Equitable as equal: The Kyoto protocol project based flexibility mechanisms in an unequal world

International Community Law Review

Volumn 9, Issue 3, 2007, Pages 263-289

  Melkas, Eriika ^a,b  

^a UNIVERSITY OF TURKU   (Finland)

^b UNIVERSITY OF HELSINKI   (Finland)

Author keywords

Climate change; Cost effectiveness; International environmental law; Kyoto Protocol; Sovereign equality

Indexed keywords

EID: 35548975855     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197407X231244     Document Type: Article

References (195)

1. 16 February 2005, 37 ILM 22.
2. 21 March 1994, 31 ILM 848.
3. The third flexibility mechanism is emissions trading, based on Art. 17 of the Kyoto Protocol.
4. The term emission unit is used in this text as a common designation for four different types of units, viz. assigned amount units (AAU), removal units (RMU), emission reduction units (ERU) and certified emission reductions (CER). These different types of units have been introduced in the decisions of the COP/MOP to denote one metric tonne of carbon dioxide equivalent each, see e.g. decision 9/CMP. 1 (Guidelines for the implementation of Article 6 of the Kyoto Protocol, FCCC/KP/CMP/2005/8/Add.2), Annex, Part A, para. 1. ERUs are the units acquired from JI projects, CERs the ones from CDM projects.
5. E.g. under the Montreal Protocol parties with different levels of consumption and production entitlements may transfer to one another part of their consumption and production entitlements within limits defined intheProtocol, see Arts. 2.5 and 2.5bis of the Protocol on Substances that deplete the Ozone Layer (Montreal Protocol, 1.1.1989, 26 ILM 1550). Edwin Woerdman, Wytze van der Gaast, Ton Manders & Andries Nentjes, "The Kyoto Mechanisms: Economic Potential, Environmental Problems and Political Barriers", in Ekko C. van Ierland, Joyeeta Gupta & Marcel T.J. Kok (eds.), Issues in International Climate Policy Theory and Policy (2003) 115-136, at 116 describe this as a bottom-up approach.
6. See also Kari Kuusiniemi, "Joint Implementation - oikeudelliset toteuttamismekanismit", in Ympäristöoikeudellisia tutkielmia 1996. Suomen ympäristöoikeustieteen seuran julkaisuja 26 (1996) 1-59, at 5-7.
7. A similar tendency, but in a different form may be perceived in the United. Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa in its provisions concerning the subregional and regional action programmes, see Arts 11, 13-15.
8. Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol. International Climate Policy for the 21st Century (1999) 155;
9. see Art. 3(10) and (11). Also the full integration of ERUs in the emissions trading market has been provided for in Art. 3(10) and (11).
10. See also Charlotte Streck, "Joint Implementation: History, Requirements and Challenges", in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005) 107-126, 112.
11. See e.g. Charlotte Streck, "Joint Implementation: History, Requirements and Challenges", in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005) 107-126, 112, who also points out that for the reason that the CDM is such an open system "the host as well as the acquiring country have an incentive to transfer more, rather than fewer, emission reductions".
12. See Kari Kuusiniemi, "Joint Implementation - oikeudelliset toteuttamismekanismit", in Ympäristöoikeudellisia tutkielmia 1996. Suomen ympäristöoikeustieteen seuran julkaisuja 26 (1996) 1-59, at 20-21. The Finnish Pilot Programme on JI and CDM, started in 2000, and continued in 2006 by the Finnish Carbon Procurement Programme, could be given as an example. For JI projects a treaty between Finland and Estonia has been concluded (SopS 23/2004). The treaty set out the framework for the projects. In addition to that, separate agreements have been concluded on each of the projects. As for the CDM, the procedure has been a bit different. No framework treaties have been concluded between Finland and the host countries, but only a purchase agreement directly with the selling organisation in the host country. Information acquired by means of an e-mail consultation with Head of Unit Pekka Puustinen, Ministry of Foreign Affairs, Finland, 8 May 2006.
13. Also domestic legislation concerning JI and CDM activities has been adopted in many countries as well as in the EU, which also guides the activities. In this legislation further limitations may be set, see e.g. Directive 2004/101/EC amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol's project mechanisms (the Linking Directive), Art. 1.2(3); The Clean Development Mechanism (CDM). The Netherlands Approach (The Netherlands Ministry of Housing, Spatial Planning and the Environment) 13.
