In or Out? - Australia and the Kyoto Protocol
In or Out? - Australia and the Kyoto Protocol
The Russian Parliament's recent decision to ratify the Kyoto global treaty, pushes the 126-nation United Nations pact past the threshold of 55 percent of developed nations' emissions needed to make it internationally binding. Under the terms of the Kyoto Protocol it will come into force in under three months.
The move places increased pressure on Australia to revisit its decision to stand firm, alongside the United States, as the only two nations who remain opposed to the global strategy to combat climate change, by reducing greenhouse gas emissions.
This speech by Steven Freeland on the implications of this most recent ratification was given to Seminar Sponsored by the Lawyers Reform Association, Corrs Chambers Westgarth and the International Law Association (Australian Branch).
Sydney, 18 October 2004.
Ten days ago I was in Canada speaking at a conference on Space Law and Technology. A full session was devoted to discussion of the technological uses of space to help determine the rate and effects of global climate change. I read in the local papers in Vancouver that the current population of 1200 polar bears may disappear from the Hudson Bay region within 30 years, that an anticipated reduction of 50% of Arctic sea ice will result in the formation of an Arctic shipping channel by 2050 and that the Inuit people living in the Arctic are finding their livelihood under great strain as a result of the changing environment of the region.
I then heard a climate expert being interviewed on CNN who stated that the 10 warmest years on record have all occurred since 1987. I watched other coverage of the record number of severe hurricanes over the past month that have had a terrible toll in human and monetary terms through the Gulf of Mexico. There can be no doubt that climate change is a reality.
Moreover, the UN-established Intergovernmental Panel on Climate Change (IPCC) has moved towards a largely consensus view that the actions of humans, particularly through the emission of so called 'greenhouse gases' was a major factor which contributed to this climate change phenomena. Last week we heard confirmation from scientists in Great Britain, Hawaii and in the Arctic that the rate of increased CO2 in the atmosphere was significantly greater than had been anticipated only two years earlier. The IPCC has for a considerable number of years called for appropriate measures to be taken to redress the deleterious effects of greenhouse gas emissions on the global environment. The issue of global warming has galvanised many sections of the international community.
Much has been written about the potential effects of global climate change. While there is not complete unanimity as to precisely how climate change will interact with the future well-being of communities, it is accepted that, left unchecked, climate change will threaten the availability of resources such as water, arable land and food, which are critical elements in the survival of all people. Not only is this of itself a significant problem but it also has even broader implications given the integral relationship between human security and the environment, particularly in relation to access to natural resources. Climate change will increase the risk of 'international environmental refugees' - this was highlighted in a recent television program on the situation in Tuvalu - and heighten tensions between individuals, communities and countries.
Conflicts will increasingly be fought over the most basic natural resources. Climate change therefore represents a threat to international peace and security which raises the distinct possibility of action by the United Nations Security Council under Chapter VII of the United Nations Charter.
It is therefore abundantly clear that significant efforts must be made to arrest the continuation of climate change. The international community has chosen to spearhead this effort through the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), which was adopted in December 1997. At that time, there was a tangible sense of achievement and relief among States - the Kyoto Protocol was regarded by many as a significant advance in the quest to address, through international cooperation, the problems associated with global warming and climate change.
Most significantly, the United States, Australia and 36 of the world's other industrialised countries had agreed to build upon the general terms and objective of the United Nations Framework Convention on Climate Change - to stabilize atmospheric concentrations of 'greenhouse gases' - by committing to specific legally binding targets to limit or reduce emissions of six specific greenhouse gases. It had earlier been agreed in 1995 that developing countries would not be required to commit to binding emission target levels, at least for the purposes of the first commitment period (2008-12). It was calculated that compliance with the Kyoto Protocol targets would result in an overall global reduction in greenhouse gas emissions of slightly in excess of five per cent from 1990 levels during the first commitment period.
Moreover, the Kyoto Protocol represented a quite radical approach to the issue of international environmental regulation, through the incorporation of specific market mechanisms as a significant component of the proposed framework. These innovative 'flexibility mechanisms' were developed to enable developed countries to comply with their commitments in a more cost efficient manner. Indeed in a report released just last week, The Climate Group, a UK-based NGO, indicated how public sector and private sector organisations have managed to achieve significant reductions of greenhouse gases and increase profits as a result. The report demonstrated that Germany's promotion of renewable energy and improved efficiency has led to the creation of more than 450,000 new jobs, undermining the oft-repeated claims that a strong climate policy is bad for business. It also described how five significant companies - DuPont, Alcan, British Telecom (BT), IBM, and NorskeCanada have achieved emissions reductions of 60% or more with combined savings of over US $5.5 billion, resulting from improved energy efficiency, fuel switching, and reduced waste.
One of these flexibility mechanisms, the Clean Development Mechanism (CDM), has the additional specific purpose of helping developing countries to achieve sustainable development, a principal objective of the international environmental law community ever since the 1992 Earth Summit and the cornerstone of the 2002 Johannesburg World Summit on Sustainable Development.
