BY RAMESH JAURA – IDN-InDepthNews Service
BERLIN (IDN) – Call it misinformation or disinformation. The industrialised countries
are insisting that the Kyoto Protocol expires in 2012 and that the foundations of
a new treaty, the so-called post-Kyoto agreement, should be laid at the forthcoming
UN climate change conference.
Nothing could be further from the truth. “The Kyoto Protocol is not yoghurt, it
does not have an expiry date,” says a senior negotiator. The fact is that only the
first commitment period of Annex I (developed countries) Parties’ greenhouse gas
emission reductions, which began in 2008, ends in 2012. All other provisions and
elements of the Kyoto Protocol remain in force. This is how the Kyoto Protocol is
structured.
The second and subsequent commitment periods for Annex I Parties are to be negotiated
on an ongoing basis, explains Lim Li Lin, a Legal Adviser and senior researcher
with the Third World Network.
“The truth should come as no surprise,” says Lin in a paper distributed by the South
Centre, an intergovernmental think-tank of developing countries. Since 2006 the
international community has been negotiating the next commitment period for Annex
I Parties under the Kyoto Protocol in a working group known as the Ad hoc Working
Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP).
These negotiations are scheduled for completion in 2009, so that the second commitment
period can enter into force by 2013, thereby ensuring there is no gap between the
two commitment periods. The negotiations are not about ending the Kyoto Protocol,
but implementing it.
In Dec 2007 at the global climate change conference in Bali, the international community
launched a second track of negotiations in parallel under the ‘Bali Action Plan’
– The Ad hoc Working Group on Long-term Cooperative Action (AWG-LCA).
This working group aims to enhance the implementation of the UN Framework Convention
on Climate Change, the framework agreement, under which the Kyoto Protocol sets
out specifically how much Annex I countries should reduce their emissions by, and
how. The AWG-LCA’s work is to be concluded in 2009, and the agreed action will be
for “now, up to and beyond 2012”.
The AWG-KP is a negotiating track under the Kyoto Protocol. The AWG-LCA is a negotiating
track under the Convention. The understanding is that there will be two outcomes
in Copenhagen, and they are to be legally and substantively distinct.
For the AWG-KP, the legal outcome is clear — an amendment of the Kyoto Protocol
according to the mandate clearly set out in its Article 3.9 for the amount of emission
reductions by industrialised countries in their subsequent commitment period.
Twelve proposals for amending the Kyoto Protocol have been submitted by Parties
to the UNFCCC convention. These will be discussed Dec 7-18 in Copenhagen, where
an agreed amendment should be adopted at the meeting of the Parties to the Kyoto
Protocol.
For the AWG-LCA, the legal outcome is less certain. Discussions are still under
way. The Bali Action Plan only specifies that an “agreed outcome” should be reached
and a decision should be adopted in Copenhagen.
There are a number of options ranging from a decision of the Conference of the Parties
(COP) or a set of COP decisions, to another international treaty or Protocol under
the Convention — also referred to as the “ratifiable outcome” by the UNFCCC Secretariat
and some countries.
FORCING TERMINATION OF KYOTO PROTOCOL
Some industrialised countries want to have one single agreement — or lay the foundations
for it — in Copenhagen, merging the two negotiating tracks and outcomes. Precisely
this will mean the termination of the Kyoto Protocol after 2012.
This stance has been advocated by a number of developed countries including Japan
and Australia. The United States has said it will not become a Party to the Kyoto
Protocol.
The Conclusions of the European Union Council on its position for Copenhagen refer
to a “single legally binding instrument” and emphasises the need for “a legally
binding agreement for the period starting 1 January 2013 that builds on the Kyoto
Protocol and incorporates all its essentials, as an outcome from Copenhagen in December
2009”.
In effect, the EU is calling for the end of the Kyoto Protocol after the first commitment
period.
Initially, it seemed that the main motivation for this position by some developed
countries is to force “major economies/emitters” or “advanced developing countries”
— among others, China, India, Brazil, South Africa — to also take on internationally
binding commitments to reduce greenhouse gas emissions, by dismantling the distinction
between Annex I and non-Annex I countries and lifting some developing countries
toward the level of commitments taken on by the developed countries.
