Thursday, August 11, 2011

Kyoto Protocol- a History and its present relevance

What is Kyoto Protocol ? Where are we going in the future with the Kyoto Protocol? How has the international politics bogged down this concept which was a step much required for the safe keeping of future of this planet.

It’s important to understand where we are going on this process and we also have to see where we came from. To understand this, we have to understand that there is a science-based problem—namely climate change—that was identified in the mid-1980s and led to the first fundamental process, the 1992 Rio Convention, which produced the United Nations Framework Convention on Climate Change [UNFCCC].

That Convention gave a general outlook of what should be done to address climate change, but it did not give any specific tools on how to tackle it. So the 189 countries that were parties to the Convention decided that there should be a stronger tool to address climate change. At that point, the architecture of what we now call the Kyoto Protocol was decided. It’s important to understand that this was, fundamentally, a partial architecture, which agreed that industrialized countries would have to take the lead to reduce their emissions before the rest of the world, the developing countries, would take on commitments.

The question was: how should we reduce the emissions?

This was the subject of a huge debate in 1994-95, when discussions were made on fundamental architecture. One position held that there should be only domestic policies and measures. Another position, shared by Canada, held that we should have also flexibility in trying to find the lowest marginal cost for reductions, bearing in mind that the problem is not really the emissions in any particular country, but rather the accumulation of greenhouse gas emissions globally. And this debate gave us, in 1997, the Kyoto Protocol.

The Kyoto Protocol gave us a precise blueprint for giving industrialized countries general targets, and left out developing countries. For example, it was agreed, that countries would collectively reduce our emissions levels -5.2% from 1990 levels. But this gave a very broad “portfolio” of reductions through the system. For example, Canada committed to -6% in reductions, and the United States to -7%, while some countries, like Iceland, went to a plus 10%. But overall, countries would collectively reduce their emissions.
This is where the process becomes interesting.

What would the content of these emissions be?

At that point in time, the question was: how can emissions actually be reduced in developing countries to a process called a clean development mechanism and actually get those emissions reduced in developing countries and then repatriate the emissions to the countries that have commitments?

 This question started the famous debate on what to include as acceptable types of projects under the joint implementation—which are the projects you do in other countries that have commitments and the projects you do in countries in which you don’t have commitments. So there were negotiations, which started in 1997 and extended to 2001. It was only last November that finally terminated one part of the negotiations, the part surrounding the rules in which would implement the Kyoto Protocol.

But in parallel with this process, negotiations continued and the implementation of the original 1992 Convention. This part of these two pillars—the ones linked with the original Convention and the ones linked with the new “son” or “daughter” of the original Convention, called the Kyoto Protocol—came forward in 2001. It meant, on one side, that we now have a deal that allows us to actually move forward on the Kyoto side and eventually ratify it (for ratifying we need a certain number of countries actually agreeing to implement the Protocol). But it also means that in parallel we will continue the process. This process, of the UNFCCC is the one that deals essentially with everything linked with developing countries fundamentally. It is a package through which we will try to improve the capacity of developing countries that eventually take on commitments in the future.

Where does nuclear fit into this?

There is a perception that nuclear was excluded from the Kyoto Protocol and that it’s the end of the line for nuclear in this process. This is not the case.

First, nuclear energy is part of the inventory for domestic reductions, which means any nuclear process that is done in a country that is under the Kyoto Protocol that has obligations domestically is still counted in the inventory. So any new plants that would be created, such as the one approved recently in Finland, would have to be calculated against the that country’s levels of emission. In addition, it’s important to remember that although we were not successful (and Canada fought very hard on this) to have the parties agree that the nuclear projects would be capable of generating international credits, parties don’t have outright rejection of nuclear but a refrain-from-use for the first commitment period.

It means that the process under Kyoto is not finished. Negotiations have to be started for the second commitment period, which will start in 2013 for the following five years. To get to this new agreement, which is called “Kyoto 2,” By 2005, which is the official start of the second period of negotiations, there has to be a new architecture for future consideration. Those will go on until 2008, by which time all negotiations shall be completed for the second commitment period, which will lead us in the future. All this means that there is still some opportunity to restart our discussions about the role of nuclear.

So fundamentally, there are two tracks. The first track will pursue the UNFCCC process, and so forth. The second track will lead to ratification of the Kyoto Protocol, for which we need 55 countries, representing 55% of emissions of developed countries. This process is already under way. The European Union has made commitments to ratify by June. The other developed countries are now studying the Protocol to see if they can meet the commitments under the new Kyoto rule. Hopefully, by the time of the Johannesburg Summit next September, there will be a clear notion of whether or not we can actually enter the Kyoto Protocol into force, in order to continue the process of emissions reductions.

