Effect of Kyoto Protocol in Sustainable development

Existence and Effect of International Conventions dealing with Sustainable development With special reference to Kyoto Protocol

Shashank Sahay, Research Associate

International Law is defined as the law governing sovereign countries. It has also been called the law for the world community, since world today comprises of the community of mankind living in interdependent world society. Enormous changes in global communication, travel, migration of people and interdependent and liberal economic system has given a new dimension to the world society ((Paper presented at workshop on “Emerging Role of International Law” 8-9 January 2005 at Army Institute of Law, Mohali Co sponsored by Indian Society of International Law.)). The UN Declaration of Human Environment 1972 and subsequent declarations like the World Charter for Nature 1982, Rio Declaration on Environment 1992 and the Johannesburg Declaration 2002 on Sustainable Development provide the idea and program for the world order for man’s attitude nature and economic development. Environment protection and sustainable development are goals of modern economic philosophy. India has incorporated most of international environment laws contained in the 1972 UN Declaration on Human Environment in Environment Protection Act 1986 and Environment Protection Rules, 1986. Thereby it seems economic growth with sustainable development seems the goal of modern environmental law ((Prof. S Bhatt, International Environmental Law, A.P.H. Publishing Corporation, p. 25-26)).

Agenda 21, U.N. Conference in Environment and Development

At Rio de Janeiro, Brazil, 3- 14 June 1992 Agenda 21 was adopted which addresses the burning problem of today’s world. The agenda 21 contains development and environmental objectives for purpose of substantial development. In order to cover incremental costs for the actions the developing countries have to undertake to deal with global environmental problems and to speed up works on sustainable development.

International Commitments under Agenda 21 of U.N. Conference on Environmental and Development held in June 1992

The Following subject concerns bilateral, multilateral and universal treaty :-

        i.            Further development of international law relating to sustainable development giving proper balance between environment and developmental;

      ii.            The need for framing international instruments by taking into consideration the special needs for developing countries;

    iii.            The international instrument to regulate and promote the global participation in the matter of environment and economic trade/ development;

    iv.            Technical assistance to the developing countries, with the view to entrance its legislative capabilities

      v.            Codification of international Law to accelerate sustainable development, and setting up of International Law Commission ((Available at http://sustainabledevelopment.un.org/content/documents/Agenda21.pdf)).

Special Objectives under Agenda 21

There are special objectives under Agenda 21 of U.N Conference on Environment and Development held at Rio de Janeiro, Brazil. These are as follows:-

        i.            Address and discuss the difficulties which prevent environmental and economic development.;

      ii.            The whole world is summoned to set priorities for future law making on sustainable development at global, regional and national levels;

    iii.            Effective participation of all countries in respect of international sustainable development programs;

    iv.            Gradual development of international law, instruments, negotiations and agreements to match the international standards;

      v.            Ensure transparency in the use of trade measures related to environment ;

    vi.            Ensure effective and prompt review system regarding international agreement, negotiations concerning the developing countries;

  vii.            Effective institution for implementation of unilateral, bilateral and multilateral agreements relating to trade and environment;

  1. Effective settlements of disputes

    ix.            Promote and encourage the General Agreement on Trade and Tariff (GATT) and United Nations Conference on Trade and Development (UNCAD).

It is submitted that the Agenda 21 of U.N. Conference on Environment and Development, 1992 insist upon a new global partnership, effective participation of the developing countries, codification of the International law, so that sustainable development can be achieved. Until, the International Cooperation and assistance rendered by the developed countries, the problems of downtrodden countries withhold the committed sustainable development ((Dr. S.C. Tripathi, Environmental Law, Central Law Publication, p. 464)).

Kyoto Protocol

This English Conference of the Parties Third Session Kyoto was held from 1st to 10th December, 1997. The parties to this protocol were parties to the United Nations Framework convention on Climate Change. In pursuit of ultimate objective of the convention as stated in its article 2, recalling the provisions of the conventions, being guided by Article 3 of the Convention pursuant to Berlin mandate adopted various measures in dealing with the current environmental problems ranging from its provisions as stated in  Article 1 to Article 27 that includes Quantified Emission Limitation, Parties to control Emissions, Jointly fulfillment of commitments, Estimation of Emission System, Submission of Annual Information, Expert Body to consider implementation of measures, Developed Countries to Provide assistance, etc ((Ibid pg 469)).

