1. Do the obligations contained in Articles 5, 7 and 8 of the Kyoto Protocol carry forward (after 2012) as obligations on KP Annex 1 Parties even if they do not ratify a second commitment period (assuming there will be a second commitment period that other KP A1 parties do ratify)?
2. Will these non-ratifying parties still be subject to the compliance procedure?
We consider that the situation in which a Party does not ratify a second commitment period should not materially differ from the situation in which a second commitment period has not been agreed upon (a ‘gap’).
The status of document FCCC/KP/AWG/2010/10 (the “Secretariat Paper”) is not entirely clear. The reasoning used in the Secretariat Paper sets out one point of view. However, one could also take another position, as set out in this advice.
We consider that the obligation to maintain a national system for the estimation of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol will most likely continue to remain in force following the expiry of the commitment period, including for those Parties not ratifying a subsequent commitment period.
The obligation to provide information in accordance with Article 7.1 in order to ensure compliance with Article 3, will most likely not apply following the expiry of the commitment period, including for those Parties not ratifying a subsequent commitment period.
The obligation to provide information in accordance with Article 7.2 in order to ensure compliance the Parties general commitments under the Protocol, will most likely apply following the expiry of the commitment period, including for those Parties not ratifying a subsequent commitment period.
In relation to Article 7.2, we consider that the review of information in accordance with Article 8 will have to be maintained following the expiry of the commitment period, including for those Parties not ratifying a subsequent commitment period.
1.1 The query refers to the conclusions set out in the Secretariat Paper concerning the consequences of a gap between the existing commitment period and a subsequent commitment period. However, in respect of the continued application of the obligations set out in Articles 5, 7 and 8 of the Protocol, the legal consequences implied by such a gap between commitment periods and the implications of some Parties not ratifying a subsequent commitment period are in materiality the same. Both a gap between the existing and a subsequent commitment period and the situation where only some Parties agree to a subsequent commitment period raise the question of whether a subsequent commitment period under Article 3 is a prerequisite for validity of the obligations regarding the compliance procedures set out in Articles 5, 7 and 8.
1.2 While the consequences of not adopting a subsequent commitment period are clear in respect of Article 3, the Protocol is silent on the specific consequences to the other obligations set out in the Protocol, including those set out in Articles 5, 7 and 8. As such the Protocol does not specify whether the other obligations set out in the Protocol are considered ancillary obligations which are dependent on the substantial obligations in Article 3 or if the obligations are intended to continue in force regardless of the expiry of the commitment period.
1.3 It should be noted that the commitment period pursuant to Article 3 is not in general convergent with the term of the other provisions under the Protocol and as such the commitment period is not a prerequisite for the validity of the Protocol. In general the provisions of the Protocol will continue in force even if the commitment period has expired and the obligations to reduce green house emissions do not apply any longer.
1.4 The Protocol does provide for the release of the Parties from their obligations by way of withdrawal entirely from the Protocol. In this regard, the Protocol sets out a specific procedure in Article 27 requiring the Parties to provide one year’s notice in order to withdraw from the Protocol.
1.5 The Secretariat Paper states that it is doubtful whether there is an obligation to maintain a national system under the Kyoto Protocol during a gap. The Secretariat Paper refers to one of the purposes of having a national system, without looking at the other purposes. One could question whether this approach is the correct one.
2. Obligations of Article 5 of the Protocol
2.1 Article 5, paragraph 1 imposes an obligation on each Party to have a national system in place for the estimation of anthropogenic emissions by sources and removal by sinks of all greenhouse gases not controlled by the Montreal Protocol no later than one year prior to the start of the first commitment period. As set forth in the Secretariat Paper, this obligation is not linked to the existence of a commitment period.
2.2 The Secretariat Paper states that the objectives of the national system are, inter alia, to assist Parties included in Annex I in meeting their commitments under Articles 3 and 7 and that it is doubtful whether there is an obligation to maintain a national system during a gap. This conclusion is based on the consideration that the commitments under Article 3 are a prerequisite for maintaining the obligation under Article 5 and that expiry of the commitment period would consequently also lead to the expiry of the obligation to maintain the national system.
