334 INTERNATIONAL LAW AND THE ENVIRONMENT

7 CONCLUSIONS
E 6
This chapter points first to the increasing iDportance of environmental lights per-
spectives in national and international envirolmental law. At a proceduial
I
CLIMATE CHANGE AND
level,
strengthenilg indiyidual participatory rights in national law has trccome an insrru_
ment for legitimizing lational policies aimd at sustainable deyelopment, with
impli-
cations principally for public-interest litigation, staoding, and access to
iustice, At a
substartiye level, though less well developed internationally and still controversial,
ATMOSPHERIC POLTUTION-
envircnmeDtal quality has become a human-rights issue, ofering an approach
to
envitonmental ptotcction very difercrt fiom the regulatory system exploied
in the
previous two chaptcrs. Such dwelopmcnts may not nccessarily makc
thi trsk of rec_ I lntroduction 335 { Th. Climat Ch.ng. Rtgim 355
onciling developmental and environmental obiectives any easicr, since human-rights 2 Tr.nsboundary Air Pollution 342 5 ConJusions 377
law can bc uscd to obstruct greater environmental protcction as well 3 Protcctint the Ozon Layet 349
as to adyance it,
Second, as studies for the Hague Co[ference have shown, unless greate! harmon_
ization ofsubstantive environmental law can be achieved, the need for morc
coher-
nce ir the private international-law aspects oftransnational environmental litigation I INTRODUCTION
becomes more appareDt. The increasing international emphasis on free
movement of
8oods, capital, and investment has not yet been matched by a willingness to address used
The present chaptr looks at how international law has been used or could be
the accountabilityofmultinational corporations for environmental arid human_rights to help tackle the most siSnificalt envionmental challenge ofour time-global
cli-
abuses in developing countries. Nevertheless, cases such as llbbe I
Cape show how mate change. Few topics a better illustration ofthe imPortance ofa Slobally
frovide
national conflict-of-laws ruleswhich have hitherto shielded business areieginning
to inclusive regulatory regime focused on preventive and Precautionary approaches to
be affected by human-rights and access-to-justice issues in novel sub-
and impoitant ,rays envirormerital harm-or ofthe problems ofnegotiating one on such a complex
that have implications for future environmental litigation. ject. In this context the 'framework treaty'r has provided the key regulatory tool' The
The development ofer*ironmental liability law called for in
so many internatioDal
j992 Framework Convention on Climate ChanSe is not the 6rst such treatyto address
agreemnts and declarations remains largely an aspiration, save in the
discrete areas atmospheric pollution, however, and it is best aPProached with two earliet' models in
of marine pollution and nuclear accidents. The great caution shown by states orr mind:ihe 1979 Convention on Long-range Transboundary Air Pollution and the 1985
this question, both in Europe and elsewhere, suggests that little is likely to change Convention for the Protection ofthe Ozone Layer. Although both were initially
little
in this respect. Finally, the evolution of international environmntal criminal law more than emptyframeworks for further negotiatioo, they have evolvcd progressively
appears equally tentatiye, confrned at present largely to war crimes and
iurisdiction to the point ;herc they now rePresert two of the leading examples, of international
over offence-s at sea. Despite these qualificaticns, we can sec from this chapter regulatiol providing a basis for real solutions to Pollution Problems'2
that
the Stockholm and Rio Declarations have promote<i individual environmenll
rights iolutions to globai climate change havc not been so easily forthcomilg lD PrinciPle'
and addressed to somc degree the responsibilities ofindividuals and
corporations for the same legal iools could be used successfully to regulate greenhousc gas emissions
environmentally harmful consequences. fortackling climate change but, with its causs
and constr;ct an international regime
and efects more deeply embeddid, the iotimate connection with economic growth
has made international agreement in this area especially hard to achieve The stance
ofthe United Srates vis-I-vis the Kyoto Protocol is PerhaPs the best-known example
ofthis problem. Emerging economies have been similarly reluctant to engage in inter-
national agreements which might compromise economic performance' rflecting

t w ar. gr.t.ful to Navrei Singh Ghatcigh' school ofla\a', E tinburgh Univ'rsity' for r'vising th' s"tioD'

I slrrr,Ch l. 2Inln,r.ctio s2'3.

 316 INTERNATIONAL LAW AND THE ENVIRONMENT
their senseofwhere historical culpabilitylies. Tackling climate change is thus as much
a political and economic challenge as a legal one. The eforts ofthc international regu-
latory regime to address thes challenges by recours to novel.market based,rnechan-
isms alld diferentiated treatment ar discussed below, as are the prospects for the
post-Kyoto scheme ofregulating global climate change.
1(1) DEcRADATIoN oF THE GLoBAL ATMospHERE
Climate change and depletion of the ozone layer are the two principal threats to
the global atmosphere.l They are to some extent interlinked because some ozone_
dpleting substances also contributc to global warming (the so-called ,greenhouse
effect'). Duritrg the l980s evidence emerged linking the release of chlorofluorocar-
bons (CFCs), halons, and other chlorine-based substances with the gradual destruc-
tioD ofthe ozone layer. This layer, located in the stratosphere but stiil well within the
arth's atmospher, is important because it filters sunlight and protects the earth from
ultraviolet radiation. Loss ofthe atmospheric shield would have serious implications
for human health, agriculture, and fisheries productivity over a long period, and could
leave future generations a legacy of irreversible harm.{
It is 'very likely' that the ma)or risk ofglobal climate change comes from anthropo-
genic iDcreases in greenhouse gases.5 The greenhouse effect is the result of certain
gases (principally water vapout carbon dioxide, and, to a lesser extent, methan)
which envelop the earth, regulate the in- and out-flow ofthe sun's energy and make
the earth habitable. In its absence, the earth's temperature would be about ,lg.C.
Carbon dioxide, the most voluminotrs ofthe green house gases, was present in the pre-
industrial (1750) atmosphere at a concentration of280 partspermillion (ppm).Its rise
to 379 ppm by 2005 is substantially a function ofglobai indusrrialization, which is in
turndriven byfossil fuel combustion.ln the sameperiod, methane (which has a global
warming potential approximatelyT0 times grealer than Cq by mass)has increased in
concentration from 715 to 1774 ppm.6
Other human activities, such as ddorestation, also contribute to global climate
change, as to do enissiotls ofmethaDe from agricultulal sources aod the loss of soil
carbon due to excessive ploughing and intensive agriculture. In additiol to such
'forcilgs' (human-induced changes in greenhousc gas (GHG) conccntrations), .feed_
backs' are also importatt-intcrnal climate processes that may amplify the climate,s
response to certain cotditions. Forexample, warmeratmospheres hold more moisture
rvhich in turn operates as a greenhouse gas causing further warlrling. This is known
, For. conp.rtuon ofth. ozon. d.ptdion rnd.tirnalc chrng. t.gal,.girnca, s.. Sunst.in,3l Hary EtX
(2007) l.
a WMO, Atnospt./i. Ozo,. 1985 (ccD.va t9E6)i EpA, An A$.rrncnt oJ th. Rkks ol Sttutosph.ri.
Modileation (washiltrtton, DC, 1987)i Bendict, Ozo n. Diptonaq (2nd cdn,Lonion, t99gi.
5 IPCC,'Summ.ry for Folicy
M.kcrs' in Clrner. Ci!. ng.2m7: Ihc phyir.al ki.ne. Basist Contibution
ol t|ot*inS C.oup 1 toth. Foydh Ast.ttment R.pott \Cdmbr d8.. 2Oo7).
CLIMATE CHANGE AND ATMOSPHDBIC POLLUTION 117
positive feedback.T The effects of global climatc cha[gc are likely to b flt world-
as a
ride, but with dilferential impacts, Some count es miSht bencft ftom a change to
more temperate dimate$ othcrs, such as low-lying Pacifc islands, miSht disaPPear
altogether Predicted rises in global temperatures would polentially have world-wide
efiects on sea levels, forests, agriculture, oatural ecosystems, andPoPulatioD distribu-
tion.3 The ability to adapt to such changes is not unconnected to th economic wealth,
technical capabilities and government structurcs of different socicties.
Scicnce has played a decisive role in the formation of th? current regime of climate
change. Indeed, the Intergovernmental Panel on Climate Changc (IPCC) was estab-
lished iD 1988 by UNEP and WMO 'anticipating thc critic.l role that scientifc coosn-
F sus would play in building the politicat will to rcspond to climare change'.e Established
I to review the scintifc evidcncc and makc recommendatiors, thc IPCCb rcPorts are
recognized as the dennitive sourcc of information on climate change. Assssment
reports are published every six years: on the ph1'sical basis ofclimate change; irnpacts,
adaptation and vulnerability; and mitlgatiol. The rnost recent Assssment RePorts of
2007 give the lie to suggestions that climate change is a natural, not anthropo8enic,
r phenomeuon, finding that the rise in Slobal average tenlPerature since the mid twen-
tieth century is 'very likely' (that is, more than 90 Pr cent certain) to result from the
increase in human-induced greenhouse gas emissions. lfcontinued unchecked, such
t increased emissions are'likely' (more than 66 per cent certain) to result in an average
temperature chaDge of up to 6.4'C by 2099. In addition, the IPCC Predicts an aver-
age sea-lcvcl rise due to thermal expansion and melting ofice of uP to 65 cm by the
F
year 2100, with the probability of reduced PreciPitation in Africa, Southern Europe,
Amazonia, alld central North America due to temPeratute increases.
I The IPCC's use of the language of certainty is an admissiod that there arc many
l
I 'unknowns' in the timilg, magnitude, and regional Patterns of climate change due to
the cornplexity ofthe subject and the need for fti rther resea rch. Nonetheless, the Kyoto
i
Protocol does not contain measures as iar-reachingas the IPCC'S findiDgs might su8-
I
gest it should.ro When compared with tbe Montreal Protocol, this cau be explained
by the relative absence of contrcverly surrounding ozone dePletion and the (yoto
t
I Protocol's charactrization as a regime ofhiSh Political conflict. What conseosus h.s
r been achieved is largelya product ofthe IPCC's work.
r
1(2) THE LEGAL srATUs oF THE ATMoSPHERE
in international law. Because it consists of
The atmosphere is not a distinct category
a fluctuating and dynamic air mas5, it cannot be equated with airspace which, above
land, is simply a spatial dimension subject to th sovereignty of the subiacent states.rr
7 Hrnt.J .t tl,Intenationd Environn.ntal La* and Pol,./ {3d cdn, N.w Yorlq 2007)
3 Opcir.ns. e Opcit, r 5.
s.. Andr.ss.n .nd sli.crs.th. in Brunac, aod.nsky rnd H.'l l.dsl' Hondbook ol lnr.rnztionel
ro
Envnonn.ttol Lap lo{otd, 2007) 183-200.
rr 194{ChicagoConv.ntiononlnternationalCivilAvirtion,15 UNTS295.
 ll8 IN'IERNATIONAL LAW AND THE ENVIRONMENT It CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 339

But this oyerlap witb territorial sovereignty also means that thc atmosphre cannot u mankind'.'o This phraseology was the outcome ofa political compromise over Malta's
be trerted as an area ofcommon property bcyond the jurisdiaion of any state,
parablc in this sense to the high scas,r, Tbc altcrnativc possibility
com-
of regarding it as a
shared resource is relevant irr situations ofbilataral or regional transbou-ra".y
ni, pof
II
- initial proposal to ttcat the global climate as the commoo heritaSc of mankind. It
has subsequently been followed in the Noordwiik Declaration .of thc Confcrence on

E Atmospheric Pollution and Climate Chang,'r by UNEP,z and in thePreamble to the

lution, afecting other states or adiacent rcgional seas. UNEp has referred to.;irsheds,
as examples of shared natuml resources,rs and this status is comistent with regional i Climate Change Convention. What it suggests is that the Slobal climate has a status
comparable to the ozone layer; and that the totality ofthe global atmo$Phere can now
approaches to the cortrol and regulation oftransboundary air pollution
adopted ir
'=
properly be regarded as the tommon concern ofmankind'. By aPProaching the issues
the 1979 Geneva Conv.ntion on Long-range Transboundary Air pollution, and in
regional seas agreemelts limiting .ir pollution of the marine cnvironment of
E from this global perspective, theUN has recogoized both the artificiality ofterritorial
the il
bound. es this context, and the inadequacy oftreating global climate change in
North Sea, thc Baltic, and the Meditcrranean,r.
The shared-resources concept is much Jess useful in relation to global -.i
E the same way as traushundary air pollution, for which regional or bilatcral solutions
atmospheric remain more appropriate.
problems such as ozone &plaion or climatc change. What is needcd here is a concqrt iF As we have seen in Chapter 4, the status of tommon concern' is Primarily sig-
which recognizes the unity of the global atmospherc and thc common interest of
all nificant in indicating the common legal interest of all states in Protecting the global
states in its protection. The traditional category ofcommon property
is inadequate for 1
atmosphcre, whether directly injurcd or not, and in enforcing rules concerning its
this purpose. The sameobiection applies to theuseof.common heritage,in this
context,
with the additional difficulty lhat this concept has so far been applied only to mineral F protection.'1s While it is not clear that a General Assembly resoiution alone is sufhcient
to confer this status. the 1985 Ozore Convention and the 1992 UNFCCC unquestion-
resources ofthe deep seabed and outer space and that its legal status remains contro_
versial.rs fie atmospherc is clearly Dot outer space, despite the difficulty
ofdefining the
tr ably do so.21

boundaries ofthat area. Moreover, Article 135 ofthe 1982 UNCLOS provides that I
the
status ofthe seabed does not affect superjacent airspace, and thus offeis no support
for t 1(3) cusroMARY LAw AND GLoBAL
anywider useofthe common heritage concept. Significantly, common heritage was ENVIRONMENTAL RESPONSIBILITY
not
emplq,ed in the 1985 Vjenna Convention for the protcctioD of th Ozone Layer,,6
the 1992 Convention onClimateChange (UNFCCC). i}le 1985 Convention iefines
or in t The arBument that th due diligence obligation considered in ChaPter 3 applies to
the i the protection of the global atmosphere is rot dilficult to make. Principle 2l of the
bzone layer' as 'the layer ofatmospheric ozone above the planetary boundary layer,.r7
Stockholm Declaration on the Humal Environment already forms the basis for the
This docs not mean that theozone layer iseitherlegallyor physicallypart ofouterspace.
1979 Convention on Long-range Transboundary Air Pollution, the 1985 ConveDtion
It remains part ofthe atmosphere, and falls partlyinto areas ofcommotl property, and
for the Protection oftheOzone Layer, and the 1992 FrameworkConvention on Clirnate
partly into areas ofnatioDal sovereignty. One purpose ofrhe coovention,s
definition is Change. Although the global atmosphere is not an area 'beyond the limits ofnatioDal
to indicate that it is coDcenEd with stratospheric ozoDe,rs and not with low-level
ozone, jurisdiction', and thus does not quite [t the precise terms of PrinciPlc 2l ot of Rio
an ai! pollutant regulated by a protocol to the 1979 CoDvention. More importantly,
Principle 2,2t it should by analogy fatl within the Protection aforded by irternational
however, the definition treats the wholc stratosphric ozonc layer as a gblal
unity, Iaw to common areas such as the high seas. This conclusion is implicit in the Ozone
without reference to legal concepts ofsoveleignty, shared resourc"r, or aoiraon p.op-
Conventiol and in UNGA Resolution 43153, and in the designation of climatc change
e!ty. It points to the eDergence of a distilct status for the global atmosphere, which
as amatter oftommon concern'in the Climate Change Convention.'6
makes it appropriate to view the ozone layer as an arca ofcommon interest,
tegardless Moreover, ini&national claims concerningthe conductofatmosPheric nuclear t.sts
ofwho enjoys sovereignty over the airspace which it occupies.re
provide some precedent for the inference that, like the high seas, thc global atmos-
The same conclusion can also be drawn from UN General Assembly reso-
phere must be used with reasonable regard for the rights ofother states, includinS the
lutioD 43153 which declares that global climate change is,the common concern
of protection oftheir environment and human health. As we will see in ChaPter 9, such
l2 le58 c.nda Conknrrctr on th HjSlr S.as. Artict.s l-2r I982 UNCLOS,
tests are arguably unreasonable and contrary to customary international law- This
Arri(tes 87,89
tr Repott oJ th. Etetttitc Dir..jor, UNEp/GC/{4 975) para 85:,!pro, (
h l,,r(tion,0).
l{ Han,jl,26NRI0986)405. rt Se.grra. Ch l,se(rion 5(tr 10 Boyl., in Churchill and Fr.sro'. (eds), Irr.'narional Lait and Global clinat. chang.lLondo^,
'6 Se.,,y'rd, {ed'on l(2). 17 Aflicte l0). 199D.
n
ra Thc srrarospherr begins
b"rp.n s .nd lo mit.s from rh. arrh! surfr.c.nd .ea.h.s a b.ighr of le Epr (1989) 220. ']2
uNf,P/GC 15135(1989).
approrimrlclyl0miles. Pow.red air.raft rypicalty op.rar. to heiShtsof lo mitcs. 1r s!r'a, Ch 4, *.tion 2(s)i ,{r[ (1990) s65, bul cf Brunna. {9ZIORV(1969)79t.
K irgis, Er
. nd .x..ptionally ro abour
20miles. 2a s'/pro, Ch 3,sc.tion 3(l). 25 srP/4, Ch 3, section 4(2).
re I nrrnat ional Meeriog ?5 S.. rho UNCA Rctolution (1989) P..a 4, .nd UNIP Principl.s ofC@Perrlion in wetrh'r
of le8.l and policy Erp..rs, | 9E9, Ot rawa, Ca nada, t 9 f,pt (
1989) 78.
'141207
Modifi(arion (1980).
340 INTERNATIONAL LAW AND THE ENVIRONMENT
!f CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 34r

