Free «The Kyoto Protocol and International Law» Essay Sample


In the contemporary world the theme of environmental concern has taken a global perspective leading to the enactment of legislative measures aimed streamlining human activities that have potential effect upon the environment. Most of the enacted legislative measures have been aimed at providing long term and short term measures for the emerging environment problems. Some of the laws that have been of major concern include international environmental law and the Kyoto protocol. International environmental Law describes a group of laws that have been agreed upon by participating nations in the form of treaties, statutes, agreements, conventions or common law as describes in other areas. Kyoto protocol on the other hand is essentially a legislative framework agreed upon by the United Nations Framework Convention on Climate Change, which is also in essence an international treaty focusing on greenhouse emissions.

Why the Ozone Treaty has worked so well

First, the ozone treaty proposed under the Kyoto protocol has demonstrated amicable efficacy in offering a practical response to the emerging environmental problems attributed to emissions. This has especially been seen with regard to the significant drop in emissions coming from those countries that are considered to be the highest emitters, for instance, the United States of America. Grub et al (1999, p.90)“…the US experience with its tradable permit system to control sulphur dioxide (and ozone-depleting substances) was widely seen to have been a success: emissions have been reduced at much lower cost than originally predicted, because of the flexibility of the permit systems and the incentives they give for innovation.” Moreover, this also shows that through provision of an achievable incentives system, which consequently motivates some of the higher emitters to come up with new and efficient strategies for handling emissions.

Secondly, the compliance mechanism has been partly enabled by the transition from previous conventions using trade provisions. These trade provisions have enabled most of the nations to become active participants by virtue of the fact that the conventions take due consideration of current trading issues. Sands (2003, p.944) observes that, “The 1992 Climate Change Convention and the 1992 Biodiversity Convention do  not use trade provisions as an international enforcement measure, although, when it comes into force, the 1997 Kyoto Protocol will make use of such under its compliance mechanism.” However, it is important to note that the trading provisions provided by the ozone treaty are primarily based on the establishments of context specific elements common to participating national governments in order to protect growing economies. Therefore, partner states are able to comply by the requirements while promoting business prowess at the same time, which gives it an upper hand than previous restrictive conventions.

Thirdly, the treaty significantly incorporates stringent mechanisms that spur commitment towards the achievement of desired emission levels. “Under the compliance regime for the Kyoto Protocol, elaborated by the Marrakesh Accords, the enforcement Branch of the Compliance Committee will have the authority to impose trade restrictions on parties as a sanction for non-compliance. In the case of non-compliance with emission targets, Annex I parties may be subject to a penalty of 30 per cent in the second commitment period and a bar on selling emissions reductions” (Sands 2003, p.944). In addition, the mechanisms are essentially based upon the inclusion of strategic elements aimed at streamlining efforts demonstrated by the signatory national governments. Hence, comparing the accompanying benefits against the repercussions of not following requirements of the treaties, majority of nations would rather promote the achievement of the desired status quo.

Fourth, the rules accompanying the negotiations for the treaties were falling under established modalities that ensure all parties, especially governmental authorities to incorporate the propositions as part of their national environmental standards. Moreover, this ensured that there was a level platform on account of responsibility demonstrated by all parties. “Whatever rules on participation in Emissions Trading, the national governments that are parties to the Kyoto Protocol remain ultimately responsible under international law not only for achieving their targets, but also for the correct behavior of those private entities under jurisdiction that they permit to engage in Emissions Trading” (Oberthur and Ott 1999, p.197). This shows that the established international environmental law provides a guide towards the establishments of specific elements entailed in the respective treaties, for instance, as seen in Kyoto Protocol. Hence, through such provisions like emission trading, the progression towards the achievement of climate change goals became a significant reality despite different contextual circumstances.

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Fifth, the ozone treaty has continued enjoying significant success by virtue of the theme if sustainable development under which most of its initiatives originate. Hence, by virtue of the commitment showed by the international community towards the achievement of sustainable development, this has had an evolutionary impact upon the existing international environmental law, and led to the development of new law (Boyle and Freestone 1999, p.6). Therefore, through establishment of a consistent framework based in sustainable development initiatives the formulation of critical common laws, international treaties and conventions like the Kyoto protocol holds great potential. This is especially because though establishment of common laws as necessary tools leading to sustainable development majority of participating governments are in a position to project the perceived impacts and weigh then against developmental initiatives of the nation using cost benefit analysis schemes.

Why the World is Still Arguing over enhanced Greenhouse Effect/Global warming/Climate change.

 First, there is a growing concern regarding the contextual appropriateness of the proposed mechanisms, which are prescribed under the international environmental laws and other treaties like Kyoto protocol. This is especially connected to the scientific model, which has been found to have missing links when it comes to correlating situational occurrences in different settings. “With this model, we propose that by means of reducing environmental problems to their scientific components, stripped as much as possible of the contextual detail (which is likely to divide nations) and combining these with the persuasiveness of moral arguments, the international policy process is initially assisted” (Boehmer-Christiansen & Kellow 2002, p.31). Therefore, this brings the notion that the proposed scientific models entail significant input both materially and financially in order for them to portray required efficacy in certain settings.

