; and coordinated and unilateral national policies.143 A targets and timetables approach is essentially what the Kyoto Protocol envisaged, whereby emission reduction targets for specific countries are established over a particular timeframe. Harmonised domestic policies focus more on national policy action rather than goals and involve countries agreeing on similar domestic policies such as a domestic tax on carbon, thereby achieving their own cost­effective emission controls within domestic borders. The final category, coordinated and unilateral national policies, is a bottom-up approach whereby domestic policies drive participation and compliance. Such an example would be the linkage of independent national and regional tradable permits systems.144

One replacement option for the Kyoto Protocol would simply be to replace it with a new one, albeit with some amendments, such as imposing new legally binding commitments on all parties irrespective of whether they are industrialised, economies in transition, or developing. The treaty would therefore place obligations on all countries in the same legal and institutional framework.145 Morgenstern describes this as a “one and a half protocols approach” and envisages the adoption of new quantified reduction commitments for existing parties.146 The advantage of a new protocol is that it ensures the

141 At 233.

  1. C Bausch and M Mehling “Tracking Down the Future Climate Regime — An Assessment of Current Negotiations Under the UN” (2007) Carbon and Climate Law Review 4 at 6.
  2. JE Aldy and RN Stavins Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto World (Cambridge University Press, New York, 2007) at 5.

144 At 5–6.

  1. Rajamani, above note 119, at 818.
  2. Morgenstern, above note 136, at 241.

continuation of a coherent legal framework and therefore provides a greater degree of legal certainty as well as coherent operational and administrative structures.147 While this would provide comparability in commitment and actions taken, replacing the Kyoto Protocol could cause significant backtracking by countries from their current commitments, as industrialised countries may attempt to take on softer targets under any new legal regime.148 The current market system of the Kyoto Protocol sets out targets for emission reductions and offers incentives to industrialised countries, thereby encouraging them to participate in climate change regimes and enabling them to achieve their targets at the lowest cost possible. However, it must be questioned whether this is the correct mindset to adopt. Instead of encouraging participation through incentives, the fundamental mindset needs to change and a future regime should foster one that encourages industrialised countries to participate of their own accord. The market­based approach enables a worldwide global attack on climate change with countries being able to participate from anywhere in the world.149 Furthermore, market mechanisms could enable technology transfer from industrialised to developing countries, which could assist the developing countries to solve social, environmental and economic challenges within their own borders. Furthermore, market mechanisms allow countries to tackle climate change on two fronts: domestically, through their own legislation within their own borders; and also transnationally, via regimes such as the Kyoto Protocol and within the market provided for by these market mechanisms.150 Market mechanisms do have flexibility to their advantage, which allows industrialised countries to pursue emission reduction projects anywhere on earth.151 However, if a market mechanism is utilised in the next climate change regime, it must be done so in a way that is not as disorganised, disjointed and ineffective as the one currently implemented under the Kyoto Protocol regime.152

Alternatively, what Morgenstern describes as a “two protocols” approach153 could be adopted whereby parties follow two protocols by amending or extending the Kyoto Protocol, while complementing it with a new one under

147 At 240.

148 At 240.

149 Olawuyi, above note 56, at 26.

150 At 33.

151 At 25.

  1. H Van Asselt and J Gupta “Stretching Too Far? Developing Countries and the Role of Flexibility Mechanisms Beyond Kyoto” (2009) 28 Stanford Environmental Law Journal 311 at 357.
  2. Morgenstern, above note 136, at 240.

the UNFCCC. By keeping the Kyoto Protocol, the risk of backtracking from commitments is reduced and the institutional framework and complex mechanisms agreed on under the Kyoto Protocol remain in place, eliminating the need for further, time­consuming and costly discussion. It would see parties to the Kyoto Protocol continue to have obligations under that document, while non­Kyoto parties could take on obligations under the new UNFCCC­regulated protocol. However, such a two protocols approach would impede comparability and could lead to higher costs due to the additional complexity of having two treaties.154

