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Legal options for addressing a gap between Kyoto Protocol commitment periods and implications of a gap

Achala Chandani Abeysinghe (PhD)

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for sustained capacity building in support of international climate change negotiations

pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

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• The objective of the Kyoto protocol is to establish a legally binding international agreement.

• The target agreed upon was an average reduction of 5.2% from 1990 levels by the year 2012. According to the treaty, in 2012, 37 Annex I countries must have fulfilled their obligations of reduction of greenhouse gases emissions established for the first commitment period.

• The Protocol establishes a structure of rolling emission reduction commitment periods, with negotiations on second period commitments that started in 2005.

• The first period emission reduction commitments expire at the end of 2012.

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The important architectural elements of the Kyoto Protocol

Commitments to the Annex I countries

The heart of the Protocol lies in establishing commitments for the reduction of greenhouse gases that are legally binding for Annex I countries. (Article 3)

Legally binding economy-wide, absolute emissions reduction targets for developed countries, expressed as a percentage below the 1990 base year (Annex B)

Long-term viability provides a framework that can be updated for each commitment period, while maintaining its essential elements. Ability to list new countries (Annex B), Ability to list new gases and classes of gases (Annex A).

Top down approach setting an overall objective, an aggregate goal, for developed countries, allowing appropriate consideration of the science and of equity

Comparability of efforts Comparability of effort between developed countries is established through their respective targets (Article 3.1)

Common accounting (scope, methodologies GWPs etc), common reporting, common sources etc - allow comparability

Use of Global Warming Potentials to allow comparability of the impacts of different gases on global warming (Article 5.3).

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Compliance mechanism composed of two tracks – facilitative and enforcement (Article 18)

Mandatory review of provisions

For subsequent commitment periods (Article 3.9)

Supplementarity of external actions

(ie CDM) to domestic actions for the purposes of meeting commitments under Article 3 (Article 6.1d)

Measuring , reporting and monitoring

System of 5-year commitment period, with comparability of effort measured against a common 1990 base year (Articles 3.1 and 3.7)

Required reporting on ”demonstrable progress” for developed countries, establishing an important reporting requirement and stocktaking (Article 3.2)

Monitoring, review, international and verification system (Articles, 5,7,8 and associated decisions)

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Kyoto Protocol CommitmentPeriods

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Agreeing on a Second Commitment Period

• Nothing in the Kyoto Protocol binds parties to agree to a second commitment period.

• Only they are obliged to make efforts to reach agreement on second commitment period.

• Only consenting parties would be bound by it.

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Domestic ratification process

• If amendments are adopted in Durban, there is less than a year for the amendments to enter into force.

• Domestic ratification processes are likely to involve a long process (presenting the amendments adopted by the CMP to national legislative bodies)

• Such procedures could result in a delay between the adoption of a decision to amend the protocol and the entry into force of such amendments.

• This would result in a gap between the end of the first commitment period and the beginning of the subsequent commitment period.

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The key questions in this context are...

• How do we avoid the potential gap between the first and the second commitment period of the Kyoto Protocol?

• In case there is a gap, what are the implications?

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Alternative options for addressing a gap between commitment periods

1. Changing the existing lengthy amendment procedures contained in Article 20 and 21 in the Kyoto Protocol to allow for expedited entry into force

– Currently, amendments to the Kyoto Protocol and its Annex B requires an ‘opt-in’ procedure which means a State is not bound by the amendment unless it undertakes a ratification procedure and deposits an instrument of acceptance with the Depositary

(a)Can introduce an ‘opt-out’ procedure: an amendment would enter into force after a certain period, except for the Parties that have notified that they cannot accept the amendment.

(b) An opt-in procedure that would require a lower number of ratifications for the amendment to enter into force

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(C )A hybrid procedure, which combines the opt-out and opt-in procedure by allowing the Party to elect one of the two procedures

(d) An adjustment procedure, which allows adjustments to be made to annexes through decisions . It could become binding for Parties on a date specified by the decision or the amendment.

