The document summarizes a student's research paper on strategies for the upcoming COP21 climate conference in Paris. It discusses the failures of the Kyoto Protocol to meaningfully reduce global emissions due to lack of participation from major emitters like the US and China. The student argues COP21 should focus on creating voluntary, specific emission guidelines for all countries to encourage widespread adoption and pressure the US to participate. This may elevate the agreement to a universal law.

1. Executive Summary
This year I was honored to be selected as a 2015 New Jersey Scholar and had the opportunity to
join the other 38 scholars and professors in an intensive, on-campus, five week academic
program. This year’s theme was “Climate Change and the Human Experience”. The first part of
the program focused on a multi-disciplinary study and discussion, while the second allowed each
scholar to choose a relevant topic and produce a research paper under the supervision of a
mentor.
I joined the program having already researched climate-related issues as part of my participation
in the Bergen County Debate League as a varsity debater. The league’s topic last year was,
coincidentally, “Developing our oceans”, which lead me into creating a plan to reduce
dependence on fossil fuels via ocean current-driven turbines. So, I had to research and debate all
sides of this topic in 24 county-wide debates (achieving a 21W-3L record).
The result of this year-long quest is the enclosed paper.
Abstract
The Kyoto Protocol and all other climate change mandates have failed in reducing global
greenhouse gas emissions. There’s no evidence to suggest that any further mandates can succeed,
especially in light of continued perception by large polluters such as the United States that any
such treaty imposes undue burdens on them, infringing on their economic sovereignty.
Additionally, major polluting nations, such as China are still classified as “developing” and not
subject to the same restrictions. This leads to intransigence on the part of nations, like the US,
who fear economic damage due to unequal burdens carried as a result of different classifications.
The radically different approach of providing global, yet specific, guidelines for all polluters may
lead to easier adoption of restrictions or reductions. Once the more equitable reductions are more
widely adopted, the principles therein may become jus cogens – a law that is seen as universally
applicable, regardless of formal adoption. There are numerous examples of such successes in the
various legal battles in various US states and across the globe, seen as waves of grass roots
support, leading to legal changes. Attempting to implement such a strategy at COP21 may finally
lead to more meaningful policy changes.

2. New Jersey Scholars Program 2015
The Kyoto Protocol and Beyond
Using Past Policy Failures to Determine Strategies for Action at COP21
Justin Linetski
Mentor: David Figueroa-Ortiz, J.D.
29-July-2015

3. Global consensus is that anthropogenic climate change is in action and is a significant
problem. As such, the international community has attempted to present and implement solutions
to reduce the emissions of greenhouse gases, the main cause of anthropogenic climate change,
resulting in adoption of a treaty known as the United Nations Framework Convention on Climate
Change (UNFCCC). This agreement brought together 196 nations, and launched an annual
meeting to negotiate specific ways to address climate change1
. The first major product of the
UNFCCC was the Kyoto Protocol of 1997, the most comprehensive climate change mitigation
treaty to date. The Protocol created binding emission standards for developed nations willing to
ratify, and provided mitigation guidelines for non-developed nations. Despite the specific
directives of the Protocol, the results did not reflect the global emissions reduction necessary for
any significant mitigation of climate change. In the time that the Kyoto Protocol has been in
effect, global greenhouse gas emissions have actually increased. This increase is often attributed
to the lack of significant involvement by two major world powers – the United States and China.
As politicians and activists turn towards the next meeting of the UNFCCC, COP21 (21st
Conference Of the Parties) in Paris, it is clear that they must look to incorporate top emitters in
order to avoid a repeat of past ineffective agreements. To achieve this, COP21 should focus on
creating a voluntary emission mitigation policy and encouraging its widespread adoption, with
the intent of providing sufficient pressure on the U.S. to result in American adoption of the
policy.
The Kyoto Protocol was a complex document that attempted to establish a multi-tiered
involvement system for climate change mitigation. At the 1997 meeting of the UNFCCC, many
nations called for the creation of a binding protocol for emissions reductions in order to address
1
"First steps to a safer future: Introducing The United Nations Framework Convention on Climate Change," United
Nations Framework Convention on Climate Change, last modified 2014,
http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.