Another future climate change approach could be a global coordination of emission taxation. Governments could implement taxes that begin at low levels but rise over time in accordance with levels and adjustments set by an international agreement. Victor argues that by controlling the price of emissions, businesses are able to anticipate costs and plan for better long­term investments.155 However, significant monitoring and enforcement problems could arise with such a taxation system. Any international body set up to assess taxation policies may be far too intrusive and domineering than governments are likely to tolerate.156 Environmental taxation has become quite common throughout the European Union, although very unpopular in the United States. It could operate on a basis whereby poor environmental performers — ie those who release a lot of emissions — are faced with a higher tax on those emissions, whereas those who perform more economically and promote good environmental behaviour receive the benefit of a lower tax. This would enhance incentive to chase down alternative means of power production such as solar, hydro and wind.157 However, while this does have theoretical appeal, it is believed that monitoring and enforcement of such a regime would be extremely difficult.158 Victor, in analysing the Kyoto Protocol, said, in relation to carbon taxes: “monitoring and enforcement are extremely difficult ... in practice, it would be extremely difficult to estimate the practical effect of the tax, which is what matters”.159 Furthermore, experience has shown that the strongest impediment to the adoption of a carbon tax is the concern over international competitiveness. Those countries that have already adopted such taxes have

154 At 241.

155 Victor, above note 78, at 19.

156 At 19.

  1. Arcas, above note 10, at 291.
  2. Böhringer, above note 111, at 462.
  3. Victor, above note 78, at 86.

done so at relatively low levels and allowed their most energy­intensive export­ oriented industries to be exempt from such a tax.160

One of the key obstacles to an effective Kyoto Protocol has been the lack of effective substitutes for GHG­producing technologies. If more renewable energy sources were available then GHG emissions would be less. Article 5 of the UNFCCC and art 2(1)(a)(iv) of the Kyoto Protocol ask parties to implement policies that promote “research on ... development and increased use of, new and renewable forms of energy, of carbon dioxide sequestration technologies and of advanced and innovative environmentally sound technologies”.161 Therefore the pursuit of a new climate change regime whose focus is aimed more at research and development of new technologies rather than actual emission reduction is another possibility (although some form of policy will need to be initiated in the short term to curb immediate GHG emissions). Therefore, one possibility is a combination of a protocol aimed at reducing current emissions, and another aimed at research and development, taking a view to the future, in order to help make the move away from fossil fuels sustainable and achievable.162 For example, since the Kyoto Protocol was implemented, carbon capture and sequestration (CCS) technologies have been created, and these should certainly play a role in future climate change regimes. This technology acts by collecting and concentrating carbon dioxide gas in the atmosphere, before transporting it and storing it permanently in geological formations, which could lead to significant reductions in atmospheric carbon dioxide.163 However, there could be difficulties in implementing a defined legal and regulatory framework for this technology to operate in. When the Kyoto Protocol was first envisaged, CCS technology was not around and could therefore not be used as a climate change mechanism. However, given the potential for this new technology, and other technologies that have been developed since the Kyoto Protocol, it is certainly one that any future regime should take into account.164

  1. R Clémençon “The Bali Road Map: A First Step on the Difficult Journey to a Post-Kyoto Protocol Agreement” (2008) 17 The Journal of Environment & Development 70 at 90.
  2. United Nations Framework Convention on Climate Change, arts 2(1)(a)(iv) and 5 in C Peloso “Crafting an International Climate Change Protocol: Applying the Lessons Learned from the Success of the Montreal Protocol and the Ozone Depletion Problem” (2009– 2010) 25 Journal of Land Use and Environmental Law 305 at 327.
  3. S Barrett and R Stavins “Increasing Participation and Compliance in International Climate Change Agreements” (2003) 3 International Environmental Agreements: Politics, Law and Economics 349 at 353.
  4. Olawuyi, above note 56, at 30.

