On the basis that Article 16 of the Convention contains provisions for amending the annexes and Article 15 contains provisions for amending the Convention, can the UNFCCC be read as containing an intention that the Annexes should be periodically reviewed and modified?

Summary: 

With the exception of the review mandated by Article 4.2(f) of the Convention, there is no other mandatory review procedure for the Annexes. Parties are able to request amendments to reflect changes in circumstances (e.g. Cyprus’ inclusion in the EU), but this has been done on an ad hoc basis. In addition, the informal procedure in Article 4.2(g) has also provided Parties with the flexibility to take on more stringent commitments. In all instances, decisions to adhere to more stringent requirements under the Convention have been voluntary.

Advice:

Annexes to the Convention are restricted to ‘lists, forms and any other material of a descriptive nature that is scientific, technical, procedural or administrative in character’  (Art. 16.1).  The procedure for amending annexes in Article 16 is the same as the procedure for amending the Convention in Article 15. However, the entry into force of amendments to annexes pursuant to Article 16 is less stringent. That is because the material in annexes is not intended to create commitments for the Parties. Article 16.3 of the Convention provides that once adopted, annexes enter into force and bind all Parties, except those that have submitted notices of non-acceptance to the Depository within 6 months of the adoption of the annex.[1]

Article 4.2(f) of the Convention mandates a review of the list of countries included in Annex I and Annex II to the Convention not later than 31 December 1998. The Article states:

The Conference of the Parties shall review, not later than 31 December 1998, available information with a view to taking decisions regarding such amendments to the lists in Annexes I and II as may be appropriate, with the approval of the Party concerned;

This review was held at COP 4 where Decision 15/CP.4 considered deleting the name of Turkey from the lists included in Annexes I and II but was unable to reach agreement and the matter was deferred.  Turkey was eventually deleted from Annex II through Decision 26/CP.7 (but remained in Annex I, noting that it was in a situation different to other Parties included in Annex I).  Decision 26/CP.7 also noted that the entry into force of the amendment was subject to the provisions of Article 16.3.

Ad hoc proposals to amend the Annexes have also been proposed at various COPs. In 1999 Kazakhstan sought to be included in Annex I, however, the COP Presidency as unable to reach consensus about the amendment. Kazakhstan subsequently relied upon Article 4.2(g) of the Convention to notify the Depository that it intended to be bound by the commitments of Annex I Parties set out in Articles 4.2(a) and (b). A similar procedure has been adopted by Monaco, the Czech Republic, Slovakia, Slovenia and Croatia. Where Article 4.2(g) of the Convention is used, there is no need to formally amend the Convention.

Most recently, Cyprus and the EU sought to amend Annex I to the Convention to add the name of Cyprus (following its accession to the EU). This was agreed to in Durban through Decision 10/CP.17.

With the exception of the review mandated by Article 4.2(f) of the Convention, there is no other mandatory review procedure for the Annexes.[2] Parties are able to request amendments to reflect changes in circumstances (e.g. Cyprus’ inclusion in the EU), but this has been done on an ad hoc basis. In addition, the informal procedure in Article 4.2(g) has also provided Parties with the flexibility to take on more stringent commitments. In all instances, decisions to adhere to more stringent requirements under the convention have been voluntary.

Russian Proposal

The Russian Federation communicated a proposal to amend Article 4.2(f) of the Convention in advance of COP 17. The amendment proposes the addition of the following words at the end of the sub-article:

“A further review of amendments to the lists in annexes I and II shall be conducted on a periodic basis, as determined by the Conference of the Parties, until the objective of the Convention has been achieved.”

The rationale for such an amendment is that economic and technological developments have taken place since the adoption of the Convention and are continuing to do so, hence the need to periodically review the annexes in light of those changes. It would appear that a number of developed countries were initially supportive of the Russian proposal.  However, developing countries, in particular India, have pushed back on a formal decision being taken on the proposal at each of the COPs since the proposal was tabled.  In Warsaw at COP 19 Parties also noted the overlap of the issue with the work program of the ADP.  In the absence of any formal agreement on resolving the issue, the agenda item is likely to remain on the COP agenda for COP 20.