However, • These amendments would be subject to the existing entry into

force provisions in Article 20.• Therefore, these options would not assist in avoiding a gap

between the end of the first commitment period and the beginning of the second commitment period, but would be more relevant for subsequent commitment periods.

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2. Provisional application of amendments as provided for in the Vienna Convention on the Law of Treaties

– Article 25: formal application and successor protocol could be combined with provisional application

– This means, there could be a decision saying that amendments or new treaty would ‘provisionally apply’ pending their entry into force.

– There is flexibility in designing methods of provisional application with respect to timing, scope, and effect of provisional application.

– A provisional application will bridge the gap between the amendment and its formal entry into force.

However

– Application of this option would only be relevant if the amendment gets the political support in the first place

– Negotiators must be certain that the amendments will obtain domestic approval for ratifications.

• legal effect of provisional application is binding.

• e.g. 1994 United Nations International Tropical Timber Agreement, United Nations Convention on the Law of the Sea

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3. Possible extension of the first commitment period.

– the same targets to be applied to an extended first commitment period (e.g. until 2014)

– the same targets to be applied in a specific time period immediately following the first commitment period (e.g. from 2013 to 2014) in order to bridge any gap and provide for continuity to assist Parties in meeting their QELROs for the subsequent commitment period.

• This option also requires an amendment to the Protocol requiring a lengthy ratification process.

• However, an amendment to extend the first commitment period could, be provisionally applied. The provisional application clause could be included in a CMP decision.

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4. Unilateral Declaration

– A state declares that it considers itself to continue to be bound by existing emissions targets.

– However, this option could create problems with compatibility and consistency.

5. CMP could decide to extend the first commitment period by way of a decision acting in accordance with Article 13.4, of the Kyoto Protocol (as distinguished from a decision under Article 20 or 21).

– Article 13.4: The CMP shall keep under regular review the implementation of this Protocol and shall make,…, the decisions necessary to promote its effective implementation.

– Such a CMP decision could also provide political guidance on matters such as the targets for such an extension, the length of the extension period, reporting obligations and impacts on flexible mechanisms.

– However, such a decision would not be legally binding, rather, it would be a political commitment to extend the commitment period.

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Implications of a gap between commitment

periods

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CDM

• As a general rule, neither the text of the Kyoto Protocol, nor the subsequent decisions of the COP and the CMP explicitly link the CDM to the first commitment period of the Kyoto Protocol.

• Article 12. 2 of the Kyoto Protocol provides that the purpose of the CDM shall be to assist Parties not included in Annex I in achieving sustainable development and in contributing to the ultimate objective of the Convention, and to assist Parties included in Annex I in achieving compliance with their quantified emission limitation and reduction commitments under Article 3.

• Absence of QELROs during the gap period would not prevent the continuation of the CDM. New CDM project activities could be validated and registered, emission reductions or removals that occurred after the first commitment period could be verified, and corresponding CERs could be issued.

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Compliance Mechanism• Objective of the compliance mechanism is to facilitate, promote

and enforce compliance with commitments under the Kyoto Protocol.

• mandates of the two branches of the Compliance Committee (the facilitative branch and the enforcement branch) indicates that the commitments referred to in its mandate are not confined to those set out in Article 3 of the Kyoto Protocol.

• However, if there is no obligation to maintain a national system or a national registry during the gap period then the enforcement branch will not be able to decide whether a country is in non compliance or not.

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Adaptation Fund

• A gap will not affect the existence of the Adaptation Fund per se.

• However, long-term financing of the Fund may be affected by a decline in the issuance of CERs during an ensuing gap period.

• This, however, should not affect the ability of Parties to make voluntary contributions to the Fund.

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‘Kyoto Protocol is not a yogurt’

• The Kyoto Protocol will Continue regardless of whether a second commitment period is agreed to or if there is a gap between commitment periods

• The CMP, the authority of its decisions and the secretariat would continue to exist.

• Only the first commitment period and any obligation to reduce GHG emissions come to an end.

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Thank You!

Achala Chandani Abeysinghe (PhD)researcher

International Institute for Environment and Developmentachala.chandani@iied.org