164 At 34.

In the fight against global warming, non­state actors have become just as important as countries in helping curb international environmental issues. However, the current climate change regime embodied in the Kyoto Protocol relies exclusively on national governments to implement their reduction targets and pays no heed to these non­state actors. If an agreement system were added to a future climate change regime that had the power to involve and bind non­ state actors to future commitments, then it would do a world of good (literally) in the fight against global warming. After all, it is these non-state actors who are the polluters, rather than the governments themselves. If the governments were to create laws and sign up to international policies that bound these non­ state actors to commit to binding reductions, then this would go a long way to curbing global warming.165 Furthermore, the involvement of such actors would prevent national and international policies from failing through corporate lobbying.166 Among non­state actors, multinational enterprises are among the primary agents of GHG emissions in the world and are therefore considered some of the primary agents needed to cooperate in positive change. If British Petroleum were listed as an Annex I country, its 1998 GHG emission levels would have ranked it as the seventeenth­greatest emitter amongst Annex I countries.167 One would hate to consider where the world’s largest energy producer, ExxonMobil, would be ranked.

5.2 Non-treaty Solutions

Quite often, binding treaty negotiations can be overshadowed by doubts about compliance and how effective legal obligations will be. When the subject of negotiations is uncertain, with distant goals and unforetold economic consequences, these doubts do not help in creating an atmosphere that is conducive to change. More effective and successful goal setting would occur in non-binding frameworks whereby the main concern is not on specific reductions or compliance but on ascertaining the goals that make the most environmental sense, which must be achieved in order to prevent climate change.168

165 Rinkema, above note 8, at 731.

166 At 731.

167 At 744.

  1. C Peloso “Crafting an International Climate Change Protocol: Applying the Lessons Learned from the Success of the Montreal Protocol and the Ozone Depletion Problem” (2009– 2010) 25 Journal of Land Use and Environmental Law 305 at 328.

When observing traditions in history, it is clear that the ordinary people, not those in power, have created massive, positive change. Governments and leaders only exercise power, whereas the real power lies with the people they govern. The public need to decide whether their loyalties lie with governments or with human values, people and communities. Two of the most important documents in human history are the United Nations Charter and the Universal Declaration of Human Rights; both are soft law documents. Each document arose from the public wanting to be a part of a particular type of community. Civil disobedience is synonymous in our history with achieving great things. The women’s vote, abolishment of apartheid, abolishment of segregation and the civil rights movement were all a product of civil disobedience, of the public having had enough. Whenever a great generation stands up, it has stood on idealism and moral courage. This is what movements like Occupy have done and are continuing to do, and what we need to perpetuate. Events such as Occupy Wall Street and the Arab Spring are slowly changing the way people think and bringing greater attention to these issues but it needs more to make a difference.

Despite being a soft law document, there is arguably no other document that has been more influential on thinking than the Universal Declaration of Human Rights. This idea of soft law is described by some as being declarations of strong policy ideas and is merely one mechanism whereby the international community could reach a consensus more easily if, in practical terms, heads of state and governments are not expected to stand up and ratify but simply advance a general consensus.

The fundamental thinking regarding protection of the environment, and what “environment” means, needs to change. As a reference point, take notice of family law and its paramount protection of the child. Under family law, the child is sacred and its protection should be non­negotiable. Something similar to this precept is needed in environmental law. A law is needed that dictates that the protection of the environment is non­negotiable. By no means does this mean that humans are unable to interfere with the environment, but it does impose limits before damaging the natural environment.

