Annex B and Annex I and Turkey

Legal assistance paper

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Date produced: 27/11/2012

1. What is the status of Turkey with respect the obligations under the KP that refers to “Annex I” countries, including Article 3.9 which states “commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B”?

 

2. Does Turkey have an opt out through a COP decision? Could such a COP decision overturn a seeming treaty obligation? Or, is Turkey legally obliged to take on a QELRO?

Summary: Although pursuant to the Kyoto Protocol, Turkey as a “Party included in Annex I” is bound by the Annex I obligations in that protocol, the fact it does not have an Annex B target means that the specific mitigation obligation in Article 3.1 of the Kyoto Protocol is not applicable to it.

In relation to Article 3.9, this is not an obligation on Turkey – it is a statement saying that commitments for Annex I Parties in subsequent commitment periods shall be established in Annex B. Whether Turkey is included as a Party which will be given an Annex B target in the second commitment period is therefore a matter of negotiation. Such negotiation is likely to take into account Turkey’s “special circumstances”, as per Decision 26/CP.7 and as reiterated in Decision 1/CP.16 and Decision 2/CP.17. Decision 26/CP.7 does not operate as an “opt-out” to the Kyoto Protocol, but does affect the interpretation of Turkey’s obligations under the UNFCCC and Kyoto Protocol.

Advice:

Background to Turkey accession to the UNFCCC and Kyoto Protocol

When the UNFCCC was adopted, despite Turkey’s objection, it was listed in Annex I and Annex II of the UNFCCC. As a result, Turkey did not sign the UNFCCC at that time.

This is because Turkey considers itself to be a developing country. It has consistently opposed its placement in Annex I and Annex II and demanded its removal from these lists as a pre-condition for it to become a party to the UNFCCC. Turkey also repeated its demand (as an observer state) at COP1 in Berlin.

Proposals from Azerbaijan and Pakistan (as parties to the UNFCCC) to remove Turkey from these annexes were not agreed by the Parties at COP3. At COP4, based on further information from Turkey, the COP decided to continue to review the matter under Article 4.2(f) at COP5. However, no agreement was reached on the matter at either COP5 or the first part of COP6.

At COP7, a political compromise was reached whereby Turkey would be removed from Annex II (thereby relieved from UNFCCC obligations to provide finance once it became a party to the UNFCCC) but not Annex I. In respect of its continued inclusion in Annex I, the COP invited parties to “recognize the special circumstances of Turkey, which place Turkey, after becoming a Party, in a situation different from that of other Parties included in Annex I to the Convention”.

The “special circumstances” is a reference to Turkey’s categorisation (in 1997) as a developing country by the World Bank, OECD and UNDP and under the Montreal Protocol.

Implications of Turkey’s accession

The amendment to Annex II entered into force on 28 June 2002. Turkey then formally acceded to the UNFCCC on 24 February 2004 and the UNFCCC entered into force for it on 24 May 2004.

Turkey later acceded to the Kyoto Protocol on 28 May 2009 and the Kyoto Protocol entered into force for it on 26 August 2009. However, no amendments were made to the Kyoto Protocol as a result, leaving Turkey in the odd position of being an Annex I Party under the UNFCCC (and the Kyoto Protocol pursuant to Article 1.7 of the Kyoto Protocol) but not an Annex B Party under the Kyoto Protocol. This may be a result of the fact that parties were invited to recognise Turkey’s “special circumstances” in Decision 26/CP.7.

The implications of this are not entirely clear. Although pursuant to the Kyoto Protocol, Turkey as a “Party included in Annex I” is bound by the Annex I obligations in that protocol (e.g. mitigation and reporting-related obligations), the fact it does not have an Annex B target means that the specific mitigation obligation in Article 3.1 of the Kyoto Protocol is not applicable to it. It is arguably, bound by the joint obligation to not exceed assigned amounts (across all Annex I Parties) with a view to reducing Annex I overall emissions by at least 5 per cent below 1990 levels during the first commitment period.

In relation to Article 3.9 text extracted in the query, this is not an obligation on Turkey – it is a statement saying that commitments for Annex I Parties in subsequent commitment periods shall be established in Annex B. Whether Turkey is included as a Party which will be given an Annex B target in the second commitment period is therefore a matter of negotiation. Such negotiation is likely to take into account Turkey’s “special circumstances”, as per Decision 26/CP.7 and as reiterated in Decision 1/CP.16 and Decision 2/CP.17. Indeed, none of the options currently on the table in relation to the amended Annex B (relating to a second commitment period) list Turkey as a Party that needs to take a target in the second commitment period.

Decision 26/CP.7 does not operate as an “opt-out” to the Kyoto Protocol, but does affect the interpretation of Turkey’s obligations under the UNFCCC and Kyoto Protocol (similar to the way an obligation can be modified pursuant to the subsequent agreement and/or practice of Parties ).

Thus, the subsequent practice of the Parties has further defined the role and obligations of Turkey and effectively reinterpreted the governing international agreement slightly. This is not uncommon in international law and there are no compelling legal reasons why the agreed special treatment of Turkey should not continue in the future. Consequently Turkey is not under an obligation to take on QELROs.

In any event, even if Turkey were to be included in the amended Annex B (and given a target), Turkey would still retain the sovereign right to refuse to adopt and/or accept the relevant amendment, which pursuant to Article 21.7, would require Turkey’s consent for such amendment to have effect on it.