Sustainable development

The doctrine of sustainable development began to reconcile the dichotomy between environment and development by recognizing that the two are inseparable.⁶ The new paradigm was to optimize short-term economic interests and long-term environmen-tal concerns. This did not, though, lead to a harmony of interests. Rather, the recon-ciliation brought the two elements under the framework.

The climate regime is based on sustainable development thinking. According to Art.

3(4) of the Climate Change Convention, the parties ‘have a right to, and should, promote sustainable development’. Several other sustainable development principles, such as the principle of common but differentiated responsibilities are reflected in the Convention.

The Climate Change Convention is not purely environmental but encompasses economic and development considerations. Take, for example, Article 2 which deals

3 For discussion, see Tuomas Kuokkanen, International Law and the Environment: Variations on a Theme (Kluwer Law International, 2002) at 241.

4 United Nations Framework Convention on Climate Change, New York, 9 May 1992, in force 21 March 1994, 31 International Legal Materials (1992) 849, <http://unfccc.int> , later on ‘Climate Change Con-vention’ or ‘ConCon-vention’, Art. 1(3).

5 See Art. 1(1) and 1(2) of the Climate Change Convention.

6 See Gro Harlem Brundtland, Our Common Future (Oxford University Press, 1987) 20: ‘[T]he “environ-ment” is where we all live; and “development is what we all do in attempting to improve our lot within that abode. The two are inseparable”’.

with the objective of the Convention. The Article first takes an environmental ap-proach by stating that the ultimate objective of the Convention is to achieve ‘stabi-lization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous antropogenic interference with the climate change’. This approach is balanced by economic development approach by specifying that ‘[s]uch a level should be achieved within a time-frame sufficient to allow ecosystems to adapt natu-rally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner’.

The integration of environmental and economic considerations is one of the main themes of the doctrine of sustainable development. From the environmental point of view, the purpose of the integration has been to shift the focus from environmen-tal effects to various economic sectors, such as energy, industry, transport and agri-culture. For the environmental field, these sectors have represented real problems to which environmental considerations should be integrated. At the same time, the economic sector has begun to consider the environmental sector from a business point of view. Indeed, the business sector saw the protection of the environment as potentially profitable. Thereby, a parallel process of economization of the environ-mental sector has begun to develop.

This dual integration is reflected in the Kyoto Protocol.⁷ For example, Art. 2 of the Protocol lists various economic sectors, such as energy, agriculture and forestry, where Annex I parties shall implement and further elaborate policies and measures. In ad-dition, the Protocol introduces three market-based mechanisms: joint implementa-tion according to Art. 6, clean development mechanism under Art. 12 and emission trading under Art. 17. Joint implementation means a project-based emission reduc-tion mechanism between developed countries while clean development mechanism is a project base mechanism between a developed and a developing Party. Finally, emission trading deals with trading of emission units, so-called assigned amount units, between developed countries. The purpose of these so-called Kyoto mecha-nisms is to enhance cost-effective emission reduction.

Thus, interestingly enough, while environmental considerations were integrated into the economic sphere, business considerations where integrated into the environmen-tal one.⁸

2.3 Actors

There are several actors under the climate regimes. Parties can be divided into differ-ent groups on the basis of their substantive obligations, geographical distribution or substantive interests. In addition to parties, several observer organizations participate

7 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December 1997, in force 16 February 2005, 37 International Legal Materials (1998) 22.

8 For discussion, see Kuokkanen, supra note 3, at 287–338.

in climate change meetings. Individuals may have different roles: they can be govern-ment or non-governgovern-ment representatives or serve in their individual capacities as experts.

Parties are divided in the Framework Convention and in the Kyoto Protocol into Annex I Parties and non-Annex I Parties. The original idea was that Annex I Parties are industrial Parties while non-Annex I Parties are developing country Parties. This division is based on the principle of common but differentiated responsibility⁹ and to the idea that industrial countries should take the first step. For this reason, Annex I Parties have more stringent mitigation obligations.

Even though this distinction is important it does not tell the whole story of actors in the climate regime. For example, in the Annex I group there are Parties undergoing the process of transition to a market economy¹⁰ which have a certain amount of flexibility under the Convention and the Kyoto Protocol. Moreover, the current country groups are not necessarily carved into stone. For example, in the negotiations concerning the future regime one question has been what the status of major emitters will be.

