Interpretation of length of CP2

Legal assistance paper

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Date produced: 03/09/2012

Are there any provisions in:

1. the Kyoto Protocol;

2. the Marrakech Accords; or

3. any other UNFCCC document (including COP/CMP Decisions)

which support the argument that a second commitment period under the Kyoto Protocol should be 5 years in length?

Summary

In this advice we will provide a non-exhaustive list of arguments regarding the question whether there are any provisions in (I) the Kyoto Protocol, (II) the Marrakech Accords, or (III) any other UNFCCC document (including COP/CMP Decisions) which support the thesis that a second commitment period under the Kyoto Protocol should be 5 years in length.

On the basis of a full reading of the Kyoto Protocol and the Marrakech Accords and on the basis of a scan of all the COP Decisions of COP 8 to COP 17 and all COP/CMP Decisions, we can conclude the following.

There is no verbatim legal basis in the documents to conclude that subsequent commitment periods are five years in length. One could nevertheless argue that there is some implicit support for the view that the Parties to the KP intended to have the subsequent periods last 5 years. For example, if one would opt for an eight year second commitment period several rules and obligations in which a multiplication of five years is mentioned, would have to be amended.

As such, there are, to a limited extent, some arguments to support the statement retained in the LDC group document circulated by Pa Ousman Jarju (chair of the LDC group): “The Marrakech Accords, agreed in 2001, clearly anticipate subsequent commitment periods that are five years in length”.

The explicit acceptance of all Kyoto Parties in Decision 1/CMP.7 of the possibility to have a second commitment period that can be both five years or eight years, is a strong counter indication which weakens the arguments listed in this advice. In sum, from a legal point of view, there do not appear to be substantial obstacles that would bar the CMP from opting for an 8-year, rather than a 5-year (second) commitment period.

Advice

1. Provisions in the Kyoto Protocol

(a) Indications in favour of the thesis

(i) Article 3.1 of the Kyoto Protocol

Article 3.1 of the Kyoto Protocol states that:

“The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.” (We emphasize)

This paragraph explicitly refers to a commitment period of five years, but only so for the first commitment period (2008-2012). Therefore, from the strict wording of this paragraph, no indications can be deduced with regard to the length of the second commitment period.

(ii) Article 3.4 of the Kyoto Protocol

Article 3.4 of the Kyoto Protocol states that:

“(…) Such a decision shall apply in the second and subsequent commitment periods (…)”

Again, no reference is made to the length of the second or subsequent commitment periods. Nevertheless one might try to argue that the reference to a series of commitment periods supposes a periodic and regular succession of the different commitment periods of five years, until the Protocol is amended or replaced by a new one.

(iii) Article 3.7 of the Kyoto Protocol

Article 3.7 of the Kyoto Protocol states that:

“In the first quantified emission limitation and reduction commitment period, from 2008 to 2012, the assigned amount for each Party included in Annex I shall be equal to the percentage inscribed for it in Annex B of its aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A in 1990, or the base year or period determined in accordance with paragraph 5 above, multiplied by five (…)”(We emphasize)

Annex B provides for the ‘Quantified emission limitation or reduction commitment’, being a percentage of the base year (or period). According to article 3.7 of the Kyoto Protocol the percentage (given in Annex B) of the base year emissions for a given Annex I Party shall be multiplied by five to calculate its assigned amount for the first commitment period. This is logical since the percentage relates to one year (the base year) and needs to be multiplied by five to cover the five years of the first commitment period (2008-2012).

It must be noted that since article 3.7 of the Kyoto Protocol refers explicitly to the first commitment period, it would be legally sound to insert a new paragraph relating specifically to the second commitment period. In such new clause relating to a second commitment period, one could indicate that the ‘quantified emission limitation or reduction commitment’ is a percentage of the base year, multiplied by, for example, 8 years. This insertion of a new paragraph would, moreover, not entail an additional procedural burden since an amendment of Annex B follows the same procedure as any amendment of the Kyoto Protocol.

(b) Counter indications

We have found no counter indications in the Kyoto Protocol.

 (c) Preliminary conclusion

There is no verbatim legal basis in the Kyoto Protocol to conclude that subsequent commitment periods are five years in length. One might nonetheless try to argue that there is some implicit support in Article 3.7 KP that Parties intended to have the subsequent periods last 5 years.