The Kyoto Protocol sets quantified targets only for Annex I (industrialised) countries,
and the category of Annex I countries is established under the Convention.
However, it now seems that the motivation may also be for some developed countries
to lower the level of their commitments or avoid taking on internationally binding
emission reduction commitments altogether.
‘GREAT ESCAPE’
This mirrors the position of the U.S., which has recently been insisting on taking
on emission reduction commitments/actions on a unilateral or domestic basis. By
this, it means that it will only bind itself domestically through national legislation
to reduce its emissions, and will not commit internationally — as other industrialised
countries have — to a multilateral system of emission reductions. It also means
that its national target will only be what it determines itself, and is not subject
to negotiation with the international community.
The U.S. withdrew from the Kyoto Protocol, but it remains a Party to the Convention.
Under the Bali Action Plan, which the U.S. agreed to, it is required to undertake
efforts comparable to those of other Annex I countries under the Kyoto Protocol.
The details are being worked out in the Ad hoc Working Group on Long-term Cooperative
Action.
This is the concession the international community has already granted to the U.S.
not least because it the biggest historical emitter of greenhouse gases and continues
to be among the largest polluter on an absolute and per capita basis.
“It may be that the U.S. position has spurred a race to the bottom instead of drawing
in the U.S. to join the rest of the Annex I countries though the ‘comparability
of efforts’ provision in the Bali Action Plan,” says Lin. “The special treatment
of the U.S. may be instigating a ‘great escape’ from the Kyoto Protocol by the
other developed countries.”
This has grave implications. The Kyoto Protocol is the only legally binding international
law that sets quantified commitment targets for each Annex I Party to reduce its
greenhouse gas emissions. There is an aggregate target, which all Annex I Parties
must collectively meet in a given commitment period, and an individual — or joint,
in the case of the European Community — target for each country.
These specific targets must be met within a specified time period, and there are
international compliance measures if the Parties do not meet their targets according
to the timetable.
Lin argues that the Kyoto Protocol has many flaws but the prospect of losing the
only international treaty that requires specific amounts of emission reductions
by Annex I Parties, with a binding timetable and compliance measures is hazardous,
particularly because there is no better alternative in place and the prospects of
achieving this seem increasingly slim.
In fact a failure to agree on subsequent commitment periods will be a violation
of international law. Under the Kyoto Protocol, Parties are required to establish
second and subsequent commitment periods for Annex I Parties.
Article 3.9 provides that, “Commitments for subsequent periods for Parties included
in Annex I shall be established in amendments to Annex B to this Protocol, which
shall be adopted in accordance with the provisions of Article 21, paragraph 7”.
“Under the single new agreement that some developed countries are proposing, the
nature of the commitments may be different — nationally binding targets, as opposed
to internationally binding targets. This would be a drastic downgrading of international
disciplines, and would take the international climate change regime many steps backwards,”
warns Lin.
If the Kyoto Protocol is abandoned and a single new agreement negotiated, this will
mean risking that the new international climate change treaty may take many years
to enter into force or may never enter into force, if insufficient countries ratify
it. The negotiations will be more complicated and controversial, and could also
likely take a very long time. This is something that the planet and the poor cannot
afford, adds Lin.
The international compliance regime under the Kyoto Protocol also faces an uncertain
future. While it can always be further improved, the risk is now the possibility
of no longer having a system of international compliance.
Legally, it is difficult to terminate the Kyoto Protocol because all Parties have
to agree by consensus to end it. Aware of this, some developed countries are working
on innovative technical solutions which, however, would seriously damage responsible
global climate diplomacy.
Success in Copenhagen and beyond requires an effort to bridge the implementation
gaps that have undermined effective action and left a legacy of mistrust among
the Parties. Nothing less than full implementation by developed countries will be
required to secure success in Copenhagen and to provide the foundation for a genuine
partnership among all countries to curb climate change and to achieve the ultimate
objectives of the UN Convention. (IDN-InDepthNews/01.12.09)