Equity, Entitlements and Property Rights under the Kyoto Protocol: the Shape of ’Things’ to come

• Author: Farhana Yamin
• Date: 01 November 1999
• Published date: 01 November 1999
• DOI: http://doi.org/10.1111/1467-9388.00210

Volume 8 Issue 3 1999 Rights under the Kyoto Protocol

Equity, Entitlements and

 Property Rights under

the Kyoto Protocol:

the Shape of ‘Things’ to Come

Farhana Yamin

What constitutes a fair response to climate change is the main ques-

tion underlying many of the unresolved issues in the climate change

debate. It is behind the questions of the level of commitments by

industrialized countries, the type of participation to be undertaken

by developing countries, the structure of the various trading mech-

anisms, and the nature and magnitude of f‌inancial obligations.

What has been missing from the debate, however, are consensus

principles that def‌ine equity in the context of this issue.

Eileen Claussen, US Under-Secretary for Energy and Lisa McNe-

illy, ‘Equity and Global Climate Change: The Complex Elements

of Global Fairness’, Pew Center on Global Climate Change,

October 1998.

Introduction

Equity and fairness are a major motivating force in inter-

national decision-making.

1

It is now widely recognized

that fairness considerations are central to the evolution

of the 1992 Framework Convention on Climate Change

(FCCC) and the fate of its 1997 Kyoto Protocol. This is

because the question of who will take on commitments,

and when and how these might be implemented, raises

signif‌icant distributive and procedural fairness issues

between countries involved in the climate change negoti-

ations. This article provides a timely opportunity to take

stock of the fairness debate in the climate change

regime. It focuses on the distribution-related impli-

cations of the targets adopted at Kyoto. Because these

provisions are integrally linked to the Kyoto ‘mech-

anisms’ this article also examines equity-related con-

cerns relating to Protocol’s provisions concerning emis-

sions trading, joint implementation and the Clean

Development Mechanism. It is anticipated that these

mechanisms will allow Parties, and private entities, to

buy and sell allowances to achieve their Kyoto targets.

Part I examines the meaning of equity and its role in

international negotiations. Part II discusses the equitable

basis for the targets and emissions patterns sanctioned

by the Protocol relevant to establishing ‘entitlements’.

Blackwell Publishers Ltd. 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

265

Part III of the article is an inquiry into the legal nature

of the ‘things’ created by the Protocol: assigned

amounts, parts of assigned amounts, emission reduction

units and certif‌ied emission reductions. The article uses

the term ‘things’ to avoid use of more loaded concepts

such as ‘property’, ‘commodities’ etc. The article exam-

ines who might hold rights to these things and what kind

of rights might be held. It sets out conclusions that could

inform future negotiations concerning the Kyoto mech-

anisms’ new commitments for developing countries.

Part I: Equity

This section examines the legal concept of equity. There

is no universally agreed meaning of equity in inter-

national law. One legal scholar has characterized equity

as ‘considerations of fairness, reasonableness, and pol-

icy often necessary for the sensible application of the

more settled rules of law’ which can comprise factual

considerations and legal principles.

2

The legal notion of equity is created and applicable in

the context of the international legal order, which con-

sists of principles and rules that are legally binding on

states and other members of the international com-

munity in their interactions with each other. States have

the sovereign right to exploit their own natural

resources pursuant to their own environmental and

developmental policies, subject to the proviso that they

bear the responsibility of ensuring that activities within

their jurisdiction do not cause damage to the environ-

ment of other states or of areas beyond the limits of

national jurisdiction.

3

This means that the question of

how a state allocates responsibility for mitigating or

adapting to climate change (i.e. how it allocates the

costs and benef‌its of climate change) among various

regions, economic sectors, social groups or individuals

within its territory, is primarily a domestic matter. The

following discussion focuses on the role of equity in