Interpretation of Marrakesh Accords

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 06/02/2012

1. Do the Marrakesh Accords imply that at least 50% of emissions reductions must be accomplished domestically?

2. If it is (or even if it isn’t), could any such case be brought before the compliance committee or any other body?

3. Could civil society bring this claim or must it be brought by a party under the Convention?

4. What documentation would be needed to bring the claim?

5. Would one need to wait for the new ordinance to be published (this would be the ordinance that violates the supplementarity principle), or can a claim be brought in anticipation of the breach?

Summary:

1) It seems difficult to defend that the Marrakesh Accords contain the prohibition for an Annex I Party to rely on the flexible mechanisms for more than 50% of the effort, as long as the domestic action constitutes a significant element of the effort.

2) The case would, at least potentially, come within the jurisdiction of the compliance committee – either the jurisdiction of the facilitative branch or the jurisdiction of the enforcement branch – or the International Court of Justice.

3) The case would have to be submitted to the Compliance Committee by a party to the Protocol.

4) The documentation needed is laid down in Rule 15 of the Consolidated Rules of Procedure. In our view, the submission (by a party) could also be lodged prior to the effective adoption of the Ordinance.

Advice:

1. According to the Kyoto Protocol, the exertion of the right for flexibility in achieving compliance is on the condition that the so-called “supplementarity requirement” is met.

In the Marrakesh Accords, i.e. Decision 15CP/7, it was decided “that the use of the mechanisms shall be supplemental to domestic action and that domestic action shall thus constitute a significant element of the effort made by each Party included in Annex I to meet its quantified emission limitation and reduction commitments under Article 3, paragraph 1”. Because of the use of “thus” the Marrakesh Accords seem to stipulate that the “supplementarity requirement” must be read as the requirement that domestic action constitutes a significant element of the effort made by each Annex I Party to meet its quantified emission limitation and reduction commitments.

The Marrakesh Accords thus involve the absence of a quantitative cap on the use of the flexible mechanisms and include only a qualitative approach. No explicit mention is made of a minimum 50% domestic reduction. On the contrary, on the basis of the wording of the Marrakesh Accords it could be defended that as long as the domestic action constitutes a significant element of the effort, the “supplementarity requirement” is met. In practice, Switzerland could defend that the intended 25% domestic action, should be considered “significant” and therefore “supplemental”.

Nevertheless, up to the Bonn meeting, the international negotiations had concentrated on setting a quantitative cap on the use of the flexible mechanisms by Annex I Parties. The EU, in particular, has been a strong advocate of imposing concrete ceilings on permit trading in order to encourage domestic actions, proposing that at least half of the reduction effort would have to be carried out domestically.

It could be developed that due to the proposal by the European Union – that the supplementarity requirement should be developed by agreeing on the requirement that domestic action cannot count for less than 50% of the effort needed to attain the target of each individual Annex I Party – the Members of the European Union would be bound by this proposal on the basis of a unilateral commitment. It must be noted that the value in court of this alleged unilateral commitment is highly doubtful. Moreover, we have found no indications that Switzerland was or voted in favour of that proposal brought forward by the EU.

A second argument seems to be difficult to defend as well. It could be argued that the meaning of “supplemental to domestic action” is clear and that it needs no interpretation. Supplemental means “something added to complete a thing or make up for a deficiency”. A part that is supplemental should therefore at least be smaller than the part to which it is supplemental to. In this vision, the use of the flexible mechanisms should be supplemental and at the same time the domestic action should constitute a significant element of the effort. In other words, the “significant element condition” would not explain / interpret the “supplementarity requirement”, but would constitute a condition additional to the “supplementarity requirement”. It must be noted that this vision is abstracting from the text of the Marrakesh Accords – the use of “thus” which clearly connects the two conditions. Therefore, this interpretation seems difficult to defend.

To conclude, on the basis of the text of the Marrakesh Accords it seems difficult to defend that these Accords contain the prohibition for an Annex I Party to rely on the flexible mechanisms for more than 50% of the effort, as long as the domestic action constitutes a significant element of the effort.

As a result of this conclusion the following questions are answered concisely.

2. The case would, at least potentially, come within the jurisdiction of the compliance committee, either the jurisdiction of the facilitative branch under Article IV.6 of Decision 27/CMP.1 (procedures and mechanisms relating to compliance under the Kyoto Protocol) or the jurisdiction of the enforcement branch under Article V.4 of Decision 27/CMP.1.

In theory, seeing as Switzerland has adopted a declaration accepting compulsory jurisdiction of the International Court of Justice (in accordance with Article 36(2) of the ICJ Statute), it might be possible for other States (also having accepted compulsory jurisdiction of the Court) to bring a case before that body. It must be asserted, however, that such action would seem politically unlikely; that the admissibility of such claim would be uncertain for a variety of reasons, and; that it cannot be ruled out that the claim would be deemed prima facie unfounded (cf. supra).

Otherwise, it would not seem possible for WWF or another entity to bring the case before another international, or even national body (possible lack of jurisdiction; lack of locus standi / interest to bring the case).

3. It appears that the case would have to be submitted by a party to the Protocol. This follows from Article 1(b) of Decision 27/CMP.1. However, “Competent intergovernmental and non-governmental organizations” may submit relevant factual and technical information to the relevant branch, at least once the case has been lodged (Article VIII.4 of Decision 27/CMP.1; see also Rule 20.1 of the Consolidated Rules of Procedure of the Compliance Committee).

4. The documentation needed is laid down in Rule 15 of the Consolidated Rules of Procedure, according to which a submission shall set out:

• the name of the Party making the submission;

• a statement identifying the question of implementation;

• the name of the party concerned;

• a reference to the provisions of the KP and decision 27/CMP.1 that form the basis for raising the question of implementation;

• corroborating information supporting the question of implementation.

The submission should also set out:

• any provisions of the decisions of the CMP and the reports of the subsidiary bodies that are applicable to the question of implementation;

• the branch from which action is sought;

• a list of all documents annexed to the submission.

4. In our view, the submission (by a Party) could also be lodged prior to the effective adoption of the Ordinance. In the latter scenario, it would seem logical for the bureau of the Compliance Committee to allocate the question to the facilitative branch, rather than the enforcement branch (cf. the different jurisdiction of both branches).

On a final note, considering our answer to sub-question 1, it is worth stressing that upon allocation of the submission, the relevant branch will undertake a preliminary examination of questions of implementation to ensure that the question: (1) is supported by sufficient information; (2) is not de minimis or ill-founded, and; (c) is based on the requirements of the Protocol. It cannot be excluded that, even if a Party would be willing to make a formal submission, the submission would be deemed ill-founded in the course of the preliminary examination.