Kyoto Protocol status of non CP2 parties

Legal assistance paper

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Date produced: 04/12/2012

1. Will Japan, Russia and others who don’t join a second commitment period under the KP still be parties to the KP?

2. Will the proposed language cover countries which do not participate in a second commitment period but are still Parties to the Kyoto protocol?

Summary:

Parties to the Kyoto Protocol remain so notwithstanding they do not adopt or otherwise participate in a second commitment period under the protocol.

The original phrasing, “developed country Parties that are not Parties to the Kyoto Protocol” includes the US. It will also include Canada as soon as their withdrawal from the Kyoto Protocol takes effect before the end of 2012.

The phrase suggested, i.e. “developed country Parties that do not undertake commitments under the second commitment period of the Kyoto Protocol, to ensure comparability with Kyoto Protocol rules”, would cover countries that remain Parties to the Kyoto Protocol but do not participate in a second commitment period. However, it is not clear what “undertake” actually means. Clarifying and elaborating on its meaning in light of the ongoing negotiations under the KP track is important to ensure that countries that are not participating in a second commitment period are captured by the test in the proposed text.

Advice:

1. Parties to the Kyoto Protocol remain so notwithstanding they do not adopt or otherwise participate in a second commitment period under the protocol.

2. The original phrasing, “developed country Parties that are not Parties to the Kyoto Protocol” includes the US. It will also include Canada as soon as their withdrawal from the Kyoto Protocol takes effect before the end of 2012.

The phrase suggested, i.e. “developed country Parties that do not undertake commitments under the second commitment period of the Kyoto Protocol, to ensure comparability with Kyoto Protocol rules”, would cover countries that remain Parties to the Kyoto Protocol but do not participate in a second commitment period. It is assumed that this language is meant to create two groups, those who participate in a second commitment period (CP2-Parties) and those who are excluded by virtue of the language above (non-CP2-Parties).

However, “undertake commitments” may need to be clarified/elaborated on in light of the ongoing negotiations regarding the final decision text for the amendments to the Kyoto Protocol; although a hybrid approach is most likely, the final outcome of the KP track could be a requirement to ratify, provisionally apply, otherwise implement obligations under the second commitment period or any combination of these options. With this in mind, it is not clear from the proposed language above whether “undertake” means ratification, provisional application, implementation, adoption, agreement of the amendments or something else. It also is not clear whether “undertaking commitments” also requires parties to honour the commitments they’ve undertaken or what happens if they fail to do so. This may have implications depending on the level of commitment undertaken by a party and also on how far a party goes in fulfilling its second commitment period obligations.

For example, if “undertake” above means “agrees to apply the [CP2] amendments”, then a party which “agrees to apply the [CP2] amendments” would not be caught by 1(b)(i) and would fall in the CP2-Party category. However, if that party later fails to apply, implement, or ratify (etc…) the amendments to the Kyoto Protocol, that party would be a CP2-Party (in name only) but would also not fall in the non-CP2-Party category since they met the test in the proposed 1(b)(i) text (agreement to apply the amendments) – meaning they fall into a black hole.

Possibly linking the proposed language in the 1(b)(i) amendments, and the meaning of “undertake” in particular, to the language in the outcome of the negotiations on this issue under the Kyoto Protocol could avoid or at least minimise the above kinds of cases.