conclusioo may be specific to the discharge of radioactivity, however, .nd it cannot e For these reasons, attemPts to negotiate international contrcls
slow progress, and for many siates the preferablc policy,
have made relatively
atlcast initialty' has been
b assumed that discharges of greenhousc gases or ozonc-dcplcting substaDces are harm This explains
{ io a"irv i"tion p"rra-g clearer xientitc evidcnce and proof of
neccsrily uolawful or subi.ct to similar limitations of reasonableness. But the 1977 ofihe l97j Stotkholm Confcrencc on
Convention on the Prohibition of Military or Other Hostile Us of Environmental { ih" iniii"t emphasi, in'theiecbmmendations
and more $cientific research
3r
The same pat-
the need for monitoring Programmes
Modification Techniques does indicate that many states regatd the hostile modi6ca- air pollution' ozone
teln has been lePeated with regard to long-range transboundary
tion of the atmosphere as contrary to internatiooal law.'7 Moreover, UNEP Principles E-t depletion, and ciimate change. Only gradually have states been
petsuaded of the nd
concerning weather modification for peaceful purposes recommend that states should
I ti'" pr".artion".y npp.oach to th" iisk of irreversible atmospheric harm Although
cooperate in informing, notifying, .nd consulting international organizalions and approach is
I reinforcea by a growing body of scientific evidence' a Precautionary
other states in cases ofproposed weather modification activities, and that these should
only be carried out after an assessment oftheir environmental correquences arId in
I "fp"r"rt
in ti nigotiatins for the 1965 ozone convention and its later Protocol and
" buf the need for precautionary action to deal with the risk of climate
a manner '<icsigned to ensure that they do nct cause damage to the enYironment of
:1 amendments,3'
.h"ng" ,"ro"in, only *"akly recognized in the Ciimate Change Convention aDd thc
other states or of areas beyond thc limits of nationaliurisdiction'.'zr
Customary ilternational law, and the responsibility ofstates for thc performance of
l 1997 Kyoto Protocol.3t
A second reason for the slow pace ofinternational neSotiations
has ber! the need
thei!customaryobligations, maylherefore provide some legal restraint on the Prcduc- '] to ensure global Participation. Fundamental questions of economic equity between
tion ofgreenhouse gases or on the conduct ofother activities likely to result in global states are raised by ozone dePletion and climate change'
developed-and developing
climate change. But it is not easy to extrapolate from this corclusion Precise stand- the result ofpolicies pursued principally by the devel-
both oiwhich are substaniially
ards for the diligent conduct ofstates. It does not follow that standards adoPted under
ofed, industrialized states. Yet, without constlaints on the Pursuit of comparable
the 1987 Montreal Protocol to the Ozone Convention and thc t997 Kyoto Protocol to the OzoDe and
poiicies by the deveioPing states no control strategy will work' Thus
the Climate ChanSe Convention can be generalized into customary law'?e Ahhough
blimate ihange conventions rePresent attemPts to balance the ecooomic concerns
most states are now committed to the elimination ofozone-depleting substances and -countries !r
of deveioping with controls sought by developed states To these equit-
have put these commitments into effect, it is clear that some signi6cant states-most
ableconsiderations,nustalsobeaddedthecomPetingclaimsoffuturesenelationsto
notably the United States-rcmain opPosed to any commitment to sPecinc action on
inter' generational equit,Y.rs
Co2 emissions. The extent to which customary law can usefully be employed to com' to the
A t-hird important consideration in evaluating legal developments relevant
pel states to give priority to Preventing global climate change or to the adoPtion and is the realizatioo that transboundary airpollution' ozone
protection ofthe atmosPhcre
application ofinternational standards thus remains questionable. The Precautionary the heart ofa policy
lepletion, and climate change are problems whose solution goes to
principle might alter this conclusion if it required states to refrain from increasing This is recognized in the declaration ofthe 1990-Bergen
ofsustainable development.
or continuing with their present emission levels uutil they had demonstrated that iro Sustainable Developnrent,'5 in AgeDda 2l ofthe 1992 Rio Conference'
Conference on
harm would ensue, but there is no evidence that theprinciple has this effect.ro Without all ofwhich
and in the 2002 )ohannesburS Declaration on Sustainable DeveloPment'
dismissing the relevance of customary law as a basis for negotiation, it seems clear and
support a iange ofmeasures to Promote energy effciency' energy consetvation'
that, as in the case oftransboundary air pollution and ozole dePletion, Iegally bind- in o'der to rduce
the u." of ent-i.onm"ntally sound aad renewable energy sources
ing standards for the abatement ofgreenhouse gas emissions can only come throrrgh most aPProPri-
harmful atmospheric emissions.iT It should not be assumed that the
agreement on detailed commilments and international suPervisor), mechaoisms. are necessarily to be afforded by
ate or effectiv..neans of imPlementing these Policies
Rather intemational law is one element
international law or intelnational regulation.
r(4) TNTERNATToNAL pol,Icy AND THE REcULATIoN
OF THE ATMOSPHERE
I Re.ommendations 70, 71, 73, 7Z 79,81, and 83, UN Doc A/CONF/43/11/R'v' I (1972I
Fr..stonc (eds),Inlcna tional Lae and Global Ctidat' Chanse' Ch 2' ^nd
', i."*t"*. inl(2).
Cr,ur"f'lr
"nd
The foregoing considerations indicate something ofthe legal and scientific comPlexity se.,n/ra,'.crion
rr Infr..seclion 3(3)
surrounding the protection ofthe atmosphere and its various compooents. No single DiPlonnqi
,. o'. .".*"" U,t ai n*"ntiateLl responsibiliiy see 'spra' Ch 3' see also Benedick' Ozol'
approach or legal regime is Iikely to be appropriate or possible. Moleover, the control Handl,l E/II(1990)250;Gardinr, I14E"t,.r(2004)s55'
--*-n.a,*"lr.t"Cf,".t'tllandFrdesrotr(eds)'Lt'tnotionotLdwandGlobalClinateChang''Ch3i
oftransboundary air pollution, ozone depletion, and climate change have posed Ciffi-
-Frzncl. FZirnos ,t tnruaarto,a lLa w (orfor d lge5) Ch I2'
cult choices for many states in matters ofeconomic and industrial policy. li'io-g"a f"mf (1989) 78; t989 Noordwijk
l0o. s. also 1989 D.claration of the Hague' 19 EPI
Decl.ration, l; IPr (1989) 220i 1989 Cairo ConrPact,20 EPr (19e0) s9' and UNEP/CC/ls/36 0989)'
'z7
S!p'a, Ch 3, 3cction z
23 UNEP Principler ofcoop.ration in W.alher Modifc.tioD (19E0)
17 s!r/r, ch 2, section 2
2e S..churchillandFr.esrone,GlobalclinateChant,Chg. r0 srpra, Ch 3, s.cri- 4(3).
 342 INTERNA'I IONAL LAW AND THE NNVIRONMENT
CLIMATE CHANGE AND ATMOSPHERIC IOLLUTION 341

il
in a broadq strategy, whose success maydepend at least in part the case of metals
on the willingness of oollution of the marine environment is also siSnificant' and in
states to commit themselves to and to implement economic and
trade policies iocusrd
on sustainable use ofenergy. Their record in this respect has improvei since the
IrI rri*,t --. * than for inPuts ftom riveis, particularly to the open oceans''3
1980s, but it is still very far from convincing.i8
early sr[ir. .i .6tt can be dePo:ited in dry form, or as acid-rain' although in both
."r'..it "ta
ofairn",. if."r Dry dePosit ion is more likely to remai n a local-
is comparable.

iiJ " effecls ar generated by reactions of

f.obt"rn, horner"r. Greater transboundary
io the atmosphere' where
suhhur, nitrogen, and other substances with water vaPour
or other pollutants such
2 TRANSBOUNDARY AIR POLLUTION E ii"yitr. -ri,. *-Pounds, dePosited as acid rain, create

as ozone gas (Or). Surllight, moisture, temPerature

and the lelel ofcolcentration of
i-poa"tt in thiscomplexchenrical process'whose efects are also
p"*i"t"" flctors
2(r) ""r. {'
TNTRoDUCTToN influenced by climate and location
'--
and
e.A J"pori ion t been blamed for increased acidity of soil' lakes' and rivers
The main contenporarl sourccs of significant transboundar), air pollution are thc
sulphur dioxide (SQ) and nitrogen oxides (NOJ produced by tire combustion
E "s
for other efiects including reduced croP growth, dcath or degadation
the
of forests'
&composition
and
of
offossil ii" air"pp."..n"" frstian
of i wilcllife. ti appears to accelerate
fuels for power generation and indust al use, to which musi be added directly'
the increasing ir pot", fr."fth risks, and increases the release of toxic metals' either
iingr,
volume ofyehicle exhaust emissions since the 1960s. Both SO, and NO, arc effects,have been well
emitted or throigh leaching from soil or corrosion of plumbing These
laturally intd the atmosphere, for example from volcanoes, brit these represent only programmes''5 Ozone pollu-
du.o-eited in UN and nationally sponsored research
a small proportion ofthe global totat.re Transboundary air pollution 6rst emerged andforests' either alone' or
as tion ofthe lower atmosphere is thought also to harm croPs
a significant problcm in North America and Europe, and
it is here that regional regu_ in combination with acid rain.r6
lation is the most adysnced. Agenda 2l pointed out that much less attent;n Canada' Norway'
has beer, State practice in bilateral disputes involving the United Statcs'
paid to transboundary air pollution in developing couotries.ro In Brazil, does not suggest that the basic
Southerl Sweden, the United Kingdom, Germany, and France
Africa, India, China, and Korea industrialization and traffc growlh are producing PrinciPte ofth Rio Declatation iswith-
air pollution problems simila. to or irl some cases far worse than those of Europe
.ut"oi.orto.".y int.rn-ational codified by 2
aod aT
On the other hand' it did not Provide a
oui impr.t on transboundary air Pollution
North America. Transboundary air pollution has also been caused on a substantial acid rain either in North America or
solution to regional problems ofair pollution ot
scale by natural or man-made disasters such as the deliberate burning such. as the Nordic
ofKuwaiti oil Europe. elthJugh those states which are net importers ofPollution'
wells by Iraqi forces in 1991, and the extensive forest fires in Borneo in l99zrr
countries or Canada, have from time to time invoked Principle 2l
of the Stockholm
Once in the atmosphere, the distribution and deposiiion of pollution is a func- been to negoti-
Declaration or Trail Smeher,rs the preferred aPProach of all parties has
tion ofprevailing winds and weather patterns. Scientific observations and monitor_
ate agreed emissions standards wiih pollutingitates on a basis which takes account of
ing have shown that sulphur and nitrogen compounds are dispersed atmospherically for long-
ofboth sides' while leaving aside the question of compeDsation
the iiterests
over thousands of miles. The work ofthe programme for Monitoring and Conventi'Jn on Long-range
Evaluation term damage Previously inflicted. tn the 1979 Genevc
of Lcog-rangc Transmission of Air pollutants in Europe (EMEp) ias succeeded imPortant
in T."nrborrri"ry eir lollution equitable considerations haYe thus Played an
quantifying the depositions in each couDtrythat can beattributed to emissionsin it remains correct to obsrve
any pu.iin t""ttini t.*rtoundary air pollution, although
other, and has showl that the problem is not simply a bilatemi one between adlacent and ruleswhich will principally
states, but a regional one, in which most slats contribute their
ii"t ii*lf
f U"."or,o-"4/ internation;l legalprinciples
own share of po[u-
tion, but some emerge as substantial net importers..2 Moreover, research conducted
by GESAMP and in the North Sea ard Great Lakes has shown that land_based .! GESAMB Irt. Srar, o/lr' . Matin. lN'irobi' l99o) 36;2Dd Int'rn'tion'l Confcr'nc' on
Entton
air 'ntth' No/"' s'a (re87); lnt'rn'tion'l Joint commi*ion'
tr'. n"".,i". .iii.
n"'iisea' QuoIiU statw ol
ind Ro)z-l soc''tv
,l/.d *1,:n1111 re se. ii ^"iiti i,,''ia"p,,,s on Great Lalcs water Quali'l (ortawa' re74-re80): usNRc Manos'tn'nt
::
rtr seneraly u N LCr, , n polfu rio, sr!dr,, Nos r_r2 e84_c6/. C^*a^, i. e watet Quatiry Ast'enent: An Evoteinst liunent lor Eco'rst'm
.lutiorR.putolth.UNCED {1992r,A8nda21.Ch9.OnASEANactiortodealwitt trr*iouna_i p.r, "i
(r985). ""'L"t^
sc 8 yblEl (1997) 404and9 ybtEL "i, " riilt,rce..,a,a. n:p. 4t lbid. 46 UN/ECE, Ai. Pollllion Sllr(No l)'
lt99E) 469_
**. ,- ;:;.";;;"^. -1.;;.'' Ra,, n E'rcp' and No h An'ti" (washinsron DC'
ll " "".1.".:",, t.,ncipt.whysrarcsshould nor incu. inrernarionat ,.sponsibility for rransbou nd- .nd Ro'.ncranz. ,1.id i
ery harm caus.d by fore$ frr.s. prcvid.d rhere hasbeen some faiture to a.r ditiS;nlfon rheparr
ofrhc srarc ,; teds). ha'sb;u'dary Poihrio' (Dddr'(hr' reE6)
conc.r n-rd, ror e,(ampte bI nor conr rolri n8 deriberar. bu rn in8 se
TaI|, a8 rcrd 0 9d9) s26, and ,!p/d, Ch ,1, ',,,,:;:,1:::;1L'iH;;;;, ^'i
ili#, t"'nrn.,it, ir"'r*', and Rodericl (.ds), r.il Rdin ond Fli'nary N'ilhborrr
(Durh'm' NC' re8E);
okow' R"Pon'ibititt lot
t Hdm (ed), E,e,s/i pfodudion, cohi&mption ond con,equ.nce! (washinsron, Dc, ilii^"**, ir,r* iiit, rEs) rEq M.co'mrL, 'A'id Ea'rr' (London'reeT)i
'
stat'

^11.t:14
t99O)
r,.,,b"",,1adTit Pollution i Int. ational Lae lo'fod,2a0$-
{s sspra, C'h:, scction I
247-
 344 INTERNATIONAL LAW AND THE ENVIRONMEN'I

shape th parties' respectivc starting positions and guide

I CLIMATE CHANGE AND ATMOSPHEIIC POLLUTION 34t

states in their negotiations,.re No concrete commitments ta sPecific reductiors iD air Pollutio! are contaired in
Customary irter[ational Lw b not unimportant in thc control of air pollition;
etrcct- E the treaty itself. Instead, the Partiet commitled thcmsclves to broad PrinciPles and
ive solutions to the problem can only be provided by coopelative
national regulation, however.
rcgimes of inter-
I objectives for pollution-control Policy, in language oftcn co rreak that olte commen-
tar,, described the treaty as no more than a 'symbolic victory' intnded to teassurc
both the polluters and the victims.t5 Thus there i5 only an obligation to 'endeavour to
2(2) 'tHE 1979 cENEVA coNvENTroN oN LoNG-RANcE limit' and'as far as possible, gradually reduce and Prevent'air pollution't? To achieve
TRANSBOUNDARY AIR POLLUTION this, parties undertake to develoP the best Policies, strategies, atld control measures'
but ttrese must becompatibie wilh'balaDced developmeni', and usethe'best available
This Convention remains the only major regional multiiateral
agreement deyoted to technology' which is 'economically feasible'.58 A great de.l of latitude was thus left to
the regulation and control oftransboundary aiIpollution.5o lt tre-ats
the European air individual states to determine what level of efiort they would Put into Pollution con-
mass as a sharcd rsource and the problem as one requiring
cooldination of$llution_ E trol and what cost they would be willing to pay in overdl ecolomic devcloPment' For
control measures and common emission staodards. In this sense it is
the 1974 Paris Convention on L.nd-basd Sources of Ma.inc pollution
comparablc to E maior polluters such as thc United Kingdom and wcst Gcrmany, this clastic obliga-
or to sorne of tion was the ma)or condition for their acceptancc of t}le [eat]' in 1979, and it enabled
the more advanced international watclcourse agreements.5llts purpose
isthus to pre- the Urrited States to continue to cause serious pollution in Canada without violating
vent, reduce, and control transboundary air pollution, both from
new and existing the Conveltion.5e
sources, and it contains no provision on liability for air polhrtion
damage, whethcr The Gene\a Convention also contains Provisions on notification and coosultation
under international or through civil proceedings. in cases of sig[ificant risk of transboundaty Polludon. These aie only loosely com-
la\4,
The treaty came into force in 19g3, aod now has over fifty Northern
Hemisphere p3rable to the customary rule requiring consultation regatding shared resources or
parties in Europe, including all the majorpolluter states.
Canada and the Unites States environmental risk.@ Only'maior' changes in Policy or industrial develoPment likely
have also rati6ed, although theyhave stayed out ofthe
SO2 protocol.s2 The Convention to cause'signi6calt'changes in long-range air pollution must be notified to other
text was weaker than the net importers ofpollutants wouldiave 'actually
liked, but onlythrough states.6l Otherwise, consultations need only be held at the request ofParties
compromise ofessential interests on both sides could such widespread transboundary air pollution'62
a,lherence by afiected by orexposed to a significant riskoflong-range
both groups have been achieved.s3 Hotvever, as a framework treaty, it
has for thirty However, the l99l UNECE Convention on Environmentil ImPact Assessment in a
years provided the basis for further development and
the elaboration offurther regu_ Tra[sboundary Context has Provided a stronger legime of assessment and consu]t-
latory protocols which have made it one ofthe most successful and
highly develoled ation covering proposals to oPerate refneries, Power stations, smelters, aDd other
of the older environmental regimes.
large-scale, 'combustiorl inst3llations' since its entry into force.6l This convention
'Long-range transboun<iary air pollution, is denned
as pollution having effects requires the party initiating a proposed activilv to take the initi3tive in providing
at such a distance that 'it is not generally possible to distinguish
the contr"ibutions notificatioi to those likely to be alfected, a Position much closer to more recent treaty
of individual emission sources or groups of sources,.s. .Ihuslt is not aimed
at Trail and ILC iormulations than is fouDd in the 1979 Geneva Convention
Sraelter type case$, but at regional problems of acid rain aDd
other widely dispersed Despit its evidentueaknesses, the Geneva Convetrtio['s real value is that it has Pro-
pollutants. Nor is itconfned to eifecis harmful to health or properry
A much broader vided a successfulframework for cooPelation and the development offurthermeasures
defnition of'pollution' is used, comparable to those fouad in marine pollution
treat- ofpollution control. Articles 3,4, 5, and 8 commit the parties to exchange information'
ies,_and which includes harm to living resources and ecosystem",
inte.f".en.. conduct resear6E, and consult on Policies, stratcgies, andmeasures forcombatingand
with amenities and legitimate uses ofthe environmcnt.55 Am;lioration"nd
ofa wide range reducing airpollution. The convention is thus both abasis for continuing studyofthe
ofpotential enviroltmental harm is thus the treaty,sbasic objective.
problem, and for taking further coordinated action to deal with it' In this sense the
.e Hrndl,26 Nn,0986) weakness ofits obligations is decePtive. Given adequate consensus among the Parties'
123, {62 Burcfcundliog, pio./{S[ 0989) 72.
e CundlinS, in FliDrcrman, Kwiatkowst., r"^."" Gdsi, rlansbo,ndary Ai pottution, tei
Ros.ntranz, 7s A L (tgEt) 97s; Fncnk.t, "na
30 Ha, tlt OeBe) 442i, okowa, sraie i*p"rrn,iry p, s6 Wetsronc and Rosencranz, Acid Rain in Eutop. and North Aneica, r45iGnndlling' in Flint'rmrn'
ha bounda.y Air Po rtion in tnkrnahonat Law,z4'59_
5r inlra, Chi 8, lo. Xwlarkowsk., and Lamm.r s i.ds), Ttdn'boundory Ai. Polhtion,2r'3'
t2 But ccc rh. r99l Agrc.m.nt
e7 Arli.l.2. 53 Ani|. 5. 'Ihis .rticl. is dir..l.d in
P.rticultr'al new or r'buill install'tions'
B.tw..n th. Govcm'ent ofrhc unircd sr.r.r.nd lh. cov.rnmcnr of 5e But s.e row t hc l99l US- C.nad. Air Quality Agr..m.nt. @ S!p'4, Ch 3, s"tion {(5)'
-
Cen.dr Air Qu.liry.
on
rr 6rArti.l.8{b).Ros.ncran2,75A|IL(t9}t)977^tgt).tthat'f.wifsnycas6ar'likclyloaris'tolri88'r
Wdsto rnd Ros.n( E nt, Aeid Rain in Ewop. and Notth Anct r.,
ri Articl.l(b). 5s Arti(t. t(.). S..,!pra, Ch l, *(lroD{(6)
t4O, 4. lhk a rticl.' be(airs. the rh rthold is 3o hiSh
6r Ani(I.s. 6r s!P'o, Ch 3' s.ction 4(4). s.c.lso l99l Us-Caneda Air Qualily ASreem'nr'
 'J46 INTERN TIONAL tAW AND THE f,NVIRONMEN? r;LIMATE CHANGE ,{ND ATMOSPHEBIC POLLUTION 347

