Climate change and the necessary reduction of anthropogenic greenhouse gas emissions are global concerns that the world’s nations have recognised can only be meaningfully addressed through international cooperation. To this end, the last quarter of a century has seen significant attention directed towards these issues. As has been the case with most developments in international environmental law, the conflicting interests of states has adversely affected the negotiation of effective climate change mitigation strategies.

Although the 1992 Climate Change Convention1 was signed by more than 155 states, the situation remains dire: in 2007 the Intergovernmental Panel on Climate Change warned that unless emissions are severely reduced, the global mean temperature will rise up to 4 degrees celsius over the next century.2 The lack of improvement is a consequence of many factors, among them the conflict between the interests of developed and developing nations.

While the 1992 Climate Change Convention and its 1997 Kyoto Protocol3 provide general commitments to the goal of reducing greenhouse gas emissions, the absence of firm commitments to specific reduction targets in favour of ‘flexibility mechanisms’ has resulted in limited reductions in emissions and an over-reliance on market ‘solutions’ that hinder progress. It is clear that the minimal gains made thus far are linked to the perceived divisibility of states into ‘developed’ and ‘developing’ groups, and that much can be done to improve international cooperation.

State equity through common but differentiated responsibilities

The concept of ‘common but differentiated responsibilities’ has drawn a distinction between developed and developing nations in international environmental law. This distinction tends towards placing an ‘equitable’ or ‘fair’ burden on developed countries as a result of their historical contributions to environmental degradation and their capabilities to engage in costly ‘mitigation action.’4 As a result of this approach, developed countries have tended to take on comparatively significant burdens, while developing countries have ‘lighter or no obligations’ as well as a ‘right … to receive finance, technology, and know-how from developed countries.’5

This is certainly true for the current climate regime: Article 3 of the Climate Change Convention recognises that obligations with regard to combatting anthropogenic climate change are to be shouldered ‘on the basis of equity’, ‘in accordance with [states’] common but differentiated responsibilities and respective capabilities’, and with developed countries taking the lead,6 somewhat replicating Principle 7 of the 1992 Rio Declaration.7

‘Equity’ in international climate law is precisely this distribution of obligations according to common but differentiated responsibilities. The doctrine recognises that states have different circumstances that may place them at an advantage or disadvantage when addressing greenhouse gas emissions, and that it is fundamentally impractical to expect all nations to be able to equally (as opposed to equitably) share the burden of mitigation anthropogenic climate change.

Relevant circumstances in adjusting states’ obligations include their levels of development, economic means, vulnerability to negative effects of climate change, contributions to greenhouse gas emissions, and technological capabilities. Highly developed states have historically been significant contributions to climate change, but also have the economic and technological means to reduce their current emissions. Conversely, developing states tend to lack the resources to transition their economies to renewable energies, as fossil fuel dependence remains central to development.

However, this distinction is not without its critics. Voigt argues that the ‘binary understanding of differentiation has proven to be a stumbling block for the current climate negotiations’ and climate change ‘can only be tackled by taking cooperative large-scale remedial action.’8 She describes the developed-developing dualism as an ‘antagonistic … obstacle to meaningful mitigation’, suggesting that differentiation should be based on context: a spectrum along which different states enter into different obligations according to its particular conditions and capabilities, not according to the characteristics of the group to which it appears to belong.9 This approach would avoid failing to ‘capture such dynamism’ as exists between and within the developed and developing groups,10 but would come at a cost: states will be granted significant discretion as to which factors to take into account when making domestic decisions, thus making international norms (and breaches) difficult to establish.11

The result of this unhelpful distinction between developed and developing states can be seen in the significant flaws of the current climate change regime. Negotiations for the 1992 Climate Change Convention were intended to produce an ‘effective’ agreement on climate change, including appropriate commitments, but the result was a compromise package that failed to entirely satisfy any of the 155 negotiating states.12

