Implications of Canada’s potential withdrawal from the Kyoto Protocol before the end of the

All reasonable efforts have been made in providing the following information. However due to the

circumstances and the timeframes involved, these materials have been prepared for informational

purposes only and are not legal advice. Transmission of the information is not intended to create, and

receipt does not constitute, a lawyer-client relationship. Those consulting this Paper may wish to obtain

their own legal advice. To the extent permitted by law any liability (including without limitation for

negligence or for any damages of any kind) for the legal analysis is excluded.

This document is an output from a project funded by the UK Department for International Development

(DFID) for the benefit of developing countries. However, the views expressed and information contained in

it are not necessarily those of or endorsed by DFID, which can accept no responsibility for such views or

information or for any reliance placed on them.

Introduction:

1. This briefing paper analyses the process and legality of Canada’s alleged pending withdrawal from

the Kyoto Protocol (“

December 2012. After summarising the process which Canada would have to follow to withdraw

from the KP, this briefing paper examines the limited recourse available to international bodies

and the parties to the KP to preserve Canada’s status as a party, the legal implications of Canada’s

withdrawal, as well as the possibility of assessing Canada’s compliance with its emission reduction

targets on a

responsibility in relation to their withdrawal from the KP.

KP” or the “Protocol”) prior to the end of the first commitment period on 31pro-rata basis. This paper has not addressed the issue of Canada’s international

Right of Withdrawal under the Kyoto Protocol:

2. Canada is a party to both the KP and the Vienna Convention on the Law of Treaties (“

Article 54 of the VCLT provides that a party to a treaty may withdraw from a treaty in conformity

with the provisions of that treaty. Pursuant to Article 27 of the KP, a party may withdraw from the

Protocol by giving written notification to the UN Depositary. Any such withdrawal will take effect

one year from the date of receipt by the Depositary of the withdrawal notification or such later

date as specified in the notification (the “

Canada may withdraw from the Protocol at any time, such withdrawal taking effect no less than

one year after the date of receipt by the Depositary of the notification of withdrawal.

3. Should Canada effect its rights under Article 27 and withdraw from the KP, it is unlikely that either

of the Conference of the Parties (“

Change (“

(“

recourse against Canada. There also does not appear to be any legal basis on which the COP, CMP,

UN Depositary or any individual party to the KP may delay or prohibit Canada’s withdrawal from

the KP if Canada were to decide to withdraw from the KP pursuant to Article 27.

VCLT”).Cooling Period”). Consequently, as a party to the KP,COP”) to the United Nations Framework Convention on ClimateUNFCCC”) or the Conference of the Parties serving as the Meeting of the PartiesCMP”), as multilateral bodies, nor any of the individual parties to the KP, would have any legal

Legal Implications of Canada’s Withdrawal:

4. The first legal implication of Canada’s potential withdrawal from the KP prior to the end of the

first commitment period is that it would render any enforcement or penalty provisions under the

KP inapplicable to Canada. During the one year Cooling Period Canada would still be bound to

strive towards its emissions reduction target for the first commitment period. However, notifying

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the UN Depositary prior to 31 December 2011 of its intention to withdraw from the KP would

mean that the enforcement branch of the KP’s compliance committee would have no power

under decision 27/CMP.1 to assess Canada's compliance with its annual assigned amount of

greenhouse gas (“GHG”) emissions. This stems from the fact that the enforcement branch can

only assess the compliance of a party to the KP at the end of the first commitment period. If

Canada is not a party to the KP at the end of the first commitment period, the enforcement

branch would have no jurisdiction to assess Canada’s compliance, save perhaps a declaration of

non-compliance .

5. Secondly, having withdrawn from the KP, Canada would not be subject to any emission reduction

targets in the second commitment period, assuming one is agreed in Durban.

6. Finally, a practical consequence of Canada’s withdrawal from the KP prior to the end of the first

commitment period is that Canada would avoid having to submit its final national inventory

report, due by 15 April 2014, for annual GHG emissions data for the period ending on 31

December 2012. Since by that point Canada would no longer be a party to the KP, it would not

need to purchase carbon credits during the “true-up period” in order to comply with its first

commitment period target (whether pro-rated or not).

Possibility of assessing Canada’s compliance with its emission reduction targets on a

pro-rata basis

7. Should Canada choose to withdraw from the KP, there does not appear to be any basis under the

Protocol or any related rules that would allow its emission reduction targets for the first

commitment period to be assessed on a

1 and 7, states that the reduction targets are calculated on the commitment period as a whole. By

virtue of withdrawing from the KP

exempt itself from having to meet its emission reduction commitments under the KP.

8. While the option of attempting to amend the KP to allow for pro-rated emission reduction

calculations would be open to the parties, such a process could not ultimately prevent Canada’s

withdrawal from the KP, should it choose to do so as described above. An amendment to the KP

may only be adopted at a CMP session, with notice of the proposed amendment provided to all

parties to the KP at least six months prior to such session. While this notice period is shorter than

the Cooling Period required by parties who have given notice of their intention to withdraw from

the KP, by the time the relevant amendment entered into force, the withdrawing party would no

longer be a party to the KP.

9. More fundamentally, however, pursuant to Article 20(4), amendments to the KP are only binding

on those who accept them and it is inconceivable that Canada would choose to adopt and ratify

an amendment which would allow for their first commitment period obligations to be pro-rated in

such a way that it could make Canada internationally responsible for breach of the KP.pro-rata basis. Article 3 of the KP, specifically paragraphsduring the first commitment period, Canada would essentially