4. climate change in a tangible and solvent manner. The negotiations formed the terms of the Kyoto
Protocol, presented as a multi-tiered plan with specific goals and mitigation strategies. The basis
for the Protocol lay in the original UNFCCC treaty with the definition of distinct categories for
signing nations: Annex 1 countries were developed countries that were deemed sufficiently
stable to initiate mitigation, all others countries were considered developing (a categorization
that draws criticism, because China, India, Brazil, and other influential nations are considered
developing)2
. The Protocol assigned mandated emission reduction goals for Annex 1 countries
and presented suggested reduction guidelines for developing nations. The main target for the
Protocol was to reduce emissions from Annex 1 countries by 5.2% relative to their 1990
emissions, but individual goals were specific to each country3
. The punitive measure for failure
to meet the guidelines was a heavy fine, but the Kyoto Protocol also established a market where
nations could purchase “emission reduction units” from nations below their emission limits,
avoiding punishment and further reconciliatory review4
. It is important to note that these binding
regulations and any fines associated with them only applied to Annex 1 countries that decided to
ratify the Protocol. Developing nations were solely given suggested guidelines, without any
binding contract. Almost every party in the UNFCCC eventually ratified the treaty (excluding
the U.S., Sudan, and Afghanistan), allowing it to come into effect in 2005. The first commitment
period of the protocol, between 2008 and 2012, passed with mixed results. 2012 saw the drafting
of the Doha Amendment, which extended the Kyoto Protocol to 2020 with new reduction goals5
.
The Doha Amendment has only been ratified by a fraction of the UNFCCC and has not reached
2
"Kyoto Protocol to The United Nations Framework Convention On Climate Change," United Nations Framework
Convention on Climate Change, http://unfccc.int/resource/docs/convkp/kpeng.pdf.
3
"Kyoto Protocol," in Encyclopædia Britannica, http://academic.eb.com/EBchecked/topic/737984/Kyoto-Protocol.
4
"Kyoto Protocol to The United,".
5
"Doha amendment to the Kyoto Protocol," United Nations Framework Convention on Climate Change,
http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf.

5. the ¾ commitment necessary for it to come into effect6
. To understand why top emitters, along
with a growing group of smaller nations, refuse to ratify this amendment or any other similar
treaty, the actual results of the first commitment period of the Kyoto Protocol should be
considered.
As mentioned earlier, the Kyoto Protocol did not result in any significant reduction of
global greenhouse gas emissions. Across the Annex I countries, there were a variety of
outcomes; certain countries reached their assigned goals, while others failed by a large margin.
The European Union exceeded its reduction goals, as did Russia and a number of other Eastern
European nations. However, not all accomplishments can be attributed solely to the Protocol, as
many of the nations that achieved targets were in the process of transitioning to a market
economy at the 1990 baseline. On the other side, many nations failed to meet their targets during
the commitment period, including large emitters Canada and Japan7
. Even more alarming are the
trends in emissions by countries in the developing nations category and those not bound by the
Protocol. China, considered a developing nation under the Kyoto Protocol, nearly tripled its CO2
emissions since 1990 and is now the biggest emitter in the world. India has nearly doubled its
emissions since 1990, taking its place as the third largest greenhouse gas emitter. The United
States, which never ratified the treaty in any capacity, increased its emissions by 14% in the
same time period8
. The combination of increasing emissions in these three countries alone has
far offset any reduction by all Annex 1 countries, arguably rendering the Kyoto Protocol
ineffective on the global scale, even if the majority of participating countries reached their
6
Bothe, Michael. "International Climate Change Policy After Doha1." Environmental Policy and Law,
http://search.proquest.com/docview/1537381928?accountid=12012.
7
Quirin Schiermeier, "The Kyoto Protocol: Hot air," Nature, November 28, 2012, http://www.nature.com/news/the-
kyoto-protocol-hot-air-1.11882.
8
Lau, Lee Chung, Keat Teong Lee, and Abdul Rahman Mohamed. "Global Warming Mitigation and Renewable
Energy Policy Development from the Kyoto Protocol to the Copenhagen Accord—A Comment." Renewable and
Sustainable EnergyReviews: 5280-284. http://www.sciencedirect.com/science/article/pii S136403211200264X.