I in the Clean Air Act of 1990. Nevertheless the Ptotocol's differcntiated

stronger and more effective measu res are possible within this framework. For this rea- it had adopted
of actual
son the cleation ofinstitutions is, as in other treal), regimes, ofparticular importance. commitments are fairer to all Pirties because the)' rre based on calculations
The Executive Body's mai! task is to keep under review the implementation of the sourccr ard efects and r.quire reductions only !o the extent that they are
rceded' Not
only does it address the ProbletD from a more rcalistic scientific PersPective, it is
convention, for which purpose it has instituted periodic reviews ofthe elfectiveness also
of national policies.6a lts success is best measured by the protocols which have been more effective in requiringthe Parties to reduce their total emissioos,
not merelytheir
negotiated setting specilic targets for reduction ofemissions. transboundarY fl uxes of S02.
lmplementation ofthe Piotocol is mainly left to the discrtion of each Party' with
F some qualifications. SPecific Iimits and timetables are ldid down for cutting
major
2(3) pRoTocol,s ro rHE 1979 coNvENTroN the 'most efiective measures' apProPriate to the
powcr station erDission$; otherwise
E
circumstances of each Party are to bc used.68 These can include energy eficiency,
The frst
SO, protocoi required the parties to reduce emissions cr their ttansbound- use
ary fluxes by 30 per ced by 1993.6s By then the pa ies welc comfortable with a more of renewable energy such as wind power, reducing the sulPhur conten' of fuel' the
sophisticated approach to the problem. Thc scond sulphur protocole acknowledgcs epplicati,on of best available technology, or thc use of economic instruBents such
also
the need for precautionary measures to prevent transboundary air pollution from asiaxcs or tradeable permits, but none ofthese measures is obligatory' There is
continuing to cause damage to forests, natuBl resoorces, and the sensitive Arctic ar obligation to facilitate technology transfer, mainly to helP countries in Easter[
eDvironment. Based on a 'critical loads'approach, its obiectiye is to reduce sulphur Europef'Two or more Palties maybe Permitted bythe Executive Body to implement
their obligations .iointly, subiect to certain conditions fie parties are required by
T0
deposition belor? the level at which there would be signifcant damage to the areas
where deposition is likely to occur. To this end Article 2 requircs parties to control Article 5 io report their SO, emissions and what steps they haYe taken to implement
and redlce sulphur emissions in order to protect human hsalth anC the environment their commitments.
and to ensure'as far as possible' and 'without entailin! excessive cost,that theydo not The NO. protocol concluded aftel Prolonged and dificult negotiations requires
exceed the critical loads specified in Annex I. These loads are based on mapping of parties to stabilize their NO,emissions or their transboundary fluxes at l98T levels by
actrral SO? deposition and sources. No date is set for reaching this ambiticus obiect- i994.7t Byallowing states to sPecify an earlierbase year for emissions levels' however'
some parties, such as the United States, may actually be able to increase theil
ive, but each party is also givcn minimum emissions targets to meet within timescales emis-
which vary between 2000, 2005, and 2010. tnstead ofthe single flat rate reduction for sions. The protocol .overs both major stationary sources, including Power Plants and
all parties used in the earlier protocol, the newer cne sets differentiated emisslons vehicle emissions. Its approach to the coordination ofnational measures requires
the
tarSets for each party, which range from an 80% reduction by 2010 for Germany to a use of best available technology for national emissions standards, and the eventual
49% increasefor Greece. The overall SO, emissions i?duction for allparties combined negotiation of internationally accePted 'critical loads'for NO' pollution to take effect
is 50.8%, and the efect of this should be to reduce the amount by which deposition aft-er 1996. This approach is more suited to regional envilonmental ptotection than
exceeds the critical loads by at least 60% by 2010. flat-rate emissioDs reductions.T2
Unlike the first sulphur protocol, whose 30% 6gure was essentially arbitrary, the ln l99l a protocol intended to deal with polltrtion from low-lcvel ozonewas adoPted'
secord sulphur protocolt eritical loads approach is the product ofa high degree ofsci- It came int; force l99z7r Parties are rquired either to reduce emissions ofvolatile
ill
levels
errti6c knowledge. For this reason it docs not need to apply a prccautiolary.pproach, organic ct,mpounds by 30 Pr centby 1999, or to stabilize emissions atspecified
despite references to scientifc tlncertainty in the preamble. Its emissions reductions by-the samc year. Two further Protocols concluded in 1998 deal with airborne depos-
figures are not derived solely from s{ientifrc advice, however; instead they represent ition ofpersistetttorganic Pollutants (mai yFsticides and industrial chemicals)' and
the outcome of a politically negotiated compromise which recognizes that for some heavy metals,T'The 6rstofthesebans productionand use ofsome $ubstances' severely
states, such as Germany and the United Kingdom, the critical-loads approach is too restricts the use ofothers, and requires destruction and disPosal to be carried out in
demanding for full implementation 67 Moreover certain states are not included in an environmentally sound manner comPatiblewith theBasel Convention The second
these commitments, such as the United States, rvhich preferred the different approach

6s Arriclcs 2(4) a nd (s). 6e Arriclc5. 70 Articl'2(7)'

7r tgat protocot conccrning rh. Control of Emistions of NitroScn Oxid's or 'Ih'ir Tranlboundrty
65 l9Es Prorocolon rhe R.ducrion
ofsulphur Emission!. S.c Fri.nk.l.lO H.,v lt,f (t9rs) a70 Fluxes. S.. F..eDkeI30.Ha ru tU Osag) $2. "l-,tu, ,"untri's h'd' 'omm itmcnts lo r'duc tmissionsby
!b I9e4 Proro<olon Furrh.r Reducrion of sulphur Emissiods. Sc.Churchil, K0,Iinldndwajrl.n, ] mor.th.n ir r.quir.d 'rd.r lh. Prorocol.
_ IEL
(199s)161ilccormick,,4.idEalth,73tilhzyeri,Gtpt,OtJ',Th.LRTA?Con@,tion/2;dSutphurprotoeol: 71 5.. R.pt oJ th. 8th s.ssion oI th. E ..utiv. Bod!,VN Doc ECEiEBAIR/2{ (1990)'
Possibl. Lestonr lor th. Clinate Convention (FIELD, tegs\. 7] For b.cktrou nd s.e UN Do. ECE/EEAIR/wG 4/R I2 (1986)'
67 Churchill, Kiiting, warren,
7.tlt 0 99S) r59i W.tt. stad,4l DN 6 Da nnt (tgss) t6S.
7. scc rrccitivc nody,lrp I o! th. sqceial S.ssion, ECE/EB AIR/55 and ECE/EB AI R/57 (1998)'
 348 INTERNATIONI.L LAW AND THT' ENYIRONMENI
CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 349

phases out leaded ptrol, reduces othff emissions of lead,

cadmium, and mercury and France, rather than to implementation of the Convelltion regime.?8
as the LIK
from industry, incinerators, and power stations to below 1990 levcls, and
spccifcs Nevertheless, in their reports to the Executive Body, the Parties have concured in
useofbest available technotogy. Additional substances can be added
to eithei proto- yicwing the Convention s impacton airpollution control and air-qualitl managerDent
col by amendment of the annexes.T5 Some parties to lhe t99g protocols voiuitarily
as a positive one, which has resulted in national and international action to impiove
entered into additional commitments. Finally, in 1999, the UNiCE
adopted a proto- the envirolment, to reduce pollution, and to develoP control technologies. Largely
col to abate adverse efects of acidifrcation, eutrophication, aod g.ooni_l"u"l E
orona through increased knowledge and the building of mutrrai confideoce, the Long-raDge
on-human_health, nalural ecosystems, and crops resulting fromlransboundary
air E Transboundary Air Pollution treaty regime has helped to alter percePtions, to chanSe
pollution.T6The need lbr a precautionary approach is recognized,
and emissions must policies in palticipating states, and to reverse some ofthe earlier trends.Te
not exceed critical loads stipulated io the annexes.

2(4) TMPLEMENTATToNANDASsEssMENT
Transbolndary air pollution in Europe has undoubtedly fallen substantially,
3 PROTECTING THE OZONE I,AYBR
and
especially SO, pollution. By 1994 the 30% target for reducing sulphur
emissions had
been met by all parties, and exceeded by nineteen ofthem, ;du;ing tot.l
emissions 3(, 1985 ozoNE coNvENrIoN
by 52%. Even non-parties such as the UK and poland had also exceJed the
get. NOr emissions had either stahilized as required, or had reduced, giving
30% tar_ UNEP initiated negotiation of a treaty to Protect the ozone layer in 1981.30 As with
a net the t979 Convention on Lolg-range Transboundary Air Pollution, the intersts of
fall of9%, although those parties who had promiscd a 30% fall remainej a ior"rg
*^y severai groups had to be reconciled. These included developing countries, such as
short of this target, and further reductions would be difiicult to achieve.
One study India, China, and Brazil, which were primarily concerned that restraints on the use of
concluded that'deposition in excess ofcritical loads ofacidifrcation has been greatly
ozone-depleting substances might inhibit theiI industrial develoPment, or that alter-
reduced in Europe due to er,ission reductions' and that .Recoyery from
acidin-cation native technologies might notbe available to them. The United States, which had earl-
dalnage is particularly evident in the chemistry ofacidi6ed lakes and
streams and in ier acted unilaterally to reduce domestic Production and coDsumPtion of CFCs, did
the reduction ofcorrosion for many materials'.77 However, NO, emissions remained
not wish to remain at a disadvantage while otherswent on usingtirem, and its Position
problematic, 'exceeding the critical loads of eutrophication in large
areas in Europe was strongly in favour of an rnternational control regime. The EC represented the
and increase[ing] the risk of harmful effects, for example, the lo-ss of biodiversity,.
largest group ofproducers and was reluctant to commit itselfto measures that miSht
Ozone levels in European and North American citie$ continued to afect
health and prove costlyto implemedt. Moreover, some EC states resisted controls on the Srounds
caused widespread damage to buildings and plants. Reports from
the Implementation that harmful etfects had not Leen Proven, and that the risk remained long-term and
Committee show that there are continuing problems ofnon_complianceiy some
par_ speculative. Unlike air pollution, however, no regime would be likely to v,/ork unless
ties with the NO, and VOCprotocols. Overall, although thepictuie
isone ofimprove, it was global, since the impact ofozone-depleting substances is the same wherever ot
mcnt and substantial compliancewith the sulphur protocols, further measureswould
however thy originate, and woul<i affect all states. Thus, as many Parties as possible
b needed to tackle other problems.
would have to be persuaded to loin and there would ha're to L,e strong disincentives to
What is less clear is how far this improvement can be attributed directly
to imple- deter relocation ofCFC production to non-parties.3r
mntation of the protocols. Any explanation of the leduction in sulphur emissions
which has undoubtedly occurred must take account of eviCencc thai this
is signifi-
cantly due to industrial changes in some areas, such as Eastern Germany,
and to 73 Sand, in Hdm (.d), ,a.ryt: Ptodt.tion, Con'u,nPtion, and Cont qu.ncet lwashinglon' 1990) 216;
the increased use of gas or nuclear power for power generation in countries
such
W.tr.stad, 7 Gloldl Xr?ironn.nrat Ctang. lr9g7l235 S.c also Natiora, Sr/at fi.t end Polici" lot Aii
Pollurion Abat.n \LUN Do ECE/EB AIR./65 (1999).
D Sce in pa.ticular Wclt.stad, A.id Lcstont? Att.tsing and Erqlaining LRTAP tmPlementation and
[re.riverdrr (llASA Working P.per, 1996)i lhal eri, GuP ta, zndott, Ihc LRTAP Conv.ntion/S.eond S Phur
75 Crirdiaind pro(edures fordorngto.r.rct Proto.ol: Possibl. Lcs.ons Io/ thc Clinotc Conv.ntion lFlELD, \99Et.
out rn Er.cuiive Body D.osrcn,1996/l and t998/1.
30 For rext anC comment.ryon succcssiv. drrft! se. Ad HocWorlitg Croup on ttl. Ozon. Conv'ntion,
': Pror:co'-ro.Alal_Acldr6(.rion, Eurrophi(arion,.ad cround+;.I Orooc.
S.. TNECE, tzth R.pt ol
_,
thc_Ea&utiw Bo.ly, ECEti.B AIR/68 0999). UNEP/WG 69/s; UNEP/WG 7El2; UNEP/WG 7814; UN[P/wG 78lroi UNEP/WG 9rl3; UNf,P/wG 9{/'
wlrlin8 croup on Efr.c ts,Conv. nlio o, Long+ang.hansboundary Ai pollution: R.ri.|| and Add I.nd 2i UNEP/WG 94/8; UNEP/WG 94lll
" and.,,.ss. erAdHocWorkingGroup,2ndS.s3ion,lgE2,l0EPI0gE3)3{;UNEPWorkingGro'rPonCFCS'16EPl
dcnt oloi poltution e[.er' ona h.itt.cotdcdn.nd'lufxaru.l
rnvironmtnt nc**.r, c""*I, iooo. (1986) 139.
 350 iNTEINATIONAL LAW AND THE ENYIRONMENT CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 351

