| by Dr. Ruwantissa Abeyratne
( February 1, 2013, Montreal, Sri Lanka Guardian) The Economist of January 19-25 2013 reports that, although international attempts at achieving global consensus that could result in a multilateral international treaty on cutting emissions and compensating victims are constantly ending in failure, local legislation per country is increasing. The journal claims that “according to a new study of 33 countries for GLOBE, a group of legislators from round the world, the number of new domestic environmental laws rose from 10 a year in the early 2000s to 20 in 2012…31 of the 33 countries now have a basic greenery law. South Korea passed legislation to set up an emissions–trading scheme in 2015. Japan introduced a carbon tax and a new law to encourage denser, more energy efficient cities”. The Study concludes that half the 33 countries made significant strides in environmental legislation in 2012, prompting Sam Fankhauser of the London School of Economics, who was involved in writing the results of the Study, to say that the figures debunk the views of skeptics who reject the approach of countries acting alone in taking steps to counter the ill effects of climate change.
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Internationalization of environmental law and seeking global consensus on emissions is indeed a noble approach. However, one must take in to consideration the fact that a multilateral treaty at public international law would entail State responsibility.
The Economist concludes that voters appear to favor domestic legislation to an international treaty on emissions and that this might be an indictment of years of sustained green activism for a global treaty.
So why has this activism failed? There could be many reasons. The first could be that we consider emissions as a problem that should be solved at home, and many countries are practicing self-help because they can tailor the solution according to their individual problem. The problems of pollution in China and Australia may not necessaruliy be those of a majority of European Countries. The problems in the United States, if globally addressed, may hinder industry. Above all, the views on emissions are still polarized because emissions issues are intertwined with industry and development, human rights and health, together with and complex concepts such as Common But Differentiated Responsibilities.
Obviously, we still do not have a handle on the legal reason for establishing global principles. Most view the environment in its simplistic sense - that it is the overall summation of all things natural. In this context, as Nobel laureate Amartya Sen observes, the pervasive common view is that this “state of nature” will remain without change as long as we interfere with it as little as possible. Sen further states that this misconception can be rejected on two counts, the first being that the value of the environment does not lie in its existing state but in the opportunities it offers humankind, and the second being that it is not sufficient to ensure that the environment is passively preserved by us but there needs to be active initiatives in educating the populace of the world on the environment and the benefits that would accrue to it by our actions such as reducing the population of the world and creating employment opportunities. In this context, education is a paramount factor that would make us more environmentally conscious. I would add a third factor to Sen’s au fait treatise, that economic instruments which are brought to bear with a view to reducing pollution, particularly in the context of global warming, would be essential to meet the reality that, no matter what we might do to avoid interference with the environment by our enforced inactivity, the growth of world trade would force us to impose economic measures to curb greenhouse gas emissions. The issue is whether such measures could be enshrined in a globally applicable regime.
Over the past two decades environmental scientists have set the climate sensitivity parameter (Cs) at a range of 1.5o c to 4.5oc equilibrium warming for a 100o per cent increase of atmospheric concentrates of carbon dioxide from pre industrial levels. The Inter Governmental Panel on Climate Change (IPCC)’s international review carried out in 2001 and its Third Assessment Report (TAR) which followed did not alter this benchmark, although the TAR indicated increased expected realized warming by the year 2100. Policy was established on the issue of climate change and global warming at the 1992 Rio Earth Summit when 150 States Parties agreed to the United Nations Framework Convention on Climate Change (UNFCC). Although the UNFCC did not set hard targets for emissions, there were two following implementing conferences in Berlin and Kyoto in 1995 and 1997 respectively. The 1997 Kyoto Protocol set quantitative emissions ceilings for developed nations while abstaining from setting such ceilings for developing nations. By march 2001, 84 nations had signed the Kyoto Protocol (with the notable exception of the United States) and by November 2003, 120 states had ratified the Protocol. The United States policy in refusing to accede to the Protocol, conveyed by President Bush’s refusal to sign the Protocol in 2001, has been based on the argument that scientific reasoning that led to the Kyoto Protocol was uncertain and implementation of the Protocol’s policy would be too expensive. Another reason was that the United States strongly believes that there must be commitments by developing countries towards achieving emissions ceilings. In early December 2003, Russian President Putin also indicated that he did not intend to make Russia a party to the Protocol. The policy of the European Union toward the Kyoto Protocol was initially enthusiastic, where the EU stated in October 1990 that it would control and constrain emissions in 2000 to be consistent with 1990 levels. However, in 1992 the EU indicated that its carbon tax policy will be enforced toward the above end only if all OECD States (including United States and Japan) ratified the Protocol.
