Obligation to negotiate second commitment period under the Kyoto Protocol

Legal assistance paper

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Date produced: 07/12/2010

1. Does Japan (and other Annex 1 Parties to the Kyoto Protocol (the “Protocol”)) have a binding obligation under international law and Article 3.9 to negotiate and adopt a second commitment period target? What are the basic arguments on either side of this question?

2. If there is no such obligation, is there a “good faith” or duty to negotiate argument that Japan is in violation of international law by taking this position? What are the basic arguments on either side of this question?

3. Are there any legal avenues that other Parties could pursue with respect to Japan’s position E.g., could the issue be taken to the KP Compliance Committee?

Summary:

There is no binding obligation on Japan (and other Annex 1 Parties to the Protocol) under Article 3.9 of the Protocol (or any other international law) to further negotiate and adopt a second commitment period target.

There is support under the Protocol and wider international law principles for the argument that Japan is required to use efforts to reach consensus and to act in “good faith” in carrying out its obligations under the Protocol and protecting legitimate expectations concerning the spirit of the Protocol, namely the need for co-operation and long-term measures to minimize climate change. However, these arguments could only lead to a finding that Japan has not used the requisite level of efforts or has not acted in “good faith”. They could not go so far as leading to a finding that Japan was required to adopt a second commitment period target.

As there is no unconditional obligation under the Protocol for Japan to adopt a second commitment period target, the compliance and dispute settlement mechanisms under the Protocol cannot be used by a Party to take enforcement proceedings that could compel Japan to adopt a commitment.

If a Party to the Protocol was of the opinion that Japan’s failure to participate in any aspect of COP 16 and CMP6 constituted a breach of the Protocol or wider obligations under international law to use certain efforts and/or to act in “good faith”, the Compliance Committee of the Protocol (“KP Compliance Committee”) would not be the responsible body for addressing such a question. If there was a breach, the proper route for a Party to take would be to proceed as set forth in Article 19 of the Protocol in conjunction with Article 14 of the UNFCCC to address the dispute by way of negotiation (and later by way of conciliation).

Advice:

1. Article 3.1 of the Protocol contains the core commitment of Annex 1 Parties. It indicates the scale of reductions in carbon dioxide equivalent emissions of greenhouses gases to be achieved by those Parties in the first commitment period. This scale is defined in terms of aggregate carbon dioxide equivalent emissions of greenhouse gases not exceeding Parties’ “assigned amounts”, such amounts being calculated pursuant to their commitments listed at Annex B. Article 3.7 states that the assigned amount for each Party for the first commitment period shall be equal to the percentage allocated to it in Annex B.

The first commitment period ends on 31 December 2012. For a subsequent commitment period to begin, amendments to Annex B must have entered into force pursuant to Article 3.9.

Article 3.9 provides that subsequent commitment periods “shall be established”, but this collective obligation is expressly linked to the procedural obligations in Articles 20 and 21 discussed below. Article 3.9 therefore does not establish any unconditional obligation on any single Party to adopt a second commitment period target.

Article 3.9 also requires the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (“CMP”) to “initiate the consideration of such commitments [being the commitments under the subsequent commitment period] at least seven years before the end of the first commitment period”. The CMP has fulfilled its obligations to initiate considerations for the second commitment period, by the establishment of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (“AWG-KP”).

Article 21.7 (which is directly referred to in Article 3.9) states that amendments to Annex B can only be adopted and enter into force in accordance with the procedure set out in Article 20. This procedure is an “opt-in” procedure – that is, a Party is not bound by the amendment unless it undertakes a ratification procedure and deposits an instrument of acceptance with the Depositary. This is because:

(a) Article 20.4 states that “an amendment…shall enter into force for those Parties who have accepted it on the ninetieth day of receipt by the Depositary of an instrument of acceptance by at least three-fourths of the Parties”, and Article 20.5 states that “the amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits with the Depositary its instrument of acceptance”; and

(b) Article 21.7 states specifically that “any amendment to Annex B shall be adopted only with the written consent of the Party concerned”.

The Secretariat published a document considering the legal options available to ensure that there is no gap between the first and subsequent commitment periods at the request of the AWG-KP. It is notable that whilst the Secretariat does propose a range of options it acknowledges that all of the options would ultimately require the consent of a Party before it was bound by it.

It is therefore clear that a second commitment period cannot begin, nor can the first commitment period be extended, without making an amendment to Annex B, which clearly requires the approval of a Party before it is bound by it.

Although Japan has indicated that it will not approve a second commitment period for the time being , this does not mean that it does not have continuing obligations under the Protocol. For example, the commitments in Articles 10 and 11 of the Protocol will remain in force as these provisions do not refer to commitment periods or any conditions relating to commitments under Article 3. However, these obligations will also cease to be binding on Japan if it chooses to withdraw from the Protocol, which it may do at any time by giving at least one year’s written notification to the Depositary, pursuant to Article 27 (although Japan has indicated that it does not intend to do so).

