Effect of party classification across instruments

Legal assistance paper

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Date produced: 15/05/2012

1. If a new protocol or similar legal instrument were to be agreed, would it need to refer to the Convention in the way the KP does, (ie refer to Annexes I and/ or II of the Convention) or could it provide its own terms of differentiation?

2. If a new protocol or similar legal instrument were to be agreed, would those terms supersede those of the Convention, being more recent? Or would both sets of terms be in effect in parallel, relating to their respective instruments?

Summary:

1. The UNFCCC is a framework agreement, meaning that it was always contemplated that subsequent agreements would supplement detail to its terms. There would be nothing to prevent a future Protocol providing its own terms of differentiation.

2. The question of whether the terms of the subsequent protocol would supersede those of the framework agreement is a question of construction. Article 30 of the Vienna Convention on the Law of Treaties 1969 (VCLT) provides that if the new protocol were to provide that it is subject to, or not incompatible with, a framework agreement, then the provisions of the framework agreement would prevail. If, however, no such language is put in place, the subsequent protocol’s provisions would prevail to the extent of any inconsistency.

Advice:

1. The UNFCCC is, as its name suggests, a framework convention, entered into in order to establish the main objectives, governance and institutions but not to distil all necessary detail. Framework agreements are usually associated with the so-called “framework convention and protocol approach”, by which it is meant that the UNFCCC contemplates that its parties will enter into a protocol to further supplement the detail of the framework agreement. This approach is clear from the wording of the UNFCCC – for example, clause 2(a) provides that “arties may implement such policies and measures [namely, modifying longer-term trends in anthropogenic emissions consistent with the objective of the UNFCCC] jointly with other Parties in contributing to the achievement of the objective to the Convention”.

Accordingly, it is acceptable for a Protocol to establish further detail beyond that which was contemplated by the UNFCCC. There would be nothing to prevent a future Protocol providing its own terms of differentiation. Such detail would not be at odds with the UNFCCC in the sense that Article 12(3) provides that both developed and developing parties to the UNFCCC shall take on commitments to further the objectives of the UNFCCC.

2. The question of whether the terms of the subsequent protocol were to supersede those of the Convention would be a question of construction. Article 30 of the VCLT sets forth rules governing the situation where states are parties to treaties relating to the same subject-matter. These rules would impact on the subsequent protocol to the framework agreement as follows:

• Pursuant to Article 30(2) of the VCLT, if the new protocol were to provide that it is subject to, or not incompatible with, a framework agreement, then the provisions of the framework agreement would prevail.

• Under Article 30(3) of the VCLT, where no wording regarding the compatibility of the framework agreement and subsequent protocol is drafted and the framework agreement continues in force (that is, it is not suspended or terminated), the framework agreement applies only to the extent that its provisions are compatible with those of the subsequent protocol. To put this another way, to the extent of any inconsistency, the subsequent protocol would prevail.

• Article 30(4)(a) of the VCLT provides that where a country is party to both the framework convention and the subsequent protocol, to the extent of any inconsistency, the subsequent protocol would prevail.

• Under Article 30(4)(b), where a country is not a party to both treaties, in its relations with other State parties, the treaty to which both States are parties governs their rights and obligations. We note that as a rule, only parties to a framework convention can be parties to protocols made under that convention. However, parties to a convention are not obliged to ratify subsequent protocols.