The Protocol was adopted on 11 December 1997 in Kyoto, Japan, and entered into force on 16 February 2005. As of September 2011, 191 States had signed and ratified the protocol. The United States signed but did not ratify the Protocol and Canada withdrew from it in 2011.
The most compelling policy issue with regard to a rational analysis of global warming lies in attempting to discount costs and benefits of the future with a view to achieving comparable values for current policy judgements. The underlying recognition by the global community is that comparably expensive measures may have to be taken at the present time to ensure sustainability of a stable climate in the future. A known factor in this equation is that it takes at least three decades for the impact of emissions to be felt, due to ocean thermal lag and, perhaps more importantly, due to the fact that emissions are recurrent annually over a span of centuries owing to the pervasive residues of carbon dioxide in the atmosphere for long periods of time.
It must be noted that the underlying principle of the Kyoto Protocol is to have industrial and transition economies cut emissions back to 5 per cent below their 1990 levels and freeze them at that level, while allowing developing States the luxury of unlimited emissions. This philosophy is fundamentally flawed if one were to take into consideration the increasing gaseous emission levels from the developing countries which could seriously endanger global abatement. Another perceived inadequacy of the Kyoto Protocol is its inability to sustain consistency between its provisions on emissions trading which violates the least-cost solution of cutting emissions aimed at equating the marginal cost of cutbacks across all countries.
The issue is not what happens to Kyoto after 2012 or whether to place monetary caps and values on emissions. The IMF/World Bank reports that additional needs in developing countries to limit the rise of the global mean temperature to +2 C above pre industrial levels will continuously grow over the next decades to reach US $139 billion to $ 175 billion annually by 2030. Therefore, no one would doubt that mitigating the adverse effects of climate change is a costly business. It is here that the deficit of judgment occurs, where the main focus seems to be on the generation of revenue as compensation for pollution. Any such revenue collected should be based firstly on external factors such as trading on the quantity of emissions rather than internally on the quantity of consumables such as fossil fuels. Secondly, the revenue collected should be used on modernizing technology rather than on buttressing national coffers. Greener machines and engines should be developed that would lesson global engine emissions, and resources should be pumped into developing the necessary technology for the manufacture of such equipment. More sophistication is needed in the design of industry components towards this goal.
The key response to climate change should be investment, where investors accept the bulk of the scientific evidence available and invest in companies that would offer advanced technology in the field. The overall opportunity for investment is huge in that the value of low carbon energy markets would be around $ 500 billion by 2050 and cumulative net savings from energy efficient products by 2012 in the United States alone would be $ 84 billion. Investors will look at a long term model of investment, taking into account the importance of low carbon technologies; carbon prices; environmental actions by corporations and governmental environmental policies and regulations.
Internationalization of environmental law and seeking global consensus on emissions is indeed a noble approach. However, one must take in to consideration the fact that a multilateral treaty at public international law would entail State responsibility. Would such a treaty enforce penalties on States after their obligations are breached? This would be counter- productive from an environmental sense. What solution would there be after a species or ecosystem is lost? Could State responsibility be enforced in complex situations affecting global warming? Would restitution or compensation work in instances of environmental damage? How would States be held responsible for emissions of private entities?
Perhaps Professor Ian Brownlie, who takes the example of the Chernobyl disaster of 1986, offers some food for thought: “Chernobyl and its aftermath casts doubts on the efficacy of the approach to environmental disasters by way of State responsibility. States clearly did not regard the legal approach as being especially relevant. The State responsibility, or liability approach is about allocation of losses and reparation. It is thus retrospective. In the case of the protection of the environment it is prospective and prevention action is called for”.
Have we got the whole equation upside down?
 The Economist of January 19-25 2013 reports that, al...){kind=link}