To what extent could the proposals submitted by Brazil and the EU aimed at strengthening Quantified Emission Limitation or Reduction Commitments (QELROs) during the second commitment period produce an outcome that is binding under public international law?
The articles of the Kyoto Protocol are generally binding under public international law; the enforcement provisions of the Protocol are not binding under public international law, but the Parties nevertheless comply with them for political, social and moral reasons; no international legal ramifications arise if a Party leaves the Protocol in accordance with Article 27 (although national-level legislation could exist in certain states to ensure that the relevant governments have acted in accordance with any self-imposed national-level legislative requirements relating to the Protocol); and most international agreements are consensual in nature and, in the event of total non-compliance by a Party, it is debateable what actions the other Parties could actually take against the offender other than through the Compliance Mechanisms, which are limited in scope.
This memo sets out a response to three questions that you have asked us to consider, specifically: (1) how binding would the four proposals described below (the Proposals – available at http://unfccc.int/kyoto_protocol/items/4944.php) be if adopted under public international law; (2) how binding would any “further requirements” required by the Proposals be if adopted under public international law; and (3) in the event that any of the Proposals (or any further requirements required by such Proposals) were not to be legally binding, what possible additional steps could be taken (at a national or international level) to make them legally binding?
Following the United Nations Climate Change Conference in Durban in November and December 2011, 34 industrialised countries (Australia, New Zealand and 32 European nations ) and the European Union (EU) itself agreed in principle to sign up to a second commitment period of the Kyoto Protocol (the Protocol). With the Protocol looking likely to be extended into a second commitment period, it has become necessary to amend the current text of the Protocol. To this end, a number of proposals have been developed that suggest solutions to some of the problems that were encountered during the first commitment period. A number of these proposals were discussed at Bonn between 15 and 24 May 2012, and included:
(a) a proposal from the EU entitled “Review of the level of ambition of Parties commitments”, which would create a review at some point during the second commitment period to consider an increase in the Protocol’s emissions reduction targets;
(b) a proposal from the EU entitled “A simplified procedure to amend Annex B (QELROs)”, which would make it easier for a party to the Protocol (a Party) to set higher emissions targets for itself;
(c) a proposal from Brazil entitled “Submission on surplus and carry-over AAUs”, which would stop assigned amount units (AAUs) being rolled-over for multiple commitment periods; and
(d) a proposal from Brazil entitled “Brazilian Proposal on Forfeit”, which would allow a Party to voluntarily cancel any surplus AAUs that it holds.
1. How “binding” will the Proposals be?
Three of the Proposals envisage new text being inserted into the Protocol itself. Specifically:
(a) the EU proposal entitled “Review of the level of ambition of Parties commitments” involves replacing the existing text of Article 3(1) with the text from the Proposal.
(b) the EU proposal entitled “A simplified procedure to amend Annex B (QELROs)” involves inserting a new Article 21(8).
(c) the Brazilian proposal entitled “Submission on surplus and carry-over AAUs” envisages removing the text at Article 3(13), and replacing it with the text from the Proposal.
The Brazilian proposal entitled “Brazilian Proposal on Forfeit” also appears to suggest that new text should be inserted into the Protocol, although it is unclear as to precisely where such text should be inserted or what form it should take.
On this basis, assuming that the Proposals were to be adopted, it is probable that they would become articles (or parts of articles) within the Protocol. They would, therefore, if adopted, be as binding on the Parties as any other articles contained within the Protocol.
2. Binding nature of the Protocol
Assuming the Proposals will, if adopted, be as binding on the Parties as the other articles of the Protocol, the question therefore becomes “how binding are the articles of the Protocol on the Parties who have approved them”?
It is widely believed that international law typically operates on the principle of consent-based governance. This means that, generally, a state is not obliged to abide by any international law unless it has expressly consented to it . In terms of the Protocol, this means that the articles described therein are considered to be legally binding on a state once they have been adopted by such state in accordance with the provisions described within the Protocol.
It is worth noting that Article 20 of the Protocol, which deals with the issue of how the Protocol can be amended, allows for the possibility of changes to be made to the Protocol by three-quarter majority “as a last resort”. This opens up the possibility that changes can be made to the Protocol without the consent of a Party. In such instance, it is unknown how binding such changes would be on a non-consenting Party, and such issue has not yet arisen.
Enforcement and the Amendment Dilemma
The fact that the Parties to the Protocol should be considered to be bound by international law to comply with the articles contained within the Protocol should be considered alongside another question, specifically: “what happens if a Party breaches a provision of the Protocol that it has adopted”. After all, a binding provision that has no effective penalty for breach would not, in a literal sense, be considered to be particularly “binding”.
