Over the years many have proclaimed the Kyoto Protocol “dead” and once again media reports are starting to suggest the imminent demise of this international climate change treaty and a new Australian compromise.
Clearly the protocol is not yet dead as its binding pollution reduction targets for most industrialised countries remain in force until the end of 2012. However as negotiations have intensified in the lead up to the Copenhagen climate summit in December, the treaty’s future has become increasingly uncertain.
Behind the headlines about targets, technology transfers and finance for developing countries, a profound discussion on the “legal form” of the new agreement is occurring. This dominated recent talks held in Washington D.C. attended by Climate Change Minister Penny Wong.
In these negotiations on a new climate agreement, which will continue next week in Bangkok, two very different legal pathways are emerging.
The first builds on Kyoto and expands internationally agreed commitments to reduce emissions to include the USA and slow emissions growth in countries like China. It would also cover the international mechanisms, like levies on international shipping and aviation fuels, which will drive public and private sector investments in climate change solutions, particularly in developing countries.
The second pathway scraps internationally agreed commitments and/or standards altogether, putting the emphasis primarily on domestic law. This would lead to a patchwork of loosely connected national or regional systems, each with its own set of rules.
This second pathway reflects the current situation where countries like the USA, China, Brazil and India are prepared to take action domestically, but are not necessarily prepared to subject themselves to international verification, accounting standards and/or compliance.
For example, China’s current domestic energy targets are projected to avoid emissions equivalent to those of Russia by 2010. But China has not put this in an international agreement. In fact the current legal architecture would not allow China to do this!
The draft treaty submitted to the UN by the USA also illustrates this issue. It suggests that industrialised countries would undertake emissions reductions “in conformity with domestic law.” This implies that future international action on climate change would not be based on internationally agreed rules that are broadly perceived as fair for everyone, but on rules largely determined by national (vested) interests.
This would mean that every emissions trading system introduced around the world would need to set up rules for whether they would accept, for example, an American, European, Chinese or Australian carbon pollution credit.
Then they would have to try and find a way to make sure that that the very same credit had not been also sold to someone else! (A worrying alternative would be to let the market and carbon permit traders sort all this out.)
Emerging out of the negotiations is an alternative Australian proposal which is attracting increasing interest as it potentially charts a route between these two pathways. It includes economy wide commitments to reduce emissions by developed countries but which would also allow other economies like Mexico and South Korea, traditionally not classified as “developed”, to register the emission trading systems they are developing in an international “schedule”.
China’s efforts would also be documented in a schedule, including the key commitments from its Five Year Plan. After countries have put their commitments on the table the international community would then assess whether the individual and collective effort is sufficient. If not, they would negotiate with each other to reach an agreed level of global reductions.
A key attraction of this proposal is that it builds a bridge between the Kyoto world and the new post-2012 world where fair, international commitments from a broader range of countries - especially the USA and China – will be essential if an effective binding agreement is to be reached. It could also provide the vehicle for future “rounds” of reductions without having to renegotiate the entire system each time.
Indeed a schedules approach, if carefully designed, would allow efforts to be ratcheted up more quickly, as countries can increase, but not decrease, their commitments at any time.
On face value the schedules approach seems like a possible way forward. As international law experts have noted the schedule approach could provide a flexible and iterative means of expressing climate action.
However, as we have seen in the past, countries will take any opportunity to weaken their own commitments. The credibility of this approach will depend on its ability to strengthen global action and not lead to a system that just sees countries registering existing national commitments.
For example, countries should only gain access to international carbon markets and financing if they had an agreed schedule. The devil, as ever, will be in the final detail.
Whether the Kyoto Protocol will survive the Copenhagen round, or be subsumed into a new treaty, remains to be seen. Regardless, Copenhagen must lay the foundations of a robust, trusted and independent process for coordinating national efforts and driving clean energy investments.
Without a robust, flexible and transparent legal architecture, trust between nations will be reduced, the agreement will not be durable and we will not avoid dangerous climate change.
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