Another possible form of soft law document could be implemented as a tool to take power away from the fossil fuel industry through divestment. The global public could appeal to institutions such as colleges and other organisations to sell their stock in fossil fuel companies. In the fight against apartheid, 155 colleges and universities were convinced by their student bodies to give up their investment in pro­apartheid companies. The University of Berkeley alone forced the sale of $300 billion of stock in such companies. Unity College in Maine has already divested all stock in fossil fuels, a $13 million endowment,

of which none is now in the hands of fossil fuel companies. The Mayor of Seattle has agreed that this would be an excellent means of getting money out of fossil fuel companies. There are now over 250 movements on campuses around the United States that are challenging the social respectability of fossil fuel companies. It certainly would seem ironic for universities to invest in fossil fuel companies when their investment could bring about the destruction of civilisation, destroying the lives and futures of those people they are educating. Universities and other institutions should take their money augmented in endowments away from the fossil fuel problem­makers and redivert it to problem­solvers. McKibben argues that once a person realises what evil is, they have a moral responsibility to do something about it; and in this case, that is to withdraw their funding. Divestment work could have the ambition of transforming thousands of institutions in the United States into allies rather than adversaries.

Obviously, the long­term solution to climate change is clear: humanity needs to make the move to renewable energy and do it quickly. The divestments in fossil fuel companies should be redirected toward renewable energy equivalents. While it would be one of the hardest tasks humanity has faced, it is by no means impossible. Following World War II, the world’s economy was devastated; however, it did not take decades or years to restructure the industrial economy but mere months. Over the next decade, it should be possible to restructure the world’s global economy once again.169 Humanity is faced with a situation where there can be either an ecologically sustainable economy for everybody or no economy for anybody.

Concerns over compliance with such a soft law document could be alleviated by increased scientific evidence and media publicity, raising public awareness of the problem and the subsequent need to address it.170 “Soft law rules have the necessary flexibility to enable the international community to progress in the new domain, especially to approach problems for which international cooperation is a new concept, such as the conservation of biological diversity or the control of movements of hazardous substances.”171 By generating any future climate change regime as a soft law document, there is greater potential for seeking increased recognition in the United Nations, such as in a General Assembly Resolution.

  1. B McKibben “Do the Math Tour” (2012) video documentary. 170 Kiss and Shelton, above note 139, at 52.

171 At 52.

Another alternative to the Kyoto Protocol would be the implementation of environmentally friendly policies at regional and local levels. In many countries climate change is viewed more as a domestic problem than an international one. Because climate change involves nearly every area of domestic policy — industrial, agricultural, energy, transportation and land use — it raises significant domestic sensitivities and, therefore, while building domestic policies to address the problem would be extensively complicated, the alternative of building an international policy regime that tries to cater to each country’s own domestic sensitivities is incomparable.172 This new legal approach would gain momentum through unilateral efforts within countries themselves. It would allow countries to develop their own responses to climate change that are specific to their own jurisdiction, without having to cooperate within a prohibitively broad, global model seeking to align the views of nearly 200 different countries. The approach would allow countries to utilise their own success on a domestic front to generate momentum for multilateral arrangements that could become the catalyst for an eventual replacement international regime.173 “Supranational, national and sub­national actors such as the European Union, the United Kingdom and California have, for some time, been developing regulations to respond to the problem of climate change which extends beyond the scope of the international climate change regime.”174 In doing so, these jurisdictions have initiated action that encompasses a larger geographic scope at a higher level of government.

California has already initiated significant support for such action.175 In April 2013 the city of Santa Monica adopted a Bill of Rights for Sustainability, which fundamentally protects the rights of ecological systems as the benchmark against which any form of development can occur. It minimises corporate rights and introduces a new bylaw providing for the quantified, non- negotiable rights of nature. It goes on to describe ways in which communities can design parameters under which development can occur. While there are different methodologies on this, the underlying idea is essentially the same in the promotion of a strong sustainability approach by setting the integrity of ecological systems as the benchmark against which any development can occur.176

  1. D Bodansky “A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime” (2011) 43 Arizona State Law Journal 697 at 710.
  2. Blustein, above note 26, at 306.