14. Inge Grotli, Felles gjennomføring og den grønne utviklingsmekanismen -prosjektbasert samarbeid mellom stater for å hinder klimaendring (2000), 62, 66;
15. see also Hugh Wilkins, "What's New in the CDM?", in 11 Review of European Community and International. Environmental Law 2 (2002) 144-158, 147;
16. but cf. Philippe Gullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 176-177.
17. See Kyoto Protocol, Art. 3, paras 10-12. Note that also unilateral CDM projects, where the host country itself invests in emission reductions and then is allowed to sell these acquired emission units on the international market, are generally thought possible, although not in so many words provided for in the implementation rules,
18. see Martijn Wilder, "Can Companies or Entities from a Non-Party to the Kyoto Protocol Participate in the Flexible Mechanisms?", in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005), 249-262, 256.
19. Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol. International Climate Policy for the 21st Century (1999) 151. Technology transfer has also been seen as a significant argument in favour of these mechanisms,
20. see Inge Grotli, Felles gjennomføring og den grønne utviklingsmekanismen - prosjektbasert samarbeid mellom stater for å hindre klimaendring (2000) 194-195.
21. An instrument is cost-effective if it attains its goals widi the lowest possible cost, see e.g. Inge Grotli, Felles gjennomføring og den grønne utviklingsmekanismen -prosjektbasert samarbeid mellom stater for å hinder klimaendring (2000) 49-50, 62-63, 66, 93, 155;
22. see also Sebastian Oberthür &. Hermann E. Ott, The Kyoto Protocol International Climate Policy for the 21st Century (1999) 151.
23. Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 171;
24. Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol International Climate Policy for the 21st Century ( 1999) 151.
25. Xueman Wang & Glenn Wiser, "The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol", in 11 Review of European Community and International Environmental Law 2 (2002) 181-198, 182;
26. Inge Grotli, Felles gjennomføring og den grønne utviklingsmekanismen -prosjektbasert samarbeid mellom stater for å hindre klimaendring (2000) 64, 66, see also 72.
27. E.g. Inge Grotli, Felles gjennomføring og den grønne utviklingsmekanismen - prosjektbasert samarbeid mellom stater for å hindre klimaendring (2000) 67.
28. See Hans-Christian Bugge, "Forurenseren skal betale": de alminnelige regler i norsk rett om kostnadsansvar vedforurensning (1997) 71, 176-177;
29. Eriika Melkas, "The Climate Convention and the Kyoto Protocol - An Overview of the Legal Framework for State Action", in Ympä ristöjuridiikka 4/2001 7-58, 45-50.
30. But cf. Inge Grodi, Felles gjennomføring og den grønne utviklingsmekanismen -prosjektbasert samarbeid mellom stater for å hindre klimaendring (2000) 194-195, according to whom the CDM is only indirectly an application of the polluter pays principle, and the role of the recipient country is not in accordance with the polluter pays principle.
31. See Art. 4, para 2, subparas (a) and (d). See also subpara (b). Furthermore, subpara (e) of the same Article and paragraph requires that developed country parties "co-ordinate as appropriate with other such Parties, relevant economic and administrative instruments developed to achieve the objective of the Convention...". See Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 174-176, who emphasises that all implementation mechanisms should fit within the ambit of the principles of the Convention.
32. FCCC/CP/1995/7/Add.l.
33. See decision 5/CP. 1, para. 2.
34. See Climate Convention, Art. 3.
35. Note that no definition of a "project" has been adopted in neither the Protocol or in other applicable rules; see also Hugh Wilkins, "What's New in the CDM?", in 11 Review of European Community and International Environmental Law 2 (2002) 144-158, 147.
36. As the composition of the group of parties to each of these agreements may not be identical, there may also be a difference between the two conferences - the Conference of the Parties to the Climate Convention and the meeting of the parties to the Kyoto Protocol - in which countries are allowed to participate. As only (ratified) parties are allowed to participate, the former group is larger than the latter one.
37. Art. 6(2). See Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol. International Climate Policy for the 21st Century (1999) 160, according to whom "to attract serious investments and ensure public acceptance of the mechanisms, certainty and stability will be required".
38. See Maria Netto & Kai-Uwe Barani Schmidt, "CDM Project Cycle and the Role of the UNFCCC Secretariat", in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005) 175-190, 184.
