Participation of Developing Countries in the International Climate Change Regime: Lessons for the Future

I. INTRODUCTION After more than a decade of hard fought international negotiations, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) entered into force on February 16, 2005.1 The treaty binds the major industrialized countries-with the exception of the United States, which has not ratified the agreement2-to a greenhouse gas (GHG) emission control system covering the period from 2008 to 2012.3 The Kyoto Protocol builds on the 1992 United Nations Framework Convention on Climate Change (Climate Convention),4 which has nearly universal membership.5 Together, these agreements constitute a set of principles, rules, and procedures that attempt to address one of the most complex and challenging problems of the twenty-first century. A persistent criticism of the Kyoto Protocol is its alleged failure to include so-called developing countries under its emission control system.6 Most glaringly, the agreement's emission control system does not cover fast-growing countries like China, India, and Brazil.7 From an environmental standpoint, it is simply not possible to protect the climate system over the long term if developing countries do not participate in emission reductions. Nearly 80 percent of the world's population lives in developing countries, which already account for almost 50 percent of the world's GHG emissions.8 Furthermore, both the Clinton9 and Bush10 administrations, as well as the U.S. Senate,11 have objected to the lack of legal obligations for developing countries, and the Bush administration has used this as a primary reason for not joining the Kyoto Protocol.12 Accordingly, in order for the United States to support a successor agreement to Kyoto,13 the regime will likely need to include some kind of developing country commitments.14 This Note considers what is perhaps the foremost challenge for the future development of the climate change regime: determining what form of developing country legal obligation might be acceptable and appropriate. Part II of this Note briefly describes the problem of climate change and the international response, focusing on the main provisions of the Climate Convention and Kyoto Protocol. Part III analyzes the three present options for developing country participation in the climate regime. These three options essentially represent the status quo. As will be shown, they are not mutually exclusive options, and none is legally required. In analyzing the three options, this Note explains the relevant textual provisions of the Climate Convention and Kyoto Protocol and describes state practice to date. The purpose is not to analyze each option comprehensively, but rather to glean principles and lessons for how future legal frameworks can better incorporate developing countries. Accordingly, Part IV suggests an alternative form of mitigation commitment applicable to developing countries that captures some of the benefits of all three existing options and, it is hoped, avoids some of their pitfalls. II. THE INTERNATIONAL RESPONSE TO CLIMATE CHANGE Since the beginning of the Industrial Revolution, atmospheric concentrations of carbon dioxide (CO2), the chief heat-trapping GHG,15 have risen more than 30 percent.16 This increase is mainly attributable to human activities, primarily from the burning of fossil fuels and from deforestation.17 Changes in the composition of the Earth's atmosphere have increased the average global surface temperature by about 0.6°C (1°F) over the past hundred years.18 If the trends in GHG emissions growth are not altered, global temperatures are expected to rise between 1.4 and 5.8°C (2.5 to 10.4°F) by 2100.19 The effects of such temperature changes on agricultural production, water supply, forests, and human settlements are unknown but will likely be detrimental to a large portion of the world's population.20 Preventing such dangerous climate change requires global emissions to decrease dramatically during this century, perhaps on the order of 15 to 25 percent below 1990 levels by mid-century. …

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