Student ID: 800000065 Unit Code: MLM711 Unit Name: International Environmental Law

Research Paper Climate Change Kyoto to Copenhagen and Beyond

1 Introduction

Climate change and global warming is a shared concern of governments around the world. Scientific evidence bases continue to grow, pointing towards potentially disastrous impacts to the sustainability of our planet if climate change is not addressed immediately. In 1992, the United Nations Framework Convention on Climate Control, or ‘the Convention’, was introduced to provide a coordinated response to this global challenge. The UNFCCC provided for a voluntary framework by which governments could work together to address these issues.

More was required, however, and so the Kyoto Protocol was eventually agreed by Parties to the Convention. The Kyoto Protocol introduced measures and targets for each of its Parties, measures and targets which had to be committed to and thus the Kyoto Protocol became the binding agreement on Parties to the Convention.

Since its introduction in 1997, the Kyoto Protocol has strengthened the intent of the parties who signed the UNFCC by committing these parties to action. Each of the Parties now has not only a commitment to emissions reductions, but also a number of mechanisms by which these reductions can be achieved. These are:

• Emissions trading,

• Clean development mechanisms, and

• Joint implementation.

Whilst the Protocol was open for ratification by all countries, it recognises the significant difference in current emission levels between developed and developing countries and seeks to encourage greater reductions from developed countries, as opposed to developing.

Some progress is being made against the Protocol, as demonstrated by the Annual Compilation and Accounting Report, however the Protocol expires in 2012 and, as at February 2009, no successor has been agreed.

The Parties of the Protocol are represented in a body referred to as the Conference of Parties (COP), the COP meets annually to progress their planning, discussions and monitoring of progress against the Convention and the Protocol.

The 15th COP meeting is scheduled for December 2009 in Copenhagen, Denmark and is already being touted as the most important meeting of its kind in decades.

It is at this COP meeting where the successor to the Kyoto Protocol must be agreed by Parties, if it is to be adopted before the Kyoto Protocol expires. One item for consideration is likely to be the recently endorsed model of ‘contraction and convergence’, a concept that seeks to have a common emissions target on a per capita basis; a contraction of emissions by developed countries and a convergence of targets on a per capita basis.

It is with bated breath that the environmental community watches and waits for the deliberations at Copenhagen to unfold. Let us hope our representatives have the courage and the conviction to agree a Protocol that will see the climate managed and protected for many generations to come.

2 What is climate change?

Many scholars, academics and scientists have been within the climate change debate, even to the point of the definition of climate change, and as such it is difficult to find one clear definition for this global issue.

The Intergovernmental Panel on Climate Change (2001), a body set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP), states that climate change is ‘a change in the state of the climate that can be identified by changes in the mean and/or the variability of its properties, and that persists for an extended period, typically decades or longer’. It is the measurable changes to our climate which occurs over a long period of time.

Meehl (2005) defines climate change as the increased level of greenhouse gas in the atmosphere which produce a change in the climate system and a ‘consequent warming of surface temperatures and rising sea level caused by thermal expansion of the warmer seawater, in addition to the contribution from melting glaciers and ice sheets’.

The World Meteorological Organization says that ‘the impacts of climate variability and climate change, especially extreme events on human and natural systems, pose numerous challenges to sustainable development’. Studies conducted by the WMO noted that in 2005, the damage caused by climate change was alarming and that the level of damage, and the impact of this damage, was increasing.

Climate change is something that is affecting all nations of the world and the coordinated responses to climate change by governments around the world are discussed throughout this paper.

3 What is the United Nations Framework Convention on Climate Control (UNFCCC)?

Over a decade ago, an international treaty was formed, the United Nations Framework Convention on Climate Change (UNFCCC), which most countries joined so that a global response to climate change could be discussed and implemented. The Convention provides a framework for global governments to work together on the issue of climate change. There are currently 192 countries that have joined the Convention which entered into force on 21 March 1994. Australia, along with the majority of developed countries throughout the world is Parties to the convention.

