What the ICJ ruling means for the Kyoto Protocol

Indian Express

2 days ago

While defining the obligations of countries in the global fight against climate change, the International Court of Justice (ICJ) made a crucial clarification regarding the 1997 Kyoto Protocol and its validity in a landmark ruling last week. The ICJ has said the Kyoto Protocol not only continues to remain in force, but is also legally relevant, and that countries remain under a legal obligation to comply with its provisions.
The ICJ ruling is the first time that an authoritative assertion has been made on the legal status of the Kyoto Protocol in the post-Paris Agreement period. The common understanding so far has been that the Kyoto Protocol was replaced and superseded by the 2015 Paris Agreement. In other words, the Kyoto Protocol had ceased to exist, or at least became non-operational or defunct, once the Paris Agreement came into effect in 2016, or at the most when the Kyoto Protocol's second commitment period ended in 2020.
But the Kyoto Protocol was never terminated or abrogated by any process. The ICJ has now clarified that it continues to remain in force and has the status of international law.
The Kyoto Protocol, which was finalised in 1997 and came into effect in 2005, was the first legal instrument under the UN Framework Convention on Climate Change (UNFCCC). The agreement sought to operationalise the provisions of the UNFCCC through specific climate actions from countries. It assigned specific targets to rich and developed countries to reduce their emissions in particular time frames, called commitment periods.
Developing countries did not have any such targets, and were encouraged to take 'nationally appropriate' actions to help the fight against climate change. This was in keeping with the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC), one of the foundational tenets of international climate law. This principle, in effect, says while the whole world has a responsibility to take actions against climate change, the bulk of the responsibility lies with rich and developed countries. That is because these countries accounted for the overwhelming majority of the greenhouse gas (GHG) emissions in the last 150 years, which have caused climate change.
The Kyoto Protocol's first commitment period ran from 2008 to 2012, and the second from 2012 to 2020. Developed countries, a group of about 40 mentioned by name in Annex-I of the UNFCCC, had to reduce their GHG emissions by assigned amounts during these periods from baseline values in 1990. These countries also had to provide finance and technology to developing countries to help them tackle climate change, in accordance with the provisions of the UNFCCC.
The United States did not ratify the Kyoto Protocol. As a result, the world's largest emitter, both in current terms at that time and historically, did not have any obligation to reduce its emissions. Several other countries, such as Canada and Japan, either walked out of the Kyoto Protocol at a later stage, or refused to accept binding targets for the second commitment period.
Developed countries argued that climate objectives could not be achieved if large emitters, such as China, did not contribute to the effort. China, classified as a developing country in the UNFCCC, overtook the US as the world's largest emitter of GHGs by the mid-2000s. However, it did not have any obligation to reduce its emissions.
This argument led to efforts to create another legal climate agreement that would ensure the participation of every country. It took the form of the Paris Agreement. Unlike the Kyoto Protocol, this agreement did not assign emission reduction targets to any country. Rather, countries themselves had to decide what climate actions they would take. This was called nationally-determined contributions (NDCs). So, while the Kyoto Protocol was top-down, the Paris Agreement took a bottom-up approach.
The Paris Agreement did not supersede or terminate the Kyoto Protocol. But a third commitment period for the Kyoto Protocol, beyond 2020, was never defined.
After the Kyoto Protocol's second commitment period ended, the understanding was that it would exist alongside the Paris Agreement for a few years. However, its legal status after 2020 was not very clear. Since it was not terminated, it continued to exist but was not understood to have any relevance.
The ICJ has ruled that the Kyoto Protocol remains in force, and countries party to it still have to fulfil their legal obligations under its provisions.
'The Court considers that the lack of agreement on a further commitment period under the Kyoto Protocol after the adoption of the Paris Agreement does not mean that the Kyoto Protocol has been terminated. The Kyoto Protocol, therefore, remains part of the applicable law,' the ICJ said.
The international court has also ruled that non-compliance with the provisions of the Kyoto Protocol would constitute an internationally wrongful act.
'[T]he absence of a new commitment period does not deprive the Kyoto Protocol of its legal effect. The Kyoto Protocol remains in force… non-compliance with emission reduction commitments by a State may constitute an internationally wrongful act,' the ICJ said.
The ruling has clarified that compliance with the targets of the first commitment period is still open for assessment. Note that not all countries have fulfilled their relatively modest emissions reduction targets in the first commitment period.
'While there is no active commitment period at present, the treaty remains in force and relevant, including as a means for assessing the compliance of parties with their commitments during the first commitment period,' the ICJ said.
The ICJ ruling came after it was asked by the UN General Assembly to give its advisory opinion on the obligations of countries to protect the climate system, and the legal consequences of not fulfilling them. To give its ruling, the court examined the provisions of the three climate treaties — the 1994 UNFCCC, the Kyoto Protocol, and the Paris Agreement — and several other environment-related international laws that have a bearing on the climate system.
Although the ICJ has held that countries are under a legal obligation to take steps to reduce GHG emissions and can be held liable to pay compensation if they fail to do so, the ruling is not binding on countries. That is because it is an advisory opinion. However, the ruling opens up the possibility of increased climate litigation, seeking greater accountability from countries to take more effective climate actions.