Procedure for Amending Annex B Commitments (Part 1)

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Date produced: 07/10/2011

1. If Annex B of the Kyoto Protocol (the “KP”) 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 this require the usual Annex amendment procedure under the KP, or would there be a way to make this amendment using a simpler procedure?

Summary

We consider that such amendment to Annex B of the KP would most likely need to follow the same procedure as all other amendments to a KP annex. There does not seem to be any exemption in relation to amending an annex, regardless as to whether it has the effect of setting out a more stringent commitment for one of the Parties to the KP and that Party initiates such an amendment.

 According to Articles 21.7 and 20.2 of the KP, an amendment to Annex B would be required to be adopted at an ordinary session of the Conference of the Parties to the KP. Before such an adoption, the proposed text of the amendment to the annex would have to have been communicated to the Parties by the secretariat at least six months prior to the meeting. Further, the adopted amendment would have to be accepted by at least three quarters of the Parties (including the Party concerned) and would enter into force on the ninetieth day after the date the depository received acceptance from such a majority, according to Articles 20.3, 20.4, 20.5 and 21.7 of the KP.

We consider that it may be possible to provide for an alternative and simpler procedure, facilitating a later amendment to the EU’s commitment under Annex B. Such a procedure would be somewhat unorthodox and may therefore be difficult to put into place, and would, of course, require the EU’s approval. However, we consider it to be possible to amend Annex B in such a way that it would enable the EU to unilaterally change its commitment from 20% to 30%.

A proposition for the amendment to Annex B could entail wording to the effect that: “the European Union and its Member States – 80 (or, after a specific declaration from the Council of the European Union to the Depository of that effect, any number lower than 80)”. Alternatively, the text following the “80” could be included as a footnote. We consider that such an amendment could make it possible for the EU to increase its binding commitment without undertaking the normal amendment procedure.

It should be noted that such an amendment could arguably be inadmissible pursuant to Article 21.1 of the KP, on the basis that annexes adopted after the entry into force of the KP are required to be “restricted to lists, forms and any other material of a descriptive nature that is of a scientific, technical, procedural or administrative character”, although under a strict interpretation this provision may not apply as this is an amendment to an existing annex.

Advice

1. Introduction

The KP sets out in detail the ways in which amendments to annexes of the KP can be made. The relevant articles in the KP are Article 21 (annexes to the KP) and Article 20 (the KP protocol and annexes A and B to the KP). There is no alternative procedure set out to make amendments to the commitment levels in Annex B.

It should, of course, be possible to agree to change the KP in order to provide for new possibilities to amend its annexes. However this seems to fall outside the scope of the query at hand and will not be dealt with in the following.

2. Amendments to Annexes of the KP

We consider that any amendment to Annex B of the KP would have to follow the procedure as set out in Articles 21 and 20 of the KP, i.e. there does not seem to be any exemption in relation to amending an annex, regardless of the fact that in this case such an amendment would set out a more stringent commitment for one of the Parties to the KP. Previously, the proposal by Belarus to set its commitment level also followed the procedure described in said articles of the KP.

According to Articles 21.7 and 20.2 of the KP an amendment to Annex B would be required to be adopted at an ordinary conference of the Parties. Before such an adoption, the proposed text of the amendment to the annex would have to have been communicated to the Parties by the secretariat at least six months prior to the meeting. Further, the adopted amendment would have to be accepted by at least three quarters of the Parties (including the Party concerned) and would enter into force on the ninetieth day after the date the depository received acceptance from such a majority, according to Articles 20.3, 20.4, 20.5 and 21.7 of the KP. The procedure therefore seems to be rather time consuming.

3.  Option for the EU to accept a more stringent commitment

We consider that it may be possible to provide for an alternative and simpler procedure, facilitating a later amendment to the EU’s commitment under Annex B. Such a procedure would be somewhat unorthodox and may therefore be difficult to get into place, and would, of course, require the EU’s approval. However, we consider that it could be possible to amend Annex B in such a way that it would enable the EU to unilaterally change its commitment from 20% to 30%, or some other figure.

For example, the amendment to Annex B relating to the European Union (and its Member States) could read: “the European Union and its Member States – 80 (or, after a specific declaration from the Council of the European Union to the Depository of that effect, any number lower than 80)”. Alternatively, the text in brackets following the “80” could be included as a footnote.

It should be noted that such an amendment could arguably be inadmissible pursuant to Article 21.1 of the KP, on the basis that such annexes are required to be “restricted to lists, forms and any other material of a descriptive nature that is of a scientific, technical, procedural or administrative character”, although under a strict interpretation this provision may not apply as this is an amendment to an existing annex.

4. Conclusion

Our view is that an amendment including an option for the EU to increase its binding commitment by notice to the Depository under the KP could enable the EU to go from a 20% reduction commitment to a 30% reduction commitment, without having to undertake the time intensive amendment procedure. We have not identified any other means of circumventing the procedure set out in the KP.