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By Kieren Keke
The attention climate change received in the United States following Hurricane Sandy, which President Barack Obama underscored in his first speech after winning re-election, has raised hopes that the world’s largest historical emitter of greenhouse gases will fully join the international community in tackling the crisis.
And since success will require all nations to cooperate, the time is ripe to explore a question that is fundamental to international relations: Why do countries recognize international law at all?
The inquiry is particularly urgent for the vulnerable nations already struggling to manage extreme weather and rising seas due to climate change; some even face total inundation unless bold action is taken to reduce emissions soon.
Harold Koh, a leading expert in the area and a top White House adviser, has made a compelling case that countries come to observe international legal principles in the course of a dynamic process whereby they interact, interpret emerging norms, and incorporate them into their domestic systems. Eventually, new national interests and values result.
The view seems to suggest that, sooner or later, the standards necessary to manage climate change will effectively, if not literally, become part of international law.
The trouble is, the U.N. climate change talks have shown that the process by which countries come to accept international norms works in both directions, which is to say, support can weaken as surely as it can grow. ??
Negotiators should keep this in mind when they consider the fate of the Kyoto Protocol – the only legally binding international agreement with quantifiable targets for reducing the greenhouse gas emissions responsible for climate change – at the upcoming U.N. climate change conference in Doha, Qatar.
The treaty, which was signed in 1997 and took effect 7 years later, for the first time established obligations for developed countries to reduce emissions and recognized their responsibility for the crisis. It also created rules for reporting emissions and compliance.
Today it boasts some 191 parties, including all major industrialized nations with the important exception of the U.S.??
The absence of the world’s largest economy from Kyoto was a major setback, but notwithstanding, Europe pressed ahead with a plan to lower emissions using a market-based trading scheme in 2005. Even though the U.S. did not ratify the agreement, some of the country’s most populous states went on to develop their own systems to buy and sell emissions credits.
The process arguably reached a high point at the 2007 U.N. climate conference in Bali, when developed countries acknowledged the urgent need to help vulnerable communities adapt to climate change impacts and committed to providing the resources necessary to help poor countries build renewable energy systems. The U.S. said it was on board and expectations were high that President Obama and other world leaders would sign an ambitious treaty two years later.
Much has been written about why the Copenhagen climate conference was ultimately unable to deliver, but while a full analysis of the failure is beyond the scope of this treatment, it is evident that the episode marked the beginning of an erosion of the international climate change regime.
In late 2010, for example, Japan gave notice that it would not enter into the second commitment period under the Kyoto Protocol and Russia made the same announcement in 2011. Shortly after, Canada, a major greenhouse gas emitter, formally submitted its intention to withdraw from the treaty completely.
Late last week, Australia announced that it is ready to accept new commitments under Kyoto if certain conditions are met. New Zealand, however, which also has outsize per capita emissions, has confirmed that it will not be joining the second commitment period after its first set of obligations expire at the end of the year.
Conventional wisdom holds that the U.S. will face fierce opposition to any national climate legislation for some time to come. ?
The ongoing regulatory uncertainty has contributed to a steep decline in the value of emissions trading credits and undercut investments in clean energy technologies. ?
What’s worse, a series of reports have shown that even if all emissions ceased tomorrow, coral reefs and other critical ecosystems would still face severe degradation, and rising seas would continue to threaten low-lying islands.
However, though some impacts may now be unavoidable, the international community can still take important legal steps in Doha to prevent further deterioration of the international response to climate change and to keep the crisis from spinning beyond control.
WHAT NEEDS TO BE DONE
The Alliance of Small Island States, a coalition of 43 island and coastal nations that are highly vulnerable to climate impacts, has outlined detailed proposals that would help bring environmental integrity to the climate change regime and restore confidence that the international community can come together to solve global crises.
First, developed countries need to bring their emissions reduction targets in line with the latest scientific recommendations.
Second, participation in emissions trading systems should be limited to those countries with legally binding obligations to act. Allowing selected parties to enjoy the benefits of trading without making commensurate commitments risks undermining confidence in the entire process.
Third, we are calling for a second commitment period under Kyoto that is 5 years in length. A 5-year duration would avoid locking in inadequate targets at a time when we know countries need to be doing everything they can to reduce emissions and dovetails with an upcoming scientific review that will indicate the level of reductions needed based on the latest research.
Fourth, we are urging parties to resolve the problem of surplus credits in the emissions trading system. If the issue is not adequately dealt with, it is possible that countries could technically meet their obligations even as their emissions rise dramatically.
Finally, we are calling for the new commitments to be applied provisionally so that they are legally binding starting January 1, 2013.
The effort to address climate change no doubt will experience many more advances and setbacks. International lawmaking, after all, is not a linear process. But with the impacts growing more severe, and the time to act slipping away, the responsible way forward is to reinforce the gains we have made in law and keep pushing for more.
Kieren Keke is the Minister of Foreign Affairs for Nauru, which currently chairs the Alliance of Small Island States at the United Nations.