1. How can Parties apply Decision 1/CMP.7 in particular the paragraph 1 which states that the CMP “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”?
2. How can parties operationalise this paragraph?
The effect of Decision 1/CMP.7
Although Decision 1/CMP.7 decided that the second commitment period (CP2) under the Kyoto Protocol (KP) shall start on 1 January 2013, the CMP in Durban did not formally adopt the proposed amendments to the KP and its annexes. Instead these proposed amendments were merely taken note of. Part of the reason for this is that various matters remain to be agreed, including in relation to the length of CP2, the technical work of converting pledges into quantified emission reduction and limitation objectives and issues related to the carry-over of assigned amount units from the first commitment period to CP2.
As a result, the proposed amendments have no legal effect. Although a CMP decision is not a “treaty”, general rules of interpretation under international law (as codified in the 1969 Vienna Convention on the Law of Treaties) should apply to CMP decisions. This means that although there is no strict legal obligation on Parties to ensure that CP2 starts on 1 January 2013, it is arguable that until the amendments are formally adopted by the CMP, the Parties have an obligation to act in good faith to achieve this goal and not to act in a manner which might frustrate achieving it.
In practical terms, this means that the cooperation of at least three-fourths of the Parties present and voting at CMP8 will be required in order to adopt the relevant amendments. In addition, in order for the amendments to come into force, three-fourths of the Parties to the Kyoto Protocol must have deposited their instruments of acceptance with the Depositary. In line with the principle of state sovereignty, Parties are free to adopt the amendments, but are not required to do so.
If the proposed amendments are not adopted at CMP8, or even if they are but are not ratified in time for CP2 to enter into force on 1 January 2013, then (subject to the considerations set out below) CP2 will not be legally binding on Parties from 1 January 2013 until such time as CP2 enters into force in accordance with Articles 20 and 21 of the KP. As such, during this interim period, Annex I Parties will not be legally bound by commitments to reduce emissions.
In order to ensure that CP2 creates legally binding obligations under international law as from 1 January 2013 (until such time as CP2 formally enters into force), Parties could agree to “provisionally apply” the proposed amendments as from 1 January 2013 and that each Party will continue to apply those amendments provisionally until such time as the amendments enter into force for that Party.
The provisional application of treaties finds its legal basis in the Vienna Convention on the Law of Treaties 1969 (“VCLT”). Article 25 of the VCLT states:
“1. A treaty or part of 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 agreed.
2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.”
The International Law Commission has concluded that “there can be no doubt that such clauses have legal effect and bring the treaty into force on a provisional basis.”
Although Article 25 of the VCLT refers specifically to “a treaty or part of a treaty”, there is no reason why amendments to a treaty could not similarly be provisionally applied. The simplest legal solution, therefore, (save for formal amendment) would be to “provisionally apply” the necessary amendments to the Kyoto Protocol and its annexes such that it provides for a second commitment period pending the amendments’ formal entry into force.
However, although provisional application is a legally binding technique, its operation is dependent upon the Parties agreeing to be bound. The individual Parties can choose whether they wish to be bound by the provisional application and such a decision of a Party may, in part, depend on whether that Party’s domestic law allows them to do so without further legislative approval. The domestic law position of the Parties to the KP is outside the scope of this advice.
There are two obvious ways in which the Parties could decide to provisionally apply amendments to the Kyoto Protocol relating to a second commitment period based on Article 25(1) of the VCLT: a) The text of the amendments could explicitly state that they are to be applied provisionally pending their formal entry into force; and b) The COP decision adopting the amendments could explicitly state that the amendments are to be applied provisionally pending their formal entry into force.