1. If a state cannot submit a QELRO, what are the legal implications with respect to the achievement of a ratifiable outcome which aims to begin a second commitment period under the Kyoto Protocol and which avoids a gap between commitment periods?
2. What legal options exist to accommodate this situation while still allowing a ratifiable outcome to be achieved by COP18?
1. It is not a condition to the establishment of a second commitment period to the Protocol that QELROs must have been submitted by all Annex I parties. However, the provisions of the Protocol for amending Annex B must be complied with and consensus agreement or a three-fourths majority vote will therefore be required for any amendment to be ratified.
2. There are a number of potential options which could be used to accommodate those states who are not able to submit their QELROs until after the date that an amendment to Annex B will need to be adopted. Nonetheless, it may be difficult politically to secure the three-fourths majority required to ratify the proposed amendment if only certain states are prepared to enter into new binding obligations.
1. The first commitment period under the Kyoto Protocol (the “Protocol”) for Annex I parties ends in 2012. The Protocol is therefore due to enter into a second commitment period in January 2013 with the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol considering amendments to the Protocol to provide for further commitments by industrialised countries for the period beyond 2012.
Article 3(9) of the Protocol provides that: ‘Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7.’ In accordance with Article 21, the procedure set out in Article 20 must be followed to adopt amendments to Annexes A and B and an amendment to Annex B shall also only be adopted with the written consent of the Party concerned. Article 20 of the Protocol provides as follows:
- amendments to the Protocol shall be adopted at an ordinary session of the CMP, the text of the proposed amendment having been communicated to the Parties at least six months before the meeting at which it is proposed for adoption;
- the Parties shall make every effort to reach agreement on any proposed amendment to the Protocol by consensus. However, if all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting; and
- the amendment shall enter into force for those Parties having accepted it on the ninetieth day after the date of receipt by the depositary of an instrument of acceptance by at least three fourths of the Parties to the Protocol.
It is therefore not a condition to the establishment of a second commitment period that QELROs have been submitted by all Annex I parties. That this is not a specific legal obligation was also reaffirmed by Decision 1/CMP.7 made at the 7th session of the CMP, which merely ‘invited’ parties included in Annex I to submit information on their QELROs for the second commitment by 1 May 2012.
Nonetheless, it may be difficult politically to secure the three-fourths majority required to ratify the amendment if only certain states are prepared to enter into new binding obligations. It should also be noted that if a state does not submit a QELRO then they may not be eligible to use the flexibility mechanisms under the Protocol.
2. There are a number of options which could be used to accommodate those states who are not able to submit their QELROs until after the date that an amendment to Annex B will need to be adopted:
- the states which are currently unable to submit their QELROs could commit to be bound by their existing reduction targets;
- the proposed amendment could include discretionary pledges for states which are currently unable to submit their QELROs. The amendment could therefore also include a provision to enable those pledges to be modified upwards and to become binding QELROs at a later date. This could correspond with the proposal for a mechanism allowing emission targets to be reviewed and increased half-way through the second commitment period;
- the CMP could assign commitments comparable to those of other Annex I parties to those states unable to submit QELROs before the end of 2012;
- an exception could be written into the proposed amendment to allow certain Annex I parties to submit their QELROs at a later date. This could potentially also be used in conjunction with the proposal for there to be provisional application of any amendments to the Protocol from 1 January 2013 to avoid delays in ratification; or
- the relevant states could be excluded from the current amendment and a further amendment could be proposed to allow them to be added to Annex B at a later date once their QELROs are known.