Submission
In Decision 8/CP.4 the Conference of the Parties established a Joint Working Group of the Subsidiary Bodies on Compliance and invited Parties to submit views to the secretariat on matters relating to compliance under the Kyoto Protocol, to be made available by the secretariat in a miscellaneous document. AOSIS welcomes this opportunity to set out its initial comments on this issue, and to participating actively in further discussions at a one-day consultation among Parties immediately prior to SB-10. Throughout the negotiations of the Convention and of the Protocol, AOSOS has consistently called for the establishment of rules, procedures and institutions that would enable the climate change regime to anticipate, prevent, identify and respond to situations of non-compliance. The adoption, through the Kyoto Protocol, of legally binding and quantified commitments and the introduction of market-based “mechanisms” make the development of such non-compliance procedures imperative. Decision 8/CP.4 identifies four elements for the joint Working Group’s agenda, namely to : • identify compliance-related elements in the Kyoto Protocol; • follow the development of these elements in various groups including, for example, elements on substantive rules and consequences of non-compliance, and identify gaps in order that they are addressed in the suitable forum; • develop procedures by which compliance with obligations under the Kyoto Protocol should be addressed, to the extent that they are not being considered by other groups; and • ensure coherent approaches to developing a comprehensive compliance system. AOSIS understands this mandate to direct the joint Working Group to take a proactive, integrative and comprehensive approach to identifying the needs, resources and gaps in the Protocol’s compliance system. While specialized rules and procedures may well be developed within the context of particular mechanisms, the joint Working Group must be in a position to ensure that the combined resulting rules are coherent, proportionate, and effective. AOSIS considers that the “procedures and mechanisms” called for in Article 18 of the Kyoto Protocol constitute only one aspect of the regime’s compliance effort. The Protocol must be assessed in its totality with a view to identifying the essential tools for anticipating, preventing, identifying and responding to non-compliance. Thus, the joint Working Group’s agenda must be set against the backgroup of the need for, among other things: • the further elaboration of the Protocol’s primary obligations, in such a way that will allow clearer benchmarks against which to assess demonstrable progress (Article 3.2); eligibility for participation in mechanisms (Articles 4,6,12 and 17); efforts to implement policies and measures (Article 2 ); and progress in meeting quantified emissions reduction and limitation commitments (QERLCs) (Article 3); • the definition of relevant principles, modalities, and guidelines for the verification, reporting and accountability under the protocol’s “mechanisms”; • the enhancement and harmonization of rules and guidelines for the calculation and reporting of national inventories of greenhouse gases; • an assessment of the Protocol’s In-Depth Review (IDR) procedures, based on the experience thus far with the Convention’s IDRs under 2/CP.1; • the potential application to the Protocol of any multilateral consultative processes adopted under the Convention; and • a critical evaluation of the Convention and the Protocol’s financial mechanism as a means of assessing both the obligations of Annex II Parties, and the adequacy of this mechanism in assisting non-Annex I Parties to comply with the Protocol. AOSIS believes strongly that the possibility of ensuring binding consequences will be an important element of a compliance procedure, and will enhance the Parties’ collective ability to deter non-compliance and to take decisions that counteract the effects of non-compliance. AOSIS believes procedural means can and should be found to bring into force Article 18 procedures and mechanisms that have the full authority to adopt decisions with binding consequences, simultaneously with the entry into force of the Protocol and the operations of its mechanisms. All consequences resulting from the compliance procedure - whether or not they are considered “binding” – should be proportionate and responsive to the case at hand. The joint Working Group should therefore discuss a full range of potential cases of non-compliance and design an indicative list that is proportionate to the cause, type, degree and frequency of non-compliance. The Working Group should consider specifically the benefits of establishing procedures for imposing automatic consequences in certain circumstances. AOSIS understands that national and regional regulatory institutions will play an important role in ensuring compliance with the Protocol. For this reason, each Party should be called upon to demonstrate that robust relevant regulatory frameworks are in place as part of their Protocol commitments. However, because the Protocol will involve complex transnational and interregional relationships, a multilateral and global regime will also be essential to fill gaps in domestic and regional structures, and to ensure the coherent and consistent enforcement of the Protocol’s rules. Finally, AOSIS is concerned to ensure that all Parties keep in mind the potential, long-term consequential impacts of non-compliance with the Protocol. The Article 18 procedures could help to answer this concern by making available any financial penalties resulting from a noncompliance procedure to meet the costs of adaptation. In any case, any non-compliance procedures developed under the protocol or the Convention will in no way affect the rights of all States under international law concerning State responsibility for the adverse effects of climate change.