Kyoto Protocol Effect

The Kyoto Protocol, the world’s most far reaching environmental treaty took effect on 16th February. 2005 with 34 industrial countries legally bound to slash pollution causing global warming.                    Notably, the treaty took effect at midnight at U.N headquarters in New York. The Treaty required industrial countries as a whole to cut carbon- di- oxide gas emissions by 5.2% before 2012 compared with their 1990 levels, with targets set individually for each nation. Australia is the only major industrial country which has rejected Kyoto. Australia and Unites States together amount for about 30% of global green house gas pollution. After U.S withdrawal, Kyoto could not come into effect until ratification in 2004 by Russia which ensured that an adequate percentage of industrialized nation’s pollution produce were on board.

Meanwhile, U.N Environment Program warned that the effects of climate change may lead to Earth spinning out of control and urged immediate steps to halt global warming ((Refer Hindustan Times, daily Newspaper dt. 17/2/2005)).

Kyoto Protocol Fact File

The salient features of Kyoto Protocol are as follows:-

        i.            It legally commits industrialized countries which have signed and ratified it to trim their output of six green house gases

      ii.            The green house gases are carbon dioxide, by product of burning oil, gas and coal, methane Nitrous Oxide, Hydrofluoro carbons, Perfluoro carbons and Sulphur Hexafluoride.

    iii.            The Protocol’s framework was adopted on 12th December, 1997 in Kyoto by 159 countries, members of the 1992 United Nations Framework Convention on Climate Change (UNFCCC).

    iv.            After Kyoto Protocol which would end in 2012, negotiations would begin under the UNFCCC on the post 2012 pact. Parties will be under pressure to make far deeper cuts, to include China and India in the targeted reductions, to carry coal the U.S back in the multilateral fold ((Dr. S.C. Tripathi, Environmental Law, Central Law Publication, p. 470)).

Sustainable Development from Stockholm to Rio de Janeiro to Johannesburg

In 1972 at Stockholm Conference the representatives of the citizens of the world agreed on the urgent need to respond to the problems of environmental deterioration. Then in 1992, at United Nations Conference on Environment and Development, held in Rio de Janeiro, the world community agreed that the protection of environment and social and economic are fundamental to sustainable development based on the Rio Principles. To achieve such development, the summit adopted the global program. Agenda 21 and the Rio Declaration, to which the world community reaffirms its commitment. The Rio Summit was regarded as a significant milestone that set a new agenda for sustainable development.

It is to be noted that between Rio de Janeiro and Johannesburg the world community witnessed a number of summits under the banner of the United Nations including Monterrey Conference on Finance for development as well as Doha Ministerial Conference.

At the Johannesburg meet the world achieved much in bringing together a rich tapestry of people and views in a constructive search for a common path towards a world that respects and implements the vision of sustainable development. At the Johannesburg Summit it was also affirmed that though we have achieved significant progress towards a global consensus and partnership amongst all the people of our planet, but the sustainable development in true sense is yet to be achieved ((Ibid)).


Climate Change – Rich Countries preach but don’t practice

According to the official reports rich countries continue to pollute more than ever, and this is evident from the greenhouse gas emissions (GHGe) figures released by the UN Framework on climate change. Developed Countries emitted 8-12% more GHGe in 2007 than in 1990, the base year for calculating emissions according to the Kyoto Protocol, despite many of them had agreed to cut back emissions under the Kyoto protocol’s mandate. The US’s CO2 emissions have increased by 20% in 17 years. Yet, India with its track record of comparatively less pollution is a target of rich countries. It is accused of aggravating climate change as an emerging economy ((Refer English Daily, “Times of India”, dt. 30/10/2009)).

Given this depressing atmosphere for multilateral negotiations on climate change, India and China have demonstrated their intention to take action on their own, by signing a memorandum of understanding for greater co operation and sharing of know-how to tackle global warming and related environmental issues. These columns have talked about the importance of opening many fronts, especially bilateral and regional – in order to deal with climate change issues in the best possible way. The U.N mooted multilateral talks among 192 countries that are signatories to the framework convention on climate change have their place in creating an opportunity for global leaders to meet and thrash out solutions and generate multinational debate and discussion among legislators, civil society groups and the media. However, despite creating worldwide awareness and vocal impact on the ground is almost zero, even negative as is seen from the record of developed countries.

In a short run, bilateral talks and agreements may have greater potential to achieve targets since attention is given to specifics and it is possible to institute mechanism for stock taking and monitoring with its dirty coal plants and increasing number of usage of vehicles leading to air pollution. China in the recent time has had to grapple with serious air pollution. One of the ways that it is trying to meet the challenge is through clean technology solution and it is a good platform to flag of India- China Cooperation on this front.

Both India and China have Research and Development (R & D) as well as manufacturing expertise, and if they cut back on emissions as well as other forms of pollution it would be a substantial contribution to the well being of their populations respectively. Plenty could be achieved by sharing tools and strategies and learning from each other’s experiences.

