Designing an effective climate change regime for the post-2020 period warrants a sober assessment of the current regime to flesh out the important issues that need to be addressed. As the chapters in this volume demonstrate, the existing climate change regime has fallen short on several fronts.
First, the way countries are grouped into Annex I and non-Annex I countries has engendered a sense of injustice over how the emissions burden is shared. Many Annex I Parties contend that the current system has failed to take into account the recent changes in the economic landscape. They argue that since some developing countries, notably China and India, emit more than some of their developed counterparts—if not based on legally binding obligations akin to the ones accorded to Annex I Parties—they should take on more responsibilities to reduce greenhouse gases (GHGs). This could be particularly so as developed countries argue the principle of common but differentiated responsibility is a dynamic one, not a static one. However, advanced developing countries argue that such a proposal stands in stark contrast to the common but differentiated responsibility principle which has been the guiding principle of the UNFCCC. The ongoing impasse over how to share the burden has crippled the existing regime’s capacity to produce deeper cuts in emissions.
Second, the current regime’s apparent centralized approach to reducing emissions does not encourage greater participation, particularly from the advanced developing countries. For instance, economy-wide caps, of the type envisioned in the Kyoto Protocol, are seen by many developing countries as measures that would potentially constrain economic development. This widely held notion, alongside the limitations of the flexibility measures of the Protocol, underpins the need for the emerging treaty to incorporate more flexible approaches.
This limitation has also been accentuated by the outcome of the recent UNFCCC meeting in regard to the second commitment period of the Kyoto Protocol which is supposed to deal with the economy-wide caps of developed countries. Compared with the framework for the first commitment period under the Kyoto Protocol, the agreed scheme on the second commitment period has been significantly weakened. In addition to the US, which did not participate in the first commitment period as an Annex I country, other important countries including Japan, Canada, New Zealand, and Russia have declared their unwillingness to participate in the second commitment period. This will result in a situation where the current top-down approach can cover only approximately 16 percent of the total GHG emissions. Furthermore, the second commitment period has become longer. Because of internal reasons of some countries such as in the EU, the length of the second commitment period has become eight years, covering the years from 2013 to 2020.
Third, in order to address climate change, efforts to curb GHG emissions should produce tangible results. Past efforts have primarily focused on agreeing on universal standards which then need to be implemented by the countries. Moreover, considering the fragmented nature of the international community, which lacks any centralized governing architecture, the implementation by international institutions will be different from domestic communities. Ignoring this unique characteristic of the international community has often resulted in problems of bringing about substantial results at the national level.
Although China has become the largest GHG emitter now, it has worked on reducing GHG emissions in recent years. Its per capita GDP still remains lower compared with that of many of the advanced industrialized countries. It is expected that the Chinese economy will grow more and essentially require much more energy consumption. However, this does not necessary mean that China is not serious about addressing climate change problems. As demonstrated in Chapter 6 of this volume, China has made already significant progress in accommodating its environmental concerns during the process of its economic growth. From an institution-building point of view, what we need is to develop an international institution that can encourage countries such as China to make their utmost efforts to address climate change at a level which they can accept domestically. Simply imposing burdens without having a strong enforcement mechanism would not work with many sovereign states.
Overcoming the constraints of the existing regime
Central to the process of forging a new climate change regime is “effectiveness.” Mounting scientific evidence reveals that there is a gap between the current national and international efforts and the level of emissions reduction required by science. Bridging this emissions gap requires the emerging international architecture to improve its effectiveness. Considering obstacles that prevent global efforts to address climate change from bringing effective outcomes, more practical approaches may need to be considered.
Bottom-up approach as a means to overcome the limitations of the UN-led climate regime
Internationally specified and binding national targets and timetables have been unpopular in climate talks. This centralized, top-down approach to addressing climate change has been criticized for underestimating Parties’ embedded political interests and for ignoring their different capabilities. More often than not, the prevailing top-down approach produces international agreements that are divorced from political and economic realities. As illustrated in this volume, the concept of a low-carbon development strategy (LCDS) could offer the emerging regime insights on how to address flexibility issues and engage reluctant Parties. By allowing countries to incorporate their mitigation efforts into their low-carbon development plans, LCDS provides Parties with the ability to define not only their willingness to take actions but also how they implement them. Considering the difficulties in depending on the top-down approach in order to effectively address climate change as demonstrated in the history of implementation of the Kyoto Protocol, a country-driven bottom-up approach will be in a better position to enhance the level of efforts of all the countries to reduce GHG emissions.