The Conference is a voluntary agreement which is not binding on any country that has ratified the Conference. The UNFCCC states that under the Convention, governments:

1. gather and share information on greenhouse gas emissions, national policies and best practices , 2. launch national strategies for addressing greenhouse gas emissions and adapting to expected impacts, including the provision of financial and technological support to developing countries, and 3. cooperate in preparing for adaptation to the impacts of climate change. Mechanisms exist for Parties to the Convention to meet and discuss a path forward to address the global challenge of climate change. These mechanisms are discussed below.

3.1 Conference of the Parties

The Conference of the Parties (COP) is the governing body of the Convention and is ultimately responsible for all decisions made relating to the Contention. All countries that are Party to the Convention are members of the Conference.

The UNFCCC states that the COP is accountable for ensuring the Convention progresses and that progress is made against the Convention. It regularly reviews the implementation of the Convention and reviews performance and promises of the Parties to ensure progress is being made.

The COP generally meets once per year unless the Parties decide for more or less frequency. Since the Convention entered into force, the COP has met annually, with one of its key agenda items being the negotiations of the Kyoto Protocol, commencing in the mid 1990s, to establish legally binding obligations for developed countries to reduce their greenhouse gas emissions.

4 The Kyoto Protocol

The Kyoto Protocol is a further agreement, stemming from the Convention and developed by the COP, which, amongst other things, sets binding targets for greenhouse gas emissions. Whilst the Convention is a non-binding agreement on the Parties, the Protocol does set binding targets and commits parties to the Protocol to meet these targets.

The Kyoto Protocol was, not surprisingly, brought about at the COP meeting, held in Kyoto, Japan, on 11 December 1997. The Kyoto Protocol entered into force on 16 February 2005 and 184 Parties of the Convention have ratified its Protocol to date.

Greenpeace Asia Pacific notes that ‘the Kyoto Protocol is the only legally binding international agreement that addresses the problem of global climate change’.

The Kyoto Protocol makes note that developed countries are far more accountable for the high levels of greenhouse gasses and as such requires these developed countries to make greater commitments for the reduction of same.

The UNFCCC states that under the Protocol, the developed countries have committed themselves to a minimum of 5% reduction of six key greenhouse gasses. Each country must achieve its target within the period from 2008 to 2012, a five year window. The Protocol requires "demonstrable progress" to have been made by 2005.

Greenpeace Asia Pacific notes that ‘the Kyoto Protocol recognises that developed (industrialised) countries are most responsible for climate change and that they have the financial and technical resources to reduce their emissions more than developing countries’. However, Greenpeace Asia Pacific also states that ‘some developing countries, like China and India, have total emissions higher than Australia's.’ There is intent that emission targets would be negotiated for developing countries at a later date.

The European Commission expects that actual emission reductions will be greater than the committed 5%, stating that ‘the 5% Protocol target represents an actual cut of around 20% when compared with the emissions levels that are projected for 2010 if no emissions-control measures are adopted’.

On 11th December 1997, the Kyoto Protocol was adopted by the COP. The Protocol entered into force on 16 February 2005 and the UNFCCC states that 184 Parties of the Convention have ratified its Protocol to date.

The European Commission states that ‘the Kyoto Protocol to the United Nations Framework Convention on Climate Change strengthens the international response to climate change’. The European Commission made note that the Protocol was a step towards achieving the ultimate goal of the Convention, which was to ‘prevent dangerous anthropogenic [man-made] interference with the climate system’.

4.1 The Kyoto mechanisms

In addition to emission reductions, the Protocol allows Parties to meet these targets through three new market-based mechanisms.

The Kyoto mechanisms, as noted by the UNFCCC, are:

• Emissions trading – known as “the carbon market" • Clean development mechanism (CDM) • Joint implementation (JI).

The European Commission notes that there is a certain degree of flexibility for countries in how they make and measure their emissions reductions.

Emissions trading or ‘the carbon market’ allows countries with excess emissions units, or credits, to sell this excess to countries that are exceeding their own targets. The UNFCCC notes that there are other units which are available for trade under the emissions trading scheme. These other ‘units’ must be equal to one tonne of carbon dioxide but may be any of the following:

• ‘A removal unit (RMU) on the basis of land use, land-use change and forestry (LULUCF) activities such as reforestation • ‘An emission reduction unit (ERU) generated by a joint implementation project • ‘A certified emission reduction (CER) generated from a clean development mechanism project activity • ‘Transfers and acquisitions of these units are tracked and recorded through the registry systems under the Kyoto Protocol. • ‘An international transaction log ensures secure transfer of emission reduction units between countries’.

