Withdrawal from the Kyoto Protocol

Legal assistance paper

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Date produced: 26/05/2011

1. What is the procedure for a party to withdraw from the Kyoto Protocol? Are there any regulations or guidelines beyond what is set out in article 27? Specifically, what would the procedure be for Canada to withdraw?

2. If the Protocol expires in 2012, and, on expiry, Canada has not met its emissions reduction commitments, would there be any differences to the legal outcome if:
(a) Canada withdraws more than one year before expiration; or
(b) Canada withdraws in the year before expiration?

Summary:
The procedure for a Party to withdraw from the Kyoto Protocol (Protocol) is set out in article 27 of the Protocol. The procedure for a Party to withdraw from the United Nations Framework Convention on Climate Change (Convention) (which would include withdrawal from the Protocol) is set out in article 25 of the Convention. These provisions are to be read with the Vienna Convention on the Law of Treaties (VCLT). We have not identified any other rules governing withdrawal from the Protocol or the Convention.
In our view:
• if Canada withdraws from the Protocol (or the Convention) more than one year before the end of 2012, it will not be a party to the Protocol as at the end of 2012 and therefore it cannot be determined to be non-compliant with its emissions reduction commitment under the Protocol at that time; and
• if Canada withdraws from the Protocol (or the Convention) less than one year before the end of 2012; it will be a party to the Protocol as at the end of 2012.
If Canada is a party to the Protocol as at the end of 2012, it is open for it to be determined non-compliant with the Protocol if it has not met its emissions reduction commitment in respect of the period between 2008 and 2012.

Background – Kyoto Protocol:
It is important to note that the Protocol does not expire at the end of 2012. It is only the first commitment period, which imposes binding emissions reduction commitments on Annex I Parties for the period between 2008 and 2012 (in Canada’s case 94% of 1990 level emissions), that ends at the end of that period. In the absence of a second commitment period, parties will remain bound going forward from 2013 by those provisions of the Protocol that are not contingent on specified emissions reduction commitments.

Withdrawal from a treaty:
Article 42(2) of the VCLT provides that the withdrawal of a party from a treaty “may take place as a result of the application of the provisions of the treaty” (or in accordance with the provisions of the VCLT). Article 54 of the VCLT provides that the withdrawal of a party from a treaty may take place “in conformity with the provisions of the treaty”.
The effect of withdrawal is set out in article 70 of the VCLT. Unless the relevant treaty provides otherwise or the parties otherwise agree, from the date that the withdrawal takes effect, the party is released “from any obligation further to perform the treaty”. However, the withdrawal “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to” the withdrawal of the party.

Question 1:

Canada is a party to the Convention and the Protocol having signed and ratified them both. There are express provisions in the Convention and the Protocol which enable Canada to withdraw. Canada may:
• withdraw from the Protocol; or
• withdraw from the Convention, in which case it will be taken to have withdrawn from the Protocol.

(a) Withdrawal from the Protocol
Withdrawal from the Protocol is governed by article 27. It states:
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 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 this Protocol.
We note that, in respect of Canada, the Protocol entered into force on 16 February 2005. Accordingly, article 27(1) of the Protocol has been fulfilled and Canada may, if it chooses to do so, lawfully withdraw from the Protocol by giving written notification to the Depositary (which would take effect one year from receipt assuming no other date is specified).
In accordance with article 70 of the VCLT, Canada will be released from further obligations under the Protocol from the date that the withdrawal takes effect, namely at the end of the one year notification period.

(b) Withdrawal from the Convention
Withdrawal from the Convention is governed by article 25. It states:
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.
We note that, in respect of Canada, the Convention entered into force on 21 March 1994. Accordingly, article 25(1) of the Convention has been fulfilled and Canada may, if it chooses to do so, lawfully withdraw from the Convention (which would include withdrawal from the Protocol) by giving written notification to the Depositary (which would take effect one year from receipt assuming no other date is specified).
In accordance with article 70 of the VCLT, Canada will be released from further obligations under the Convention and the Protocol from the date that the withdrawal takes effect, namely at the end of the one year notification period.

Question 2:

Assuming that Canada does not meet its emissions reduction commitment for the period between 2008 and 2012, we have been asked to set out Canada’s legal position under the Protocol if it withdraws more than one year before the end of 2012 and less than one year before the end of 2012. We address each of the two scenarios below (assuming that the notification of withdrawal does not, as permitted by article 27(2) of the Protocol and article 25(2) of the Convention, specify a date later than one year from the date of receipt by the Depositary).

(a) Withdrawal more than one year before the end of 2012
Regardless of whether Canada withdraws from the Protocol or the Convention, having regard to article 27(2) of the Protocol and article 25(2) of the Convention, the effect of withdrawal more than one year before the end of 2012 will be that Canada will not be a party to the Protocol as at the end of 2012.
The emissions reduction commitments, in respect of the period between 2008 and 2012, made by Annex I Parties (including Canada) under the Protocol are set out in article 3. It relevantly states:
1. The Parties included in Annex 1 shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.

7. In the first quantified emission limitation and reduction commitment period, from 2008 to 2012, the assigned amount for each Party included in Annex I shall be equal to the percentage inscribed for it in Annex B of its aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A in 1990…
If Canada is not a party to the Protocol at the end of 2012, it cannot be determined at that time to be non-compliant with its emissions reduction commitment under article 3(1) in respect of the period between 2008 and 2012 because that obligation will not be binding on it at that time and it will have been released from further obligations under the Kyoto Protocol from the time the withdrawal takes effect.

(b) Withdrawal less than one year before the end of 2012
Regardless of whether Canada withdraws from the Protocol or the Convention, having regard to article 27(2) of the Protocol and article 25(2) of the Convention, the effect of withdrawal less than one year before the end of 2012 will be that Canada will be a party to the Protocol as at the end of 2012. In those circumstances, if Canada does not meet its emissions reduction commitment under article 3(1) of the Protocol for the period between 2008 and 2012, it is open for it to be determined non-compliant with the Protocol at that time.