Kyoto Protocol amendment process

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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.

Print Friendly, PDF & Email

Date produced: 27/04/2011

1. Are there separate procedures for amending the Kyoto Protocol to include a second commitment period and binding yourself (as a country Party) to an emissions reduction commitment? Would it be possible to agree to a second commitment period but not bind yourself to any emissions reductions?

2. If amendments are made to the amendment procedure of the Kyoto Protocol, do the amendments to the amendment procedure need to be adopted before any amendments to commitments under the Protocol, or can they be agreed at the same time (in which case, will the amended amendment procedure apply either immediately or provisionally for the purposes of the additional agreed amendments to commitments)?

Summary: 1. The procedure for amending commitment periods is separate from the procedure for binding parties to emissions reduction commitments. It is therefore possible for States to agree to a second commitment period without binding themselves to any emissions reductions. 2. Amendments to the amendment procedure of the KP can be agreed at the same time as other amendments (such as amendments to commitments), using the same amendment procedure (Article 20 KP). However, the new procedure cannot be used to make these other amendments until it comes into force under the existing procedure (Article 20). States could get around this using alternative mechanisms to bridge possible commitment gaps, such as making formal statements.

1.The procedure for amending the Kyoto Protocol (“KP”) to include a second commitment period (i.e. amending Article 3 KP) is governed by Article 20 KP. The following procedural steps apply:

– (1) the text of any proposed amendment must be communicated to the Parties by the secretariat at least 6 months before the meeting at which it is proposed for adoption;
– (2) adoption should take place by consensus or, failing consensus, by a three-fourths majority of the Parties present and voting at the meeting;
– (3) entry into force of the amendment: the amendment will enter into force on the 90th day after at least three fourths of the Parties have signalled their consent to be bound. It must be observed in this context that the amendment will only be binding on those Parties that have actually signalled their consent to be bound by submitting an instrument of acceptance (merely voting in favour at the COP/MOP is not enough).

Emissions reductions commitments are contained in Annex B. The normal procedure for amending Annexes to the KP is laid down in Article 21 KP. This procedure is slightly different from Art. 20 KP, in particular as far as entry into force of the amendment is concerned (for instance it contains an opt-out formula, instead of an opt-in). However, under Article 21(7) KP, amendments of the individual emission reduction targets included in Annex B are adopted and enter into force in accordance with the amendment procedure of Article 20 KP, rather than the one of Article 21 KP, “provided that any amendment to Annex B shall be adopted only with the written consent of the Party concerned.”

If the intention is merely to introduce a second commitment period, without amending emissions reductions commitments (Annex B), the procedure under Article 20 KP applies. However, if the intention is to simultaneously introduce a new commitment period and to amend Annex B (either by changing the commitments of the current Annex B countries or by including new Annex B countries) then, in addition to the requirements of Article 20 KP, each State must consent in writing to the individual target imposed on it by the amended Annex B at the adoption stage and submit an instrument of acceptance.

It is therefore possible for States to agree to a second commitment period without binding themselves to any emissions reductions. For instance, a State that is not listed in (an amended version of) Annex B could vote in favour and ratify an amendment to commitment periods, without being legally bound by any emission reduction targets. Alternatively, a State that is listed in (the amended) Annex B could vote in favour of the KP amendment, but later refuse to, or fail to, submit an instrument of acceptance.

2. Any proposed change to the amendment procedure of the KP is governed by Article 20. The process of amending it is therefore the same as for other amendments (including amendments to commitments) and can be agreed at the same time. However, if an amendment of the amendment procedure were to provide for the provisional application (pending entry into force) of certain substantive amendments of the KP, this new procedure would only apply after the amendment itself enters into force (following the requirements of Article 20 KP).

This does not mean that there are no alternative mechanisms to bridge a possible commitment gap. For instance, Annex B countries could make formal statements (individually or jointly) accepting to provisionally apply new commitments pending the entry into force of the amended KP.