There is a plethora of research, both applauding and criticising the performance of the UNFCCC and the Kyoto Protocol. The greatest achievement of the UNFCCC and the Kyoto Protocol has been their attempt to address the global environmental situation as a multilateral political issue,208 in which countries from all around the world participate, negotiate and reach agreement. Also important is the proactive approach of the UNFCCC and the Kyoto Protocol; for each session of the COP, the key issue has been identified in advance and preparations made in order to address that issue. In this regard, the regular sessions of the COP, CMP and other initiatives have helped guide the process in a highly organised manner.
The significant success of the UNFCCC and the Kyoto Protocol can be seen in their instruments or methods, such as the Clean Development Mechanism, emission trading and joint implementation. Studies have shown that, while each instrument has its own advantages and disadvantages, they have produced a positive outcome in the form of emissions reduction. It may still be asked, where a country has all three options, which one should it pursue. One study sought to identify the optimum solution for a steel plant needing to meet emission allowances
206 UNCC, Marrakech Climate Change Conference—November 2016 (UN, 2017),
<http://unfccc.int/meetings/marrakech_nov_2016/meeting/9567.php>.
207 Saleemul Huq, ‘Bangladesh’s Role in the Climate Change Negotiations’, The Daily Star (online), 17
November 2016, <https://www.thedailystar.net/opinion/politics-climate-change/bangladeshs-role-the-climate- change-negotiations-1315795>.
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with a low cost for reduction measures. Of three options evaluated, China has adopted CDM for internal changes in plant as well as the EU ETS. The study found that (a) the adoption of the EU ETS would help in reducing CO2 emissions,209 (b) the CDM would help in meeting
emission targets at low cost,210 and (c) changes in the plant were a good solution for abatement cost and emissions reduction.211 These findings can be useful for practitioners in deciding
which mechanism provides better value.
Another success of the UNFCCC and the Kyoto Protocol is that they led countries or regions to start their own initiatives, such as establishing carbon markets, emission trading schemes and long-term environmental plans. For example, the EU started its emission trading scheme (ETS) on 1 January 2005, which has since been extended to the industrial212 and aviation sectors.213 Germany is another example, having set a very high target of a 25% reduction in emissions (as compared to the five per cent set by the Kyoto Protocol). To this end, Germany has also implemented an environmental tax linked with non-wage labour costs. The ultimate goal of this policy is not only to reduce CO2 emissions, but also to help reduce unemployment
in the country.214
Besides the success stories, there are several issues and challenges that have influenced the performance of the UNFCCC and the Kyoto Protocol in meeting their objectives and achieving climate justice. David G. Victor has criticised the performance of the Kyoto Protocol; according to Victor, the failure of the Protocol is largely caused by the way it has been presented215 and management issues at events such as the COPs; for example, the agendas are regularly prepared just a few days prior to the COPs.
If the Kyoto Protocol has been criticised for not achieving its objectives, then the role of membership-related issues has also been an important challenge throughout the journey. For
209 Edwin Woerdman, The EU Greenhouse Gas Emissions Trading Scheme (Chapter 3), (May 2015), Working
Paper Series in Law and Economics, <https://www.rug.nl/about-us/who-are- we/sustainability/greenoffice/cursus/myth5/ssrn-id2654641.pdf>
210 United Nations Environment Programme, Clean Development Mechanism,
<https://unfccc.int/files/cooperation_and_support/capacity_building/application/pdf/unepcdmintro.pdf>
211 Lynette Molyneaux, John Foster and Liam Wagner, Is there a More Effective Way to Reduce Carbon
Emissions (University of Queensland, 2010) <http://www.uq.edu.au/economics/eemg_/pdf/04.pdf>
212 Wang et al., above n 142. 213 Nantke, above n 143.
214 Christoph Bohringer, Klaus Conrad and Andreas Löschel, ‘Carbon Taxes And Joint Implementation’ (2003)
24(1) Environmental and Resource Economics 49.
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example, the Kyoto Protocol can establish emission reduction obligations only for member countries, who cumulatively produce only 33% of the GHG and CO2 emissions globally.216
Thus, the producers of 67% of global emissions have not been covered by the Protocol. The key reason for this is the absence, or withdrawal, of countries who were supposed to be in the list of obligated countries.
The Kyoto Protocol has also been criticised for creating unfair climate action burdens, in placing binding emissions limitations on developed nations while permitting developing countries to participate on a voluntary basis over the period 2008–2012.217 Most Annex 1
countries could not meet the emission reduction targets set by the Protocol; meanwhile, non- Annex 1 countries (developing countries such as China, India and Brazil) were not required to give any binding commitments to reduce their emissions to meet specific targets.218 Partly as a result of this, some industrialised countries have withdrawn from the Protocol, including the USA and Canada. As there is no binding commitment for developing countries, it is predictable that carbon emissions by these countries have continued to increase and have become a major issue. For example, while India is considered a developing country, between 1990 and 1998 it experienced a 57% increase in emissions and is now the fifth largest carbon-emitting country in the world.219 In the case of China, carbon emissions increased 39% during the period 1990– 1996, making China the second largest carbon-emitting country behind the United States.220 China is also focused on establishing heavy chemical industries and transportation as key step towards realising industrialisation.221 As a counties develops, its cities grow and more energy is consumed. If these countries are not bound by commitments, they will eventually overtake the currently industrialised countries as the highest GHG emitters and have a significant impact on the global climate. Moreover, neither the UNFCCC nor the Kyoto Protocol follow a per
216 A.Ghezloun, A. Saidane, N. Oucher and S. Chergui, ‘The Post-Kyoto’ (2013) 36 Energy Procedia 1. 217 Conference of the Parties to the Framework Convention on Climate Change, Kyoto, Japan, Dec. 1–10, 1997,
Kyoto Protocol (Jan.1998), UN Doc FCCC/CP/1997/ L.7/Add.I, art 3. Cited in Ann E. Prouty, ‘The Clean Development Mechanism and Its Implications for Climate Justice’ (2009) 34(2) Columbia Journal of Environmental Law 513.
218 T. Hill, ‘UN Climate Change Conference in Durban: Outcomes and Future of the Future of the Kyoto
Protocol’ (2011) 7 Macquarie Journal of International and Comparative Environmental Law 92. Cited in Nikhil R. Ullal, ‘A Successor For the Kyoto Protocol: Challenges and Options’ (2013) 17 New Zealand Journal of Environmental Law 93.
219 Ibid. 220 Ibid.
221 Shen Longhai, ‘Correct Choices for China: Energy Conservation, a Cyclic economy, and a Conservation-
Minded Society’, in Ernesto Zedillo (ed), Global Warming Looking Beyond Kyoto (Brooking Institution Press, 2008) 217.
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capita carbon emission principle, as the exclusion of India and China from the Annex 1 group, and the inclusion of the Netherlands, Belgium, Luxemburg and other countries with lower per capita carbon emissions indicates. Another significant criticism is the Protocol’s failure to bind the United States to reduce carbon emissions, notwithstanding that the United States is the largest emission producer in the world. The United States refused to sign the Kyoto Protocol, pointing to the fact that there was no commitment placed upon the largest developing countries, such as India and China.222
The research findings also indicate that the availability of multiple options (mechanisms) influences the level and direction of support for developing countries. As discussed above, the availability of emission trading may discourage countries and companies from engaging in CDMs, which are essential for developing countries. One possible solution is that, as with joint implementation, emission trading should be country-specific or, alternatively, that CDM initiatives should attract more incentives, so that the objective of sustainable development in developing countries can be achieved.