If the agreed outcome is not in a form of a protocol, do we need to amend the UNFCCC itself as the Convention does refer to protocol in art 8,17,19 and 25?
It is unlikely that the UNFCCC would need to be amended. However, the relationship between the UNFCCC and the agreed upon outcome may vary depending on the form of the outcome. Realistically, I think more would need to be known about the form, substance and objectives of the agreed upon outcome. For example, would the goal be to deposit the agreement with the Secretary- General of the UN in the same way that the Convention and the Protocol are deposited? If so, the outcome would need to take some type of recognized legal form. If this is the idea then the critical question – for purposes of understanding the relationship between the UNFCCC and the outcome – would be determining the legal differences (if any) between the agreement and a Protocol. Alternatively, if the agreed outcome is something much less formal, it is possible that the UNFCCC (through the COP or the Ad Hoc Working Groups) might simply choose to adopt or, even, “take note” of the agreement in the same way that the Ad Hoc Working Groups took note of the Copenhagen Accord.
More specifically, if the outcome is something other than a Protocol, it is possible that the Parties to the Convention would need to adopt separate decisions related to the relationship between the Convention and the agreed upon outcome, with particular reference to the role of the UNFCCC Secretariat and questions of implementation, financial governance, reporting and monitoring etc.
The most significant question probably relates to Article 17 and its specification that “The Conference of the Parties may, at any ordinary session, adopt protocols to the Convention.” The main question here is whether that creates any legal limitation on the ability of the COP to adopt other types of legal instruments. We know that the COP can agree upon decisions under the umbrella of the Convention and we know that the COP can adopt protocols. There is no specific legal limitation on agreeing to other forms of legal instruments but there is also no precedent on this issue and even less clarity about how the legal structure of the agreed upon outcome would vary from that of a Protocol.
There is no immediate and obvious need to amend the Convention (and this is not an advisable course of action and should be avoided, if possible). However, once there is more clarity about the possible nature of the agreed upon outcome, this will allow for more focused analysis of where it falls on the spectrum between a formal Protocol and a simple COP decision and, accordingly, what it will require in terms of being formally adopted (and deposited), ratified, and implemented.
As a reminder, the original UN General Assembly called for “a framework convention on climate change, and other related instruments, containing appropriate commitments for action to combat climate change and its adverse effects” (emphasis added). Thus, while the Convention is now the primary foundation of international climate change law, the original Resolution envisioned other related instruments, not exclusively Protocols. The key question will be navigating the relationship between the Convention and any agreed upon outcome, focusing on maximizing the use of resources.