Finding A Way Forward in a World without Legally Binding Commitments

Begun in Rio de Janeiro in 1992, the United Nations Framework Convention on Climate Change (“UNFCCC”) has wound its way through Conferences of the Parties, Plans of Implementation, Agendas, and Summits to arrive at its 20th anniversary barely capable of sustaining forward momentum, especially on the key principle of addressing the anthropogenic contribution of greenhouse gases to global climate change. This should come as no surprise to observers of the process. Periodic crises that appear to place the entire process in jeopardy have been resolved in the past by renewed commitments.

Unfortunately, this crisis might be different. In addition to the usual North/South conflict over who should bear what burden, some member states that formally supported the process in the past are making credible threats to abandon the legally binding commitments of the Kyoto Protocol, especially if there is no forward movement from the United States government at the next Conference of Parties in Durban, South Africa starting later this month.


Since the 2007 Bali Roadmap, negotiations over the future of the Protocol have proceeded along two separate, but interrelated, tracks. The first, called the Ad-Hoc Working Group on Long-Term Cooperative Action under the Convention (AWG-LCA), is tasked with addressing long-term problems such as mitigation, adaptation, finance, and technology transfer. The second, called the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP), is tasked with agreeing upon a set of binding emission-reduction targets. The United States, having refused to accept any binding targets, does not participate in AWG-KP, but does actively participate in AWG-LCA.

Since the entire artifice was designed as a preliminary measure to reduce emissions while substantive negotiations continued over how to move forward, the legally binding commitments within the Protocol were limited to four years. The Protocol was only ratified in 2008, which means that 2012 will mark the end of the Protocol’s legal form unless negotiators in Durban can reach an agreement on either extending the current framework, or re-negotiating a new Protocol. In the meantime, the global community is left waiting to see whether the legally binding commitments in the Kyoto Protocol are reaffirmed in a new legal protocol. If no new agreement is reached, it may place other aspects of the Protocol in jeopardy, including carbon trading markets, the Clean Development Mechanism, and Joint Implementation projects.

The gestation of the current crisis occurred at the end of COP15 in Copenhagen in 2009. There was widespread hope that the newly elected Obama administration would be able to compromise on a number of key issues so that a new protocol could be established that would incorporate the United States into Kyoto’s legally binding commitments. However, such a deal was dependent on developing countries, in particular India and China, agreeing to additional mitigation targets. When the heads of state arrived in Copenhagen, much of the Conference’s work was still in brackets, creating a volatile situation that ended with the United States, China, India, Brazil, and South Africa drafting a separate agreement without consultations with the full conference of parties. The agreement did not include an extension of the Protocol’s legal form.

Since then, negotiations have become very difficult. A recursive dynamic has emerged, whereby the United States and Annex I countries insist on extending the legal commitments to at least the BRICs, and non-annex I states insist that Annex I countries fulfill their existing legal obligations. Each group’s position provides cover for the other group to proclaim that no progress is possible. The situation has become so difficult that some members are proposing amendments to the UNFCCC’s voting procedures using Article 15, which allows for a three-fourths vote to change any provisions of the Treaty, if only so that the COP can agree on the location of their next conference.

Real progress is necessarily measured in an actual reduction in greenhouse gas emissions, and unfortunately global emissions continue to rise. The Intergovernmental Panel on Climate Change’s (“IPCC”) 2007 report projected a 25% to 90% rise in greenhouse gas emissions between 2000 and 2030 if current trends continue. The IPCC produces a variety of model-based projections of temperature change in every report. Under each projection in the 2007 report, temperature changes increased from the previous report, with the highest prediction now suggesting 4o C by the end of the 21st century. A 4o C rise would produce regional shortages in freshwater, drought, desertification, accelerating global species extinctions, increasing pressure on food resources, and substantial coastal flooding in low-lying areas, as well as sea level rise that threatens the very existence of some small island states.

Is There Life Beyond Durban?

Although an agreement could still be reached in Durban that would extend the Kyoto Protocol, it may be helpful to start thinking about a post-Kyoto world. For those countries that have implemented, or begun to implement, a carbon trading market, there will be substantial interest in establishing at least an interim agreement to ensure the integration of these markets at a global level. This could mean that a multi-level process will emerge, whereby some countries agree to deeper cooperation on mitigation and emission-reduction targets. This is likely to take place at the regional level, particularly in Europe and Southeast Asia.

If the Kyoto Protocol expires, there may be diminished interest from developed countries in funding adaptation or mitigation efforts in developing countries. However, there has been less disagreement on AWG-LCA issues, which means it may be possible to move forward with the Green Climate Fund agreed upon in COP16 in Cancun. The Fund would eventually provide $100 billion annually in commitments from developed countries to finance projects in developing countries. Many of the least developing countries most at risk from the effects of climate change lack the basic capacity to fund and implement projects such as the protection of fresh water aquifers, reforestation, or the adoption of green technology and renewable energy. If these projects continue, they would represent significant progress toward addressing the basic needs of the most vulnerable developing countries.

Palau and the Marshall Islands, which in partnership with other Small Island Developing States (“SIDS”) have emerged as strong advocates of an international commitment to reducing greenhouse gas emissions, are in the initial stage of submitting an advisory opinion to the International Court of Justice (pending a General Assembly Resolution). The case is based on the legal principle of transboundary harm—states are obligated to refrain from taking actions that violate the rights of other states. The release of greenhouse gas emissions has yet to be considered in the context of existing international law regarding transboundary harm, and an advisory opinion by the ICJ may help to catalyze international action on climate change by recognizing a legal obligation to reduce emissions below a certain threshold level.

Of course, much depends on the United States. The U.S. Environmental Protection Agency is slowly moving forward with plans to regulate greenhouse gas emissions, including rolling out new regulations on the mandatory reporting of greenhouse gas emissions. Whether this effort can proceed given the political environment is difficult to predict. One thing is clear. Despite a 2008 campaign commitment to pursue a new course on climate change, the United States under the Obama administration has become a key obstacle to international agreement on climate change. It is becoming increasingly isolated internationally. The full extent of its obstruction is concealed behind the opaque proceedings of the UNFCCC, but the reality is that the United States is leading efforts to end the Protocol. Unfortunately, the surreal landscape of American electoral politics may mean that domestic activism on this issue will fail to create the kind of pressure that is needed for the Obama administration to change direction.

Concluding Thoughts

The Kyoto Protocol still is the only international agreement that provides for legally binding targets to reduce emissions. If it is allowed to expire without a new agreement, the UNFCCC process will lose the rudder that has been guiding the international community toward addressing climate change. Ideally, an agreement can still be reached in Durban that will extend the Protocol’s legal form. However, it may be time to start considering how to move forward on addressing climate change in a world without legally binding commitments. Many avenues for action remain, but in the face of continued opposition from the United States, there may be no comprehensive solution. What’s left is a patchwork of regional and ad hoc actions that will likely fall far short of the type of changes envisioned by the Kyoto Protocol when it was signed in 1997.

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