Treaty Norms and Climate Change Mitigation

Currently the international community is discussing the regulatory framework to replace the Kyoto Protocol after 2012. This framework can be expected to establish enforceable constraints on greenhouse gas emissions deriving from developed countries and to establish norms—perhaps short of requirements—for emissions from developing and underdeveloped countries. At a 2007 Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC), participating governments agreed on a roadmap, including the establishment of two ad hoc working groups.¹ The Ad Hoc Working Group on Long-Term Cooperative Action (the Working Group) is tasked with developing "a shared vision for long-term cooperative action, including a longterm global goal for emissions reductions." The plan also includes "measurable, reportable, and verifiable nationally appropriate mitigation commitments of action, including quantified emission limitation and reduction objectives, by all developed country Parties"; and "nationally appropriate mitigation actions by developing country Parties in the context of sustainable development."²

The unveiling of the new regulatory framework is scheduled to occur at the December 2009 COP in Copenhagen. The stakes are high since any treaty will affect the development prospects of per capita poor countries and will determine the climate change–related costs borne by poor people for centuries to come. Failure to arrive at an agreement would have grave effects on the development prospects of poor countries, many of which will experience the most severe effects of climate change. The original UNFCCC treaty recognizes these kinds of concerns and requires that further treaty negotiation pay them heed. Any agreement will be required to conform to UNFCCC norms related to sustainable development and the equitable distribution of responsibilities. In this paper I argue that UNFCCC norms tightly constrain the range of acceptable agreements for the distribution of burdens to mitigate climate change. I conclude that any legitimate treaty must put much heavier mitigation burdens on industrialized countries. Of the various proposals that have received international attention, two in particular stand out as possibly satisfying UNFCCC norms regarding the distribution of responsibilities.

In the next section I discuss the relevant UNFCCC norms that serve to direct the demands of a legitimate climate treaty. These are norms established by the prior agreement of the original UNFCCC. Consequently, they have status in international law, and legitimacy requires their satisfaction; but by protecting policies that facilitate development in impoverished countries, they also serve the moral end of eradicating poverty. I then apply the UNFCCC norms to five plausible principles for distributing the burdens of climate change mitigation, and argue that the norms restrict the options to two, both of which require very deep CO2 emissions reductions on the part of rich industrialized countries. Finally, I discuss some of the threats to satisfying the UNFCCC norms that exist in the current negotiations for a post-Kyoto climate treaty.

To read or purchase the full text of this article, click here.