Again following the pattern of the 1979 Geneva Convention on Long_range in environmental law. First, it is exPlicitly concemed with Protection of the global
Traosboundary Air Pollutron, the 1985 Vienna Conyention for the protection environment, and defines advers effects to mean thanges in the physical environ-
of thc
Ozone Layer (Orene Coavntion) made referelce in its preamble to principle mentorbiota, including changes in climatc, which have significant deleterious efrects
2l ofthe
1972 Stockholm Declaration on rhe Human Environment, but imposes
few concrete on human health or on the comPosition, resilience and Productivity ofnatural and
obligations.e2'Iheweakness of its provisions indicated.ompromise between managed ecosystems, or on matedals useful to mankind'.37 This defirition both
rec-
demands
for more research and a commitment to 6rm action. partieswould have to take,appro- ognizes the impact of ozone depletion on climate change, and adoPts an ecosystem
priate measures', including the adoption oflegislation and administrative
aiproach in termswhich suggcstthat the natural environment has a significance inde-
protect huDan health and the environment ,against adverse efects resulting
controls, to
or likely
F p;dent of its immediate utility to man. Second, the Ozone Convention is one ofthe
to result from human activities which modify or are likelyto modifythe
ozone layer,.el firstto perceive theneed for preventiYe action in advance of6rm proofofactuai harrn'
Thenature ofthese measureswas not defined, but theparties had to cooperate it and in ihat sense it is indicatiYe ofthe emeryence of a more 'precautionary' approach
har_
monizing policies and in formulating ,agreed measures, procedures and standards than had been tyPical for earlier pollution conventiotrs, including rhe 1979 Gene\a
for the inrplementation ofthis Conyention,. Nor did the convenrion specify Convention on Long-range Transboundarv Air Pollution.8s
any par-
ticular substances to which these rneasures must relate; it merely listed in an annex
substances 'thought' to have thepotential to modifythe ozone layer.
The onlymeasureswhich the con,.,ention required the parties totake 30) t987 MoNTRBAL PRorocol
concern assess-
ment of the causes an<i efects of ozone depletion, the transmission ofinfcrmation, The 1987 Montreal Protocol on Substances that DePlete the Ozone Laye/e represents
ald the exchange ofinforhation and technology.sa
These provisions laid the basis for a much more significa nt agreement than the Ozone Convention Fitst, it sets
f,rm tar-
ensuring adequate monitoring and research, and for making substitute technologies gets for reducing and eliminating consumption and production of a range of-ozone-
and substances available to all, including developing countries. But Article 4, depleting substances. These were supported particularly strongly by the United States'
which
dealt with the acquisition ofalternative technology, was most unsatisfactory frcm
the *hich rierred to the need to err on the side ofcaution and to recall the welt-being of
perspective of developing countries, sin(e it merely r(quired states to cooperate, future generations, and by the Executive Director of UNEB whose efforts ensured
in
accordance with their own laws, regulations, and practices, in the development
and that a ct-rnsensus emerged among the scieltific exPerts on Predicting the rate ofozone
transfer oftechnology and knowledge. This wrs signi6cantly weaker than transfer
of depletion and the regulatory measures needed to Protect human health and the envir-
techDology plovisions in the 1982 UNCLOS,s5 and essentially left the matter
to each onment. Following scientific evidence that the standards adopted in 1987 would not
statet discretion. Article 4 proved inadequate to satisfy the concerns of developing be effectivein reduiing ozone depletion, however, additional substances were included
states that CFC subslituies might not be available to them, or would
be prohibitively by the amendments adoPted in 1990 and 1992 and the timetable for complete elimin-
expensive, and the issue was reopened in later negotiations. ation was revised and brought forward to 1996.e0 These changes were made possible
Institutions created bythe Convention comprised a regular Conference ofthe parties by the development ofnew technology and alternative substances, although in some
(COP) and a secretariat. Lil(e the Executive Body of the 1979 cases these substitutes may still ha\e all ozone'dePleting Potential; others are Sreen-
Geneva Convention
on Long-range Transboundary Air pollutioii, the Conference of the parties reylews housegases. Lirnited allowance ismade forincreases inProduction ofozone-depleting
implementation ofthc convention, rcceiving forthat purpose reports trom theparties substaicesto mcet domestic needs andto iacilitate industrial rationalization Control
and establishing the necessary prograrnmes and policies. It is responsible for
adopting ofconsumption andproduction was necessaryin order to Protect th intercsts ofPro-
oew protocols and annexes, and for amending lhe convention, There is provision
for ducers and imp6iters by deterring inflation or over-Production in the interim
Price
dispute settlement in Article II. period until the eventual phase-out ofthese gases.er
Thus the 1985 Convention is largelyan emptyframework, requiring further
-
bythe parties, who proved unable in 1985 to agree on proposals ibr mole specifc
actjon
con_
trol measures.36 Nevertheless, it is an important precedent with wider significance
37 Arli.le l(2)-
see Bened )ck, Ozon. Diplonocl,4s, and i!pr', Ch 3, section
ss Preamble. and 4(4)'
32 See generally se AdHoc Worki.g Group ofl-egal andTechnical Experts, FirstSession, UNEP/WG I5l/L4 (1986); id'
and Sa na (eds), pror..rirg the Ozone Lq,er (London,2o02)r yoshi.ta, ?re
Aoderon
t t.tmnoaolLceol Regtne ln th. phteLtind nl the Sttullr,;ph*ic Oahe L'ayq (Th. Hague, 2;01); Bened jck, second session, IJNE;/wG iozlz (issz), ;a, ni.a s.t"io., UNEP/WG 17212
(1987) se Benedi'k' ozotr'
ozane Dipla a.y l2nd edn. LondDn. t99nr
31 Arricle2. 3{ a,ticl".z(f)("t,1, s. !o ro. ana see UNEP Hatrdbook of Sfistdnce! that Deqlete th' Ozone Lavet
35 Cfl982 UNCLOS, "-"nam""rs and"ajurtments
Arricle 144 and Annex IIL Articte 5. (7th edn, Nairobi,2006) subs.qunt updates. Decisions ofthe Partieswill also be found there'
36 UNEP,Ad HocWorkingCroup
oD theO?one Convention, UNEP/WG 94/9. ExplanatoryNoteby the Executive Dir.ctorofUNEB Montreal, i987'
't
 F-._l
352 INTERNATIONAi LAW AND TIIE ENVIRONMENT
Sccond, acknowledging the inequity ofequal treatment for all, and the rrery small
contribution to ozonc depletion made by developing states, the p.otocol makes special
provision for their nccd6.It rc.s esseDtial to encou.age participstion by thes. states,
given their potential for increased production ofCFCs, and the likelihood that this
would simply nullify the actions of developed states. Although the t987 texr of the
protocol would have allowed them a possibly substantial increase in production and
consumption for domestic needs,e? this option did not prove suffrciently attractive to
prompt lndia and China to ratify, and would rn any case have reduced its efectiyc-
Iless. The acceleratd timetable set fo! eventu.l phase-out by the subsequent rwisions
required a difcrent approach i[ order to elcourage the developing states to r.tify.
Allowance wae still made in thc revised Article 5 for a ten-year delay ir compliance
with the control rneasures by this group, whose obligation to phase out production
and consumption thus began to take effect only in 1999, but the protocol revision
adopted new finar.cial and technical incentives to encourage such states to switeh as
quickly as possible to alte.native substances and technologies.el Article l0 establishes
a multilateral fund fnanced by those parties to the convention that are not taking
advantage ofthe dispensation allowed for developing countries in Article 5. lts pur-
pose is to facilitate technical cooperation and technology transfer so that developing
states do not have to rely on Article 5 to protect their interests but are enabled to com-
ply with the protocol! control measures.er The revised protocol also requires each
party to take 'every practicable step' to ensure that substitutes dnd technology would
expeditiously be transferred under'fair arrd most favourable conditions'to develop-
ing states.es Although this provision by no means overcame the reluctance ofchem-
ical companies in the developed world to transfer tecbnology,e6 and did not compel
them to do so, the obligation of developing countries to comply with the protocolb
contlol measures 'will depend upon' the efective implementation ofthese provisions
on 6tl^ncial cooperation and transfer oftechnology. Nloreor.er, ifthese provisions did
not work efectiyely, developing states could refer the matter to a meeting ofthe par-
ties, which would decide on appropriate action. Put shortly, developing states were
given the power to put pressure on developed states to ensure that they were given the
necessarymeans to meet the protocol's target for eliminatiol ofozonc-depleting sub-
stances. This was one ofa number ofinnovative measures adopted in thc 1990 revision
to ensure compliancc and effective implementation.
Third, the protocol attempted to deal with the problem of non-parties by ban-
ning trade with these states in controlled substances or products contcining such
e2 lniclc 5- Scc Rostncran, and Scox, 20 XPt (1990) 201.
e, Bcn dkk, Ozone Diptona./, Chs t 2, I I, t6.
er For an oprimhtic repo.t ofits succss, scc lotr M..ting ol thc Pafti.s, UNEptOZL.pro. l0/9 (199s)
para 83i'Ih. Multilat ral Fund is.dminist.r.d by th. worB a.nk, UNEPand UNDp S.. UNEP, Hoad6oo&
(7th .dn. 2006)i Bcn.dick, Oz one Diplonoq.,252-68iK.oha n. .nd Levy, ,"rnurio,
for Envircnd..tol Aid
(MIT,1995) 89-126. fi GEFrlso provid.s funding. '
s Ros.n.ranzrod S.otl,20IPr (1990) 201. L.wrcncc,2.lEl (1990).onclud.s rh.r r.lu.ranc. to tr.nsfcr
prim.rily on 6nrnciel rath.r rh.n l.gal consid.ration!.
CFC subslitutc l.chnology is b.scd
CI,IMATE CHANGE AND ATMOSPHERIC POLLUl ION 353
substances.eT To takeonly one examPle, Korea was thus forced to ParticiPate if it
wished to continue to export aars and fridges.er the parties also had to discounge
the export of CFC production tcchnologF DuriDg the 1987 rcgotiation$ the qucstio!
ofcompatibility ofthis article with the General Agreement on Tarifs and Trade was
raised.ee Since the measurcs proPosd were neither arbitrary nor unjustifiableand did
not discriminate against non-Partts as such, but could only be aPPlied aSainst those
not following the protocol's colltrol measures, it was concluded that Article 4 would
be in accordance with Arlicle 20(b) of the GATT conceining protection of human,
animal, or plant life, or health, although the finaliudgement in the eYent ofa bilaterel
dispute would rest $ ith thc WTO. There were already Preccdents for controls on trad
with non-parties in the 1973 CITES ConYention, and under resolutioN ofthe Parties
to the 1972 London Dumping Co[veltion and the 1946 International Convention for
the Regulatior of Whaling.rm
3(3) REvIsIoN AND coMPLIANcE
The institutional provisions of the 1987 Protocol merit sPecial not, since they are
the key to its flexible development ard enforcement.ror The powers enjoyed by the
meeting of th parties to this Protocol are unusual among envilonmeltal treaties'
First, provided efforts to rcach a consensus have been exhausted, certain decisions
taken by a two-thirds majority will bind all Parties to the Plotocol, including those
who voted against theri.lo2 To maintain the equitable balancebetween developed and
developing states these decisions must be suPPorted by seParale maiorities of both
groups, In this wa)' further adjustments and reductions in the production and con-
sumption ofcontrolled substances may be adoPted and will enter into force within sir
months. The same rule applies to decisions concerning the financial mechanism and
under Article 5. Obiecting states retain th oPtion ofwithdrawing from the Protocol
olr one year's notice.ro] Other ame[dments to the protocol, including th addition of
new controlled substances, lnust be mad iIl accordance with Article 9 ofthe Ozoni
Convention, and will be effective only in resPct ofparties \.vho ratify or accePt them.
The inability to add new substartces by majority vote does limit the Protocol's capacity
for rapid evolutiol but ensures th.t, for examPle, oil or natural tas could only become
contrclled subst?nces for those pattis which ratiry such an amendment.
Second, Article 8 of the protocol Provides for a formal non-compliance procedure,
the first multilateral environmenlal agreement to do so.rq This proccdure, which is
e7 Anicl.4, as r.vhed lggoand l99Z e3 And.rs.n and S.rm.' Ptot..tingth. Ozo,t Lar.L353.
et Ad Hoc WorkinS Group,:nd S.rsion,22; id, 3rd S.r!ion, 18.S.. i,y''a, Ch 14.
t@ lnlra,ch t3. tor serrpra,Ch2.
lo2 ArlicL 2(9) as r.vis.d 1990. Sc. Jlpta, Ch 2, s.ciion 5. 103 Arlicl. 19, bul s.. 1990 revision'
lor ProtGol An n.t Iv at .dopl.d .l CoP.nh.fn in 1992. Minot r.visiont w.r. .Er..d iD l99Er !.. Rt2'
oI totb MOP, Anne, It,uNEP/orL Pro l0/9 (199E) .nd R.pt ol Ad Ho. Gtoq ol L.sal and T.chnkal E'P"'
JNEP/OZL Pro/WG 4/V3 (199S). S.. UNEP, ReP, o/ th. lnPl.n.ntation Co''tnitt . Jot th. Mont.al
Protoeol, 2,th M..ting,UNEP/OzL Pro/ImPCon/20/4' P.r.s 24-l3i Yoshid., l0 Colorudo ELP (t999t 951
Usuki, a3 .lap Ai, II (2000) 19. Sc. .lso Koskcnni.mi, 3 l'blE,- 1t992-) 123, znd Ch 4' t'ction 3'
'uPn,
 tr--'-.-1
INTERNATIONAL I,AW AND THE ENYIRONMENT CUMATE CHANGE AND ATMOSPHETIC POLLITTICN 355

desc bed in Chaptq 4, has been invoked on several occasions by parties who are in il I added; the supervisory institutions have evolved. Without the Protocol and successive
difficulty, including Russia, Belarus, Ukraine and other states from Eastern Europe
and the former-Soviet Union. various measures have been recommended by the meet-
ing ofthe partica to deal with these problems ofnon-compliance, including the pro_
yision of technical assistance, CEF funding, and the issuing
of cautions.ros lurther
I 3
adiustments, ozone deplction would be ten times greate! than currently.los
llnrd, the level ofcompliancc in denlopcd states appears to have ben high' with
Inost phasinS out the ma.ior ozone-depleting substances by 1995 as required by the
accelerated timetable set by the protocol amendments. Problems submitted to the
funding from the GEF and the World Bank has been made conditio[al on themeeting
non-compliance procedure have largely been dealtwith successfully, albeit at the price
ofthe parties certifying that compliance by these states is satisfactory. The same pro_
cedure hasalsooffered a useful means to ensure that parties provide the data required
E ofsomedelay in implementation by states in Eastern EuroPe. Continued Russianpro-
duction and export ofcontrolled substances to other CIS states h.d been a Persistent
by Articlc 7 ofthe protocol concerning production, inports, and exports ofcontiolled
problem, hut by 1998 this had been phased out with assistance from thc GEF and
substances. Tl{o developiDg states, Mauritasia and North Korea, have been threat_ the World Bank. The Implemntation Committee was also reporting large falls in rhe
ened with loss ofArticle 5 status for failure to report data.
total consumption ofthe main ozon-depleting substances. Once the Proto( ol began
Thus, although the non-compliance proccdure is an example of .soft enforcement,,
to takr effcct, a black market develoPed, threatcning to undermile the entirc regimc'
it is Dot without teeth, and it has enabled the parties to give srious and sustained
By 199a, however, a Dew exPort/imPort licerlsilrg systcm to combat smuggling was
attertion to their respoNibility for reviewing implementation of the protocol. The
in operation'@ and rocketing prices for CFCS suggested that illegal trade was being
absence from the protocol of any other dispute settlement plovision emphasises the (ut. The obligation of Article 5 parties to Phase out Production and consumPtion
importance of collective supelvision and control, through multilateral negotiation
only began to take elfect in 1999, so that by 1996 the world's main CFC Producers'
and cooperationwith the parties, rather than adiudication or arbitration. apart from Russia, were India and China. Thereafter data showed that consumPtion
in a maiority of developing countries had begun to fall siSnificantly, and some Par-
3(4) AssEssrNG THE MoNTREAL pRorocoL ties, including China, had accelerated the phase out.rr0 However, there continued to
be problems obtaining rePorts fiom some states under Article 7: this is significant
One measure ofthe plotocol's success is that it has l9l parties, including the EC, the because the whole regime dePends.ultimately on the ability to molitor Performance
USA, Russia, China,lndia, and Brazil, the last three havingioined following the adop-
accurately.
tion of the London amendments in 1990.106 These anrendments, together with the Finally, whereas scientific irssessments shorved that in its original 1987 form the
availability ofsignificant financial assistance through the GEF and the multilateral
Montreal Protocol would not have halted an accelelating level of ozone-dePleting
fund, helped to ensure a very high participation from developing states. So did trade substances itr the stratosphere, subsequent revisions are now predicted to result in
restraints: the number ofArticle 5 parties doubled once these came into force. Thus a gradually diminishinglevel after the year 2000, wheD increases attributable to pasl
gcod progress has been made in securing the level ofglobal adherence necessary for
emissions were due to stabilize.'rr Provided the Proiocol is fully adhered to, global
the protocol to work.
ozone losses and the Antarctic ozone hole should have recovered by around 2050'
A second rneasure of success is evidenced by the dynrmic and flexible way in Other problems mayaffect the success ofthe protocol' including new ozoDe-dePletins
which the regime has operated. Controls on ozone-depleting substances have been substances which it does not cover. Morover, althouSh ti)e Protocol has encouraged
strengthened at successive meetings of the parties;ro7 new substances have been resort to substitute substances and technologies, some of these are Sreenhouse 8as's
included in th Kyoto Protocol.rr2 There is atr evident need for coordination ofthese
tot S.. UNEB Rqpr o/ lrr. 7th M..tiag ol
rt. pdtti., to th. Montr.et p'd,tocol, t\.<idon. VlUt5{9 two regims. l.IFvertheless, faced with the relatively straightforward task ofelimin-
(Pol.od, Bulgrrir, B.frru!, Russi., UtI.inc) UNEP/& L prc ?^2 (tsg'\i id, R.pt
ol E/r M..rir& Dtcrlioo,
VIII/22,25 (Latvia, Lirhurnir, crcch R.p, Ru$i.) UNEP/OZL pro s/lz (t9*); id, R.pt ol ating ozone-depleting substances, the Ozone Conventio[ and the Montreal Protocol
ih M..ting,
Dccilions IX/29-32 (Larvia, Lithuania, Russia, Cz.ch Rpubljc) UNEp/OzL pro 9/ t2
O9d?)::td, R.pt ol t}rh
appear to be working.
M..rin& Dcckioos X/20-2E (Az.rbaijan, B.larus, Esroria, Czcch Rep, Latvi., LirhuaDia, Russia,tk.ain.,
Uzb.kislrn) UNEP/OZL Pro t0.lg lt99Et; id, Rcpt ol t]Jh M...i,S (BotSaria, Turkm.nisr.n) UNEP/O,L p.o
.Ih.
1l / t0 (1999). Se. gen rally, Vicror, Rausriat. rnd Skolo ikoff
i.dsl. tnplne ation.nd Efi.diy.n.r, ol
IntenationalEnvnonmentolConnitn.nk rcalr,bridg., Ma!s,t99S) Chs 3, a; werksman,36Z.4OXy(r996) r03 Andcrscn and sarma, Prct.ningth. ozorc Laf.r'346.
7 50i B.,ncdick, Ozon. Diplona.y, Ci tz.
roe Adopt.d as Articlc 48 ofth. P;olocol by thc Ixth M.eting of lb. Parti.s in Dcchion IX/E (1997)'
06 Se.
-\vGtllT
-
8.n.rally U NEP, R.pt oJ th. wo*ing Group oJ th. pdtti.s. tTti Meeting{I99s) r rNEp/OzL pro/ or the prollrm ofillgal trad. s.. Bn.dick c;or. D iplonaey,273-5i Rrack hternational Trad' ond th'
3;id,R.ptolth.InpL.ntationCommit.(1s98)UNEP/OzLprc/Impaomnoltiid,Reptolth. Montr.al Proto.ol (London, 1996) 99- I 14
Wotking Gtuup on Countrics ||ith E.onomict in hansition thh M..ting ol p$ti.r:UNEpl
\t995.1i id, Rcpt ol rro UNEP, X.pr. o/l0rl Mr.ting ol Paiics,UNEPIO2L Pro.lo/9 (199E) P.ra! 72f.
OzL Pro l0/9 (r98). rrr wMo, s.irrrir. nttrrtn.nt olozon DePl.tionlc.n Ya't99q
r07 'Ihc most rcccnr
rrc rhor. .doplcd at B.iring in t999. 12 E.8. H[Ca, includ.d in Ann.r A ofth. Kyoto Prolo.ol.
 POLLUTION 357
CLIMATE CHANGE AND ATMOSPHERIC
INTTRNATIONAL LAW AND TIIE ENVIRONMENT
355
-
attract universal ParticiPation' the Cli-
Negotiated by consnsus, and intended to
ofopinion amont-th participating
4 THE CLIMATE CHANGE REGIME _"," ti"r,g. al*"n ion rcflects deep diffcrences
for addressing thg
i" ir," .*rr.es needed and the allocation of responsibility
",'"* ", Not only was it necessary to acknowledff
oroblern.
the differential nee& and respon-
groups there
4(1) DEVELoPMENT oF THE FRAMEwoRx coNvENTIoN h;,;":.;iliJfi"ni u"t"'' but
a.'"loping aiso within each of these
such as
/issociation ofSmatl lsland States'
ON CLTMATE CHANGE $,a.. r.."r"r." *ritions. Members ofthe
of modest sea level rise' were
Negotiatiou ofa climate change conventioo Proved to be a much more dificult task N;;;; u"tr"',r, *hich might disappear in the eventwere far removed from those
*ir"fr-Jf"*r. of" ,t,ong ton'ention' their interests
than reaching agreement on Protection of the ozone layer.ll3lhe range and complex- and econ-
suih as Saudi Arabia and Kuwait' whose income
ity of issues involved iD containing global warming and uDcertainty regarding the develoPed states were to
"ioaii'.iiot"ar."rs
**iJ *tOr"fy sufiet if consumPtion of fossil fuels bywith
nature, sevcrity and timescalc of possible climatic efiects make the task of Phasing out
"*t
U" ,"i.i.i. N",,ft". lf thcse groups hed
much in common the larger developing
prodoc tion and consumPtion ofoture-depl.t ing subrtances scm relatively simPle by concerned not to limit their
iornparison. thc cconomic imPlications of climatc changc arc much Srcatcr' Whcrcas ,i"r"r-r.J afr"", ,razil, ind india, who were mainly
^ but had no obrection to develoPed states taking
a strong lead'
industdal ptocesss that dPlete the ozone taycr alc relatively discrete, grcenhouse gas that
"r1,"...t"*"*t"*h,
Nor did the developed OECD economies
share tlre same view oII the measures
production goes to ahe heart ofen.rgy, transPort, agricultural, and industrial policy
climate change ln Parlicular' the United States.wasrot Pre-
in all developed slates and increasingly in develoPing ones too. IUoreover, the role of -t*f,i U".""a"a a ockle and itsopposition
t.r.ommit itselfto speci6c emissiins reductions or timetables
carbon sinks means that defotestation, protectiol ofnatulal habitats and ecosystems' ,,"".uil;
",r1d alreadv
sea-level rise, and sovereignty over natural resources are also imPortant elements of
;;;;;;.; ii"t'"'
signific"'tlv weaker than.the-commitments
statesrt6 These divisions among
the problem. Thus the sectoral approach, which has traditionally domilated inter- .,ri"rr"t* ,.fr.,".tly by a number of developed
must be recalled when assessing and
national regulation ofthe environment, isplainly inaPProPriate to the interconnected -"J". *.."0, O.,ntpating in the negotiations
rr7
interpreting the Convention
"'n'.'p"i,ii."f'
and global character ofclimate change. Pollution control and the use and conserva-
*nttific, and economic comPlcxity of tackling climate change has
tion ofnatural resources are both inYolvd, within the broader context oftustainable a considerable challenge Like the
rfrrr. ,.esented the international communiry wirh
development. 'law o[ the atmos-
Following the adoption of numerous declarations at regional 'ooferences calling orori" io.""^,ion,,rre 1992 UNFCCC is neirher a comprehensive
framevJork convenlion
itt"..ino, u frttv fo.rned and detailed regulatory regime' but
a
for various measures to be taken to reduce the generation of CO, and other green- on policies a"1tT,tllt t"*t-
house gases, the elements of a clir,ate-change convention were first considered by a lr,oUIt+itg pto."tt for reaching further agreeinent
" undertaken by th
i"l""i "i r, .itr"te change'i's Ahhough the commitments
meeting ofexperrs in Ottawa ill 1989,.ndbythe lntergovernmental Panel on Climate "."r differs siSnificantly from lhe Ozone
o"r,t". "." .,-tf"4 "eak, the
i992 Convention
Change in t99O.rrr NeSotiations $?re then initiated in l99C by UN General Assembly it obiectives and Principles to
Convcntion in two imPortant resPects First'
sPecifies
resoluiion 45/212, and concluded in I992 with the adoptionat the i.ioConference ofa
guideimDlementationoftheConventionandfurtherdevelopmentofrelatedlegal
Framework Con ention on Climate Change.r15 of 'commoo
i;;;;;;;P"rties. second, for the first time' it makes the concept
for the- very dilierent commitments
tr3 sc. Grubb, 66 Ir, lr4i" (1990) 67; Churchill .nd Fr"ston' ('ds)' L"'iarionel l'v and clnbol iriati"t*"1"a.*p"osibility' th exPlicit bash
'Ihe same difierentiation underpins the
Ctinatc ChengciErt.tt, Conrcntion ot Cli ak Chenl.: Econo ic A,P'ett ol th' N'*ori'tiont
(OECD'
and developing states paities'
of developetl
1992); Bod.nsiy, 3 vlGr ( :992) 60 .nd 18
yah lll ltg93) 451; Nibron Pilr, Ptot'eting th' AhotPh't':
'Ih. Cli',at. Chang. Conwation and itt Contcrt llfitun, 199{); Mintzcr
'nd L'omrd (cd')' Na8oli"i'8 KvotoProtoC!*,AnimportantanddetrimentaleffectofthisaPProachisthatdeveloped
not subiect to
i. tntidc Story o! th. Rio Cont.ntion (CrmbridS', lr'gr)t'nd
Bod'n s,.'l' 20 Ann R't Enctgl industrial production to developing economies
Ctitnet. Chongc:
d Erv (1995) i25; O'Riordan and ,agcr (.ds), Pol,ri.r o/ Cli,,at Chang': A Eutop"n P'rsq'ctiv' (Londo ' "il;;;;;;.;t.;i
.""i.oi, ot g**t o"se gas emissions To that extent the liberalization
of world trade
re96l iutcrbacher end sPrinz (.dt, Iird.iotional Retation' and Globat Clinare Chang'
(cambtidg'' economies to
i.nl.rgt tuUo"rtUytt wio Agreement in 1994has
helped the developed
Mass,2ool). "
ll. Stat.m.nt oI Lcgal aDd Poli.y ExP.rts on Prol.clion of th. AlmosPher', Ottawa, l9E9; I PCC WorkinS
'Ihese and th'
Group llt: Formulali;n ofResPonse Strategiesi L.gal and Insritulional Mechanisms-' 1990 lr6 Counlris thathaC Previouslycommittd lhemselvesvoluntarilyto
stabilisor redu(e CO':missions
scries ofconfcrcncc dcctarations s.lting out th. oegol iat ing Poli'y ofvarious Sroups ofstalei
ar' r'Prodtr"d llaly' lhe Nethrlends, N.w z..land. thc
in.luded Austlalia. Bel8iun' Canada, rrrncc, ccmany' JaPan,
in Churchill .nd Fr.cnon. leds), lnt.n.tional Lee and Globol Chnat' Chang' 2a0tr'
rr5 lordocumcntationon th. ncBotiatinghistorycflh. Conv.nlion se' RPortu o/th' lnteryoectnd'nt^l Nordi. states, Swilzerland, and th' U K'
"T't". !"lh'
the imDdLl ol tar ious m'thod( ol alrocallnB "'Pon(ibrlllv
ii,,,narionai Rfsia.r (FArR) for rh. ditr ,'ntiar'on of
(l si scssion);
Negotiating Comrljitt.. Iot o Ftanciork Coitcnriot on Clinok Change, UN Doc A/AC 23715 ",'"0n,",."- "ppraisalol
Ndhtrrands cov.,nmenas i{"1'
./9i2Dd s;sion);-/L e (3rd s.ssion)i /lE (srh s.srion). Th. mandar' ofthc INC is in UNGA Rcsolurions ",-,"-t " rivm nl/fat>'
p'/www
fulure commilmenls, availabl at < htl
'-ll;-o" 'law ofrhe aimosphere's' Bodanskv' l8 va" /'l
,l{/207 0989);4sl212 (1990);45/169 (r991); and 17lt9s (1992)' See alto UNEP Govern!ng Cou'cil de''s'ons (leel) 4sl'
p-p*a' r'r a comprchensivc
14/20 (19E7); t5/36 (I989)i SS II/3 (1990). ""'i,
 158 INTERNATIONAL L W AND THI] ENVIRONMENT
E'I CLIMATE CH }IGE AND ATMOSPHERIC FOLLU I'ION 359

