1. Aside from the rules for amending the KP as laid out in Articles 20 and 21, are there any other means by which the KP and its acquis could be amended by a subset of willing countries? Or is the KP bound to remain a document of ‘universal’ (or 3/4) consensus?
2. If alternative amendment of the KP is possible, can it be done outside the UNFCCC? If so, what are the possible fora?
3. Assuming alternative amendment is possible, and that this can be done outside the UNFCCC, what would need to be considered for the alternative amendment procedure and subsequent implementation of any amendments?
4. Would it be possible to establish a “coalition of the willing” agreement under Article 7.2c (and could it use an amended KP and its acquis as its basis?), and would this maintain the institutional links?
Summary: The KP cannot be amended in any other way than that prescribed by Article 20 KP. A sub-set of willing countries could adopt a separate treaty distinct from the KP either in the context of the UNFCCC (though one must consider the thresholds for adoption and entry into force), or outside the UNFCCC (in which case the States concerned would be at liberty to set the adoption and entry into force thresholds for the new treaty), eg, a similar course of action was followed with respect to anti-personnel landmines. The crucial problem in this scenario is that the link with the institutional architecture of the UNFCCC/KP (Secretariat, Subsidiary Bodies,…) would normally be broken, meaning that the States Parties to the new treaty would have to set up a new Secretariat, monitoring bodies, compliance mechanisms, etc.
1. The Kyoto Protocol cannot be ‘amended’ in any other way than the one prescribed by Article 20 KP. The residuary rules of Articles 39-41 of the Vienna Convention on the Law of Treaties do not apply insofar as the amendment procedure is regulated in the treaty itself (as in the present case).
2. Nonetheless, a ‘sub-set of willing countries’ could in theory adopt a separate treaty, distinct from the Kyoto Protocol. Two possibilities arise:
a. Within the context of the UNFCCC: In principle, it would be possible to adopt a new Protocol to the UNFCCC, distinct from the Kyoto Protocol and setting out new emission reduction targets post 2012. However, in order to assess whether this is a viable option, the following considerations should be kept in mind:
i. Adoption threshold:
(1) Amendment of the KP presupposes a decision supported by at least a ¾ majority of the MOP.
(2) Adoption of a new Protocol does not appear any easier. Article 17 UNFCCC states that the text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months before a COP session. Rule 42 of the UNFCCC’s provisional rules of procedure indicate that adoption requires at least a ¾ majority of the COP (Alternative A), or possibly even consensus (Alternative B).
ii. Entry into force threshold:
(1) After adoption, entry into force of an amended version of the Kyoto Protocol presupposes ratification/acceptance by at least ¾ of the KP Parties. The amendment would only be binding for Parties ratifying or accepting the amendment. (In other words: other Parties would only remain bound by the ‘old’ version of the KP).
(2) In accordance with Article 17(3) UNFCCC, the requirements for the entry into force of a new Protocol will be established by that instrument itself. This implies that it might be possible to set a lower ‘entry into force’-threshold than the one included in Article 20 KP. This appears the only potential benefit of this course of action. On a different note, as a new treaty instrument, the Protocol would of course only be binding on those UNFCCC Parties ratifying or accepting it.
iii. Besides the cited procedural issues, reference can be made to the following possible advantages and disadvantages of the amendment option and the new protocol option as identified by Haites :
(1) the advantage of the amendment option is that it allows improvements and innovations to be adopted with less risk of reopening what has been agreed. The disadvantage is that non-Parties to the KP can only participate as observers to the negotiation of the amendments and have to become parties to the KP to be part of the new regime;
(2) the advantage of the new protocol option pursuant to art. 17 of the UNFCCC is that all parties to the UNFCCC can participate to the negotiations. Such a new protocol however, risks to be undermining what has been agreed under the KP.
b. Outside the UNFCCC: Of course, a sub-set of willing States could also conclude a new treaty outside the context of the UNFCCC setting out more ambitious emission reduction targets than the ones listed in the KP. In such scenario, the States concerned would be at liberty to set the adoption and entry into force thresholds for the new treaty (which would of course only be binding upon States ratifying/accepting it).
Illustration: By way of example, a similar course of action was followed in respect of anti-personnel landmines. In 1980, States adopted a Framework Convention on Conventional Weapons, to which a series of Protocols were added, including one dealing with the ‘use of mines, booby-traps and other devices’ (CCW Protocol II). In 1996, the latter Protocol was amended in order to further restrict the use of mines. A number of States, however, felt that the amendment did not go sufficiently far, and therefore concluded a separate treaty, outside the context of the framework treaty, introducing a comprehensive ban on the use of anti-personnel mines (i.e., the Ottawa Treaty).
3. If this latter course of action were to be followed, relations between the new treaty and the UNFCCC/KP (and to the respective States Parties) would be governed by the rules concerning ‘successive treaties’ (see Articles 30 and 59 of the Vienna Convention on the Law of Treaties).
The crucial problem in this scenario is that the link with the institutional architecture of the UNFCCC/KP (Secretariat, Subsidiary Bodies,…) would normally be broken, meaning that the States Parties to the new treaty would have to set up a new Secretariat, monitoring bodies, compliance mechanisms, etc. This rupture could only be overcome by means of a Decision of the COP/MOP, or perhaps (partially) by an MoU concluded between the UNFCCC Secretariat and the Secretariat of the new treaty. In the former hypothesis, one would again face the same decision-making threshold spelled out above.
4. We do not believe that Article 7.2.c could be used to come up with a true ‘amended’ version of the Kyoto Protocol. The UNFCC and the KP lay down explicit rules for the adoption of new Protocols and for the amendment of the KP respectively. These rules (and the procedural thresholds set forward therein) cannot be ignored. On the other hand, if a ‘coalition of the willing’ were to develop an alternative legally binding instrument (outside the UNFCCC context) then Article 7.2.c could in theory be used to create the cited ‘institutional link’ with the UNFCCC framework. This, however, seems no different than what we described in paragraph 2(b) of our initial answer to Query 205. In any event, it is clear that a COP decision would still be required, adopted in accordance with the Rules of Procedure (RoP), implying that you still face the decision-making threshold spelled out in Article 42 RoP.