Canada’s withdrawal from the Kyoto Protocol before the end of the Commitment Period

Legal assistance paper

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Date produced: 01/12/2011

1. What are the legal implications of Canada formally withdrawing from the Kyoto Protocol prior to the end of the first commitment period?

2. In particular, can the Compliance Committee still hold Canada to account, or in some other way assess Canada’s compliance with emissions targets, notwithstanding formal withdrawal before the end of the commitment period? 

a. If not, is there a way for the UN Depositary to delay withdrawal legally or reject a Party’s letter of withdrawal? 

b. Has the UN Depositary ever done this before?

3. Is it possible to hold Canada to account for potential non-compliance on a pro rata basis, i.e. can Canada’s commitment period emissions target be pro-rated (i.e. the level of reductions required had the commitment period lasted from 1 Jan 08 until the date of Canada’s letter of withdrawal) to hold Canada to account for non-compliance up to the date of the letter of withdrawal?  If not, what would be required for this to be achieved?

Summary

If Canada withdraws from the Kyoto Protocol prior to the “true-up period” at the end of the first commitment period, the Compliance Committee cannot assess Canada’s compliance with its assigned amount. We are not aware of any procedure for allowing the UN Depositary to delay or reject a Party’s withdrawal from the Kyoto Protocol.

 Advice

1. Compliance with emissions targets can only be assessed by the Compliance Committee’s enforcement branch after the end of the commitment period in 2012. Canada is required to submit its final national inventory report for annual GHG emissions data for the period ending December 31, 2012 on April 15, 2014. Decision 27/CMP.1 states that a Party has 100 days after the expert review of its final emissions inventory report for the commitment period to make up any target shortfall by buying carbon units (the “true-up period”). Only after that time can the enforcement branch assess whether a Party has exceeded its assigned amount. In this regard, the timing of Canada’s withdrawal is important.

 In accordance with Article 27 of the Kyoto Protocol, Canada may withdraw from the Protocol by giving written notification to the Depositary. Any such withdrawal will take effect upon expiry of one year from the date of receipt by the Depositary of the withdrawal notification or such other date as specified in the notification.

Assuming the likely scenario that Canada withdraws from the Kyoto Protocol prior to the end of the true-up period, the enforcement branch will have no power under decision 27/CMP.1 to assess Canada’s compliance with its assigned amount. This is because:

(a)  as noted above, the enforcement branch can only assess compliance after the true-up period; and

(b) at the end of the true-up period, the enforcement branch can only assess the compliance of a Party to the Kyoto Protocol.

2. We are not aware of any way that the UN Depositary may delay a Party’s withdrawal from the Kyoto Protocol or reject a Party’s letter of withdrawal.

3. We are not aware of any provision under the Kyoto Protocol or relevant rules that allow a Party’s assigned amount to be pro-rated.

It appears that a pro-rata based assessment can only occur through amendments to the actual Kyoto Protocol, rather than to a decision by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP). Article 3 of the Protocol, specifically paragraphs 1 and 7, suggests that the reduction targets are calculated on the commitment period as a whole. Amendments to the Kyoto Protocol would need to be in accordance with the normal amendment procedures described in Article 20 of the Protocol, which stipulates that an amendment may only be made in a CMP session, that a proposed amendment must be notified to all parties at least six months prior to the meeting, and that such amendment may pass either by consensus or by a three-fourths majority. Moreover, if the amendment passes by majority, it will only be binding upon members who notify the Depository of their acceptance. Effectively, a party that votes against the amendment will not be obliged to abide by it even if it passes by a three-fourths majority.

In addition to such amendment not being binding unless accepted by Canada, even if Canada’s assigned amount could be pro-rated through an amendment to the Protocol, the legal consequences for any non-compliance would have no practical effect since Canada would not be a Party to the second commitment period of the Kyoto Protocol.