Scientists have studied the effects of global warming for decades, however the climate change agenda has only in the past twenty to thirty years really made itself seen on the political scene. Since that time, the United Nations Framework Convention on Climate Change (“UNFCCC”) took place from 1992 to 1994 which in 1997 produced the Kyoto Protocol.[1] The protocol, whose purpose is to create a framework within countries can combat greenhouse gas emissions, has been ratified by over 150 countries. The United States has refused to ratify the protocol, finding that doing so would hurt American economic interests and that the treaty itself is flawed as developing countries are not required to cut emissions as they are.[2]Australia likewise had refused to sign the protocol, however with a recent change of government the country has ratified the protocol and thus agreed to make changes to its emissions policies.[3] Several European Union countries have not only ratified the protocol but have made significant progress in fighting emissions, among them the United Kingdom and Germany.[4] As the protocol is set to expire in 2012 and as negotiations have begun in Bali for its replacement, it is fitting to look at the protocol to determine how effective the treaty has been and in which ways it could be improved.
Part I of this paper will give a brief background on the global warming agenda and the Kyoto Protocol and introduce the main issues involved today. Part II will look at climate change and the protocol from realist, neorealist, liberal, and neoliberal points of view. I will argue that while none of the theories precisely covers the entirety of the issue, each provides helpful analysis in determining how power and law collide in international politics. Part III will present at a constructivist analysis of the protocol and the global warming agenda and will focus primarily on the construction of that agenda through social interaction. It will likewise touch on the New Haven and transnational legal process schools to help understand how societal influences have helped create legal rules and how policy-makers implement laws based on mutual understandings between states. Again, I will argue that while this theory provides helpful analysis, it too falls short of clarifying the entire climate change picture.
I. Global Climate Change and theKyoto Protocol
The Kyoto Protocol was adopted in 1997 and became a binding treaty in February 2005 after Russia’s deciding vote for ratification.[5]The main purpose of the treaty is for industrialized countries to cut their greenhouse gas emissions, which are believed to be a main contributor to global warming, within a given time period.[6] While all countries determined the extent of their proposed cutbacks, all industrialized countries which ratified the protocol committed to a combined goal of a 5% reduction below 1990 levels by 2012, at the expiration of the protocol.[7]Developing countries – which are believed to be the weakest contributors to global warming but the hardest hit – are not required to reach any targets, however they must continue to provide information on their emissions levels.[8]Both China and India are included on this list.[9]While it appears that the goal will not be reached by the time the treaty expires, several individual countries have reached their goals and are continuing to combat emissions.[10] Indeed, the European Union and even some individual states within the United States have made Kyoto law part of their law.[11] Some claim, however, that the protocol barely touches on the severity of the problem, as much more than a 5% reduction is needed in order to effectively combat global warming.[12]
The United States, viewed as the world’s top polluter, has likewise had thedubious distinction of having one of the worst track records in actually implementing or promoting global climate change.[13] While high-level politicians such as Al Gore have recognized the need to address the problem of global warming, the political climate since at least the late 1980s – when the issue first appeared on the radar in the United States – has failed to allow for any concrete action to take place.[14] In the 1990s, Gore, as Vice President, pushed heavily for United States ratification of the Kyoto Protocol, however President Bill Clinton eventually succumbed to congressional pressure and did not seek ratification of the treaty.[15] President George W. Bush has not made any effort since that time to revive the treaty, claiming that by following the treaty United States energy and gas prices would rise and other ozone-polluting countries such as India and China, which are not required to lower their emissions, would get an economic advantage.[16]Bush found that “the Kyoto Protocol was fatally flawed in fundamental ways… but the process used to bring nations together to discuss our joint response to climate change is an important one.”[17] The United States then, although recognizing the importance of addressing global climate change issues, refused to sign a treaty which it felt would adversely affect its interests, as compared with other states.
