Introduction

On the eve of Canadian winter, delegates from over 185 Countries convened in Montreal for the 11th Meeting of the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the 1st Meeting of the Parties to the Kyoto Protocol.[1]    As the first meeting of the Parties to the Protocol since its coming into force in February 2005, it was a significant event since it included a mandate to approve some 21 decisions to fully implement the Protocol, including the establishment of a facilitative and enforcement branch relating to the compliance procedures.

Ultimately, the Montreal meeting was particularly important because the Parties were expected to launch discussions on commitments for the period after the Protocol?s first commitment period terminates in 2012.[2]  The fundamental challenge for the negotiators was how to shape commitments for future action for both developed and developing country parties to the Protocol as well as for non-parties.  The package of future actions was designated ?the Montreal Plan of Action.?  This overview addresses how the issues surrounding the introduction and implementation of the Protocol, and the overall future of the international climate change regime, were resolved in Montreal. 

Marrakesh Accords ? Compliance

The Marrakesh Accords, agreed at the 7th Meeting of the Conference of the Parties in 2001, consisted of a number of draft decisions by the parties to implement the Protocol.  Although the Accords had already been agreed to by the time of the Montreal meeting, they still required a formal adoption by the COP/MOP in order to come into effect.[3]

The Accords concerned mainly the rules and operational details regarding how parties can reduce and measure their emissions reductions, including decisions on the market based instruments, such as emissions trading and the Clean Development Mechanism (CDM), used towards meeting the Protocol?s obligations.  Of particular note was the decision on compliance, including the decision to establish both a facilitative and enforcement branch. 

The entire regime depends on a system that ensures an enforcement backstop.  The compliance regime itself represents a significant achievement in international law making, ?establishing the most advanced and complicated compliance procedures and mechanisms in any MEA to date?.[4]  The ability to use the mechanisms under the Protocol depends highly on whether Parties are in compliance with their emission targets.  Determinations in this regard, in addition to the ability to assist countries that anticipate non-compliance, are critical for the proper operation of the Kyoto Protocol.

Under the Accords, a 20-member compliance committee is established, made up of a plenary bureau as well as a facilitative and enforcement branch.  The facilitative branch is responsible for promoting compliance including the provision of advice on implementation as well as the facilitation of financial and technical assistance.  The principle of common but differentiated responsibilities, appreciating the difference in historical contribution to the problem of climate change and the resulting obligations of developed countries to reduce their emissions under agreed targets, is to be taken into account in decisions of the Branch.  Conceptually, the facilitative branch mirrors non-compliance mechanisms in other MEAs that purport to address and correct situations of non-compliance at an early stage, distinct from the normal dispute resolution methods in international law that sanction non-compliance.[5]   

Coupled with this approach, the Protocol parties realized the need for a stricter compliance regime, as the market mechanisms would only be available for parties in compliance with their emission reduction commitments.  To instil greater enforcement authority, the enforcement branch is authorized to make a declaration of non-compliance along with a corresponding request of a party to develop a plan analyzing the causes of non-compliance and indicating measures and a timetable for remedying it.  The basis for a declaration of non-compliance can include violations of obligations relating to meeting emission reduction commitments or the eligibility criteria enabling participation in the Kyoto Mechanisms.[6]  Future penalties for not meeting emissions reduction targets can include the deduction of excess tons permitted in the 2nd commitment period.[7]  Considering that the enforcement branch will be represented by both Annex 1 and developing countries with a majority being from the latter group, a double majority rule (majority of votes by both groups) on questions regarding a country?s compliance was put in place. A decision by the enforcement branch can be ultimately overturned by appeal to the COP/MOP (3/4 majority) although this can only succeed on the grounds of a denial of due process. 

Montreal Action Plan

A critical aspect of the Montreal Meeting rested on decisions guiding the parties on what to do following the end of the first commitment period under the Protocol.  Article 3.9 required the parties to begin considering the post-first commitment period (2012) by 2005.  When Article 3.9 was drafted, the parties did not anticipate the more than seven year process of bringing the Protocol into force.  As a result, the operational provisions of the Protocol, including their effectiveness, have not really been tested, resulting in a rather academic exercise in determining how the 2nd commitment period should operate.  Nevertheless, the prevailing assumption, perhaps colored by the endless stream of natural calamities in 2005 and recent data demonstrating that global emissions were still on the rise from 1990, was that more concrete action was needed by the entire international community. 

