Amendments to the Kyoto Protocol: Mechanisms to avoid cherry picking

Legal assistance paper

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Date produced: 02/11/2009

1. Is “an amendment” to the KP a single change or can it be a number of changes taken as a package ?

2. Do changes under Article 20 and Article 21 necessarily have to be taken together as a package or can parties ratify them separately (or pick and choose)?

1. Please note that the term “amendment” is not defined in the KP or in the Convention.

Article 20 of the Protocol which deals with amendments does not directly deal with this issue. Similarly, the draft Rules of Procedure (draft ROP) to the KP (see which, as I understand it,  are being applied in the absence of formal adoption (with the exception of rule 42 on voting) do not explicitly state whether an amendment can include a ‘package’ proposal.

However the draft Rules do address the issue of voting on parts of amendments/proposals (see in particular draft Rule 44) which provides that any representative may request that any part of a proposal or an amendment be voted on separately. If a Party objects the matter is put to a vote.

This rule appears to indicate that a ‘package’ proposal could be ‘broken up’ and voted on separately if Parties vote for such a procedure in accordance with Rule 44. However these rules do not, in my view, preclude the Parties agreeing to vote on a group of amendments as a ‘package’.

Other Rules (eg Rule 43, 46 and 47) refer to proposals which relate to the same question but this appears to encompass proposals which conflict, rather than proposals forming part of a package .

In conclusion it would appear unlikely that an amendment to the Kyoto Protocol which consists of a number of constituent elements would be immune to being unpicked by a Party or Parties. However, there appears to be nothing that would prevent the Parties from agreeing via COP decision that a package of amendments must be treated as being indivisible (ie to be treated genuinely as a package) notwithstanding Rule 44 above – see discussion below.

The best guide to how such amendments will be treated in relation to a particular treaty is previous practice by the parties. We have not had time to research whether there are any earlier precedents for such an approach in relation to the Kyoto protocol but our  understanding is that there have not been as no such extensive amendment exercise has been undertaken – this needs to be checked further however.

2.  On the face of it there is nothing expressly linking these two Articles suggesting that changes under them should be taken together.

However, Article 21(6) provides that “If the adoption of an annex or an amendment to an annex involves an amendment to this Protocol, that annex or amendment to an annex shall not enter into force until such time as the amendment to this Protocol enters into force”. The Convention contains an equivalent provision, Article 16(5) UNFCCC.

This appears to refer to amendments to annexes being linked to the substantive provisions of the KP. Identifying which amendments are linked so as to fall within the scope of Article 21(6) will depend on how those amendments are drafted. For example, where an amendment to an existing Article refers to a new Annex, Article 21(6) would be applicable in our view. Equally, where an amendment to an existing Article refers to the amended Annex or perhaps to “commitments for the second period as laid down in Annex xxx”, Article 21(6) would also appear to apply.

It is unusual for treaty articles to refer to ‘amended’ Annexes – it would be more usual to simply refer to the annex but a substantive reference to, for example, ‘the second commitment period’ could have the same effect.

Reliance on Article 21(6) to argue for a package approach would undoubtedly be preferable as it is an explicit provision of the KP. If there is any doubt as to whether the whole of a ‘package’ of amendments is covered by Article 21(6) – for example where it is not clear that the adoption of amendments to an annex ‘involves’[1] other amendments to the KP which create a new or revised flexibility mechanism there are two other possibilities:

(1)   A package of amendments could be drafted so as to ensure that the substantive amendments cross refer to an amended Annex/new Annex, for example so as to make access to a new/revised flexibility mechanism conditional on acceptance of new or revised targets. This may in fact bring the amendments back within the scope of Article 21(6) since it may be argued that on their face the amendments stand or fall together.

(2)   The Parties could also adopt a COP Decision stating that a package of amendments should be accepted or rejected in their entirety and that Parties may not selectively accept or reject elements of the package. The legal force of such a Decision would be open to debate depending on the language used, the past practice on the Parties’ approach to the legal status of COP Decisions and the context in which the amendment arises.

[1] ‘involves’ could be argued to refer only to strictly consequential amendments or alternatively to have a broader scope whereby the Parties understand that a package of amendments are to be taken together and cannot be cherry-picked.