II. (Neo)Realist and (Neo)Liberal Analyses of Kyoto: While the United States Sits Back, Other Countries Have Stepped up to the Plate
In realist and neorealist theory, one constantly hears rhetoric that law takes a backseat to politics. When looking at the Kyoto Protocol and the United States’ refusal to take part in it, one may indeed come to the conclusion that power does trump law as the United Stateshas sought to protect its national interest instead of joining a treaty which may adversely affect its power. On the other hand, several countries, including all European Union countries at the time of ratification of Kyoto, have signed up to the protocol and several are making marked progress in terms of climate change. One could thus argue under liberal or neoliberal theory that law is helping to bring countries together based on common interests in order to bring about positive change. While such progress is undoubtedly being made, however, realists would argue that such progress and change is only marginally important, as the world’s top polluters either have not signed the Protocol (i.e. the United States) or are not required to make significant changes in their climate policy (i.e. China and India). While neither theory alone necessarily captures the essence of the climate change dynamic, each provides insight into the practices taken by all parties involved and into the importance of law, power, and cooperation which have come to define the climate change agenda.
Both realist/neorealist and liberal/neoliberal theory seek to explain international relations from a rationalist and positivist perspective. That is, both theories seek to explain international relations in terms of objective criteria based on causal relationships.[18] In terms of Kyoto and its effects then, theoretical analysis focuses on why certain countries decided to join it (the EU countries, developing countries, etc) while others did not (the United States and Australia at the beginning). It also determines to see how stable the Protocol is – whether it has made states more compliant or whether progress has been marginal. Realists/neorealists and liberals/neoliberals look at objective criteria in the material world to make this determination.[19] They see what interests kept states from joining, how states have actually changed their practices to comply with Kyoto, as well as what steps are being taken from the future. Because these theorists view the international system as external to the actors themselves, they also assume the interests and identities they study are inherently given to states which then act accordingly. They differ, however, as to whether these common interests will always lead to conflict or whether cooperation is indeed possible. It is from this background that I will now turn to an analysis of the Kyoto Protocol from realist and neorealist perspectives.
The United States’ refusal to sign the Kyoto Protocol can be explained from a realist and/or neorealist perspective, however these theories fail to take into account the progress that has been made without the presence of the United States. While the United States protected its own interests in not joining the Protocol, several countries, including many European Union countries, have come together despite their national interests in order to make a positive effect on climate change. Realists state that human nature is flawed and that humans (and the states which represent them) are continually in a state of conflict.[20] They therefore only seek to protect their interests and security by acting rationally (i.e. having powerful militaries and alliances).[21]Only political, and not moral, considerations are made.[22]States alone are determined as having importance, as they are the final decision-makers and determine how the state will protect its interests.[23]Neorealists make the same assumptions, however they claim that it is the nature of the international system itself and not human nature which leads to a state of anarchy of all-against-all.[24] Because of the anarchical system, states compete for relative gains in an attempt to maintain the balance of power.[25]Alliances and cooperation in such a system are rare, as states’ interests rarely will coincide, leading instead to a state of distrust.[26]
When applied to Kyoto, a realist or neorealist would argue that the United States is acting to protect its national interest against the power of other countries – either because it seeks to gain power or because of its place in the international system – by not signing the Protocol. The United States rejected the terms of the Protocol because it felt that it would be unfair for China and India to not have to reduce emissions as “developing countries.”[27] Since China has recently passed the United States in emissions, and yet is also one of the United States’ main economic competitors, the United States felt that taking an economic loss to comply with Kyoto would hurt its national interest.[28]Under a neorealist analysis, any relative gain that China orIndia made would effectively undercut the United States’ power. The United States was not willing to take that risk. Although the United States has recognized the importance of global climate change on a moral, and perhaps practical, level, it has refused to participate in a treaty which it felt would compromise its interests, thereby reaffirming the supreme importance of politics.