Different groups are used also for other purposes. For example, the bureau members are elected using the traditional United Nations regional groups: African states, Asian states, Eastern European states, Latin American and the Caribbean states and the Western European and Other states. In the substantive negotiations, there are differ-ent groups based on substantive interests. The main groups are Group of 77 and China comprising over 130 developing countries, the Alliance of Small Island States (AOSIS) including approximately 43 low-lying and small island countries, the Least Developed Countries (LEG), European Union and its 27 member states, the Um-brella Group comprising non-EU industrialized countries¹¹ and the Environmental Integrity Group including Mexico, the Republic Korea and Switzerland.

In addition to Parties, observers play an important role in the climate regime. Ac-cording to Art. 7(6) of the Climate Change Convention and Art. 13(8) of the Kyo-to ProKyo-tocol, the United Nations, its specialized agencies and the International AKyo-tom- Atom-ic Energy Agency, as well as any state member thereof or observers thereto not Party to the Convention or Protocol, may be represented as observers at sessions. Any body or agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Convention, and which has informed the Secretariat of its wish to be represented as an observer, may be so admitted unless

9 See, for instance, Tuula Kolari, ‘The Principle of Common but Differentiated Responsibility in Multilat-eral Environmental Agreements’ in Ed Couzens and Tuula Kolari (eds), International Environmental Lawmaking and Diplomacy Review 2006, University of Joensuu – UNEP Course Series 4 (University of Joensuu, 2007) 21–54.

10 These so called economies in transition (EITs) include Russia and the Eastern European countries.

11 Australia, Canada, Iceland, Japan, New Zealand, Norway, the Russian Federation, Ukraine and the United States.

at least one third of the Parties present object. In 2010, altogether 1 495 intergov-ernmental and non-govintergov-ernmental organizations had an observer status.¹²

The increasing role of observer organizations underlines the role of civil society and private sector. This shift has been characterized as a participatory revolution in inter-national environmental law.¹³ It should be noted that the climate change regime is not traditional diplomacy between state representatives, but also dialogue and work with a broad range of stakeholders.¹⁴ For example, the operation of the clean devel-opment mechanism and technology transfer is very much based on the involvement of the private sector.

Turning to individual negotiators, there appears to be both generalists and specialists.

Generalists usually cover a number of international treaties or multilateral environ-mental agreements. Therefore, they have a broader perspective on the negotiated items. Specialists have a particular competence on certain issues, like reporting issues or forest matters. As issues are interlinked and contextual, it is sometimes difficult to draw a line between general and particular. Indeed, many negotiators tend to be rather policy-makers than pure generalists or specialists.

2.4 Approaches

The climate change regime includes a number of different approaches. While many of them are interlinked and synergic, some of them seem to be antagonistic. By way of example, I discuss some of these approaches.

The climate change regime is based on the framework and specific approach. The purpose is that the Convention gives a framework under which more specific action can be taken. The Kyoto Protocol represents the first legal instrument relating to the Convention. As a short-term objective, the purpose of the Kyoto Protocol is to re-duce overall emissions of greenhouse gases by the industrial country Parties by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.¹⁵ The nego-tiations on the post-2012 instrument are still pending.

12 See ‘Arrangements for intergovernmental meetings, Note by the Executive Secretary’, UN Doc. FCCC/

SBI/2011/6 (2011).

13 See Kal Raustiala, ‘The Participatory Revolution in International Environmental Law’, 21 Harvard Envi-ronmental Law Review (1997) 537–586.

14 See ‘Report of the Conference of the Parties on its sixteenth session, held in Cancún from 29 November to 10 December 2010. Addendum. Part two: Action taken by the Conference of the Parties at its sixteenth session’, UN Doc. FCCC/CP/2010/7/Add.1 (2011) para. 7:

Recognizing the need to engage a broad range of stakeholders at the global, regional, national and local levels, be they government, including subnational and local government, private business or civil society, including youth and persons with disability and that gender equality and the effective participation of women and indigenous peoples are important for effective action on all aspects of climate change.

15 Art. 3(1) of the Kyoto Protocol.

While the climate change regime is predominantly focusing on future trends, the past conduct by Parties is noted as well. The ultimate objective of the Convention, according to its Art. 2, is to achieve ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’. The debate on the historical emissions relates to the prin-ciple of common but differentiated responsibility and to historical responsibility according to which developed countries should bear a special responsibility as the largest share of historical emissions has originated in these countries.¹⁶ Thus, the climate regime tends to be both forward-looking and backward-looking.

