Provisional application and declarations

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Date produced: 12/06/2012

In the event that Kyoto Protocol parties agree to provisionally apply the amendments related to the second commitment period, what drafting language can be used for parties to provisionally opt-out of provisional application, while also requiring them to accelerate any relevant domestic ratification processes, to consider (to the extent it is permitted by domestic law) retroactive application of the amendments and to act in the meantime in accordance with the principle of good faith?

We set out below paragraphs that could be inserted into the operative parts of the CMP decision that adopts the amendments to the Kyoto Protocol. They are predominately based on Article 45 of the Energy Charter Treaty 1994 and amended to fit the relevant circumstances. As such, other options for paragraphs which achieve the objective of the query are possible.

The Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol,

[…]

1. Adopts the amendments to the Kyoto Protocol to the United Nations Framework Convention on Climate Change as contained in the annex to this decision;

2. Decides that each Party shall apply the amendments provisionally as from 1 January 2013 pending their entry into force for such Party in accordance with Articles 20 and 21 of the Kyoto Protocol, to the fullest extent consistent with the domestic law of such Party;

3. Further decides, notwithstanding paragraph 2, that any Party may, within [one week] of this decision being adopted, deliver to the Depositary a declaration that it is not able to accept provisional application on the grounds of inconsistency with that Party’s domestic laws together with a list of all of its domestic laws that it considers may be inconsistent with the amendments contained in the annex to this decision, and shall keep this list updated as laws come into compliance with the amendments;

4. Agrees that any declaration made pursuant to paragraph 3 may be withdrawn by the declaring Party at any time by giving written notice to the Depositary;

5. Further agrees that any Party may terminate its provisional application of the amendments contained in the annex to this decision by written notification to the Depository, such termination to take effect upon the expiration of [120] days from the date on which such Party’s written notification is received by the Depository;

6. Urges all Parties to the Kyoto Protocol to accelerate their domestic processes in order to ratify, accept or approve the amendments contained in the annex to this decision as a matter of urgency;

7. Further urges each Party, to the extent consistent with its domestic laws, to ensure that once the amendments contained in the annex to this decision have entered into force for such Party, that such amendments are applied retroactively as from 1 January 2013;

8. Affirms that each Party shall, prior to the amendments definitively entering into force, act in good faith, comply with the amendments to the fullest extent possible and refrain from taking any action that might be inconsistent the object or purpose of the amendments contained in the annex to this decision; and

9. Invites States that are not parties to the Convention to ratify or accede to it, as appropriate, without delay, so that they may become Parties to the Protocol.

10. Further invites States that are parties to Convention but not the Kyoto Protocol to ratify or accede to it, as appropriate, without delay.