by Daniel Firger
As a result of the Japanese earthquake and tsunami and the ongoing crisis at the Fukushima Daiichi nuclear power plant, speculation is mounting that Japan will be unable to meet its greenhouse gas emission (GHG) reduction targets under the Kyoto Protocol and may declare “force majeure,” effectively denouncing the treaty which bears the name of its historic capital city.
This speculation is overwrought. For any number of reasons, both legal and political, Japan has no need to take such a dramatic and public step.
This is not to say that the Fukushima nuclear disaster will leave international climate diplomacy entirely unaffected. With COP-17 just eight months away, safety concerns about nuclear power plants are calling many nations’ emissions reduction commitments into question. But on the question of Japan’s treaty obligations, we must bear in mind at least three observations:
First, and most importantly, Japan has already indicated in no uncertain terms that it will not be a party to renewal of the Kyoto Protocol, which is set to expire in 2012. Throwing the December 2010 Cancun climate talks into a temporary tailspin, Japanese negotiators made it clear early on that the country would refuse to sign up for a second commitment period under the existing treaty framework. They argued that the exclusion of China and the United States rendered the agreement fundamentally unfair, and won out: the Cancun Agreements reflect a new consensus that future climate change diplomacy, to be successful, will have to prioritize actions by the world’s top two emitters.
Even before the March 11 earthquake and tsunami, then, Japan was on record opposing the extension of Kyoto in its current form. Since the first commitment period will soon come to a close, Japan has little need to noisily withdraw from the treaty.
Second, Japan need not make a “force majeure” argument – “rebus sic stantibus” (changed circumstances) under international law – in order to exit from the Kyoto Protocol. Both the Protocol and the UN Framework Convention on Climate Change (UNFCCC) contain express provisions on withdrawal (KP article 27; UNFCC article 25). These allow states to unilaterally withdraw from the climate treaty and its protocol without justifying their conduct to other treaty parties.
Like the justifications necessary to effectively declare “force majeure” in the private law context, the doctrine of “rebus sic stantibus” is somewhat controversial under public international law, since “recognition of a changed circumstances doctrine would be subject to rampant abuse and would undermine the international legal system’s commitment to treaty compliance,” (known to international lawyers as the principle of “pacta sunt servanta”) . Indeed, although codified in the Vienna Convention on the Law of Treaties (PDF) in 1969, “there has never been a successful assertion of the doctrine in a court case and no clear example of its successful use diplomatic exchanges” . With no real obstacle to a unilateral withdrawal, Japanese diplomats are unlikely to use Fukushima as a legal justification for the country’s non-compliance with Kyoto.
Finally, it is important to distinguish between a legal justification and a political excuse, and between a treaty withdrawal and a treaty breach. Although Japan is unlikely to withdraw from Kyoto and is even more unlikely to make a “force majeure” argument to justify such a withdrawal, the country may still use the Fukushima disaster to explain, and provide political cover for, its failure to meet its Kyoto Protocol targets. As Laurence Helfer explained in his 2005 Virginia Law Review article, “Exiting Treaties,” quitting a treaty is vastly different from failing to meet a state’s international law obligations. Although internationally lawful, the very public and affirmative act of treaty renunciation can, perhaps counterintuitively, yield more serious political consequences than an outright breach.
Especially in the context of climate change diplomacy, where some states are on track to exceed their Kyoto Protocol emissions reduction targets and therefore violate the express terms of the treaty, “exit” seems to be less politically palatable than “breach,” even for a country like Japan where recent events would provide an acceptable justification for its withdrawal from Kyoto.
All in all, it is too soon to tell what impact Fukushima will have on the Kyoto Protocol’s post-2012 successor regime. It seems likely, however, that newfound nuclear skepticism in Europe, China, and elsewhere will lead, at least in the near term, to greater reliance on fossil fuels. And this will make it all the more difficult to meet the stringent cuts in GHGs required to avoid “dangerous anthropogenic interference” with the Earth’s climate system. For now, as in 1997 during the Kyoto Protocol negotiations, all eyes are on Japan.
 Laurence Helfer, “Exiting Treaties,” 91 Va. L. Rev. 1579, 1643 (2005).