The nature, origin and impact of legally binding consequences: the case of the climate regime

The Marrakesh Accords provide a detailed compliance system for the Kyoto Protocol. An innovative feature of this system is an Enforcement Branch authorized to apply punitive measures or “consequences” in the second commitment period to Annex I Parties that have been found to be in non-compliance in the first commitment period. However, even after the latest Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), COP-11, and the first COP serving as the meeting of the Parties to the Kyoto Protocol, COP/MOP-1, it is not yet clear whether these consequences will be legally binding. The purpose of this paper is three-fold. First, we examine the legal nature of the punitive consequences embedded in the Marrakesh Accords. Second, we discuss potential motives for making these consequences legally binding. We point out that one such motive is that their implementation requires cooperation by the Party that is in non-compliance. In this regard, Kyotoȁ9s compliance system differs from other international compliance systems equipped with punitive consequences, such as those of the WTO and the UN. Finally, we consider whether making the punitive consequences legally binding is likely to make a difference. The conclusion, which should be of interest to both academic researchers and the policy community, is that the legal status of the consequences is likely to have only a modest effect on compliance levels. A country that deliberately fails to abide by other legally binding commitments under the Kyoto Protocol is also likely to resist the application of punitive consequences, regardless of whether these consequences are made legally binding or not.     

The Bonn Agreement to the Kyoto Protocol – Paving the Way for Ratification

This article provides a short account of the international climate negotiations that took place in Bonn from 16 to 27 July 2001. After the Sixth Conference of the Parties to the Framework Convention on Climate Change failed in November 2000, the Parties had decided to suspend the meeting. The ministers present at the resumed session successfully adopted the "Bonn Agreement to the Kyoto Protocol", a set of political compromises for the most contentious issues left open by the Kyoto Protocol. Although many details had been transferred to the Seventh Conference of the Parties, November 2001 in Marrakesh, Morocco, the Bonn Agreement already paved the way for ratification of the Kyoto Protocol and its entry into force. The Marrakesh Accord adopted on 10 November 2001transforms, with a few exceptions, this political agreement into bindinglegal text.     

The Private Sector and the Implementation of the Kyoto Protocol: Experiences, Challenges and Prospects

This article emphasizes the critical importance of the private sector to the success of the efforts to mitigate climate change. Analysing the progress and experiences gained so far, this article concentrates on the role of the private sector in the operationalization of the Kyoto Protocol's three flexible mechanisms, namely Joint Implementation (JI), the Clean Development Mechanism (CDM) and international emissions trading. The article illustrates in detail the various tasks performed by private actors during the CDM and JI project cycles, and contemplates their possible participation under Article 17 of the Protocol on international emissions trading. While identifying some challenges, the article argues that the Kyoto Protocol's flexible mechanisms have succeeded in finding innovative ways of involving the private sector in climate change mitigation and that the post-2012 climate regime should build on these experiences.     

How Can the European Union Contribute to a COP-6 Agreement? An Overview for Policy Makers

During the 6th Conference of Parties (COP-6) in The Hague, the Netherlands, November 2000, crucial progress on a number of outstanding issues related to the Kyoto Protocol will have to be made to open the way for its early ratification, if not to save it from complete failure. Given the present lack of internal US political support for the Kyoto Protocol, the EU may play a pivotal role in making the Kyoto Protocol agreement a reality even without initial ratification of the US, if its able to provide sufficient leadership. In this overview article we discuss the main issues under negotiation, the problems of finding agreement and opportunities for the EU to catalyse a compromise agreement at COP-6, building on key scientific papers as included in this issue and discussions at the European Forum on Integrated Environmental Assessment Climate Policy Workshop in Amsterdam. Key elements are the inclusion of sinks, the use of the Kyoto Protocol mechanisms as a supplement to domestic action and the international compliance system. Domestic implementation of climate policy is a major factor for the EU's credibility.     

