1) Does the second of the two sentences in the text below mean that in the absence of agreement by the parties on new modalities, rules and guidelines decided upon pursuant to the first sentence (a modification of the Marrakesh Accords) for a second commitment period, the CP1 regime continues as a default regime governed by the modalities, rules and guidelines established for CP1 ?
Note: The Marrakesh Accords are the decision referred to in the 1st sentence.
2) If this is unclear, is this at least reasonably arguably so?
KP Art 3.4 provides, in part, as follows:
“The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session or as soon as practicable thereafter, decide upon modalities, rules and guidelines as to how, and which, additional human-induced activities related to changes in greenhouse gas emissions by sources and removals by sinks in the agricultural soils and the land-use change and forestry categories shall be added to, or subtracted from, the assigned amounts for Parties included in Annex I, taking into account uncertainties, transparency in reporting, verifiability, the methodological work of the Intergovernmental Panel on Climate Change, the advice provided by the Subsidiary Body for Scientific and Technological Advice in accordance with Article 5 and the decisions of the Conference of the Parties. Such a decision shall apply in the second and subsequent commitment periods.”
The query raises interesting questions about the intersection of KP Articles 3.3 and 3.4 and the Marrakesh Accords. Ultimately, while we believe the applicability and relevance of the third sentence of KP Article 3.4 is limited to Article 3.4 activities and modalities, we do believe there is a strong argument that in the absence of further agreement on LULUCF issues, a default LULUCF regime would carry over into a second and subsequent CP. Again we note that this would only be the case where KP parties agreed to a second CP without reaching further agreement on LULUCF issues.
The third sentence in KP Article 3.4 makes it clear that the COP/MOP’s decision on “additional” LULUCF activities and related modalities shall apply in a second and subsequent CPs. It was necessary to include this express statement because these activities and modalities were only voluntary in the first CP.
However, KP Articles 3.3 and 3.4 and the Marrakesh Accords/ Decision 16/CMP.1 (“Decision 16/CMP.1”), collectively, do establish a default regime for LULUCF. In the event that parties to the KP agreed to a second CP without reaching further agreement on LULUCF issues, much of the CP1 regime and the “additional” Article 3.4 regime, would continue as a default.
As to the activities, Article 3.3 explicitly states that afforestation, reforestation, and deforestation shall be recognized in “each commitment period”. Article 3.4 explicitly states that the “additional” activities agreed by the parties at the first COP/MOP, which include revegetation, forest management, cropland management, and grazing land management, shall apply in the “second and subsequent commitment periods.”
As to the modalities, Decision 16/CMP.1 contains modalities for both Article 3.3 and Article 3.4. Except where Decision 16/CMP.1 explicitly limits its applicability to the first CP, there is no reason that the framework should not continue as a default in second and subsequent CPs in the absence of further agreement on LULUCF issues.
There are three (3) issues that should be kept in mind in relation to this apparent default regime:
(1) Decision 16/CMP.1 is careful in certain places to refer only to the first commitment period. For example:
– The definition of “reforestation” is relevant only to the first commitment period;
– Applicability of the credit-debit rule in paragraph 4 is limited to the first CP;
– The “additional” Article 3.4 land-use changes that are identified may be voluntarily accounted for in the first CP, but the decision says nothing about their relevance to subsequent CPs.
Decision 16/CMP.1 would need to be carefully reviewed for references like these and each reference would need to be evaluated as to whether it creates an actual limitation. For example, the current definition of reforestation would be meaningless in a second and subsequent CP and the credit-debit rule in paragraph 4 is expressly limited to the first CP. As a result, these issues would need to be addressed in a new decision (or excluded from the default regime).
In contrast, the Decision 16/CMP.1 language on Article 3.4 activities does not expressly limit itself to the first commitment period. It merely states that the Article 3.4 activities are voluntary in the first CP (something explicitly stated in Article 3.4 as well).
In cases where Decision 16/CMP.1 is not expressly limited to the first CP and in the absence of any further agreement on LULUCF, there is no reason the surviving language would not continue as a default regime for subsequent CPs.
(2) We would highlight again that the second sentence of Article 3.4 refers specifically to “additional” land use change activities and modalities and guidelines for accounting for such activities. While modalities for both Article 3.3 and Article 3.4 activities were ultimately developed as part of the Marrakesh Accords and adopted in the same Decision 16/CMP.1, the third sentence in Article 3.4 (“Such a decision shall apply in the second and subsequent commitment periods”) refers only to the decision on Article 3.4 activities and their modalities.
However, as noted above, the Article 3.3 activities are carried over to subsequent CPs by the language of Article 3.3 itself. Furthermore, except in the instances referred to under (1) above, there is nothing in Decision 16/CMP.1 that would limit the applicability of the Article 3.3 modalities to the first CP. Therefore, in the absence of an agreement to make changes to, or replace Decision 16/CMP.1 modalities with respect to Article 3.3, those modalities should continue to apply to Article 3.3 activities in subsequent CPs.
(3) Finally, it is important to remember that Decision 16/CMP.1 can always be amended or replaced by subsequent COP/MOP decisions.
 As noted in the query, the LULUCF modalities were first agreed as part of the Marrakesh Accords in 2001. In 2005, the COP/MOP adopted the LULUCF modalities agreed in the Marrakesh Accords in the form of Decision 16/CMP.1.
 See Decision 16/CMP.1, at 5; Marrakesh Accords at 122.
 See Decision 16/CMP.1, at 6; Marrakesh Accords at 123