How can a new 2015 climate agreement to be adopted in Paris make reference to provisions, mechanisms, rules and other arrangements developed under the Kyoto Protocol and ensure that they apply to those Parties (of the Agreement) that have not ratified the KP, have not agreed to a second commitment period or failed to ratify the Doha amendments to the KP?
Is it legally possible to make a cross reference of this nature or would it be necessary to separately integrate those provisions, rules (for example the relevant LULUCF rules) etc into the new agreement – e.g. through a separate decision by the COP of the new governing body to the new agreement?
There is no reason why an international agreement cannot cross-reference treaty provisions / obligations from other international agreements.
It would be preferable to refer to the ability to use the flexible mechanisms from the Kyoto Protocol (KP) in the body of the New Agreement to anchor their existence and applicability to all Parties to the New Agreement. Supporting Decisions would be needed to clarify the participation rules for the KP mechanisms post 2020 and to clarify if and how the architecture of the KP mechanisms will operate.
With LULUCF rules it will be dependent upon how the accounting and reporting frameworks are determined for the New Agreement and it is difficult to advise on how to integrate those rules into the New Agreement. However, preliminary thoughts are that replicating applicable KP Decisions rather than cross referencing may be preferable to provide clarity – particularly if the rules are intended to apply to a wider range of Parties than just those to whom the KP applies.
This advice represents our preliminary view.
There is no reason why an international agreement cannot cross-reference treaty obligations from other international agreements. There are a number of examples where this occurs in relation to referencing human rights agreements and IP agreements. Whether or not a party to one agreement actually has obligations under the other agreement will depend if that party has also ratified the other agreement.
It is important to remember that the Kyoto Protocol will continue to exist until such time as Parties decide that it is formally terminated – hence the mechanisms existing thereunder will continue to legally exist. From a practical point of view, the continuation of Joint Implementation and the CDM will depend on the continued existence of the architecture that supports it (much of which is established through CMP decisions) – importantly the Joint Implementation Supervisory Committee (JISC) and the Executive Board (EB), the CDM Registry, National Registries and the International Transaction Log as well as Designated National Authorities (DNAs),Designated Operating Entities (DOEs) etc. The continued existence of these bodies will be determined by both political will and available funding.
At present, there are proposals to expressly refer to Parties being able to make use of the mechanisms defined in Art 6 (Joint Implementation) and Art.12 (CDM) of the Kyoto Protocol in the Co-Chairs Scenario Note for ADP-10.
Part III paragraph 15 option b provides that “Parties may make use of the mechanisms defined in Art.6 and 12 of the Kyoto Protocol”.
Part III paragraph 19 (iii) refers to creating synergies between mechanisms under the Convention and …. “the flexibility mechanism established by Articles 6 and 12 of the Kyoto Protocol”.
In addition, it could be possible to define “Market Mechanisms” broadly to include and reference the KP flexible mechanisms.
Also Part III paragraph 81 option 1 references the KP Articles in the context of transparency of accounting principles.
Although these provisions are not agreed, they indicate that the continuation of the mechanisms has the support of at least some Parties. We note that these provisions are in Part III of the Co-Chair’s Scenario Note – and there is debate as to whether they should be in the body of the New Agreement or in Decisions. Clearly they would have more weight (and be legally binding) if included in the New Agreement.
The detailed rules that support Joint Implementation and the CDM – known as the Marrakesh Accords (Decision 2/CMP.1), and the subsequent Decisions that facilitate the ongoing operation of the mechanisms will also continue to operate to support the mechanisms while they exist. To the extent that they are required to facilitate the use of the mechanisms referenced in the New Agreement it should be possible to reference them – although it is unusual for a COP decision to reference a CMP Decision. This is because the Kyoto Protocol is a supplementary agreement to the UNFCCC. However, the New Agreement will similarly be a supplementary agreement to the UNFCCC so referencing between those agreements may be possible.
The applicability of provisions of the Kyoto Protocol and CMP Decisions to Parties who are not Parties to the Kyoto Protocol or its second commitment period (should it come into force) will depend upon:
(i) how the provisions of the Kyoto Protocol are referenced in the New Agreement (i.e. to permit use of the mechanisms on a voluntary basis); and
(ii) whether supplementary rules are developed to alter matters such as the eligibility rules for participation which are set out in the Marrakesh Accords.
Our preliminary view is that because the participation rules are directly linked to Parties fulfilling obligations as Kyoto Protocol Parties, these provisions would need to be amended or replicated (with appropriate amendments) in the Decisions that support the New Agreement.
Note that these participation rules were amended for the second commitment period to limit the ability of Parties who have not ratified the second commitment period to use CERs from post-2012 projects. At the end of the second commitment period (i.e. 2020) there would be a need to revisit participation if the mechanisms remained bedded in the Kyoto Protocol.
With LULUCF rules it will be dependent upon how the accounting and reporting frameworks are determined for the New Agreement and it is difficult to advise, at this stage, on how to integrate those rules into the New Agreement. At present the accounting provision (Part III para 80 does not propose cross-referencing the KP). Our preliminary thoughts are that replicating relevant parts of applicable KP Decisions, rather than cross referencing, may be preferable to provide clarity – particularly if the rules are intended to apply to a wider range of Parties than just those to whom the KP applies.