We are now in a process of trying to define a new strategy that will allow all developed countries to begin to define their positions. There have been three years of conceptual discussions on the future architecture of the process. So the process is far from finished. In fact, the process will probably continue for the next 50 years or so, because the Convention itself is an evolving document. This is why it’s called a Framework Convention. It is not a finished product; it is a product that has to evolve as we go along and as science gives us more background on what we are actually dealing with in climate change. Nuclear has perhaps had a slight setback for one part of the equation, which is for patriating projects in developing countries, but it is by no means the end of the road for these discussions. In the meantime, the process is still fully open for national projects.


The FCCC expressly contemplates that the COP may adopt protocols at any ordinary session of the COP.[1] At the third session of the COP (called COP-3), held in Kyoto (Japan) in December 1997, the parties adopted the Kyoto Protocol to the FCCC.[2] The most important provision of the Protocol is Article 3.1, which requires Annex I parties to reduce their emissions of greenhouse gases. Specifically, it provides:

The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

 Several of the terms in this provision may not be immediately clear. The Parties included in Annex I refers to Annex I to the FCCC, which, as noted above, includes the developed countries and the "countries in transition." Neither this provision nor any other in the Kyoto Protocol requires developing countries to reduce their emissions.[3]
The greenhouse gases listed in Annex A are carbon dioxide, methane, nitrous oxide, hydro-fluorocarbons, per-fluorocarbons, and sulphur hexafluoride. Carbon dioxide accounts for most warming - over 80% in 1990. The latter three gases are used for industrial purposes and as yet exist in relatively tiny amounts, but on a unit-by-unit basis they have a far greater warming effect than carbon dioxide.[4]
The assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments are set forth in Annex B as a percentage of the base year. For most Annex I parties and most greenhouse gases, the base year is 1990.[5] But countries in transition can use as a base year 1988 or 1989 - years in which their emissions were higher than they were in 1990.[6] And any Annex I party can use 1995 as its base year for the three industrial gases.[7] Since the levels of use of those gases were much higher in 1995 than in 1990, the effect is again to raise the amount allowed to be emitted.

The commitments vary from country to country, from a low of 92% to a high of 110%. The commitment assigned to the United States is 93% - in other words, the commitment is to decrease greenhouse gas emissions by 7% from the base year level. The commitment assigned to Japan is 94% (a 6% reduction), and the commitment assigned to the European Union as a whole is 92% (an 8% reduction).

 The period during which the commitment is to be met is 2008-2012.[8] The requirement is that each party's level of emissions during that period average its commitment amount. For example, Japan would be required to emit 94% of its base-year greenhouse gases as an average from 2008-2012. It would not be required to emit 94% in 2008, or in any other specific year in the commitment period. Even if it were still well above 94% in 2008, for example, it could argue that it would be premature to accuse it of failing to meet its commitment until and unless it had failed at the end of 2012 to maintain an average of 94% of its base-year levels over the five-year period.[9]
The language expressing a "view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels" is aspirational. Studies have estimated that if all of the Annex I parties met the commitments set out in Annex B, their total emissions would decrease by about 5.2%.[10]
Article 3.1 is silent on how Annex I parties should or must meet their commitments. The negotiators rejected EU proposals to mandate specific types of emission-reducing actions. But the negotiators were unable to agree on exactly how the Annex I parties could take sinks and various forms of joint action (such as emissions trading) into account in meeting their commitment targets.[11]

Status of the agreement
At the treaty's implementation in February 2005, the agreement had been ratified by 141 countries, representing over 61% of emissions[12]. Countries do not need to sign the protocol in order to ratify it: signing is a symbolic act only. An up-to-date list of those who have ratified is available [13].  

According to the terms of the protocol, it enters into force "on the ninetieth day after the date on which not less than 55 Parties to the Convention, incorporating Parties included in Annex I which accounted in total for at least 55 per cent of the total carbon dioxide emissions for 1990 of the Parties included in Annex I, have deposited their instruments of ratification, acceptance, approval or accession.". Of the two conditions, the "55 parties" clause was reached on May 23, 2002 when Iceland ratified. The ratification by Russia on November 18, 2004 satisfied the "55 percent" clause and brought the treaty into force, effective February 16, 2005

The protocol left several issues open, to be decided later by the Conference of Parties (COP). COP6 attempted to resolve these issues at its meeting in the Hague in late 2000, but was unable to reach an agreement due to disputes between the European Union on the one hand (which favoured a tougher agreement) and the United States, Canada, Japan and Australia on the other (which wanted the agreement to be less demanding and more flexible).

