The outcome of this 30-month negotiation process was the Kyoto Protocol (KP), an international treaty complementing the soft-law ap-proach of the UNFCCC with some “harder” provisions regarding the ultimate objective of the regime (Art. 2 UNFCCC) and the means for reaching this aim (Bodansky 2001). Its entry into force would require the ratif ication of 55 parties to the UNFCCC, including Annex I parties representing 55% of the total emissions of all Annex I parties (Art. 25.1 KP).10 This section provides a brief discussion of the core features of the new treaty as far as they are relevant for the specif ic thematic focus of this study, for the appreciation of the EU’s inf luence and the overall un-derstanding of the further analysis (for legal analyses of the Protocol, see Depledge/Yamin 2004; Oberthür/Ott 1999; Yamin 1998).
9 The new text in what became later Art. 17 KP was a compromise formula proposed by the UK, on behalf of the EU (Audio 1997b, 11 Dec. 1997; Yamin 1998: 122).
10 This was achieved in late 2004. The Protocol entered into force on 16 February 2005.
At the heart of this treaty lay the legally binding numerical emissions reductions obligations for Annex I countries in its Article 3.1. They pro-vided a further specif ication of the overall objective of the regime em-bodied in Art. 2 of the Convention, which remained applicable. Art. 3.1 KP reads:
The Parties included in Annex I shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantif ied emission limitation and reduction commitments inscribed in Annex B (…) with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the com-mitment period 2008 to 2012.
Emissions reduction pledges covered a range of six gases (Annex A) and were differentiated among parties, with country percentages listed in Annex B of the Protocol: the 15 EU members committed collectively to a –8% target, the US to –7%, Japan and Canada to –6%, Russia and New Zealand to stabilization, and Australia was allowed an 8% increase.
Together, the individual targets added up to a total of 5.2% GHG reduc-tions for the period 2008–2012 (compared to 1990 levels). Article 3 KP further contained specif ic rules ref lecting the complexity of the nego-tiations on the targets and covering such issues as sinks and calculation (Arts. 3.3, 3.4, 3.7) or banking (Art. 3.13) (for details, see Yamin 1998:
118–199; Oberthür/Ott 1999: 121–123).
Further obligations with regard to reporting duties for Annex I parties to the new treaty were specif ied in Art. 5 KP: each of these parties had to put into place a “national system for the estimation of anthropogenic emis-sions (…) of all greenhouse gases not controlled by the Montreal Protocol”.
No new responsibilities were introduced for non-Annex I parties. Art. 10 KP essentially only reaff irmed the existing obligations under Article 4.1 of the Convention (Oberthür/Ott 1999: 232–233; Yamin 1998: 123).
For the purpose of this study, these provisions represented the central results of the negotiations. Two other articles were of particular impor-tance to the EU: Article 2 KP listed a set of policies and measures includ-ing, for instance, “the enhancement of energy eff iciency” or the promotion of “research on renewable sources of energy”. The “such as” provision of this article implied that the measures were non-binding, reducing the list to an arguably useful, but indicative compilation of potential ways of cutting GHG emissions (Yamin 1998: 116). This was obviously very far from what the EU had originally intended with its protocol proposal (Grubb et al. 1999: 126). A second provision of specif ic interest to the EU was Article 4 KP on the joint fulf ilment of obligations under the Protocol.
It opened the way for the Union to “share the burden” and collectively
meet its obligation during the Kyoto commitment period (Pallemaerts/
Williams 2006: 39–40). Yet, on this point again, the EU did not quite manage to reach its aim: it had originally planned to reserve the concept of joint fulf ilment to regional integration organisations only, but later had to accept it as general option for all parties (Oberthür/Ott 1999: 140–145).
The treaty remained fairly ambiguous when it came to the major ad-ditional novelties, namely the three f lexible mechanisms: joint implemen-tation (Art. 6 KP), the Clean Development Mechanism (CDM) (Art. 12 KP) and emissions trading (Art. 17 KP) (Yamin/Depledge 2004: 136–196;
Yamin 1998: 121–122). Joint implementation as a concept allowed for the exchange of “emissions reductions units” between Annex I countries.
Emissions trading, at the time not clearly def ined, involved a system of tradable emissions permits between parties (Yamin/Depledge 2004: 156–
159). F inally, the CDM, as a newcomer of the f inal days of the Kyoto talks, allowed for industrialized countries to reduce emissions by f inanc-ing climate-friendly projects in developf inanc-ing countries in return for “cer-tif ied emissions reduction units” (Werksman 1998). Much uncertainty prevailed with regard to how these mechanisms – particularly emissions trading, which had almost been the cause for a last-minute breakdown of the negotiations – would be implemented in practice. As Articles 6.2, 12.7 and 17 KP shifted the discussions on the concrete use of each of these mechanisms effectively to future conferences/meetings of the par-ties, they would become the centre of discussions and sources of discord during the negotiations after 1997 (Dessai et al. 2003).
Concerning the institutional set-up of the regime, the Protocol re-lied to a large extent on the institutions that already existed under the Convention, with the exception of introducing a separate “meeting of the parties” (abbreviated MOP in the past, now referred to as CMP) (Art.
13 KP; Yamin 1998: 124). This meeting, although held in parallel to the UNFCCC COP, is legally distinct from the latter, as the parties to the UNFCCC and the Kyoto Protocol did not necessarily have to – and in-deed in practice do not – overlap (Yamin 1998: 124).
F inally, several articles foresaw procedures for periodical reviews of and amendments to the Protocol. A review should take place in the light of the “best available” science, and “at regular intervals and in a timely manner” (Art. 9 KP). Article 3.9 stipulated that, if it was found to be necessary to alter emissions reductions targets, “the Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol.” These provisions opened the way for continued negotiations about the suff iciency and functioning of the regime, and would therefore acquire a certain importance in the further evolution of the global climate regime.