Article 18 of the Protocol deals with the issue of enforcement. Article 18 calls on the Conference of the Parties (COP), which serves as one of the principal meetings of the Parties to the Protocol, to
“approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol”; and further adds that
“Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to [the] Protocol”.
Therefore, in order to impose binding enforcement obligations on its Parties, the Protocol requires two distinct actions to be taken:
(a) the COP have to approve the enforcement measures (the Creation Limb); and
(b) those enforcement measures have to be adopted by means of an amendment to the Protocol itself (the Adoption Limb).
The Creation Limb
At the fourth meeting of the COP (COP 4), the Parties established a joint working group on compliance to develop a compliance/enforcement system under the Protocol, with a view to adopting a decision on this issue at COP 6 .
At COP 6, however, the Parties were unable to reach agreement on a number of key issues, including (i) what the consequences of non-compliance should be; and (ii) who should sit on the Protocol’s Compliance Committee. As with other issues, the negotiating texts on compliance were forwarded to a resumed session of COP 6 for further consideration.
At the resumed session of COP 6 (COP 6 Part II), the Parties adopted the “Bonn Agreements on the Implementation of the Buenos Aires Plan of Action”, registering political agreement on key issues, including on compliance. The Parties also continued to work at COP 6 Part II on procedures and mechanisms relating to compliance, based on the Bonn Agreements. Although considerable progress was made, a number of points remained outstanding and the draft decision was forwarded to COP 7 for further elaboration, completion and adoption .
At COP 7, the Parties adopted a decision on the compliance regime for the Protocol, being decision 24/CP.7 of the Marrakesh Accords . The text of this decision contained procedures and mechanisms relating to compliance under the Protocol (the Compliance Mechanisms). Amongst other things, these measures included (i) the establishment of an Compliance Committee, which consists of an enforcement branch and a facilitative branch; and the enforcement consequences that can be applied by the enforcement branch. These enforcement consequences enable the enforcement committee:
(i) to make a public declaration of non-compliance against a non-compliant Party;
(ii) to compel a non-compliant Party to develop a plan that will bring them to a level of compliance;
(iii) to suspend the non-compliant Party from using the various market mechanisms prescribed by Articles 6, 12 and 17 of the Protocol; and
(iv) if any excess emissions are present at the end of the first compliance period, to deduct from the non-compliant Party’s assigned amount for the second commitment period an amount in tonnes equal to 1.3 times the amount of such excess emissions (eg, if the Party is 100 tonnes over its assigned amount at the end of the first commitment period, it can have deducted from its assigned amount for the second commitment period a total of 130 tonnes).
The enforcement committee cannot impose financial penalties.
Decision 24/CP.7 was approved by the COP in 27/CMP.1 . This, therefore, satisfied the Creation Limb referred to in sub-paragraph (a) above.
The Adoption Limb
Despite the Creation Limb being satisfied, the amendment to the Protocol as required to satisfy the Adoption Limb described at paragraph (b) above has not taken place and, further, it is commonly believed that such amendment will not take place before the end of the first compliance period .
The United Nations Framework Convention on Climate Change’s (UNFCCC) website simply notes that “the first COP… decided to consider an amendment to the Protocol in respect of procedures and mechanisms relating to compliance in terms of Article 18, with a view to making a decision by its third session. The proposed amendment would make the consequences in decision 27/CMP.1 binding on Parties which ratified it, in conformity with Article 18 of the Protocol, which stipulates that any binding consequences shall be adopted by amendment” . Such amendment was never adopted.
As the Adoption Limb has not been satisfied, the requirements of Article 18 have not been satisfied, and, consequently, the current enforcement regime is not believed to be legally binding . This issue is often referred to as the “amendment dilemma”.
The current position
According to the UNFCCC, the compliance regime of the Protocol “is among the most comprehensive and rigorous in the international arena”, providing for “facilitation, promotion and enforcement of the Protocol’s commitments” . However, as noted above, the enforcement provisions of the Protocol are not technically legally binding. How are these statements squared-off?
As noted above, Decision 24/CP.7 was approved by the COP in 27/CMP.1. COP decisions are approved by the Parties. By approving Decision 24/CP.7, the Parties “bound” themselves on “social”, “moral” and “political” levels to abide by such decision.
In practice this has been borne out. By way of example, Greece (2008), Canada, (2008), Bulgaria (2009-10), and Croatia (2009), have all been made subject to the Compliance Mechanisms by the enforcement branch of the Compliance Committee. All abided by the associated processes, and none challenged the decisions of the Compliance Committee on the basis that the Adoption Limb had not been satisfied .