Galvanizing support for future action was particularly challenging, considering that two significant emitters, the USA and Australia, had decided not to ratify the Protocol.  Moreover, among Protocol parties, there were differences of view on the extent of future cuts as well as the need for major developing countries, which had not made GHG emission/stabilization commitments in the first commitment period, to take significant measures to address climate change after 2012.  These differences threatened to block any agreement on a future international climate change regime.  In the end, the Parties agreed to a two track approach.

Under the Article 3.9 discussions, the Parties to the Kyoto Protocol agreed to begin negotiations on what further reductions in GHG emissions Parties, which have taken commitments in the first commitment period, should make in the period after 2012.  This was seen as particularly necessary since the first commitment period had established market mechanisms which necessitated participation by the private sector in carbon trading and investment in developing countries.  In order to ensure that investors can maintain long term interests in these schemes, language was needed to guarantee that these would continue in a second commitment period.  The continuity of the Kyoto Protocol mechanisms is also important for the parties that may wish to carry over emission reduction credits[8] to the 2nd commitment period in order to comply with future obligations.[9]  

Under the UNFCCC, the parties agreed to a dialogue on long-term cooperative action to address climate change by enhancing implementation of the Convention.[10]  It was affirmed that there is a diversity of approaches to addressing climate change and that technology plays an essential role in that regard.[11]  This was a means of engaging the USA and Australia as well as developing countries which do believe they are not sufficiently developed to take such targets but are willing to consider other forms of action. The process, which is a ?non-binding? exercise and would not ?lead to new commitments,? entails an exchange of experiences and analysis of strategic approaches for long-term cooperation action.

Although the outcome?s effect on future talks under the UNFCCC appears to be rather innocuous in terms of committing all parties to take on any future obligations, it did represent an important step for the international climate change regime.  As developing countries continue to insist that the Article 3.9 Protocol process pertains exclusively to countries that have already agreed to emission reduction commitments, and USA and Australia were not Kyoto parties, pursuing only a Kyoto track would not have engaged these countries.[12]  If the dialogue is productive, it may well lead to negotiations on innovative ways of addressing climate change by all major developed and developing countries.  In addition, preparations for a third process under Article 9 of the Protocol, which calls for a general review of the agreement, was accelerated by inviting parties to submit relevant information and views on how to proceed by September 2006.[13]  

Assessing the two track process

Salient to any assessment is a comprehension of the different mandates under both the Protocol and the UNFCCC.  The UNFCCC is essentially a framework convention setting out the parameters for intergovernmental cooperation on action to stabilize atmospheric concentrations of greenhouse gasses and to avoid ?dangerous anthropogenic interference? with the climate system.[14]  Parties to Annex 1 are under a general obligation to adopt policies and measures to reduce their emissions with an aim of returning to the 1990 level of emissions.[15]  Moreover, developing country commitments are light under the UNFCCC in accordance with the general prioritization of developing country concerns stressing economic and social development as well as poverty eradication.[16]  It represents only the starting point for international climate talks, since the Protocol provides evidence that the general prescription in the UNFCCC for parties to stabilize the atmospheric concentration of greenhouse gasses did not go far enough. By contrast, the Protocol aims to provide a more concrete form of action, i.e. emissions reductions, to achieve the goals set out in the UNFCCC.[17]

The use of a two track process under one environmental regime raises a number of questions regarding the viability of either process.  Where the outcomes may differ, parties may have the option to choose the course which would provide less interference with their economic growth and indeed with national sovereignty over the use of their resources.  The softer obligations would more likely fall under the UNFCCC process and could reinforce States? decisions to stay outside the Protocol or at least not assume a national emission reduction target under it.  The fact that the UNFCCC process is an informal discussion rather than an actual negotiation accentuates the asymmetry between the two tracks.  Parties to the Protocol could perceive the imbalance in outcome as leading to competitive disadvantages, therefore motivating either (or both) an unwillingness to take on new national emission targets or a complete rethinking of the Protocol entirely. 

A reconsideration of the merit of the Protocol?s approach might be premature before ample time has been afforded to consider its benefits and disadvantages following its entry into force.  A process which discusses alternatives in advance of a substantial period of time for implementation, including how the parties can meet their emissions reduction targets, could even lessen the ambition of countries to meet their Protocol obligations.  This is particularly important since sanctions for non-compliance with the Protocol apply entirely within the context of how parties are to operate under the second commitment period.   This does not discount the possibility that both approaches and outcomes may be complimentary.  For instance, a technology transfer and development-driven approach under the UNFCCC might assist in enabling more countries to take on specified commitments under the Protocol. 

