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University of New South Wales Law Journal |
[2] Australia has participated in negotiations in the knowledge that the
issue is both an economic and environmental one, and on this
basis only a global
response can ultimately prove to be effective. The following is a brief outline
of the development of the international
response to climate change and some of
the current key issues.
[4] The UNFCCC sets out the broad parameters for countries collectively, over time, to stabilise greenhouse gas concentrations to a level that would prevent dangerous anthropogenic interference with the climate system. The UNFCCC also establishes several principles which shape the ongoing negotiations. One is the recognition of the common but differentiated responsibilities of developed and developing countries, and art 3.1 of the UNFCCC states that developed countries should take the lead in combating climate change. This specification of the roles of developed versus developing countries is viewed by some commentators as being a serious flaw in the UNFCCC, particularly because the it does not also clearly state that developing countries should follow the lead of developed countries, even though this was the intention at the time it was negotiated.
[5] In 1995, at the First Conference of the Parties to the UNFCCC (‘COP 1’), Parties agreed to a negotiating mandate for the development of a protocol to the Convention. The ‘Berlin Mandate’,[2] as it became known, recognised that existing commitments under the UNFCCC would be insufficient to meet the Convention’s ultimate objective of stabilising greenhouse gas concentrations at a safe level; what was needed was a more clearly defined pathway. In this regard, the Berlin Mandate called for a strengthening of the commitments of developed countries. The issue of how developed countries’ commitments should be shaped was to an extent driven by the release in 1995 of the IPCC Second Assessment Report.[3] The increasing certainty about the science of climate change, particularly in terms of climate projections over the next century and the impacts of likely temperature and rainfall variability, provided the impetus for the Second Conference of the Parties to the UNFCCC (‘COP 2’) to embrace a binding targets and timetables approach, rather than a ‘softer’ approach of policies and measures. At the Third Conference of the Parties to the UNFCCC (‘COP 3’) in December 1997, Parties agreed to adopt the Kyoto Protocol to the UNFCCC (‘Kyoto Protocol’),[4] which sets out mandatory targets for greenhouse gas emissions for developed countries, relative to a 1990 base year.[5] Since then, negotiations have continued in an effort to finalise the detailed rules by which those targets and other commitments under the Kyoto Protocol can be met.
[6] There are two important features of the negotiations that warrant comment. The first is the importance of the science. The interplay between the development of the science of climate change and the development of the legal and institutional pathways is a key feature of these negotiations. The science has proved to be critical in providing the justification for an international approach to a problem that traverses territorial boundaries. Australia has supported the role of the IPCC as an independent scientific authority on climate change.
[7] Another key aspect of the negotiations is the concept of equity.
In taking a targets and timetables approach, the critical question
becomes on
what basis commitments should be allocated to countries. During the Kyoto talks,
Australia successfully argued for targets
to be allocated on the basis of an
equality of effort, which led to differentiated targets. Differentiated targets
allow for consideration
of an individual country’s national circumstances,
economic structures and development needs, and the recognition of these
in the
terms of their participation. For example, Australia’s target for the
first Kyoto Protocol commitment period (2008-12) reflects our
economy’s significant dependence on fossil fuels and relatively high rate
of population
growth. Australia will continue to advocate the principle of
equality of effort in the negotiations.
[9] Although the future direction of climate change negotiations has
become more uncertain, key implementation elements of the Kyoto Protocol
– which have stumped the international community thus far – remain
to be addressed regardless of the framework under
which they sit. From
Australia’s perspective, they revolve around the following key issues:
commitments from all major emitters;
unrestricted market-based mechanisms; a
facilitative compliance regime; a sensible and fair approach to carbon sinks;
and assistance
for the most vulnerable countries to adapt to climate change. The
ongoing international negotiating effort will take place against
the backdrop of
the 2001 IPCC Third Assessment
Report,[6] which shows a further
firming in the state of knowledge of climate change science and provides
conclusions reinforcing the seriousness
of the extent of future climate change
impacts.
[11] Australia has consistently argued that in the future, developing countries must be prepared to take steps to reduce the growth in their emissions. No one – including developing countries – disputes the environmental reality that developing countries must act if the international community is to address this global problem. Developing countries’ emissions will overtake the emissions of developed countries this decade, and even if developed countries’ emissions decrease dramatically from 1990 levels, increases in the emissions of developing countries will ensure that total emissions continue to rise.
[12] An international response to climate change will also not survive for long if some countries have a price on carbon and others do not. Under such conditions, countries such as Australia would lose competitiveness, as we would see a significant shift offshore in Australian industry. In addition, the environmental effectiveness of the scheme would be undermined, as emissions reductions in developed countries would be offset by increased emissions from relocated industries in developing countries.
[13] In the negotiating context, this issue of developing country commitments has probably been the most vexed, so much so in fact that we have barely begun to have a dialogue on what developing country commitments might look like. One practical obstacle to negotiations is the fact that developing countries form a heterogeneous group of the Group of 77 (‘G77’) and China, representing the diverse interests of more than 130 countries that range widely in capacity and development. Any regime for developing country commitments needs to be progressive and able to take that variability into account.
[14] It is also probably fair to say that industrialised countries need to think through more solidly what incentives there are for developing countries to ‘buy in’ to an international agreement to modify their emissions growth. The ‘what’s in it for them’ analysis is very different from the perspective of developing countries, with their focus on capacity, technology transfer, economic growth and poverty alleviation. These countries do not generally contain domestic constituencies pressuring their governments to take domestic action on climate change, even though they may well be calling for international action. They will have to present any future commitments to their people primarily on the basis of economic benefits.
