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The Next Step for Climate Change Regulation

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

Since the release of a report by the Intergovernmental Panel on Climate Change (IPCC) earlier this year, which made the most convincing case yet that climate change was a man-made phenomena, the need to make clear commitments to combat the harmful effects being endured by the global environment has never been greater. 

Last month (December 2014), delegates from 196 countries around the world met in Lima, Peru to discuss how best to address climate change issues ahead of the Paris Conference in 2015, at which the delegates will create new targets and procedures for tackling global emissions through to 2020 and beyond.

With a path now set to Paris and a clear need for change, this article will consider whether the current international approach to climate change is fit for purpose or whether a more radical approach is required to address the problems affecting both the developed and the developing world.

A Framework for Change

The United Nations Framework Convention on Climate Change (the ‘Convention’) provides a framework for the global attempt at curtailing climate change through the reduction of greenhouse gas emissions. The framework enables all countries to share information and to participate in UN sanctioned meetings, where the ways of addressing the rise in global temperatures and extreme weather conditions are discussed.

Article 17 enables the Convention signatories to expand their commitments by adopting additional protocols to the Convention, such as the Kyoto Protocol. The Kyoto Protocol was agreed on 11 December 1997 and its stated aim was to provide clear targets for reducing emissions and to design appropriate mechanisms for achieving these targets, as well as to encourage UN members to monitor emissions in their respective jurisdictions.

The Convention divides countries into Annex I (developed) and Annex II (developing) nations and imposes obligations upon the respective groups in the battle against climate change. Thus, the Kyoto Protocol imposes different targets upon Annex I and Annex II nations; some were permitted to increase their emissions but most of the major developed nations were required to make significant cuts. The average target for parties to the Convention was to reduce emissions by 5% (relative to 1990 levels) by 2012. The Kyoto Protocol states that the targets follow the principle of ‘common but differentiated responsibilities’ in an attempt to be as fair as possible when determining the respective obligations of the signatory nations. However, these targets were considered to be extremely ambitious at the time of writing and have subsequently proved to be very difficult to meet. Some EU nations performed well in their attempts to meet the Kyoto targets due to the extensive measures adopted in EU law under the integrated pollution control regime, which aligned with the Kyoto targets, however compliance with these measures was not widespread amongst all parties. Australia is one of the worst performers in reaching its targets, and recent announcements by Tony Abbott, the current Prime Minister of Australia, that climate change measures are to be significantly scaled back in the country, are only making compliance with targets less and less likely in the near future. 

It has been agreed by the UN members that if global temperatures were to rise by 2% above pre-industrial levels, there would be significant environmental consequences, which could have a devastating collateral effect on the global economy. If we are to achieve this, temperature levels must increase no more than 1.2oC above today’s level.

To stay within this ceiling, the scientific evidence shows that the world must stop the growth in global greenhouse gas emissions by 2020 at the latest, reduce them by at least half of 1990 levels by the middle of this century and continue cutting them thereafter.

Legal v Political

In light of this significant challenge, the UN came under increased strain to produce meaningful results but this has not always been possible. At the Copenhagen and Cancun conferences in 2009 and 2010 respectively, it was not possible to come to a formal agreement between the parties and thus there was a far greater emphasis on allowing individual nations to make non-binding pledges on taking environmental action. However, this unilateral approach has proved to be less than satisfactory, as nations are generally not held accountable if they fail to adhere to these promises, which is especially likely if there is a change of administration after the election of a new government.

Following the Durban Conference in 2011, there was a return to emphasis on legal controls and accordingly, the Kyoto Protocol was extended on an interim basis until a new accord could be struck at Paris in 2015. It is my hope that countries such as China and India, who are currently not subject to any emissions targets under the Kyoto Protocol, will be bold enough at Paris as to agree to reduce emissions significantly over the medium to long term.

There are positives and negatives of the approach taken by the Kyoto Protocol in tackling climate change. By introducing legally binding targets, the UN nations made a strong commitment to tackling climate change, but this comes at a price. The Convention and its protocols place burdensome requirements upon all nations and restrict each signatory to the Convention from forming their own policies on the economy and the environment.

In the strictest sense, the sovereignty of the UN members is not compromised by the legally binding targets, as each nation chose to sign up to the terms of the Convention and additionally is able to formally opt-out of the Convention if so wished. However, it would be extremely damaging politically for any nations who decide to opt out of any of the provisions that they have signed up to given that one of the major achievements of the Convention is its fostering of global collaboration. In this way, developing nations are put at a significant disadvantage as they are locked in to the Convention and the limits imposed by it, but they do not command as much of a significant presence at the Convention conferences. Attempting to be heard in a crowd of 16 delegates including all of the world’s largest political powers, it is not difficult to see why the interests of developing nations are often overlooked. 

By introducing targets, the Kyoto protocol also legitimises the increase in greenhouse gases by many nations who could have been more innovative in the last two decades at moving towards a reduced carbon economy. 

International Emissions Trading Scheme

The major mechanism created by the Kyoto Protocol was the International Emissions Trading scheme (‘IETS’). This scheme is open to those parties under the Kyoto Protocol who have accepted targets to reduce or limit their emissions. It is a simple ‘cap and trade’ scheme whereby nations who are projected to reduce emissions more than their targets require can sell their excess CO2 emission capacity to other nations who are over their targets. This ‘carbon market’ extends beyond CO2, with nations able to offset their targets and trade defined ‘units’ with other nations. 

