The COP, which is the supreme body of the FCCC, will also serve as the Meeting of Parties (MOP) of the Kyoto Protocol. Nations which have become parties to the FCCC but not yet parties to KP can participate as observers in the MOP. Apart from undertaking decisions mandated to it by the KP, the MOP will regularly review the implementation of the KP and take decisions to promote its effective implementation. It will also assess the overall effects, in particular environmental, economic and social effects, of the measures taken in pursuance of the KP and the extent to which progress is being made to achieve the objective of the FCCC (for details see the analysis of the preamble to the KP above). It will periodically examine the obligations of parties (in other words, the adequacy of their commitments in the light of new scientific and technical knowledge) and consider and adopt regular reports on the implementation of the KP.
The MOP will also:
promote exchange of information on measures adopted by parties to address climate change and its effects;
coordinate measures adopted by two or more parties, at their request, to address climate and its effects;
develop and periodically refine comparable methodologies for the effective implementation of the KP;
recommend any other matter necessary for the implementation of the KP;
mobilise additional financial resources as indicated in Article 11.2 of the KP;
establish subsidiary bodies as required;
seek the services of competent international organisations, and intergovernmental bodies and NGOs, as necessary; and,
undertake all other steps as may be required to implement the KP.
The first MOP will take place in conjunction with the first CoP which meets after the KP has entered into force. Subsequent ordinary sessions of the MOPs will take place every year and in conjunction with the ordinary sessions of the CoPs.
Extraordinary sessions of the MOPs will be held either if they have been decided by earlier MOPs or at the request of any party, provided one-third or more parties agree within six months of the request being communicated by the secretariat.
National or international, governmental or non-governmental agencies can attend the MOP as observers provided they are qualified in matters covered by the KP, they have informed the secretariat in advance, and their presence has not been objected to by at least one-third of the parties present.
Article 14: Secretariat
The secretariat for the KP will be the same as the secretariat for the FCCC.
Article 15: Subsidiary Bodies
The subsidiary bodies, SUBSTA and SBI, set up by the FCCC will also serve as the subsidiary bodies for the KP. The meetings of the subsidiary bodies to the KP will be held in conjunction with the meetings of the subsidiary bodies of the FCCC.
Article 16: Multilateral Consultative Process
The MOP will discuss, as soon as possible, whether the multilateral consultative process referred to in Article 13 of the FCCC should be applied to the KP or not and, if it is to be applied, what modifications are needed, if any. This article of the FCCC says that CoP-I will consider the establishment of a multilateral consultative process, which will be available to parties at their request, to resolve any questions regarding the implementation of the FCCC.
Article 17: Emissions Trading
This article allows countries listed in Annex B to trade emissions in order to fulfil their emissions reduction objectives.
But it states that Annex B countries cannot meet their entire reduction objectives through emissions trading. Reductions achieved through emissions trading would have to "supplemental to domestic actions".
The KP further leaves the task for defining "the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability of emissions trading" to the CoP of the FCCC.
It is interesting that the task of defining the principles of emissions trading has not been left to the MOP but the CoP. This appears to be a deliberate decision to speed up the process and not wait for the MOP which will meet after the KP has gone into force. If developing countries do not play ball, then some countries could refuse to sign the KP and, thus, keep it from going into force.
Article 18: Non-compliance
Important as procedures of trade/punitive action to be set.
The KP has not yet taken any decision on non-compliance measures. It has left the entire matter to MOP-I which has been mandated to "approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions" of the KP. It will do this, among other things, through the development of an indicative list of consequences, taking into account the cause, type, degree and frequency of non-compliance.
The Article further states that any procedures and mechanisms under this Article which result in "binding consequences" will be adopted only by means of an amendment to the KP. The amendment procedure has been spelt out in Article 20 of the KP.
It will be interesting to watch the development of this Article as non-compliers in the case of the KP will be the most powerful nations on Earth. Trade sanctions that have often been adopted as a measure against non-compliers in other environmental treaties will be totally ineffective against these economically powerful nations.
Article 19: Settlement of Disputes
This article states that Article 14 of the FCCC will also apply to the settlement of disputes under the KP.
Article 14 of the FCCC provides the following:
When two or more parties have a dispute over the interpretation of the FCCC or its application, they will settle the dispute through negotiation or any other peaceful means of their choice.
Nations can deposit at any time a written declaration that in case of a dispute with another party, which has accepted a similar obligation, that it will accept the submission of any dispute to the International Court of Justice and/or arbitration in accordance with procedures adopted by the CoP as soon as practicable, in the form of an annex on arbitration. A party like the EU, that is, a regional economic integration organisation, can also make a declaration to the effect that it will accept arbitration under the procedures set up by the CoP.