2. Provisions in the Marrakech Accords (Decisions of COP 7)

(a) Indications in favour of the thesis

(i) Periodic reviews (Decision 18/CP.7 and Decision 2/CP.7)

In order to ensure the realisation of the provisions in the Kyoto Protocol, it is necessary that Parties to this Protocol are held accountable for the (non-)achievement of their commitments. The threat of being held accountable will only be an impetus for Parties to the Protocol to achieve their commitments, if the scrutiny happens on a regular basis.

This is implicitly suggested in paragraph 11 of Decision 2/CP.7, in which Parties decided to conduct a comprehensive review of the implementation of the framework at the ninth session (2003) of the Conference of the Parties, and every five years thereafter. Hence, Parties to the Protocol indicate themselves that the third comprehensive review (2013) will take place the year after the end of the first commitment period. This gives Parties the opportunity to review the entire first commitment period.

Since subsequent comprehensive reviews will take place every five years, and in order to ensure that the reviews continue with the same effectiveness due to the moment they take place, it can be argued that the second and subsequent commitment periods should also be five years in length.

A similar stress on periodic reviews can be found in paragraph 2 of Decision 18/CP.7, which states:

“The first review shall be carried out no later than one year after the end of the first commitment period, based on recommendations by the Subsidiary Body for Implementation drawing on technical advice of the Subsidiary Body for Scientific and Technological Advice, as needed. Further reviews shall be carried out periodically thereafter” (We emphasize)

These two references, combined with the need for effective accountability, could form an argument to say that the length of the second commitment period should be five years, just as the length of the first commitment period.

(ii) Decision 11/CP.7.

In the Annex of Decision 11/CP.7. it is stated that:

“14. For the first commitment period, the total of additions to a Party’s assigned amount resulting from eligible land use, land-use change and forestry project activities under Article 12 shall not exceed one per cent of base year emissions of that Party, times five.

15. The treatment of land use, land-use change and forestry project activities under Article 12 in future commitment periods shall be decided as part of the negotiations on the second commitment period.” (We emphasize)

It could be argued on the basis of these paragraphs that during the negotiations for future commitment periods, Parties only have to negotiate the threshold (maximum percentage). This would then imply that the multiplier (‘times five’) has already been fixed, and that consequently the length of future commitment periods has been fixed on five years. We refer in this regard to our reasoning on article 3.7 of the Kyoto Protocol.

(iii) Decision 17/CP.7

Paragraphs 7 (b) and (c) of Decision 17/CP.7. repeat the above paragraphs by stating:

“(b) That for the first commitment period, the total of additions to a Party’s assigned amount resulting from eligible land use, land-use change and forestry project activities under the clean development mechanism shall not exceed one per cent of base year emissions of that Party, times five;

(c) That the treatment of land use, land-use change and forestry project activities under the clean development mechanism in future commitment periods shall be decided as part of the negotiations on the second commitment period;”

For these paragraphs, parallel remarks can be made as the ones of Decision 11/CP.7. cited above.

(b) Counter indications

We have found no counter indications in the Marrakech Accords.

(c) Preliminary conclusion

There is no verbatim legal basis in the Marrakech Accords to conclude that subsequent commitment periods are five years in length. Nevertheless, the arguments above support – be it to a limited extent – the statement retained in the LDC group document circulated by Pa Ousman Jarju (chair of the LDC group): “The Marrakech Accords, agreed in 2001, clearly anticipate subsequent commitment periods that are five years in length”.

3. Provisions in other UNFCCC Documents

We have checked all the COP Decisions of COP 8 to COP 17, of which the format is x/CP.x, by searching for the term ‘commitment period’. We have furthermore checked all the COP/CMP Decision, of which the format is x/CMP.x, by searching for the term ‘commitment period’.

(a) Indications in favour of the thesis

(i) Decision 17/CP.10.

Paragraph 4 of the Annex of Decision 17/CP.10. states that:

“If an Annex I Party is undertaking transactions for two or more commitment periods simultaneously, then the Party shall provide a separate, complete report for each commitment period. Each report shall contain information only on those Kyoto Protocol units valid for that commitment period.”