The Kyoto Protocol reflects a top-down approach as the reduction and control com-mitments are divided among Annex I Parties with a view to achieve the above men-tioned 5 per cent reduction. The 2009 Copenhagen Accord¹⁷ and subsequently the Cancún Agreements reflect rather a bottom-up approach in sense that reduction and control measures are based on pledges by the Parties. As the Cancún agreements establish a review mechanism,¹⁸ this new approach has been called as a ‘pledge and review’ method. The climate change negotiations can be seen as an attempt to resolve the dilemma between the top-down and bottom-up architecture.¹⁹

Mitigation of greenhouse gases is the primary aim of the climate change regime, with the objective of combating the harmful effects on climate of the present system.

However, Parties have recognized that full prevention of harmful climate change impacts is not possible, and that therefore adaptation to climate change is needed as well. These two avenues – mitigation and adaptation – are not in opposition to each other, but rather reflect the two sides of the climate change work. For example, in the financing and technology work, mitigation and adaptation are very much inter-linked.

With regard to the mitigation measures under the Kyoto Protocol, one question during the negotiations of the Kyoto Protocol and the Marrakesh Accords²⁰ relating

16 See ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Co-operative Action under the Convention’, Decision 1/CP 16, in UN Doc. FCCC/CP/2010/7/Add.1 (2011) para. 34. (‘Acknowledging that the largest share of historical global emissions of greenhouse gases originated in developed countries and that, owing to this historical responsibility, developed country Par-ties must take the lead in combating climate change and the adverse effects thereof.’)

17 ‘Copenhagen Accord’, Decision 2/CP.15, in Report of the Conference of the Parties on its 15th sess., UN Doc. FCCC/CP/2009/11/Add.1 (2010), Addendum.

18 See decision 1/CP 16, paras 138–140. The first review should start in 2013 and should be concluded by 2015.

19 See Daniel Bodansky, ‘A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime’, a working paper (2011), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1773865>

(visited 5 July 2011).

20 The Marrakesh Accords is a set of draft decisions that were adopted in the 7th Conference of the Parties, held in 2001 in Marrakesh. Formally, these decisions were adopted by the First Meeting of the Kyoto Protocol held in 2005 in Montreal. See ‘Report of the Conference of the Parties on its seventh session, held at Marrakesh from 29 October to 10 November 2001. Addendum. Part two: Action taken by the Conference of the Parties, Volume I’, UN Doc. FCCC/CP/2001/13/Add.1 (2001).

thereto was whether emissions reductions which a Party makes outside of its terri-tory could be counted in its reductions or not. The Kyoto Protocol allows for both options. While the Parties are expected to take domestically policies and measures to achieve their quantified emission limitation and reduction targets, the Protocol also allows that developed Parties make additional emissions reductions abroad by using the flexible mechanisms.

International instruments are usually divided into legally binding or non-legally bind-ing²¹ categories. For example, international treaties are legally binding whereas rec-ommendations by international organizations are non-legally binding. The picture, however, is not black and white. Some instruments might, namely, contain legal value even though they are formally non-legally binding. Such instruments have been labeled as soft law while international treaties remain hard law.

From the legal point of view, legally binding obligations are preferable as they give more certainty and can be regarded legitimate. Sometimes there is a flip side to this perception. Even though treaties are formally legally binding, they might contain provisions which are more aspirational. Moreover, sometimes adaptation and entry into force of legally binding instrument might take a long time.

In the climate change regime, the Framework Convention and the Kyoto Protocol represent legally binding instruments. In addition, there are a large number of deci-sions by the Conference of the Parties of the Framework Convention and by the Meeting of the Parties of the Kyoto Protocol. While they are not formally legally binding, they still have important value. For example, the Marrakesh Accords contain principles, rules, modalities and procedures for the implementation of the Kyoto Protocol.

The objective of the procedures and mechanisms relating to compliance under the Kyoto Protocol is to facilitate and enforce compliance with the commitments under the Protocol.²² The Compliance Committee is structured on the basis of this distinc-tion into two branches: the facilitative branch and enforcement branch. Both branches have their own specific responsibilities for addressing questions of imple-mentation. While the enforcement branch is responsible for addressing potential cases of non-compliance by developed countries with their emission targets, meth-odological and reporting requirements and the eligibility requirements for participa-tion in the Kyoto mechanisms, the facilitative branch is responsible for addressing

21 For discussion, see, for example, Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press, 2010) at 96–107.

22 See ‘Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol’, Decision 27/CMP.1, in Report of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol on its first session, held at Montreal from 28 November to 10 December 2005. Addendum. Part Two: Action taken by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its first session, UN Doc. FCCC/KP/CMP/2005/8/Add.3 (2005).

questions of implementation that do not fall under the mandate of the enforcement branch.²³