6. assigned targets. This unfortunate conclusion is substantiated by global emissions data, which
shows that net greenhouse gas emissions have increased markedly since the adoption of the
Kyoto Protocol, growing by over 38% since 19979
. Even in a scenario where current emission
rates are kept stable at this level, serious effects of climate change are inevitable. It is clear that if
any mitigation is to occur in the near future, the UNFCCC must adopt novel strategies for
emission reduction. Most importantly, the new approach must incorporate the top emitters if any
significant mitigation is to be achieved10
. The biggest concern in this approach is how to
encourage the United States to participate in global mitigation. The U.S. has been notoriously
unwilling to ratify any treaty from the UNFCCC, but their involvement is necessary for the
success of any international emission mitigation treaty. As such, the reasons why the U.S. has
been unwilling to accept any protocol or significant agreement should be considered and steps
should be taken to rectify those problems and push for American involvement.
The U.S. has vehemently rejected the ratification of treaties from the UNFCCC for
predominantly economic reasons. The primary argument used by American negotiators and
government representatives is that economic sovereignty is of utmost importance and must be
preserved in all cases. This viewpoint has shaped numerous talks and blocked any discussion of
humanitarian goals as the primary reason for climate change mitigation. The second major point
that the U.S. bases its opposition on is the disparity between developed and non-developed
countries as represented by the UNFCCC. For the U.S., this was a significant defect in the Kyoto
Protocol – American negotiators strongly urged placing binding emissions reduction goals on
developing nations too, and when this was not implemented the U.S. claimed that it would not
ratify the treaty. Similar sentiment is applied by the U.S. to other treaties from the UNFCCC,
9
Schiermeier, "The Kyoto Protocol: Hot air,"
10
Leal-Arcas, Rafael and Luigi Carafa. "Road to Paris COP21: Towards Soft Global Governance for Climate
Change?" Renewable Energy Law and Policy, http://search.proquest.com/docview/1657514257?accountid=12012.

7. because most have followed a similar multi-tiered structure. Both concerns are clearly
represented in a U.S. Senate response to the Kyoto Protocol, the Byrd-Hagel Resolution. After
the Kyoto Protocol was drafted, the U.S. Senate presented and passed a resolution in response
(with a vote of 95-0) known as the Byrd-Hagel Resolution, which outlined the terms on which
they would ratify an emission mitigation treaty. The resolution states that they would not
approve any treaty that would “mandate new commitments to limit or reduce greenhouse gas
emissions for the Annex I Parties, unless the protocol or other agreement also mandates new
specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing
Country Parties within the same compliance period” or “result in serious harm to the economy of
the United States.”11
These are the only two conditions presented in the resolution and no other
further consideration on the issue of climate change mitigation is taken. This document
represents the general position taken on climate change by the U.S. Senate, a body whose
approval is necessary for the ratification of any U.N. treaty. This resolution was reiterated again
in 2002 by Senator Hagel at a hearing for the Senate Foreign Relations Committee, claiming that
the terms are “still true today - if put to a vote in the Senate, the Kyoto Protocol would face
resounding defeat.”12
His claim was substantiated by the unwavering position of his fellow
Senators and American negotiators did little to work towards a new mitigation treaty at annual
meetings. The recent UNFCCC conference in Cancun in 2010, one marked by progress and
readiness by other nations, saw the United States continue to push for a so-called “balanced
package” that would eliminate the developed against developing disparity13
. This shows that the
11
Byrd-Hagel Resolution, S. Res. 98, 105th Cong., 1st Sess. (1997).
http://www.nationalcenter.org/KyotoSenate.html.
12
Hearings Before the Senate Foreign Relations Committee and the Environment and Public Works Committee
(2002) (statement of Chuck Hagel, Senator). http://www.epw.senate.gov/107th/Hagel_072402.htm.
13
Suzanne Goldberg, "Cancún climate change summit: America plays tough," The Guardian, November 30, 2010,
http://www.theguardian.com/environment/2010/nov/30/cancun-climate-change-summit-america.

