The Curious Fate of the Doha Amendment

The Doha Amendment has yet formally to enter into force. However, as this note will explain, this treaty is already producing most of its intended legal effects.

The Doha Amendment

The 1992 UN Framework Convention on Climate Change (UNFCCC) created a regime aimed at mitigating climate change. Five years later, the Kyoto Protocol imposed quantified emission limitation and reduction commitments (QELRCs) to the UNFCCC’s Annex I (developed country) Parties for a “first commitment period” (CP1) running from 2008 and 2012. A QELRC implies a maximum “assigned amount” of net greenhouse gas (GHG) emissions that the Party must not exceed during the entire commitment period. The Doha Amendment to the Kyoto Protocol was adopted in extremis, on 8 December 2012, to impose QELRCs to Annex I Parties during a second commitment period (CP2) from 2013 to 2020. The Amendment would give legal force to the political pledges that Annex I Parties had already made under the Copenhagen Accord and the Cancún Agreements.

The Doha Amendment generated little enthusiasm, as the rigid bifurcation between developed and developing States’ obligations was increasingly questioned. The United States had never ratified the Kyoto Protocol, while Canada withdrew from it at the end of the CP1. Japan, New Zealand and Russia indicated that they did not intend to be under any QELRCs during CP2. The Doha Amendment would impose QELRC to 38 Parties – including both the EU and its Member States – which, together, accounted for less than 13 percent of global GHG emissions.

The subsequent adoption of the Paris Agreement did not supersede the Doha Amendment. The Paris Agreement imposes an obligation of conduct to pursue the objectives of nationally determined contributions, the first of consist in emission reduction targets for 2025 or 2030. For climate change mitigation, time is of the essence. The implementation of the Doha Amendment would ensure earlier emission reduction in developed countries.

Today – a few months before the end of CP2 – the Doha Amendment is yet to enter into force. The Amendment will enter into force for those Parties having accepted it on the ninetieth day after the date of receipt by the Depository of an instrument of acceptance by at least three fourth of the Parties to the Protocol. With 192 Parties to the Kyoto Protocol, the Doha Amendment would enter into with 144 Parties. The Depository has only received 137 instruments of acceptance so far (see chart), including all 38 Parties that would undergo a QELRC in CP2 except Belarus, Kazakhstan and the Ukraine. None of the Parties that have accepted the Doha Amendment have availed themselves of the possibility, offered by the Meeting of the Parties to the Kyoto Protocol, to apply the Amendment provisionally.

Obligation of Parties with a QELRC that have accepted the Amendment

States that have expressed consent to be bound by a treaty must, pending its entry into force, “refrain from acts which would defeat its object and purpose”. This implies a prohibition of acts that would “harm the treaty” by reducing the significance of its provisions, including anything that would prevent the Party from “being able fully to comply with the treaty once it has entered into force.” While the emphasis is on passive conduct, authors agree that States are also required to implement an active conduct in order to maintain a situation in which the treaty could be implemented after its entry into force. The obligation not to defeat the object and purpose of a treaty does not normally amount to an obligation of full compliance – but, in the case of the Doha Amendment, the two are very similar.

The object and purpose of the Doha Amendment could be construed in two ways. One view would be that the UNFCCC, the Kyoto Protocol and the Doha Amendment all pursue the “ultimate objective” defined by the UNFCCC: to avoid a “dangerous” climate change scenario. In this approach, the interim obligation applicable to the Parties to the Kyoto Protocol that have accepted the Doha Amendment, pending to its entry into force, would boil down, at most, to a vague obligation not to make a “dangerous” climate change scenario unavoidable.

This approach, however, fails to take into account the specific “telos” of each climate treaty. The Kyoto Protocol’s raison d’être is to impose QELRCs to Annex I Parties, in particular in CP1. That of the Doha Amendment is to impose additional QELRCs to some Parties during CP2. The Doha Amendment would be rendered meaningless if it became impossible for Parties to achieve their QELRC. In order not to defeat the object and purpose of the Amendment, those Parties that have accepted it and have a QELRC must remain capable of achieving this QELRC.

In the beginning of CP2, this interim obligation was not extraordinarily onerous – a Party could reasonably be expected take measures to reduce its emissions in the following years in order to maintain its total emissions during the eight-year commitment period below its assigned amount. Yet, as time passed, delayed action would become increasingly problematic: a Party would not only need to fast-track the long process of negotiating, adopting and implementing necessary measures, but also make up for its higher emissions in the first years of CP2 by further decreasing its emissions at the eleventh hour. At some point, a Party would become practically unable to comply with its QELRC if it had not already taken appropriate steps.

Thus, as CP2 comes close to its end, the interim obligation becomes increasingly close to the substantive obligation that the Amendment would introduce. By 2 October 2020 – if the Amendment has not entered into force yet – the Parties that have accepted the Doha Amendment would be required to be able to ensure, in the following 90 days, that their emissions during CP2 do not exceed their assigned amount. By that time, as mitigation action implemented in such a short timespan is unlikely to produce a significant decrease in the Party’s CP2 emissions, Parties will essentially need to be on track to achieve their QELRC.

This interim obligation would stop applying on 3 October 2020 if, by then, the requisite number of instruments of adoption have not been received by the Depository. Were the Depository to receive the requisite number of instruments of acceptance after that date, the Amendment that would come into force 90 days later – after then end of CP2 – would be a stillborn treaty. Through the interim obligation, however, the Amendment would have had produced most of its intended legal effect.

Obligation of all Parties with a QELRC

The Doha Amendment does not displace more general obligations on the mitigation of climate change. Parties to the UNFCCC must implement unspecified “measures to mitigate climate change”. The sic utere tuo principle and the principle of due diligence require States to prevent transboundary environmental harm, whether the harm would affect specific areas within or beyond any State’s jurisdiction, or entire planetary systems such as climate change. Given the impacts of climate change on the enjoyment of human rights, the obligation to protect human rights has also been construed as an obligation to cooperate on climate change mitigation.

Assessing these general mitigation obligations is difficult. Determining a State’s “fair share” in global mitigation action requires considering ill–defined principles relating to its responsibility and capability. In turn, defining the global level of mitigation action requires an interpretation of vague temperature targets and a choice between alternative plausible approaches to intergenerational equity. A court carrying out this assessment should not merely rely on scientific projections of least-cost mitigation pathways or States’ carbon budgets, since these projections are inherently based on equity assumptions that a court ought to weigh carefully.

In these circumstances, a court – engaging in what Lauterpacht called its “creative activity” – would likely fall back on principles of equity, starting with any available benchmark that appears to reflect, if only to a limited extent, the State’s acceptance. Thus, without necessarily invoking estoppel or legitimate expectation, a court could attribute to a State’s Cancún pledge or QELRC some probatory value as a benchmark that the State found to be feasible and reasonable. This reasoning could extend to any Parties that has a QELRC, even if it has not accepted the Amendment.

States have recognized that their CP2 QELRCs lack ambition. Annex I Parties were invited to “revisit” their QELRC by 2014 – but none of them agreed to increase their ambition. The Supreme Court of the Netherlands in Urgenda v. the Netherlands assessed the State’s requisite level of mitigation action, as a corollary of its obligation to protect human rights, on the basis of its Cancún pledge and its QELRC, but also of collective decisions recognizing the need for greater ambition under the Doha Amendment. It found that the State had to achieve faster emission reduction than what its QELRC suggested. This suggests that not only States must essentially implement their substantive commitment under the Doha Amendment – they may have to pursue further ambition than required by their QELRC.