As a result, compliance with and implementation of the existing terms of the Kyoto Protocol, as well as any additional binding commitments that may follow in subsequent commitment periods, would mean that the scientific benefits associated with reduced greenhouse gas emissions would accrue to the global environment whilst, at the same time, industrialised countries would be able to take advantage of specific market mechanisms in order to reduce the costs arising from their actions. Furthermore, the CDM process allows developing countries to gain access to 'green' technology through the implementation of projects jointly with developed countries.
All of these activities could help to formalise processes and create relationships that might themselves foster additional cooperative partnerships between nations in the international community. The optimists among us might even suggest that these evolving environmental joint activities could encourage further collaborative efforts to address other issues of global concern in the future.
Viewed in this overall context, the general terms of the Kyoto Protocol appeared to provide for a 'win-win' situation. This is how it was portrayed, at least in the period immediately following its adoption, as governments and environmentalists claimed that it represented a very significant first step by the world's industrialised countries towards positive action to address the pollution problems resulting from the emission of greenhouse gases.
The signing of the Kyoto Protocol projected the issue of climate change, and the ways that it might be addressed, into an even more prominent limelight than previously. The commitment to binding emission target levels has led governments, industry and non-government organizations to consider in detail the ways in which the flexibility mechanisms should eventually be structured. In addition, a number of industrialised countries, particularly in Europe, have introduced proposals to establish national and regional legal and emissions trading regimes designed to reduce domestic greenhouse gas emission levels. These and other actions have, over recent years, generated to some extent an irreversible 'process of change' in the strategies of many industrialised countries, and indeed in other countries as well, towards a more general acceptance of at least the underlying principles of the Kyoto Protocol.
Despite these positive signs, the reality has at least thus far not lived up to the promise and expectations envisaged in Kyoto in 1997. As is frequently the case with international environmental agreements, the unavoidable spectre of both international and domestic realpolitik has played a crucial role. To become a binding document, ratification is required by a minimum of 55 countries, accounting for at least 55 per cent of total carbon dioxide emissions by developed countries in 1990. The Kyoto Protocol has been ratified by 122 countries - but until very recently it seemed that the second requirement for entry into force was not achievable. Why was this so?
The United States, which is the world's largest greenhouse gas emitter, has rejected the Kyoto Protocol. In March 2001, President Bush announced that the US would not support the implementation of the Kyoto Protocol. In his view, the scientific evidence was 'incomplete' and, in any event, it was not in the United States' best interests to proceed with the Kyoto Protocol, which he regarded as 'flawed', 'costly' and 'unfair' in that it did not bind major developing countries such as China and India. Arguments that had been won (and lost) over the previous six years had now resurfaced.
Energy hungry Australia, which is world's largest polluter on a 'per manufacturing unit' basis, has also rejected the Protocol. The Howard Government has consistently refused to accept that Australia should play a role in the formal Kyoto mechanisms - despite the fact that Australia had negotiated for itself an 8% increase in its greenhouse gas emissions allowance - compared with the vast majority of developed countries that were required to decrease their emissions compared to 1990 figures. Earlier this month, both Prime Minister Howard and Industry Minister Ian MacFarlane said it would be 'crazy' to ratify the Protocol. Yet, they both committed Australia to comply with its emission targets, albeit on a 'voluntary basis'.
And so the Kyoto Protocol lay in limbo for several years - reliant on Russia to ratify it in order that the threshold targets would be met. And, almost out of the blue, President Putin announced last month that he would send the Kyoto Protocol to the Duma to seek approval for ratification, essentially in return for EU support of Russia's accession to the WTO. Irrespective of Russia's motives, however, the Kyoto Protocol, which President Bush and Vice President Cheney have described as a 'dead duck' has, as the Economist recently put it 'risen from the dead like a swamp creature in a bad horror movie', despite the efforts of a 'Texan cowboy who thought he had killed the Japanese monster'.
So that is where we find ourselves - a formal process that has lingered at the edges for seven years is about to be formalised. There is no doubt that the years have taken their toll - many developed countries have successfully bargained for significant concessions within the mechanisms of the Protocol that, no doubt, have compromised quite dramatically the environmental integrity of the Protocol. Yet, as we all notice in our daily lives the effects that climate change can have, it is important - vital - that the international community is engaged and work together within the framework of a global process, such as has been established under the Kyoto Protocol, in both the public and private spheres in order to address the important issues.
Earlier this year, the Wall Street Journal argued that 'Kyotoism' - which it said resembled an attempt at 'the global management of human efforts' was an unacceptable interventionalist approach that conflicted with a free market philosophy - was something to be avoided. I submit the contrary - in terms of the future environmental state of the world - and in other areas such as International Criminal Law, World Trade Law, Human Rights Law to name a few - Kyotoism is the only proper way to adequately address problems of global concern.
Developed countries like the United States and Australia should be demonstrating leadership in these endeavours rather than creating an isolationist approach to a problem that knows no borders. In the end, climate change will touch those countries just as it will impact on all others.
