Article 3.9 of the Kyoto Protocol (Part 2)

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Date produced: 31/03/2010

Are parties to the Kyoto Protocol legally obligated to agree a second commitment period?

I have been unable to find any provision in the Kyoto Protocol that makes Parties to it legally obligated to agree to a second commitment period (though the inverse is also true). The closest it comes is in article 3(9) which states:

 “Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the consideration of such commitments at least seven years before the end of the first commitment period referred to in paragraph 1 above.

However, in our view, the obligation here, if one exists at all (see below), presupposes the agreement to have a second commitment period – if that agreement is not forthcoming, the obligation to establish commitments for “subsequent periods” never arises.

In any case, in our view, the ‘obligation’ in the first sentence that commitments for subsequent periods (ie post-2012) for A1 Parties shall be established in amendments to Annex B to the Kyoto Protocol is, on balance, not legally binding.

The above provision is essentially an agreement to agree. Under international law, it would be designated as either punctationes (which is not bidning on the parties) or a pactum de contrahendo (which is binding on the parties). The difference between the two is that the latter imposes an obligation on the parties to settle the points in question (ie future commitments) by a treaty (or, in this case, an amendment to a treaty) whereas the former does not.[1]

Article 3(9) is not, in our view, a pactum de contrahendo since it does not impose an obligation on the parties to the Kyoto Protocol to settle the points in question by amendment to the protocol. Article 3(9) requires any amendments to Annex B to be adopted in accordance with article 21(7). Article 21(7) states:

Amendments to Annexes A and B to this Protocol shall be adopted and enter into force in accordance with the procedure 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)

In effect, article 21(7) gives individual countries (which are a party to the Kyoto Protocol) a veto over an amendment to Annex B which concerns that particular country – unless that country gives its written consent to the amendment to its commitments, that amendment cannot be adopted.

As a result, there is no legal obligation on Kyoto Protocol Parties to agree to a settle the points in question (the issue of commitments for subsequent periods) by amendment to the protocol.

It should be noted, however, that various commentators have argued that article 3(9) is a legally binding and that Parties to the Kyoto Protocol are “are clearly bound to establish second and subsequent commitment periods for Annex I Parties” and “Failure to comply with these provisions by failing to agree a second commitment period would be a breach by all Parties to the Kyoto Protocol – not merely Annex I Parties – of their legally binding obligations”.[2]

In our view, however, the author of that briefing paper has confused the obligation to agree a second commitment period with an obligation to agree commitments for a second period (the latter of which, we believe is also not legally binding for the reasons set out above).

For completeness, even if article 3(9) is legally binding and does mean that the Parties are required to agree to a second commitment period, it is not clear whether this is, in law, useful. The dispute settlement clause of the Kyoto Protocol (article 19) refers to article 14 of the UNFCCC.

Article 14 states that Parties shall settle disputes by negotiation or other peaceful means – eg parties can jointly opt to give jurisdiction over the dispute to the International Court of Justice (ICJ), though politically this is highly unlikely to be agreed to. Alternatively parties can, in advance, submit a written declaration to the UN Depositary that in the event of a dispute they agree to the submission of the dispute to the ICJ (article 14(2)). However, no Party has made a declaration that it agrees to the submission of a dispute to the ICJ.[3]

This being the case, there is no international forum for one state to bring a claim against an offending state in this context.

It may be that domestic actions are available but to answer this would require an assessment of climate litigation in jurisdictions across the world. This is an extremely large piece of work and has not been undertaken for the purposes of this response.


[1] International law: A Treatise, Volume 1, pg 660: Lassa Oppenheim

[2] Third World Briefing Paper No. 1: Why we need to save the Kyoto Protocol, Lim Li Lin (http://www.twnside.org.sg/title2/climate/briefings/copenhagen01/TWN.copenhagen.BP01.doc)

[3] Only two countries have made declarations in relation to article 14(2) of the UNFCCC: Cuba, which states that disputes must be settled by diplomatic means; and the Solomon Islands, which accepts arbitration as a a binding form of dispute settlement ().