Does the prohibition on reservations contained in Article 26 of the Kyoto Protocol bar a state from rejecting certain amendments adopted by the Parties at COP15, in purported reliance on the right to reject amendments under Article 20(4) and/or Article 21(5)?
The general rules on the making of reservations to treaties are set out in the Vienna Convention on the Law of Treaties Articles 19-23. That treaty is generally accepted as reflecting customary international law on the law of treaties. Article 19 provides that a state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: “(a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) or (b), the reservation is incompatible with the object and purpose of the treaty”. In this case the situation would be governed by Article 19(a) and the question is whether rejection of an amendment is capable of constituting a ‘reservation’.
The Vienna Convention does not further define what a reservation is, nor does it expressly address the issue of whether rejection of an amendment is capable of constituting a reservation. In my view, this is a difficult argument to sustain for the reasons set out below.
By way of a preliminary comment only, the difficulties with such an argument would seem to be that such an interpretation has the effect of making Article 26 a prospective prohibition on reservations to provisions which were not contained in the KP at the time a rejecting state acceded to ratified the Protocol. Furthermore, the argument also appears to be inconsistent with the express terms of Articles 3, 20 and 21 of the KP.
In relation to the entry into force of amendments to an annex other than A or B, Article 21(5) applies and this provision expressly refers to the right of Parties not to accept such an amendment. Article 3(9) of the KP refers to adoption of subsequent commitments for Annex I Parties in accordance with Article 21(7) which provides:
“Amendments to Annexes A and B to this Protocol shall be adopted and enter into force in accordance with the procedures set out in Article 20, provided that any amendment to Annex B shall be adopted only with the written consent of the Party concerned” (emphasis added)
Under Article 21(7) therefore, the procedure under Article 20 applies and this includes the right of Parties to reject an amendment as reflected in subparagraph (4). In addition, there is an express requirement for written consent to any change to Annex B. An interpretation that a rejection of an amendment constitutes a prohibited reservation contrary to Article 26 does not therefore seem tenable in the light of the express terms of Article 21(7).
As a general matter, I am not aware of any case where rejection of an amendment has been held to constitute a reservation in the light of a general prohibition on reservations similar to Article 26 KP. It might be worth conducting further research to see if there has been any such case but in my view the argument will be a difficult one to sustain in this case as it has the effect of removing the express right to reject amendments as contained in the KP.
Against this it could perhaps be argued that a rejection of such agreed targets undermines the very object and purpose of the KP which reflects the objective set out in Article 2 UNFCCC and that the Parties envisaged the adoption of further commitments as reflected in Article 3. The argument would be that the rejection of the amendment constitutes a disguised reservation. However my preliminary view is that this would be a difficult argument to sustain in the light of the express terms of Article 21(7). The matter could be reviewed once it is clearer what the contested amendments are likely to be.
Different considerations would of course apply if a new agreement were to be adopted and a state purported to make a reservation in respect of certain provisions in the face of a general prohibition of the type contained in Article 26 KP.