Secondly, the cost implications accompanying the regulations proposed by the international environmental laws and Kyoto protocol with regard to enhancing global greenhouse gas emissions are high. This primarily arises due to the economic ramifications the conventions have on the industrial activities, which have been attributed as major contributors to the emissions. Shogren (1999, p.27) observes that, “Almost all studies of the costs of the Kyoto protocol already assume that carbon reductions are implemented domestically with well-designed, cost effective policy tools like a carbon tax or a system of tradable permits.” This shows that there is a significant omission when it comes to projecting some of the cost measures. Moreover, there is increasing need to incorporate flexibility in meeting some of the projected targets in order to allow similar progression between developed and developing nations. For instance, “International flexibility is also key for U.S firms to meet domestic targets at lower cost by financing the upgrading of efficient energy facilities in developing countries. Limiting such opportunities for flexibility because of poor policy design, inherent problems in administering international policies or lack of interest on the part of other countries will mean potentially much higher costs” (Shogren 1999, p.27). Therefore, the need for more flexible target setting with due consideration of cost factors is essential in increasing efficacy.

Thirdly, the continuous increase of activities regarded as major contributors towards a decreased environmental potential is largely attributed to the current level of global warming trends. It appears that despite the institution of critical measure to control warming, these activities have been allowed to multiply equally all in a bid to achieve globalization. Clapp and Dauvergne (2008, p.39) observe that, “Global warming especially alarms bioenvironmentalists and social greens, because the three main greenhouse gases (carbon dioxide, methane, and nitrous oxide) arise from core economic activities (automobile use, electricity generation, factories, agriculture, and deforestation), while the main consequences (rising seas, severe storms, drought and desertification) are beyond the lifetimes of politicians and business leaders-perhaps occurring in 50 to 100 years.” This projection of the potential impacts upon the environment therefore call for the institution of more long term approaches, which will be capable of offering lasting solutions into the foreseeable future as opposed to short term approaches aimed at giving part-time solutions.  Clapp and Dauvergne (2008, p.39) further add that, “And the impacts, when they are most severe, will be mostly felt by the poor, marginalized peoples of the world.” Hence, it is important to craft holistic approaches, which are capable of catering for different economic classes by focusing on both industrialized and non industrialized entities.

Fourth, the institution of the Asia Pacific Partnership on Clean Development and Climate, which is also known as the AP6, has significantly affected the operational capacity of the previous Kyoto protocol. The AP6 was essentially initiated by the United States of America in 2005 (Bonyhady, 2007, p.32). As a result, Australia joined in to support it leading to the emergence of a major debate. In this framework, it becomes relatively voluntary and non binding for partners to participate in activities reducing pollution levels and greenhouse emissions with an aim of fostering economic development, which led to more partners joining aboard: China, Japan, China, South Korea and India (Bonyhady, 2007, p.32). This presents significant threat to the achievement of reduction of emission standards with regard to previous stringent Kyoto Protocol convention. Bonyhady (2007, p.33) observes that, “A striking feature if the AP6 is the conspicuous absence of the law. The partnership is not a formal treaty. Rather, it is merely a voluntary framework for cooperation that provides no binding emission reduction targets or timetables, no price signals, no new carbon markets and no enforcement mechanisms.” Therefore it is paramount that there is still need to formulate and implement better conventions that are capable of reducing emission levels through institution of more binding approaches.

Finally, there is exists significant uncertainty regarding measures out in place to ensure deliberations of the Kyoto Protocol are achieved within the stipulated timeframe.  For instance, Kheng-Lian (2009, p.344) prompts that, “There remains considerable uncertainty as to what will happen to the carbon market upon the expiry of the Kyoto Protocol obligation period on 31 December 2012. It is not yet clear what targets will be imposed (if any) or whether the Kyoto Protocol will be replaced by another framework for emissions trading, Consequently, it is not yet clear whether there will be a formal or informal market for CERs and other Kyoto rights beyond December 2010.” This therefore introduces a debate regarding the sustainability of the mechanisms proposed under the Kyoto Protocol since if by any chance they fail to meet the targets by the end of its timeline, then it implies that greenhouse gases will increase significantly leading to more occurrences associated with global warming.


In essence, there is significant evidence showing that indeed there exists a significant relationship between international environmental law concepts and Kyoto Protocol. This is primarily because the establishment of the ozone treaty deliberations was as a result of the existing platform provided by the international environmental law jurisdictions. Hence, the participation of national governments together with a consistent committee of experts leads to the significant setting of realistic emission reduction targets with an aim of reducing the impact of global warming. Moreover, there are significant milestones achieved by the ozone treaty; however, in the present setting there are still constant calls on account of the emission levels seen in these nations. Some of the milestones have been reached through incorporation of trading provisions, institution of measurable compliance mechanisms, and setting of sustainable development initiatives with an aim of increasing focus on the different environmental phenomena. On the other hand, the constant calls for the institution of better global warming initiatives primarily arise from cost implications based on economic impacts, contextual appropriateness, constant increase of environmentally unfriendly activities and the recent incorporation of the Asia Pacific Partnership on Clean Development and Climate, all of which show different opinions.


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