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At the Durban platform in December 2011, the United Nations Framework Convention on Climate Change (UNFCCC) parties committed to enter into negotiation for the creation of a new global climate change regime from 2020. In order to have greater understanding about the legal nature of the new regime, various questions need to be explored in depth such as 1) its distinctive differences from that of Kyoto protocol in terms of binding commitments, 2) the potential role expected from developing Asia, and 3) the type of legally binding agreement that is universally acceptable. This month, we hear from Dr. Francesco Sindico, Reader in International Environmental Law at the University of Strathclyde, Glasgow, UK.

Participation of Asian Countries and Extent of Legally Binding Commitments

---What might be the nature of a legally binding global climate regime that will ensure greater participation and commitment of Asian countries?

Sindico:

The global climate regime started shifting after the fifteenth session of Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC) took place in Copenhagen in 2009. There, a rather limited number of influential countries that included China and India brokered an agreement, called the Copenhagen Accord that was set to pave the way for a different approach to tackling climate change.

The international community seemed to move away from a rigid top-down approach to a more flexible bottom-up approach. The latter approach envisioned a system where countries could freely decide their own level of climate change mitigation ambition and, furthermore, define such ambition according to the parameters and criteria of their own liking. In other words, previously all countries which are parties to the Kyoto Protocol were obliged to achieve an emissions reduction target based on a common base year and within a certain timescale. However the approach enshrined in the Copenhagen Accord, and later confirmed by the Cancun Agreements, allowed countries, for example, to choose different base line years and consider their emissions reduction target on different grounds, such as carbon intensity per GDP unit. More importantly, the shift that began in Copenhagen was one from a global climate regime based on legally binding obligations for some to a system based on voluntary emissions reduction pledges for all.

Against this background, the UNFCCC COP 17 in Durban in 2011 concluded with an important decision that mandated new negotiations aimed at "launch[ing] a process to develop a protocol, another legal instrument or a legal outcome under the Convention applicable to all Parties" to be concluded by 2015 and for it to come into effect and implemented by 2020.

The question becomes then to what extent would a "protocol", "another legal instrument" or a "legal outcome" be legally binding, and will this ensure greater participation of Asian countries. It all really depends on what we intend by legally binding. The latter could mean either a formal new treaty or protocol that upon ratification will be binding upon a country, or it could imply a legal instrument (be it a treaty or even "just" a COP Decision) capable of setting out clear and enforceable obligations. However, a treaty may be formally legally binding, but provide only very general obligations set mainly as recommendations. On the other hand, a COP Decision can have the advantage of being more precise, but some would argue that its enforceability would not be as straightforward.

Moving on the key element of any new climate regime that will stem from the Durban negotiations is that, whatever outcome countries will be able to negotiate, this should be applicable to "all Parties". This will be a game changer since until very recently the climate change regime has distinguished between developed and developing countries based on the application of the principle of common but differentiated responsibilities (CBDR) and respective capabilities.

The latter part of this principle - "respective capabilities" - is starting to play a bigger role, and countries like China and India have acknowledged that they also have a role to play in tackling and mitigating climate change. Having said that, and despite good practices arising from both countries, it will be most likely a bottom-up flexible climate regime, framed as legally binding, the one that will ensure greater participation and commitment from Asian countries.

The latter have shown some degree of openness to discuss with their developed countries counterparts the possibility to get involved in a future international climate regime, but one doubts very much that they would be warm to a framework that would impose stringent targets upon them. They would be even less inclined to favour one that could impose controls on any national mitigation action policy followed by sanctions should non-compliance be found. It is therefore a more flexible, bottom-up approach that they will favour. Whether this will be enough to tackle head on climate change is more than doubtful.

New Global Regime after 2020

--- In the past the global climate change negotiation processes witnessed events that apparently diluted the strength of the international regime, such as the withdrawal of the United States from Kyoto protocol, and Canada and Japan opting out of the second round of commitment period. What could a legally binding commitment mean on such occasions under the new regime?

Sindico:

One needs to emphasise again that legally binding commitments can mean two things. For the sake of clarity, we can call them "hard" and "soft" legally binding commitments. A "hard" commitment would be one where a country obliges itself to a specific objective for emissions reduction and agrees for it to be monitored and verified independently and, ultimately, agrees to be subject to penalties should it not be able to meet the "hard" commitment. However, also a "soft" commitment can be couched as "legally binding". This would be the case of a commitment framed in very general terms that really only obliges countries to make best efforts to seek to achieve an emissions reduction goal. In this case the monitoring and verification will be limited to the due diligence implemented by a Party in developing a national climate change policy. As long as best efforts have been taken, no real sanction can be imposed, and even if it were, it would usually be linked to assistance and capacity building. As long as this "soft" commitment is included in a treaty or in a protocol it becomes, at least formally, legally binding upon those countries that have ratified the international legal instrument. With reference to the past climate regime, the Kyoto Protocol provided an example of "hard" commitments and the UNFCCC of "soft" commitments, but both were undoubtedly legally binding.

The question then is how would a "hard" or "soft" legally binding commitment play out in situations where countries consider opting out from a future climate regime, as has happened with Canada withdrawing from the Kyoto Protocol, or Japan deciding to not be Party to its second commitment period.

Before moving on to see what this would mean, it is important to highlight that examples of this sort just reflect the fact that state sovereignty is still very much a key principle of international law and international relations. As long as States remain key players of international law, and there is no reason to think that this may change in the short or medium term, the risk of countries taking a bold political decision and stepping out from an international regime is always around the corner, and cannot be easily avoided.

Having said that, it may well be that having "strong" legally binding commitments will make countries more cautious and possibly lead to a decision to withdraw from that regime in the future. It is not a surprise that the examples just mentioned (US, Canada, Japan, etc.) all refer to the Kyoto Protocol, which was based on "hard" commitments, and that no country has ever seriously thought of withdrawing from the "soft" commitments of the UNFCCC, which has a universal membership that includes the US. Hence, if a future climate regime is based on "soft" legally binding commitments, it will most likely bring countries together, rather than apart. While this may not be ideal from an environmental perspective, since softer commitments based on pledges will not avoid dangerous climate change, this option does represent a political compromise (possibly the only one available at the moment) capable of bringing all key players together. This latter point is extremely important at this stage because the international climate regime, and the future one in particular, can increasingly be framed as a global platform where good climate change related practices are shared and promoted.

It is important that Asian countries, as well as States from other regions, are proactive in sharing with the international community the lessons they are learning from their own climate policies (whether these are pilot trading schemes in China or bilateral agreements negotiated by Japan in the context of offsets within voluntary carbon markets). The global climate regime, despite the fact that there may well be a new climate instrument in 2015, is become increasingly fragmented and there is a risk that "hard" legally binding commitments may accentuate this trend and make it more difficult to manage. "Soft" legally binding obligations will not solve the environmental problem of climate change in the long term, but can provide some space for multilateralism, which is ultimately the approach that is needed if a "global" challenge such as climate change is to be dealt with in all of its facets, and not just mitigation.

--- Thank you very much.

About "Monthly Asian Focus: Observations on Sustainability"

Until 2010, IGES released "Top News on the Environment in Asia" on a yearly basis. For over 12 years since its establishment of IGES in 1998, "Top News" collected and organised information about environmental issues and policy trends in the region.

In January 2011, IGES launched the new web-based series "Monthly Asian Focus: Observations on Sustainability" in which leading environmental experts deliver their take on latest trends of sustainable Asia.

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