Overall, despite the potential pitfalls and legal complexities of the two-track approach, the result in Montreal can be viewed as a diplomatic success.  Not only was the Kyoto Protocol fully put into operation but a general consensus was reached in the international community about the problem of climate change and the need for coordinated action beyond the first commitment period.   The various negotiating processes under the international climate regime at least opens the door for developing countries to take on some form of commitments in the future and the non-Protocol parties assessing a wider panoply of options, which could include becoming a party to the Protocol.  Alternatively, the UNFCCC track offers a way for overcoming a potential impasse between developing countries opposed to taking on emission reduction commitments for developmental reasons, on one hand, and Annex 1 countries likely to be reluctant to take on ambitious national targets in the 2nd commitment period absent action by other major emitters, on the other. This may lead to the exploration of more economically feasible ways for parties to address climate change.

About the author

Kevin R. Gray, an ASIL member, is currently counsel at the Trade Law Bureau at the Canadian Department of Foreign Affairs and International Trade.  The views in this paper are entirely the author?s and in no way represent the views of the Government of Canada.

Footnotes

[1] There are currently 157 parties to the Protocol including 37 Annex 1 parties to the UNFCCC representing 61.6% of 1990 Annex 1 greenhouse gas emissions.  There are a few Annex 1 parties that have not ratified the Protocol such as Australia and the United States, although non-parties to the Protocol did attend as observers to the MOP 1.  The Protocol entered into force on 16 February 2005.

[2] Overall, all developed countries (Annex 1) are required to reduce an aggregate amount of 5.2% reduction in their 1990 emission levels.  Individual countries under Annex 1 are allocated different emission reductions targets. 

[3] The Conference of the Parties acting as the first Meeting of the Parties to the Protocol and goes by the acronym (COP/MOP).

[4] X Wang & G. Wiser, ?The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol?, (2002) 11(2) RECIEL 181-198 at 184.  MEA refers to Multilateral Environmental Agreements.

[5] See Koskenniemi, M. (1992), ?Breach of Treaty or Non-Compliance? Reflections on the

Enforcement of the Montreal Protocol?, Yearbook of international Environmental

Law 3: 123-162; J. Werksman (1998), ?Five MEAs, Five Years Since Rio: Recent Lessons on the Effectiveness of Multilateral Environmental Agreements (FIELD: London, UK).  

[6] Eligibility to participate in the Mechanisms can be suspended where a party has not met the eligibility criteria for such mechanisms or has exceeded its assigned amount of emissions in the first commitment period.  Rules on how countries can be reinstated for the purposes of eligibility to use the mechanisms will be subject to criteria developed by the enforcement branch.

[7] The assigned amount for the second commitment period would be deducted by 1.3 times the amount of excess tons.  In addition, parties found to be not in compliance with the emission reduction targets will be required to submit a detailed plan how their emission targets for the subsequent compliance period will be met, which will be reviewed by the Enforcement Branch.  Moreover, non-complying parties would be denied the opportunity to participate in any emissions trading. 

[8] Under the Kyoto Protocol, these can either be Assigned Amount Units (emissions trading), Emission Reduction Units (Joint Implementation Projects), and Certified Emission Reductions (CDM). 

[9] The COP/MOP Decision on Modalities for Accounting Assigned Amounts under Article 7.4 allow for the carrying over of (unretired) AAUs to subsequent commitment periods to a maximum of 2.5% of a party?s assigned amount.  

[10] (FCCC/CP/2005/L.4/Rev.1)

[11] Indeed the Asia-Pacific Partnership, to which non-Protocol parties (the United States and Australia) and big emerging economies such as China and India belong, focuses on technology development and diffusion.  

[12] Article 3.9 states that Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol?. considered by 7 years prior to the end of the first commitment period.  

[13] Article 9 does call for a periodic review of the Protocol although the first review was not to take place until the 2nd Meeting of the Parties.  See Article 9(2)). 

[14] Article 2. 

[15] Article 4(2).

[16] Article 4(7). 

[17] Overall, Annex I parties agreed to reduce emissions of the six designated greenhouse gases by an average of 5.2% below the 1990 levels between 2008-2012.