Gutting Kyoto

The worldwide press hailed the December negotiations in <?xml:namespace prefix = u1 /><?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />Montreal over the Kyoto Protocol for producing an “historic climate agreement.” As the London Independent put it, “The fight against catastrophic global warming scored its greatest success to date yesterday, when negotiators from more than 180 nations unexpectedly agreed to develop far-reaching measures.”<?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />


The agreement truly was historic as the greatest modification of Kyoto's terms since its inception in 1997—although not for the reasons The Independent and other hailers proclaimed. The agreement effectively guts Kyoto's claim to being “legally binding” and its potentially onerous provisions.



The touted achievements were, in fact, nothing more than already-agreed promises to meet again later. Less heralded, but the most substantively important development in Montreal, was adoption of the 2001 Marrakech Accord.


As drafted and originally agreed at the 2001 Conference of the Parties to the Climate Change Convention (COP-7), these sanctions, among other things, disqualify Kyoto parties that violate their 2008-12 quota from employing the mechanisms of “joint implementation” and trading emission credits in any subsequent round.


In Montreal, the Kyoto establishment, while congratulating itself for adopting Marrakech penalties, actually neutered them. They are now no more binding or enforceable than the voluntary United Nations Framework Convention on Climate Change (UNFCCC), or the nascent alternative to Kyoto, the Asia-Pacific Partnership on Clean Development and Climate.


Here is how, in brief detail. In the “Procedures” document (Section XIII), parties added an extra year, give or take, to avoid violation of their emission quota by purchasing or otherwise arranging for greenhouse-gas credits from others. This administrative ploy did not add another year to the period for mandatory reductions, but merely allowed the credits obtained after expiration of the five-year compliance period to be applied retroactively. Parties also established an intricate enforcement end-around neutering Marrakech's bold, plain language via a rhetorical web weaved in Sections V, VI, X and XV.


As a result of the latter, Kyoto's penalties are now in fact discretionary. A board of insiders may choose simply not to proceed against a violator, or may invoke an escape hatch for undefined de minimis violators. Other waiver and reinstatement provisions all ensure that the vaunted penalties will never be seriously invoked against any of Kyoto's growing queue of likely scofflaws.


Marrakech had actually constituted Kyoto's long-missing element—something resembling an enforcement mechanism and “teeth.” In Montreal, in addition to gutting this, delegates openly ignored Kyoto's requirement that these penalty procedures and mechanisms be formally adopted, in the form of an amendment requiring ratification.


This explains why the decision (“Procedures and mechanisms relating to compliance under the Kyoto Protocol”) received little fanfare as compared with the heralded vows to talk again. This effort, with one other adopted item detailing the nature and scope of Kyoto's key “mechanisms,” quietly weakened Kyoto's annual emission-reduction promises by 20% and eviscerated the touted enforcement provisions. On their face, these appear mandatory and costly, while in reality they have become, at best, mere discretionary incentives.


The final chapter in this coup d'etat ensuring that Kyoto will never be the “legally binding” pact its supporters tout is that, by design, technically even these ersatz enforcement provisions do not exist. Kyoto's Article 18 requires that any binding consequences, such as the “procedures and mechanisms” agreed in Marrakech, be adopted at the Meeting of the Parties to the Kyoto Protocol (MOP-1 in Montreal) and that in order to be binding they must be amendments to the protocol.


Noting this requirement, Saudi Arabia proffered such a plan. Canada hinted that this requirement threatened a two-track treaty; that is, ratification actually codifying lofty Kyoto rhetoric is no sure thing. In response, Europe cautioned that ratifying such enforcement provisions might take some time. Its curious solution, accepted by the MOP in the name of expediting things, was to put off consideration of whether to formally adopt these penalties for two more years until literally the eve of Kyoto taking effect.


The other much-ballyhooed accomplishment of the Montreal COP-MOP—the humbling of the United States—was also wildly off the mark. The United States did not, in fact, alter its long-standing position against seeking ratification of the Kyoto Protocol. It merely agreed with all other parties to the Rio UNFCCC treaty to continue discussing voluntary greenhouse-gas abatement. Kyoto parties agreed to agree later, as was previously agreed. This time, however, the parties expressly agreed that these talks could not lead to binding commitments.


Kyoto's ultimate truth is that after eight years, nine negotiations and scores of triumphalist press releases, the rest of the world remains wildly uninterested in joining its rationing scheme. Such a revealing fact is apparently not worthy of coverage, or concern. After all, the legacy of the Montreal COP-MOP is that no obstacle is too great to impede claims of victory in the Kyoto context.


Already, a proposal has been tabled to allow “voluntary” quotas for countries such as India and China, the exempt majority. The purpose would be to facilitate claims of Kyoto success by the covered few, who will, again, not need to actually reduce emissions, but can then, instead, buy the right of future growth from these dirtier states, in the form of emission credits. The progression is to merely redefine and merge Kyoto and foreign aid. This will prove Montreal's legacy as the beginning of the end for Kyoto, when its parties realized they could not and would not try to match rhetoric with action.