Formal legal outcomes of AWG negotiations

Legal assistance paper

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Date produced: 11/07/2011

Following the model of the International Maritime Organisation, which creates protocols and conventions on a comparatively regular basis, would it be possible to adopt multiple protocols as a formal outcome of the negotiations under the AWG-LCA and AWG-KP – e.g. an adaptation protocol, a technology protocol etc?

Under this possible outcome the KP could remain or could be terminated and replaced, and particular themes of the LCA track and elements of the Cancun Agreements would become protocols in their own right.

The IMO provides an example of the successful use of multiple treaties governed by a single body. Key features of this approach are that:

1. The IMO is responsible for around 50 international conventions and agreements, including numerous protocols.

2. The structure of the IMO is not unlike the UNFCCC in that it is governed by an Assembly (constituted by all 169 member states), with a Council whose members are elected by the Assembly and which acts as governing body in between Assembly sessions (not a feature of the UNFCCC), a Secretariat, and five permanent committees which carry out the main technical work, as follows:
(a) the Maritime Safety Committee;
(b) the Marine Environment Protection Committee;
(c) the Legal Committee;
(d) the Technical Co-operation Committee; and
(e) the Facilitation Committee.

3. Developments in shipping and other related industries are discussed by Member States in the Assembly, Council and the committees and the need for a new convention or amendments to existing conventions can be raised in any of these forums. However, in practice, ideas are usually raised at the committee level and if agreement is reached at that level the proposal goes to Council and Assembly. If the Assembly or Council authorises work to proceed on the proposal, then the relevant committee considers the matter in greater detail and ultimately draws up a draft instrument. A specialist sub-committee may be created or used to deal with particular topics. Although work in committees and sub-committees is undertaken by Member State representatives, views and advice from intergovernmental and international non-government organisations which have a working relationship with the IMO may be sought.

4. To ensure that Conventions are capable of being kept up-to-date, particularly with respect to technical issues, the IMO has transitioned from a “majority acceptance procedure” for the adoption of amendments to a “tacit acceptance procedure” which provides that an amendment will become binding on all parties to the relevant convention unless more than a certain number of member states lodge an objection. Unsurprisingly, this has significantly improved the adoption rate of amendments. The ability to quickly (relatively speaking) adapt to changing technologies or situations by amending existing treaties would clearly be a significant advantage in treaties dealing with climate change and the measures for mitigating and adapting to climate change.

5. The majority of conventions adopted under the auspices of IMO or for which the Organization is otherwise responsible, fall into three main categories. The first group is concerned with maritime safety; the second with the prevention of marine pollution; and the third with liability and compensation, especially in relation to damage caused by pollution. Outside these major groupings are a number of other conventions dealing with, for example, facilitation, tonnage measurement, and unlawful acts against shipping and salvage. As noted in the query, the topics of the LCA and Kyoto Protocol tracks, such as adaptation and technology transfer, would seem to lend themselves to this thematic approach to treaty development.

6. The IMO has an extensive technical co-operation programme which concentrates on improving the ability of developing countries to help themselves. In particular, the IMO concentrates on developing human resources through maritime training and similar activities. Other initiatives include setting up the sub-committee on Flag State Implementation to improve the performance of Governments in implementing and enforcing their obligations under relevant conventions.

It is important to note, however, that there are fundamental differences between the UNFCCC and the IMO example which mean that the ability to duplicate the IMO example in the context of climate change treaties is limited.
First, the IMO does not include a framework treaty such as the UNFCCC. The UNFCCC covers a comprehensive range of matters, meaning that there is far greater scope for duplication of functions and institutions if multiple protocols are adopted for topics dealt with by the UNFCCC, than is the case under the IMO example.

Second, the political positions between developed and developing countries do not seem to have been as wide in the IMO example as it currently is (and historically has been) under the UNFCCC. Many of the features of the IMO, such as the development of protocols/amendments/conventions and the tacit acceptance adoption procedure, need to be supported by a majority of the member states in order for them to initially get up and to work effectively. The current political state of the UNFCCC negotiations may not be conducive to such a process.

Third, the Conference of the Parties to the UNFCCC is not established and/or does not operate as an international organisation in the same way as the IMO. This need not necessarily be a barrier to the successful implementation and operation of multiple protocols, but some thought would need to go into what additional body or bodies (if any) may be required to govern such an approach and how these bodies would be established.

The issues raised under the “Two protocols (Kyoto Protocol and new protocol coming out of the LCA track)” option, the “Single new protocol under the Convention (coming out of the LCA track)” and the “Cancun Agreements go forward as the basis for further action” would also apply to this option depending on whether, and the extent to which, the Kyoto Protocol, the LCA track and the Cancun Agreements where captured in new protocols.

Durban mandate required for the above:
1. COP decision to extend mandate of AWG-LCA until a certain date with a view to eventually turning it into a formal proposal for one or more new protocols to the Convention.
2. If Kyoto Protocol to remain, CMP decision to:
a. extend mandate of AWG-KP with a view to agreeing a second commitment period to be put in place by the end of the current one; or
b. explore ways of extending first commitment period until such a time as the second commitment period has been agreed and is ready to come into force.
3. COP and CMP decision to explore:
c. how the LCA track or Cancun agreements could be incorporated in multiple “themed” protocols, including considering institutional duplication issues;
d. what additional (or altered) institutional bodies may be required to govern and administer the multiple protocols; and
e. whether existing bodies could be strengthened to enhance the role that these bodies play in implementation of the Convention.