8. ideological standpoint on the issue of climate change mitigation presented in the Byrd-Hagel
Resolution continues to be upheld by the U.S. to this day.
The stalwart position taken by the U.S. presents itself as a significant problem for any
UNFCCC treaty aiming to receive unanimous support. In the question of developing nations
having different standards from developed nations, it seems impractical to meet the U.S. demand
of complete equality. Expecting small economies to be able to achieve the same percent reduction
standards as a robust economy like the U.S.’s is a difficult proposition to adopt and the UNFCCC
has been cautious to consider any such agreement. However, as Senator Hagel correctly predicted
in the Byrd-Hagel Resolution, a nation considered developing, China, passed the U.S. in net
greenhouse gas emissions in 200614
. On the point of economic sovereignty, the current approach
taken by the UNFCCC has not been able to convince the U.S., so it follows that a new strategy
must be taken to rectify this point. Since American demands seem to be incompatible with the
UNFCCC’s current stance, an approach that attempts to force the hand of the United States should
be considered.
The next opportunity for incorporation of the United States into international climate
change mitigation policy is COP21, the 2015 meeting of the UNFCCC in Paris. National
governments and political analysts have expressed hope for a significant agreement at COP21, but
in order for any useful agreement to occur the goal of negotiation must shift15
. Since U.S.
participation will be necessary for an effective treaty and it seems unlikely that they will initiate
any significant change, pressuring the U.S. government into ratification of a treaty is the most
viable option. For this method to succeed, it is necessary that adoption occurs across almost all
parties. If such a widespread adoption transpires, the treaty would hopefully be raised to the level
14
Lau, "Global Warming Mitigation and Renewable Energy Policy Development”
15
Leal-Arcas, "Road to Paris COP21”

9. where the law is considered jus cogens, a law that extends to every country and is shameful not to
adopt. For this to occur some changes in organization must take place, which will be discussed in a
moment, but considering the almost complete ratification of the Kyoto Protocol, widespread
adoption and implementation appears feasible. Next, the treaty should aim to present specific
guidelines, instead of binding directives. This serves as a measure that would solve two problems.
First, guidelines over all parties would reduce the policy disparity between developed and
developing nations. This would provide additional incentive for the U.S. to join the treaty, coming
closer to the conditions of the Byrd-Hagel Resolution16
. Second, guidelines would provide for a
better system that does not allow for a scenario where large emitters simply buy their way out of
mandates. Guidelines as a policy would focus on communal mitigation itself, as opposed to the
individual avoidance of fees, encouraging collaboration between countries to assist each other in
lowering emissions. While guidelines have serious potential, it is important to ensure that they are
sufficiently specific. The biggest obstacle that guideline-based treaties have faced is their overly
general nature. Providing specific guidelines, without mandating their fulfillment strikes a balance
between the harsh directives of the Kyoto Protocol that estranged nations such as the U.S. and,
recently, Canada and the general suggestions of the Cancun agreement that merely served as a
symbolic declaration of intent. The final condition necessary for success in incorporating the U.S.
at COP21 is a reorganization of the categorization scheme. In 2015 grouping China and India, the
1st
and 3rd
largest emitters today, with developing nations that have economies just a fraction of
their size is a flaw in the viewpoint of the United States. From a point of practical consideration
China and India had lower standards than nations in the E.U., even though they had a much larger
stake in overall emissions. Successfully moving China specifically out of the developing nations
category would provide further incentive for the U.S., due to China’s growing geopolitical
16
Byrd-Hagel Resolution, S. Res. 98, 105th Cong., 1st Sess.