[15] No matter how many
countries take on commitments though, some degree of climate change can be
expected. Countries that are likely
to experience the worst effects are those
with the least resources to adapt. Small island states, particularly our
neighbours in
the Pacific, and the least developed countries, are extremely
vulnerable to the future impacts of climate change. In asking developing
countries to take on commitments, it is also incumbent on developed countries to
offer strategies for financing the implementation
of adaptation projects in
countries most vulnerable to climate change.
[17] At the conclusion of COP 6 last year, a number of aspects of the design and functioning of the flexibility mechanisms and the compliance system, which relate to cost, remained unresolved. The European Union (‘EU’) has continued to push both for an approach to these mechanisms that would severely restrict their use and cost effectiveness, and for a punitive compliance regime. The Umbrella Group, on the other hand, has advocated unrestricted market-based mechanisms – on the grounds that restrictions on the mechanisms as proposed by the EU would increase costs – and has generally advocated a compliance system that facilitates and encourages Parties to comply with their commitments.
[18] For reasons of international competitiveness, the EU is seeking to ensure that emissions abatement undertaken outside the EU is as costly as that taken by the EU under its preferred harmonised domestic policies and measures approach. Another factor driving the EU agenda on these issues is the fear of a ‘rogue’ state. For some, the prospect of a state that deliberately over-sells emission reduction credits is perceived to be so dangerous that it warrants everyone in the system paying a price, attempting to make the system safe through caps on the use of the mechanisms and restrictions on their use via the compliance system.
[19] However there is flawed logic in this approach. By definition, a rogue state will not consider itself bound by restrictions or compliance systems. A state behaving that way only has to bow out of the system to avoid compliance consequences. Attempting to prevent this kind of behaviour through restrictions on the use of the flexibility mechanisms and a punitive compliance system unjustifiably penalises others. What we do have at our disposal is the knowledge of the effects of international diplomatic pressure – ‘naming and shaming’ as it is sometimes referred to in this context – which may be more effective in modifying the behaviour of such states.
[20] Australia believes that countries enter and comply with these agreements primarily on the basis of political will and this belief engenders a different perspective on system design. Minimising costs, while maximising emissions limitation, is the basis for an international response that will attract broad acceptability and therefore political will. If the costs are too high, it becomes a disincentive to implementation. This is the basis of Australia’s strong advocacy for unrestricted market mechanisms; restrictions on a carbon market run counter to the objective of facilitating least cost abatement opportunities.
[21] Similarly, in terms of compliance,
Australia believes that it is a country’s political commitment to meet its
international
obligations that underpins the effectiveness of any international
agreement on climate change. A punitive approach cannot compensate
for lack of
political will. However, a facilitative compliance system can help Parties
overcome possible implementation problems
and encourage them to stay within the
agreement. This is especially important when we consider frameworks that enable
developing
countries to take on commitments. It is arguable that a facilitative
compliance system, which acts from the presumption of best intentions,
is more
attractive to developing countries than a punitive one that discourages their
participation.
[23] The question remains: given the solutions available, why has agreement proved elusive? Part of the answer is ideological. Some countries have raised concerns that sinks will be used to divert effort from action to reduce fossil fuel consumption and dependence, and thereby weaken the price signal associated with mitigation action. However, sinks offer a source of low cost abatement that can assist in the transition to a less carbon intensive global economy. It is vital that sinks are captured in an international carbon account; to ignore sinks is to address only one side of the ledger. This is critical for countries such as Australia and will be even more important under a regime that includes all major emitters, given that a significant portion of developing country emissions result from agriculture, land use change and forestry.
[24] Reaching agreement on an international approach to sinks is also difficult because countries’ national circumstances in relation to forests and agriculture vary widely. Australian forests have a short growth cycle and there is land available for tree planting, but our land use systems are highly vulnerable to emissions from drought and fires. On the other hand, many northern hemisphere countries have limited land for establishing new forests and their long growth cycles mean that it is difficult to gain significant credit from new forests. This can lead to perceptions of inequity and competitive concerns.
[25] Unlike most other
developed countries, nearly one third of Australia’s greenhouse gas
emissions come from agriculture,
land use change and forestry. This has prompted
Australia to establish a world class national carbon accounting system to
measure
and monitor greenhouse sinks. A major source of our emissions is land
clearing, which leads to other adverse environmental outcomes
including soil
salinity and erosion. Australia has found that it is possible to develop
innovative greenhouse policies that can also
be used to address other pressing
concerns. We are successfully integrating climate change into natural resource
management, and
using greenhouse programs to help assist with solutions on
salinity and land degradation.
[27] We are in the process of negotiating an environmental agreement that has significant global economic consequences. This has not been done before. A brief look at the development of the international trading system under the World Trade Organization (‘WTO’) provides a window into the difficulties posed by the climate change negotiations. Did anyone seriously believe that negotiating such an agreement would be easy?
[28] Regardless of the
difficulties, the imperative to act on climate change, and to act
internationally, remains. While Australia
only emits around one per cent of
global emissions, we may well suffer more than one per cent of the effects of
climate change which,
like it or not, are the result of all countries’
emissions.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/36.html