174 At 314.

175 At 314.

176 S Biggs “Legalizing Sustainability? Santa Monica Recognizes Rights of Nature” (11 April

National governments experience greater capability to manage and catalyse responses to climate change because each “owns and manages a significant number of assets; its programs affect the ability of others to adapt; it is an important provider of technical, fiscal, and other support; and it plays a crucial role in dealing with impacts that cross geographic and jurisdictional boundaries”.177 If national governments are able to realise their capability in using their sovereign powers to develop and implement appropriate domestic legal approaches to mitigate climate change, this could provide the catalyst that leads to bilateral and multilateral programmes that extend beyond these national arrangements. However, for this to occur, individual countries must take ownership of their responsibility to do something about climate change, and until this happens, any international legal response, while attractive theoretically, will fail in practice.178 Key to future implementation will be the ability to internationally integrate with other regimes. If national policies are designed with legal frameworks that have the flexibility to integrate and co­exist with foreign legal arrangements, it allows these national regimes to support multilateral and future international approaches to climate change mitigation regimes.179

As Bodansky termed it, this “bottom­up” approach would allow countries to tackle environmental policy in their own way.180 “International pledges grow out of, and reflect, domestic policies, rather than being superimposed on them.”181 If this is correct, then surely the role of an international regime should not be defining what each country must do, but helping to generate domestic political will by raising the profile of the issue amongst the general public, who can then force governments to initiate action at local, regional, domestic levels.182 A global climate change authority could provide support and advice on how governments could implement domestic policies and then provide for reporting mechanisms to ensure countries are playing their part.

Europe is at the forefront of developing alternative strategies for dealing with climate change. For over a decade now, Europe has been successful in introducing proposals that establish national legal regimes that are aimed at reducing emission levels from a domestic perspective, while still contributing

2013) Global Exchange < legalizing ­ sustainability ­ santa ­ monica ­ recognizes ­ rights ­ of ­ nature/> .

  1. JB Smith and others Adapting to Climate Change: A Call for Federal Leadership (Pew Center on Global Climate Change, Arlington, VA, 2010) at 2 in Blustein, above note 26, at 315.
  2. Blustein, above note 26, at 316.

179 At 319.

180 Bodansky, above note 172, at 710.

181 At 710.

182 At 710.

to an overall international regime — ie the Kyoto Protocol.183 For example, the European Union has set unconditional 20 per cent reduction, and 30 per cent conditional reduction, mid­term targets for itself by 2020.184 In addition, emission reduction and renewable energy trading initiatives are being introduced on a regional basis, which could also signal the way of the future.185 In the last decade or so — essentially since the Kyoto Protocol negotiations

— there has been a marked increase in domestic jurisdictions enforcing some form of emission reduction scheme as part of their policy. All this is aimed at pursuing environmentally friendly objectives.186 In its first commitment period of the Kyoto Protocol the European Union opted to meet its commitments jointly and therefore each member state of the Union was differentiated under a European “bubble” which took domestic conditions of each member state into consideration. This internal distribution of their reduction commitments helped the European Union accommodate differing commitment levels from its member states but still allowed it to present a common position at international negotiations.187

Another alternative for a new climate change regime, that has serious potential, is to drop the decentralised approach of the Kyoto Protocol and its predecessors and instead look to the creation of a global climate change authority that acts as trustee of the environment. Theoretically, the fundamental basis that underlies a need for a global climate change authority in response to global warming is premised on Garrett Hardin’s influential 1968 article “The Tragedy of the Commons”.188 The central theme of this piece is that what he refers to as the commons, or open­access resources, are being overexploited and therefore destroyed.189 In Hardin’s scenario, the earth’s environment is the global common that, without intervention limiting access to it, remains unprotected. The tragedy occurs because, without government intervention, no emitter of GHGs has an incentive to reduce its emissions because this would only serve to reduce their own benefits. As a result, this leads to the depletion and degradation of the atmospheric commons as the accumulation of GHGs in the atmosphere causes