In 2001, a continuation of the previous meeting (COP6bis) was held in Bonn where the required decisions were adopted. After some concessions, the supporters of the protocol (led by the European Union) managed to get Japan and Russia in as well by allowing more use of carbon dioxide sinks.
COP7 was held from 29 October 20019 November 2001 in Marrakech to establish the final details of the protocol.


With respect to sinks, the parties were strongly divided in the negotiations. Sinks refers to those natural processes, which absorb carbon dioxide from the atmosphere.[14] The most important natural sinks are plants and oceans, which reabsorb much of the carbon dioxide, emitted every year. There are well known practical difficulties with relying on Sinks to offset emissions from industrial sources, including the difficulty of measuring the actual Carbon Dioxide absorbed by the Sink accurately and the fact that forest Sinks can easily become the sources of Carbon Dioxide due to deforestation, disease and so on.[15]  
Countries such as the United States, Canada, and Russia, which have large forests, would benefit from a rule allowing their forests to count as a credit toward their commitment target. On the other hand, many countries in Europe and Asia lack such sinks and were reluctant to allow credit for them. In the end, the negotiators agreed to allow Annex I parties to take credit for certain types of anthropogenic sinks - "aforestation, reforestation, and deforestation since 1990" - and left open the possibility that "additional human-induced activities" could be included if the meeting of the parties to the Protocol so decided.[16] The Protocol did not state what percentage of the commitment could be reached through forestry or other activities, which later proved to be a contentious issue.

Emission Trading and Joint Implementation

The negotiations were particularly difficult with respect to joint action, with some countries, such as the United States, strongly arguing that mechanisms such as emissions trading had to be included, and others, including many developing countries, resisting. In the end, the negotiators included four joint-action mechanisms in the Protocol, but left almost all of the details concerning their implementation to later negotiations.[17]

First, the Protocol allows Annex I parties to fulfill their Article 3 commitments jointly, provided that their total combined emissions do not exceed the amounts assigned to them in Annex B.[18] Although this provision is open to any group of countries, only the EU is expected to take advantage of it, and this is known as the "EU bubble."[19] EU countries have agreed on a division of responsibility that includes a wide variation in countries' target emissions, from -28% for Luxembourg and -21% for Denmark and Germany, to +25% for Greece, and +27% for Portugal.

Second, the Protocol provides for emissions trading among Annex I parties that have undertaken commitments pursuant to Article 3, effectively allowing any two parties to trade part of their emission commitment.[20] The Protocol says next to nothing, however, about how emission trading is to be implemented. Moreover, it states that "any such trading shall be supplemental to domestic actions" for the purpose of meeting Article 3 commitments, which leaves ambiguous the degree to which countries may meet their commitment through purchasing emissions rights from other parties.

Third, the Protocol provides for "joint implementation" at the project level between Annex I parties. Specifically, it allows any Annex I party to transfer to or acquire from any other Annex I party "emission reduction units resulting from projects aimed at reducing anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of greenhouse gases," provided that the project's benefit with respect to greenhouse gases "is additional to any that would otherwise occur" and that certain other requirements are met.[21] This was the least controversial of the "joint-action" mechanisms.[22]

Much more controversial was the proposal that Annex I parties be able to obtain similar "emission reduction units" from developing countries. This idea of global joint implementation was strongly pushed by the United States and some other developed countries, and opposed during much of the negotiations by the EU and many developing countries. In the end, the Kyoto Protocol provides for global joint implementation under the name of a "clean development mechanism."[23] Specifically, the Protocol allows Annex I parties to use emission reductions accruing from projects in developing countries, "as determined by the Conference of the [FCCC] Parties serving as the meeting of the Parties to this Protocol." In other words, the degree to which Annex I parties can actually use these emissions reductions to meet their commitment is up to the Kyoto parties to decide. Moreover, the Protocol says that the reductions must be "certified" by "operational entities" to be named by the first meeting of the parties to the Protocol. The first meeting of the parties to the Protocol was also charged with working out the "modalities and procedures" of the clean development mechanism.[24]