According to the UNFCCC, the Clean Development Mechanism is a way to ‘stimulate sustainable development and emission reductions, while giving industrialized countries some flexibility in how they meet their emission reduction or limitation targets’. Parties to the Protocol may work with developing countries to implement an emission-reduction project. By doing this, the Party to the Protocol can earn certified emission reduction (CER) credits, which are each worth one tonne of carbon dioxide and can be counted against their own emission reduction targets. Projects undertaken under this scheme must set to achieve emission reductions above and beyond what would have otherwise been achieved if the project did not proceed.

Similar to the Clean Development Mechanism, under the Joint Implementation scheme, two Parties to the Protocol can work together on a project to implement an emission reduction or emission removal project.

According to the European Commission the international "emissions trading" regime established under the Protocol allows developed countries to trade emissions, which is to buy and sell emission credits from each other to assist with reaching their target. Countries are able to purchase emission reduction units by funding specific programs and projects in conjunction with other Parties under the Joint Implementation mechanism. The Clean Development Mechanism allows developed countries to fund sustainable development programs in developing countries and receive emission credits for doing so.

Thus, the Protocol not only sets and commits Parties to carbon emission reductions, but also encourages Parties to work together and with the global community to reduce the global carbon emissions on a broader scale.

4.2 Monitoring emission targets

The UNFCCC states that under the Protocol, each Party is required to provide reports on progress for the monitoring and reporting of progress. Reporting under the Protocol is done by Parties submitting annual reports containing annual emission results and national reports at regular intervals.

The UNFCCC registry system allows the recording and monitoring of progress by each Party and is maintained by The UN Climate Change Secretariat. Submissions by Parties are verified by the Secretariat to ensure each submission meets the requirements found in the rules of the Protocol.

4.3 Progress against the Kyoto Protocol

The Secretariat to the COP, in the Annual Compilation and Accounting Report, notes that the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol has requested annual reports be published which would give a level of transparency to the reporting and monitoring of progress against the Protocol. The contents of these reports have been defined within Article 8 of the Kyoto Protocol.

The first report was issued based on information received by the Secretariat as at 18th September 2008.

The following table, accessed from Carbon Planet in December 2008, shows greenhouse gas emissions by country, as required for the monitoring of the Protocol.

Country	Year	CO2e Mt	/	Pop M	=	CO2e t/person
Albania	1994	7.06	/	3.20	=	2.21
Australia	2000	535.30	/	19.44	=	27.54
Canada	2004	740.00	/	31.56	=	23.45
China	1994	3650.00	/	1198.50	=	3.05
European Union	1999	4030.00	/	375.30	=	10.74
Hong Kong	2003	43.5	/	6.803	=	6.39
India	2001	1228.54	/	914.00	=	1.34
Indonesia	1994	904.433	/	191	=	4.74
Iran	1994	417.01	/	57.67	=	7.23
Israel	1996	62.71	/	5.69	=	11.02
Japan	2002	1224.98	/	126.93	=	9.65
Laos	1990	0	/	4.57	=	0.0
Malaysia	1994	76	/	20.1	=	3.78
Marshall Islands	1990	0.0025	/	0.055	=	0.05
Mexico	2000	686.10	/	97.48	=	7.04
Micronesia	1997	0	/	0.106	=	0.0
Mongolia	1998	15.6	/	2.42	=	6.45
Nauru	1994	0.019	/	0.013	=	1.46
Netherlands	1999	174.10	/	15.80	=	11.02
New Zealand	1999	54.70	/	3.79	=	14.43
Niue	1994	0	/	0.002	=	0.0
Philippines	1994	100.738	/	73.527	=	1.37
Russian Federation	1999	1880.00	/	145.60	=	12.91
Samoa	1999	0.43	/	0.17	=	2.53
Singapore	1994	26.80	/	3.20	=	8.38
Solomon Islands	1994	0.32258	/	0.4	=	0.81
South Africa	1994	379.84	/	40.60	=	9.36
South Korea	1995	391.7	/	45.09	=	8.69
Sweden	2003	70.6	/	8.98	=	7.86
Thailand	1994	286.37	/	62.00	=	4.62
United Kingdom	2006	656.00	/	59.60	=	11.01
US	2002	6746.00	/	280.00	=	24.09
Zimbabwe	1994	0.00	/	10.64	=	0.0

We can clearly see from the above table that highly developed countries such as Australia, Canada and the United States have significantly higher emissions per person than developing countries such as India, Laos, Micronesia and Zimbabwe and thus have a significant road ahead of them in terms of achieving emissions reductions.