liye within their Kyoto protocol commitments

carbon emissions.

4(2) oBJEcTrvEs, pRrNcrpLEs,

rN THE 1gg2 coNVENTTON
without significantly reducing overall

AND coMMrrMENTs
il Article
dynamic
3 takes a novel approach to environmcnt.l Protection, but in tle conleat
and evolutionary rcgulatory regime such as thc Clirnate Changc
it has th importaDt mrit of Providing some predictability regardirt the Parameters
within which the partis are required to wo.k towards the obiective ofthe Convention'
ofa
Convention

ln particular, they are not faced with a comPletely blank sheet of paPer when.entering
subsequetrt ptotocol negotiatioos or when the Conference of the Parties
takes dei-
the obiective of the Convention and of related
instruments is not to reyer$e green_ guestion what the
hous gas emissions but to stabirize them ."t sions underihe varrous articles emPowering it to do so. It is a nic
n t"r.t tt ,outa;;;;;;rr.r"", legal effect ofdecisions which disregard the principles contained in Article 3 may be'
m" "i
anthropogenic interference with the climate .yrt"rnl
what that level might be, nor does Aniclc 2
Conu"niilri*r r, ,p*fy Given their explicit role as guidance, these 'principles' are not necessarily binding
erwis"ge that it strouiJUe
diateh merel)' that it should be withil a time fraire ".fr,*"a
,._"- rules which must bc comPlied with their softer legal status is also indicated by the
su6cient to affo* a use of the woid 'should' throughout this articlc.r22 Howcver, Articlc 3 is not without
natura[y ro dimarc change, ro .nsu.. rf,"t fooa p-au.tion'O ".or".r..,
:llp^tro enab.
ano economic develofment to proceed in a sustainabre
roi',"i-",.r"0 E legal fect. At the very lcast it is r.lvant to ioterPretation atld imPicmcltatiorr
of the
manner,. The word- Convention es well as creating erPectations concerning mattels which must be taken
ing of Articlc2 sugg"sts thar the parties
envisage some degree of
inevitable, and that they are prepared to tole.uteit
.;urrg" .li;; into account io good faith in the negotialion offurther instrumelts, such as the non-
prouia"ai happ"* ", rf"if""".gn !
to allow natural adaptation.tre compliance procedrrre; it was reiteratd in th mandate for negotiation ofthe Kyoto
, r:u .guided Protocol aod is referred to in the Protocol itself.r2r
,he.principles
the parties shall be
- -j:_,-:f
acnleve ::,
the obiective ofArticle 2. 'Ihe
by, in their eforts to Article 4, '{hich deals with the commitments undertaken by Parties to th
principles listed in Article,reflect the contours
ofglobal environmental responsibility elaborated Convention, is based on the PrinciPle ofcommon but dilferntiated responsibility'r'2{
in the Rio Decf.."iio, Thus, although obligations in Article4(l) are subiect to'specific national and regional
equity, common but"nJag*a"
2l.rr0Thus they include reference to inter-generational
diferenti developmenipriorities, obiectives and circumstances, they are nevertheless common
precaurionary.principre or approach, and
,*::1":Tl:llirf lie
ues lo sustJtnable developmenl, aj well
the right of au par_ to all parties, whereas the nrore onerous commitments made ir Article 4(2) aPPly
as lhe need to promote .a srppoaiire
international economic system,. Article j
urd op"n only to developed states and the so-called 'economies in transition' ofEastern EuroPe
also tries to hcsh out so." of,fr" puil.y fu._ (coilectively referred to as Annex I Parties). Article 4(3)-(lO) also makes extensive
tors which should be taken into account
by th" p"rti"., ,r.h .,
to be comprehensive and cover alr relevant 'sources,
polr.;;;;;r.r.", provision for solidarity assistance to develoPing states irr the form offunding and
sink. r"r".roi.r; oig...n- technology transfer. the explicit assumPtion is that the develoPed states that have con-
house gases. Further, inconformity with "nj
the prlnciple ofcommo, iril,i"**o"O tributed most ofthe grenhousegas emissions should also contribute most totackling
for dwetoped counrry parties to .take rhe lead,
]",,*:::illl lfed
cunrarechange and its adverseeffects isstated,with
in combating the problem, both by providing iesources and by'taking the lead'in adoPtingcontrol
full consideration to be aforded to measures.
the specfficneeds ofthose developing states
that are particulally vui..-if","
e[ec$ ol clrmate change, such as low-lying states Article 4(t) deals PrinciPally with making national iuventories ofgreenhouse gas
afiicted by sea-level rise, "a*^"
as well emissions and sinks (such as forests); national alrd regional PlograDmes to miti-
aJ to those states which would bear a dispiolrortionate
or abnor_"t iJ"n'ona.. gate climate change; Promotion of scintific and technical cooperatiotl; sustainable
the conve'tion.r2l These poricies and measurcs
that they will ensure
should be cost-effective in the sense iranagement of foresi., ocean", and ecosystems; PreParation for adaPtation to the
?lobal benefits at the lo*..t po.riUt..o.t _"..rrr"."ia, ,n", impact of clirfatc change; and the intcgntion of clirnate-change considerationa in
looms large in the architectur ofthe Kyoto protocol
itself. social, economic, and environmental Policies. This article is not without imPortance
lre in encouraging all parties to think about climate change and have policiesonthe sub-
Sec opptn me a nd ) Clinot k 195_ to aoy sPeciflc international staldards for
her c etsonk, uo se.rrprr,ch i.,e(tron.r
? Change | 2oo5t
.iect but it dles rrot compel them to adhere
..r?'Arrtrle^J(2)rhhoushrhrsp,ovinonis.imd,.i".,"rryi.rae,"ropinsco;r",1,r,',rr"Ir.,*,
nares such as S.uLtiArabia orrh
USA, which rtv controlling it.
a",,..,e...r,*","",,,,;;:.;;:ffi::;i;:t#lll,ffl:::i:.ffi:;H;fl#::.T:IH.JI;
:e-1clll!y.rsD:..,dirtorheDcedsandconcemsof.t.t"_,*,.h.,;;;;;.;;;;;;;;;.,..",
on,^(om. sen.rurd from rh pradu.ion, proc.ssins f22 Mann, in La.g (.d), S! sftinobt D.v.lopn'nt end Int'rnational La!l" (llinJo 1995) 6finot6 th't
andnporr, and /or on '
assoc'|ated enersv rnrensive produrri.
conru.r,." th.l.gal.ff.d ofArlicl.3 wasd.librat.ly min!miz.d in th. final draft'
comp.ns.rionforrossofoitiDcom.w.r.nad.
D(mands rrom (ounrries opEC ror sp.cr.i ,,:;i;:;l"r%"irii,.rr",a
;;';.;r,n 12'sccpt..mblctolh.l997Proto<ol.irticL3I(2)ofth'1969vi'nn'coove ion on th' L'w ofTrc'ti'!
th.Ky.,.,.8;i,;;,;,,;..,"r..,'.ilili^li""rrrr"f also sugS;k lh.i Arlicl. S of rhc convrntior is P.n of th. .ont'xl fot int'rPr'ting thc
Prolo'ol
:Jlh:lro::(o':nry
rccociizes th.o.ed tominimiz *,! r_p".i"rr-pr"_""",ie;;;"..;i;il;"",,." -
counries list.d in Arrict. 4(s) of rhe ConvnrioD.
t2{ iipra, Ch r, scction :(3) se. .lso R.jameni' Dif' rential heatm'nt in tnt':7,atjonat La/ loxford'
2006).
 36o INTERNATION L LAW AI.ID THf, ENVIRONMENT
The commitments undertaken by developed states in Article 4(2) are only margin-
E time, of quantitative restdctions oII emissions from industrialized economies' These
ally more onercus, consisting principally of an obligation to adopt national policies
and measures on the mitigation ofclimate change by limiting emission ofgreenhouse
gass and protecting and enhancing greenhouse gas sinks and reservoirs. In
decid_
ing what these policies and measures shc,uld be individual Annex I parties are free
E The Parties included in Annex I shall, individually or iointly, ensure that theii aggregate
to take account intcr alia oftheir different starting points, resources, economies and
'other iDdividual circumstances, as well as the need forequitable and appropriate
con-
tributiorrs by each ofthese Parties to the globa! eflort,. No uniformity cf approach is
required, and economies in transition are additionally allowed a tertain degree of
flexibility' in inplementing their comrlritrnents under this article. Information con-
cerning the policies and proiected emissions of each Annex I party must be commu_
nrcated to the Conference ofthe parties.
There is reference in Articles 4(2Xa) and (b) to the ,aim, of returning emissions to
1990 leyels 'by the end of the present decade' (i.e. by 20C0). Although the timescale
envisaged here is morc precisethan in Article 2, the wording ofthese sub-articles cre-
ates neither a strong nor clear commitment, although this shortcoming is balanced
somewhat bythe proyision fcr early review oftheir adequacybythe Conference ofthe
Parties at its first lreeting, and at regular interyals therealierrz5 In efect the parties
recognized that, as in the case ofozone depletion, it would be necessaryto strengthen
commitments in the light of new scienti6c information and further assessments of
the problem. Following an IPCC repcrt that, even with stabilization ofgreenhouse
gas emissions at current levels, atmospheric concenttations would contiDue to rise
for
the next t\yo centuries, the 6rst Conference of the parties, held at Berlin iir 1995,r16
did accept that these commitments were inadequate, and it provided a strong man_
date (comnronly known as the'Berlin Mandate') for negotiating new, more rigorous
obligations under what evntually became the 1997 Kyoto protocol.
4(3) rHE KyoTo pRorocol-
(a) Commitments
TheBerlin Mandate specifiedthat the new protocol would cover commitmentsbeyond
2000, would elaborate stronger policies and measures for developed parties, and
would set quantiied objectives for emissions limitation and removal by sioks within
a specific timescale.r2T It was agreed, however, that no new commitments would be
applied to developing states. The Kyoto Protocol adopted in 1997 meets most ofthese
objectives.r2s The key feature of the Kyoto protocol is its establishment, for the first
r25 Arriclel(2)(d).
r26 lor decisions see Repol t ol the polti.r o, ir ri,'l Srsrio, UN Doctcc)t]ptreest1 t
Co4.rence ol the
Add l,onwhichseeOberthiir.ndOtt,25Epl(1995) 14,1.
r27 Decision I/CPl (1995).
r23 See Oberthiir and
Otr , 7h. ryob ptotoeol (Be{in, 1999); yamin, 7 RrCrEl (199g) 1 t 3r rr.esrone
andStreck Gds). regal lqects oJ lnphftcntins th. Kyoto ptotoeot lDxfotd,zoos).Ior .trafiing hisrory se
D.pLdr , Tftcing the Oigins ol the Kyoto plotocot: An Attict. b,
A iete HistoryUN Doc FCCa/Tp/2000/2
CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 36r
states-listed in Annex B of the Protocol2e-are limited i! their emissions of tbe six '
greenhouse gases listed in Anner A. As stated in Article 3(l) KB
anthropogenic carbon dioxide equivaleni eilissioqs ofthe grenhouse 8ass listed in Annex
A do not xceed their assigned amounts, calculated pursuant to their quantified emission
limitation and reduction commitments inscribed in Annex B and in accordance ririth the
provisions ofthis Article, with a view tc leducing their overall emissions of such gases by at
least 5 pff cent belovr l99O levels in the commitment Period 2008 to 2012.
Also established are the three 'flexibility mechanisms'-the Clean DeveloPment
Mechanism (Articie l2), Ioirt ImPlementation (Article 6), and Emissions Trading
(Article 17) by which Parties may achieYe their emissions reductions.
The quantified emission limitation and reduction commitments contained in
Article 3(1) seck to ensure that overall emissions from Annex B states are reduced
to at least 5% below 1990 levels within the Period 2008 to 2012 but are of course sub-
iect to Article 4(2Xa) ofthe Convention. Article 3(l) sets out different limits for
each
party, in deference to thei r particular circumstances, including ability to reduce emis-
sions, access to clean technology, use of energy and so on. In most cases (including
the EU, USA, and laPan) a reduction of between 5% and 8% is sPecified, but New
Zealand, Russia, and Ukraine needonly stabilize emissions, while Norway, Austrilia,
andlceland are permitted to increase by amounts rangingfrom l% to 10%' All parties
listed in Annex I of the Convention must show 'demonstrable prcgress' in meeting
their Kyoto Protocol commitments by 2005.130
whilst reductions of5% or so may seem low, they are decePtive. Choice of 1990 as
the main base year means that perceotage reductions of up to 30% ot fiore of Prcsent
emissions rvill have tdbe rnade by those states whose greenhouse 8as emissions have
increased since 1990. The United States is in this category: in 2000 a cut of some 36%
would have been needed to reduce its emissions to 1990 levels. In certain circurD-
stances ecoromies in transition, including Russia and Ukraine' may opt for a base
year earlier than l99or3r irt order to enable them to i,ctease emissions because their
economies have contracted so sharPly sin.e then. DeveloPing states are not included
in Annex B so no emissions limitsapPlyto them and theyare tlot required to do more
r32
than meet tlilir odsting commitments under Article 4(l) ofthe Convention
The Protocol commits Annex B developed state parties to taking actiol on a range
of matters additional to those already covered by the Convention, including energy
(New Yort,2000)i X?prr o/lll e AdHocC.l,uP ott the B.rlinMa,dale 0995-7) UN Doc FCCC/AGBM/1995/2-
1997/s (8 sessions); COP, Cbairman'sDraft UN Dot FCCClCPlr99TlCeP'2andRePt o/li'dCOP(3rdscssio"'
i998) UN Doc ICCC./CP/1997/7, PartV
l2e Th. list of parties in Anncx B Kyoto Protocol is substantially similar to th.t in Anflex I of th'
UNTCCC.
I30 1997 Protocol, ArticL 3(2).
r3r Ibid, Arricle 3(5). Annex I Partismayuse 1995 as abasevear for gaseslistcd in Arlicl' 3(8)'
132 Ibid,Article t0.
 162 INTERNATIONAL L^W AND THE ENYIRONMENT
emcierrcy, promotion ofrenewable energy, reduction and phasing out ofsubsidies that
cootravene the obiectives ofthc Convention, and control ofemissions from ships and
aircraft.!3'Land-use changes or forcstry-activities undertaken since 1990, which rcrslt
in the removal of greenhouse gases (known as tarbon sinks,), can be ofset against
emissions to meet the net figures set by the protocol.rrr In order to host an aforest-
atiol or reforestation project,rss a partymust meet both th general eligibitity require_
ments for all proiects and the specifc eligibility requirements for afforestation ard
r
reforestation proiects, including the requirements that the host country is a party to
the KJoto Protocol, is participating voluntarily in the proiect activity, and has desig-
nated a natio.ral authority for the Clean Development Mechanism (CDM).rs
The Kyoto Protocol is then a considerable advance on the Framework Convention,
which it stlengthens by providing means for remcdial and prec.utionary action to
address climate change. It shares its foundational principles and objectiyes with the
Con.rention, as well as its classification ofparties. Also common arc the Conventiont
institutions, such as its subsidiary bodies, secretariat and the Conference of the
Parties, which functions as the'meeting ofthe parties,forthe purposes ofthe protocol.
Finally, the IPCC also supports the proto.ol on scientific, technical an,l methodo_
logical matters.
(b) Entry into force
Any state may become a palty to the Kyoto protocol, but entry into force depends
on participatioo by the developed states with significant greenhouse gas emissions.
Pursuant to Article 25, "'[t]his Protocol shall enter into force Iwhen] 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 ircluded in Annex I, have deposited their inslruments of rati6-
cation, acceptaoce, approval or accession".' Given the refusal ofthe UDited Stares to
ralify the Protocol,rsT the prospects ofits coming iuto force rested on one party, even
afterthe EU and fapan had ratified. On l6 February 2005, the Russran ratification sat-
is6ed the'double trigger', enabling the K)oto protocol to enter into force. following
which, formal irrtergovernmental discussions on the f\yoto protocol would be known
as Meetings ofthe Parties (MOPs) and would run in parallel to COps.
The period between COP 3 (signature ofthe Kyoto prorocol) and COp 7 was con_
sumed by extensive negotiations between the parties about the detailed rules of the
flexibility mecha isms. These discussions culminated in decisions at COp 7 in 2001_
known as the 'Marrakesh Accords'r33-which includetl, amongst other things, a draft
r3r ]bid,Anicle2. Ir{ Ibid, Arricte 3(3).
r} Dcnmd rn lo/CMP L Anner, [JrJ\ trb] anJ k). re{pc( i,vely
,-rih.Se
VCLIP l. Annex, piras 28-jo. Mor. gcner.[y, ,ec &reck ard S(hot?, s2 tnt.rhational Atans
(2006) 86i.
t37 See Chaleigh, h O Con
nat (.d), Anti-Ade/i.nailh: Hirtory, Courer, Th.nts lyol t, Oxford, 2007) 139.
rr3 D.cision 2/CP7 ro D.ision
l{/Cp7 i.ctuiivc. Thcse dciisions wcrc adoptcd by rh. Confercnc. of
lhe Parlies arvinS as the m..iing oflhc parries (COp/MOp) at irs first me.rir;in
Monrr.al in Nov.mber
2005_
CLIMATE CHANGE AND {TMOSPHERTC POLLUTION l6l
set ofrules for the operation ofthe CDM modalitis and Procedures. Decision l7lCP
7 gavc the CDM E&cutive Board authority to commence Provisional oPeration ofthe
CDM (in recognitior oflengthy pro)ect lead times), pending the Protocol's entry into
force. The CDM modalities and procedures were formally adopted at the fir$ Meeting
ofth Parties to the Protocol, subiect to furttrer refinement by the Executive Board'r3'
E 4(4) FLExTBTLITYMEcHANtSMS
The most strikinS asPect of the Kyoto Protocol is its so'called flexibility mecbanisms'
Not only were thsc viewed by the United States ard otier develoPed state Parlies as
an esseltial mcans of meeting their cortmitments in a cost efcctiv manaer,r'o but
some ofthem also proYidc a means by which deYeloPing statcs rnay restnin Srowth in
their owD emissioos.
'lhe possibility that some deYeloPed states might 6nd it economically cdvantageous
to meet their commitments iointiy, and that developing states mightalso benefit from
such assistance, was envisaged in Articles 4(2)(a) and 4(5) ofthe Convention and irr a
decision cf the I st COP, although the commitments of each party would not thereby
be modified.rar Such ideas were more firlly articulated in the Kyoto Protocol and in
particular, in its three flexibility mechanisms-Clean DeveloPment Mechanism
under Article 12, Joint ImPlementation under Article 6, and International Emissions
Trading under Article lZ Before each ofthese is explored at greater length, it is neces-
sary to consider lheir conceptuai underpinnirrgs
(a) Economicbackground
The Kyoto's Protocol's use ofmarket-based instruments to generate emission reduc-
tions is commonly described as innovative or radical.raz whilst this may be true in
thecontext ofinternatiooal entironntental regul3tion, its Pedigree inboth theoryand
practice is venerable, Those familiar with Law and Econornics theorywill recognize in
techniquessuch as carbon tradir,g thelegacy ofPiSovian and Coasian economics- The
former identified the social beneits ofcumPelling comP3nies to Pa)'for the costs of
their own polluticn,r'r whilst the latterh fie Prcolcm oJ Social Cost demonstrated how
allocating property rights and allowing trade yields pareto eficient rcsults.r" These
D, thc gcncrd rupcrvirory pow.rt ofthc CDM Dr..utiv. Bo:rd .r.6t'blish'd by Atticl' r2(4) It! turc'
tions.r. r.t out in 3/CMP I, Ann aP.r.5.
r.o AlthouSh not initi.lly by th. EU-sc. Damro and M.ndcz' 12 Environn'ntal Politiet 12003) 2'
7t-91.
r{r sc. Dec.s.on 5/cpl (r99s) and generrlly Missf.ldr, 7 REcIr[ 0998) l28i Barr.lt, iD cem.ron,
utrksman, Roderick l.ds), In\ro'ing CodPlianee eith lnt.national En rolntntal f,al (London'
t9 1229.
r'2 Scc Frccstonc and Strcc k (edt), Legal Atl.cts of lnPlenenting th' Kvoto Proto'ol' Ch t'
r{r s.. Pigou, 7r Eco,om i.' ol wefu.ll"ondon, r9zo)'
ta. s.. C;.s., 1 tounat ol I.4w and !lonc,,k' (te5ot l. s.. .lro (r.m.r, A Cod. ro Co.s.', id L ,,,.
R.al ol L.gal and Morol Philoto?U: Critical EncoMt.rt (B.sin85toke, 1998) and P" re''27 Annual R'ei'e
oJ En.ryt and Envton .nt l2OO2l s7.
 364 INTEF.NATIONAL LAW AND THE ENVIRONMENT CLIMATE CHANGE AND ATMOSPHERIC POLLUTION 16'

