1. What sort of language would be required to create a mandate in Durban for Parties to start considering legally binding outcomes for the post 2017 regime without explicitly alluding to a merging of the two tracks post 2017 (as this would likely undermine support for any second commitment period) and without implying that the mandate is for a separate protocol which codifies only the progress of the AWG-LCA (and ignores the KP)?
2. Which body would be the most appropriate forum for such negotiations (AWG-LCA, AWG-KP or some other)? Would this require a new AWG on Art 17 of the Convention to be created (independent of the AWG-LCA and the AWG-KP) to consider longer term legal options?
3. How could such a mandate be made to be consistent with the requirement for a review of the LCA Cancun Decision between 2013 and 2015 (the results of which would not necessarily lead to a legally-binding outcome)?
Please note that from a legal perspective the specific mandates of the AWG-LCA and the AWG-KP do not in any way restrict the competence of the COP or the CMP to take certain decisions including to amend the UNFCCC or to adopt Protocols to the UNFCCC (in the case of the COP) or to amend the Kyoto Protocol and/or its annexes (in the case of the CMP). In other words, the fact that AWG-KP only has an explicit mandate ‘to consider further commitments for Parties included in Annex I for the period beyond 2012’ does not prevent the CMP from amending the Kyoto Protocol to introduce new commitments for non-Annex I Parties (subject to the procedural requirements of Articles 21-22 KP). In a similar vein, possible restrictions in the (future) mandate of the AWG-LCA cannot impinge on the COP’s competence to amend the Convention or to adopt new Protocols (subject to the procedural requirements of Articles 15-17 UNFCCC) .
The precise mandates of the Working Groups are of considerable practical and political importance, as they are currently steering the direction of the two-track negotiations. Yet the precise nature of their mandates remains first and foremost a political exercise. The following considerations below are therefore to a large degree speculative.
1. Language required to create a legal mandate at Durban
The language required to create a mandate for Parties to start considering legally binding outcomes for the post 2017 regime depends on the body charged with the merging of the two tracks.
If the AWG-LCA is charged with preparing the ‘merger’, the current mandate laid down in paragraph 145 of Decision 1/CP.16 adopted at Cancun would provide a useful starting point. Paragraph 145 “requests the [AWG-LCA] under the Convention to continue discussing legal options with the aim of completing an agreed outcome based on decision 1/CP.13 (Bali Action Plan), the work done at the 16th session of the [COP] and proposals made by Parties under Article 17 of the Convention.” The final part of this paragraph makes clear that the AWG-LCA can negotiate a new Protocol to the UNFCCC. Assuming that the KP would be amended in Durban to install a second commitment period (2013-2017), an explicit reference to the post 2017-period might serve as an incentive to ‘merge’ the two tracks after this date. At the same time, explicitly linking the mandate of the AWG-LCA to the post-2017 period could remove the incentive to come to a legally binding agreed outcome at an earlier stage. Otherwise, the language of paragraph 145 could be slightly strengthened by referring to ‘legally binding options’ instead of ‘legal options’.
If the AWG-KP is charged with preparing the ‘merger’, it is likely the existing mandate – which is focused on ‘considering further commitments for Annex I Parties’ – would be expanded. Indeed, apart from referring to ‘further commitments for Annex I Parties for the period beyond 2017’, the mandate should arguably make a reference to ‘[binding] commitments of other Parties’ as well.
2. In our view the most appropriate body for such negotiations would be the existing AWG-LCA, because:
i) it has already a broader mandate (based on the different components of the Bali Action Plan);
ii) it is founded on the authority of the primary instrument (the UNFCCC) instead of a Protocol; and
iii) it enjoys the broader membership and would have the authority to pave the way both for an amended UNFCCC as well as a new Protocol.
By contrast, the authority and options of the AWG-KP to achieve a legally binding outcome appear to be more limited (only competent to negotiate an amended KP). In other words, if one were to keep only one track, the more appropriate option would be the AWG-LCA. Still, it might be useful to simultaneously continue work within the AWG-KP so as to keep all options open (viz. another amendment of the KP) and to avert the risk that deadlocks within the AWG-LCA would lead to a commitment gap after 2017.
We suggest that the creation of a new working group with a mandate linked to Article 17 UNFCCC would serve no useful purpose. The current AWG-LCA mandate already contains a link to Article 17 UNFCCC (viz. the possible negotiation of a new Protocol). If a third working group is created there is a risk that it would give parties an opportunity to sow confusion or to pursue a ‘divide et impera’ agenda.
3. Consistency with requirement for a review of the LCA Cancun Decision
We do not see any insurmountable problems here. Paragraphs 138-140 of Decision 1/CP.16 simply state that the COP will periodically review the adequacy of the long-term global goal (cf. 2°C). ‘The first review should start in 2013 and should be concluded by 2015.’ The Decision does not specify how this review will be conducted or by which body. It simply asserts that the AWG-LCA will make a proposal in this respect for consideration at the COP17. It would be possible for the COP to extend the mandate of the AWG-LCA at Durham for an additional number of years and to task it with both: (1) reviewing the long-term global goal; and (2) continuing negotiations on legally binding commitments for the post-2017 period (whether in the form of an amended UNFCCC or a new Protocol).
Based on the assumptions set out in the query, we suggest that AWG-LCA is the better vehicle for concluding a single legal instrument for the post-2017 period. To this end, the mandate laid down in Paragraph 145 of Decision 1/CP.16 could serve as a useful starting point. The AWG-LCA could be requested:
“to continue discussing [legally binding] options with the aim of completing an agreed outcome based on decision 1/CP.13 (Bali Action Plan), the work done at the 16th session of the [COP] and proposals made by Parties under Article 17 of the Convention.”
Alternatively, the AWG-LCA and the AWG-KP could both continue to work in parallel (with extended and expanded mandates) so as to keep open all formal options (amendment of the UNFCCC, adoption of a new Protocol, amendment of the KP).