CHAPTER IV: THE GREENHOUSE GASES EMISSIONS MITIGATION
4.3. Generalities on the Kyoto Protocol
4.3.2. Guiding principles of the Kyoto Protocol
The preamble of the Kyoto Protocol states that the Protocol is guided by the principles of the UNFCCC as enshrined in its Article 3 which is discussed under section 3.1.2.2
559 See Article 2 of the UNFCCC.
560 See section 3.1.2.1 above for details about the objective of the UNFCCC.
561 See Article 2 of the UNFCCC.
562 Breidenich (note 531 above; 327).
563 See Voigt (note 803 above; 18); see also section 5.3.6 below.
564 Article 4.2 (g) of the UNFCCC stipulates: ‘Any Party not included in Annex I may, in its instrument of ratification, acceptance, approval or accession, or at any time thereafter, notify the Depositary that it intends to be bound by subparagraphs (a) and (b) above. The Depositary shall inform the other signatories and Parties of any such notification.’ Subparagraph (a) of Article 4.2 stipulates: ‘Each of these Parties shall adopt national1 policies and take corresponding measures on the mitigation of climate change, by limiting its anthropogenic emissions of greenhouse gases and protecting and enhancing its greenhouse gas sinks and reservoirs.’ Subparagraphs (b) of Article 4.2 refers to the duty of communication of the actions taken in compliance with subparagraph (a) above.
above. Whereas there seems to be no need in this section to re-analyse the whole list of the UNFCCC principles, yet it appears relevant to closely consider the application of the CBDR principle under Kyoto.565 This is because of the particularity the CBDR principle represents regarding the allocation of the burden of emission mitigation to the country parties, but especially to the group of developing countries, which is the focus of the present study.
From a historical perspective, one may assume that developing countries (envisaged in the sense of an homogenous group) have dealt differently with their developmental and social problems, on one hand, and on the other hand, they have not harvested the same economic benefits as did, and is still at present doing, the group of developed countries (also envisaged in the sense of an homogenous group) in their process of industrialisation.566 Developed countries have become richer over time, while developing countries still endeavour to develop economically and socially. That is the reason why both groups of countries do not have in today’s context the same capabilities to address the climate change threat.567 And also, the two groups of countries have not played the same historical role in aggravating the atmospheric concentration of the GHG.568
Under international law, countries have sovereign equality as per the UN Charter.569 They all have equal rights and obligations on the international plane. Addressing the threat of climate change required a universal participation through which both developed and developing countries had to take on obligations in order to save the planet. Yet, as discussed in this study, to secure such universal participation, climate change regime had to be equitable enough, in other words it had to be balanced enough while allocating responsibilities to countries. As indeed, it would have been unequitable for developing countries to share the burden of abating the atmospheric concentration of GHG equally,
565 Under this section, CBDR and CBDR-RC will be used indistinctively.
566 Halvorssen (a) (note 520 above; 253).
567 Ibid.
568 See section 2.1.2 for more details on GHGs.
569 ‘The Charter of the United Nations was signed on 26 June 1945, in San Francisco, at the conclusion of the United Nations Conference on International Organization, and came into force on 24 October 1945.
The Statute of the International Court of Justice is an integral part of the Charter.’ Information and text of the chart available at: http://www.un.org/en/charter-united-nations/. (Accessed: 19 August 2016).
given their lesser historical role with that regard.570 This is why the Kyoto Protocol had to give a greater consideration to the CBDR-RC principle in allocating to countries different emission mitigation obligations, to reflect the roles they respectively played towards the climate change phenomenon at that time.
In application to the CBDR principle, the Kyoto Protocol (as also done by the UNFCCC) took consideration of the CBDR’s two prongs: (i) the parties’ climate change differing historical responsibilities, and (ii) the parties’ differing capabilities to address the climate change threat.571 It is on that basis that the Kyoto Protocol refrained from assigning any binding emission limitations to developing countries,572 although it recognised that the categorisation of countries might evolve over time, and “graduate”
from one category of country into another, depending on the evolution of their climate change responsibilities and capabilities.573 For instance a country would evolve from being a Non-Annex I to becoming an Annex I country.574 The increasing volume of the country’s emissions over time might trigger its climate change responsibility, whereas the economic development of the country will improve its capability to address the climate change threat.
Although from a logical point of view, it appeared relevant and in line with the principle of CBDR to impose a greater share of mitigation responsibilities to developed countries besides urging them to take the lead in climate change matters, there were nevertheless some issues to be careful about, in order to ensure more effectiveness and broader support to the protocol’s differential system. One of them is the time frame issue, in other words, how long it would take the CBDR principle to be applied under a treaty such as the UNFCCC. The next relates to the compatibility of the CBRD with the
570 ‘Once the CO2 is emitted into the atmosphere, it remains there for at least a century, hence, we are now seeing the effects of GHGs emitted since the beginning of the industrial revolution. This
constitutes, for the most part, pollution from developed countries, but not from developing countries.’