Challenges and Outcomes at the Ninth Session of the Conference of the Parties to the United Nations Framework Convention on Climate Change

From 1 to 12 December 2003, the Ninth Session of the Conference of the Parties to the United Nations Framework Convention took place in Milan, Italy. This conference continued the laborious effort of developing an international climate regime by preparing for the Kyoto Protocol’s entry into force. Some two dozen decisions were adopted on a wide range of options for responding to climate change. This paper assesses the progress achieved at the conference on a number of issues. Among these were operational details for implementing forestry projects under the Convention’s Clean Development Mechanism, and guidelines for reporting on greenhouse gas emissions and removals from agriculture, forestry and land-use change. Parties also decided on rules with respect to two funds, the Special Climate Change Fund and the Least Developed Country Fund. With respect to developing countries, Parties continued discussions on rules for building response capacity in light of the expected adverse effects of climate change and transferring environmentally sound technology. They also discussed how to incorporate scientific advice from the Third Assessment Report of the Intergovernmental Panel on Climate Change into the negotiations. Although Russia did not ratify the Kyoto Protocol prior to the conference, Milan demonstrated momentum and interest among Parties to support the climate regime. Nevertheless, it is doubtful whether the detailed discussions were able to contribute to preparing for the long term. To this end, this paper concludes that more discussion and leadership is required to bridge the North/South gap if a post-2012 climate regime is to stand.     

‘US, China and the Economics of Climate Negotiations’

Despite the entry into force of the Kyoto Protocol, the US decision not to comply with its Kyoto commitments seems to drastically undermine the effectiveness of the Protocol in controlling GHG emissions. Therefore, it is important to explore whether there are economic incentives that might help the US to modify its current decision and move to a more environmentally effective climate policy. For example, can an increased participation of developing countries induce the US to effectively participate in the effort to reduce GHG emissions? Is a single emission trading market the appropriate policy framework to increase the signatories of the Kyoto Protocol? This paper addresses the above questions by analysing whether the participation of China in the cooperative effort to control GHG emissions can provide adequate incentives for the US to re-join the Kyoto process and eventually ratify the Kyoto Protocol. This paper analyses three different climate regimes in which China could be involved and assesses the economic incentives for the major world countries and regions to participate in these three regimes. The main conclusion is that the participation of the US in a climate regime is not likely, at least in the short run. The US is more likely to adopt unilateral policies than to join the present Kyoto coalition (even when it includes China). However, a two bloc regime would become the most preferred option if both China and the US, for some political or environmental reasons, decide to cooperate on GHG emission control. If the US decides to cooperate, the climate regime that provides the highest economic incentives to the cooperating countries is the one in which China and the US cooperate bilaterally, with the Annex B_?US countries remaining within the Kyoto framework.     

Linkages between the Montreal and Kyoto Protocols – Enhancing Synergies between Protecting the Ozone Layer and the Global Climate

The international treaties for the protection of the ozone layer and the global climate are closely related. Not only has the Montreal Protocol for the protection of the ozone layer served as a useful example in developing the international climate regime, but policies pursued in both issue areas influence each other. This paper gives an overview of the many ways in which both treaty systems are linked functionally and politically. It investigates, in particular, the tension that has arisen with respect to the use of fluorinated greenhouse gases and the potential for drawing on the experience under the Montreal Protocol regarding data reporting and policy design on fluorinated greenhouse gases under the Kyoto Protocol to the United Nations Framework Convention on Climate Change. The potentials for enhancing synergy in these areas are explored, and related options discussed. Some initiatives for exploiting these potentials are already underway, aiming in particular at enhancing learning and exchanging of information. However, political choices concerning some of the issues willeventually need to be made, if action at the international level is to contribute to their solution.     

The Compliance Mechanism of the Cartagena Protocol on Biosafety: Development, Adoption, Content and First Years of Life

The compliance mechanism of the Cartagena Protocol on Biosafety has been functioning for approximately 5 years. This period is probably too limited to draw any firm conclusions in respect of the future role of the compliance mechanism. On the other hand, the findings of the Compliance Committee have been considered by no less than three Conferences of the Parties serving as the Meetings of the Parties to the Protocol (2005, 2006 and 2008). Therefore, a preliminary stocktaking of the achievements of the compliance mechanism seems to be appropriate. This article attempts to provide such stocktaking, the conclusions being that while there are a number of positive indications, there are also some rather negative trends represented by the outcomes of the last Conference of the Parties serving as Meeting of the Parties (2008). In order to provide an informed background of the analysis, the article is introduced by a brief account of the negotiation history of the compliance mechanism and a presentation of its legal basis and main features.     