It can be concluded, therefore, that the enforcement mechanisms of the Protocol, although not technically legally binding, are sufficiently strong to provide political and moral pressures on the Parties to compel compliance. However, the Compliance Mechanisms themselves are, in their current form, weak from a legal perspective.
Another consideration that should be considered when exploring how binding the Protocol is, is how easily can a Party discharge its obligations under the Protocol and, in effect, unburden itself. In December 2011, Canada exercised its legal right to formally withdraw from the Protocol as specifically embodied in Article 27.
Article 27 states that:
“1. At any time after three years from the date on which this Protocol has entered into force for a Party, that Party may withdraw from this Protocol by giving written notification to the Depositary.
2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.(…)”
This means that, in effect, a country can submit a notice to withdraw after three years from the date the Protocol came into force for such country. Following this point, only one year has to pass before the Party in question can “unbind” itself from the provisions of the Protocol.
It is worth noting that no penalties are imposed on any country that chooses to leave the Protocol by exercising its rights under Article 27. As a result, a Party can disentangle itself in respect of its public international law obligations from the Protocol relatively easily (although the political and social ramifications for doing so would prove to be significant hurdles) . The ease with which a Party can withdraw from the Protocol makes the Protocol significantly less binding from a legal perspective.
Leaving the Protocol: the national law position
Subsequent to Canada’s decision to withdraw from the Protocol, a legal challenge arose that queried whether or not the Canadian Government had, in effecting Canada’s withdrawal, breached the Kyoto Protocol Implementation Act 2007. It was alleged by the applicants that, amongst other things, the Canadian Government had breached this piece of Canadian legislation by failing to consult with the Canadian Parliament before withdrawing Canada from the Protocol . The application was dismissed by the Canadian Federal Court in July 2012 .
Despite this, it is possible that a nation’s parliament could theoretically “entrench” national legislation that would consequently make it harder for the relevant Party to leave the Protocol in the future. Such national legislation could, for example:
(a) require any future government of the relevant state wishing to leave the Protocol to obtain the consent of the relevant parliament;
(b) require a general referendum to leave the Protocol; or
(c) require the relevant parliament to pass a motion to leave the Protocol, with such motion having to be passed by a qualified majority.
The criteria of any such “entrenched” clauses would have to be considered on a state by state basis, with many states having established rules about their validity of such clauses and the forms that they can take.
3. Making the Protocol “more binding”
In summary: (a) the articles of the Protocol are generally binding under public international law; (b) the enforcement provisions of the Protocol are not binding under public international law, but the Parties nevertheless comply with them for political, social and moral reasons; (c) no international legal ramifications arise if a Party leaves the Protocol in accordance with Article 27 (although national-level legislation could exist in certain states to ensure that the relevant governments have acted in accordance with any self-imposed national-level legislative requirements relating to the Protocol); and (d) most international agreements are consensual in nature and, in the event of total non-compliance by a Party, it is debateable what actions the other Parties could actually take against the offender other than through the Compliance Mechanisms, which are limited in scope.
To make the Protocol more legally binding the Parties acting collectively could
(a) Amend the Protocol to instigate enforcement mechanisms in compliance with Article 18: the Parties could follow the procedure described at Article 18 of the Protocol (and described in paragraph 2.2 above) to legally establish the enforcement mechanisms. This would entail satisfying both the Creation Limb and the Adoption Limb in relation to any enforcement mechanisms that are proposed and/or created. By creating enforcement mechanisms in this way, such mechanisms would, unless stated otherwise, apply to all of the Articles of the convention and, therefore, strengthen them all accordingly.
(b) Amend Article 27 / create a new Article for the Protocol imposing penalties for withdrawal: A Party can withdraw from the treaty after ratifying it in most cases by simply giving one year’s notice. This provision, coupled with the lack of penalties for non-compliance, means that a country can effectively walk away without fear of financial sanctions if it breaches its obligations.
To make the Protocol more binding, the Parties could amend Article 27 so that the requisite amount of notice required is increased. This would make it harder for a Party to leave the Protocol, therefore making it more binding. The Parties could also strengthen the Protocol by agreeing to add a new Article, which stated that, in the event that a non-compliant Party abandoned the Protocol, some form of financial penalty could be placed onto such Party to account for its level of non-compliance.
To make the Protocol more binding it may also be possible, in some countries, for Parties acting individually to establish entrenched clauses within domestic implementing legislation, that require the relevant government to undertake certain actions and/or obtain certain consents before they are allowed to submit a notice under Article 27.