I. Global warming and the kyoto protocol

International and Comparative Law Quarterly

Volumn 47, Issue 2, 1998, Pages 446-461

  Davies, Peter G G ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 85022841217     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300061947     Document Type: Article

References (124)

1. (1992) 31 I.L.M. 849.
2. On the negotiations and text of the Climate Change Convention see D. Bodansky, “The United Nations Framework Convention on Climate Change: A Commentary” (1993) 18 Yale J.Int.L. 451–558.
3. See also J. Barrett, “The Negotiation and Drafting of the Climate Change Convention”, in R. Churchill and D. Freestone (Eds), International Law and Global Climate Change (1991), pp.183–200.
4. UN Environment Programme (UNEP) Press Release, 11 Dec 1997.
5. UN Dcc.FCCCCP/1996/5/Add. 1, p.8.
6. Idem, p.9. Whilst scientists disagree on the precise extent of the global temperature rise, most do agree that a rise must be expected.
7. Idem
8. See generally D. Freestone, “International Law and Sea Level Rise”, in Churchill and Freestone, Idem, at pp.109–126.
9. European Commission, “Newsletter from Ritt Bjerregaard, the EU's Commissioner for the Environment”, Nov. 1997, p.1.
10. See generally on the greenhouse effect D. D. Kemp, Global Environmental Issues (1994), pp.144–172
11. J. Y. Houghton, Global Warming: The Complete Briefing (2nd edn, 1997)
12. and D. M. Gates, Climate Change and its Biological Consequences (1993).
13. “Press Backgrounder” issued by Secretariat to the Climate Change Convention, 20 Nov. 1997, p.1.
14. See M. Bowman, “Global Warming and the International Legal Protection of Wildlife”, in Churchill and Freestone, “Press Backgrounder” issued by Secretariat to the Climate Change Convention, at pp.127–146.
15. UN Doc.FCCC/CP/1996/5/Add.l, p.7.
16. UN Doc.FCCC/CP/1996/5/Add.l Methane is released from the burning of fossil fuels, and is also produced as a consequence of change in land use to e.g. rice production, and from the gastric processes of ruminants. Nitrous oxide concentrations have been increased in the main as a result of greater use of agricultural fertilisers.
17. UN Doc.FCCC/CP/1996/5/Add.l Hydro fluorocarbons are frequently used as refrigerants, and coolants in air-conditioning systems. Per fluorocarbons are used primarily in aluminium smelters, and sulphur hexafluoride as an insulating medium in electric circuit breakers.
18. See S. Oberthur, “The Second Conference of the Parties” (1996) 26(5) Environmental Policy and Law 146–147. Whilst there remains some doubt as to the precise extent of the effect of global warming on the planet, the Climate Change Convention notes that “Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects”: Art.3(3).
19. A “precautionary” approach endorses the adoption of measures to protect the environment from a potentially damaging activity prior to a causal link between such activity and subsequent damage to the environment being conclusively established. On the precautionary principle see D. Freestone and E. Hey (Eds), The Precautionary Principle and International Law: The Challenges of Implementation (1995).
20. Oberthur, idem, p.147.
21. For a more detailed account of the growing international consensus on the impact of global warming since the 1960s see Bodansky, idem, at pp.458–471.
22. IPCC, Climate Change: The IPCC Scientific Assessment (1990).
23. See also “IPCC First Assessment Report Overview” (1991) 3(1) International Environmental Affairs 64–84.
24. UNGA Res.45/212 of 21 Dec 1990.
25. See Bodansky, UNGA Res.45/212, at pp.474–491.
26. Despite the lack of emission targets in the treaty, the EC in its instrument of approval noted that “the Community and its Member States reaffirm the objectives set out in the [EC] Council conclusions of 29 October 1990, and in particular the objective of stabilization of CO2 emissions by 2000 at 1990 level in the Community as a whole” (See Council Decision 94/69/EC of 15 Dec 1993 (1994) O.J. L33/11,7 Feb.).
27. Convention on Long-Range Transboundary Air Pollution (1979) 18 I.L.M. 1442 (LRTAP)
28. Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at least 30 Per Cent (1988) 27 I.L.M. 707
29. Protocol concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes (1989) 28 I.L.M. 212
30. Protocol concerning the Emissions of Volatile Organic Compounds or Their Fluxes (1992) 31 I.L.M. 568
31. and Protocol on Further Reduction of Sulphur Emissions (1994) 33 I.L.M. 1540.
