Procedure for Amending Annex B Commitments (Part 2)

Legal assistance paper

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Date produced: 17/10/2011

1. If Annex B of the Kyoto Protocol  is amended with new commitments, including a 20% reduction commitment by the EU, how easy or difficult would it be to later amend the EU’s Annex B commitment to a 30% reduction?  

2. Would the introduction of an adjustment procedure similar to the Montreal Protocol (“MP”) be another workable alternative to the usual Annex amendment procedure under the KP?

Summary

 In theory, the introduction of an adjustment procedure into the KP, similar to the procedure set out in Article 2.9 of the MP, could facilitate an increase to the EU’s commitment, under a simpler procedure than the usual Annex B amendment procedure under the KP.

However:

  • the introduction of such adjustment procedure would require an amendment to the KP. The undertaking of such an amendment would be as time consuming as an amendment to Annex B of the KP under the usual Annex B amendment procedure;
  • the introduction of such adjustment procedure is likely to be met with more opposition from the other parties, and thus be even more difficult to achieve, than amending the EU’s commitment in Annex B of the KP. This is because the introduction of an adjustment procedure would affect all Parties directly (their commitments could then also be increased by a simpler procedure), whereas an amendment of the EU’s commitment in Annex B would only affect the EU directly. In addition, the amendment needed for the introduction will be more complex than just revising the commitment set for the EU in Annex B;
  • the adjustment procedure set out in the MP is also rather time consuming, given that pursuant to this procedure (i) proposals are also to be circulated 6 months in advance of the relevant meeting, (ii) a two-third majority vote is required for adoption, with an additional test of representing a majority of parties of both developing and non-developing countries, respectively, and (iii) adjustments will not enter into force until six months after communication of the adoption.

The introduction of an adjustment procedure similar to that in the MP does not therefore appear to make increasing the EU’s commitment less time consuming or easier to achieve than it would under the usual Annex B amendment procedure, although it would make subsequent adjustments of commitments (of the EU, or any other Party) somewhat easier.

 Article 2.11 of the MP explicitly states that the parties to the MP may take more stringent measures than those required by the relevant Articles of the MP. Even though this is not explicitly provided in the KP or the Convention, we believe also under the KP a Party may take, or promise to take, more stringent measures than follow from its commitments set out in Annex B. However, such a unilateral undertaking would not have the same binding effect as an amendment of the commitment set out in Annex B of the KP.

Advice

1. Introduction

We believe the query refers to the adjustment procedure set out in Article 2.9 of the MP. This provision enables the parties to the MP to adjust the ozone depleting potentials or adjust and reduce the production or consumption of the controlled substances, without having to amend the MP or the annexes thereto.

      2. Adjustment procedure under MP

The adjustment procedure under Article 2.9 of the MP, is linked to the four-annual assessment required to be made under Article 6 of the MP, and entails the following steps:

I. Party’s proposed amendment is communicated to other Parties via Secretariat

6 months

II. Meeting at which amendment is proposed and may be adopted

III. Adopted amendment communicated to the Depositary and circulated to parties

6 months

IV. Proposed amendment enters into force, for all parties

Compared against the procedure for amending Annex B of the KP the main differences are:

–          a two-third majority vote threshold applies (compared to the three-fourths majority vote required under the KP), subject however to an additional test of representing a majority of parties of both developing and non-developing countries, respectively;

–          the adjustment enters into force after a fixed period (six months) of communication by the Depositary, whereas the entry into force of amendments to Annex B of the KP depends on when three-fourths of the parties have deposited instruments of acceptance (entry into force is 90 days thereafter); and

–          an adjustment pursuant to Article 2.9 of the MP binds all parties (it being noted that not all adjustments necessarily affect all parties to the same extent), whereas an amendment to Annex B of the KP only binds the Parties who have deposited an instrument of acceptance[1].

As follows from the above, an adjustment pursuant to the MP procedure is generally not much less time consuming or much easier to achieve than an amendment of Annex B of the KP under the usual Annex amendment procedure. The main advantage of such an adjustment procedure would be that the entry into force is not dependent on the parties depositing instruments of acceptance (which often involves approval by the relevant national parliaments and/or the passing of national legislation, or similar procedures under national laws). Therefore the fixed 6-months period under the MP procedure may be quicker.

3.  Amendments to KP required to introduce adjustment procedure

Under the KP and the Convention as they currently stand, an adjustment of commitments pursuant to a procedure similar to the procedure set out in (Article 2.9 of) the MP would not be possible (in principle, the usual Annex amendment procedure would apply to an increase of commitments; see our response to Q253 for a more “flexible” amendment of the EU’s commitment). The introduction of such adjustment procedure would therefore in itself require an amendment of the KP.

The amendment of the KP would have to follow the same procedure, and meet the same requirements, as an amendment to Annex B of the KP (it being noted, that pursuant to Article 21.7 of the KP an amendment to Annex B may be adopted only with the written consent of the Party concerned). For the details of this procedure, we refer to LRI’s briefing paper “Procedure for amendments to the Kyoto Protocol” dated 19 July 2010.

The introduction of such adjustment procedure would therefore be at least as time consuming as an amendment to Annex B of the KP under the usual Annex B amendment procedure. In fact, such introduction is likely to meet more opposition from the other Parties, and thus be even more difficult to achieve. This is because the introduction of an adjustment procedure would affect all Parties directly (their commitments could then also be increased by a simpler procedure), whereas an amendment of the EU’s commitment in Annex B would only affect the EU directly.

In addition, the amendments needed for the introduction will be more complex than just revising the commitment set for the EU in Annex B. It is not unlikely therefore such amendments will take more time for preparation and review than revising the EU’s Annex B commitments.

The introduction of an adjustment procedure similar to that in the MP would, after this has been achieved, make subsequent adjustments of commitments somewhat easier. This would not only apply for the EU’s commitments, but also for the commitments of the other Parties.

4. Unilateral undertaking

Article 2.11 of the MP explicitly states that the parties thereto may take more stringent measures than those required by the relevant Articles of the MP.

No such provision can be found in the KP or the Convention. We believe, however, that a reasonable explanation of the KP and the Conventions and which is also consistent with their respective objectives, is that each Party is free to take, or promise to take, more stringent measures than follow from its commitments set out in Annex B of the KP.

However, such a unilateral undertaking would not have the same binding effect as an amendment of the commitment set out in Annex B of the KP. It would therefore, at least from a legal perspective, be easier for the EU to withdraw such increase of commitment or lower its commitment (e.g. to the commitment set out it Annex B) than if that increased commitment were incorporated in Annex B of the KP.

5. Conclusion

In theory, the introduction of an adjustment procedure similar to the procedure set out in Article 2.9 of the MP could be a viable alternative. However, this does not appear to make increasing the EU’s commitment much less time consuming or much easier to achieve, although it would make subsequent adjustments of commitments (of the EU, or any other Party) somewhat easier. 



[1] Assuming only the EU’s commitment will be increased, this difference will be of little relevance.