Since Japan and Russia will remain Parties to the Kyoto Protocol, which will remain in force after 2012 notwithstanding the expiry of commitment period 1, is it possible to apply the Kyoto Protocol compliance regime under Article 18 and relevant decisions to such voluntary pledges which are not part of commitment period 2?
Article 18 of the Kyoto Protocol is designed to create a compliance function to address non-compliances with the provisions of the Protocol. The procedures and mechanisms approved under Decision 27/CMP.1 provide for a facilitative branch and enforcement branch of the compliance committee for this purpose including to enforce compliance with the binding Quantified Emissions Limitation and Reduction Objectives (the QUELROS) established pursuant to Article 3, Paragraph 1 of the Protocol.
The pledges made by various countries including Russia and Japan at Copenhagen (and adopted at COP-16 in Cancun under the Cancun Agreements) are voluntary in nature and are not unconditional. Indeed, Decision 1/CMP.6 “takes note” of the pledges, without prejudice to the right of Parties to the Protocol to formally adopt any emissions reduction targets by way of amendment to the Kyoto Protocol under Articles 21 (paragraph 7) and Article 20. Accordingly, unless and until Russia and/or Japan agree to formally amend their QUELROS under the Kyoto Protocol (to apply through to 2020), the compliance committee established pursuant to Article 18 of the Protocol would not have the power to enforce the voluntary pledges made by these countries.
Article 18 Kyoto Protocol – the compliance mechanism
Article 18 of the Kyoto Protocol states:
“The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol, including through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance. Any procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol.“
Crucially, the mandate for the compliance mechanism is to “address cases of non-compliance with the provisions of this Protocol” (emphasis added).
The provisions of the Kyoto Protocol have not been amended, or altered by way of the voluntary pledges made by certain Parties (including Japan and Russia) in Copenhagen (later adopted at Cancun – see below).
In addition, the Compliance Committee which was set up in COP/MOP 1 (by Decision 27/CMP.1) has prescribed responsibilities under paragraphs 6 of Part IV and paragraph 4 of Part V of that Decision.
In particular, the facilitative branch of the Compliance Committee is responsible (among other matters not relevant for the purposes of this analysis) for providing advice and facilitation for compliance with the binding QUELROS pursuant to Article 3, paragraph 1 (and Annex B) of the Kyoto Protocol, while the enforcement branch of the Compliance Committee is responsible for determining whether parties with a binding emissions target under Article 3, paragraph 1 of the Kyoto Protocol are in compliance and imposing certain measures if not.
Accordingly, the Compliance Committee would not have power to enforce against Russia, Japan or any other Party unless and until such Parties agree to amend the Kyoto Protocol to include QUELROS through to 2020, and in particular, to amend Annex B of the Protocol, with revised emissions targets applicable to them under Article 3, paragraph 1.
The pledges are voluntary and non-binding
The Copenhagen Accord (the Accord), agreed at COP-15 on 18 December 2009 under the AWG-LCA track of negotiations, saw various developed countries agreeing to list their voluntary pledges on their efforts to limit greenhouse gas emissions.
However, the voluntary pledges, and the Accord itself, contain no reference to the Accord being a legally binding agreement and the COP, merely “noted” the Accord.
Russia communicated a target within the range of a 15-25 percent emission reduction by 2020 compared with 1990 levels. The range is conditional on:
(a) the appropriate accounting of the potential of Russia’s forestry sector in the context of its contribution to meeting the obligations of anthropogenic emission reductions;
(b) the undertaking by all major emitters of the legally binding obligations to reduce anthropogenic greenhouse gas emissions.
Japan communicated a target of a 25 percent emission reduction by 2020 compared with 1990 levels, which is premised on the establishment of a fair and effective international framework in which all major economies participate and on agreement by those economies on ambitious targets.
During COP-16 in Cancun, the Copenhagen Accord was adopted by the COP by Decision 1/CP.16 (Outcome of the work of the AWG-LCA). However, the above pledges were only “taken note” of.
The COP/MOP (Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol) also adopted the pledges under the Copenhagen Accord by Decision 1/CMP.6 (Outcome of the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol).
As with Decision 1/CP.16, in this case, the COP/MOP “takes note” of the pledges and specifically notes that the targets are “without prejudice to the position of the Parties or to the right of Parties under Article 21, Paragraph 7, of the Kyoto Protocol”. Importantly, Article 21, Paragraph 7 of the Kyoto Protocol provides that any amendments to the QUELROS in Annex B to the Protocol must be adopted in accordance with the procedure in Article 20 (a procedure for amendments to occur at COP/MOPs) and only with the written consent of the Party concerned. The voluntary pledges do not amend the binding targets set out in Annex B to the Kyoto Protocol.
Accordingly, the Accord, the emissions reductions targets/pledges associated with it and their adoption at Cancun cannot be said to form part of the Kyoto Protocol. Instead, the agreements at Cancun serve to provide a negotiating framework to allow the Parties to the UNFCCC and the Kyoto Protocol to implement the matters agreed at Copenhagen.