1. What are the various technical legal options for folding into the KP, under article 10, developing country NAMAs (and ICA), to work towards a KP ‘plus’ outcome?
2. Are there any major implications?
3. What would be the necessary mandate for the LCA and KP tracks over the next few months and at the COP17?
Summary: The only real option for folding NAMAs into the Kyoto Protocol under Article 10 is to amend the Kyoto Protocol, as provided for under Article 20. The implications of the inclusion of NAMAs in Article 10 of an ‘expanded’ KP depend on the actual terms of the amendment. This would consist of reducing the mandate of the AWG-LCA while simultaneously expanding the mandate of the AWG-KP.
1. At the sixteenth Conference of the Parties (“COP-16”) to the UNFCCC and the 6th session of the Conference of the Parties (“CMP-6”) to the KP, both held in Mexico in December 2010, the international community adopted two agreements (collectively the ‘Cancun Agreements’) which arose as a result of the AWG-LCA and AWG-KP negotiation tracks. Under the Agreements, it was noted that all NAMAs developed under the Copenhagen Accord by developing countries were ‘to be implemented’. This puts developing country NAMAs on the same legal footing as developed country pledges under the Agreements i.e. they have been brought within the formal remit of the UNFCCC processes, although the processes for implementation are different.
The NAMAs will be recorded in a NAMA registry, which is to be established. The registry will also record information on developing countries which are seeking support and developed countries offering support under NAMAs, which may aid the development of bilateral agreements. There is also to be enhanced support by developed countries for the preparation and implementation of NAMAs ‘in accordance with’ the existing obligation to do so under the UNFCCC.
In terms of MRV progress was also made under the Agreements. For NAMAs receiving international funds, developing countries agreed to corresponding international MRV. By contrast, domestically funded NAMAs will only be subject to domestic MRV (based on guidelines to be developed).
There seems to be only one option for folding NAMAs into the ‘expanded’ Kyoto Protocol (KP) and that is an amendment of the original Protocol in accordance with the requirements of Article 20 KP.
This suggests that the text of the proposed amendment – which can be proposed by any Party – should be communicated to the Parties by the Secretariat at least six months before the meeting at which it is proposed for adoption (Art. 20(2)). The proposal would have to be adopted by consensus, or, if consensus would prove unfeasible, by a ¾ majority vote of the Parties present and voting at the meeting (Art. 20(3)).
It should also be observed that, even if the cited conditions are fulfilled, the amendment will only enter into force for those Parties having accepted it on the 90th day after the date of receipt by the Depositary of an instrument of acceptance by at least three fourths of the Parties to the current Protocol (Art. 20(4)).
2. The answer to the second question depends, firstly, on the scope of the newly inserted paragraph as well as on the legally binding character of the obligations it contains. Secondly, from a practical point of view, the impact of the amendment would be determined by the extent to which the ‘expanded’ Protocol provides for mechanisms of supervision and enforcement in respect of NAMAs.
3. On the basis of the text of the Kyoto Protocol, strictly speaking, the only requirements to amend the Protocol along the lines suggested, are those listed in Article 20 KP. However, the logical course of action would consist of reducing the mandate of the AWG-LCA (cf. Part III/B of Decision 1/CP.16 adopted at Cancun) while simultaneously expanding the mandate of the AWG-KP. In other words, one can apply the principles spelled out in LRI’s briefing paper on Alternative Legal Outcomes (cf. option 2, ‘Kyoto Protocol as sole instrument’, pp. 2-3).
An expanded KP (KP plus) requires:
1. COP decision to:
a. terminate mandate of AWG-LCA at the end of COP16 in Cancun and merge into the AWG-KP; or
b. extend mandate of AWG-LCA until a certain date to progress draft COP decisions until it is ready to be merged into an amended Kyoto Protocol;
c. mandate the AWG-LCA to redraft LCA text as a form of amendments to the Kyoto Protocols and potential COP decisions, as appropriate.
2. CMP decision to:
a. extend mandate of AWG-KP with a view to agreeing a second commitment period to be put in place by the end of the current one; or
b. explore ways of extending first commitment period until such a time as the second commitment period has been agreed and is ready to come into force.
3. CMP decision to expand mandate of AWG-KP to incorporate provisions of the LCA text and investigate the best way to unite the two AWGs under the AWG-KP.