39. See decision 3/CMP. 1, Annex, paras 2-4 (FCCC/KP/CMP/2005/8/Add.l).
40. See decision 3/CMP.1, Annex, paras 5 and 64;
41. Ernestine Meijer & Jacob Werksman, "Keeping It Clean - Safeguarding the Environmental Integrity of the Clean Development Mechanism", in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (200,5), 191-211, 203.
42. See decision 3/CMP.1, Annex, paras 20-21.
43. See decision 10/CMP.l, para 1 (FCCC/KP/CMP/2005/8/Add.2).
44. See decision 9/CMP.l; decision 10/CMP.l, para 2(c) (FCCC/KP/CMP/2005/8/ Add.2).
45. Decision 9/CMP.l, Annex, paras. 23-24.
46. Decision 3/CMP.1, Annex, para 31.
47. Primary actors of international law are states, in addition to which intergovernmental organisations have been conferred international legal personality, see e.g. C.F. Amerasinghe, Principles of the Institutional Law of International Organisations (1996) 67-104;
48. Ian Brownlie, Principles of Public International Law (6th ed., 2003) 57-58;
49. Göran Lysén, State Responsibility and International Liability of States for Lawful Acts: a Discussion of Principles (1997) 18-19, 26-27, 36;
50. E. Lauterpacht, International Law Being the Collected Papers of Hersch Lauterpacht (1970) 136, 146-147;
51. Wolfgang Friedmann, The Changing Structure of International Law (1,964) 213-219.
52. The EC belongs to the category of Annex I states.
53. See Climate Convention, Art. 4.8;
54. Kyoto Protocol, Art. 2.3.
55. The participation of other entities than states has also been seen as contributing to cost-effectiveness, see Bert Metz, et al. (eds), Climate Change 2001: Mitigation. Contribution of Working Group III to the Third Assessment Report of the Intergovernmental Panel on Climate Change (2001) 80. The participation of non-state entities is possible in JI and the CDM. It will be addressed later in this text, as it is likely to affect the position of states within this particular framework.
56. See decision 3/CMP.1, paras 3-4; decision 9/CMP. 1, Annex, para 42; decision 3/CMP. 1, Annex, para 5(n).
57. See decision 3/CMP.1, Annex, para. 3; decision 9/CMP.1, Annex, para. 3.
58. See decision 3/CMP. 1, Appendix A; decision 9/CMP.1, Appendix A.
59. "Validation is the process of independent evaluation of a project activity by a designated operational entity against the requirements of the CDM as set out in decision 17/CP.7, the present annex and relevant decisions of the COP/MOP, on the basis of the project design document, as outlined in appendix B below", see decision 3/CMP.1, Annex, para 35. On carrying out validation,
60. see decision 3/CMP.1, Annex, paras 37, 40. Validation is followed by registration, i.e. the formal acceptance by the Executive Board of a validated project as a CDM project activity,
61. see decision 3/CMP.1, Annex, paras 36, 41; on small scale CDM projects,
62. see decision 4/CMP.l (FCCC/KP/CMP/2005/8/Add.1), Annex II, paras 22-23; on afforestation and reforestation CDM projects,
63. see decision 5/CMP.l (FCCC/KP/CMP/2005/8/Add.1), Annex, paras 10-11.
64. Verification refers to the periodic independent review and ex post determination of the monitored emission reductions or sink enhancements that have occurred as a result of a registered CDM project activity during the verification period, see decision 3/CMP.1, Annex, para 61; concerning afforestation and reforestation projects, see decision 5/CMP.1, Annex, para 31.
65. Certification is the written assurance by the designated operational entity that, during a specified time period, a project activity achieved the reductions in anthropogenic emissions by sources of greenhouse gases as verified, see decision 3/CMP.1, Annex, para 61.
66. Decision 3/CMP.1, Annex, paras 27, 40.
67. See decision 9/CMP.1, Annex, para 30.
68. See also Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol International Climate Policy for the 21st Century (1999) 157.
69. Decision 9/CMP.1, Annex, para. 29. For rules concerning eligibility in JI projects,
70. see Annex in the same decision, para. 21. National legislators may still further specify this. For how this specification has been done,
71. see e.g. the German act (Projekt-Mechanismen-Gesetz, 30 September 2005, BGBl. I S. 2826), Section 3 (JI) and Section 8 (CDM); the British statutory instrument (the Greenhouse Gas Emissions Trading Scheme (Amendment) and National Inventory Regulation 2005, No. 2903), Part 3, Regulation 5; the Japanese "Guidelines for Approval of Projects Relating to Joint Implementation and the Clean Development Mechanism", formulated by the Liaison Committee for Utilization of the Kyoto Mechanisms (16 October 2002), http://www.kantei.go.jp/ foreign/policy/ondaka/1016sisin_e.html, para. 1 (website consulted on 4 May 2007).