Convergence Criteria for Participation in the Flexible Mechanisms of the Kyoto Protocol

We suggest a multi-layered system of three convergence criteria – similar to those used in the run-up to the European monetary union – that define the notion of "demonstrable progress" towards reaching the emission commitments under the Kyoto Protocol. These are the existence of an independently evaluated national emissions inventory, the level of domestic policies and measures, and the quantitative convergence of emissions towards the Kyoto target. While the first of these criteria constitutes a necessary condition for use of the Kyoto Mechanisms, the other two should determine the degree of participation allowed for any given Annex I country.     

The Legality of the EU's Stand-Alone Approach to the Climate Impact of Aviation: The Express Role Given to the ICAO by the Kyoto Protocol

The aviation sector is not yet covered by the European Union's Emissions Trading Scheme (EU ETS). Taking into account the fact that aviation increasingly contributes to climate change, the European Commission adopted a proposal for legislation to include aviation in the EU ETS. The proposal foresees the inclusion of internal EU flights as well as external flights to and from the Union within the EU ETS. On 20 December 2007, EU Environment Ministers reached political agreement in the Environment Council on the basis of a new compromise text tabled by the Presidency. However, the International Civil Aviation Organization (ICAO), as well as various stakeholders, does not consider that the EU has the competence to include aviation within the EU ETS. A crucial point concerning the legality of including aviation in the EU ETS is the fact that Article 2(2) of the Kyoto Protocol states that the parties 'shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation . . . working through the International Civil Aviation Organization . . .'. This article reviews the legality of the EU's stand-alone approach, focusing on the European and international legal framework and taking into account the express role given to the ICAO by the Kyoto Protocol.     

Russia’s role in UNFCCC negotiations since the exit of the United States in 2001

The unexpected exit of the United States from the Kyoto Protocol in 2001 signaled the exponential increase in the importance of the Russian Federation as a key player in international climate change politics. Until then a relatively minor player, Russia’s active participation in the evolution of the climate change regime is now considered a paramount and immediate necessity. A longitudinal study of Russian climate policy over the years is therefore a highly useful exercise as it allows for the better understanding of current developments and provides some basis for prediction of its future actions. The primary aim of this article is threefold: First, to offer a comprehensive account of Russian involvement in international climate negotiations. Secondly, to clarify the actual reasons behind Russia’s decision to delay its ratification of the Protocol for almost three long years, and finally, to try and map out the post-2012 positions of Russia on the road to the 2009 Copenhagen Conference of the Parties.     

Implications of EU Enlargement on the EU Greenhouse Gas 'Bubble' and Internal Burden Sharing

Currently, the EU-15 forms the only 'bubble' under the Kyoto Protocol and has negotiated an internal burden sharing. A strategic EU climate policy should include accession countries. Thus, even in the case of early ratification of the Kyoto Protocol by 2002, it would be sensible to form a bubble with all countries that are certain to be EU members during the commitment period 2008–2012. Of course due to Art. 4.4 of the Protocol the EU-15 has to stick to its own bubble. However, nothing prevents it from forming an implicit bubble including all first wave countries by inducing them to form a bubble on their own and transfer the surplus to the EU-15. Similarly, second wave countries should form a bubble of their own to co-ordinate JI and permit transfers to the EU. This would reduce the gap between business-as-usual and the target by about 50%. If ratification is delayed to a point where it is clear which second wave countries will be members by 2008, the bubble should be extended by those countries. When in 2005 target negotiations start for the second commitment period, the EU should negotiate a bubble consisting of all states being certain to be members by 2013.     

The Role of EU Internal Policies in Implementing Greenhouse Gas Mitigation Options to Achieve Kyoto Targets

This paper reviews the role of internal European Union (EU) policies and measures in implementing the target for greenhouse gas mitigation in the Kyoto Protocol. It starts with a discussion of the EU Burden Sharing Agreement, which distributes the target between Member States. This leads to a review of the appropriate level of implementation of policies, i.e. at the EU level or Member State level. There is a role for the flexible mechanisms of the Protocol, particularly emission permit trading, in complementing Member State policies at the EU level. The implementation is to be done against the background of three major factors which may have an important bearing on the policies: the probable long-term requirement of substantial reductions in greenhouse gas emissions a changing structure of energy markets, following liberalisation of the gas and electricity markets EU enlargement to include economies in transition with the potential for further substantial reductions in emissions.The paper concludes with a discussion of ancillary benefits of the policies that may be substantial and a summary of the position as regards the "unfinished business" of the Protocol to be discussed at the Conference of the Parties in the Hague in November 2000.     