  1. Freeland, above note 131, at 534.
  2. Van Asselt and Gupta, above note 152, at 360. 185 Freeland, above note 131, at 541.
  3. M Jeffery “Where Do We Go from Here? Emissions Trading under the Kyoto Protocol” [2001] UNSWLawJl 40; (2001) 24 University of New South Wales Law Journal 571 at 571.
  4. M Mehling and L Massai “The European Union and Climate Change: Leading the Way towards a Post­2012 Regime?” (2007) Carbon & Climate Law Review 45 at 51.
  5. G Hardin “The Tragedy of the Commons” (1968) 162(3859) Science (NS) 1243–1248.
  6. Blustein, above note 26, at 307.

global warming and severe climatic changes.190 This is where the global climate change authority would intervene and act as trustee for the environment, protecting it for the use of future generations.

The notion of a global climate change authority acting as an environmental trustee of ecological systems has been around for a while and is premised on the basis that such an authority would protect the environment for the benefit of present and future generations.191 These trusteeship models have become quite prevalent within the United Nations system. They are directly accountable to their members and are dependent both on membership rules and money. The United Nations system has a number of groups working with a trusteeship mandate where they are able to act on behalf of those who are unable to act for themselves. For example, it is quite common in ex­colonies, especially in Africa. Essentially it is a way of trying to act on behalf of the people. One particular example is the World Health Organization acting on behalf of humanity because the eradication of global disease is assumed to be a positive for everybody, and countries were in agreement with this. Why could the same not be said for a climate change authority that acts as trustee on behalf of humanity because the protection of our natural environment is assumed to be a positive for everybody? There are probably no organisations on the planet that are as powerful as the World Trade Organization, the World Bank and the International Monetary Fund. All three of these organisations are examples of trusteeships and act on behalf of an entity that is incapable of acting for itself. From these examples it is clear that there has always been a certain amount of support, even from countries, for these types of organisations, and therefore to suggest the development of a world climate authority in a similar vein is certainly a measured and viable option.

There are inherent references to this type of trusteeship idea throughout international environmental law documents. In his book Facing Mount Kenya, Jomo Kenyatta notes: “A man is the owner of his land. ... But insofar as there are other people of his own flesh and blood who depend on that land for their daily bread, he is not the owner, but the partner, or at the most a trustee for the others. Since the land is held in trust for the unborn as well as for the living, and since it represents his partnership in the common life of generations, he will not lightly take it upon himself to dispose of it.”192 Furthermore, principle 2 of the Stockholm Declaration also displays a concern for future generations, stating: “The natural resources of the earth, including the air, water, and flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful

190 At 308.

  1. P Taylor “The Global Perspective: Convergence of International and Municipal Law” (2013) 1 Environmental Law for A Sustainable Society 143 at 163.
  2. Kiss and Shelton, above note 139, at 15.

planning or management, as appropriate.”193 Finally, art 4 of the United Nations Education, Scientific and Cultural Organization World Heritage Convention and principle 3 of the Rio Declaration also take the time to mention these future generations.194

There are two main objections to this form of international governance by a global climate change authority. First, it could be viewed as undemocratic in that power is taken away from elected governments and shifted to an unaccountable institution whose decision­makers are protected from open public scrutiny. Secondly, its ability to enforce the necessary power required to take effective action for the common good in imposing its collective will on individual countries.195 However, in any event, such an authority will still be able to overcome the issue of addressing a need for more effective international cooperation in tackling global climate change within a legitimate and publicly accountable institution.196

Another approach would be to allow environmental non­governmental organisations to play a bigger role in moulding environmental public opinion. Several non­governmental organisations have unrivalled access to the media and propaganda sources and can therefore become very influential. This has become apparent in recent times, with an increasing number of multinationals committing to GHG emission reduction through recognition of the commercial benefits associated with market mechanisms, such as those implemented by the Kyoto Protocol.197 Non­governmental organisations could play their part by influencing public opinion to put pressure on decision-makers and leaders to support environmentally friendly policies.198 One way of influencing opinion in this way could be to shift focus from preventing global warming, which is such a huge task it could promote feelings of helplessness, to one where the actual personal effects of global warming are emphasised. For example, instead of portraying global warming as causing a warmer climate, focus could instead be switched to the effects of this warmer climate, such as no snow for skiing, or no Pacific Islands in which to holiday. Public participation in environmental and development projects has been increasingly recognised as enhancing the success of such projects. Such public involvement can rarely occur at an international level and therefore if domestic public perception is increased it can