The Convention is a compromise between those states that wanted specific emission reduction targets and those states that wanted a framework that resembled the 1985 Vienna Convention13 within which future protocols could be negotiated.14 While it is significant more detailed than the 1985 Vienna Convention,15 the 1992 Climate Change Convention is couched in broad language that calls for ‘precautionary’, ‘cost-effective’ and ‘comprehensive’ approaches that account for the differing ‘socio-economic contexts’ of the parties.16

Rather than being a mere framework, the 1992 Climate Change Convention did establish commitments to stabilise the concentration of greenhouse gases in the atmosphere, but limits on the emissions of developed countries was to be achieved using ‘soft targets and timetables.’17 The resulting agreement contained no firm commitments to emissions reductions. Instead, the commitments are to broad mitigation measures that provide substantial flexibility for the way in which states approach domestic climate change policies. The Convention calls for general cooperation by states, involving the sharing of technologies and practices that assist in the reduction of emissions. Parties must take into account climate change ‘to the extent feasible’ when designing social, economic and environmental policies.18

Article 4.2, which deals with commitments towards mitigating climate change, has a number of shortcomings however. It lacks a commitment to stabilise atmospheric greenhouse gas concentrations by reference to any particular point, such as at 1990 levels: it requires only ‘limitation’ of anthropogenic emissions by developed countries.19 While it states the aim of returning to 1990 emissions levels, the Convention does not provide a date by which this return should be achieved.20 According to Sands and Peel: ‘The most that can reasonably be said of these provisions is that they establish soft targets and timetables with many loopholes’.21

As a result, the Conference of Parties concluded that Article 4.2 was ‘not adequate’ and agreed ‘to begin a process to enable it to take appropriate action for the period beyond 2000, including the strengthening of the commitments of the Parties included in Annex I … through the adoption of a protocol or another legal instrument’.22 The 1997 Kyoto Protocol23 attempted to resolve many of the deficiencies of the 1992 Climate Change Convention by setting hard targets and a firm timetable. It was negotiated to ‘reaffirm existing commitments … and continue to advance the implementation of [those] commitments.’24

Despite this seemingly simple task, it is evident from the plethora of contentious issues that states were not in agreement as to what their commitments were and how they should best be implemented States did not agree on central provisions (chiefly emission reduction targets and emissions trading), nor the implementation aspects relating to the transfer of technology and non-compliance penalties.25 The United States announced in 2001 that it would not ratify the 1997 Kyoto Protocol despite being responsible for approximately a quarter of global greenhouse gas emissions in 1990 (although, in the absence of the United States, the Conference of Parties did manage to reach agreement on implementation at Marrakesh in 2001).26

A significant improvement upon the 1992 Climate Change Convention was the commitment to emissions reduction targets. Annex I parties (the developed states) are required to ‘ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts’.27 Although this indicates an approximately 30% reduction in emissions below ‘business as usual’ emissions levels, Sands and Peel suggest that poor implementation will not meet this target.28

Furthermore, it is evident that Voigt’s view that developed and developing states, ‘if they can even be identified, are no longer homogenous but are marked by stark internal differences’29 rings true in the context of these negotiations. The European Community favoured the adoption of mandatory and coordinated measures that were resisted by parties that preferred flexible approaches that would allow individual states to determine their own policies: the latter approach was ultimately taken, leading to the implementation of flexibility mechanisms such as emissions trading. While emissions trading was strongly supported by the United States, other countries (especially China and the Group of 77 developing countries) vehemently opposed such approaches. The compromise position allowed international trading, but only in addition to domestic strategies and only by Annex I parties.30

Effective approaches — moving away from market mechanisms

Arguably, these sorts of compromises have done more harm than good: at the very least they have done little to assist effective strategies at the international level. Significant emissions reductions have been made by individual states without reliance upon emissions trading, either domestically or internationally. The reductions in France and Germany were achieved primarily through domestic initiatives: France expanded its nuclear power industry through state direction, and Germany incentivised solarpower generation through the use of feed-in tariffs.31

