2. EQUITY IN THE KYOTO PROTOCOL
2.2 The Kyoto Protocol
115 the Kyoto Protocol to the various mechanisms established under the UN climate change framework, African states have sought to ensure that climate change obligations do not impair their developmental opportunities or result in a redirection of resources from developmental efforts to climate change action. Where climate change obligations exist, African states insist that it must be accompanied with the necessary financial and technological support.
Despite these arguments, this chapter shows an increased hesitation on the part of developed states to yield to a conception of equity that focuses on historical responsibility and shields all developing states from climate change obligations. This ultimately led to the collapse of the Kyoto Protocol and the efforts towards another binding legal instrument which, state parties hoped, would better resolve the disagreements on the distribution of rights and responsibilities within the international law on climate change.
2. EQUITY IN THE KYOTO PROTOCOL
116 state parties which were to last from 2008-2012 and was later extended to 2020.3 It is an attempt by state parties to create specific rights and responsibilities that seek to give life and meaning to the primary goal of the UNFCCC: ‘the stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’4
The first Conference of the Parties to the UNFCCC (COP) was held in 1995 and it became apparent to state parties that the objectives of the Convention would not be reached through the use of voluntary targets, as contained in the Convention.5 The voluntary system allowed state parties a high level of discretion with respect to how to meet the UNFCCC targets, and their efforts proved to be insufficient for reaching the objective of limiting human-induced emissions to 1990 levels by 2010.
State parties to the UNFCCC agreed, through the Berlin Mandate, to create a legally binding agreement to reinforce the dedication of Annex I parties (developed states and economies in transition) under article 4(2)(a) and (b) of the UNFCCC.6 It was an agreement targeted at ensuring the achievement of the core obligations to lower emissions and furnish developing states with climate finance. The Ad Hoc Group on the Berlin Mandate was set up to coordinate the deliberation process for this agreement. This process culminated in the adoption of the Kyoto Protocol at the third Conference of the Parties held at Kyoto, Japan in 1997. To achieve its objective, the Kyoto Protocol creates three major provisions.
Firstly, the Kyoto Protocol creates legally binding quantified emission targets for Annex I states.7 These states had a responsibility to make sure that their joint emissions are reduced to not less than 5 per cent lower than 1990 levels during the first commitment period (2008- 2012).8 Individually, these states were given separate targets. States within the European Union had to reduce their emissions by 8 per cent, the United States by 7 per cent and Japan by 6 per cent. New Zealand, Ukraine and Russia only had to stabilize their emissions (no reduction
3Article 3(1) of the Kyoto Protocol; Article 1 (C) the Amendment to the Kyoto Protocol pursuant to its Article 3, paragraph 9 (Doha Amendment) Decision 1/CMP.8; Radoslav Dimitrov ‘The Paris Agreement on climate change:
Behind closed doors’ (2016) 16(3) Global Environmental Politics 3.
4 Preamble to the Kyoto Protocol; Article 2 of the UNFCCC.
5 Decision 1/CP.1 ‘The Berlin Mandate: Review of the Adequacy of Article 4, Para 2(a) and (b), of the Convention, including Proposals related to a Protocol and Decisions on Follow-up’ reprinted in Report of the Conference of the Parties on its First Session, held at Berlin from 28 March to 7 April 1995 Part Two: Action taken by the Conference of the Parties at its First Session FCCC/CP/1995/7/Add.1, 4.
6 Ibid.
7 Article 3 of the Kyoto Protocol.
8 Article 3(1) of the Kyoto Protocol.
117 needed but no increase allowed). Australia, Iceland and Norway were given room to grow their emissions slightly by 8, 10 and 1 per cent, respectively.9
Secondly, to achieve their emission targets, the Kyoto Protocol required that states had the option to create carbon sinks.10 These sinks would be in the form of activities such as land use change and forestation that help to soak up some of the carbon contents in the atmosphere.11 Thirdly, state parties could use a range of market-based instruments, which include joint implementation,12 international emissions trading,13 and the clean development mechanism14 to achieve their targets under the Kyoto Protocol. While the first two mechanisms encourage emissions-saving projects between developed state parties, the clean development mechanism is focused on emission-reduction projects between developed and developing states and will be the primary theme of this section in examining the Kyoto Protocol’s approach to equity between developed and developing states.
It is significant to note that the Kyoto Protocol was, primarily, an agreement between developed states. The Berlin Mandate had included a statement that the agreement (Kyoto Protocol) would contain no new commitments for developing states.15 The Protocol, thus, contains no obligations for developing states. Instead, it encourages developed states to fulfil their obligations to developing states under Article 4(1) of the UNFCCC.16
The Kyoto Protocol makes a single reference to ‘differentiated responsibilities’ while the word
‘equity’ is never used throughout the agreement. Notwithstanding, the exclusion of developing states from the obligations of Kyoto Protocol is an expression of equity. The exclusion of developing states from any responsibility ensures that they do not take on additional responsibilities which they may not be adequately equipped to bear, or which may constrain their developmental efforts.
Since the Kyoto Protocol only creates one set of responsibilities, this chapter will not go into a detailed analysis of those responsibilities. Other than the implications of excluding developing
9 Annex B to the Kyoto Protocol.
10 Article 3(3) of the Kyoto Protocol.
11 Article 3(3) of the Kyoto Protocol.
12 Article 4 of the Kyoto Protocol.
13 Article 17 of the Kyoto Protocol.
14 Article 12 of the Kyoto Protocol.
15 Article 2(b) of the Berlin Mandate.
16 Article 10(c) and 11(2)(b) of the Kyoto Protocol.
118 states from these responsibilities, an analysis of these responsibilities does not offer much in understanding how equity is conceived in the differentiation of rights between developed and developing states.
The analysis of equity in this section will, therefore, focus on the CDM, a mechanism created under the Protocol to ensure that developed state parties meet their emission reduction targets while enhancing developmental capacity in developing states. Established under article 12 of the Kyoto Protocol, CDM gives room for developed and developing states to collaborate on an emission reduction project. An examination of the CDM, therefore, offers an opportunity to understand the Protocol’s approach to equity.