32. See A. Fraenkel. “Convention on Long-Range Transboundary Air Pollution: Meeting the Challenge of International Cooperation” (1989) 30 Harv.IntLJ. 447–476
33. and R. R. Churchill, G. Rutting and L. M. Warren, The 1994 UN ECE Sulphur Protocol” (1995) 7(2) J.E.L. 169–197.
34. Vienna Convention for the Protection of the Ozone Layer (1987) 26 I.L.M. 1529 (Ozone Convention)
35. Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 I.L.M. 1550.
36. See P.M. Lawrence, “International Legal Protection for Protection of the Ozone Layer” (1990) 2(1) J.E.L. 17–51
37. E. P. Barratt-Brown, “Building a Monitoring and Compliance Regime Under the Montreal Protocol” (1991) 16 Yale j.IntL. 519–570
38. J. E. Mintz, “Progress Toward a Healthy Sky: An Assessment of the London Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer” (1991) 16 Yale j.IntL. 571–582
39. and D. L. Downie, “Road Map or False Trail? Evaluating the Precedence of the Ozone Regime as a Model and Strategy for Global Climate Change” (1995) 7(4) International Environmental Affairs 321–345.
40. See also R. Benedick, Ozone Diplomacy (1991)
41. and S. Oberthur, “Montreal Protocol: 10 Years After” (1997) 27(6) Environmental Policy and Law 432–440.
42. The Parties should protect the climate system for the benefit of present and future generations of human kind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capacities. Accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof” (Art3(l), emphasis added). On the perceived obligation on the present generation to take effective action to protect the global atmosphere from serious harm for the benefit of future generations see C. Redgwell, “Intergenerational Equity and Global Warming”, in Churchill and Freestone, Environmental Policy and Law, at pp.41–56.
43. Climate Change Convention, Art.4(l)a
44. Idem, Art.4(l)b.
45. Idem, Art4(l)e.
46. Idem, Art,4(l)g.
47. Idem, Art,4(2)a.
48. Idem, Art,4(2)b.
49. P. Sands, Principles of International Environmental Law (1995), p.277, has noted: “This is clearly something other than a provision requiring a mandatory return to a specified earlier level by a specified date.”
50. Council Decision 94/69/EC (Principles of International Environmental Law) inter alia noted: “The European Economic Community and its Member States declare that the commitment to limit anthropogenic emissions set out in Article 4(2) of the Convention will be fulfilled in the Community as a whole through action by the Community and its Member States, within the respective competence of each.” The Climate Change Convention is an example of a “mixed agreement” where competence is shared between the EC and its member States and, as such, negotiation and implementation of the treaty require joint action by both the EC and the member States. No attempt was made in the decision to draw the line between the ECs and individual member States' competence.
51. On the treaty-making competence of the EC see D. McGoldrick, International Relations of the EU (1997)
52. L. Madeod, I. D. Hendry and S. Hyett, The External Relations of the European Communities (1996)
53. N. A. NeuwahL, “Joint Participation in International Treaties and the Exercise of Power by the EEC and its Member States: Mixed Agreements” (1991) 28 CM.L-Rev. 717–740.
54. Specifically on EC participation in environmental treaties see Nollkaemper, “The EC and International Environmental Cooperation- Legal Aspects of External Community Powers” (1987) 2 Legal Issues in European Integration 55–91.
55. The Montreal Protocol (Legal Issues in European Integration) controls certain gases such as chlorofluorocarbons which not only have ozone-depleting characteristics but also contribute to the greenhouse effect (footnote added).
56. On the Berlin Conference see S. Oberthur and H. Ott, “The First Conference of the Parties” (1995) 25(4)(5) Environmental Policy and Law 144–156
57. and J. L. Morgan (1995) 6 YB.Int.Env.X. 225–230.
58. Oberthur and Ott, idem, p.145.
59. idem.
60. See further on such opposition infra nn.83–86 and accompanying text
61. Idem, paral(e).
62. Idem, para2(b).
63. Idem, para.6.
64. The Second Conference of the Parties was held in Geneva from 8–19 Jury 1996. A draft protocol had not been drawn up at this stage, and debate underlined the lack of consensus on the approach to be taken in any such protocol. In particular the US argued that new commitments by developing countries were required which the Group of 77 representing developing States strongly opposed. There was also no agreement on whether a timetable for emissions reductions should be adopted under the process or whether an overall objective was all that was required. See generally Oberthur, Idem, at pp.197–198.