See for details: UNEP & IPCC Climate Change 2007: The Physical Science Basis, Summary for Policymakers. (2007). Available at: https://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1- frontmatter.pdf. (Accessed: 25 October 2016).
571 On differential treatment in the climate change regime, see Rajamani (a) (note 48 above).
572 Article 3.1 of the UNFCCC.
573 Ibid. Article 4.2(f).
574 Bodansky (f) (note 467 above; 14).
urgency to the tackle climate change and save the planet. In other words, was the application of the CBDR principle compatible with the objective of the UNFCCC?
At first, as recalled by Halvorssen,575 the adoption of the CBDR principle as a climate change principle was only meant to last for a limited time period (although imprecise) to allow the developing countries to reach satisfying levels of economic growth as the industrialised countries did, while simultaneously addressing the climate change threat.
In that view it is clear that the CBDR principle did not intend to institute a permanent and irremovable arrangement of two parallel groups of countries. As also argued by Rajamani,576 once the differences between the countries cease to exist, the differential treatment should no longer be referred to.
As also argued by Bodansky,577 the CBDR principle was never perfectly reflected by the “Annexes” approach as applied under the UNFCCC and Kyoto protocol regime, because the approach became disconnected from the reality, as the global economy progressively and radically transformed over time.578 At this point a question could be asked, ‘how could it be that the approach to differential treatment that was applied in 1992 to differentiate between countries and allocate them emission mitigation responsibilities as discussed above,579 is not referred to afresh in an attempt to readjust countries’ responsibilities 25 years later, after some developing countries have achieved radical economic transformations, and have become major emitters?’
After analysing the same issue, Halvorssen580 concluded that treaties that apply the CBDR principle should ensure its compatibility with their objective and purpose. Parties should also ensure that the domestic implementation of the treaty which applies the CBDR principle do not defeat the objective and purpose of the applying treaty as a result.
This is because it would amount to a conflict, as the application of a principle of law cannot go beyond the statutory limits of the treaty under which it is being applied.581 In
575 Halvorssen (a) (note 520 above; 255).
576 Rajamani (a) (note 48 above; 162).
577 Bodansky (f) (note 574 above; 14).
578 Ibid.
579 Refer to section 2.3 above.
580 A.M. Halvorssen (b) ‘Equality among unequals in International Environmental Law: Differential treatment for developing countries’ Westview Press (1999) at 29.
581 Rajamani (a) (note 48 above; 162).
the case under scrutiny, i.e. the GHG mitigation regime for developing countries, the protocol’s object and purpose of "stabilising the GHG concentrations in the atmosphere at harmless levels would be defeated by the continually growing emissions from developing countries. This is because of the absence of emission limitations given to them. Emissions would end up reaching dangerous anthropogenic interferences with the climate system, which situation would be in contradiction with the very purpose of the protocol.582 As demonstrated by Lanza,583 if in 2002, developed countries were responsible for 64 percent of total emissions,584 and the developing countries for 36 percent, the situation of 2030 will be the reverse of the position of the main “polluters”, according to the projections with 49 percent of the emissions produced by developing countries, 51 percent by developed countries.585
However, the application of the CBDR principle under the Kyoto regime has suffered a lot of criticism, most of which revolved around the free GHG emission regime being granted indistinctively to the heterogeneous group of developing countries, resulting in increasing emissions which at the time of this research have exceeded the emissions from developed countries, as discussed in following sections. It is also because of an
“erroneous” application of the CBDR principle, as argued by Korhola586 that although effective in many ways, the Kyoto Protocol did not benefit a full international support.
As also argued by Zhang,587 to reach the goal of the new climate change agreement and further save the Earth, the CBDR as applied under the UNFCCC and its Kyoto Protocol will need further reflection and reinterpretation.588
582 Halvorssen (a) (note 520 above; 255).
583 A. Lanza. ‘The Kyoto Protocol and the Statistical Information’ available at: http://old.sis- statistica.org/files/pdf/atti/CIMe0905p3-12.pdf. (Accessed: 10 October 2016).
584 64 percent constitutes the sum of 54 percent from the OECD countries, and 10 percent from countries in economy in transition under the UNFCCC regime.
585 51 percent constitutes the sum of 42 percent from the OECD countries, and 9 percent from countries in economy in transition under the UNFCCC regime.
586 Korhola (note 21 above; 280).
587 H. Zhang ‘Towards a New Global Agreement under the Doha Climate Gateway: A Chinese Way.’
(2014) 7 JE Asia & Int'l L. 443 at 443.
588 Ibid.