72. Art. 12 (9). According to Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol International Climate Policy for the 21st Century (1999) 171, this gives CDM a multilateral character.
73. See also Edwin Woerdman, Wytze van der Gaast, Ton Manders, & Andries Nentjes, "The Kyoto Mechanisms: Economic Potential, Environmental Problems and Political Barriers", in Ekko C. van Ierland, Joyeeta Gupta & Marcel T.J. Kok (eds.), Issues in International Climate Policy Theory and Polcy (2003) 115-136, 121, who point out that there is no passage in Art. 12 saying that credits could only be transferred to or acquired from parties. This cannot, however, as opposed to what Woerdman et al. seem to claim, be taken as evidence for a less strict regulation on CDM, as the implementation rules provide more detailed guidance.
74. Decision 9/CMP.1, Annex, para. 29; Decision 3/CMP.1, Annex, para. 33.
75. See Hugh Wilkins, "What's New in the CDM?", in 11 Review of European Community and International Environmental Law 2 (2002) 144-158, 144-146, according to whom "the CDM also provides governments with a political pressure valve. It allows them to use private entities to engage in the process, thereby easing reliance on public authorities to reduce the causes of climate changes, and to promote overseas development assistance."
76. For instance, the Desertification Convention (the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa, 26 December 1996, 33 ILM 1016) puts a significant emphasis on the presence and participation of the private sector. This separates it from most other instruments of international environmental law. Even in comparison to the Kyoto Protocol the private sector has a bigger role in the Desertification Convention, see e.g. Art. 3, which already at the level of principles makes a recommendation to the parties to co-operate with among others non-state entities.
77. On CDM actors, see also Maria Netto & Kai-Uwe Barani Schmidt, "CDM Project Cycle and the Role of the UNFCCC Secretariat" in David Freestone & Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005), 175-190, 176-183;
78. Ernestine Meijer & Jacob Werksman, "Keeping It Clean - Safeguarding the Environmental Integrity of the Clean Development Mechanism", in David Freestone &, Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005), 191-211, 197-199.
79. See Philippe Cullet, Differential Treatment in International Environmental Law (2003) 114;
80. Matthieu Wemaere & Charlotte Streck, "Legal Ownership and Nature of Kyoto Units and EU Allowances", in David Freestone & Charlotte Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005) 35-53, 35.
81. See Xueman Wang & Glenn Wiser, "The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol", in 11 Review of European Community and International Environmental Law 2 (2002) 181-198, 182.
82. See Art. 3(3);
83. see also decision 5/CP.1 concerning activities implemented joindy, para. 1.
84. See Art. 10 a).
85. I have already addressed the appearance of cost-effectiveness in other than climate related recent environmental treaty law as well as the global environmental declarations in my previous article, see Eriika Melkas, "Emissions Trading in the Kyoto Protocol - Caught between Form and Substance", an unpublished manuscript (2007).
86. See Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 1, 68-179, 174-176. It may be seen to be interpreted as included in para. 1 of Article 31 of the Vienna Convention on the Law of Treaties, as according to that paragraph, a treaty (e.g. the Kyoto Protocol or the decisions of the COP or COP/MOP) shall be interpreted, inter alia, in the light of its object and purpose (which are located in other parts of the climate regime, most Importandy the Convention and, for the COP and COP/MOP decisions, the Protocol), and in para. 3, as according to that paragraph "(t)here shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties".
87. See also Lavanya, Rajamani, Differential Treatment in International Environmental Law (2006) 97, 237-239. Martti Koskenniemi has given a thorough account of the principle of systemic integration in his Report of the Study Group of the International Law Commission "Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law", A/CN.4/L.682, 13 April 2006, Section F.
88. See the Preamble: "The Parties to this Protocol, Being Parties to the United Nations Framework Convention on Climate Change..., In pursuit of the ultimate objective of the Convention as stated in its Article 2, Recalling the provisions of the Convention, Being guided by Article 3 of the Convention..."
89. See decision 2/CMP.l (FCCC/KP/CMP/2005/8/Add.1), which makes a reference to Arts. 2, 3 and 4(7) of the Convention. Art. 2 contains the provision concerning the overall aim of the Convention and Art. 3 the guiding principles of the Convention. The guiding principles are, according to the Article, sustainable development, equity, common but differentiated responsibility and the precautionary principle.