Driesen argues that the ‘need to eliminate emissions implies a radical change in the basic infrastructure underlying the economy. It suggests the ned for drastic energy efficiency enhancements and wholesale conversion of the remaining energy sources from fossil fuels to zero-carbon alternatives.’32 Such an enormous and sudden shift away from an economy based on fossil fuels is not possible through mechanisms that encourage only incremental change:33 carbon pricing is a limited mechanism, a flaw recognised in the Kyoto Protocol itself.34

The approaches to reducing emissions and ultimately phasing out fossil fuels in France and Germany have been comparatively costly. It can be inferred then that some states will be able to reduce emissions without using (less effective) low-cost mechanisms.35 Resort to primarily market-based mechanisms without ambitious pricing policies will cause emissions trading schemes to fail.36 Driesen argues that effective government, rather than emissions pricing, is necessary to combat climate change: mass transit system growth and appropriate land use decisions are strategies that can only be implemented by governments.37

Government involvement to encourage uptake of energy efficiency opportunities will be far more beneficial than the minimal reductions that pricing mechanisms can achieve.38 It can be concluded then that greater attention needs to be given to domestic implementation of the 1992 Climate Change Convention and the 1997 Kyoto Protocol (where actual change can occur) but also to appropriate emissions caps for states.

Environmental protection measures do incur short-term economic costs, especially for developing countries.39 While technologically developed countries may actually benefit economically from immediate reductions in greenhouse gas emissions, concerns arise for those nations that depend upon emissions-generating industries to remain economically competitive.40 This impacts upon the effectiveness of any global strategy to reduce emissions: nations that are reliant upon fossil fuels may be less enthusiastic to strengthen their environmental protection measures if it appears to threaten their economic positions.41 Consequently, on an international as well as domestic level, economic and environmental issues are inextricably linked, and economic instruments may serve useful for promoting environmental protection.42

However, an uneasy carrot-and-stick approach has evolved, with developing countries asserting the need for financial assistance in return for accepting international obligations, and developed countries insisting upon effective compliance mechanisms.43 Aiming to resolve this, the 1992 Climate Change Convention and other treaties have developed innovative mechanisms to provide compensation to developing countries to meet the ‘incremental costs’ of implementing obligations relating to climate change (developing nations’ ‘carrot’) and funding to verify compliance (developed nations’ ‘stick’).44

It is not surprising then that Durrant states ‘the central legal feature of any future regime should be a strict, enforceable and deep emissions reduction duty’.45 Durrant suggests that robust monitoring and verification mechanisms should be imposed in return for technology transfer to developing countries, but indicates that it is ‘likely’ the carbon market will remain part of the effort to reduce emissions.46 Supporting Driesen’s view, she acknowledges that an effective carbon market should be one policy within a ‘portfolio’ of responses to climate change, and that the focus must be to incentivise investment in low-emissions technology, increased efficiency and changes in energy use.47

Unfortunately the associated economics costs of transitioning away from fossil fuels has proved a barrier to replicating the success of the Montreal Protocol48 in moving towards total elimination of emissions: cost-effective alternatives to ozone-depleting substances are readily available, but wholesale elimination of fossil fuels is substantially more difficult49 especially as fossil fuels remain plentiful.50

The way forward

The proposed approaches and flaws can be consolidated through future amendments to the existing regime, but require novel approaches to negotiations to ensure that the responsibilities toward combatting climate change are distributed equitably among developed and developing nations. The first step, as suggested by Voigt, is to abandon the unhelpful distinction between developed and developing nations. Each state has its own capabilities and considerations that need to be taken into account.

By eliminating this differentiation between ‘haves’ and ‘have-nots’, the path might be clear for states to make firm commitments to emissions reductions on an individual basis. This will place the most burden on the most developed nations, and the least burden on the least developed nations: the obligations to reduce emissions would be spread equitably across al nations. Periodic review could adjust the obligations of individual states according to their capacities, and strict enforcement would be necessary.

