The Fifteenth Annual Conference of the Australian and New Zealand Society of International Law was held in Canberra recently. I gave a short paper on the future of the Kyoto Protocol. Its first commitment period will end in 2012, and unless agreement is reached soon on emissions reductions for a second commitment period then we could have a period of unrestrained emissions (a lawless 'interregnum'). I argued that there is much value in Kyoto, and that its achievements should not be downplayed.
However, it is clear that a more robust regime is needed to bring emissions down by the 50 to 80 per cent that is required by 2050 if we are to avoid dangerous climate change. The debate over the future of the international climate change regime is essentially between a top-down, Kyoto-style approach, on the one hand, and a bottom-up and fragmented approach on the other. Some Governments (notably Australia and the United States) have advocated a bottom-up approach largely as an excuse for inaction. They are not committed to implementing the serious response that is required. Other states such as the United Kingdom have been willing to demonstrate leadership through unilateral action to cut emissions. The United Kingdom's Climate Change Bill, would make emissions reductions of 60 per cent on 1990 levels by 2050 legally binding. The European Union as a region is also a recognised international leader, and is taking action in advance of any global pact.
Given the diversity of sub-national, national and regional regimes I may have been too hard on bottom-up approaches as a way of driving innovation in climate change mitigation efforts. I see the force of the argument that binding treaties such as Kyoto are very conservative, and can step no further than the willingness of the least committed member (Underdal's 'law of least ambitious program'). I perhaps should have qualified my criticism by saying that it depends how stringent sectoral approaches are. If they are of the nature of the EU ETS or the UK's Climate Change Bill then it's great. If they are of the nature of the United States and Australian supported Asia Pacific Partnership on Clean Development and Climate that sets no goal of reducing aggregate emissions, then it's not so good at all.
For a ventilation of some of these issues, check out this exchange in Science.