1. What are the consequences of the mandate of the AWG-LCA not being extended in Cancun?
2. If the mandate lapses (and is not extended) at COP16 but parties subsequently decide to restart the LCA negotiations, would parties start from a blank slate or would they continue work based on the drafts currently being negotiated?
If the AWG-LCA mandate is not renewed at the sixteenth session of the COP, we believe that the mandate of the AWG-LCA is likely to continue due to the wording of Decision 1/CP.15. However, if it were to expire without the outcome of the AWG-LCA being adopted by the COP, that work would be lost (or at least suspended) and their would be no authority for its implementation.
If the mandate of the AWG-LCA were to expire or be terminated at COP16, there is no guarantee that future negotiations would resume where they left off; however, in practice it would be possible for a renewed AWG-LCA to agree to this.
1. There are two conflicting interpretations of the COP decision (Decision1/CP.15) extending the mandate of the AWG-LCA. One interpretation is that the mandate exists indefinitely while the other is that it exists only until COP16.
The AWG-LCA derives its mandate from the Bali Action Plan (Decision 1/CP.13). That decision stated that AWG-LCA shall “complete its work in 2009 and present the outcome of its work to the [COP] for adoption at its fifteenth session” .
By contrast, Decision 1/CP.15 extended the mandate of the AWG-LCA “to enable it to continue its work with a view to presenting the outcome of its work to the [COP] for adoption at its sixteenth session”
The mandate created by the Bali Action Plan sets out the date on which it would expire. By contrast, the decision to extend the AWG-LCA mandate does not set out a ‘final’ date by which its work must be completed. Instead, it simply sets out that the mandate should be extended so that it can continue its work. The use of the words “with a view to presenting the outcome of its work to the [COP] for adoption at its sixteenth session” suggests that one possible outcome at COP16 would be that no AWG-LCA outcome is agreed and that negotiations would continue at future COPs until the AWG-LCA is able to present an outcome which is capable of being adopted. As such, the absence of a formal extension in Cancun should not be a bar to such mandate continuing.
Mandate until COP16 only
It may be that the drafting of Decision 1/CP.15 was not intended to achieve this open-ended result and that parties only intended to extend the mandate by one year. In such a circumstance, the mandate of the AWG-LCA will expire at the end of COP16 regardless of whether the COP adopts the outcome of the AWG-LCA negotiations or not and the progress of parties in relation to the implementation of the Bali Action Plan would be lost (or at least suspended).
Parties to decide
In our view, the former interpretation is preferable, but in the circumstances, it will be up to the parties what to do with the AWG-LCA. Given that a number of parties are looking to complete the work by COP17 it seems likely that even if the mandate were to expire at COP16, the parties would just a agree another extension until COP17.
2. To date the AWG-LCA has only produced working documents and draft texts. Its drafts have not been adopted by the COP. Thus, if the AWG-LCA mandate does expire without the outcome of its work being presented to and adopted by the COP at the sixteenth session, there is nothing in law that would oblige it to ‘follow on’ from its previous work were its mandate to be renewed in the future.
At the beginning of each AWG-LCA session the Chair invites the AWG-LCA to agree on the organization of its work for that session. The Chair usually presents a Scenario Note outlining the current state of negotiations and proposing the issues to be dealt with at the session.
In practice, were the AWG-LCA mandate to expire and be renewed at some point in the future, this same procedure could be used to ensure that the AWG-LCA resumed where it left off in Cancun. Ultimately, however, this would be for the AWG-LCA and the parties themselves to decide (assuming that the terms of its renewed mandate did not provide otherwise).