insights laid the foundationr for market mechanisms, such as emissions trading, .s Host partics benefit from Proiects that contribute to sustainable development'
an altcrnatiye to traditioinl command-and-control mcthodE, basd on its claim to
delivrr environmcDtal outcomes atlhe least cost. Each ofthe three Kyoto ,Flexibility
Mcchanisms' seks to draw on the logic ofthe Coasian privatization ofthe commons
E] facilitating thc transfer of technology and capacity building by Annex I Parties
Annex I partie$, th CDM enables the use ofCERs tetrerated by registered CDM
jct actiities to meet Part of their Kyoto targets, elthough CERS generated by the
'CDM
For
Pro-

and trading the resultant property rights with a view to achieving emission reductions must be 'supplemeDtal' to domestic action to reduce emissions, and domestic
in the most cost-effective manner, in the optimalglobal locatior. by Aonex I
action b), parties must therefore constitute a'signifrcant element'ofactions
(wind' srnall
Theratiorrale ofmechanisms such as emissions-tradingis as follows. A regulator sets parties toieduce emissions.r'e lhical pr$ects include renewable eoergy
a cap on aggregate emissions, distributes the right to emit to regulated facilitles (with
E scale hydro, renewabl biomass), fuel switching, alld the caPture ofthe most
damaging
their emission allowances totallingless than the aggregate emissions), and permits the ofGHG such as methane and HFCs.
market to determitre the emission price and Ccgree ofabatemcnt at individual facil_ 'Ihe CDM project cycle encornpasses a numbet of stages and entitis which are
ities. Ifthd regulator allows regulatcd facilities tc transfcr their emission allowanccs, commonly divided into ttro Phases-the develoPment phasc and the imPlementation
phasc. Thc former commcnccs rtith thc Designated National Authority-of thc
th distribution ofemission reductions among facilities will be equal to thc marginal host
cost ofemission reductions .mong facilities,r.5 Ifthe margin.l cost ofemission reduc- to
party providing the letter of aPProval Proiect particiPaDts' corfrrmilg that the Pro-
tionsvaries among facilities, total costs catr be iowered by reallocating greater efort to This is followed
i."t ".iirity.ont.ltotes to sustainable develoPment in the country "0
thc facilitythatcan lower emissions at a lower cost. Thus, when marginalcost is equal iy the preparation ofthe Proiect Design Do{ument,ttr which is necessary to obtain
arnong facilities, total costs arelowest and the environmental talget is rJached. r"lidutionit' fro- Designated Operational Entity (DOE)I53 and registratioD by the
Market mechanisms were frst used as envirolmental tools in the USA in the 1990s " which must itself demonstrate 'additionality' This is
CDM Execurive Board,rs'and
in the form ofTitle IV ofthe Clean Air (Amendment) Act 1990. A response to SO2 the requiremcnt that the GHG emissions after proiect imPleme[tation are lower
than
generated acid rain, the Act allocated a 6xed number ofallowances to the electricity wouldhave occurred in the most plausible alternative scenario to the implementation
industry, with firms being required to surrender allowances for tons ofSO2 emitted, ofthe CDM pro.iect activity.rt5 At this stage apioiect isaccepted as a CDM Proiect and
with transfers and banking being permitted.ra6 The success ofthc scheme in terrns of thereby eligible to generate CERs. The latter stage commences with monitoring
ofthe
costs but also as a driver ofabatement innovation exceeded expectaticns. As a conse- proiect whiclr involves the measurcment and analysis of greenhouse gas eDissions
quence, enrissions trading gained favour domestically and most signi6cantlv at the from a project so as to deterrnine the volume of emission reductions that are attrib_
multilateral level, where it formed a key negotiating strategy for the Clinton adminis- utable to the project.)56 This is followed by Periodic indePendent review and ex Post
tration in negotiations leading to Kyoto.r47 determinatio; ofreductions in Sreenhouse 8as emissions by sourceswhich have been
is fol-
monitored, performedby an independent DOE.r5T Ifverification is satisfactory' it
(b) Clean Development Mechanism coufrmation by the designated oPerational entity
lowed by ceitification-the formal
TIre Clean Development Mechaoism enablesAnnex I parties to establish project-'oased that the emission ieductions which are set out in the verification report were actually
activities that redu(e anthropoge[ic emissions in non-Anllex I parties.].8 The result- achieved.rss Having been verified, and certi6ed a number of Sreenhouse
Senerated,
ant Certified Emission Reductions (CERs) generated by such projccts can be irsed by
the Annex I Pa y to help meet its emissions targets under tLe Kyoto protocol. parties
r{eArticlcl2(3).ndl5/CP7.Inord.rto..!ur.sqPlcmcnt'rity,t'PortinSobliS'rio"str'imPo!'dby
can authorizc legal ntities to take part in proiect activities. The CDM is the onlyflexi- l
Arti.l6 5, Z 8 ofthc Kyoto Protool.
bilitymechanism available to developing states. Article l2 states it dualpurposes to bc: r5o 3/cIuP l, *nn.r, p.r.! 29i 4o(.)i EB 2s' P.t. 95. r5r 3/CMP l, Anmx' APP'ndir B'
3[1'1p 1, 1r*r, ].. l5: v.lid.tion is th. Pro..st of ind.FnJ'nt 'v'lu'iion of' P'oj'l 'ctiviry
'to assist Parties not included in Annex I in achieving sustainable development and in r rl
by
ofth' CDM $ ta outin d"i6ion l7lCP7 on th'
a d.siSnald op.ntion.i.ntityaS.inst th. rcquir"n'nts
contributing to the ultimate objective ofthe Conyention, and to assist parties included
oi the proj.ct dcsiSn do.umcnt '
--i;;;o;:";'"t"da;d.nt.uditorsrhata's.sswheth.raproi'ctm"rsrhc'liSibilitvrequi"m'ntsofrh'
basis
in Annex I ilt achieving compliance with their quanti6ed emission limitation and
reduction commitments under Article 3'. rft.thcI tb. Projcct h.s.chtev'd Sl"nhoutc gastmission r'du(ttons (v'rifoiion
Cprvl fr"f;a"riont
""a
and ccrtification). OOES ar..ccredii.d bvtheCDM Executivc Board Ahhough DOE5ordin'rily P'rforms
rh'vcanb' Prmitt'd toperform allthreetasksforasingic
"tii*,"iia"""
proj..r.3/CMP L".*.rn*tionandccrtific.tion,
Anner Para 27(.)
rr5 M.rgin6l (cf
th. addirional cosr ro a.hi.veaD addjrionat unit ofemis5ions at.nyfacitiry.
is ' iii 3rc;P t,4"..*, p;r.36:'R.sistration isth. rormel acccPtancc bvth' Erccutiv'Boardofavalid't'd
r'6 S.e Strecl v'ri6cation' and hsu-
and c.hriD8,35 Ehrnonn.ntdllaNlR.po .r(2005, t0lt9.
r.7 S. MacK.nzi., 71,, Po litical E.onorn,
p.i."t", colur p-;""ir.tivity- R;gistraxon it rhe Pr'requisite for the
'ertin'arion
ol Carbcn inding, 2s London Rcvice of Books l2oo7.) 2s.3t, "
anc. ofCERi relarintto lh.t Proj.ct a.tivity.'
.nd Drnro and Mcndcz, | 2 Envnonn.ntal potitict l2oojl2. rs5 s.. Kvolo Proto.ol, Arti.lc l2(5).nd 3/cMP I'Anncx' Paraa3'
rrr Se rr..stonc and Srr.c k leds), L.gat Asp..b ol tnplcnc iryth. 15? 3/cMP l,Ann.x,P'r'61' 153 ld
Kroto ptoto.ot,Chs9.r3. 156 rlctr,tp t,enncr,para t4.

l
 366

gas enrission
INTERNATIONAL LAW -{ND THE ENVIRONMENT

reductions in respect ofa CDM pro.iect actiyity, an equivalent quantity

CEFs erc issuedre and fnally forrarded from the Executivc
Board to paflie: i[volvcd
of
Ii CLIMA'TE CHANGE AND ATMOSPHERIC IIOLLUTIO}I

occurred and Proiects must hav aPProval of the host Party and
particiPants have to
comParison with the
367

be authorized io participatc by a party invohcd in the Proiect ln

and ptoiect panicipants, as well as to th accourts in the CDM
registry relating to the il CDM, thcrc is only modst activity under this mechanism.r65
share of proceeds.le
This somewhat simplified account indicates the rather complex
nature of the
il
nri (d) International emission trading
CDM proiect cycle. Whilst rigorous procedural safeguards are trad-
necessar,,, the atteod- Article l7 provides a f.amework for Annex I parties to 'Participate in emissions
aot tnnsaction costs are high-although small-scale projects do
beneft from sim- =E ing for the purposes of fulfilling their commitments' Provided that such trading is
plified ptocedures. Similarly, the centrality of the Desijnated
Natiosal Authority : E 'r,[ple."ntul to domestic actions for the PurPose of heeting quantifed emission
to the process can operate as a bureauctatic barrler. The-DNAt
letter of 3pproval is E limiiation and reduction commitments'.16 Partics that may otherwise not meet
their
premised on there being a competent and capable DNA in
existence. Ofnecessity in
many non-Anner I patties, euch an entity may not exist causing dt
E commitments are thereby abl to tradc units in the form of assigned amount units't67
bst commcrcially certifid emission reductions,la emission reduction units,r6'and removal units'uo
unattractivc delays, at worst a lon-functioning system, The World
Bank has rcportcd
=.: E It is notable that the trade in AAUS has beell a m.tter ofsome controve$y' The eco-
on- the CDMI treakilg structurc,, resulting in large end
numbers of projects awaiting nomic collaps ofthe Soviet Union has left its successol states, esPecially Russia
validation, delays ofup to sir months in engaging DOES, and of two
),ears in the issu_ ',': EE the Ukrain; with large AAU surPluss (as their emissions in the X)oto
commitment
ance ofCERs.,5r It is notablc iI! this respect that the distribution
of registered CDM E period arelikelytobe significantly below those in thebaseline year of1990)' However'
proiects is heavily skewed towards the more developed
non_Annex I p,-arties such as t as this surplus has not been generated in a manner that is
'suPPlemental' to domestic
India (354), China (239), Brazil (l4l), and Mexico with action, major market actors io the EU have refused to purchase such AAUs
1105) the whole ofAfrica host- unless
ing only twenty-five projects from a global total of l,ll5.162In terms t
ofsectoral, lather I trading under the Kyoto Prot('col
t they have been 'greened'.r7r International emissions
than geographical, concerrtration il is noteworthy that many t
CDM projects focus on
HFC-23-a refrigerant coolant that has a global warmir,g potential of approxlmatety
I oujht,o b" li,,k"d to reSional or domestic trading schemes, such as the EuroPean
Union Emissions TradingScheme (EU ETS) However, one ofthe rnost serious
limita-
11,700. It- follnrr. therefore that huge quantities of Cfis F
can b" gen.i"ted th. L transaction bccoming oper-
tions oflET has been thtdehy in the international logr72
CDM without actually .ontributing to the long-term efFort to reduc-e "ia
carbon depend- to the transaction log ofthe EuroPean
ational, principallydue to the failure to connect
eDcy and at what might not be the lowest cost. Is lhe HFC-23
case an example ruhere Uniont Emission Trading Scheme.
straightforward corDmand-and-control might be more cost-efective? I
Although not created u'nder the legal authority ofthe Kyoto Protocol' the EU
Ilonetheless, tt t ETSr?3
should be recognized that,in200z the cDM market accounted
for transactions worth i is the keysione in the EU's comPlex attemPts to comPlywith its commitments PerhaPs
US$Z4bn. representing emissior reductions of55l MtCO2e (million
tonnes ofcarbor i ironically, given its initial resistance to the market-based instrument of emisslons
dioxide equivalent).r6,
trading in iavour of more command-and-control regulatory anC taxation schemes'
(c) rointimplementation :