The Problem of Compliance

Another difficult issue facing the negotiators was how to ensure compliance by the parties with Kyoto's requirements. The Protocol requires Annex I parties to report annually on its implementation of the agreement and contemplates that the first meeting of the parties to the Protocol will adopt guidelines specifying what the reports must include.[25] The Protocol also subjects these reports to review by experts nominated by the parties and coordinated by the secretariat, who are required to "provide a thorough and comprehensive technical assessment of all aspects of the implementation by a Party of this Protocol."[26] The expert review teams are to report to the meeting of the parties to the Protocol," assessing the implementation of the commitments of the Party and identifying any potential problems in, and factors influencing, the fulfillment of commitments."[27] More generally, the COP, acting as the meeting of the parties to the Protocol, is charged with regularly reviewing the implementation of the Protocol "and the extent to which progress towards the objective of the Convention [i.e., stabilization of greenhouse gases at a safe level] is being achieved."[28] This review could conceivably result in an agreement among developing countries to commit to greenhouse gas reductions, but nothing in the Protocol explicitly says so. In contrast, the COP is required to begin considering commitments for Annex I parties for subsequent periods - that is, after the 2008-2012 commitment period - no later than 2005.[29]

In contrast to the Protocol's relatively strong and clear provisions on reporting and assessing Annex I parties' implementation of their commitments, its provisions on enforcement are weak. Article 18 charges the first meeting of the parties to the Protocol with approving "appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol." And Article 19 states that FCCC Article 14, the toothless dispute-resolution provision described above, will also apply to the Protocol.

Entry Into Force

The final important point about the Protocol is its requirement for entry into force. Article 25 provides that it will enter into force 90 days after at least 55 countries, including Annex I parties that account for at least 55% of the total carbon dioxide emissions in 1990 of Annex I countries, have formally ratified it. The 55-country mark has been relatively easy to reach, since ratifications by developing countries count towards it. As of late 2003, more than 100 countries had ratified the Protocol. The 55% requirement is much more difficult. The United States emitted about 36% of all Annex I carbon dioxide emissions in 1990; therefore, entry into force without the United States requires participation by virtually all other major Annex I countries.[30]

Support for Kyoto
The governments of all of the countries whose parliaments have ratified the Protocol are supporting it.

Advocates of the Kyoto Protocol claim that reducing these emissions is crucially important; carbon dioxide, they believe, is causing the earth's atmosphere to heat up. This is supported by attribution analysis.
Most prominent among advocates of Kyoto have been the European Union and many environmentalist organizations. The United Nations and some individual nations' scientific advisory bodies have also issued reports favoring the Kyoto Protocol.

In the USA, there is at least one student group Kyoto Now! which aims to use student interest to support pressure towards Kyoto Protocol compliance.

As of November 15, 2004, nine Northeastern US states are involved in the Regional Greenhouse Gas Initiative (RGGI)[31], which is a state level emissions capping and trading program. It is believed that the state-level program will apply pressure on the federal government to support Kyoto Protocol.

Opposition to Kyoto
The two major countries opposed to the treaty are the USA and Australia, based on the public statements of their governments. Some public policy experts who are skeptical of the global warming hypothesis see Kyoto as a scheme to either retard the growth of the world's industrial democracies or to transfer wealth to the third world in what they claim is a global socialism initiative.

Some critics say there are problems with the underlying science. For example, Russia's influential Academy of Sciences (RAN) said the government's decision to approve the Kyoto Protocol was "purely political," and that it had "no scientific justification." [32]  The Russian experts told president Putin that Kyoto was scientifically unfounded nonsense.[33]  Andrei Illarionov, Putin's economic policy advisor, compared the Kyoto Protocol to fascism. [34]

The 1997 Leipzig Declaration called the Kyoto Protocol "dangerously simplistic, quite ineffective, and economically destructive to jobs and standards-of-living". However, most of the signers of the Leipzig Declaration were non-scientists or lacked credentials in the specific field of climate research.

Some argue that the protocol does not go far enough to curb greenhouse emissions (Niue, The Cook Islands, and Nauru added notes to this effect when signing the protocol[35]), and the standards it sets would be ineffective at curbing or slowing climate change. In addition, there have been recent scientific challenges to the idea of carbon credits, planting "Kyoto forests" or plantations to reduce total carbon dioxide output. Recent evidence shows that this may in fact increase carbon dioxide emissions for the first 10 years, due to the growth pattern of young forests and the effect it has on soil-trapped carbon dioxide. Several industrial countries have made carbon credits an important part of their strategies for reducing their net greenhouse gas outputs, further calling into question the effectiveness of the protocols.

To evaluate the effectiveness of the Kyoto protocol, it is necessary to compare global warming with and without the agreement. Several independent authors agree that the impact of the Kyoto protocol on global warming is likely to be very small. Even some defenders of the Kyoto Protocol agree that the impact of it is small, but they view it as a first step with more political than practical importance, for future reductions, perhaps of up to 70%. The UNEP says the effectiveness of Kyoto really depends on whether it lays a good foundation for the climate convention process, which might lead to greater reductions later[36]. The Kyoto Protocol can also be evaluated by comparing costs and gains. Several economic analyses were made that show that the Kyoto Protocol is more expensive than the global warming that it avoids. Defenders of the Kyoto Protocol argue however that while the initial greenhouse gas cuts may have little effect, they set the political precedent for bigger (and more effective) cuts in the future. Also, they demonstrate commitment to the precautionary principle.

