What are the legal implications of current Article 6.2 draft text which would claim to “supersede” para 77d of the prior Katowice CMA transparency decision (1.CMA/18)? Would such a provision essentially replace para 77d? What precedents are there in UN decisions for “superseding” and what were their effects?
Advice:
Parties and legal commentators usually agree that COP decisions are not binding on the parties of the UNFCCC. As a result, a COP decision can be updated and replaced by subsequent decisions of the parties. In this context “supersede” means that the new decision takes the place of an earlier decision and effectively replaces it. This is not uncommon in the UNFCCC process and has been done explicitly in a few instances. This includes the following examples:
| COP21 | Decision 1/CP.21, paragraph 98 in document FCCC/CP/2015/10/Add.1 | “Also decides that the modalities, procedures and guidelines of this transparency framework shall build upon and eventually supersede the measurement, reporting and verification system established by decision 1/CP.16, paragraphs 40–47 and 60–64, and decision 2/CP.17, paragraphs 12–62, immediately following the submission of the final biennial reports and biennial update reports” |
| COP20 | Decision 16/CP.20 Footnote 2 referenced in paragraph 3 of document FCCC/CP/2014/10/Add.3 | “The text in the annex to the report referred to in paragraph 1 above will replace chapters V and VI of the modalities of the Technology Executive Committee adopted by decision 4/CP.17.” The report referred to in paragraph 1 is the joint annual report of the Technology Executive Committee and the Climate Technology Centre and Network for 2013. |
| COP14 | Decision 9/CP.14, paragraph 5 in document FCCC/CP/2008/7/Add.1 | “Also decides that the fifteenth session of the Conference of the Parties and the fifth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol shall be held from 7 to 18 December 2009, superseding the dates as agreed in decision 14/CP.13, paragraph 4” |
| COP11 | Decision 15/CP.11, para.2 in document FCCC/CP/2005/5/Add.2 | “Recommends that the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, at its first session, adopt draft decision -/CMP.1 (Issues relating to adjustments under Article 5, paragraph 2, of the Kyoto Protocol) below,2 to replace draft decision -/CMP.1 (Technical guidance on methodologies for adjustments under Article 5, paragraph 2, of the Kyoto Protocol) attached to decision 20/CP.9.” |
| COP10 | Decision 13/CP.10, in document FCCC/CP/2004/10/Add.2 | “Noting the relevant provisions of the Kyoto Protocol, in particular its Articles 7 and 8, Decides to replace: (a) In the guidelines for the preparation of the information required under Article 7 of the Kyoto Protocol, the section on “Information on emission reduction units, certified emission reductions, assigned amount units and removal units”2 adopted by decision 22/CP.8, with the text contained in annex I to this decision; (b) In the guidelines for the preparation of the information required under Article 7 of the Kyoto Protocol, the section on “National registries”3 adopted by decision 22/CP.8, with the text contained in annex II to this decision; …” |