r6s Tranractionr undcr II in 2007 rotalld USt{99in, r'Pr'scntin8'missioD rcduclions of4l MtCo2'-
Underjoint implementatiol (JI),r6r one AnDex I party may implement an
emission- s.. world sank rrP'., n l6t.
reducing project or aproiect that enhaDces removals bysinks in anotherAnnex I rea 15i6, gh, 2219; C.otb, 7 RTCIXI (1998) l40i Ob., thlr r!:d Oti, ?,. K/oto Pro toeol, lE7-205'
I part; I.
and by cioing so generate emission reduction units (ERUS) that r 16TAAUS.r.unit'i'su.dbyP.rti.sloth.KyotoProto.oltntoth.irn.tion.l'.8i5tryuPtoth.ir..si8n.d
will count towards
meeting its own Kyoto target, as defined by Article 5. As with the i ''
CDM, ioint imple_ i6 CER!.r. rh?tr.d..bL units ofth. CDM CERI.'. dcfn d in 3/CMP r, Anncr' P'r'8"Ph l(b) 's
mentatiotr aims to ofer parties a flexible and cost-effcient means !'qu'dcr'd or - cER' h5u'd ro Pro'
offulfilling a part of unitr.;;oring om lonn. ofcrrbon diorid.-.quiv'hnt 'b'r'd 'r'
their Kyoto commitments, whil the host party benefts from foreign pci p"iticipanr,in cor'r proi.cts Puruu.nr ro Articl.l2 oftb; xvoro P'oto<ol'nd rh' cDM mod'liri'i'od
investlment and
technology transfet. A JI proiect must provide a reduction iir
emissions bI sources, or 16,ERUSarunits.onverlcdfro'n.iih.rAAUSorrehov.lunilRMUandissu.dloPrci.ctP.rticiPants
an elhancement ofremovals by sinks, that is additional to whatwould
otherwise haye rn roinl Implcmenl.tion Proj.cl aclivitr.3.
i'd R;i' "'" i'.,.d;y;"rrics to thc Kyoro Proto(ol in rsPect of ner rmovals bv sinks from activities
lse vcMP an; 3(4) (in th. tandusc,land us' chans'and forcstrv
l,Ann.r,pd.66. roo nrrrcl.l2(8). covcred by "cror)'
16rWolldBank.Srar.andlrra,tsolth.Ca*onMa*.t2008(Washin8ronDC,2006).Secmo,.flen.ra | ^rri.l.3(3)
7r Ta;g.n er . t, A R!.q,.i Gftcn lnv.nmcnt Seh. d., < htr n:/{ w w.dimrl sl ral.8i.s.org>..
^rricle
wa,a dnd vi.ror. x.ari,rt. potiry o; hkmat,onarca.I;";/..;;;$;;;";;;;i;;;(fi:,,",., ),, u, ft.;urpos. ofih. to8is10verifyrbev.lidity ofrransacrions, inctud,nSi'suanrc. rrrnsrr and
acqur-
ih (rrrv-ov'r
2008). ^ silion b<rw.c;registri.t, cancclletlon and rerircmcnt ofERUs, CERs' AAUs 'nd RMUs 'nd
162 <htrp://*wHdh unfccc.int/>, rcc.ssedor,uly of ERUs, CERs and AAUr'. ll/CMP l, Anncx. Parasr.Ph 38'
16.
10,2008. 16r
Se. World B.nk,Jtrrra,n 16l. iJ ro".,i," ,oorlgr/SC Se Fr..slone and teds), L'gal Asl"ts ol ldPled'^ting th' Kvoto
itr*k
se.F,..non..ndsrr.c'.pal,L,s"t,i,p*r,"ti-ii;,,t,"r,r,rr";;r;;;;:;:;;:';:{.'''
Ptoto.ol.Cl'23-
 168 INTERNATIONAL LAW AND THE ENVIRONMENT
POILUTION
E-"3 CLIM-,1.TE CHANGE AND ATMOSPHERIC 369

the schemehas become the single largest carbon market in the world with
a traded vol_ a leam ofexperts.rso These reviews are coordinated by the secretariat and the exPerts
ume in 2007 of 1.5 gig.tons of CO2 at a yalue of28bn.r?r The scheme drives much
of who conduct them aie selected from nominees of govemments and internatiolal
the activity in the CDM market and through the Linking Directivel?5
has become the orga zatiols. The purpose of the review is to ProYide '. thorough and comprehetsive
hub ofthe global carbon market. Whilst theEUETShas undoubtedly greatly
contrib- technical assessment' of all aspects of implementatioD by any Party, 3nd to identify
uted to the EU's ability to influence policy-making at the national and international
and rcport on any problems or orher facto$ influencing the fulfilment of commit-
levels, itshould not bejudgedan unquali6ed success. In its6rst phase (2005
2007)EU ments. Thc tearns generally visit each party to discuss the report. Their findings are
Member State governments granted emission allcwances for frec.t75 CombiDed
with circulated to all parties. Review by experts serves two useful functions. First, it helps
overly generous National Allocation plans, the first phase came badly unstuckirr
2006 when the market crashed, losing over 70 per cent ofits value. Whilst
May E ensure that reporting by parties is adequate, accurale, and consistent. Second, it intro-
measures duces an important and desirable element ofquasi-independent exPertise to the pro-
have been taken to avoid a reoccurrence ofthis episode, critics ofemissions
tmdiDg cess of scrutiny. In effect, rei'iew teams have th ability to report on the Pertbrmance
remailr unco[vinced of its merits.uT
ofindividual states in implementing the Convention, and to point out any inadequacy
in their reporting. Early in-depth reviews showed that the EC, JaPan and the United
4(5) supERvrsroN AND coMpLTANCE States would not meel 1990 emissions levels io 2000.r3r The secretai'iat is rcquired to
draw such findings to the attention of the COP It is then uP to the COP to take the
The supervisory role of the parties under the Convention and protocol
is among the necessary decisions. The closest analogyto thisprocess is the use of exPert assessnlent
mostelaboratein anynvircnmentaltreatyand includes a numberofsigni6cant
innov_ teams by the IAEA whefl invited to review the safety of nuclear installations, but the
ations. 'lhe Conference ofthe parties serves as the principal supervisory
institution for process established here is probably stronger than anything so far adoPted by ihat
both the Convention and lhe prolocol; it is required fo r:reet regular]y and to keep the
organisaticn.r32 It represents an atteinpt to provide for a significant measure oftrarls-
adequacy, implementaticn and efectiveness ofboth instruments under
reviewrTs For parency and international verifl cation of natiorlal reportinS.
this purpose it receives advice from supplementary bodies for science and
technol- What happens, however, ifsuch reviews show that a partyis failingto ful6l its ccm-
ogy (SBSTA), and implementation (SBI).r7e The former assesses the state ofscientific
mitments?'llere are several options. The Convention makes provision for a'multi-
knowledge relating to climate change and the efects of implementatio[ rieasures.
lateral consultative process' to resolve questioirs regarding impleme[tation.r3] This
The lalter assists the COP in the 'assessment and review of the ellective
implenen- process canbe extendedto the 1997 Protocol iftheParties so decid. It is inteDded to be
tation'ofthe Convention and the protocol and considers reports from parties under
an even softer form ofdispute avoidance than non-comPliance procedures: conducted
Article 12 ofthe Convention and Article 7 ofthe protocol concerning implementation
bya panelofexperts, it is non-iudicial in character, Don-confrontational, and advisory
and prcjected emissions.It is this body \.hich has alsobeen responsible for developing
rather than supervisory.No sanctions caD t\e imposed; there is power only to lecom-
detailed guidelines on issues such as transfer oftechnology, the liiancial mecha;rism,
mend measures to facilitate cooperation and implementation and to clarityissues and
and consultation with NGOs and business. Both supplementary bodies are composed promote understanding ofthe Convention. Parties may bring questions concerning
ofeiperts acting as governmental representatites. Together, the COp and its supple_
their ovrn implementation or that of other Parties to the Multilateral Coisultative
mentarybodies provide the essential political oversight and management ofthe
whol. Committee; the COP may also do so. This proce.s rePreseDts a further move
climate change regime. 'rew
away from formal binding third-Party disPute settlement in favour ofProcedures tirat
Oneofthe innoyative features ofthe regime,however, is thatbefore national reports
facilitate compliance but caDnot compel it. Given the lack ofreal commitments in the
areconsidered by the subsidiary bodyand the COp an in-depthreviewis conducted
by Convention this'is not a serious weakness in that context. However, reliance orr the
detetent effect ofinspection and publicity is ullikely to be a sure guarantee ofcom-
t7a- Roin pliance with commitments on a matter as economically fundamental as greenhouse
et al, Cafuon 2O0S: posl 2012 ]. Nor (point Carbon, 2OO8).
r7s Dirctiv 2004/I0UEC.
See Freestone and Streck (edsl, L.Sa;r Arpeets How, in particular, shouldjoint implementation, the clean development
8as emissions.
ol Inplenlenting the K),oto
Ptotocol, Ch 29. mechanism, and emissions irading be Policed? Given the possibilities for evasion and
i76 Pbase 3 of the EU [Ts (posr 20r 2) is likly to feature aucrioDed
a owan.es, the in.rusior of the ayi,
atio-n and shippmg sectors and supporr for.arbon capture and storag poecrs.
t77 Ba-ldut_i^, R.g4latiofl Lite:
m. Ri,. ol Enissioh, rradlrS, LSi L;w;Society ard Economy Working r3o The mechanism was 6rst establishcd by decision 20/cPl (1995) 3nd subsequeorly incorPorat'd in
^
Piper3/2008.
Articl 8 ofihc 1997 Protoco!. See UN Doc FCCC/CP/13
(1996) and Wrksm'n,9 Y,IEL (r99El48'
173 FCCCArri.le 7i 1997 protocol Artict.l3. See Wrksman,9 yrtEl (199S) 18.
l7e FCCC Arricles 9, loi I997 Proro.ol
Arriclel5. Howver rhe IPCC conlihues in xister)ce and remar ns
r8r werksman, ibid,66. )32
Wa,Chg.
ls] FCCC Article 13i 1997 Proto.ol, Arli.l.16. Fordclails oftheProcssaPProvdbythe4thCOP sce 5t),
the principal sourc of aurhorilarive and independenr scintifi( and tech
n ical advice.
Rept olthe Ad Hoc working GtouP on Articl. t3 (1998\ U N Doc FCCC/AGI3/1998/2' Ann'r II'
 370 INI'ERNA'I'IONAL LAW AND THE ENVIRONMENT CI-IIY{ATE CHANGE AND ATMOSPHERIC POLLUTION 37i

il- ro provision for internatioDai monitoring or fact fnding.re Nor does the Coovention

I
abuse this is an important question. For all thes reasoDs, it has been argued that,
unlike ozone depletion, 'purely facilitative approaches to non-compliance may not acknowledgc responsibility on the Part of industdalized states to coml'ensatc other
answer parties'co!.erns about th need to ensure that all parties pull theirweightand gtates for the harm caused by greenhouse gas emissions beyond a vague commitment
that the protoco!'s Earket mechanisms provide confdence to investors,.!& =
a
q to assist vulnerable develoPing country parties to meet the costs of adaptation
r3T

Another optiol iD caies of non-compliance is to resort to dispute settlement as
provided for in Article 14 ofthe Convention and Article l9 ofthe protocoi. However,
neSotiation and non-binding conciliation are the only compulsory pro.dures envis-
aged here, unless both parties to the dispute have declared their acceptance of ICI
jurisdiction or arbitration. Moreoyer, even for pa ies who do accept adjudication or
arbitration, these alticles are probably not adequate for dealing with the questions
likely to be throra,n up by ioint implementarion or clean developmrt projects and
emissions trading, all ofwh ich may also involve privatc parties and privale law. Neither
procedure is multilateral in character, and would not necessarily iDvolve participation
by the parties collectively.
Finally, and most impoltantly, there is provision in Article l8 ofthe 1997 protocol
for a non-compliance procedure to be tlegotiated. The unusually complcx process
adopted in 2006, and involving facilitative and enforcement procedures, isconsidered
further in Chapter 4. It seems likely that these procedures will become the principal
mechanism for disputes concerning compliaDce with the 1997 protocol and any sub,
sequent commitments.
AssEssMENT oF rHE CLTMATE CHANGE REGTME
4(6)
In the long approach to the expiry ofthe Kyoto protocolt commitment period on 3l
December 2012, issues ofclimate change have assumed a prominence in public dis-
course that is unprecedented in international lyircnmental law. The vast range of
actors-state and tron-state; govelnmental and non-go,.,ernmental; commercial and
otherwise; national, sub-national and supra-natioDal-engaged in tackling climate
change is commensurate with the scale ofthe challenge. Similarly extensive are the
processes, techniques aDd positions taken in respect of it. The following assessment
seeks tc proride a point ofdeparture for investigations into the ccmplexity ofthe post-
Kyoto climate-change regime.
Whilst valid criticisms in 1992, much has since chanSed. Even in 1992 the Climate
= Change Convention contaiDed more substance than the Ozone Convention or the
TransLoundary Air Polluticn Convention. Like those agreements, the test ofsuccess
=-
lies not in the commitments made in the Convertion itselfbut in its subsequent
evo-
lution. Most imPortantly the Conventio[ did achieve an equitable balanqe acceptable
to the great maiority of developed and developing states'r88 and as of July 2008 it had
j 192 paities. Moreover, the adoPtion oftllc Kyoto Protocol in 1997 demonstnted
despitc
that
the
:.] agreemelt on strolSer emissions limits ard carlier timetables was poesiblc,
'.1
dimculty of maintaining meaningful ccnsensus.
(b) The Kyoto Protocol in changing circunst.nccs
ln the previousedition ofthiswork it was noted that'the Kyoto Protocol isnotthelast
word'. What was Purely sPeculative in 2001 has become commonPlace in 2008, indi-
cating the speed at ivhich this area of law and policy has since moved This has been
driven by the rapidly evolving state of scientific knowledge about clinnte change-
not least the IPCCT Fourth Assessment RePort of 2007-which has made the case
for significantly more demanding multilateral regulation a necessity' Also influen-
tial has been The Economics of Climate Change: The Stern Retiew,tse commissioned
by the United Kingdom Treasury. A comprehensive treatment, lhe rePort describes
anthropogenic climate change in terms ofcatastroPhic market failure lts main con-
clusion is that in order to avoid the worst effects of climate charrge, PromPt invest-
mert totalling I per cent of global gross domestic product Per aDnum is necessary'
lnvstment would be requited for mitigation and adaPtation' thereby encompassing'
inter alia,low-carbon energy technologies and carbon capture and storage Thefailure
to do so, argues Stcrn, could riskannual global GDP beinS uP to 20 per cent lower than
itotherwise miSht be.
coniext, emission reductions required by the Kyoto Protocol seem
In this
overwhelminSll inadequate. Similarly, whatever the achievements of the Clean

(a) 'Ihe UNFCCC

186 lbid.
At the time ofits adoption in 1992 the Climate Change Convention was criticized for rs7 Articl.4(4). ftc
8ovrnmentt ofN.uru,Tuvalu, Kirib'ti, Fiii, rndPrPu'-N'w
Guin" mad d'clar-
contailring 'only the vaguest of commitments regarding stabilisation and no commi! aiions on signatureor riincalion staring thal lheConvntion didnol constitut' a renunciationofanyrights
under inte;ational law conce.ning st.t. r.sPonsibiliry ior.dvers"ff'cts o{climat' 'han8'or; d'iog''
ment at all on reductions'.r3sUnderstandably, the United States'position was that.there
tion from th. principl.s of g.neral ;l.rn.lional law. On slatc r'sPonsibilitv for environmcntrl drmagc
sc

