Climate Change Law – From the Kyoto Protocol to the Present Day and Beyond

INTRODUCTION

One of the most pressing issues affecting the international community today is the issue of climate change. Increased carbon dioxide emissions, coupled with the release of water vapour, nitrous oxide, methane and chlorofluorocarbons, have led to the greenhouse effect. This has further resulted in global warming, which has especially increased since the mid-twentieth century.  Climate change has had a visible impact on people and ecosystems, especially in the form of melting glaciers, rising sea levels and intense heat waves.

This article attempts to analyse some of the most significant environmental frameworks that have been adopted by the international community in order to battle the issue of climate change. It highlights the prominent provisions of these conventions which aim to reduce emissions of harmful gases, by setting varying limits for developed and developing nations.

CLIMATE CHANGE: A POLITICALLY CHALLENGING PROBLEM?

Climate change is a politically challenging issue because of three fundamental reasons.

First, it is a global problem, whose solution cannot be achieved through the efforts of any single state or small group of states. States need to cooperate in order to achieve a common solution beneficial to all.

Second, the negative effects of climate change are not observable now but are only expected to occur some years in the future. It is, therefore, an intergenerational problem: present generations are expected to pay costs for the benefit of their successes two or more generations into the future. Political leaders seeking effective action on climate change have to persuade their publics both that their own actions can make a significant difference, partly by encouraging other countries to act, and that costs borne today are in the interests of successor generations.

Third, changing practices with respect to climate change requires changes in the habits of billions of people, as well as organizations such as firms; but practical policies to generate incentives for these behavioural changes require action by governments that, in many cases, may not have the interest or ability to exert much influence on their subjects. Nonetheless, the need for active intervention was realized by the global community beginning in the 1980s, and steps were taken to tackle this issue.

THE EARTH SUMMIT AND THE UNFCCC

The United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit or the Rio Summit, was held at Rio de Janeiro, Brazil from June 3-14, 1992. It was one of the most significant steps taken by the international community to reconcile worldwide economic development with protection of the environment. One of the main documents agreed upon at the Earth Summit was the United Nations Framework Convention on Climate Change (UNFCCC).[1] Also known as the Global Warming Convention, this binding treaty requires nations to reduce their emission of carbon dioxide, methane and other “greenhouse gases” which are responsible for global warming. The UNFCCC entered into force on 21 March 1994 and was ratified by 197 states. The ultimate objective of the Convention is to stabilize greenhouse gas concentrations “at a level that would prevent dangerous anthropogenic (human-induced) interference with the climate system.”[2] It states that “such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner.”[3]

The UNFCCC introduced the concept of ‘common but differentiated responsibilities[4] of developed and developing nations, thereby putting the onus on developed country Parties[5] to take the lead in framing national policies to mitigate climate change.[6] Under the Convention, industrialized countries also agreed to provide financial assistance to developing countries for action on climate change.[7]

THE KYOTO PROTOCOL AND THE DOHA AMENDMENT

The Kyoto Protocol[8] was linked to the UNFCCC. It was adopted in Kyoto, Japan on December 11, 1997, and became international law on February 16, 2005. Similar to the UNFCCC, the Kyoto Protocol mandated the reduction in greenhouse gas emissions by industrialized nations. Countries that ratified the Kyoto Protocol were assigned maximum carbon emission levels for specific periods and participated in carbon credit trading.[9] If a country emitted more than its assigned limit, then it would be penalized by receiving a lower emissions limit in the following period.[10] The Kyoto Protocol builds upon the principle of ‘common but differentiated responsibilities’, rooted in the recognition that developed countries are mainly responsible for the current high levels of greenhouse gas emissions. Hence, the onus lies on them to reduce these emissions. An interesting development was the dropping out of United States from the Protocol in 2001 on account of limiting emissions reductions only for the developed countries and not the developing ones, thereby hurting the economy of developed nations.

