The US Rescue of the Kyoto Protocol

As a number of newspapers in the UK reported just before Christmas, Margaret Beckett recently announced that the Blair government was failing in its “ambitious” attempt to achieve 20% reductions in carbon dioxide emissions by the year 2010, although they are, as Tony Blair was keen to point out, “proud” of the fact that the UK is one of the very few European states (along with Sweden) to be on target to achieve, and even exceed, the reductions in the six key greenhouse gases imposed by the Kyoto Protocol of 1997 (due to come into force in February of this year, thanks to its ratification by Russia) – set at 12.5% below 1990 levels for the UK.

The statement begins as follows: “The Government is well on course to meet its Kyoto emissions reduction target, but more needs to be done to achieve our national goal of reducing carbon dioxide emissions by 20 per cent below 1990 levels by 2010.” The intention is clear: to offset a (projected) failure to achieve domestic policy through reference to international legal commitments that impose lower standards. There is, of course, nothing new in this; what makes it interesting, however, is the particular nature of the problem itself, and the status and worth of the international instrument relied upon.

President Bush’s decision to abandon the Kyoto protocol has been widely discussed and criticised; indeed, many feared that the American rejection would sound the death-knell for the instrument before it had even formally entered into force. My feeling, however, is that Bush’s actions should be criticised for having precisely the opposite effect, that is, in breathing new life into an instrument that was viewed even by the most optimistic at the time of its adoption as an extremely tentative and worryingly small first step. In abandoning it, Bush immediately transformed it from something of an embarrassment into a beacon of hope, a standard around which all those in favour of saving the planet could rally.

The Kyoto Protocol to the United Nations Framework Convention on Climate Change, to give it its snappy title, was an attempt to replicate an new and innovative response to the peculiar problems that faced attempts to enact environmental legislation in the international arena. Chief among these were disagreements over what scientific data was to be used how, and the difficulties created by the extremely cumbersome nature of international rule-making compared with the speed that scientific discoveries could create the need for new obligations. In order to respond to precisely these issues within the context of the protection of the ozone layer, the international community developed the notion of framework conventions, to be supplemented by protocols at a later date. One of the main purposes of the 1985 Ozone Convention was to set out the broad principles of ozone protection (“Parties shall take appropriate measures to..”), leaving the detailed provisions concerning the phasing out of damaging substances to be dealt with in protocols. Central to the framework convention were general obligations regarding the sharing of scientific information and co-operation in research, which allowed the development of a shared body of knowledge that in turn facilitated agreement on what norms had to be created. The Montreal Protocol of 1987, widely viewed as a major success for international environmental regulation, was the result of this; a protocol containing detailed provisions and binding targets for the phasing out of harmful substances. Remarkably, it even allowed, in certain circumstances, for the revision of targets by majority decision rather than consensus, meaning that states could be forced to accept new obligations against their will; unusual in international law generally, not to mention in the environmental sphere.

The Kyoto Protocol was, if anything, proof that this innovative method of norm generation was not, in itself, sufficient to deal with the problems facing the global environment. It seems clear from the drafting history that the provisions of the framework convention had failed to create the harmonious body of scientific knowledge that was so central to the success in Montreal. The result was an instrument that very much represented the lowest common denominator (or so we thought, until Bush showed it was possible to go significantly lower still): reduction targets that, if met, would have no impact on the rate of global warming; and an emissions trading regime and carbon sinks programme so complicated as to render even these targets easily avoidable. Clearly, the Montreal Protocol and the ozone protection regime had benefited from a degree of concerted political will that simply did not exist in the area of climate change.

All of which brings me back, somewhat circuitously, to my point. The Kyoto Protocol was more of a failure than a triumph for international environmental law in terms of the problem that it sought to regulate. The debate should have moved on immediately to how the targets could be significantly increased, how the loopholes could be tightened up; in short, to how the legacy of Kyoto could be left behind. Instead, it has become the focal point for environmental campaigning, allowing those (few) such as Blair actually on target to meet the reductions targets to trumpet their “pride” in achieving what, without the American u-turn, would have been viewed as woefully little progress, and to offset their failure to secure what would constitute significant progress against this.

Bush, then, by allowing himself to be cast as the environmental super-villain, has made other, albeit lesser, villains appear saintly by comparison; and, in doing so, has significantly set back the project of turning the tide of global warming to the point at which we may well feel that we’d have been better off if Kyoto had simply never happened. Interesting, then, to read Scott’s earlier blog about a conservative “softening” towards the Protocol; the debate seems to have been quite literally set back by ten years or so. If indeed this is happening, and it is due to an acknowledgement of the reality of global warming, then we may yet be able to move the debate to the necessary level, significantly beyond an endorsement of the targets and procedures agreed upon at Kyoto; however, if I was a concerned resident of one of those countries whose very existence is threatened by global warming, I wouldn’t hold my breath. Then again, in a few years’ time, perhaps that’s exactly what I’d be doing…