• Rip Up Kyoto Contract? Not So Fast
  • April 17, 2006 | Author: Ian Richler
  • Law Firm: Gowling Lafleur Henderson LLP - Toronto Office
  • During the election campaign, the Conservatives were coy about climate change. Their official platform spoke of developing a "made-in-Canada plan" to address greenhouse gas emissions, but didn't mention the Kyoto Protocol at all. Still, it's quite clear that Stephen Harper is no fan of the agreement. Now that he's in power, could he tear it up?

    The answer is: not very easily. That's because the protocol sets out a timetable for backing out of the deal. A party must wait three years from the date on which the protocol entered into force before it can announce its withdrawal. Since the agreement only entered into force on Feb. 16, 2005, Canada cannot announce its withdrawal before Feb. 16, 2008. On top of that, the withdrawal would not take effect until one year after it is announced. So Canada is locked into Kyoto until Feb. 16, 2009.

    There may be a couple of ways around this. First, Canada could pull out of the United Nations Framework Convention on Climate Change (UNFCCC), the treaty to which the Kyoto Protocol is a protocol. A country that forsakes the UNFCCC is automatically withdrawn from Kyoto.

    The UNFCCC sets out a similar timetable: There is a three-year waiting period before a party can announce its withdrawal, then another year before that announcement takes effect. Because the UNFCCC entered into force in 1994, Canada could announce its withdrawal today and then be formally relieved of both its UNFCCC and Kyoto obligations in a year.

    That would be risky. Virtually every country in the world has ratified the UNFCCC, including many countries such as the United States that have spurned Kyoto. Repudiating the UNFCCC would make Canada an international pariah, with only Somalia and a handful of tiny or dysfunctional countries to keep us company. It would also cut us off from future international discussions on climate change.

    The second way Canada could withdraw from Kyoto without having to wait until 2009 would be to beg all the other parties to let us go.

    Under the Vienna Convention on the Law of Treaties, which governs how international agreements are interpreted, a party to a treaty may withdraw at any time with the consent of all the parties. But obtaining the consent of all 157 other parties would be nearly impossible. Why should Norway take pains to meet its emissions reduction target but let Canada off the hook? And who knows what trade-offs other countries might demand in return for their indulgence?

    Whether he likes it or not, Harper is probably stuck with Kyoto for at least a few more years. So what can he do about it?

    One option is to do nothing at all. More specifically, instead of trying to pull out of the protocol, Harper could just ignore it. He could pursue his made-in-Canada approach to global warming without worrying about whether that approach would actually be enough to achieve our emissions reduction target under the protocol.

    And what if it isn't? Well, there would be no real penalty. Under the rules developed by the parties to the protocol, the punishment for exceeding your emissions quota in the first "compliance period" (2008-2012) is that your excess emissions are multiplied by 1.3 and then subtracted from your quota in the second compliance period. You may also be barred from participating in the emissions trading system and be forced to develop a plan to achieve compliance.

    But these are hardly effective disincentives if you have no intention of participating in the second compliance period. Neither Canada nor any other country has signed on for that second compliance period. It's unlikely Harper would ever agree to it if it meant an extension of Kyoto.

    This strategy may seem highly cynical. Openly flouting the protocol probably wouldn't do much for Canada's international reputation. And it certainly wouldn't bring us any closer to solving the climate change problem.

    Then again, it would perhaps be more honest than the outgoing government's approach. Although the Liberals deserve credit for devising some highly creative, market-based mechanisms to reduce greenhouse gas emissions, not many of them would tell you with a straight face that their plan would have been enough to meet Canada's ambitious Kyoto target.

    While Harper may find it easier to renounce Canada's Kyoto obligations than to make a good-faith effort to live up to them, simply ignoring them would be easier still. But no policy should be judged on the basis of easiness alone.