65. See the Report of the Eighth Meeting of the AGBM, UN Doc.FCCC/AGBM/1997/8.
66. See infra nn.80–82 and 87–96 with accompanying text.
67. See infra nn.97–100 and accompanying text
68. See infra nn.59–71 and accompanying text
69. Kyoto Protocol, Art.2(l)(a)i
70. Idem, Art.2(l)(a)ii. Trees and plants are examples of carbon “sinks”, and the oceans of carbon “reservoirs”. The process of photosynthesis in trees and plants removes carbon from the atmosphere. The oceans are a store of carbon.
71. Idem
72. Idem, Art2(l)(a)iii.
73. Idem, Art2(l)(a)iv.
74. Idem,Art2(l)(a)vii
75. Idem, Art2(l)b.
76. Idem, Art2(3).
77. Bodansky, Idem, at p.509.
78. The gases are noted in Annex A to the Protocol (also noted Idem d3). Any developed country may use 1995 as its base year for hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride if they wish (Art3(8)).
79. Idem, Art.7(l).
80. Idem, Art.8(l).
81. Idem, Art.8(5).
82. When the Conference of the Parties meets as the meeting of Parties to the Protocol, those States that are party to the Convention but not to the Protocol may participate but only as non-voting observers (idem, Artl3(l) and (2)). Parties to the Protocol will meet annually (Artl3(6)) to review the implementation of the Protocol (Art.l3(4)).
83. Idem, Art 8(6).
84. On the future introduction of a non-compliance system see infra nn.101–102 and accompanying text
85. infra
86. Idem, Art.4(l) and (2).
87. Idem, Art.4(1). If State A and State B failed to meet their joint target level of emissions, each State would be legally responsible for its own emission levels as established in the joint agreement (Art4(5)).
88. Department of the Environment Press Release, 18 Dec 1997. The UK government has reaffirmed its election manifesto commitment to a 20% cut in carbon dioxide emissions (see ENDS Report No266 (1997), p.4) to be delivered by “greater energy efficiency, renewable forms of power generation and an integrated transport policy”
89. (Department of Environment, Press Release, 11 Dec 1997).
90. The government's ability to bring about this level of reduction has been questioned; see Socialist Environment and Resources Association, Policies to Reduce UK Carbon Dioxide Emissions by 20% (1997)
91. and ENDS Report No.269 (1997), p.6.
92. See also Independent, 1 Oct 1997, p.11. It is anticipated that the UK government will adopt a revised climate change strategy in 1998 to take account of the commitments undertaken at Kyoto.
93. Idem, Art.4(6).
94. See ENDS Report No.266 (1997), pp.47–48.
95. European Commission Press Release IP/97/1106,11 Dec 1997.
96. See European Commission, “Climate Change-The EC Approach for Kyoto” issued on 1 Oct 1997
97. see also Commission Press Release IP/97/829,1 Oct 1997. Carbon dioxide accounts for almost 80% of EC greenhouse gas emissions. The EC indicated in 1995 that its carbon dioxide emissions “could grow overall between 5 and 8 per cent in the remaining years of this decade [compared to 1990 levels]” if appropriate action was not taken; see UN DocFCCC/CP/1995/Inf.4/Corr.l. See also Independent, 20 May 1996, p.6 on the ECs inability to date to reduce carbon dioxide emissions.
98. The ECs climate change strategy post-UNCED has been severely undermined by its failure to adopt an EC-wide carbon tax. This failure was due mainly to the reluctance of the UK to agree to the imposition of any type of EC-wide environmental taxation. The European Commission has subsequently encouraged member States to take their own domestic action to introduce carbon taxes; see ENDS Report No.244 (1995), p 39.
99. The carbon tax was the linchpin of the Community's strategy post-UNCED; sec European Commission, “A Community Strategy to Limit Carbon Dioxide Emissions and to Improve Energy Efficiency” COM(92)246 final, 1 June 1992. Other aspects of the strategy include the ALTENER programme to promote the development of renewable energy sources, the establishing of a carbon dioxide monitoring system, and SAVE (Specific Action for Vigorous Energy Efficiency).
100. Art.6 of the Protocol. On joint implementation see O. Kuik, P. Peters and N. Schrijver, Joint Implementation to Curb Climate Change (1994).