Development of Environment Protection at an International Level

Author: Nivedita Saxena, Research Associate

Importance of International Law

International law is important for environmental protection majorly in the following ways:

  1. Problems that are Trans-boundary and global in nature, require international solutions, implying that international legal regulations in some form are desirable or necessary.
  2. International agreements generate standards which can then be incorporated by the national laws

Nature of International Instruments

A fundamental principle under the Vienna convention on the law of the Treaties 1969 is that the states may only be bound with their consent, which is only fully given once the convention has been ratified. Thus, Conventions do not create general obligations.  The various terms, ‘treaties’ , ‘conventions’ and ‘agreements’ all mean the same thing and are included in ‘hard law’. A ‘Protocol’ also has the same legal force, although it is a sub-agreement to a treaty, generally used to flesh out or amend the treaty. For example the 1997 Kyoto Protocol contains the carbon emission reductions that states committed themselves to agreeing to in the 1992 Framework Conventions on Climatic Change.

‘Declarations’, ‘Principles’ , ‘Recommendations’ and ‘standards’ are non binding in form, generally non- enforceable in nature and are included in ‘soft law’. The 1992 Rio Declaration on Environment and Development and its Stockholm predecessors of 1972 remain two of the most important environmental law instruments in international context.

Stockholm Conference

The United Nations Conference on the Human Environment (Stockholm, 1972) was the first occasion at which the international community of states united to discuss international environmental issues. Although no treaty was signed, the conference adopted an Actions Pal of 109 recommendations and a Declaration of 26 Principles. It also adopted a resolution on institutional and financial arrangements that led, amongst other things, to the establishment of the United Nations Environment Programme (UNEP).

The Stockholm Declaration is the foundation of modern international environmental law. Its principles are largely aspirational rather than being mandatory, and imposes few duties on the states.Most importantly, the Stockholm Conference marked the beginning of a rapid increase in the number of international environmental agreements concluded.

Montreal Protocol

The Montreal Protocol on Substances that Deplete the Ozone Layer (a Protocol to the Vienna Convention for the Protection of the Ozone Layer) in an international treaty designed to protect the ozone layer by phasing out the production of numerous substances believed to be responsible for ozone depletion.

The Montreal Protocol controls the production and consumption of specific chemicals, none of which occur naturally: CFCs, halons, fully Halogenated CFCs (HCFCs), methyl bromide, and similar chemicals. It sets specific targets for reduction and a timetable for doing so.  The Protocol originally required parties other than developing countries to freeze consumption and production of CFCs at 1986 levels (the base year), to reduce them by 20 per cent and then an additional 30 per cent by 1999, and to freeze consumption of halons at 1986 levels. The formula of targets and timetables has been subsequently employed in other international agreements controlling air pollutants and in the Kyoto Protocol to the UN Framework Convention on Climate Change ((Introduction to ‘Vienna Convention for the Protection of the Ozone Layer, Vienna, 22 March 1985 & Montreal Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September 1987” by Edith Brown Weiss, Francis Cabell Brown Professor of International Law, Georgetown University Law Center. Available at [http://untreaty.un.org/cod/avl/ha/vcpol/vcpol.html], Last visited on 28 Aug 2013)).Globally there has been a significant progress, a complete phase-out (including within developing countries) of ODS’s is expected to occur by 2040 ((Report by Environmental and Energy Study Institute, Washington; Authors: David Sher and Amy Sauer. Available at [http://www.eesi.org/files/100609_montreal_brief.pdf], Last visited on 28 Aug 2013)).

Hague Declaration

The Hague Declaration on the environment was brought about at Hague on March 11, 1989 and it was signed by representatives of twenty-four ((Australia, Brazil, Canada, Cote d’Ivoire, Egypt, France, Federal Republic of Germany, Hungary, India, Indonesia, Italy, Japan, Jordan, Kenya, Malta, Norway, New Zealand, the Netherlands, Senegal, Spain, Sweden, Tunisia, Venezuela, and Zimbabwe))states.