90. This applies also to the climate regime, see Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 173-174.
91. Tom Jones -Jan Corfee-Morlot, "Climate Change: Designing a Tradeable Permit System" in OECD, Climate Change. Designing a Tradeable Permit System (1992) 17-24, 17-18;
92. Jan-Magnus Cederlöf, Ecological Modernisation and Market-Based Policy Instruments. The Use of New Instruments in Environmental Policy in Finland and Sweden. Ekonomi och Samhälle Nr 101. Swedish School of Economics and Business Administration, Finland (2001) 71.
93. See Hugh Wilkins, "What's New in the CDM?" in 11 Review of European Community and International Environmental Law 2 (2002) 144-158, 157, according to whom sustainable development should also be a significant consideration after the project cycle. In addition to the sustainable development of non-Annex I countries, also assistance to Annex I countries in fulfilling their commitments according to the Kyoto Protocol, is a goal.
94. See Kyoto Protocol, art. 12(2); Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 176;
95. see also Sebastian Oberthür Sf Hermann E. Ott, The Kyoto Protocol. International Climate Policy for the 21st Century (1999) 168-169, 185, who criticise this definition of the aim for lack of precision.
96. See Preamble to decision 17/CP.7, para. 6;
97. see also decision 3/CMP.1, Annex, paras 4-5, where, however geographic distribution has been turned into regional and subregional distribution. See Sebastian Oberthür Sf Hermann E. Ott, The Kyoto Protocol. International Climate Policy for the 21st Century (1999) 180; Decision 7/CP.4 (FCCC/CP/1998/16/Add.1) para. 4; African Common Position on the Clean Development Mechanism (FCCC/CP/1998/MISC7/Add.2).
98. See Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 176.
99. See e.g. Robert Jennings Sf Arthur Watts (eds), Oppenheims International Law. Vol. 1 (Peace. Introduction and Part 1). 9th ed. (1996) 339-340;
100. Vattel, Emmerich de, Le Droit des Gens (1758) Préliminaires § 18 p. 5;
101. ibid II, Ch. 3, § 36, at p. 122.
102. See Philippe Cullet, Differential Treatment in International Environmental Law (2003) 22-23;
103. I.A. Shearer, Starke's International Law (11th ed., 1994) 100;
104. also Vattel, Emmerich de, LeDroitdes Gens (1758) II, cli. 12, §172, 158.
105. Emmanuel Decaux, La Réciprocité en Droit International (1980) 28, who has described the principle as, first, a moral obligation, and second, as a conditional obligation, which according to him, renders its obligating nature questionable.
106. See Philippe Cullet, Differential Treatment in International Environmental Law (2003) 22-23;
107. see also Robert Jennings & Arthur Watts (eds), Oppenheims International Law. Vol. 1 (Peace. Introduction and Part 1) (1996) 339-340;
108. I.A. Shearer, Starke's International Law (1994) 99; Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (1970). The wording of the Declaration would not, however, require an absolute reciprocity of obligations within treaties.
109. See e.g. the GATT Agreement, Part IV, Preamble, para. 8, Art. XXXVII; Preferential Tariff Treatment, Decision on Waiver (WT/L/304, 17 June 1999); Decision on Measures in Favour of Least-Developed Countries, Decisions adopted by the Trade Negotiations Committee on 15 December 1993 and 14 April 1994, www.wto.int; Declaration on Economic Rights and Duties of States (GA Res. 3281 (xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50), Arts. 2, 8, 14, 17-19, and 26;
110. see also Emmanuel Decaux, La Réciprocité en Droit International (1980) p. 41;
111. I.A. Shearer, Starke's International Law (1994) pp. 346-347;
112. Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 13-20.
113. See Emmanuel Decaux, La Réciprocité en Droit International (1980) 41.
114. See Philippe Sands, Principles of International Environmental. Law I: Frameworks, Standards and Implementation (1995) 217-218;
115. see also Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 169-170;
116. Eriika Melkas, "The Climate Convention and the Kyoto Protocol - An Overview of the Legal Framework for State Action", in Ympä ristöjuridiikka 4/2001, 7-58, 27;
117. Philippe Cullet, Differential Treatment in International Environmental Law (2003) 24-26;
118. for the different premises, which differentiation may be based upon, see Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 72-88.