5 Post “Kyoto Protocol” negotiations

The European Commission has stated that ‘the agreement (Kyoto Protocol) is being reviewed’ and that it expects the Parties will take ‘appropriate action on the basis of the best available scientific, technical, and socio-economic information’. These continued discussions on progress against the Protocol have occurred at the annual COP and have now extended to talks of commitments beyond 2012.

Whilst the UNFCCC notes the Protocol ‘is generally seen as an important first step towards a truly global emission reduction regime that will stabilize GHG emissions’ it also recognises that ‘by the end of the first commitment period of the Kyoto Protocol in 2012, a new international framework needs to have been negotiated and ratified that can deliver the stringent emission reductions the Intergovernmental Panel on Climate Change (IPCC) has clearly indicated are needed’.

At the annual COP meetings, work has started on developing the new international framework for delivering ongoing emission reductions; however there has been no framework or agreement yet to emerge.

The very first meeting of parties to the Kyoto Protocol was in December 2005, held in Montreal, Canada. At this meeting, decisions were made by the Parties that a path should be outlined to continue the international action on climate change. This was to be the ‘The Montreal Action Plan’, an agreement to extend the life of the Protocol beyond 2012 and to require more stringent and ambitious targets for emission reduction by all Parties. The UNFCCC states that at the Montreal meeting, the Parties to the Protocol also ‘formally adopted the “rulebook” of the 1997 Kyoto Protocol, the so-called ‘Marrakesh accords’, which sets the framework for implementation of the Protocol’.

6 What is Copenhagen?

The Climate Summit, to be held in Copenhagen in December 2009, is said by the Copenhagen Climate Council ‘to be the most critical gathering in decades’. The 2009 Climate Summit is the commencement for post-2012 targets and indeed a successor for the Kyoto Protocol. The 2009 Climate Summit is the last opportunity for all governments to determine a new agreement to enter into force before the Kyoto Protocol expires.

Whilst progress towards a Kyoto successor had been made at the COP meeting in Indonesia in 2007, Hedegaard (2008) states that ‘caution must be exercised not to over-interpret the results of the Bali meeting’.

The Ministry of Climate and Energy of Denmark noted that whilst there were positive examples of Parties working together under the UNFCCC mission, there is also a risk of stalling any progress due to disagreements. The Ministry states that ‘the ambition of the Danish government is that the COP15 conference in Copenhagen will result in an ambitious global agreement incorporating all the countries of the world’.

The Ministry of Climate and Energy of Denmark has stated that ‘the ambition of the Danish government is that the COP15 conference in Copenhagen will result in an ambitious global agreement incorporating all the countries of the world’. The Danish, Polish and Indonesian governments had agreed at the Indonesian conference to ‘ensure that the COP15 conference in Copenhagen in 2009 would be absolutely crucial for the work of the next many years towards a better climate’.

The COP meeting in Copenhagen is certainly looking to be as much of a landmark in climate change history as what Kyoto has become.

Whilst the intention and commitments of the Kyoto Protocol have remained, there have been major changes on the economic and climate fronts which have changed the landscape for future agreements and the implementation of emission reductions. The Ministry of Climate and Energy of Denmark has stated that ‘developments in the world since the Kyoto Protocol was negotiated in 1997 show that a new agreement is needed. China has replaced the USA as the largest emitter of greenhouse gases, and the price of oil has soared. This is a reminder of the fact that fossil fuels do not merely pollute; they are also a source of energy whose reserves are constantly being reduced’. This changing environment has prompted the Danish government to ‘achieve an agreement that both reduces the total quantity of anthropogenic greenhouse gas emissions and is supported by as many countries as possible’.