The sensible approach is to set realistic emissions reduction targets and timelines that take into account the scientific evidence. Targets must be achievable, but must also be based on the urgency of the situation. Those countries with the financial and technological resources to best address climate change must transfer that technology not just to ‘developing countries’ but to all countries.

Rapid investment in low-emissions technology by the wealthiest countries (as individual states) will spur the development of renewable technologies that can gradually be transferred to countries whose economies are heavily based on fossil fuels, aiming to ultimately phase out fossil fuel use. Domestic initiatives should include, consistent with Driesen and Durrant, ambitious emissions taxes and caps, as well as incentives to produce ‘clean energy’ through feed-in tariffs and rebates, rather than reliance on market measures such as emissions trading.

These measures would resolve the so-called ‘north-south’ dispute be removing the distinction between developed and developing nations, and focusing instead on individual nations’ genuine capacity to contribute to reducing global emissions.

  1. United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994).

  2. Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Science Basis (Cambridge University Press, 2007) 12.

  3. Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005).

  4. Christina Voigt, ‘Equity in the 2015 Climate Agreement’ (2014) 4 Climate Law 50, 51.

  5. Ibid 52.

  6. United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 3.

  7. United Nations Declaration on Environment and Development, UN Doc A/CONF 151/5/Rev 1 (1992).

  8. Voigt, above n 4, 52.

  9. Ibid, 54.

  10. Ibid, 52.

  11. Ibid, 55.

  12. Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (Cambridge University Press, 3rd ed, 2012) 275–276.

  13. Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988).

  14. Sands and Peel, above n 12, 276.

  15. Ibid.

  16. United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 3.

  17. Sands and Peel, above n 12, 276.

  18. United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 4.1(f)–(i).

  19. Sands and Peel, above n 12, 280.

  20. Ibid.

  21. Ibid.

  22. Conference of Parties to the United Nations Framework Convention on Climate Change, Report of the Conference of the Parties on Its First Session, Held at Berlin from 28 March to 7 April 1995, FCCC/CP/1995/7/Add 1 (6 June 1995) Decision 1/CP.1.

  23. Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005).

  24. Ibid.

  25. Sands and Peel, above n 12, 284.

  26. Ibid.

  27. Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005) art 3.1.

  28. Sands and Peel, above n 12, 286.

  29. Voigt, above n 4, 52.

  30. Sands and Peel, above n 12, 287.

  31. David Driesen, ‘The Limits of Pricing Carbon’ (2014) 4 Climate Law 107, 108.

  32. Ibid 110 citing John Dernbach, Robert McKinistry and Darin Lowder, ‘Energy Efficiency and Conservation: New Legal Tools and Opportunities’ (2011) 25 Natural Resources and Environment 7.

  33. See, eg, Christian Azar and Bjorn Sanden, ‘The Elusive Quest for Technology-Neutral Policies’ (2011) 1 Environmental Innovation and Social Transitions 135, 136.

  34. Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005) art 6.1(d).

  35. Driesen, above n 31, 112–113.

  36. Ibid 113.

  37. Ibid 115.

  38. Ibid 116.

  39. Sands and Peel, above n 12 7.

  40. Ibid.

  41. See, eg, Daniel Esty, ‘Revitalizing Environmental Federalism’ (1996) 95(3) Michigan Law Review 570.

  42. See, eg, Sands and Peel, above n 12 8.

  43. Ibid.

  44. United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) art 4.

  45. Nicola Durrant, Legal Responses to Climate Change (Federation Press, 2010) 5.

  46. Ibid.

  47. Ibid.

  48. Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 UNTS 3 (entered into force 1 January 1989).

  49. Durrant, above n 45, 31.

  50. Nicholas Stern, ‘Review of the Economics of Climate Change’ (Report, HM Treasury, 2006) xiv.