《京都议定书》框架下促进我国企业履行环境责任的思考

<京都议定书>是各成员国为应对全球变暖达成温室气体减排承诺的环境协议,我国作为发展中国家在<京都议定书>谈判的第三阶段将面临减排的压力,温室气体减排主要取决于相关行业的发展和企业环境责任的承担情况.企业的环境责任作为企业承担社会责任的组成部分,在理论上刚刚兴起.培育企业环境责任意识,完善企业环境责任理论,探索企业环境责任承担相应机制以实现企业的经济效益增长与社会环境效益的双赢.     

The role of justice in the North–South conflict in climate change: the case of negotiations on the Adaptation Fund

Justice, by and large, implies greater legitimacy and can persuade parties with conflicting interests to cooperate more closely on collective actions. Therefore, the aim of this article is to investigate the role that ethical arguments have played in restoring mutual trust between the developed and the developing countries in negotiations on the Kyoto Protocol Adaptation Fund and in transforming the patent failure of the Subsidiary Body for Implementation Bonn May 2006 meetings on its management into the encouraging success of the Nairobi December 2006 round. These meetings are analysed from the perspectives of procedural and distributive justice in order to interpret the negotiating dynamics and their outcomes. More specifically, procedural and distributive justice are, respectively, sought in the Bonn and Nairobi formal meetings through reference to, and the emergence of, principles and criteria of participation, recognition and distribution of power among Parties, and of Parties’ responsibility for, and vulnerability to, climate impacts.     

Trade Measures and Climate Compliance: Institutional Interplay Between WTO and the Marrakesh Accords

This article examines the potential of trade measures to induce more climate-friendly policies, focusing on the relationship between global trade rules and the Kyoto climate regime. At the core of this interplay is the normative consistency of trade-related rules in the two regimes and any hierarchical relationship between them. The stronger clout of the WTO and its compulsory dispute settlement system suggest that issues involving competing claims would be referred to WTO bodies. Such bodies have so far been restrictive regarding the exceptions in WTO agreements to the general ban on embargoes and discrimination. The normative compatibility of the two regimes will also depend on their participatory interplay, specifically how they differentiate groups of actors as to rights and obligations. Non-members of WTO receive the least protection, and their vulnerability to climate-related trade measures is largely determined by their interdependence with states that consider employment of such measures. Among WTO members, the findings of a dispute settlement body would presumably differ depending on the status of the target under the Kyoto Protocol. A non-complier with Kyoto commitments would be more shielded than a non-party, because by joining the Kyoto regime a non-complier has exposed itself to regime-internal and less trade intrusive measures that should be exhausted first. A third dimension of interplay is linkage, or efforts to influence the regime interplay. To date there has only been moderate cross-agency coordination, but considerable attention is paid within each regime, including in the Millennium Round of trade negotiations, to the desirability of avoiding conflict between them.     

The effectiveness of Kyoto Protocol and the legal institution for international technology transfer

Kyoto Protocol has certain provisions concerning environmentally sound technologies (ESTs) transfer, primarily including the direct provisions, the clean development mechanism and the fund mechanism, which are supposed to favor technology transfer for reducing the emission of greenhouse gases (GHG) in the world. However, mainly due to the flaws of these provisions, ESTs have not been transferred as smoothly as possible to realize the Kyoto Protocol’s objectives. Therefore, the international community shall take the effectiveness of Kyoto Protocol as a fresh impetus to consummate the legal system of international technology transfer, that is, to develop a uniform technology transfer agreement under the WTO with a focus on promoting ESTs transfer, which may make the developing countries to acquire the technologies they need under the fair terms and help them build their capacities for sustainable development. China does not need to perform the obligation of reducing GHG emissions until 2013 according to Kyoto Protocol, but precautions shall be taken to improve its legal systems on technology transfer to make preparations for implementing the policy of scientific development and playing significant roles in related international legislation.     

