Oh Canada — you’re not free to cut and run from Kyoto

Filed in Blog, Climate change and energy, Environmental justice by on December 14, 2011

Beatrice Olivastri, CEO, Friends of the Earth Canada.By my calculation, by the time Canada’s withdrawal kicks in one year from now, we will have had commitments under the Kyoto Protocol for five years less 19 days.

Professor Nigel Bankes from the Faculty of Law at University of Calgary reviews law pertaining to withdrawal from an international environmental agreement in his blog. He cites the Vienna Convention on the Law of Treaties (VCLT) and its Article 71 that provides that where treaty relations come to an end the termination of those relations:
(a) releases the parties from any obligation further to perform the treaty;
(b) does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

Prof. Bankes says that while Article 71 of the VCLT makes it clear that in withdrawing Canada can avoid prospective obligations under the Protocol but that it cannot avoid obligations that have already accrued. So who might assess those obligations?

Enter the UNFCCC Compliance Mechanism, designed to strengthen the Protocol’s environmental integrity, support the carbon market’s credibility and ensure transparency of accounting by Parties. Its Enforcement Branch has the responsibility to determine consequences for Parties not meeting their commitments. It can only consider questions raised by another Party or its expert review teams.

Some thinking has it that compliance can only be assessed after all the reporting is delivered — likely a year after the 2012 end date of the first commitment period. But why wait to assess Canada and clarify accrued obligations? Is there one stalwart Party, an outraged developing country, perhaps, that would stand up to refer Canada to the enforcement committee p.d.q.?

I, for one, see moral and legal reasons why Canada has accrued obligations. I’d like to know what they are and how Canada will address them. The UNFCCC Enforcement Branch should not wait for post 2012 review but step up its review forthwith.

Beatrice Olivastri

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