119. Philippe Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation (1995) 217;
120. see also Eriika Melkas, "The Climate Convention and the Kyoto Protocol - An Overview of the Legal Framework for State Action", in Ympäristöjuridiikka 4/2001, 7-58, 27;
121. Eriika. Melkas, "Sovereignty and Equity within the Framework of the Climate Regime", in Review of European Community and International Environmental Law, vol. 11, issue 2 (2002) 115-128, 119-121. According to Sands the differing circumstances to be taken into account relate primarily to each state's contribution to the creation of a particular environmental problem and its ability to prevent, reduce and control the threat.
122. For differential standards, see the Climate Convention and the Kyoto Protocol diroughout; for grace periods, see Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol, Montreal, 16 September 1987, 26 ILM (1987) 1550), as adjusted, and amended in 1990, 1991 and 1992, Art. 5; for flexibility, see Montreal Protocol, Art. 2(5)-(8); Climate Convention, Art. 4(2)(b); Kyoto Protocol, Art. 3(1), (3), (5)-(6), (10)-(13), 6, 12 and 17; and for the provision of assistance, see the Climate Convention, Art. 4(3)-(5), (8)-(9), 11; Kyoto Protocol, Art. 11 and 12; and the Convention on Biological Diversity, Art. 16, 20 and 21.
123. Emmanuel Decaux, La Réciprocité en Droit International (1980) 21-22;
124. see also Thomas M. Franck, Fairness in International Law and Institutions (1995) 480.
125. See Philippe Cullet, Differential Treatment in International Environmental Law (2003) 15-16. He claims that differential treatment does not encompass every deviation from the principle of sovereign equality, but rather refers to non-reciprocal arrangements which "seek to foster substantive equality in the international community". Yet, he proposes the Kyoto Protocol flexibility mechanisms as an example of differential treatment, although they are not - strictly speaking - non-reciprocal. The increasing presence of the private sector in international negotiations and treaty arrangements has also been raised in this connection, but remains rather unanalysed,
126. see Philippe Cullet, Differential Treatment in International Environmental Law (2003) 175.
127. See John Rawls, Justice as Fairness. A Restatement (2001) 70-72, see also 123;
128. but cf. Philippe Cullet, Differential Treatment in International Environmental Law (2003) 22, who finds that Rawls, in fact, represents a moderate interpretation of strict equality. This principle introduced by Rawls is also known as the maximin principle,
129. see also Thomas M. Franck, Fairness in International Law and Institutions (1995) 18-22.
130. See also Frank Biermann, "Justice in the Greenhouse: Perspectives from International Law", in F.L. Tóth, Fair Weather'Equity Concerns in Climate Change (1999) 160-172, 161-162.
131. See also John Rawls, A Theory of Justice (1972) 100, 303, who, however, addresses a community of individuals, not states.
132. See also Emmanuel Decaux, La réciprocité en droit international (1980) 41. For case law on this issue,
133. see Customs Régime between Germany and Austria, PCIJ (Advisory Opinion) [1931], Series A./B. No. 41, Opinion by Judge Anzilotti 66-67. The principle of common but differentiated responsibility may be seen as an example of this.
134. See John Rawls, The Law of Peoples (1999), 23-30;
135. see also Michael Grubb, "Seeking Fair Weather: Ethics and the International Debate on Climate Change", 71 International Affairs (1995) 463-496, 471. In spite of this, elements of what Rawls presented, in his "Theory of Justice" have still been used in discussing equality of and justice among states, and the limitation set by Rawls himself concerning states criticised by e.g. Tilomas Franck and Charles Beitz,
136. see Thomas Franck, Fairness in International Law and Institutions (1995), 18-22;
137. Charles R. Beitz, Political Theory and International Relations (1979), 8, 128-153.
138. See John Rawls, The Law of Peoples (1999) 25-29.
139. See also John Rawls, "The Law of Peoples", in S. Shute & S. Hurley (eds), On Human Rights. The Oxford Amnesty Lectures 1993 (1993) 41-82, 51, where Rawls explains how he understands the difference between the law of peoples as he sees it on one hand, and international law as it exists on the other.
140. See John Rawls, "The Law of Peoples", in S. Shute & S. Hurley (eds), On Human Rights. The Oxford Amnesty Lectures 1993 (1993) 41-82, 49;
141. John Rawls, The Law of Peoples (1999) 27.
142. By "unfavourable conditions" Rawls has meant the conditions of societies that lack the political and cultural traditions, the human capital and know-how, and the resources, material and technological, that make well-ordered societies possible, see John Rawls, "The Law of Peoples", in S. Shute & S. Hurley (eds), On Human Rights. The Oxford Amnesty Lectures 1993 (1993) 41-82, 74.
