Domestic Ratification of Kyoto Protocol

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Date produced: 06/12/2011

There is proposed draft text concerning the 2nd commitment period, and there are proposed amendments to Annex B to the KP.

Does either situation require ratification of the parties (given that Parties have already ratified the Protocol)?

If neither is adopted through a ‘ratification’ process, then what is the process?

 

Summary

An amendment of the KP to introduce a second commitment period and an amendment to Annex B to the KP can in principle only be adopted in accordance with the procedural requirements of Article 20 and 21(7) KP.

The fact that a State (such as NZ) is a Party to the original KP and votes in favour of an amendment of the Protocol (including an amendment of Annex B), does not automatically imply that it is bound by the amended Protocol. This will only be the case if (a) it submits an instrument of ‘ratification, acceptance or approval’, and; (b) if the required number of ratifications (3/4) is reached.

Whether a given State should first obtain parliamentary approval prior to submitting an instrument of ‘ratification, acceptance or approval’ is a matter which is purely governed by domestic national law and must be assessed on a case-by-case basis.

In accordance with Article 25 VCLT, it may nonetheless be possible to include a clause providing for ‘provisional application’ of the amended Protocol (prior to entry into force of the amendment).

Advice

Preliminary remark:

A proper understanding of the term ‘ratification’ is crucial to grasp the questions at hand. Ratification is defined by the Vienna Convention on the Law of Treaties (VCLT) as ‘the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty’ (Art. 2(1)(b)). It is the most common way (but not the only one) for States to express their consent to be bound by a multilateral treaty. In case of multilateral treaties, the ratification takes the form of a written instrument submitted to the depositary of the treaty.

It is a common misconception to equate ratification to a domestic constitutional process. It is true that many national constitutions render ratification of a treaty conditional upon prior parliamentary approval at the domestic level, but this parliamentary approval is not in itself the actual ‘ratification’, nor is it required or regulated by international law.

The need for ratification and the impact of domestic constitutional law:

It is correct that an amendment of the KP to introduce a second commitment period and an amendment to Annex B to the KP can only be adopted in accordance with the procedural requirements of Article 20 and 21(7) KP.

The KP spells out the following requirements in this respect:

– Decision to amend: a proposed amendment should be communicated at least six months before the meeting at which it is proposed for adoption. It should be adopted by consensus, or, should consensus prove impossible, by a three-fourths majority of the Parties present and voting at the MOP. An amendment to Annex B (the actual commitments) shall be adopted only with the written consent of the Party concerned.

– Entry into force: once the decision is taken, the amendment will only enter into force after ratification by at least three fourths of the KP Parties. In addition, the amendment would only be binding for Parties actually ratifying the amended Protocol.

In other words, the fact that a State (such as NZ) is a Party to the original KP and votes in favour of an amendment of the Protocol (including an amendment of Annex B), does not automatically imply that it is bound by the amended Protocol. This will only be the case if (a) it submits an instrument of ‘ratification, acceptance or approval’,[1] and; (b) if the required number of ratifications (3/4) is reached.

Whether a given State should first obtain parliamentary approval prior to submitting an instrument of ‘ratification, acceptance or approval’ is a matter which is purely governed by domestic national law. It is possible that the constitutional law normally requires for multilateral treaties to be approved by the national parliamentary assembly, but nonetheless foresees certain exceptions for treaties in simplified form, or, for instance, minor amendments of a treaty that was previously subject to parliamentary approval. It is unlikely, however, for domestic constitutional law to foresee a general exemption from the parliamentary approval process for any amendment of a treaty that was previously subject to parliamentary approval (this would amount to a major erosion of parliamentary control).

Additional observations:

It may be noted that even if an amendment has not yet entered into force, States that have voted in favour of that amendment may nonetheless be under an obligation ‘not to defeat the object and purpose’ of that amendment (in accordance with Article 18 VCLT).

More importantly, Article 25 VCLT states that a treaty is “applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed.” In accordance with that provision, it is possible to include in the amended KP a clause providing for ‘provisional application’. In such scenario, States signing the amended Protocol would in principle be bound provisionally to apply the amended KP (i.e., the second commitment period) irrespective of whether they submitted an instrument of ‘ratification, acceptance or approval’. This obligation would only be terminated when the State would inform other States of its intention not to ratify the amendment. It should be noted, however, that provisional application may give rise to concerns regarding compatibility with domestic constitutional law. Further information on the feasibility of this approach can be found in the note prepared by the UNFCCC Secretariat regarding ‘legal considerations relating to a possible gap between the first and subsequent commitment periods’ (available at http://unfccc.int/resource/docs/2010/awg13/eng/10.pdf, at §§ 15-22).



[1] Remark: It is common for multilateral treaties to provide that they shall be ‘subject to ratification, acceptance or approval.’ There is no substantive difference between signature subject to acceptance or approval and signature subject to ratification.