Thursday, March 10, 2011



The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change. The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005. 184 Parties of the Convention have ratified its Protocol to date. Kyoto Protocol sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions. It was recognized that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity; the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities.”[1] Prior to Kyoto an international agreement was signed in Montreal, it was designed to control the use of ozone depleting chemicals. It has been ratified by almost all nations of the world including the United States where ratification was unanimous[2].The Montreal Protocol, the foundation for this process, stands as a success story. Its success owes a great deal to the actions not only of the United States government, which played an exceedingly aggressive role in producing the Protocol[3], but to American companies as well, which stood at the forefront of technical innovation leading to substitutes for ozone-depleting chemicals[4].But with climate change the situation and outlook of countries is altogether different.[5]

The Kyoto Protocol though ratified by majority of the nations, many countries are not complying with their obligations under the Kyoto protocol. Some of the countries which have ratified the Kyoto protocol including China have no obligations under the protocol at all, despite China being one of the significant emitters of green house gases. United States one of the prime advocates of Montreal protocol has still not ratified Kyoto Protocol. American companies have sharply opposed efforts to regulate greenhouse gas emissions, and have insisted that the costs of regulation are likely to be prohibitive[6]. Between 1990 and 2004, the United States experienced a decline in emissions of ozone depleting chemicals, to the point where such emissions are essentially zero. But in the same period, the United States experienced a rapid growth in greenhouse gases[7]. The same is true of many wealthy nations committed to the Kyoto Protocol, as a result, worldwide emissions of greenhouse gases are projected to rise at a rapid rate.


It is important to consider actions of United States and countries of the European Union with regard to Montreal and Kyoto Protocol. United States was the most important agent behind the Montreal Protocol. For ozone depletion, the United States first acted unilaterally and then sought international restrictions. For greenhouse gases, the United States has hardly acted unilaterally.  For their part, European nations were significant obstacles to international regulation of ozone-depleting chemicals, favoring an approach of “wait and learn”; for climate change, they have been favorably disposed toward regulatory controls, with the United Kingdom in the forefront. This difference in approach can be attributed to the assessments of national interest, public opinion, and the role of powerful private actors[8].We have no option and are forced to ask why has the US enthusiasm with Montreal died down with Kyoto?


Since the late 1980s, international organizations have shown a great deal of concern about climate change. In December 1988, a resolution of the United Nations General Assembly declared climate change to be a “common concern of mankind” and asked for a global response[9]. In 1989, the European Community agreed to support an international agreement to deal with the problem. In 1992, more than 180 nations, including the United States, signed the Framework Convention on Climate Change during the Rio Conference on Environment and Development[10]. In fact, the United States was the first industrialized nation to ratify the Framework Convention. Unlike the Montreal Protocol, the Framework Convention lacked quantitative limits for emissions reductions[11]. The absence of such restrictions was solely due to United States, which strongly resisted them.[12]

The Framework Convention stated that it would be desirable to “return by the end of the present decade to earlier levels of anthropogenic emissions of carbon dioxide and other greenhouse gases.”[13]The parties agreed to produce, a legal instrument that would establish quantitative limits for developing countries. In 1995, the parties to the Convention met in Berlin and agreed to set emissions limits at specific periods and to accept a protocol that would embody those limits[14]. US then appeared to support the “Berlin Mandate,” asking industrialized nations to accept restrictions on greenhouse gas emissions.[15] Other national leaders, however, were not enthusiastic about this commitment. In 1997, a unanimous Senate adopted Senate Resolution 98, which asked President Clinton not to agree to limits on greenhouse gas emissions if the agreement would injure the economic interests of the United States or if it would not “mandate new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period” as for the United States[16].The unanimous Senate concluded that any “exemption for Developing Country Parties is inconsistent with the need for global action on climate change and is environmentally awed,” and indicated that it “strongly believed” that the proposals under consideration “could result in serious harm to the United States economy, including significant job loss, trade disadvantages, increased energy and consumer costs, or any combination thereof.”[17]It is essential to remember in this regard that the same senate had a near unanimous vote for Ozone layer protection (Montreal protocol)  but did not ratify the Kyoto protocol for green house gases emission.