The Kyoto Protocol proved ineffective because not every nation could meet its quota of emissions. Two of the world’s biggest emitters- the United States and China- produced enough greenhouse gases to mitigate progress made by any of the nations who met their targets. In fact, there was an increase of about 40% in emissions globally between 1990 and 2009.[11]

After the first commitment period of the Kyoto Protocol ended in 2012, changes were made for the Second Commitment Period from 2012 to 2020. This culminated into the Doha Amendment.[12] The Amendment added new emission reduction targets for participating countries. The Doha Amendment had a short life. Ultimately in 2015, the Kyoto Protocol was replaced by the Paris Climate Agreement.[13]

THE PARIS CLIMATE AGREEMENT

It was a landmark environmental agreement adopted by nearly every nation to combat climate change and its effects. Its central aim was to ensure the reduction in global greenhouse gas emissions so as to limit the earth’s temperature increase in this century to 2 degrees Celsius above preindustrial levels while taking steps to limit the increase to 1.5 degrees.[14] The Agreement also created a framework for monitoring and reporting countries’ climate goals transparently. Some of the key aspects of the Paris Agreement are long term temperature goal,[15] global peaking and climate neutrality,[16] preparing and maintaining a nationally determined contribution (NDC),[17] conservation of sinks and reservoirs of greenhouse gases[18] and strengthening national adaptation efforts,[19] among others. Under the Agreement, developed nations are encouraged to provide and mobilize financial support for the mitigation efforts of developing nations,[20] thereby enabling solidarity amongst various states to combat climate change together.

The Paris Agreement is important because, for the first time, nearly 195 nations of the world agreed that climate change is a result of human action, and global efforts are required to put an end to this. The major difference between the Kyoto Protocol and the Paris Agreement is the latter’s flexibility with regards to the inclusion of even the poorer and developing nations for slashing their greenhouse emissions. The Paris Agreement also sets forth a requirement for countries to announce their next round of targets every five years, unlike the Kyoto Protocol, which aimed for that objective but did not include a specific requirement to achieve it. However, the Paris Agreement is disappointing in some aspects, like- it contains no mention of legally binding emissions targets, specifics on financial support, and specific date set for a peak in global greenhouse gas emissions. Emissions from global shipping and aviation are absent from the final agreement, and there are vague references to technologies and actions which may pave the way for false solutions with potentially harmful social and ecological implications. Some nations are already falling short of their commitments.[21] Various studies have indicated the voluntary pledges made by individual countries in Paris show that the cumulative effect of those emissions reductions won’t be large enough to keep the temperature rise under the cap of 1.5 degrees Celsius. Nevertheless, the Agreement reflects a global consensus on taking the first steps to combat climate change and building upon these steps in the future.

CONCLUSION

Apart from these global efforts, nations have implemented various climate change laws within their own territories. Even judicial systems around the world are now paving the way to save the environment by pronouncing landmark judgements. With the growing inclusion of non-state actors and regional initiatives, significant progress is being achieved in this regard. Individual action and conscience regarding the same is being developed. However, the need of the hour is the sustained realization that collective efforts can be the most successful in tackling climate change. In order to achieve this, countries have to come together to find solutions that work in tandem with their economic requirements. A conscious and active political leadership can contribute a lot in this aspect. In the end, the duty to save the planet lies only, and only, with us. And the sooner we realize this, the better off we will be in the future.

[1] UN General Assembly, United Nations Framework Convention on Climate Change, A/RES/48/189 (Jan. 20, 1994) [hereinafter UNFCCC].

[2] Id., art. 2.

[3] Id.

[4] Id., art. 4.

[5] Id., annex 1.

[6] Id., art. 4 (2).

[7] Id., art. 4 (3).

[8] UNFCCC, Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 U.N.T.S. 148, 37 I.L.M. 22 (1998), [2008] ATS 2 (Dec. 11, 1997) [hereinafter Kyoto Protocol].

[9] Id., art. 3 (1).

[10] The Kyoto Protocol, Investopedia, https://www.investopedia.com/terms/k/kyoto.asp.

[11] Id.

[12] UNFCCC, Doha Amendment to the Kyoto Protocol, Doc. FCCC/KP/CMP/2012/13/Add.1, Decision 1/CMP.8 (Dec. 8, 2012) [hereinafter Doha Amendment].

[13] UNFCCC, Paris Agreement, UN Doc. FCCC/CP/2015/10/Add.1, Decision 1/CP.21 (Dec. 12, 2015) [hereinafter Paris Agreement].

[14] Id., art. 2(1)(a).

[15] Id., art. 2.

[16] Id., art. 4.

[17] Id.

[18] Id., art. 5.

[19] Id., art. 7.

[20] Id., art. 9(1).

[21] Melissa Denchak, Paris Climate Agreement: Everything You Need to Know, NRDC (Dec. 12, 2018), https://www.nrdc.org/stories/paris-climate-agreement-everything-you-need-know.


ABOUT THE AUTHOR

Akshita Tiwary

IMG_20200314_140118_297__01

Akshita Tiwary is a second-year law student at Government Law College, Mumbai. She is interested in the field of International Law and Constitutional Law. She can be reached at akshitatiwary@gmail.com.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s