Building the

Farhana Yamin
argues that the Kyoto Protocol may be as important in furthering multilateralism and the rule of law as it is in achieving its objective of reducing the emissions of greenhouse gases

Everyone contributes to climate change, and no one can opt out of its impacts, so a strong multilateral framework for cooperation is essential. The 1992 United Nations Framework Convention on Climate Change and its 1997 Kyoto Protocol have established such a framework. Justice, accountability and the rule of law are important dynamics in its evolution. Such issues as who participates (or refuses to participate) in this multilateral framework for climate policy, whether the benefits and costs of abatement efforts are fairly distributed, whether implementation can be assured and whether states can be held to account for their actions and inaction all touch upon fundamental values and conceptions of international justice – which require us to examine the rights and responsibilities of states towards each other, to their own citizens and to the planet.

Although the surge of interest in linking international law with morality and ethics is long overdue, a degree of caution is warranted. There is a danger that the discourse of justice and fairness could be used by powerful vested interests to drag out negotiations in order to mask and justify inaction, just as fossil-fuel lobbies used the issue of scientific uncertainties to obfuscate policy making in the 1990s. Those most vulnerable to climate impacts must be vigilant to ensure that considerations of fairness are integrated in a way that fosters progressive action to protect the climate system, rather than leading to deadlock. Well-intentioned schemes – such as contraction and convergence- that tie the allocation of emission rights to a specific notion of justice that does not command widespread support could also lead inadvertently to deadlock.

The ‘rule of law’ can mean many things, but in the domestic domain there are two core notions. The first is the requirement that certain procedures and principles must be followed in each case to reach a result that can be characterized as lawful. The second is that the law secures certain substantive outcomes or goals valued as being good – such as the achievement of ‘justice’ – which evokes notions of equality, equity and fairness. Typically, judicial bodies such as courts and judges are established to apply the law in accordance with collective goals that give effect to particular conceptions of justice set by public policy-making institutions – rules, programmes and priorities by which government and other public agencies arrange our lives in society. Participation in these policy-making bodies is supposed to provide the means by which we pursue what is good or ethically desirable in the public sphere.

But this vision of judges and courts impartially upholding the rule of law with responsive policy-making institutions balancing competing private interests to formulate the public good is an idealized one. In reality, courts and judges, by choice or default, often make law- albeit as a by-product of an interpretative process of resolving disputes. And there are many reasons – including the enormous economic power, knowledge and lobbying skills marshalled by vested economic interests – why public bodies seem incapable of defining, let alone securing, fundamental public goals, especially those central to improving the conditions affecting the poorest.

Internationally, the picture is still more complex. Contemporary political theories that underpin our notions of justice and law emerged centuries ago, in a world of discrete national communities where people, even sovereigns, had little daily contact. This led jurists to define the international realm solely in terms of relations between states. Then, as now, sovereign states entered into commitments voluntarily, mostly without reference to parliaments, let alone people! And states resisted tooth and nail the establishment of legal mechanisms that might allow them to be held to account other than with their consent.

Today’s world is defined by mutual interconnectedness. There is growing awareness that our social, economic and political systems are thoroughly intertwined. Even the most powerful states cannot act alone for long enough to solve today’s major policy challenges – especially the environmental ones that require long-term, sustained effort lasting several decades. And although the monopoly of coercive and regulatory power wielded by states is a necessary ingredient for effective governance, it must be supplemented by the resources commanded by an array of non-state actors. These factors justify re-examining the legal rights and responsibilities of states to ensure that they – and other actors who play a determining role in global governance – exercise rights and discharge responsibilities effectively.

The good news is that the dominant trend is the gradual delimitation of the political power of states and a reshaping of the international legal order to condition sovereign rights and responsibilities and make states more responsive to servicing the needs of the planet and of their own citizens. There is now a possibility of a fundamental realignment of the international legal order to meet new realities and emerging aspirations for international justice. The bad news is that the current international legal order is still a long way from delivering many existing demands for justice, let alone additional aspirations. Worse, there are signs that the commitment to multilateralism, universal values and common goals – upon which the entire United Nations system, including the climate change regime, rests – is being undermined as powerful states pursue divisive agendas through unilateral means, diverting aid from agreed ends without consultation.

What does all this have to do with the climate change regime? Unlike many development objectives such as the Millennium Development Goals, it is grounded in two legally binding treaties: the United Nations Framework Convention on Climate Change, with its near-universal membership; and the Kyoto Protocol, which comes into legal effect on 16 February 2005, following its ratification by 120 countries, including all major developed and developing country emitters except the United States.

The principles, rules and institutions – including financial structures – created by these treaties provide the most advanced multilateral legal framework for dealing with interconnectedness, and all the complex social, economic, political and institutional challenges that go with it. Kyoto’s legally binding targets for developed countries represents a shift towards a rule-based system of governance, as does the creation of a Compliance Committee with wide-ranging powers to check countries' compliance and to hold them to account.

These legal innovations – agreed through negotiations lasting almost a decade and involving almost 180 governments and a wide range of stakeholders – provide a high degree of predictability and transparency to ensure that developed countries honour their commitments. This is essential for the functioning of the carbon markets that will emerge in developing countries not covered by the Kyoto targets, which are vital for transforming our current fossil-fuel-dependent form of economic growth to the degree needed to protect the Earth’s climate.

Thus the fate of the climate regime is important not just for safeguarding the Earth’s climate system – itself necessary for achieving the Millennium Development Goals – but for achieving the broader goal of moving towards a rule-based system of global governance in which governments regulate markets to function smoothly in orderto achieve economic, environmental and social-justice objectives. Such a system will require great international policy coherence and institutional coordination – something the climate regime is already fostering in international policy areas previously guarded as solely the preserve of political discretion.

Enhanced reliance on justice, the development of new forms of accountability mechanisms and adherence to the rule of law in the climate regime will all aid the development of a robust system of global governance that contributes to securing other public goods, such as financial stability, the eradication of poverty and HIV/AIDS, gender equality and the achievement of human rights. Kyoto’s contribution as a testing ground for furthering the commitment to multilateralism and progressing fundamental values that emphasize global solidarity, ecological sustainability and the rule of law could turn out to be as significant as the emissions cuts it mandates. Progressive developed and developing countries must unite to use the opportunity provided by the first gathering of the Protocol’s political body – the Conference of the Parties/Meeting of the Parties, in November 2005 – to ensure that negotiations on legally binding targets for the second commitment period are launched expeditiously – in accordance with the letter and spirit of the law set out in the Protocol

Farhana Yamin is a Fellow at the Institute of Development Studies (IDS) and a former legal adviser to Samoa and the Alliance of Small Island States.


This issue:
Contents | Editorial K. Toepfer | Strengthening the rule of law | Partners in law | Justice can be shortsighted | Force of law | A matter of judgement | A law of energy | People | Rule of man, or rule of law? | At a glance: The rule of law | Sebastião Salgado | Sustainable development comes from Saturn! | One planet, different worlds | Nature’s wisdom | Kickback fightback | Conflict and cooperation | Holistic landmark | Empowering the poor | Legal climate | Small is effective | Building the framework

Complementary issues:
Climate Change 1997
Climate and Action 1998
World Summit on Sustainable Development 2002