nothing in any ofthe language which constitutes a commitment to aoy specific level
is sryn,Ct:.a-
ofemissions at an), time'. It was noted also that 'Many ofthe Conventiont provisions iaa g.6"n,1, t8 vale IIL 1993) 451. sce 8enrallv qedE'\'ell in churchill FrcestorE Gds)'
-and
Iatenationll Lae and Globat Clinate Chong.,4t;FBn'k,Fdirnessa'dIntanationdlLaeandlnstitttiont'
do not attempt to resolve differences so much as paper them over,, and that there was
Ch 12, and rsprd, Ch 3, sttions l(3) 6(3)
rse (Camb;idge, 2007). ,Itc lead aurhor is the H.ad ofrhc UK Governm'nt Economi' Scrvic'' and
'
torm.r chiefEc;nomist ofrhc world Bank. whitst influential, rh..eport has also ai I r.cr.d .riricism- re.
13' Werksman. g yr (1998)48,100. r35 Bodansky,l8 yorar[ (1993) 4sl Tol a.d Yohe.7 W,rd Eco,oflics (2006) 2ll-50.
 372 INTERNATIONAL LAW AND THE ENI/IRONMENT
Development Mechanism, it is clear that it has so far failed to drive technological
innovation at an appropri.te rate, ot l'acilitate technology transfcr on
a scalc that mcets
the needs ofthe burgeoning new eco[omies of India anrl China in particular
Indcd
abriefanalysis ofglobal energy forecasts brings the scale and dynamics cfthe
relative
positions of ildustrialized and emerging economies into sharp.elief.
GIobal demand for energy is forccast to inclease by 56% bi 2030, with lbssil
fuels
accounting for 85% ofthe total. Whilst energy usage by OECD and non_OECD
states
nas loughlyequal in 2005, the latter's share is set to increas to 59%
i,2030, with India
and China! accounting for the maiority ofthat extra demand. Global rjo,
emtssions
are estimated to incr.ease f.om 28.1 billion metric tons rn 2OOS to
42.3 billion tons
in 2030 aDd the share ofnon-OECD econornies rising from 5l% in 2005 to 63.3%
in
2030.rs Ifsuch frgures appear to supDort the argument for uniform emission
reduc_
tions, it is of coursc th cas th.t the ,,:roli. Esponsibility for global emissions
lies
mainly with der.elopd, ilot developing economies, and has facilitated a level
of wel_
fare the latterare keen to emulate. Moreover, disparities exist in per
capita CO. tctals.
Indian and Chincse emissions stood at 3.7 and 1.0 metrics tons per capita
in .i004 as
compared with 9.5 and 19.7 metric torts per capita for
Japan andthe IISA. Even after
theforecast incrcases by2030 io Zl and l.g mettics tons per capita for India
and China
(with^the Unired Stxtes and Europe remaining substantially
the same) the gap oer-
sists.rer Nevertheless, it is clear that a future regime which does
not engage tlie ma.jor
developing states in greenhouse gas reductions will not be successful.
(c) The negotiating context
Before considering possible amendments to the existing regulatory architecture
of
climate change, we must ask how future agreements will b. negotiated. Whilst
the
negotiations under th auspices ofthe Framework Conyention are cle.rrly
central, it is
importaDt to note the existence ofparallel processes.
The Kyoto Prorocol commitment period expires ir 2012. At the time of
writing,
many ofthe key issues necessary for a succ.ssor agreement were expected
to be sub-
stantially settled at COp 14 in 2008, ifnot theirdetails. Adoption ofa newprotocol
was
scheduledforCOP l5 atCopenhagen in December 2009. Bothwill build upon
the Bali
Roadmap-a series ofdecisions taken at COp I3 ir Decmber 2002 which include
the
Bali Action Plan,re2 purporting tochart the course fora newnegotiating process,
with
the aim ofcompletion by Copenhagen. It also includes the AWG_Kprr:
negotiations,
the launch ofthe Adaptation Fund, and the Article 9 review ofthe Kyoto piotocol,
as
reo EnerS) Inforh.rion
Administraiion, Irr.rrario, at En./g! Ottlook I2OOE). Whikr rh. pr.vtous.di,
tiorof thrs work reco8nized rhc.risk rhat emissions trom de,ctopr ng
rrrrcs such as Bruzrl, Ch;. a;drndia
wrllove ake rhose ofOECD \rJrr! d\ rhry rndulrridlise fuah,i
la"lr rtatone., rhar pos,rbitrrvim now
bcome a fa(r. wrlh Chinr roon tob(omf rhc world,\.rngtelarg.n CHC.mi
r0rlrrcmariomlEmrByAB.n.r,wo.!Enery/Ou,toot(vi;na,2co5). .r. te2 D..isioD l/Cpll.
'"r Ad Ho( WorkinS Croup on Further Commrrmnr( for Anner I prrrEs under
lh. Kyoto prorocol
Anicl. 3. para 9 ofrh. Kyoio Prorocot mandar.s rh. conf.rnc. of
rh. prrries ro rnitiart consirterarion of
future commirmenrs for Anrex I parties. Ir ai,ns to coDrplete irs work.nd hav.
irs *sufts ai.prca ly
CLIMA'I E CHANGE AND ATMOSPHERIC POLLUTION 373
well as dccisions on tcchnoloty traosfer and reducing emissions ftom deforestation'
ltis is an aDbitious agen&.
Running in parallel with the fonvention' neSotiations are two other Processcs'
in 2002 i! svow-
The Major Economies Meetiry (MEM), initiated by President Bush
edly'".new initiative to develoP and contribute to a Post-Kyoto framework otr energy
security and climate change'' that seeks to 'contribute to existing national, bilateral'
rcgional and international programs' and not undermine themrea Not surprisingly
it Las been viewed with some susPicion, tivel Presidelt Bush's less-than-firm com'
is
Ditment to action on climat changc at home and abroad Moreover, Palticipation
limited to maior actors (P nciPally OECD natioos, USA, Chim, India, Brazil' EU)
rathq than the more broadty based Convention P.occsss' A similarly hand-picked
parallel process operatcs undd thc ausPices of the G8. Commenced in 2005.under
ihe oritish presideocy,res thc G8 has undcrtakeo Yarious actions to combat climate
change, inciuding a 'dialogue' with Brazil, Mexico, South Africa, China and lrdia'
As with the MEM, the G8+5 Process is intended to comPlement the UN Framework
Convention process and recognizes it as the'"only forum in which binding agree-
frameworks.an be neSotiated"'.
meDts on future
The 2008 G8+8 meetiqgs in Hokkaidore6 reaffrmed that future cooPeration would
Bali
be'rooted in the objective, Provisions' and principles ofthe Ccnventiol'and the
Roadmap. 'serious consideiation' would be given to the'ambitious IPCC scenarios"
and the iole of technology in addressing climate change'le7 Most significantly' 8ov-
r ernments agreed olr the;goal of achieving at least a 50 per cent reduction i[ global
emissions ComPared with the emission reductions ofthe Kyoto Protocol'
b-y 2050'.res
siSnifrcant change in the commitments leading economies are
tlris would represent a
prepared to undertake. Whilst the Summit Leaders' Declaration states that'this
glo-
iul.hulleng".un onlybe met by a global resPonse, irt Particular, by the contributions
from all major eronomies, consistent with the Prir,ciPle ofcommon but differeDtiated
responsibilities and resPectiv caPabilities',tee it is far from clear that emerging econ-
omies take the same view. The Dcclaration ernerging from the larSer meeting of
the
MEM the need ro'ensure the agreed outcome lof negotiations] maximizes the
states
effclts ofall nations [1{ithl nationalty aPProPriate mitiSatiotr actions, suPPorted
and
enabled by technology, financing and caPacily-buildinS, with a view to achivin8 a
Conf.r.nc. of th. P.rti.s .i thc ..rli.st Pd.iblc lim' to cnsur' lh'l lh'r' it no t'P bttw"o
lh' fr3t
'nd
se.ond cornmitm.nt P.riod of thc Kyoto Protocol.
rer Formally known as th. lrajot Economi.s Proc'$ on En'rgy securily and Clinat' chanS''-*'
<hnpr/www.stat..gov/g/ocs/!lim.t./m.m/>
re5 se. <hltp://www.g8.gov.uk/>.
r% ux, Unitca Sl"t.i, nussi., G.rmrny' ,aPan, Il.lv' Canad., Franc' ErPand'd lo includ' Au!rr'li''
I ndonesia .nd Soulh Kor.a, China, India' Brazil' South Africa' and M'xico'
te7 Sc. GE Hokkaido Tqako Sum i! Lead.B D.e\,rution, 8 hlv 2008' Ptra! 22-15'
rer Ibid,p.r.23.Not th.$s.nce ofa sP.cificdba5. y.ar or sh'r'd m'dium term t'duction !'r8'r''
lee Ibid.
tl.
I
 375
CLIMATE CHANGE AND ATMOSPHERIC POLiUTION
INTERNATIONAL LAW AND THE ENYIRONMENT

4(7) Posr-KYoro PoSSIBILITIBS

deviation from business as usual emissions'.'00 This differently nuanced emPhasis is
charactcristic of post-Kyoto neSotiatiolrs.
(a) Bali Action Ptan
On the rclative legotiating Positiqns of Annex I eod non-Annex I parties-end
The preamble to the Bali Actio! ?latr sPeaks
ofthe need for'deep cuts'io Slobal GHG
hcnce thc futule articuiatiol of the principle of common but dilferentiated resPon- ofthe IPCC playing
..ti.t"r. refers to the'ulgency'of the task' with the work
sibility-the most striking development of recent years has been the vast ecouomic ""0
,ot"."' The ."poit inditat"t that global emissiols oll-t::1:l:::, g-*
expansion oflndia and China. As we have seen, most ofthe commitmenls under the t-for,"n
"n ten to fifteen years and be rcdlccd to very luw levels'
Convention and the Protocol aPPly only to develoPed state Parties. Given recent pat- tcHcs) need to peak in the next
in order to
terns ofindustrialization and trade liberalization, which have seen large-scale reloca- l,""iii"i." ir r*"ts in 2000 by thc middle of the tiventy-first century
i,ii assessed,by the
,Jiilr. ,t rations in the atmosPhere at the lowest levls
.on""n
tion of hea\"y GHG emitte$ from EuroPe and North America to China, India end "i.
ipiJ," a"," in nt *"narios. This goes luriher than cither the Kyoto Protocol or the
Brazil, is it approPriate, or sustaioablc, for these non-Anrrex I parties to continue to of countries'
be largely unconstrained by the climate change regime? Whilst the Convention and ,iNtCiilt -tprt*izing the mmkiacy of thc Problem25Theatrdmaioriry
40 pcr cent for rich
Protocol provide some incentives for develoPing stltcs to tackle Srccnhousc gas emis- ilni tul."a*itp, *islied to considcr cuts of between and Russia'2o' The
sions, through various provisions on technology transfer, thc clean development mech- ;;;;t oy ;ad;r, agrccmert vas blockd bv the usA'mitiSatiott commitrnents or
canada'

anism, and 'additional' funding from developed statcs, and th. Global Environmcnt ."rr*"t, a 'ft *sur-able, reportable and verifiable " developed country parties
Facility, they have trencharrtly resisted the aPplication ofquartified emission limita- ,ra.airg q*nti6ed emissions limitation' for all
".i,"",
O'fr.*"r"t*-.,-,inensuringthattheUsA'whichisnotapadytotheKyoto
tron and reduction commitments. The background to this Position is twofold. First is in a
p-to.ol, r"-uin, in olved in mitigation efibrts Although it is moving
2or Positive
the historic fact that industrialized economies have long benefited from massive GHG binding taigets' which
of establishing
emissions, are substantially responsible for the current Problems, and should not as ii.".tlon, tne ndi A.tion Plan frustrateshoPes
be the focus ofsubsequetrt negotiations'2o5
such deprive newly industrializing economies from similarly raising the standard of will
"'rrt" and forest
t"ii.""f"**"rn"d" signiit"nt p'ogress on Putting deforestation
Iiving oftheirown citizens. Second, the reiectionist Position taken by the Bush admin- the SBSTA ro underlake
istration vis-l-vis the Kyoto Protocol, and its Seneral aPpearance as a climate change a"gr.iu,ion nr-fy on the agenda Decrsion i/CP l3 required
, in this, with a rePort tc be made at CoP 14' This builds
relaiion to
denier, has notpersuadedemerging economies that they a re ob! iSed lo undertakebind- '?"'rr-."of*o.t method-
lI in the Marrakesh Accoids on defining and adoPtiDs
ing commitments. Mor.over, Pursuant to Article 4(7)'1t]he extent to rvhich de,'eluping ';:';;;;;.r;",u;";" to'exPlore a range ofactions'
country Parties will effectively imPlement their commitments under the Convention ;i;;;":;;:;;";".ision invites develoPirg countries to-address
will depend ol1 the effective implemeDtation by developed country Parties of their ilfi;r;;,,;;''.il;nderrake efforts' iffluiing demon*ration acri.,ities' Developed
national circumstances"26
commitmcnts'.2or Here we can see that the already limited obliSations ofdevloPing ti" arir"r, of a"for"rtation relevant to their it is
;;;;;;;;; 'tnvited' to mobilize resources in s.tpport of this' althoush
states appear to be conditional Gn ProYision ofbenefits by developed states. Whilst a CMP3/6 established Good
LiooJn'*t ir."ntives might be provided'}oi Decision
regime in which one group ofstates bears most ofthe burdens and rnother Eroup reaPs "t
p.u.ti." C.rid"n.a fot land use, land use change' and forestry activities
most ofthe benefits accurately re{lects a sense ofhistorical responsibility for the causes in theCDM coxlinuestobe
ofclimatechange it is far from ciarthat this approach is optimally placed to solve the TheinclusionofCarbonCaPtureand StorageTechrology
ofthe previous regin'e on tcchnology'sharing
problem at hand. The question thus arises whetherthe articulation oftlte PrinciPle of ais.tss"JUy tfr" SfSfA. Strengthening

common but differentiated resPonsibility fouDd in the Kyoto Protool is sustainable

given the scientific urgency indicated by the 2007 IPCC Assessment RePorts and the ,0, P.",a,on!rarrr.
Int'rn'rion'l Inditut' for
economic realitiesof Indian, Brazilian. andChineseindustrialization.
^, i,'i:ti^,iZi",*" sr^t.sie co ncnt' (2oo8) \ot 14'.v.ilabl' frorn th'
Strat.Eic Slud,.3 al <hltP://wwr'ii3t'or8>'
"1ilil;";:;;;.i;", rh. Intetna;ionot cont'xtlot Pros/ess on cti ate chans''
M'morandum !o thc

Housc of C-ommon' Environmtnlrl Audil Commiri"' I 5'

"]il'iii, i.,. i*"r'. u* Housc ofcommons' Environmentrl Aud it commitr'e' 6th R'pot Rcachinsan

Inteftationat Agree',,.nt on Ct:,.at' ChanS' \London'2008)'

206 lbid,3.
parrn.rship Facihy io h.lp d.monstai.
,0, i" liii,i"^,,r," w"rra sank has laun.h.d a For.rr carbon
z@ 5.. Decla/ation ol L.ade6' M..ting ol Majot E ono/r,iet o, Eneryv kculitv ond clinat' Chongc, 9
accounti!SforREDD rdu(tions lh' two cornponenls ar' a $ lOC million i'!di
th. feas,brlitY of.c.uratly
lu ly 200E, p.rar 2, s.
s" ;::::;Jil;;;;;;."nv r" j'"g -a " s'oo'ilrion c'rbon n'anc' m'chani'm ror Pirotrh'Proiccts'
N'ture
,01 wording of thi! tind is found also in !h. Convention on Biologic.iDiY.rsit,', Articl.20(4)' counrries
'nd ;:#;;ili;;.,':d roushlv haliorrhis monev frorn nine industri'riz'd 'nd
slrra, Ch l, s;lion 3(3). On coopcration within lh. UNFCCC.nd Xyolo Proiocolre8im., s.' B'elliget '1,
30 Fnrnonncntal Sei.nee ahd Policy l2ooE) 478-489.
 376

is nececsary
INTERNATIONAL LAW AND THE ENYIRONMENT

ifthc poteltial for cooperation

is to be realized. Here the Erperts Group
on Technology Transfer (EGTT) established by the Mar.akesh
I
4
4
CI,IMATE CHAIiGI AND ATMOSPHERIC POLLUTION

ioterl.tional framework. This is a Positive steP in relation to the lonS-term actions

J77

Accords has an impon-

art role to play. Dccision Cplj/3 establishes a very comprehensive
- necessary by all countries to address climatc change.
2r0
work programmc The work of the Least Developed Countries Expert GrouP is also to continue
includi[E assessing the gaps and barriers to technology transfer,
dev"loing'" s"t nf Several issues are imporiarit in this area, including increases in furding to
the I-east
performance indicators to monitor and evaluate the GEF and
effectiveness ofthe tel"hnotogy Developed Countries Fund and other sPecialist funds admiristered by the
transfer framework, and bringirrg forth a stlategy paper on how
to moy. lbrward. The coordination with official development assistance. By mid 2002 actual multilateral
issue of secure funding for. the EGTT is also givin continued
precedence. Decision = fnancing delivered under the broad umbrella ofinitiatives set uP uDder the UNFCCC
CPl3/4 rcquests the GEF to develop a plan for scaling up fundinj
for transfer ofenyir_ = had leached a total of US$26 million. This is equivaleni to one week's spending on
onmentally sound technologies. Decision CMp3/l on the cleai
anism rciterates many of thc concerns relating to cstablishing
development mech_ =e flood defence in the Untted Kingdom
2rrHowever, for the firsttime,6nanc ministers
Lraselircs, approval of met at Bali during the climate change neSoti.tions to better understand the scale of
methodologies and monitoring that havc plagued the CDMlrom
its incepion. No the challenge and to explore the potential need for transfers. Decision CPl3/6 estab-
promises about th long-term future of thc CDM were
made. In relatioi to Joint
=
= lishes a review ofthe current 6nancial mechanism by th SBI with avi.wto facilltating
Implementation, there was agair littl in the way ofradical rcform. =l
colsistency in financilg activities and imProving the complementarity ofthe 6nen-
Important progress was also made in Baii towalds operationalizitrg
an Adaptation -, cial mechanism with other sources ofinvestment and financial flows, in addition to
Fund to developpoliciesandguidelines, recommendingstrategicprio.-ilie,
to theCOp/ exploring options lbr increasing iesource flows. Decision CPl3/7 establishes a struc-
MOP, developing criteria to ensure that governments seeking
iundingare administra_ ture for assessment ofthe work ofthe GEF, but falls short ofestablishing the increases
tively and financially capable, and approving funds for adalptation
grammes proposed by governmellts. A sixteefl-member Board
i.oje.t. "nd p.o- in resource flow that are arguably needed.
wili be composed of
two representatites of each of the UN,s 6ve regional groups, one representative
of
snrall island.developing states, oDe represeDtati;e of tl;e le;st
develoiing countries,
and two each from developed and developing couatries.zcs The
Adaitattn Fund ls 5 CONCLUSIONS
based on an Adaptatior Levy', i.e, 2 per cent ofcertified
emission reductions (CERs)
approved uDder the Clean Development Mechanism (CDM). This chapter has illu.trated several Points ofgeneral significance First, that although
This does not involve
national development assistaDce funds but is a global tax (or levy) customary international law remains imPortant in Providing a basis for solutiotls to
on aD internatiorEl
transaction. It is estimated lhat this.adaptation leyy,oD CDM problems ofatmospheric protection, the negotiation ofglobal treaty regimes is essen-
transactions will gen-
erate several hundred million pounds by 2012.
tial if detailed and comprehensive iDternational regulation is required' Second, that
Post-Kyoto, the two{rack framework ofAnlex l/non_Annex progress has been r,rade in refrning the oPeration of international regulatory and
I countries is likely
to include further commitments for deyeloping countrjes. supervisory regimes, of which the institutional machinery established by the 1985
Article t(bxii) ofthe Bali
Action Plan calls for 'nationally appropriate, mitigation actions Oione Convention and the Montreal Protocol is now among the most signifi'ant
to be u[dertaken.in a
measurable, reportable andverifiable manner,. This may
be compared to the commit_ examples.2r2 Third, that whaiever the legal status of the Precautionary principle or
ments in Article l0(b) ofKyoto protocol tol approach, its influeoce on the evolution of interDational regimes is aPParent iIl the
Formulate, implcment, publish and rcgularly update national and, examples covered by this chaPter. But the significance ofthis conclusion should not
where appropriate,
regional programmcs containing measurcs to mitigatc climatc be exaggerated.{ndorsing the PrinciPle does not answer the question what measures
ch"nge _e"su... to
facilitate adequate adaptation to climat. changc. "nd are to be taken, or by whom, and it is clar that substaltial Problems of global and
regional economic equity have to be addressed ifthe necessary action is to be under-
It is clear that, whilst the Bali Action plan remains informed
by the principle ofcom_ taken by a suficiently large number of relevant states. This conclusion only serves
mon but differentiated responsibility, developing countries areincreasingiy
expected to elnphasize that the use of legal co;lrrols and the machinery of international just-
to play a full role in mitigation efforts. The language used, although
,t"o.t oi lina_ ice cannot ofthcmselves ensure the attainment ofenvironmefltal goals endorsed by
ing comrnitments, indicates that concrete evidence ofprogress
wilibe required. The iEternational policymakers, given the substcntial changes in errelgy policy, industrial
stren8thening of the Dialogue on Long Term Cooperative Action
on Clim)rc Change activity, and technology which are needed, and the economic imPlications this may
to form an Ad hoc Working Crouploe is another step towards a more
inclusive have for developed and developir-,g states lt is thus not surPrising that the various

203 Dccision COP/Mp3/t. 2@ D..tioncplta,at2 2ro De.isionCPl3/8. 2rl Morgan, rrpra, 5.1.6. 2r2 SlPta, Ch 2, e.clion 5-