Beyond other arguments some theorists predict that even if the world's leading industrial nations agree to reduce their greenhouse gas emissions as mandated by the Kyoto Protocol, it is likely that there would be no net change in emissions worldwide. If the industrialized countries cut their demand for fossil fuels to meet the emission reduction responsibilties, the law of supply and demand would tend to cause the world prices of coal, oil and gas go down, making fuel use more affordable for poorer nations. These theorists predict increased fuel use (primarily coal) in the "non-Annex I" countries, tending to offset the reductions of the "Annex I" countries.


Like everything in this world, opinion for Kyoto is also divided. Those who are against this protocol argue that the protocol does not have teeth to curb greenhouse emissions. The 1997 Leipzing declearation, a conclave of some so called earth friendly business houses called the Kyoto Protocol "dangerously simplistic, quite ineffective, and economically destructive to jobs and standards-of-living".

Some critics are of the view that the protocol will prevent or damage economic growth. Its not  surprising to see that influential economic powers of the first world calling Kyoto as a scheme to either retard the growth of the world's industrial democracies or to transfer wealth to the third world in what they claim is a global socialsim initiative.

The supporters of Kyoto protocol are of the opinion that to evaluate the effectiveness of the Kyoto protocol, it is necessary to compare global warming with and without the agreement. They say that the time is slipping fast out of hand, because for ages the human population has exploited the nature so much so that, if nothing substantial is done soon, the flora, the fauna and the environment; everything will vanish, never to be born again.

Defenders of the Kyoto Protocol argue that while the initial greenhouse gas cuts may have little effect, but it will set the political precedent for bigger (and more effective) cuts in the future. Another important view of several independent authors is, that the impact of the Kyoto protocol on global warming is likely to be very small. Though crusaders of the Kyoto Protocol agree that the impact of it may be small, but they view it as a first step with more political than practical importance. Here is where the crux lies, for if this protocol is even remotely successful in its objectives it will pave a way for future conceiving of earth saving conventions and protocols, and god forbidding if it fails then, the result will not be less than a catastrophe.

The importance of kyoto can be summarized in the words of UNEP, which says that  the effectiveness of Kyoto really depends on whether it lays a good foundation for the climate convention process, which might lead to greater reductions

P.S-This paper was a joint effort of me and my colleague Mr.Prateek Sharma.

[2] Kyoto Protocol to the Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998).
[3] SARAH R. HAMILTON, COMMENT: Developments in Climate Change, 2003 COLO. J. INT'L ENVTL. L. & POL'Y 37
[4] JOHN H. KNOX, INTRODUCTION: The International Legal Framework for Addressing Climate Change, 12 Penn St. Envtl. L. Rev. 135.
[5]Kyoto Protocol to the Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998).
[6] Id. Art. 3.5.
[7] Id. Art. 3.8.
[8] Id. Art. 3.7.
[9] Supra note 3.
[10] Id.
[11] Supra note 4.
[12]  (
[13] (
[14] Greenpeace Guide to the Kyoto Protocol, at
[15] Id.
[16] Kyoto Protocol to the Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998).,      Art. 3.4
[17] JOHN H. KNOX, INTRODUCTION: The International Legal Framework for Addressing Climate Change, 12 Penn St. Envtl. L. Rev. 135.
[18] Supra note 16, Art. 4.1.
[19] Supra note 17.
[20] Supra note 16, Art. 17.
[21] Id. Art. 6.1.
[22] Supra note 17.
[23] Supra note 16, Art. 12.
[24] SCOTT BARRETT, International Environmental Agreements: Compliance And Enforcement: International Cooperation And The International Commons, 10 Duke Env L & Pol'y F 131.
[25] Supra note 16, Art. 7. 
[26] Id. Art. 8.
[27] Id. Art. 8.3.
[28] Id. Art. 13.
[29] Id. Art. 3.9.
[30] PAUL KEVIN WATERMAN, SYMPOSIUM: EXPORT OF THE RULE OF LAW: STUDENT NOTE: From Kyoto to ANWR: Critiquing the Bush Administration's Withdrawal from the Kyoto Protocol to the Framework Convention on Climate Change, 13 Transnat'l L. & Contemp. Probs. 749
[31] (
[32] (
[33] (
[34] (
[35] (
[36]  (

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