Legal issues and options for COP 17 Dr. Achala Chandani Abeysinghe

1. ecbi Legal issues and options for COP 17 Dr. Achala Chandani Abeysinghe International Institute for Environment and Development (IIED) european capacity building initiative initiative européenne de renforcement des capacités for sustained capacity building in support of international climate change negotiations pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

2. Introduction In order to achieve a ‘balanced package’, work during 2011 should have; • Finalised numbers and legal issues related to KP 2nd CP, and arrangements for entry into force; • Led to elaborate a legally binding agreement based on BAP and building on COP 16 decisions; • Both leading toward simultaneous adoption of instruments at COP17. • New and puzzling terms-legal nature of outcomes (US- ‘legal symmetry’, G77 – ‘firewall’, the conundrum of the legal character of COP decisions etc). • Legal questions: Legal form of the instruments? legal form of commitments? what is specific and prescriptive nature of commitments? how to manage performance review and consequences?

3. Current issues under AWG-KP

4. Issues under the AWG-LCA • What would be the “agreed outcome”? • A new mandate for negotiations towards a new Protocol under the AWG-LCA? • Arguments that substance precedes form and that it is premature to decide legal form now • Different views on possible outcomes: • One protocol, two protocols and set of decisions

5. LDC position • Ultimate goal: Two legally binding agreements, with linked entry into force • Annex B amendment adopted with provisional application pending entry into force • Mandate for negotiation of future legal agreement to complement the Kyoto Protocol with provisional application pending entry into force • In addition, set of CMP decisions with any modifications to KP rules for accounting, mechanisms, reporting and review and a set of COP decisions to implement the UNFCCC and operationalise the Cancun Agreement • ‘Dream scenario’? supported by some Parties/ groups • Issues: Which countries on which track?, What modifications of KP/ Marrakesh rules for KP 2nd CP targets? start and completions dates,? scope of negotiations for LCA,? trading across tracks? rules for accounting reporting, review and compliance? • Legally binding agreement is only effective if it commits parties to ambitious outcomes. Therefore a second commitment period under the Kyoto Protocol or a new legally binding agreement under LCA that locks in low-level ambition GHG reduction targets risks being meaningless.

6. Other possible scenarios for Durban Questions include: Which aspects would automatically continue, in absence of agreement to 2nd CP? commitments regarding national system and reporting review process? CDM? Adaptation Fund? Which aspects of Cancun Agreements would be further elaborated?

7. Other possible scenarios for Durban Issue: to what degree can details of political 2nd commitment/ transitional period be finalised in Durban? What rules would apply during political 2nd CP? KP/Marrakesh system to use? Can countries still use CERs from CDM to meet their targets? Will KP reporting and review and compliance system be used? What is the length of the transitional period? Under LCA, how to reflect pledges/ actions in COP decision? Which countries in which track, linkages across tracks during transitional period (trading across tracks?), what is the long term goal, is this leading towards two agreements or single comprehensive agreement?

8. Summary of options for COP 17 in Durban

9. Legal form of outcomes:proposals on the table