How do the discussions in the ADP relating to pre-2020 ambition relate and/or affect the mitigation ambition under the KP and LCA tracks?
In Durban, the COP (in decision 1/CP.17) inter alia decided that the newly established Ad-hoc Working Group on the Durban Platform for Enhanced Action (ADP) should “launch a workplan on enhancing mitigation ambition to identify and to explore options for a range of actions that can close the ambition gap with a view to ensuring the highest possible mitigation efforts by all Parties” (para.7).
The decision, in this respect, reflects the concern of several developing country Parties that pre-2020 mitigation ambition would cease to be discussed if the LCA and KP negotiation tracks closed at COP 18. At the same time other Parties were concerned that any agreement on ambitious pre-2020 mitigation efforts under the ADP might affect the positions of Parties under other negotiation tracks. These countries therefore successfully argued for the inclusion of a footnote related to agenda item 3 (on the implementation of all elements of decision 1/CP.17) which states: “This item will be considered within the context of decision 1/CP.17 and under the Convention, without prejudice to the position of any Party or to the work of the other subsidiary bodies….”
Subsidiary bodies of the UNFCCC
The footnote limits the potential significance of the pre-2020 mitigation discussions under the ADP for subsidiary bodies established under the UNFCCC. At present these are the SBI, SBSTA and the AWG-LCA. While neither COP decision 1/CP.17 nor the provisional agenda are legally binding on the Parties to the Convention, they do however have strong operational significance in the UNFCCC process. The parties are likely to seek to rely on and abide by them. Until the mandate of the ADP is somehow revised or modified, Parties can argue that pre-2020 ambition does not flow from one subsidiary body to another.
This does not imply that the footnote restricts what level of ambition may be discussed under the ADP. The language does not bear an interpretation that the parties must only discuss levels of ambition which do not exceed what parties have committed in other fora. However, in practice it appears unlikely that a party would agree to higher pre-2020 ambition under the ADP than under another AWG. It would inevitably come under meaningful political pressure to be consistent across the various tracks and alienate allies and national stakeholders.
Subsidiary bodies of the Kyoto Protocol
Although the Kyoto Protocol shares the institutional structure of the UNFCCC it is usually considered a legally autonomous treaty regime. It has its own distinct functions, institutions and mechanisms, and (with regard to, for example, carbon trading, compliance or CDM) increasingly “lives a life of its own”. Attempts to elevate the COP to a position of hierarchical superiority over the meeting of the Parties of the Protocol (MOP) during the Kyoto Protocol negotiations failed.
The ADP has been formerly established under the UNFCCC and by a COP decision. In practice negotiation positions by one Party under the UNFCCC and the Kyoto Protocol are likely to be identical. Formally, however, it would be largely be outside the UNFCCC Parties’ competence and powers to determine the content of negotiations in another treaty regime. Legally, the footnote is therefore of mainly declaratory relevance (or clarifying nature) in relation to subsidiary bodies created by the COP/MOP under the Kyoto Protocol, such as the AWG-KP. A restrictive interpretation of the footnote may also conclude that its text only refers to subsidiary bodies established by the COP or under the UNFCCC and meeting to carry out functions under the Convention.
If negotiations in the ADP lead to an agreement on more (or less) ambitious pre-2020 mitigation efforts than previously agreed under the Kyoto Protocol, Parties are likely to reflect the differences in their final “deal” – by, for example, defining interim arrangements or applicable targets. If the ADP outcome was open to interpretation and led to uncertainties international law would provide for fairly consistent and generally recognised rules of interpretation – largely codified in the 1969 Vienna Convention on the Law of Treaties. For example, the principle lex posterior derogat legi priori (Art.32 Vienna Convention) provides that if there is conflict between agreed legal norms the later rule prevails over a prior one.