Chaytor MP (2000) has stated that ‘so far business left unfinished in Kyoto is still unfinished. Charged with establishing the 'principles, rules and modalities' governing the Protocol's so-called 'flexible mechanisms' - such as international emission trading and the 'clean development mechanism' - negotiators struggle because these principles must be subordinate to the global objective and principles of precaution and equity on which the Convention is based’. Chaytor goes on to challenge the UK government to take a leading role in ongoing negotiations and agreements to face the challenge of climate change, in that ‘the UK Government could play a unique role in saving the Protocol from failure. The stakes are high. If it fails, the 'sub-global' arguments that destroy it threaten the Convention itself’.

Hedegaard (2008) states that ‘the discussions that ignited in Bali will continue to blaze in the coming years’. There is certainly much pressure for the successful and tangible outcomes required of the Copenhagen Climate Summit.

In 2008, the UN Intergovernmental Panel on Climate Change (IPCC) has provided further evidence of the existence of global warming and also the urgent need for emission reductions. Hedegaard (2008) refers to this IPCC evidence as ‘the other vital source of political pressure’ which provides quantifiable measures of ‘the greenhouse gas reductions that are necessary if the world is to avoid the human and economic consequences of climate change becoming too great’.

Chaytor MP (2000) states that one of the challenges with the Kyoto Protocol is that ‘[it] impose[s] collectively slight but legally binding commitments only on 'Annex One Parties' to the UNFCCC, in other words on those from the developed country group only. They alone will have to reduce or limit their net greenhouse gas emissions by an average of 5.2% below 1990 levels, by the period 2008- 2012. While quantitatively inadequate, this could be justified as a 'first-step'’.

The challenge faced at the Copenhagen conference is not small, not is it insurmountable.

Hedegaard (2008) predicts that Copenhagen will be a ‘political thriller on an international scale, and that right until the very end it will not be known whether a future agreement can be reached’. However, it is conceded that ‘after the Bali conference the message is clear: we must prepare ourselves for a task that could be even greater than we expected. There is no guarantee of success’.

7 Contraction and Convergence: an alternate solution to climate change?

Whilst the emission reduction targets in the Kyoto Protocol have been praised by many, an argument remains that the targets defined by the Protocol are simply not enough. The Royal Commission on Environmental Pollution (2000) states that ‘the most promising, and just, basis for securing long term agreement is to allocate emission rights to nations on a per capita basis – enshrining the idea that every human is entitled to release into the atmosphere the same quantity of greenhouse gases’. The concept of carbon emission reductions on a per capita basis is not without its own challenges.

The Royal Commission goes on to state that ‘because of the very wide differences between per capita emission levels around the world, and because current global emissions are already above safe levels, there will have to be an adjustment period covering several decades in which nations’ quotas converged on the same per capita level’, this forms the basis of the principle of contraction and convergence which is supported by the Royal Commission.

Chaytor MP (2000) explains the concept of contraction and convergence as the following ‘In a nutshell, countries agree a reviewable global greenhouse gas emissions 'contraction budget' to match a precautionary and safe future stable value for the rising (ghg) concentrations. The internationally tradable shares in this budget are then agreed on the basis of 'convergence' from now, where shares are proportional to income, to a target date in the budget time-line after which they remain proportional to an agreed base year of global population’.

Chaytor MP (2000) states that the Royal Commission report on “Energy – the changing climate” made ‘87 recommendations to the government’ and that a ‘third of these’ make recommendation that the United Kingdom’s government should push for a global agreement based on the model of contraction and convergence in addition to international trading of emission credits. Chaytor goes on to say that ‘together, these offer the best long-term prospect of securing equity, economy and international consensus’.

It is the support of contraction and convergence by governments such as the UK that ‘assists its growing international support’ according to Chaytor MP (2000).

Chaytor MP (2000) states that ‘Contraction and Convergence, as any other way of addressing this issue would replicate the very randomness to which they [the United States] sensibly object’. The support for contraction and convergence is also supported by developing countries in that they have ‘correctly argued that as the industrial countries have grown rich emitting an accumulated 80% of the emissions to date, they should 'take the lead' in cutting the emissions now without seeking to impose equal emissions responsibilities on the rest of the world unless and until the rights upon which these are based are recognised as equal as well’.