In the complex Kyoto negotiations in December 1997, the United States did support regulatory limits, although relatively modest ones, arguing against reductions in emissions levels and instead for the stabilization of current levels[18]. The United States also urged several other steps: inclusion of the developing countries in the treaty through their acceptance of some kind of quantitative limits; a rejection of early deadlines in favor of a ten-year delay; and a base year of 1995 rather than 1990, which would make quantitative limits less stringent[19]. American negotiators made serious efforts to persuade the major developing countries to agree to limit their emissions at some future date, but they refused[20]. An explanation to this is that such nations, above all China and India, were aware that regulatory controls would impose significant burdens and costs.

The Protocol sets forth certain quantitative limits on greenhouse gas emissions. It was designed to ensure that, the nations would show a reduction of 5% over 1990 levels—a reduction that must be met in the period between 2008 and 2012[21]. For example, the United States was required to reduce emissions by 7%; Japan by 6%; and the European Union by 8%.The Kyoto Protocol however did not impose trade sanctions or other penalties on those who do not comply .The question which comes forth in all our minds is exactly why were these targets chosen .The answer being that national self-interest played a key role[22].Contrary to the widespread perception, it is not true that most of the world’s nations were willing to sacrifice much to deal with climate change, while the United States ultimately refused to do so.[23]

Under intense international pressure, the United States signed the Protocol on September 12, 1998[24].It would be an understatement to say that the signing was not well-received in Congress, which added a proviso to the 1999 Environmental Protection Agency Appropriations Act banning the agency from using appropriations “‘to propose or issue rules, regulations, decrees or orders for the purpose of implementation, or in preparation for implementation’ of the Kyoto Protocol.”[25] At that point, Vice President Gore indicated that the Protocol would not be submitted for ratification without meaningful participation by developing nations[26]. The whole process had an air of unreality to it, because everyone knew back in 1997 itself that the U.S. could never join the Protocol as drafted.”[27] In 2001, President Bush described the Kyoto Protocol as “fatally awed” and “effectively dead,” emphasizing the non participation of developing countries. President Bush in a key letter further stated that “I oppose the Kyoto Protocol because it exempts 80% of the world, including major population centers such as China and India, from compliance, and would cause serious harm to the U.S. economy.”[28] In fact the United States attempted to persuade other nations, including Japan, to reject the Protocol as well[29].

The Kyoto Protocol went into effect in 2005.Of the original participants in the process that led to Kyoto, the United States and Australia are the only non-ratifiers.


For the United States and the world, the benefits of the Montreal Protocol were projected to dwarf the costs. But it was not the same with Kyoto Protocol, the costs were high and benefits low. At the time of ratification, the proper analysis of costs was done by the Clinton administration. It was found that “modest” costs from the Kyoto Protocol would result in an $0.04 to $0.06 increase in the price of gasoline, and an annual increase in the average family’s energy bill of $70 to $110 by 2010[30]. A study by the Department of Energy projected substantial gasoline price increases from $1.39 to $1.91, and 20% to 86% increases in the price of electricity by 2010[31].A study done at the Wharton School[32], which projected costs in excess of these projections200— including a loss of 2.4 million jobs and $300 billion in the nation’s GDP, with an average annual cost of $2,700 per household, including a $0.65 per gallon increase in the price of gasoline and a near-doubling of the price of energy and electricity.

The anticipated benefits of $12 billion are hardly trivial, but they are dwarfed by the anticipated costs of $325 billion. For the United States, unilateral action to comply with the Kyoto Protocol may well produce no benefits at all, and on these projections, it would not be easy to defend in cost-benefit terms.


Other reasons which are considered to have influenced the US stand on Kyoto protocol are:

1. First, emissions from China, India, and other developing countries—whose substantial contributions to climate change are expected to grow much larger in the near future—are not regulated by the agreement at all.

