1. Do the Terms of reference of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (DPEA) envisage the three options referred to as “Plan A”, “Plan B” and “Plan C” in the “Oxford Energy and Environment Brief” as a possible outcome of the DPEA ?
2. What are the options to incorporate the KP in a DPEA outcome?
1. The decision on the DPEA does not allow for Plan C but may be interpreted as permitting a Plan A or B.
2. Relevant areas of the KP may be incorporated into any DPEA outcome by agreement of the Parties.
The Oxford Energy and Environment Brief (OEEB) defines Plans A, B and C as follows:
• Plan A involves keeping the KP in its current form and complementing it with a separate LCA-Protocol, covering the relevant key elements of the current negotiations which would be reflected under the AWG-LCA;
• Plan B, on the other hand, involves negotiating a comprehensive new instrument which incorporates elements of the KP with the AWG-LCA outcome; and
• Plan C involves those UNFCCC Parties that seek a legally binding multilateral climate change regime achieving the legally binding regime through enhancing the existing KP.
The DPEA does not envisage a scenario along the lines of Plan C of the OEEB because the DPEA does not anticipate keeping the KP as the only instrument. This is clear from the fact that the DPEA anticipates the launch of a new legal instrument.
There is a possibility that the DPEA comes within Plans A or B, though this will need to be assessed on the basis of the outcome’s future relationship with the KP. That is, if the outcome of the DPEA will sit alongside a continued KP, then the outcome is likely to reflect a Plan A scenario. In this event, any new outcome from the DPEA is likely to involve duplication on issues (e.g. MRV, enforcement and flexible mechanisms). Such duplication could even potentially involve inconsistencies between the two instruments. To the extent of inconsistency between the instruments, Article 31 of the Vienna Convention on the Law of Treaties would apply.
If, on the other hand, the outcome will result in a new instrument incorporating elements of the KP and the AWG-LCA, the result will be along the lines proposed by Plan B. Certainly, statements made at Durban suggest Parties are working towards a single outcome away from the developed/developing country divide created under the KP.
The question of whether the DPEA is likely to come within Plan A or B will ultimately depend on the legal status of the DPEA, which will depend, in turn, on states’ ability to agree on the legal status of the additional instrument. Under the decision for the establishment of the DPEA, Parties have agreed to develop a “protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties”. This language creates a hierarchy of potential legal outcomes. This hierarchy came about as a result of a compromise between states’ inability to agree on the extent to which the outcome should be binding.
Each one of these legal outcomes has a different legal meaning and effect. A protocol or treaty is an agreement between states or international organisations that creates legally binding rights and obligations for parties and that is governed by international law in relation to its validity, application, interpretation and enforceability. They reflect a will by the parties to be bound by international law. Protocols offer a high level of certainty, transparency and formality, and also offer the possibility of sanctions.
A “legal instrument” is legally binding. It is likely, however, that for political reasons (discussed below) the term has been used in order to avoid making explicit its legally binding nature. The term “legal instrument” has less clear status under international law than a treaty or protocol.
An “agreed outcome with legal force”, in turn, could be interpreted as a legally binding outcome. Certainly, the addition of “with legal force” to the Bali Action Plan’s term, “agreed outcome” means that the outcome is something more than what was contemplated in the Bali Action Plan (and the related COP decisions). However, the fact that an “outcome with legal force” was listed as an alternative to a protocol or legal instrument suggests that it was intended as something less than legally binding. In sum, it may be that the highest that the term “agreed outcome with legal force” can be put is an indication of a movement towards a legally binding outcome, rather than a legally binding outcome in and of itself.
The language in which the additional instrument is described reflects different states’ views on the legal status that the instrument should take. For example, at the Joint Informal COP and CMP Plenary, the EU, along with Chile, Norway, Grenada and Columbia, called for a “protocol or legal instrument”. India and a number of other countries opined that the legal status of the instrument should be decided only after its content was agreed. India and others advanced such an argument on the grounds that it would be inequitable if developing countries had the same legal obligations as developed countries.
The United States has become one of the most resistant parties to commit in advance to a process leading to a legally binding instrument or protocol. By agreeing to an instrument that does not have the force of a “treaty”, the President of the United States may be able to agree to the instrument under his Constitutional foreign relations power. This being the case, the President would not be required to seek the two-thirds ratification by the United States Senate that he would otherwise be required to do if the instrument were given the status of a “treaty”. Given the views of the US Senate in relation to a binding agreement on climate change, the classification of the instrument as something less than a “treaty” may be beneficial.
In sum, the DPEA may envisage a Plan A or Plan B scenario along the lines of the OEEB. The extent to which the DPEA accords with one or another of these plans will ultimately depend on the legal status of the eventual agreement. That legal status, in turn, will depend on which states ultimately have their political will reflected in the document through their choice of language.
2. If Parties decide to incorporate the KP into a DPEA outcome, the KP would need to be expressly terminated after the end of the second commitment period (either 2017 or 2020) with all relevant KP provisions (e.g. flexible mechanisms, adaptation, MRV, compliance) being merged into the DPEA. In the event that the KP is terminated, the existing architecture and institutions currently surrounding the KP would need to be replicated under the new agreement. For example:
• the decision-making arm of the new instrument would need to be reconstituted as the CMP of the new instrument; and
• bodies such as the CDM Executive Board and JISC would need to be reconstituted if continuing.
A decision of the CMP in the new instrument would also need to adopt or otherwise incorporate those elements of the Marrakesh Accords and other relevant CMP decisions that are applicable to the new agreement. The AWG-KP has only a limited mandate, and thus would come to an end some time prior to the termination of the KP. Applicable elements of negotiations in the KP track would be folded into the ongoing implementation of the outcome of the DPEA.