2. The “good faith” or duty to negotiate argument

Article 20

A Party aggrieved by Japan’s decision not to agree to a second commitment period target might seek to raise the argument that Japan has not complied with its obligation under Article 20.3, which states that “the Parties shall make every effort to reach agreement on any proposed amendment to this Protocol by consensus.”

This is a difficult obligation to interpret and apply.

First, it is arguable that the “every effort” obligation applies to the objective of reaching a consensus, and therefore is not an obligation on the individual Party to use “every effort” itself to agree on the underlying substance of the amendment (adopting a further commitment period, in this case).

Second, an “agreement to agree” or to use “efforts” to agree is notoriously difficult to enforce even under systems of national laws, and it is likely to be more difficult to enforce under international law where high importance is attached to respecting the independence of sovereign states. It seems likely however that the obligation to make every effort would be interpreted as requiring a Party to make positive efforts to reach agreement, to actively participate in efforts to reach agreement and to act in “good faith” (see discussion immediately below). It would arguably not be reasonable to withdraw from such participation until it is apparent that there is not a reasonable prospect of consensus being reached.

General principles

It is accepted by international lawyers and scholars that the requirement of “good faith” is a well-established principle of international law. The Vienna Convention on the Law of Treaties 1969, which applies to international agreements concluded between States in written form and governed by international law, and by implication applies to the Protocol, requires all parties to a treaty to perform the treaties in “good faith” . Furthermore, the concept of the requirement of the Parties to “cooperate in “good faith” to fully implement the provisions of the Protocol” appears in submissions to the CMP concerning Article 3.9 of the Protocol.

The most useful application of the “good faith” concept in the context of negotiating the commitments for the second commitment period concerns the protection of legitimate expectations. There is an argument that at the point of ratification, acceptance, approval or accession to the Protocol each Party had a legitimate expectation that each of the other Parties would commit to adopting targets for the post 2012 period in the same spirit as targets were set for the commitment period from 2008 to 2012. This is primarily based on a common understanding that long-term measures are required to minimize the adverse effects of climate change and so should be matched by long-term commitments.

It is reasonable for the other parties to expect Japan to conduct itself, both in negotiations and the approval process, in “good faith” and upholding the spirit of the Protocol by agreeing on commitments for the second commitment period if it is able to do. Thus, to take an extreme example, it would be likely to be breach of this “good faith” requirement if Japan refused to engage in any discussion of potential commitments for the second commitment period. However, there is a general consensus that under international law the “good faith” principle should not be extended to the point at which it implies a need for sovereign states to act in a moral or righteous manner or to take actions which in “good faith” the sovereign state does not believe to be in its interests or the wider interest.

It is important in this context to note that the principle objective under the UNFCCC and the Protocol is to minimize adverse effects of climate change by imposing emissions targets which should be shared by all developed countries. Therefore, whilst certain developed countries are excluded from the current framework there are objectively reasonable grounds for Japan to say that in “good faith” it is not willing to reach a consensus under the Protocol on that limited basis.

3. Legal avenues with respect to Japan’s position

The KP Compliance Committee was established at the COP 7 by the Marrakesh Accord and confirmed by the CMP in Decision 27/CMP1 under Article 18 of the Protocol to review certain non-compliance with the provisions of the Protocol. The KP Compliance Committee functions through a Facilitative Branch and an Enforcement Branch. The responsibilities of both branches are explicitly enumerated in Decision 27/CMP1. These responsibilities do not include aspects in connection with the negotiation of a second commitment period under Article 3.9 of the Protocol. Therefore, even if a Party to the Protocol was of the opinion that Japan’s position constituted a breach of the Protocol (for example, Article 20), it could not take Japan’s position to the KP Compliance Committee.

In addition to the KP Compliance Committee provisions, Article 19 of the Protocol determines that Article 14 of the UNFCCC applies to the Protocol mutatis mutandis. Article 14.1 of the UNFCCC commits Parties to settle a dispute over the interpretation or application of the UNFCCC through negotiations or any other peaceful means of their own choice. Thus, a dispute with respect to the negotiation and adoption of a new commitment period would also be subject to these rules if another Party was of the opinion that Japan’s position constituted non-compliance with the Protocol and opposed that position.

Only Parties that have recognised the jurisdiction of the International Court of Justice (“ICJ”) and / or of arbitration procedures by way of written declaration to the jurisdiction of the ICJ or to arbitration can settle a dispute by these means (Article 14.2 of the UNFCCC).

The non-binding option to settle a dispute is conciliation. For conciliation, Article 14.5 of the UNFCCC requires that Parties have been unable to settle their dispute through negotiations or other peaceful means within twelve months of the notification of the dispute by one party. Conciliation is then conducted by a Conciliation Commission. It is not legally binding, but it has to be taken into account by the Parties in “good faith” (Article 14.6 of the UNFCCC). A conciliation procedure can be initiated by any of the parties to the dispute.