143. See John Rawls, "The Law of Peoples", in S. Shute Sf S. Hurley (eds), On Human Rights. The Oxford Amnesty Lectures 1993 (1993) 41-82, 75-76.
144. See Hans Kelsen, Principles of International Law (2nd ed., 1966) 248.
145. See Emmanuel Decaux, La Réciprocité en Droit International (1980) 25;
146. Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 152.
147. For Kelsen, international law may be divided into general or common international law and particular international law. The source of the former, valid for all states belonging to the international community, is custom, i.e. the habitual practice of the states. The sources of the latter, valid for some states only, are treaties, the norms of which are valid for the contracting parties, see Hans Kelsen, Principles of International Law (2nd, ed., 1966) 18. Hence, the position of states vis-à-vis each other would accordingly be determined by either custom or, within a closed circuit of contracting parties, a treaty. As an example of inequality accepted In international law Kelsen gives the Charter of the United Nations, which gives the five permanent members of the Security Council a right of veto in decision-making.
148. See Hans Kelsen, Principles of International Law (2nd ed., 1966) 247-248;
149. see also John Rawls, A Theory of Justice (1972) 237;
150. Philippe Cullet, Differential Treatment in International Environmental Law (2003) 24-25;
151. Abram Chayes Sc Antonia Handler Chayes, The New Sovereignty Compliance with International Regulatory Agreements (1998) 131, who also point out that the difficulty lies in deciding which cases are alike.
152. See Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 152, 164.
153. See e.g. Alf Ross, On Law and Justice (1958) 269-270;
154. Tilomas M. Franck, Fairness in International Law and Institutions (1995) 39;
155. see also Eriika Melkas, "Sovereignty and Equity within the Framework of the Climate Regime", in 11 Review of European Community and International Environmental Law 2 (2002) 115-128, 119-127;
156. Eriika Melkas, "The Climate Convention and the Kyoto Protocol - An Overview of the Legal Framework for State Action", in Ympä ristöjuridiikka 4/2001, 7-58, 25-28.
157. See also John Rawls, A Theory of Justice (1972) 507, who recognises this dichotomy.
158. Franck uses the expression "relative equalisation" to describe Rawls' idea, see Tilomas M. Franck, Fairness in International Law and Institutions (1995) 18.
159. See Duncan French, "Developing States and International Environmental Law: The Importance of Differentiated Responsibilities", in 49 International and Comparative Law Quarterly (2000) 35-60, 47-48;
160. Alf Ross, On Law and Justice (1958) 269-270.
161. See Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 6.
162. See Alf Ross, On Law and Justice (1958) 269-274. Ross, however reduces the notion of justice to abiding by the rules in force.
163. It would seem, in fact, that strict equality could only serve as a purely procedural principle, see John Rawls, A Theory of Justice (1972) 507.
164. See Thomas M. Franck, Fairness in International Law and Institutions (1995) 479.
165. See Abram Chayes Sc Antonia, Handler Chayes, The New Sovereignty. Compliance with International Regulatory Agreements (1998) 133.
166. See Emmanuel Decaux, La Réciprocité en Droit International (1980) 56-58;
167. Robert Jennings & Arthur Watts (eds), Oppenheims International Law. Vol. 1 (Peace. Introduction and Part 1) (9th ed., 1996) 341.
168. See Kyoto Protocol, Art. 6(1)(a); Art. 12(5)(a).
169. For formal equality, see e.g. Articles 3 (1), 4(1), 9-11 and 18, for differentiation, see e.g. 3(1), 4, 12 and 15(3). The first paragraph of Art. 4 is in the first category, while the entire Article is in the second one, as the first paragraph imposes obligations upon all of the parties, but simultaneously requires taking common but differentiated responsibilities, and national and regional developmental priorities into account.
170. See e.g. Art. 10, which does not impose different obligations upon the parties, although does require taking common but differentiated obligations as well as special developmental circumstances into account. Compare with e.g. Arts. 2-7 and 11-12.
171. See Convention on Biological Diversity (29 December 1993, 31 ILM 818).
172. See the Cartagena Protocol on Biosafety (11 September 2003, 39 ILM 1027).
173. See the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa. (26 December 1996, 33 ILM 1016). In the Desertification Convention a significant aspect is the presence of the private sector that separates it from the other instruments referred to here. Even in comparison to the Kyoto Protocol the private sector has a bigger role in the Desertification Convention, see e.g. art. 3, which already at the level of principles makes a recommendation to the parties to co-operate with among other non-state entities.