A critical review of the successful CFC phase-out versus the delayed methyl bromide phase-out in the Montreal Protocol

The Montreal Protocol is often described as an international environmental agreement par excellence. After all, it successfully led to the phase-out of almost 95% of all chlorofluorocarbon (CFC) use. A critical review of the Protocol’s history, however, suggests that its successes are deeply entrenched in the economic opportunities that were made available to phase out CFCs. The Montreal Protocol, in other words, was a “best-case scenario” for CFC producers. This may be problematic for policymakers, ecological modernization practitioners, and other scholars who look to the Montreal Protocol for guidance in phasing out other global environmentally harmful substances and practices that are not as “economically efficient.” The shift to delay the phasing out of methyl bromide (MeBr) in the Protocol, an ozone-depleting substance used to this day primarily in strawberry and tomato production, demonstrates how even this most successful of international environmental agreements can become subject to significant setbacks when economic gains and scientific evidence are not obvious to the global powers. Furthermore, changes in what constitutes a viable exemption to the phase-out of CFCs versus MeBr marks a shift away from concern for the general functioning/welfare of society, and toward concern for the market performance of specific individuals. This shift runs parallel to a lack in economic incentives to phase out MeBr in the United States. The article demonstrates how civil society representation in ozone politics is largely dominated by industry interests, especially when scientific uncertainty is high.     

Genesis of the CDM: the original policymaking goals of the 1997 Brazilian proposal and their evolution in the Kyoto protocol negotiations into the CDM

A body of literature is emerging applying critical consideration to the Kyoto Protocol Clean Development Mechanism’s (‘CDM’) achievement of policy goals regarding sustainable development, geographical distribution of projects and related matters. This article places this literature in the context of the policymaking goals of the CDM’s Brazilian architects. The CDM arose from the Brazilian Proposal’s Clean Development Fund, and was negotiated between Brazil and the United States in the weeks preceding the Kyoto Conference of Parties. The CDM’s Brazilian architects continued to pursue their underlying policy goals by taking a leadership position in the Marrakesh Accords negotiations. During this period Brazil’s primary policy objectives comprised achieving meaningful mitigation of GHG emissions to avoid dangerous interference with the climate system, derailing a perceived US/IPCC initiative to allocate emissions cap obligations in the Kyoto Protocol on the basis of current emissions, and taking a leadership position both among the G-77 and China and in the multilateral climate negotiations as a whole. The CDM arose in this context from the G-77 and China’s desire to coerce the North’s compliance with the North’s emissions cap obligations through an alternative means of compliance. As a result, there was no focus on broad conceptions of sustainable development, or on broad distribution of CDM projects throughout the South. Instead, the CDM’s Brazilian architects envisioned that CDM-related sustainable development would arise exclusively from the presence of the CDM projects. Similarly, the Brazilian Proposal advocated allocation of the Clean Development Fund on a basis proportionate to each non-Annex I countries projected 1990–2010 greenhouse gas emissions. These views persisted through the evolution of the Clean Development Fund into the CDM and through Marrakesh Accords negotiations. This article argues that the CDM has largely met the policy goals of its Brazilian architects and that the pursuit of different, additional, refined or more nuanced policy goals necessitates corresponding refinements to the CDM, or any successor mechanism, specifically targeting those different, additional, refined or more nuanced policy objectives, lending support to the emerging literature proposing changes to the CDM to pursue corresponding policy objectives.     

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress was finally adopted on 15 October 2010 at Nagoya, Japan. It was negotiated pursuant to a mandate established by the First Conference of the Parties serving as the Meeting of the Parties in 2004 under an enabling provision in the Cartagena Biosafety Protocol. The Supplementary Protocol seeks to deal with damage to biodiversity as well as ‘associated’ traditional material or personal damage. It delineates two pathways to dealing with such damage: the administrative approach that empowers a competent authority to deal with the matter administratively, without initial recourse to courts; and a civil liability approach that requires litigants to seek private law remedies through national legal systems. However, while the Supplementary Protocol has elaborate and comprehensive provisions implementing the administrative approach, it incorporates only a single article on civil liability which does little more than exhort parties to continue to apply their existing domestic law on the subject or establish rules to deal specifically with the matter. This was not the outcome anticipated when the negotiations started. It was the expectation, primarily of developing countries then, that the prospective protocol would deal essentially with civil liability and set out substantive and procedural rules on liability and redress. This article traces how and why all this came to pass. It also analyses the provisions, and the implications, relating to the administrative approach and the single enabling article on civil liability. It deals also with the challenges in implementing the administrative approach, novel to most countries. Finally, it examines the prospect for the emergence in the future of a more elaborate international civil liability regime.