2.3 This line of reasoning used in the Secretariat Paper does not seem entirely convincing. The wording used in Article 5, paragraph 1 implies an unconditional obligation to have a national system in place and, as such, Article 5 does not state or imply that the obligation to maintain a national system should only apply during the commitment period. Further, it should be emphasised that Decision 19/CMP., 1, annex, paragraph 5 (b) also states that one of the objectives of the national system is to assist the parties in meeting their commitments under Article 7. As further described in section 3 below, Article 7.2 sets out an obligation to submit additional information in relation to the national communication which is submitted by the Parties under Article 12 of the Convention. This obligation is not directly related to the compliance with the commitments under Article 3, but the Parties’ general compliance with the Protocol. Accordingly, it could be argued that the obligation under Article 5 is not dependent upon Article 3 being in force and that the obligation to maintain the national system would, thus, also apply following the expiry of the commitment period.
2.4 This argument is further supported by the fact that Article 27 provides for the withdrawal by a Party from the Protocol. This would indicate that it is the intention that the Parties should be subject to the obligations until a Party chooses to withdraw in accordance with Article 27.
2.5 Based on the above considerations, it is questionable whether the obligation to maintain a national system would cease to apply to a Party not having renounced the Protocol in accordance with Article 27.
3. Obligations of Article 7 of the Protocol
3.1 Article 7.1 states that each party shall submit in its annual inventory the necessary supplementary information for the purposes of ensuring compliance with Article 3. In the Secretariat Paper it is concluded that this obligation will not apply to the extent that a Party does not have any commitments under Article 3, whether this is a result of a gap between the existing and a subsequent commitment period or a result of a Party not ratifying such subsequent commitment period.
3.2 Article 7.1 specifies the scope of the information to be provided as the information necessary to ensure compliance with Article 3. The primary purpose of this obligation is to provide the information needed to enforce Article 3. It is therefore a valid argument that no information would be necessary in order to ensure compliance with Article 3, to the extent said Article would no longer apply. Even though the Article does not specifically state that the obligation should only apply during the commitment period or any subsequent commitment period, it can still be assumed that the application of the article in respect of a Party is dependent upon the Party being subject to commitments under Article 3.
3.3 Article 7.2 provides that the national communication submitted under Article 12 should include all supplementary information necessary to demonstrate compliance with a Party’s commitments under the Protocol (i.e. without restricting such compliance to Article 3). As compliance with Article 3 is only one of the objectives of the Protocol, it could be argued that the obligation to provide information in accordance with Article 7.2 would continue following the expiry of the commitment period.
3.4 Based on the above considerations, it is most likely that the obligations under Article 7.1 would cease to apply upon the expiry of the commitment period, while the obligations under Article 7.2 would continue to apply to all Parties even following the expiry of the commitment period until the Protocol is renounced in accordance with Article 27.
4. Obligations of Article 8 of the Protocol
4.1 Article 8 provides for an expert review of the information provided by the Parties pursuant to Article 7. It is further stated that the expert review shall result in a report assessing the implementation of the commitments of the Party and identifying any potential problems in, and factors influencing, the fulfilment of commitments. The Article specifically prescribes that the information submitted under Article 7.2 shall be reviewed as part of the review of communications.
4.2 In line with the conclusion set out in the Secretariat Paper, the obligation to review the information provided in accordance with Article 7, is dependent upon Article 7 actually applying. However, as described above the obligation to provide information (at least under Article 7.2) will continue to remain in force following the expiry of the commitment period and, thus, Article 8 remains relevant with respect to this information.
Our view is that the approach taken in the Secretariat Paper is rather simplistic in placing too much emphasis on the link between Articles 5, 7 and 8 and the commitments under Article 3. Whilst the Secretariat Paper is correct in interpreting Articles 5, 7 and 8 in light of certain of the objectives of the Protocol this interpretative approach should be extended to analyzing the obligations in the context of stabilization of greenhouse gas concentrations beyond simply meeting the commitments provided for in Article 3. For example, the accounting and reporting obligations set out in the Protocol could still be used for fulfilling other objectives of the Convention, such as facilitating the commitment to cooperation in exchanging information relating to the climate system and climate change. Furthermore, our view is that if the intention was for certain obligations to fall away following a failure to ratify the second commitment period, express provision would be made for this eventuality rather than simply relying on the renouncement of the Protocol in accordance with Article 27.