Legal realists and legal positivists have taken realist and neorealist arguments one step further, arguing that law is just a tool of the powerful and has no ethical superiority.[29] As there is no supranational authority which can regulate the international law system, states must decide based on their own interests whether or not they will ascribe to any particular treaty or whether will they comply with any treaty they have ratified.[30] Law can also be used by powerful countries as a way to keep less powerful countries in check.[31] Since for realists states are concerned only with security, they are unlikely to join treaties which will adversely affect that security and will thus either steer clear of law or use it as a tool to control other states.[32] For this reason, legal positivists and legal realists claim that treaties are only marginally significant, do not influence state behavior, and do not change the status quo of the international system.[33]From this perspective, one would claim that since no enforcement mechanism exists to enforce the Kyoto Protocol, it is only marginally effective. These theorists would further claim that the Protocol just represents a political battle in which the United States has refused to participate since its interests will be adversely affected and that law as such has no independent authority. Since the United States can effectively choose whether or not it wants to join the Protocol, the international system cannot be seen as having changed and state behavior cannot be seen as having been influenced.
While realists and neorealists may succeed at explaining the United States’ refusal to join the Kyoto Protocol as an example of power triumphing over law, the theories have not succeeded in explaining the proliferation and adherence to the treaty of other nations, particularly of those in the European Union. The theories fail to explain how some countries are willing to promote a perceived moral (rather than political) cause which may actually hurt their national interest and are likewise willing to follow the treaty at the risk of giving up some sovereignty. The theories also do not adequately explain the importance of several non-state actors in the climate change dialogue. Likewise, legal realism and legal positivism fail to explain how the Protocol has been an effective tool of compliance which has indeed influenced the actions of nations involved. Turning now to an analysis of the Kyoto Protocol from a liberal and neoliberal perspective, one can begin to fill these gaps, as theorists in these fields explain that other actors besides states play an important role in bringing states together to cooperate on matters in which they share common interests. While the United States may feel that joining Kyoto would not advance its national interests, several other countries around the world have decided that it would be in their common interest to promote the Protocol and have taken steps to do so.
At the outset, the two sets of theories – realism/neorealism and liberalism/neoliberalism – actually share a number of common assumptions. Both view the state as the primary actor in international politics and both view the international system as anarchic.[34] Liberals and neoliberals believe, however, that other actors besides states should be considered as important in international relations and that although the international system is anarchic, states can indeed come together and cooperate based on mutual interests.[35] For liberals, human reason and will allow states to overcome anarchy by using international organizations, international law, and regimes to bring about cooperation and thus peace. While they still believe that states are self-interested, they also believe that states can overcome transaction costs, mistrust, etc in order to increase their own benefits.[36] Thus, a state will be willing to cooperate as soon as an absolute gain is acknowledged. In terms of Kyoto then, states have been willing to come together to promote a common interest in saving the environment. In coming together to create Kyoto, they were able to overcome transaction costs and set up a system where each realized that the other would cooperate in this common goal.
Neoliberal institutionalists have looked specifically at how international institutions affect state action and preferences and have asked whether or not they actually constrain state behavior.[37]They also ask why states are willing to give up some of their autonomy to pursue these common goals.[38]In general, neoliberal institutionalists have a more optimistic view of international law than realists in that they believe states will give up autonomy and create common institutions which will in turn influence state behavior and create change in the international system.[39] Indeed, there has been a strong move toward law in recent years, as demonstrated by Judith Goldstein.[40] As institutions and laws become more legalized, stronger rules are created which shape the behavior of actors and create more opportunities for compliance.[41]Neoliberals also study regime theory as a way to explain the effect of regimes (or rules and norms) on the behavior of states. As more and more international institutions are created, more norms are created which allows for states’ expectations in a given area to converge. The stronger a regime is, the stronger those expectations will become and states will become more confident that other states will comply as trust issues are removed and cooperation abounds.
In terms of climate change, one sees more institutionalization, as more and more treaties are being signed and more and more countries are choosing to change their practices. States have been willing to give up their autonomy in order to work on an issue which they feel needs cooperation from all parties. Indeed, as more climate change institutions have appeared, so has the climate change regime grown. While barely on the radar a few decades ago, states have now come together and formed new rules and norms to determine how they should act to protect the environment. In turn, states, particularly within the European Union, have changed their behavior based on this expectation of compliance. With Kyoto in particular, several nations have made significant progress in overcoming their emissions problems, showing that with the aid of an international institution change in action is possible. Perhaps most importantly it shows as well that the participation of the United States is not required to make cooperation possible between countries on important issues such as climate change.