The signatories acknowledgedpromoting the following principles ((Available at Resources on Ministry of Water Resource website. [http://wrmin.nic.in/index3.asp?subsublinkid=292&langid=1&sslid=375] Last visited on 29 Aug. 13)):

  • The principle of developing, within the framework of the United Nations, new institutional authority, either by strengthening existing institutions or by creating a new institution which, in the context of the preservation of the earth’s atmosphere, shall be responsible for combating any further global warming of the atmosphere and shall involve such decision making procedures as may be effective even if, on occasion, unanimous agreement has not been achieved.
  • The principle that this institutional authority undertake or commission the necessary studies, be logical information – including facilitation of access to the technology needed – develop instruments and define standards to enhance or guarantee the protection of the atmosphere and monitor compliance herewith
  • The principle of appropriate measures to promote the effective implementation of and compliance with the decisions of the new institutional authority, decisions which will be subject to control by the International Court of Justice
  • The principle that countries to which decisions taken to protect the atmosphere shall prove to be an abnormal or special burden, in view, inter-alia of the level of their development and actual responsibility for the deterioration of the atmosphere, shall receive fair and equitable assistance to compensate them for bearing such burden. To this end mechanisms will have to be developed
  • The negotiation of the necessary legal instruments to provide an effective and coherent foundation, institutionally and financially, for the aforementioned principles.

The Rio Conference

The UN Conference on Environment and Development (Rio, 1992) provided a platform for putting flesh on the bones of sustainable development in International Law and to address the concern, noted in the Brundtland Report ((Our Common Future, 1987: the ‘Brundtland Report’ by the World Commission on Environment and Development. Available at [http://www.un-documents.net/wced-ocf.htm] Last visited on 29 Aug. 13)), of the ‘sectoral’ and ‘piecemeal’ nature of of international environmental Law. The legal texts to emerge were:

(a)   The Rio Declaration ((Available at [http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163] Last visited on 29 Aug. 13)).

(b)  The Convention on Biological diversity ((Available at [http://www.cbd.int/doc/legal/cbd-en.pdf] Last visited on 29 Aug. 13)).

(c)   The Framework Convention on Climatic Change ((Available at [http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf] Last visited on 29 Aug. 13)).

(d)  Agenda 21 (an 800 Page global action plan on development and environment)

The Rio Declaration consisted of 27 principles ((The 27 Principles available on [http://www.unep.org/Documents.Multilingual/Default.asp?documentid=78&articleid=1163], Last visited on 29 Aug. 13))intended to guide future sustainable development around the worlds ((‘Rio Declaration on Environment and Development’ at Wikipedia. Available at [http://en.wikipedia.org/wiki/Rio_Declaration_on_Environment_and_Development] Last visited on 29 Aug. 13)).

It adopted an agenda for environment and development in the 21st Century. ‘Agenda 21’, signed at the 1992 Rio ‘Earth submit’, is essentially a lengthy blueprint for realising sustainable development. Agenda 21: A Programme of Action for Sustainable Development contains the Rio Declaration on Environment and Development, which recognizes each nation’s right to pursue social and economic progress and assigned to States the responsibility of adopting a model of sustainable development; and, the Statement of Forest Principles ((History of Sustainable Development in the United Nations,  Rio +20 United Nations Conference on Sustainable Development. Available at [http://www.uncsd2012.org/history.html])).

In International Law, sustainable development as a legal concept has tended to be found mostly in ‘soft law’ documents i.e. documents that are not directly binding and which have policy implications rather. The most important here is ‘Agenda 21’, signed at the 1992 Rio ‘Earth submit’. However, beyond agreement on basic procedural requirements, of the kind referred to in the Rio Declaration, there is little sign yet of anything in the nature of an international consensus on what sustainable development might mean substantively ((Ball & Bell on ‘Environmental Law: The Law and Policy Relating to the Protection of the Environment’ Fifth Edition, Oxford University Press. Chapter on Environmental values and environmental law, Pg 40)).

Like Sustainable development, precaution or precautionary principle has found only limited support at the international level, despite many commentators arguing that it has reached the status of a principle of customary international law. Nevertheless, a measure of international consensus on the principle was reached in the Rio Declaration, Principle 15 of which provides- “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation ((Ball & Bell on ‘Environmental Law: The Law and Policy Relating to the Protection of the Environment’ Fifth Edition, Oxford University Press. Chapter on Environmental values and environmental law Pg 51)).”

Kyoto Protocol

The Kyoto Protocol ((Available at [http://unfccc.int/resource/docs/convkp/kpeng.pdf] Last visited on 29 Aug. 13))is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its parties by setting internationally binding emission reduction targets. It contains the carbon emission reductions that states committed themselves to agreeing to in the 1992 Convention. It was adopted in Kyoto, Japan on 11 December 1997 and entered into force on 16 February 2005. The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh, Morocco, in 2001, and are referred to as the “Marrakesh Accords”. Its first commitment period started in 2008 and ended in 2012.

Development up to and beyond Rio suggest a maturing of international environmental law, although numerous problems remain. As regards treaty law, many issues continue to be dealt with sectorally.