"Hot air" as precedent for developing countries? Equity considerations.

• Author: Batruch, Christine
• Position: Greenhouse gas emissions; global climate change

I.

INTRODUCTION

In June 1992, the world's nations met at the Rio Earth Summit Conference to discuss the various challenges facing the global environment.(1) One of the outcomes of the conference was the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), a global agreement addressing climate change.(2)

The main objective of the UNFCCC is to stabilize greenhouse gas emissions, which are recognized as having a negative impact on climate change, and to prevent dangerous man-made interference with the climate system.(3) Under the UNFCCC, the Parties undertook general commitments to reach this stabilization objective and agreed to be guided by a number of principles, including equity, in fulfilling the terms of the Convention.(4)

In December 1997, the Conference of the Parties, which is the Supreme Body under the UNFCCC, met in Kyoto, Japan to establish specific commitments.(5) Under the Kyoto Protocol, developed countries and countries with economies in transition(6) agreed to limit or reduce their greenhouse gas emissions by certain amounts, called assigned amounts. Emissions are to be reduced in reference to a particular year, called a base year. The first commitment period is between 2008 and 2012.(7)

The assigned amounts of most developed countries entails a reduction of their emissions,(8) The assigned amounts of countries with economies in transition, like Russia and Ukraine, represents in theory, a stabilization at 1990 levels of emissions (i.e., zero growth from 1990 levels). However, such assigned amounts in fact may allow Russia and Ukraine to increase their emissions because, since 1990, their economic downfall has resulted in an approximately 30% reduction in their greenhouse gas emissions.(9) Therefore, while ostensibly assuming commitments to stabilize their level of greenhouse gas emissions, countries with economies in transition, like Russia and Ukraine, have effectively been given surplus emission allocations. This surplus allocation, which has come to be known as "hot air," is defined here as the difference between the assigned amounts for the first commitment period and the lower emission levels that would exist during that period in the absence of climate related policies and measures.(10)

There are two main reasons why hot air granted to countries with economies in transition could have serious implications on the achievement of the UNFCCC stabilization objective and might therefore slow down the process of combating climate change.(11) First, it could enable those countries to increase their emissions from current levels, instead of reducing them.(12) Second, once the negotiation process begins for developing countries,(13) developing countries could rely upon the granting of hot air to countries with economies in transition as a precedent.(14) While the total emissions in developing countries are still relatively low, their emissions are expected to surpass those of the developed world by 2020 under a normal growth scenario(15) Delaying or limiting developing countries' reduction commitments would cause an increase in greenhouse emissions, thereby seriously compromising the stabilization objective of the UNFCCC. The purpose of this article is to determine whether, on the basis of equity which is a guiding principle under the UNFCCC,(16) developing countries could claim surplus emission allocations by using the hot air obtained by countries with economies in transition as precedent.

Section I examines the role of equity in relation to the UNFCCC and the negotiation process that preceded the adoption of the UNFCCC and the Kyoto Protocol. Section II discusses the rationale behind granting hot air to countries with economies in transition and its possible implications. Section III analyzes whether hot air given to countries with economies in transition can be relied upon as a precedent by developing countries. The analysis examines the similarities and differences between countries with economies in transition and developing countries in the context of climate change, and the arguments that can be made in favor of, or against, developing countries obtaining their own hot air. Section IV discusses emission allocation methodologies and suggests an equitable methodology. The article concludes by assessing the possible impact of granting hot air upon the fulfillment of the UNFCCC stabilization objective.

II.

SOURCES OF EQUITY

1. Origins Of Equity In Common Law

   Equity has both moral and legal foundations.(17) Out of moral concerns of fairness, the legal system devised a mechanism whereby a just result could be achieved when the formal application of a rule did not ensure that result. What in moral terms is called fairness, in law is termed equity. The close linkage between law and ethics is explained by Henry Shue, recognized for his writings on fairness in the context of international agreements: "[t]here are elemental moral standards that laws, treaties, and other human agreements must satisfy in order to deserve compliance - in order to be morally as well as legally binding(18) Thus, while ethics is the yardstick for measuring the acceptability of a given action, law is a means to ensure it.

   Equity in common law arose from the recognition that the application of a strict rule of law could have an unjust result. Judges in courts of law came to rely on concepts such as unjust enrichment, estoppel and acquiescence to attain justice in the application of the law, where the observance of formal rules of law did not necessarily lead to that result.(19)

   The practice of referring to notions of justice in the application of law came to be known as equity. Thomas M. Franck states: "[equity] embodies a set of principles designed to analyse the law critically without seeming to depart too radically from the traditional preference for normativity in the exercise of authority, nor to present too bold a challenge to the community's expectations of legitimacy of legal rules and processes."(20)

   The use of equity in domestic law inspired its use at the international level. In both cases it was meant to afford legitimacy to actions by the courts in furtherance of their enforcement role. As seen above, equity in domestic law developed as an instrument of adjudication and plays mainly a post facto role in the resolution of a dispute brought before a court. In contrast, as explained below, equity in international law has a statutory origin and affects both the process and the outcome of lawmaking.(21)

2. Equity in International Law

   According to the Statute of the International Court of Justice (ICJ), "general principles of law recognized by civilized nations," such as principles of equity are considered to be a subsidiary source of international law.(22) Subsequent decisions of the ICJ, which adjudicates matters of international law, including international environmental law, also refer to principles of equity in disputes between countries.(23)

   While equity is commonly invoked in disputes between parties involving implementation of treaty obligations, or in situations in which no treaty exists, the role of equity is not limited to the adjudication process. Equity can also be invoked in the process of negotiation prior to the adoption of a treaty, or when negotiating amendments or protocols to a treaty. Equity has been a consideration in international environmental treaties in a number of ways: as a guiding principle for the implementation of treaty obligations; as a determining factor in differentiating parties' obligations under a treaty; and as a method of ensuring the fair representation and participation of all parties in the institutions of a treaty.(24)

   In the context of climate change, experts at the Intergovernmental Panel on Climate Change (IPCC), the organization whose assessment report on climate change in 1990 provided the basis for negotiations on climate change, confirm that equity concerns arise at the procedural and the consequential level, thus impacting both the process and the outcome.(25)

3. Rationale for Equity in the UNFCCC

   Global warming has been described as a moral issue, because it affects the quality of life across generations and within the same generation.(26) Since there will be a variety of economic and ecological impacts on different countries, it has been argued that not resorting to equity considerations would be morally unacceptable when determining the rights and responsibilities of all the parties involved in the effort to combat climate change.(27) Stated differently, "those living in desperate poverty ought not to be required to restrain their emissions, thereby remaining in poverty, in order that those living in luxury should not have to restrain their emissions."(28)

   This concern for fairness was reflected in the negotiations leading to the adoption of the UNFCCC, when developing countries insisted on a fair allocation of responsibilities and obligations among the Parties.(29) They were successful in this respect because equity figures prominently in the UNFCCC, as a guiding principle, as a means to determine the commitments of each Party, and as a means of ensuring proper representation in the Convention's financial mechanism.(30) As noted by Michael Grubb, a respected scientist and prolific author on climate change, the inclusion of equity was a quid pro quo for the wide participation of developing countries, which was felt to be necessary both because of the global nature of the problem and because emissions in the developing countries are expected to rise sharply in the future.(31) Equity under the UNFCCC can thus also be seen as a legal response to the moral concern regarding the means to combat climate change. Its inclusion in the UNFCCC stems as much from the moral perspective that fairness should guide international relations as from the development of international law as outlined above.

   Equity, as an moral obligation, is likely...