2. Second, past emissions of greenhouse gases will contribute to warming; it follows that even a substantial reduction in future emissions would not eliminate the problem.

3. Third, the Kyoto Protocol requires the parties not to make substantial cuts in emissions, but
merely to return to a point slightly below emissions levels in 1990.

The larger point is that for the United States, the perceived values presented a much less favorable picture for the Kyoto Protocol than for the Montreal Protocol. The perceived costs of the Kyoto Protocol were much higher than the costs of the Montreal Protocol, and the perceived benefits of the former were much lower than the benefits of the latter.


For those who are concerned about the risks of climate change, it would be possible and even right to emphasize that the United States has been a principal contributor to those risks, and that the nation’s economic self-interest does not exhaust its moral obligations. To the extent that the
citizens of the United States have benefited from activities that inflict significant harms on other nations, those citizens are properly asked to help through reducing their own emissions, through paying other nations to reduce theirs, and through payments to ease adaptation. In addition, political pressure, including moral convictions, can play a role. But on the basis of the Montreal and Kyoto Protocols, it is best to assume that domestic self-interest will continue to act as an important motivating force. The position of the United States will not shift unless the domestic benefits of emissions reductions are perceived to increase or unless the perceived domestic costs drop, perhaps as a result of technological innovation. It follows that for the future, the task remains to devise an international agreement that resembles the Montreal Protocol in one critical respect: its signatories, including the United States, have reason to believe that they will gain more than they will lose.


[2] Montreal Protocol on Substances That Deplete the Ozone Layer, Sept. 16, 1987, S.Treaty Doc. No. 100-10 (1987), 1522 U.N.T.S. 3.

[3] See id.

[4] See Edward A. Parson, Protecting the Ozone Layer 252–53 (2003). See id. at 126–27, 176–77, 180–82

[5] An illuminating discussion of that difference can be found in Scott Barrett, Montreal versus Kyoto: International Cooperation and the Global Environment, in Global Public Goods: International Cooperation in the 21st Century 192

[6] George Pring, The United States Perspective, in Kyoto: From Principles to Practice 185, 195–97 (Peter Cameron & Donald Zillman eds., 2001)

[7] ibid

[8] Tony Blair, Foreword to Avoiding Dangerous Climate Change, at vii (Hans Joachim Schellnhuber et al. eds., 2006).

[9] Ibid

[10] An illuminating discussion of that difference can be found in Scott Barrett, Montreal versus Kyoto: International Cooperation and the Global Environment, in Global Public Goods: International Cooperation in the 21st Century 192, at 368- 69

[11] U.N. Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107, available at

[12] See id note 12

[13] See id art4 para 2

[14] Supra note 12 at 368

[15] id

[16] S. Res. 98, 105th Cong. (1997).

[17] id

[18] George Pring, The United States Perspective, in Kyoto: From Principles to Practice 185, 195–97 (Peter Cameron & Donald Zillman eds., 2001).

[19] id

[20] See Robert V. Percival et al., Environmental Regulation 1047 (4th ed. 2003) at 1063

[21] Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 3, Dec. 10 1997, 37 I.L.M. 22, available at protocol/items/1678.php 

[22] Richard Benedick, Morals and Myths: A Commentary on Global Climate Policy, 109 WZB-Mitteilungen 15 (Sept. 2005)

[23] Id 15-16

[24] Supra note 21 at 206

[25] Id at 206

[26] Id at 206

[27] Supra note 25 at 16

[28] Letter from George W. Bush, U.S. President, to Senators Hagel, Helms, Craig, and Roberts (Mar. 13, 2001), available at 0314.html (last visited Oct. 18, 2006), Harvard Environmental Law Review).

[29] Supra note23 at 1071

[30] Supra note 21 at 194

[31] Id at 196

[32] WEFA, Inc., Global Warming: The High Cost of the Kyoto Protocol (1998), available at

No comments: