european capacity building initiative
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european capacity building initiative
initiative européenne de renforcement des capacités
ecbi
Legal options for addressing a gap between
Kyoto Protocol commitment periods and
implications of a gap
Achala Chandani Abeysinghe (PhD)
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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Introduction
•
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.
The important architectural elements of the Kyoto Protocol
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)
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Commitments to the Annex I
countries
Common accounting (scope, methodologies GWPs etc), common
reporting, common sources etc - allow comparability
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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Compliance mechanism
First Commitment
Period
Second Commitment
period
Third Commitment
Period
• 01/01/2013
• ----------------
• -------------• --------------
• 01/01/2008
• 01/12/2012
CMP adopt amendments at its
seventh session
03/10/2012
Depository receive
instruments of
acceptance form three
fourths of Parties (143)
Amendments to the
Kyoto Protocol enter
into force
01/01/2013 Second
commitment period
begins
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Kyoto Protocol Commitment
Periods
• 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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Agreeing on a Second Commitment
Period
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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?
1.
Changing the existing lengthy amendment procedures contained in
Article 20 and 21 in the Kyoto Protocol to allow for expedited entry into
force
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Alternative options for addressing a gap between
commitment periods
– 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
(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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(C )A hybrid procedure, which combines the opt-out and opt-in
procedure by allowing the Party to elect one of the two
procedures
2.
–
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
timing, scope, and effect of provisional application.
–
to
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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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 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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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.
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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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.
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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.
• 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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‘Kyoto Protocol is not a yogurt’
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Achala Chandani Abeysinghe (PhD)
researcher
International Institute for Environment and Development
achala.chandani@iied.org
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Thank You!