In addition to trading in CO2 units, countries can engage in a host of carbon-reducing activities either on their own or in collaboration with other nations. The ‘Clean Development Mechanism’, another creation from the Kyoto Protocol, allows individual nations to discount a number of tonnes of CO2 emissions from their targets by engaging in activities such as the installation of more efficient boilers in homes or subsidising solar panels. Nations can also work together by funding or trading in emission-reducing activities, known as ‘Joint Implementation’.

These schemes reflect the similar approach taken by the European Union, which has its own separate Emissions Trading Scheme and associated regulation under the Integrated Pollution Control regime. The EU scheme has been particularly successful in managing emissions of greenhouse gases and is one of the key reasons why European countries have performed far better in attempting to meet their Kyoto targets than other countries such as Australia. It must be noted, however, that focusing solely on emissions from these European nations fails to take into account the massive increase in emissions from developing nations who are major exporters to European countries. China and India notably export huge amounts and rely largely on coal for their energy needs, with India proposing at the start of 2014 to increase their energy creation from coal by 592%.

I believe that these schemes are a beneficial addition to the tools available to countries in tackling climate change, but the IETS and associated mechanisms cannot be all that the parties rely on to reduce their carbon emissions. It is not enough that countries merely discount CO2 emissions on a theoretical or technical basis but allow actual levels to rise. It is a fine balance between incentivising nations to be pro-active in their approach to reducing emissions and ensuring the legitimacy of the mechanisms used, as it could be argued that larger and richer nations will merely be able to shift their responsibilities onto other less-powerful nations through ‘Joint Implementation’.

Enforcement and Compliance under Kyoto

When one refers to ‘legally binding’ international obligations, it is often unclear how such obligations can be enforced, whether through a national or international body. The Kyoto Protocol has its own compliance mechanism, comprising of a facilitative branch and an enforcement branch, but the legitimacy of this body can be called into question.

The facilitative branch provides assistance to the signatory nations to promote compliance with Kyoto obligations and advise on potential non-compliance issues. The enforcement branch deals with three forms of non-compliance: missing emissions targets, failing to adhere to reporting requirements and eligibility for participation in the Kyoto mechanisms. Each of these forms of non-compliance are dealt with in separate ways, however by virtue of acting as an international agency not formally recognised in the respective national laws of each state, the tools available to the enforcement branch are limited. The collaborative nature of the work done by the agencies requires a fine balance to be struck between compliance and getting the offending party to agree to the proposed enforcement.

For instance, in respect of non-compliance with emissions targets, the enforcement branch has the power to impose a heavier reduction target for the next compliance period, which includes an additional 30% deduction. Put plainly, this means that if a nation missed its emissions targets by 100 tons of CO2 for a compliance period, then the penalty for the next period would be 130 tons. But it is unclear whether such a penalty acts as a true deterrent for the parties, as, theoretically, parties could continually miss targets and the effect of the enforcement period would just make it less likely that a nation would adhere to the targets in the future.

Indeed, it could be argued that the compliance mechanism under Kyoto is nothing more than a mechanism for political negotiation, rather than having any true legal binding effect. Article 18 of the Kyoto Protocol does envisage the introduction of a true legally empowered body similar to that of the World Trade Organisation but this has never been actioned. I believe that in light of the significant effort required to address climate change, this compliance mechanism is simply not strong enough to truly stand up to powerful, developed nations and as such should be replaced by a stronger body with the power to enforce sanctions on offending parties. 

The Lima Conference

The Lima Conference brought together 169 delegates in an attempt to make the first step towards the Paris Protocol, which is to be adopted in December 2015. The conference had two main objectives; firstly to set a roadmap to Paris and secondly to agree on short-term commitments to tackle climate change in 2015, before the Paris Conference.

The first objective was worked towards by producing an outline text of the agreed protocol to be adopted in Paris. The major issue with this document is that since it had to encompass numerous views and opinions, it now extends to 37 pages, with every possible permutation available to be negotiated in Paris, thus decreasing the likelihood that any true accord will be struck. There are five planned conferences before Paris in 2015 and significant progress will need to be made before that date if meaningful and achievable targets and mechanisms are to be put in place in December 2015.

The short-term objectives of the conference were the most disappointing aspect from a legal perspective, as developing nations ended up at a significant detriment. Developing nations wanted further financial and structural support in adapting to and combating further climate change in light of recent natural disasters, such as those in the Philippines or the extreme weather conditions in Nicaragua. The agreement fell short of imposing a legal requirement on developed nations to contribute financially, instead leaving it as an option.

The Paris Conference – What Lies Ahead?

If one thing is clear from the first round of negotiations in Lima, it is that it will be extremely difficult for there to be a meaningful change brought about in Paris next year unless a greater collaborative approach is fostered between the UN nations. This is one of the major problems with tackling a global issue with so many parties involved, each have competing national interests and political agendas. I believe that smaller nations have to recognise the opportunities available to them in moving towards a low-carbon economy in line with the approach taken by EU nations and developed nations need to be bold and lead the negotiations leaving aside national interest where at all possible. As noted above, extreme weather events are having a devastating effect on many countries around the world which simply do not have the infrastructure to cope with these challenges, and developed nations have a moral responsibility to do all they can to create a meaningful path to tackling climate change.  

It is my hope that at the very least the Paris Conference can yield a strong enforcement mechanism for tackling climate change, and also a re-evaluation of whether nations will have to meet emissions targets, most notably countries such as India and China.

Further reading

'Lima deal represents a fundamental change in global climate regime', The Guardian

Fifth Assessment on Climate Change 'Climate Change 2013: The Physical Science Basis' – Intergovernmental Panel on Climate Change

'Lima talks set up climate deal for a bad outcome', New Scientist

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