193 At 15.

194 At 15.

195 At 37.

196 At 37.

  1. Freeland, above note 131, at 541.
  2. Arcas, above note 10, at 292.

lead to more awareness at an international level.199 One example of this is the Occupy movement that spread around the world. This movement showed how the power of multiple domestic actions could have a profound global effect. Part of this increase in public awareness would simply mean greater education. Scepticism towards the reality of climate change through inadequate knowledge continues to dampen public response and makes some politicians less willing to expend the capital required to address the issue. The promotion of public awareness can increase compliance and motivate change.200


There is considerable debate and divergence of opinion as to what regime should replace the Kyoto Protocol. However, what has become evident is that unwilling participants can no longer rely on the age­old excuse that there is not enough evidence of global warming to warrant action. In his opposition to the United States ratifying the Kyoto Protocol, President George W Bush made reference to “the incomplete state of scientific knowledge of the causes of, and solutions to, global climate change”.201 It is this type of attitude that has been at the root of our slow response and lack of willingness to acknowledge climate change as a cause for concern; however, the evidence is on the table now and therefore this can no longer be the case.

The impact actions today have for society in the long term should be recognised. If we were to fast­forward 200 years, those who want to promote economic growth today may be seen as evil and placed in the infamous annals of our history. How is it possible to be so sure that policies and actions today are morally sound and can be justified against the thoughts of future generations? How can present thinking be revised to comprehend thinking as future generations may do? Because of the dilemma the planet is now facing, these are questions that must be answered.

Addressing climate change will effectively require a second Industrial Revolution and the sooner planning for the future starts, the greater the chances of success. In order for a comprehensive regime to be adopted in time, the international community must unify in one direction and overcome cultural and economic differences as well as their vulnerability to climate change. To overcome these obstacles, thereby stimulating further development, a clear

  1. J Lin “Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work” [2005] SGYrBkIntLaw 22; (2005) 9 Singapore Year Book of International Law 280 at 282.
  2. Peloso, above note 168, at 327.
  3. The Financial Times (London, 18 May 2001) at 8 in Arcas, above note 10, at 289.

timeline and a shared vision is needed.202 The problem with climate change is that it seems too big to take on alone, and only when working with as many other people and countries as possible can a difference truly be made.

In working toward the future, humanity needs to learn from the past: what worked and what did not. Clearly the Kyoto Protocol has been ineffective during its first commitment period in institutionalising any change. There is serious doubt that the second commitment period will be any different. The replacement regime that offers the most potential is to utilise a combination of non­treaty regimes. As Aldy and Stavins said, “because no single approach guarantees a sure path to ultimate success, the best strategy may be to pursue a variety of approaches simultaneously”.203 It should begin with non­ governmental organisations influencing the general public to stimulate change from their local and regional councils, which will then feed up into national governments. This domestic action approach to climate change mitigation provides autonomy and flexibility, allowing countries to develop legal responses to climate change that reflect the particularities of their own jurisdictions. In doing so, the domestic regimes can provide the momentum for an international response that can encompass a broader jurisdictional scope.204 As this movement gathers momentum, steps should be put in place to implement a global climate change authority based on a trusteeship model to protect the environment for the benefit of mankind.

As Bill McKibben, founder of the environmental organisation said, “we are in the last minute of the last quarter of the biggest game humanity has ever faced”.205

  1. Bausch and Mehling, above note 142, at 15. 203 Aldy and Stavins, above note 143, at xii.
  2. Blustein, above note 26, at 321.
  3. McKibben, above note 169.

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