It might be argued that for a Party to be able to provide separate reports, it has to know the start and end dates of these commitment periods. This on itself might imply that there needs to be a certain regularity in the commitment periods, which would then, on the basis of the first commitment period, be five years.

(ii) Decision 11/CMP.1

Paragraph 6 of the Annex of Decision 11/CMP.1 states that:

“Each Party included in Annex I shall maintain, in its national registry, a commitment period reserve which should not drop below 90 per cent of the Party’s assigned amount calculated pursuant to Article 3, paragraphs 7 and 8, of the Kyoto Protocol, or 100 per cent of five times its most recently reviewed inventory, whichever is lowest.” (We emphasize)

Annex I Parties to the Convention must submit annually to the secretariat national greenhouse gas inventories of anthropogenic emissions by sources and removals by sinks of greenhouse gases not controlled by the Montreal Protocol. Because the Assigned Amount relates to the five years of the (first) commitment period and at the same time to the most recently reviewed annual inventory, the latter must be multiplied by five for the purpose of the commitment period reserve.

As the cited paragraph 6 refers to Article 3, paragraphs 7 of the Kyoto Protocol, it refers implicitly to the first commitment period. However, as we have assessed in part 4.2.a.iii of this memo, it could be argued that article 3.7 of the Kyoto Protocol entails that not only the first commitment period is five years, but also the second and subsequent commitment periods are to be considered lasting 5 years.

(b) Counter indications

(i) Decision 1/CMP.7

Paragraph 1 of Decision 1/CMP.7 states that:

“Decides that the second commitment period under the Kyoto Protocol shall begin on 1 January 2013 and end either on 31 December 2017 or 31 December 2020, to be decided by the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol at its seventeenth session;” (We emphasize)

The decision on whether the second commitment period shall end on 31 December 2017 or 31 December 2020 will be taken in Doha, Qatar. This paragraph states quite explicitly that the length of the second commitment period can be either five years or eight years.

This is confirmed by paragraph A of Annex 3 to of Decision 1/CMP.7 (the proposed amendment of Article 3.1 KP), which provides the choice between 2017 and 2020:

“…in the commitment period 2013 to [2017][2020].” (We emphasize)

In a similar vein, paragraph B of Annex 3 of Decision 1/CMP.7, which contains the proposal for a new Article 3.7bis of the Kyoto Protocol, leaves open both options. Thus, the paragraph refers to a second commitment period which may run from 2013 to either 2017 or 2020. Depending on the choice that would eventually be made, the paragraph indicates that for purposes of calculating the assigned amount, a multiplier of five or eight would apply.

Reference could also be made to paragraph 19 of the Annex to Decision 2/CMP.7 (dealing with LULUCF). In relation to Article 12 KP, the latter paragraph states that “(f)or the second commitment period, the total of additions to a Party’s assigned amount resulting from afforestation and reforestation project activities under Article 12 shall not exceed one per cent of the base year emissions of that Party, times the duration of the commitment period in years”. (emphasis added) The final part of the sentence again supports the view that the duration of commitment periods is not necessarily predetermined at five years.

Decision 1/CMP.7 (and the Annex to Decision 2/CMP.7) could be used by the proponents of a second commitment period lasting 8 years, as an indication that all parties to the Kyoto Protocol have accepted the possibility to have a second commitment period lasting 8 years. They could argue that all arguments brought forward for the second commitment period to be 5 years (including the arguments set forth in this memo) are without merit because (i) they are not based on an explicit legal text but merely on a contestable interpretation of certain provisions of the Kyoto Protocol or COP/CMP decisions and (ii) Decision 1/CMP.7 was adopted after the other COP Documents or COP/CMP Documents referred to in this memorandum.

(c) Preliminary conclusion

There is no verbatim legal basis in one of the examined COP Documents or COP/CMP Documents to conclude that subsequent commitment periods are five years in length. Rather the cited paragraphs in Decision 1/CMP.17 are a counter indication that the length of the second commitment period can be both five years or eight years and that all the Parties to the Kyoto Protocol do not see themselves limited to earlier approved texts. Nevertheless, if one would opt for an eight year second commitment period several rules and obligations in which reference is made to a multiplication of five years should be amended.