www.eurocapacity.org
European Capacity Building Initiative
ecbi
bursary report
COP16
The Legal Form of the
Agreed Outcome
Litsabako Kali
Dec 2010
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represent the views of the European Capacity Building Initiative (ecbi) or any of its
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Acknowledgments:
This work has been made possible through core
funding support to the ecbi from the UK Department
for International Development.
Other Acknowledgments
Author:
Litsabako Kali
[email protected]
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1. Report Summary
The report is focused on the discussion of the legal form of the agreed outcome under the
AWG-KP contact group on legal matters; what the implication of the “Cancun
Agreement” is in legal terms as adopted by the COP and the CMP in December, 2010
safe for Bolivia which rejected all the decisions, while there seemed to have been no
major negative responses from all the other 193 countries.
From ones point of view, “Cancun Agreement’ is not a loss on the side of the developing
countries, since it provides a good basis for further progress. Also, the decisions cover the
substantive areas and major aspects of the Bali Action Plan (BAP) under the AWG-LCA.
2. Background
In 2005, the Ad Hoc Working Group on Further Commitments for Annex 1 Parties under
the Kyoto Protocol was set up with a mandate to amend Article 3, Paragraph 9 of the KP
to cater for Annex 1 Parties’ further commitments. This implies that the task of the
AWG is to effect amendments or changes that Annex 1 Parties should do as the
commitment periods commences and ends.
For a commitment period to begin, there has to be an agreement on major issues such as
what sort of commitments and what scale should those be and by when those
commitments should be satisfied.
Currently, the discussions going on within the legal group are to amend the KP for the
second commitment period to begin post 2012.But, in order to do that, there needs to be
agreements on various issues like weather we really need a second commitment period.
And if so, how long should that be, what sort of commitments should Annex 1 Parties
take and how achievable could that be and many more others. For the past sessions, these
discussions have been exhausted but still there are no answers to all these questions.
With the result that another issue of concern came up of a possible gap between the first
commitment period which comes to an end in 2012 and the subsequent one.
Brief explanation of the report
I had the opportunity to attend the UNFCCC negotiations since Bonn 1, where my area
of focus was the legal discussions under the AWG-KP until the previous session in
Cancun , Mexico.
3. Report of the particular session (the current sessions)
At the previous sessions held in Bonn, Tianjin and Cancun the legal group was focused
on the paper by the Secretariat on the “ Legal Consequences Relating to a Possible Gap
between the First and Subsequent Commitments Periods under the Kyoto Protocol”. A
discussion on an explanation of the possible gap between the first commitment periods
and any subsequent periods under the KP commenced.
The first commitment period of the KP began on 1 January, 2008 and will end on 31
December 2012. For a subsequent commitment period to begin on 1 January, 2013,
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amendments to the KP pursuant to its Article 3, paragraph 9, must enter into force on or
before that date. To fulfill this condition:
• The Conference of the Parties serving as the meeting of the Parties to the KP
(CMP) will need to adopt these amendments at its sixth or seventh session in
Cancun and Durban, South Africa respectively.
• The Depository must receive instruments of acceptance from three fourths of the
Parties to the KP by 3 October 2012. Based on the current number of Parties to
the KP around 29 November 2010, there were 193 Parties to the KP,143
instruments of acceptance of the amendments will be needed to achieve this
requirement.
Concerning condition that amendments to the KP are adopted at CMP6 in Cancun, there
will be less than two years for the amendments to enter into force. If amendments are
adopted at CMP7 in Durban South Africa, there will be less than a year for the
amendments to enter into force. Domestic ratifications processes are likely to involve
presenting the amendments adopted by the CMP to national legislative bodies, a process
that may involve a considerable amount of time. Such procedures could result in a delay
between the adoption of a decision to amend the KP, including its Annex B, and the entry
into force of such amendments. Without the use of the options identified in Section C, a
delay in the entry in to force beyond 1 January 2013 would result in a gap between the
end of the first commitment period and the beginning of the subsequent commitment
period.
However, there are options to avoid such a gap, namely; to get an agreement, bold
decision and outcome in Cancun as this is the case, otherwise time is getting shorter and
there is a need to speed-up the process. There will be a need to extend the first
commitment period by the decision of CMP.
4. Recommendations
The “Cancun Agreement“ should deliver a substantial package of discussions that
provides a clearly defined framework for climate action. Such decision will move
forward towards a legally binding agreement and put positive pressure on countries to go
beyond their current quite inadequate pledges and commitments. These decisions must
progress both under the KP and LCA tracks, secure agreements on all the building blocks
of the Bali Action Plan and a road map for COP 17 in Durban, South Africa and beyond.
5. Other activities
I made a presentation on “Legal Issues in the Negotiations” at the ecbi pre–COP
workshop for LDC African Negotiators held on the 27th November 2010 in Cancun
Caribe Park Royal Grand Hotel which was attended by mostly African negotiators.
Where many legal issues were discussed on the possible outcome for Cancun and options
to be followed in order to avoid the possible gap between the first and the second
commitment period. Also terms like “legally binding “ were discussed in depth since they
raised confusion amongst Parties on their implications and what it really means.
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