1. Is there any precedent for one country’s obligations entering into force only if another country ratified the same treaty?
2. What is the entry into force language that would be needed to ensure that the US would only have access to market mechanisms if they ratify the outcomes of the LCA negotiations?
3. What is the entry into force language that would be needed to ensure that China’s commitments under the LCA would only come into force if/when the US ratifies the outcome of the LCA negotiations?
1. Before or after signing a treaty, a State may make a declaration that it does not intend to ratify until another country has ratified. There is precedent for this. However, a State cannot deposit an instrument of conditional ratification.
Several treaties, including the Kyoto Protocol and Montreal Protocol, have made their entry into force conditional upon a certain number of countries ratifying the treaty.
A State will only be bound by a treaty if it consents to be bound. This is a fundamental principle of the international legal system and is set out in the preamble to the Vienna Convention on the Law of Treaties 1969 (VCLT). Art 11 of the VCLT provides that the consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means so agreed. Art 12 sets out the procedure for consent by signature. Art 14 sets out the procedure for consent by ratification.
We note that both the United Nations Framework Convention on Climate Change 1992 (UNFCCC) and the 1998 Kyoto Protocol to the UNFCCC provide for consent to be expressed by means of ratification (Arts 22 and 24 respectively) – in other words, simply signing these treaties is not enough.
Assuming that any new treaty will also require ratification, we note that:
- conditional ratification of a treaty is not acceptable unless the treaty expressly provides for this. In other words, a State cannot deposit an instrument of ratification that expresses consent to be bound subject to another State consenting to be bound unless expressly provided for in the treaty. We are not aware of any treaties that have required a specific country to ratify the treaty before it enters into force or provides for conditional ratification; and
- a State could sign but decide/declare not to ratify the treaty until the US (or another State) ratifies the treaty. An example of this is a declaration by the President of Belarus in 2004 that Belarus’s ratification of the Single Economic Space treaty (between members of the Commonwealth of Independent States) was conditional upon Ukraine’s ratification.
Alternatively, if the new treaty allows reservations, the State may make a reservation to a similar effect. However, we note that the UNFCCC and the Kyoto Protocol both prohibit States from making reservations (Arts 24 and 23 respectively).
2. Regarding question 2, no particular language is required. The market-based mechanisms are built into the Kyoto Protocol to assist State parties achieve carbon emissions reduction targets. Accordingly, the US will only have access to these mechanisms if it ratifies the Kyoto Protocol. Similarly, the US would need to ratify any agreement resulting from the LCA negotiations to be able to access the market mechanisms in that agreement unless the agreement provides for access by non-parties.
We understand that you are referring to the market-based mechanisms established under the Kyoto Protocol (i.e. the Clean Development Mechanism, Joint Implementation and Emissions Trading).
We also understand that reference to the outcomes of the negotiations for the Long-term Cooperative Action under the UNFCCC (LCA) – currently taking place in Barcelona – is an agreement at Copenhagen in December (by way of additional protocol to the UNFCCC). We note here that the adoption of the text for such an agreement would be by way of two-thirds of the States present and voting (as per Art 9 of the VCLT).
The United States has not ratified the Kyoto Protocol. Accordingly, it is not subject to the reduction targets (set out in Art 3) and the market-based mechanisms do not apply. The United States can only have access to these mechanisms if it consents to be bound to the Kyoto Protocol (by ratification). Similarly, if action on carbon emissions is agreed at Copenhagen (under an additional protocol), the United States would only have access to the mechanisms under that additional protocol if it consented to be bound to the additional protocol (and accordingly the obligations under that additional protocol). There is, therefore, no need for particular entry into force language.
3. As for question 3, draft language is set out below. In the event the States do not agree to this wording, China may make a declaration that it will not ratify the treaty until the US ratifies the treaty or make a reservation suspending its reporting obligations until the US ratifies the treaty.
Again, a treaty may state that one State’s consent to be bound by a treaty is conditional upon another State’s consent to be bound. However, this provision needs to be adopted with the final text of the treaty. We consider it extremely unlikely that the Conference of the Parties would agree legal text that makes entry into force conditional upon ratification by named individual states. We have set out below draft wording for an entry into force provision but please note this warning.
Alternatively, where no particular entry into force language is used, China could:
- make a formal declaration upon signing (assuming that the additional protocol requires ratification) that it will not ratify the additional protocol unless the United States ratifies. However, if China does not ratify the protocol it will not be required to perform any obligations under the protocol; or
- make a reservation to suspend its reporting obligations until such time as the United States ratifies the treaty. Any such reservation should be expressly provided for in the treaty as, if not, the reservation will need to be approved by each signatory State in writing (such approval will be assumed if there is no response 12 months after the signatory State is notified of the reservation) which will take time (unless the treaty prohibits reservations). Please let us know if you require further information on reservations .
Entry into force wording
Based on the information provided, and assuming that the treaty is only intended to take effect if the United States (and potentially China or a particular number of other States) ratifies the treaty, the entry into force provision may involve wording similar to the following:
1. This Treaty shall enter into force on the [thirtieth day] after the date on which the United States of America [and China?] and [insert number] other Parties to the Convention have deposited their instruments of ratification, acceptance, approval or accession.
2. For each State or regional economic integration organization that ratifies, accepts or approves this Treaty or accedes thereto after the conditions set out in paragraph 1 above for entry into force have been fulfilled, this Treaty shall enter into force on the thirtieth day following the date of deposit of its instrument of ratification, acceptance, approval or accession.
3. For the purposes of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by States members of the organization.
4. China’s obligations for reporting, [insert a specific description of China’s obligations that will not commence until after the US ratifies the treaty] as required by Articles [insert the relevant Articles numbers describing China’s obligations] will commence on the later of:
(a) the thirtieth day after the date China deposits its instrument of ratification, acceptance, approval or accession; or
(b) the thirtieth day after the date the United States of America deposits its instrument of ratification, acceptance, approval or accession.
The sections in [square brackets] and highlighted require your further consideration to be completed or deleted.
Given that the US is a developed nation with extensive bargaining power and political influence, it is unlikely that requiring the US to ratify the treaty before it comes into force would prevent the US from negotiating the instrument “on the basis of the perfect equality and freedom of decision” (Fisheries Jurisdiction (United Kingdom v Iceland), Jurisdiction of the Court, Judgement, ICJ Reports 1973, p3). However, it is important to bear in mind that any action by the States that amounts to coercion of a State or representative of a State will invalidate the treaty.
Concern amongst LDCs not to agree any additional protocol if the US or other industrialised State does not do so should be no impediment to signing the additional protocol. Assuming that the treaty architecture is the same as the UNFCCC and Kyoto Protocol, States will only be bound once they ratify the additional protocol (an event which may occur in the future once internal procedures have been followed, such as parliamentary scrutiny). States are also free to make a formal declaration prior to or at the time of signing the additional protocol that they intend to ratify only once another State has ratified. These facts should be stressed to plenipotentiaries to avoid delays in the negotiation process.