There are several ways of incorporating this approach into the UNFCCC climate change regime formation process. One of the advantages of developing international institutions is to be able to have better coordination. Without an adequate coordination mechanism to ensure effectiveness, this approach would lead only to more fragmented and ineffective results. In this sense, common accounting rules on measuring, verifying, and reporting will become very critical. In order to ensure individual countries make their efforts according to their respective capabilities and national circumstances, sophisticated common accounting rules need to be developed, agreed on, and implemented by all the countries; a measuring methodology also needs to be developed and implemented by the countries. Equally important is to develop a way to recognize the efforts of individual countries; hence, a registry or other appropriate mechanism will also be crucial in order to recognize and incentivize individual countries in their respective efforts toward a low-carbon future. Finally, it will be important for the new climate change regime to be able to verify policies and other measures of individual countries during the process of implementing a low-carbon development strategy.
Legal formality
Since the time when countries started to engage in the negations on establishing the UNFCCC, countries tended to devote a lot of their efforts and resources to agreeing on legal issues. However, many legal issues are not actually related to the issues of how to implement the agreed outcomes, but rather on what type of legal form they need to rely on.
In other words, no matter whether it will be legally binding or not, an agreed outcome can be incorporated into a kind of form of institutions. As demonstrated by one of the authors, there are certainly merits for countries to agree on a legally binding instrument, usually as a form of treaty. Having a legally binding instrument will increase transparency and predictability of the agreed outcome of the countries. This will provide better guidance on what they have to do to related actors including not only the governments but also private sectors. This will, of course, have a better chance to increase effective implementation of the agreements.
In practice, there often seems to be confusion between the issues of legal formality and approaches. In the context of designing the post-2020 climate change regime, there are different ways of addressing climate change problems, including relying on imposing binding obligations to reduce GHG emissions and promoting country-driven voluntary efforts to address climate change issues nationally through different means such as the evolution of low-carbon development or low-carbon green growth policies. Although a top-down approach tends to go together with considering a legally binding form such as a treaty, measures based on the bottom-up approach can be incorporated not only into a legally binding form of instrument but also into a form of non-legally binding instrument. In other words, it may not be the ultimate goal to design a post-2020 climate change regime which will have a legally binding formality but not be effective. The future regime must be designed to incorporate approach(es) which will ensure effective results, considering some benefits of having a legally binding form.
Agendas for future research
Role of international law in climate change regime building
Looking at the history of the development of international law, it has focused on state-centric and legally binding norm-based issues. Naturally, discussions on how to address global issues such as climate change have been made in line with how to utilize the Westphalian system-based norms which have legally binding effects. Based on the identified degree of responsibility, some of the countries have to take more legal obligation in terms of reducing GHG emissions. This approach assumes the availability of monitoring and enforcement mechanisms so that adequate compliance can be ensured. However, consensus-based rules of the UNFCCC tend not to be stringent. More importantly, the UNFCCC regime seems to be reluctant to enforce its rules on those countries which are not willing to implement those rules. It is also questionable for the UNFCCC regime to have effective enforcement mechanisms in its hand.
Other factors have also raised issues regarding the effective role of international law. Non-state actors are becoming more important in terms of implementing the rules as well as securing required resources for addressing climate change. The Kyoto mechanism has tried to develop an innovative scheme to ensure adequate implementation of the mechanism by developing more room for the private sector to participate in the process of implementation of the mechanism. However, it is still not enough for the UNFCCC regime to get relevant non-state actors involved in its process.
Indeed, a series of intensive and innovative efforts need to be made to address these challenges. One of the immediately available options is to encourage the utilization of soft law instruments. Since the Stockholm Conference in 1972, international law has slowly increased its consideration on the issues related to soft law. Declarations, Memoranda of Understanding to enhance cooperation between states on addressing environmental challenges, COP decisions, and other non-legally binding instruments have often been used to accommodate the participation of various considerations and to avoid unnecessary confrontations which could occur during the processes of treaty negotiations at the international level and treaty ratifications at the domestic level. It is important to note that this phenomenon was not developed to replace the process of treaty making but to avoid situations where no agreement could be reached. In addition, it is often thought that this process could enhance the overall effectiveness of a regime if adequate agreements on substantive and procedural issues could be contained, based on the appropriate level of political will of the stakeholders including non-state actors. Ultimately, all this endeavor will lead to a point on how to reconstruct the Westphalian international law order which can reflect the changing nature of the global community.
