Legal consequences of a KP amendment without consensus

Legal assistance paper

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Date produced: 04/12/2012

1. What are the legal consequences of KP amendments being adopted by majority rather than by consensus?

2. If a proposed decision cannot be reached by consensus, what is the process for getting it to a vote? What are the procedural difficulties that might arise?    

Summary:

1. A proposed amendment adopted by three-fourths majority vote under Article 20 of the Kyoto Protocol (“KP”) will be circulated to the Parties for their acceptance in the same manner as a proposed amendment adopted by consensus. However, the amendment will only enter into force as to those Parties that accept it by depositing an instrument of acceptance with the Depositary.

2. Proposed amendments to the KP may be made at any ordinary session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (“CMP”). Such amendments must have been communicated to the Parties by the secretariat six months prior to the meeting. If no consensus on the amendment can be reached after every effort has been made in that regard, the amendment can be put to a vote for adoption by a three-fourths majority of the Parties present and voting pursuant to Article 20(3) KP. To date, the Parties have not reached agreement on the procedures for voting. For this reason, as a practical matter it may be difficult to bring a proposed amendment to a vote. The assistance of the Chair of the meeting and the secretariat would likely be key in this regard.

Advice:

1. Article 20 of the Kyoto Protocol (“KP”) sets forth the applicable procedures for amending the KP. Under Article 20(3), Parties to the KP are obligated to make “every effort” to reach agreement on proposed amendments to the KP by consensus. If, however, all such efforts have been exhausted without a consensus being reached, it is possible for a decision on the amendment to be taken by means of a majority vote by Parties present and voting at the meeting. The proposed amendment is adopted if three-fourths of all Parties present and voting at the meeting vote for adoption of the amendment.

The amendment thus adopted subsequently moves forward in the process for adoption in the same manner as a proposed amendment adopted by consensus. The adopted amendment is communicated by the secretariat to the Depositary, which circulates the adopted amendment to the Parties for their acceptance.

Each Party accepting the amendment then deposits its instrument of acceptance with the Depositary. The amendment thus adopted enters into force for those Parties which have accepted it on the 90th day following the date of receipt by the Depositary of instruments of acceptance from at least three-fourths of the Parties to the KP. Please note that the amendment will only enter into force for those Parties which have deposited their instruments of acceptance to the Depositary. Any Parties which have not deposited such instruments will not be bound by the amendment.

2. Based on the description of the context for the inquiry, we assume that the second question relating to decisions not taken by consensus also refers to proposed amendments to the KP.

There are no agreed voting rules for decisions on proposed amendments to the KP by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (“CMP”) that cannot be reached by consensus. Article 13(5) of the KP provides that the rules of procedure for the KP are to be the same, mutatis mutandis, as those for the United Nations Framework Convention on Climate Change (“UNFCCC”). The Conference of the Parties to the UNFCCC has established a set of draft rules of procedure for the Convention, with the exception of the rule relating to voting. According to the handbook of the UNFCC, these rules have never been formally adopted because the Parties could not reach agreement on the proposed rule governing voting. Instead, the Parties have agreed to apply the rules – except for draft Rule 42 concerning voting – in draft form, pending their eventual adoption.

Proposed amendments to the KP may only be adopted at an ordinary session of the CMP. The process for putting a proposed amendment to a vote pursuant to Article 20(3) begins with the provision of the proposed amendment to the secretariat, which must communicate the text of the proposed amendment to the Parties at least six months before the meeting at which it is to be proposed for adoption.

Once the meeting has convened, and as noted above, Parties must make every effort to reach agreement by consensus on any proposed amendment to the KP. If, and only if, no consensus can be reached does Article 20(3) permit Parties to put the matter to a vote. As noted, however, there is no agreed procedure for such a vote.

Notably, Rule 59 of the draft rules of procedure provides that the Convention shall prevail in the event of any conflict between the provisions of the rules and those of the Convention. Because Article 20(3) KP mandates that a failure to achieve consensus on a proposed amendment “shall” be adopted by a three-fourths majority vote, we believe that an argument can be made that such a vote is required by the Protocol when consensus cannot be reached, notwithstanding the fact that no agreed procedure for voting has been established. As a practical matter, it would no doubt be helpful for proponents of a proposed amendment to the KP to work closely with the Chair of the meeting and the secretariat to try to achieve consensus or, failing any consensus, to put the amendment to a vote at the meeting. We note in particular that an assessment that all efforts at achieving consensus have been exhausted is by its nature subjective. It would likely require some efforts to persuade the Chair and the secretariat that this point in the discussion has been reached in order to bring the matter to a vote.