“Is it possible, under international law (and bearing in mind that Article 25 of the UNFCCC specifically provides a right of withdrawal), to restrict the right for a Party to withdraw from a treaty? Have there been other instances where such a restriction has been imposed? It is understood that, under the negotiations for a new climate treaty to be signed at COP21 in Paris, some countries are putting forward a proposal aimed at restricting parties from withdrawing from the Agreement until the 1st commitment period is completed.”

Summary:

The short answer to both questions is ‘yes’. The fuller answer is as follows.

Advice:

The general rules on withdrawal from treaties are contained in Article 54 of the Vienna Convention on the Law of Treaties (‘the VCLT’), which can, for these purposes, be seen to reflect customary international law binding on all States. Article 54 provides that the withdrawal of a party from a treaty may take place either (a) in conformity with the provisions of the treaty or (b) with the consent of all the other parties to the treaty.[1]

Article 25 of the United Nations’ Framework Convention on Climate Change (‘the UNFCCC’) provides for withdrawal from the treaty. It states as follows:

1. At any time after three years from the date on which the Convention has entered into force for a Party, that Party may withdraw from the Convention 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.
3. Any Party that withdraws from the Convention shall be considered as also having withdrawn from any protocol to which it is a Party.

Article 17 of the UNFCCC provides for the adoption of protocols by the conference of parties (‘the COP’). The Kyoto Protocol was so adopted and its provisions on withdrawal (Article 27) mirror Article 25 of the UNFCCC, including stating that withdrawal from the Convention includes withdrawal from the Protocol. The issue is thus whether another, future agreement could avoid the operation of Article 25 (in particular, Article 25(3)) of the UNFCCC.

There is no hierarchy of sources in international law,  which means that a treaty designated as a ‘protocol’, and the treaty to which the first treaty is said to be the protocol, have the same legal status. This is the situation as regards the UNFCCC and the Kyoto Protocol. The adoption of the latter by the COP was the adoption of the text of the Protocol (see Article 9 VCLT); the Protocol only became binding on the States party to it through ratification, acceptance or approval (Article 17(3) UNFCCC and Article 24(1) Kyoto Protocol), the standard methods by which States express their consent to be bound by a multilateral treaty (see Article 14 VCLT). Consequently, the relationship between the two instruments is governed (i) by the general rules of the law of treaties, as codified in the VCLT, and (ii) by the treaties’ provisions, insofar as they derogate from the rules in the VCLT.

The general rules for norm-conflict avoidance in international law are the principles lex posterior derogate prior (a later rule repeals an earlier one) and lex specialis derogate legi generali (a specific rule prevails over a more general one).[2] These are made concrete in Articles 30 (on the application of successive treaties relating to the same subject-matter) and 59 (termination or suspension of the operation of a treaty implied by the conclusion of a later treaty) of the VCLT. As regards the UNFCCC and the Kyoto Protocol, Article 59 is inapplicable, for reasons too obvious to need enumeration; as the termination or the suspension of the operation of the Convention was not implied by the conclusion of the Protocol. Article 30, on the other hand, is of considerable relevance as it can hardly be disputed that the UNFCCC and the Kyoto Protocol are treaties relating to the same subject-matter. Article 30 states:

1. Subject to article 103 of the Charter of the United Nations, the rights and obligations of States parties to successive treaties relating to the same subject-matter shall be determined in accordance with the following paragraphs.
2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
   (a) as between States parties to both treaties the same rule applies as in paragraph 3;
   (b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

In consequence, the relationship between the UNFCCC and the Kyoto Protocol is governed by Article 30(2) and (4)(a). As regards withdrawal, the Kyoto Protocol does not specify that it is subject of the provisions of the UNFCCC; rather Article 27(3) of the Protocol re-affirms what was said in Article 25(3) of the Convention. The provisions of the two treaties being compatible, there is no conflict requiring application of the lex posterior rule.

What this means, however, is that if there was such a conflict, the later treaty would prevail over the earlier to the extent of the incompatibility. So it would be possible to adopt a new protocol to the UNFCCC which provided that it remained in force even if a party to it withdrew from the UNFCCC.