To veer away from the Westphalian state-centric conceptualization of the international law order is to present an opportunity to accommodate bottom-up approaches to climate change that largely emphasize the crucial role that non-state entities play in mitigating climate change and its adverse effects.
Building an effective climate change governance
Traditionally, global efforts to address climate change have primarily revolved around the UNFCCC regime, but the cross-cutting nature of the climate challenge and the diversity of national interests have created an environment that makes it difficult to forge a comprehensive climate regime.
This difficulty is evident in the existing climate change regime which is neither integrated nor comprehensive. Rather, it is characterized by the diversity of actors and of institutional arrangements.1 Beyond the UNFCCC process, smaller forums such as the Major Economies Forum and the European Union have become increasingly vital in complementing the UN track by providing an avenue for like-minded states to agree on strategies to address climate change. In the realm of climate finance, the G20 and the Green Climate Fund have been vital in mobilizing financial resources to support projects or programs particularly in developing countries to reduce emissions.
The conglomeration of rules, mechanisms, and institutions renders climate change governance highly complex. The utility of this fragmented arrangement lies in its capacity to reduce costs and in the degree of flexibility that the non-hierarchical governance framework provides to not only states but also to crucial non-state entities.
Since the UN-led negotiations is riddled with issues concerning opposing beliefs on the responsibility for damage and the perceived limitations of the UNFCCC to address all the aspects of the climate challenge, the climate change regime complex is seen to persist. In the absence of an overarching political authority, the overriding challenge for the international community is how to facilitate all these efforts to produce substantial results in responding to climate change.
Issue of sovereignty
In addressing transboundary problems, the tendency of states to utilize national sovereignty as an excuse to justify their non-compliance to international norms or institutional arrangements has been a common narrative in the discourse of global governance. In the course of crafting an international agreement on climate change, infringement upon national sovereignty has been a thorny issue.
In particular, the centralized, top-down approach that has been the primary one taken by the UNFCCC regime has often run into opposition from Parties. Countries, particularly developing countries, have relentlessly expressed their disagreement over imposing internally defined targets and timetables as they perceive them as a violation of their prized national sovereignty. Not only does a treaty-based economy-wide cap require countries to commit to internationally agreed emission goals, but it also entails that countries relinquish some of their national sovereignty. At the crux of this issue is the difficult task of striking a balance between upholding national sovereignty, and efficiency.
This issue has broader implications for the study of global governance and sovereignty. It is vital to note that global problems such as climate change go beyond the capacity of states and warrants the involvement of non-state actors. A monolithic, indivisible conceptualization of national sovereignty necessarily reinforces a state-centric international system as states would interpret relegating some of their sovereignty to non-state actor as something that necessarily renders them less of a state. This zero-sum view on the relationship between national sovereignty and global governance inevitably hinders any form of cooperation at the international level.
Thus, innovative ways to understanding the concept of national sovereignty might offer more insights on how to overcome the constraints of sovereignty in order to build a more effective global governance structure. A prime example is Stephen Krasner’s (1999)2 disaggregation of the concept of sovereignty. He argued that the practice of sovereignty is one characterized by organized hypocrisy which refers inconsistent, often contradictory behavior exhibited by states in the practice of national sovereignty.
However, the question of how to reconfigure the concept of national sovereignty in a way that permits the blossoming of a more holistic and inclusive international system remains unanswered. Such an endeavor will have profound implications for the international effort to address common global problems such as climate change.
Notes
1 For scholars such as Keohane and Victor (2010), climate change is governed by a regime complex with the most visible efforts centered around the UNFCCC. It involves various institutional elements and initiatives without an overarching architecture that structures the whole set.
2 He argued that in practice sovereignty has four different meanings: domestic sovereignty (refers to the exercise of internal control), interdependence sovereignty (refers to the ability of states to regulate transborder flow), international legal sovereignty (refers to the international recognition accorded by other states), and Westphalian sovereignty (refers to the right of non-interference by external actors).
References
Keohane, Robert O. and David G. Victor, “The Regime Complex for Climate Change,” Belfer Center for Science and International Affairs, Harvard University, Discussion Paper 10–33, online available at: http://belfercenter.ksg.harvard.edu/publication/19880/regime_complex_for_climate_change.html?breadcrumb=%2Fpublication%2Fby_type%2Fdiscussion_paper%3Fgroupby%3D0%26filter%3D2010%26page%3D3, 2010.
Krasner, Stephen, Sovereignty: Organized Hypocrisy, Princeton, NJ, Princeton University Press, 1999.