174. See the Declaration of the United Nations Conference on the Human Environment, 1972, UN Doc. A/CONF.48/14/Rev.1.
175. See the Declaration of the United Nations Conference on Environment and Development, 1992, UN Doc. A/CONF.151/26/Rev.1. Several other principles in the Rio Declaration do, however, touch upon the issue of differentiation,
176. see Lavanya Rajamani, Differential Treatment in International Environmental Law (2006) 60-61.
177. See Report of the World Summit on Sustainable Development, 2002, UN Doc. A/CONF. 199/20.
178. See decision 17/CP.7 (FCCC/CP/2001/13/Add.2), Preamble, para 6. Regional distribution of CDM projects is constandy surveyed, and the equitability thereof, as well as capacity-building in order to obtain more applications for accreditation as DOEs from entities located in non-Annex I parties, promoted.
179. For the existing categories, see Ch. 2 C (Participants) above.
180. See Ch. 2 C above.
181. See Climate Convention, Art. 4.8, where the parties to the Convention are required to "give full consideration to what actions are necessary under the Convention, including actions related to funding, insurance and the transfer of technology, to meet the specific needs and concerns of developing country Parties arising from the adverse effects of climate change and/or the impact of the implementation of response measures", and where nine categories of developing countries are listed, each with particular problems with respect to climate change or the response measures against it.
182. In many Annex II countries the legislation enacted to make the use of the mechanisms possible also takes into account the possibility of domestic JI projects, i.e. JI projects in Annex II countries, see e.g. the German "Projekt-Mechanismen-Gesetz" Ch. 2.
183. See Ch. 2.C above.
184. See also Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 171;
185. Eriika Melkas, "Sovereignty and Equity within the Framework of the Climate Regime", in 11 Review of European Community and International Environmental Law 2 (2002) 115-128, 125.
186. Philippe Cullet, "Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues", 8 Review of European Community and International Environmental Law 2 (1999) 168-179, 173.
187. See http://cdm.unfccc.int/Projects/registered.html (22 May 2007), where the list of the last 15 CDM projects registered with the Executive Board of the CDM include six projects in China, five projects in India, one in South Africa, one in Malaysia, one in Brazil, and one in Indonesia.
188. See Article 6(1)(d) of the Kyoto Protocol for JI; decision 2/CMP.l for CDM. Supplementary was also already mentioned in the COP-decision concerning activities implemented joindy, see decision 5/CP.l, Preamble. The Protocol does not mention the concept of supplementarity in Article 12. It does, however, state that "Parties included in Annex I may use the certified emission reductions accruing from such project activities to contribute to compliance with part of their quantified emission limitation and reduction commitments under Article 3..." (emphasis added). Apart from the climate regime, supplementarity has not been seen in international environmental treaty law.
189. See Ernestine Meijer Sc Jacob Werksman, "Keeping It Clean - Safeguarding the Environmental Integrity of the Clean Development Mechanism", in David Freestone Sc Charlotte Streck, Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005), 191-211, 197.
190. See Christiaan Vrolijk, "Quantifying the Kyoto Commitments", in 9 Review of European Community and International Environmental Law 3 (2000) 285-295, 286.
191. See also Inge Grodi, Felles gjennomføring og den grønne utviklingsmekanismen - prosjektbasert samarbeid mellom stater for å hinder klimaendring (2000) 87;
192. Sebastian Oberthür & Hermann E. Ott, The Kyoto Protocol International Climate Policy for the 21st Century (1999) 156-157.
193. Note that it may also be concluded that even if supplementarity reinforces sovereign equality in its procedural form, it limits sovereignty by limiting the freedom of the state to use the possibility to buy emission units from projects.
194. See my earlier article on emissions trading, Eriika Melkas, "Emissions Trading in the Kyoto Protocol -Caught between Form and Substance", an unpublished manuscript (2007).
195. See e.g. Ernestine Meijer & Jacob Werksman, "Keeping It Clean - Safeguarding the Environmental Integrity of the Clean Development Mechanism", in David Freestone The Charlotte Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms. Making Kyoto Work (2005), 191-211, 194, who point out the relevance of domestic legal frameworks as well as private international and domestic laws generated by commercial contracts.