A nation’s declaration will remain in force until it expires in accordance with the term stated in it or until three months after written notice of the revocation of the declaration has been deposited. But a new declaration, a notice of revocation or the expiry of a declaration will not affect any proceedings that are pending before the International Court of Justice or the arbitration tribunal, unless the nations involved in the dispute agree otherwise.
If even after one year of the notification of a dispute by one nation to another, the dispute has not been settled, any nation which is a party to the dispute, can request conciliation. A conciliation commission will be established which will have an equal number of members appointed by each party to the dispute. The chairperson will be chosen by the members appointed.
Additional procedures for conciliation can be adopted by the CoP in the form of an annex on conciliation.
The provisions of this Article of the FCCC will apply to any related legal instrument that the CoP may adopt, like the KP.
Article 20: Amendments to the protocol
Any party can propose an amendment to the KP and they can be adopted at any ordinary session of the MOP. The party proposing the amendment must inform the secretariat six months in advance of the MOP at which it is proposed to be adopted. The secretariat will send the text of the proposed amendment to every party to the KP and every signatory of the FCCC.
At the MOP, parties will make every effort to adopt an amendment by consensus. But, as a last resort, the amendment can be adopted by a three-fourths majority vote of the parties present and voting.
An amendment will go into force only on the 90th day after three-fourths of the parties to the KP has notified its acceptance. For any other party it will enter into force on the 90th day of the receipt of its acceptance of the notification.
Article 21: Procedures for the amendments to annexes
Annexes are an integral part of the KP. Parties can propose new annexes or amendments to existing annexes.
The procedure for the adoption of a new annex or amendments to an existing annex will be the same as the adoption of an amendment to the KP.
The new annex or an amendment to an existing annex, except in the case of Annex A or B, will go into force for all parties to the KP six months after the Depositary has notified all parties about its adoption, except for those parties which have sent in writing their non-acceptance. But once these parties withdraw their non-acceptance, it will enter into force for these parties from the 90th day of the withdrawal.
But if a new annex or an amendment to an existing annex involves an amendment to the KP, then the new annex or an amendment to an existing annex will not go into force until the amendment to the KP goes into force.
The procedures for adoption and entry into force of amendments to Annexes A and B will be same as those spelt out for amendments to the KP. But in the case of an amendment to Annex B, the written consent of the nation concerned will be necessary before it can be adopted.
Article 22: Voting process
Each party will have a right to vote. But in the case of a regional economic integration organisation, it can cast votes equal to the number of its members which have become parties to the KP. But it cannot cast its vote in case any member decides to cast its vote or vice versa.
Article 23: Depositary of the Protocol
The Secretary-General of the UN is the Depositary of the KP.
Article 24: Signatures and ratification
The KP will be open for signatures from March 16, 1998 to March 15, 1999 and it will be open for accession from March 16, 1999.
Regional economic integration organisations can become a party to the KP without any of its member-states becoming a party to the KP. It will then be bound by the obligations under this protocol. The organisation and its member-states will decide on their respective responsibilities under this protocol. These organisations will declare the extent of their competence with respect to the matters governed by the protocol. If there are substantial modifications in the extent of their competence, then the organisation will inform the Depositary accordingly which in turn will inform all parties to the KP.
Article 25: Entry into force
The KP will enter into force when not less than 55 parties to the FCCC have signed and ratified the KP, including a sufficient number of parties listed in Annex 1 of the FCCC which account in total for at least 55 per cent of the total carbon dioxide emissions of Annex I countries in 1990. The total carbon dioxide emissions will be calculated on the basis of the national communications of Annex I countries which have been communicated on or before the date of adoption of the KP.
With USA and Russia together accounting for 53.73 per cent of these emissions, the KP cannot go into force without these two nations signing it.
In the case of nations or regional economic integration organisations (REIOs) which ratify the KP after it has gone into force, it will go into force for those entities on the 90th day following their notification.
Article 26: Reservations to the Protocol
No reservations can be made to this protocol.
Article 27: Withdrawal from the Protocol
Any party can withdraw from the KP at any date after the KP has been into force for three years. The withdrawal will become effective one year after the withdrawal has been notified or any later date specified in the withdrawal notice.
Article 28: Languages of the Protocol
The protocol is available in Arabic, Chinese, English, French, Russian and Spanish.
A table of country emissions (with details of 1990 per capita emissions) collated from various sources is available.
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