It will be recalled that withdrawal from a treaty is, in the first place, governed by what the treaty says on the matter (Article 54(1)(a) VCLT). There are numerous examples of treaties which do not provide for a right of withdrawal, whether for a particular period of time or indefinitely. The International Covenant on Civil and Political Rights does not include any provision for withdrawal,[3] which led the Human Rights Committee, applying of Article 56 VCLT, to opine that the treaty does not permit withdrawal,[4] albeit that the UN Secretary-General, who acts as depository to the ICCPR, argued that, in the absence of any relevant provision in the treaty, the issue was governed by Article 54(1)(b) of the VCLT, thus permitting withdrawal with the unanimous consent of the other State parties. Various treaties of the International Labour Organisation follow the pattern of the 1930 Forced Labour Convention, which allows withdrawal only after the first ten years following its entry into force and thereafter only at the end of subsequent five-year periods. [5] Denunciation of the European Convention on Human Rights and the American Convention on Human Rights is only possible after having been a party for a minimum of five years.[6] So the inclusion of a provision into any new agreement prohibiting parties from withdrawing from it until the first commitment period is completed would neither be unprecedented nor present legal difficulties.

The major difficulty would arise elsewhere, as a consequence of the fact that the inclusion of such a provision would not affect the applicability of Article 25(3) of the UNFCCC. In particular, if the commitments set out in the new agreement were said, or implied, to be measures taken to achieve the ultimate objective of the UNFCCC,[7] it could be argued that if a State ceased to be under any obligation to make efforts to attain the latter, then the former would necessarily cease to be binding. It will be recalled that the Kyoto Protocol began by identifying the parties to it as parties to the UNFCCC and stating that they were acting ‘[i]n pursuit of the ultimate objective of the Convention as stated in its Article 2,’ ‘[r]ecalling the provisions of the Convention,’ and ‘[b]eing guided by Article 3 of the Convention’. References to the UNFCCC and its specific provisions appear throughout the Kyoto Protocol, so it can be said that the Convention is inextricably interwoven into the fabric of the Protocol. And, if a similar drafting style is adopted for the new agreement, the same argument might also be made.

This argument is not unanswerable. It might be said that, as the Kyoto Protocol (and any new agreement) exists as a treaty independently from the UNFCCC the provisions of the latter are incorporated by reference into the former, so that the Convention’s continued applicability to any of the parties to the Protocol is irrelevant. The provisions of the preamble to the Kyoto Protocol, however, do appear detrimental to this argument. It might be, therefore, better to seek to avoid the issue.

There seem to be three ways in which this could be done.

(a) The most radical approach would be to adopt an entirely new agreement replacing the UNFCCC. This can be abandoned as politically impossible.

(b) Article 23 of the UNFCCC could be amended using the mechanism for amendment found in the Convention itself. However, Article 15 of the UNFCCC requires the tabling of the proposed amendment at least six months before the meeting of the COP when it adoption is sought; consensus to be exhausted; and (if consensus is not attained) a ¾ majority of members present and voting. Even then, parties to the UNFCCC are only bound by the amendment upon (individual) acceptance. These obstacles seem presently insurmountable.

(c) Most feasibly, efforts might be made to include in the new agreement a provision that not only prohibits parties from withdrawing from the agreement during the first commitment period but also prohibits them from withdrawing from the UNFCCC during that same period. Such a provision would only bind States which are parties to both treaties but, as regards those States, it would trump Article 25(3) of the UNFCCC (see Article 30(4)(b) VCLT); that is, the provision would have effect as a de facto amendment of the UNFCC but only as regards those parties to that treaty which were also parties to the new agreement.

The argument might be made that option (c) is impermissible as an attempt to circumvent the requirements of Article 15 of the UNFCCC. However, no party to the UNFCCC would be obliged to become a party to the new agreement so, by doing so, they must be taken to have consented to the derogation from Article 15. Any breach would thus be condoned. Inclusion of such a provision in the new agreement would be practicable, lawful and effective.

[1] See also Article 56 VCLT (denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal), which provides, inter alia, that: ‘(1) A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty…’ Article 56 is not, however, applicable to either the UNFCCC or the Kyoto Protocol, both of which include provisions regarding withdrawal.

[2] See Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (9th ed.), § 636.

[3] Other examples of such treaties are the Genocide Convention and the Geneva Conventions I-IV of 1949.

[4] General Comment No. 26 (61), CCPR/C/21/Rev.1/Add.8/Rev.1, para. 5.

[5] Article 30, ILO Convention concerning Forced or Compulsory Labour (CO29): ‘(1) A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force … (2) Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of five years and, thereafter, may denounce this Convention at the expiration of each period of five years under the terms provided for in this Article.’

[6] Article 58(2) European Convention on Human Rights and Article 78(1) American Convention on Human Rights.

[7] As set out in Article 2 UNFCCC: ‘The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a timeframe sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.’