8 Conclusion

The effects and impacts of climate change throughout the world are now well documented and well accepted in the majority of circles. We are aware of the likely dangers that we face if we do not take considerable action against this growing global concern. The first steps taken to address this problem on a global scale, the United Nations Framework Convention on Climate Control, gave hope for a united and coordinated framework to address this challenge. However, this was a voluntary framework, with no binding targets nor commitments from the governments who became parties to the Convention.

The adoption of the Kyoto Protocol in 1997 provided greater stringency, committing its Parties to quantifiable carbon emissions reductions, whilst also requiring these Parties to submit progress reports which would be available for public scrutiny and to look for opportunities to collaborate in addressing this common concern. The Kyoto Protocol introduced measures and targets for each of its Parties, measures and targets which had to be committed to and thus the Kyoto Protocol became the binding agreement on Parties to the Convention.

The targets set within the Kyoto Protocol were not stretch targets, nor were they ambitious. An average reduction target of approximately 5% was agreed by the Parties, over a 5 year period. Enough to match the scale of the challenge we face? Whilst it can be argued that the intent of the Kyoto Protocol has been met, it is difficult to see the scale of change required for such a tremendous threat. Some progress is being made against the Protocol, however the Protocol expires in 2012 and, as at February 2009, no successor has been agreed.

The 15th COP meeting, to be held in Copenhagen, Denmark, in December 2009, is already being touted as the most important meeting of its kind in decades.

It is at this COP meeting where the successor to the Kyoto Protocol must be agreed by Parties, if it is to be adopted before the Kyoto Protocol expires. One item for consideration is likely to be the recently endorsed model of ‘contraction and convergence’, a concept that seeks to have a common emissions target on a per capita basis; a contraction of emissions by developed countries and a convergence of targets on a per capita basis.

We will wait and see what our respective governments can commit to on our behalf, what our respective governments are prepared to do to secure the future of humanity against this global concern. This author certainly hopes our respective governments have the courage to dream big.

9 References

• Carbon Planet, ‘Greenhouse Gas Emissions By Country’, http://www.carbonplanet.com/home/country_emissions.php

• Chaytor, D MP 2000, ‘Commentary on the RCEP report’ http://www.gci.org.uk/articles/ParlMon1.pdf

• Copenhagen Climate Council, ‘Climate Negotiations Updates’, http://copenhagenclimatecouncil.com/

• European Commission, ‘The Kyoto protocol - A brief summary’, http://ec.europa.eu/environment/climat/kyoto.htm

• Greenpeace Asia Pacific, ‘About the Kyoto Protocol’, http://www.greenpeace.org/australia/issues/climate-change/solutions/political/kyoto-protocol

• Hedegaard, C, Minister for Climate and Energy, Conservative Party (2008), ‘The winding and stony road towards Copenhagen’, http://en.cop15.dk/about+cop15/information+for/researchers/show+article?articleid=304

• Intergovernmental Panel on Climate Change 2001, ‘Climate Change 2001: The Scientific Basis Contribution of WG1 to the IPCC Third Assessment Report’.

• Meehl G et al 2005, ‘How Much More Global Warming and Sea Level Rise’, Science 307 (5716).

• Ministry of Climate and Energy of Denmark, ‘COP15 – the crucial conference’, http://en.cop15.dk/about+cop15/information+for/researchers/show+article?articleid=267

• Royal Commission on Environmental Pollution, ‘22nd report (Energy - The Changing Climate)’, http://www.rcep.org.uk/energy.htm

• United Nations, ‘UN System’s Work on Climate Change’, http://www.un.org/climatechange/

• UNFCCC , ‘The Convention and the Protocol’, http://unfccc.int/essential_background/items/2877.php

• UNFCCC, ‘Kyoto Protocol’, http://unfccc.int/kyoto_protocol/items/2830.php

• UNFCCC Secretariat, ‘Annual compilation and accounting report for Annex B Parties under the Kyoto Protocol. Revised note by the secretariat’, http://unfccc.int/documentation/documents/advanced_search/items/3594.php?rec=j&priref=600004934#beg

• World Meteorological Organization 2005, ‘Statement on the status of the global climate in 2005’.