10. influence. This is feasible, as well, observing that China has begun a move towards numerous
alternative energy sources. The portion of energy produced by hydropower in China has increased
markedly in the past year and the government constantly encourages growth in the alternative
energy sector. If this reclassification takes place, it has the possibility of being the final aspect that
will solidify a scenario where the U.S. will ultimately ratify a substantial climate change treaty.
After observing the inability for the Kyoto Protocol to affect global greenhouse gas
emissions, it is clear that a new approach must be taken if any significant climate change
mitigation is desired. By identifying the major flaw in the treaty, the absence of the United States,
it is easy to see that any successful treaty must incorporate the U.S. Through analyzing the reasons
for the non-ratification by the United States the conditions necessary for a solvent treaty can be
derived: specific guideline-based policy, reclassification of China and India, and most importantly
the ascension of the treaty to peremptory status. If all these conditions are fulfilled under a treaty
drafted at COP21 and implemented soon after, there is a high possibility that the U.S. will finally
ratify an emission reduction treaty and significant progress in climate change mitigation can finally
be made.

11. Bibliography
Bothe, Michael. "International Climate Change Policy After Doha1." Environmental Policy and Law 44, no. 1 (02,
2014): 110-116. http://search.proquest.com/docview/1537381928?accountid=12012.
Byrd-Hagel Resolution, S. Res. 98, 105th Cong., 1st Sess. (1997). http://www.nationalcenter.org/KyotoSenate.html.
"Doha amendment to the Kyoto Protocol." United Nations Framework Convention on Climate Change.
http://unfccc.int/files/kyoto_protocol/application/pdf/kp_doha_amendment_english.pdf.
Dutch Ministry of Housing, Spatial Planning and the Environment PBL Netherlands Environmental Assessment
Agency. Trends In Global CO2 Emissions - 2014 Report. Report no. 1490. The Hague: PBL Publishers,
2014. http://edgar.jrc.ec.europa.eu/news_docs/jrc-2014-trends-in-global-co2-emissions-2014-report-
93171.pdf.
"First steps to a safer future: Introducing the United Nations Framework Convention on Climate Change." United
Nations Framework Convention on Climate Change. Last modified 2014.
http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.
Goldberg, Suzanne. "Cancún climate change summit: America plays tough." The Guardian, November 30, 2010.
http://www.theguardian.com/environment/2010/nov/30/cancun-climate-change-summit-america.
Hearings before the Senate Foreign Relations Committee and the Environment and Public Works Committee (2002)
(statement of Chuck Hagel, Senator). http://www.epw.senate.gov/107th/Hagel_072402.htm.
"Kyoto Protocol." In Encyclopædia Britannica. http://academic.eb.com/EBchecked/topic/737984/Kyoto-Protocol.
"Kyoto Protocol to The United Nations Framework Convention On Climate Change." United Nations Framework
Convention on Climate Change. http://unfccc.int/resource/docs/convkp/kpeng.pdf.
Lau, Lee Chung, Keat Teong Lee, and Abdul Rahman Mohamed. "Global Warming Mitigation and Renewable
Energy Policy Development from the Kyoto Protocol to the Copenhagen Accord—A Comment."
Renewable and Sustainable Energy Reviews: 5280-284.
http://www.sciencedirect.com/science/article/pii/S136403211200264X.
Leal-Arcas, Rafael and Luigi Carafa. "Road to Paris COP21: Towards Soft Global Governance for Climate
Change?" Renewable Energy Law and Policy: RELP 5, no. 2 (2014): 130-135.
http://search.proquest.com/docview/1657514257?accountid=12012.
Schiermeier, Quirin. "The Kyoto Protocol: Hot air." Nature, November 28, 2012. http://www.nature.com/news/the-
kyoto-protocol-hot-air-1.11882.