101. Idem, Art.6(l)d.
102. Idem, Art.6(2).
103. Art4(1) of the Climate Change Convention; see Idem nn.31–34 and accompanying text
104. Idem, Art.4(l)c and (5); Artl0(c) of the Protocol. Pursuant to a decision at the First Conference of the Parties (UN Doc.FCCC/CP/1995/7/Add.l) the issue of technology transfer will be reviewed at each subsequent Conference of the Parties. The Second Conference of the Parties requested the Secretariat to establish a round table on transfer of technology, which met at Kyoto on 9 Dec. 1997. It underlined the important role of the private sector, which largely owns the intellectual property in environmentally sound technology. It also underlined the importance of multinational funding agencies (Global Environmental Facility, the International Finance Corporation and the World Bank) in “avoiding the failure of technology transfer projects” due to “high incremental costs”; see UN Doc.FCCC/ • CP/1997/CRP.5, p3. Art.4(5) of the Climate Change Convention places an obligation on Annex II States (Annex I parties apart from those Central and Eastern European States undergoing transition to a market economy) to finance the transfer of technology to developing countries.
105. Earth Negotiations Bulletin (13 Dec 1997), Vol.12, No.76, p.10. Art 11 of the Climate Change Convention provides for a financial mechanism. The Global Environmental Facility operates this mechanism on an interim basis under a Memorandum of Understanding with the Conference of the Parties; see UN Doc.FCCC/CP/1996/9. The Facility has provided for the transfer of technology in projects such as an “efficient industrial boilers project in China, the solar thermal-electric project in India, and the renewable energy small power project in Indonesia”
106. see UN Doc FCCC/CP/1996/8. The Protocol reaffirms Annex II States' commitment to funding such technology transfer and the cost incurred by developing countries in providing updated national inventories of greenhouse gases (Artll of the Protocol).
107. See Earth Negotiations Bulletin, idem, pp.34–35.
108. On this type of joint implementation see J. K. Parikh, “Joint Implementation and North-South Cooperation for Climate Change” (1995) 7(1) International Environmental Affairs 22–41.
109. Idem, Artl2(9).
110. Earth Negotiations Bulletin, Idem, at p.13.
111. See T. Goldman and S. A. Hajost (1993) 3 Y.B.I.L. 143.
112. Idem, Art.8.
113. Idem, Arts,12(10) and 3(12).
114. Idem, Art l6 bis notes: The Parties included in Annex B may participate in emissions trading for the purposes of fulfilling their commitment under Article 3 of the Protocol.”
115. Idem, Art.3(10).
116. Sec United Nations, Controlling Carbon Dioxide Emissions: the Tradeable Permit System (1995), p.17, which indicates such purchasing and selling of permits “is the basis on which any international commodity market works. Those who have more than they want sell to those with deficits, at a profit”
117. On tradeable permits see also P. Bohm, An Analytical Approach to Evaluating the National Net Costs of a Global System of Tradeable Carbon Emission Entitlements: With Special Emphasis on the Effects on Different Country Categories (1994).
118. Earth Negotiations Bulletin, An Analytical Approach to Evaluating the National Net Costs of a Global System of Tradeable Carbon Emission Entitlements: With Special Emphasis on the Effects on Different Country Categories, at pp.15–17.
119. Idem, Art. 19. Any amendment to the Protocol will be made by consensus if at all possible. If no consensus is reached, it will be adopted “by a three-fourths majority vote of the Parties present and voting at the meeting” (Art.l9(3)). The amendment will become binding on those parties which deposit instruments of acceptance “on the ninetieth day after the date of receipt by the Depositary of an instrument of acceptance by at least three-fourths of the Parties to this Protocol”; Art. 19(4).
120. The Depositary of the Protocol is the UN Secretary-General: Art.22. On the issue of non-compliance, see J. Heister, E. Mohr, F. Stahler, P. Stoll and R. Wolf-rum, “Strategies to Enforce Compliance with an International Carbon Dioxide Treaty” (1997) 9(1) International Environmental Affairs 22–53.
121. At Kyoto the US proposed a system which would penalise a State exceeding its initial emission targets by reducing any subsequent emissions quota for that country by the amount it had over-emitted in the initial commitment period: see Earth Negotiations Bulletin, International Environmental Affairs, at pp.31–32.
122. European Commission, International Environmental Affairs.
123. The US is responsible for approximately 23% of global emissions. By contrast Japan is responsible for 5%, Germany for almost 4% and the UK for 3%; see Independent, 7 June 1997, p.8.
124. European Commission, Independent, at p.22.