Decisions are there to be implemented, mandates are there to be fulfilled. That’s the basis of a multilateral legal regime. If decisions and mandates are not followed anymore, then there is no confidence to build upon. There is no use in ‘saving’ the multilateral regime in such a way that nobody believes in it anymore.

Therefore, the legal instruments of the Climate Change Convention are fundamental:

  1. The Convention itself
  2. The Kyoto Protocol
  3. The mandate to establish a second commitment period under the Kyoto Protocol
  4. The mandate of the Bali Action Plan (BAP) to implement the convention in all its relevant elements under the LCA
  5. The hundreds of decisions that were adopted unanimously.
    (A party that expressly objected a decision can never be bound by it – as is the Case for Bolivia and the Cancun Agreements)

In this regard it must be made clear that a decision, even if it asks the COP to prepare certain results for the next COP, has a lower standing than a decision which is a mandate to conclude a whole balanced set of issues, through a new body set up for this purpose.

Legal options on the table

Now, the actual negotiating text, presented Wednesday 7 December, has a section on legal outcome (cf pages 81-82), which contradicts many of the previous legal instruments and mandates. Let’s see what are the issues in the debate.1

The contents for the future outcome

Of course, the contents is not defined in a legal group, but the basis on which is worked to obtain the outcome is, and that will be fundamental to the final result. So several possibilities are being given:

  1. To base its work on the Bali Action Plan, and the Cancun Agreements (CA);
  2. To work on all the issues, but outside the existing mandate. This would imply that all the work done up till now, as well as the principles it is based on could be questioned
  3. To work on the basis of the Cancun Agreements only
  4. To work on the basis of BAP, CA, and proposals on the basis of art 17 of the convention

In none of the cases, the only basis for the work is what it should be: the Bali Action Plan.

In possibilities 1 and 4, the Cancun Agreements are given a considerable amount of importance, while they are decisions which were taken illegally (without actual consensus!) and give only very partial answers to the issues putted in the BAP, nor did they give an exhaustive list of tasks in order for the COP17 to conclude on all relevant issues the BAP demands to work on. The CA even contradicts both the convention and the BAP in several cases.

Possibility 3 even decides to work only on the basis of the CA.

Possibility 2 mentions the same elements that are in the BAP, but does so outside this mandate. This implies that the work would start from scratch, and without the guidelines and principles established in it.

Possibility 4 actually combines existing mandates, with free design. Article 17 of the convention states that any party may propose a text for a new Protocol, and that the Conference of Parties may adopt it. This implies that a country may just bring in any new idea in a legal proposal for a Protocol. It is their legal right to do so, but such proposals often do not respond to the existing mandates, show disrespect for them, and disregard the established principles.

Outcome, Legal Instrument or Protocol?

The BAP asks for a legal outcome. That can be done in many ways: a decision, a set of decisions, a Protocol, or another kind of Legal Instrument. All of those possibilities are represented in the negotiation text.

Probably it is too early to define if the outcome should be a Protocol or not, First the contents should be defined. The legal form, can be defined later, in function of the contents. Deciding now to go for a new protocol, without knowing what will be in it, is like deciding to marry, but without knowing to whom.

It is also important to bear in mind it took 8 years for the Protocol to come in to force, and that the US never ratified it. It then seems more helpful that the outcome should be a decision or a set of decisions, as they come in to force from the moment they are approved by consensus by the COP.

The time frame

A very problematic issue in this text is the time frame in which a new Protocol would be negotiated: given possibilities are: start negotiating in 2012, and end between 2012 and 2015. Taking into account it takes several years for a protocol to be ratified, and to come in to force, this means the protocol would be operational by … 2020!

This contradicts very much with the mandate of the BAP: have an outcome by 2009. We are already 2 years overtime. But now to start planning to be 11 years overtime is outrageous. Even worse in a time when scientist are warning constantly that we only have a few years of time to actually do something about climate change, after that, it will become irreversible!

The worst ideas are not in the negotiation text

In fact, this text only works on the “implementation of the Convention”. But the outcome of the Kyoto Protocol discussions — the establishment of the second commitment period — will have a determinant effect on the whole legal discussion.

Unfortunately, a possible outcome for Durban is ‘a second commitment period’ the Kyoto Protocol, but to one that will be so much deformed, that it shouldn’t be called Kyoto Protocol anymore. A Kyoto Protocol which doesn’t have a clear mitigation commitment for developed countries, which doesn’t have a compliance regime anymore, which changes the principle of ‘common but differentiated responsibilities’, or which invents so many ‘loopholes’ or legal ways to escape from the obligations, will be unacceptable!

But even bigger is the danger of opening the gateway to renegotiate the convention itself! It is nowhere written down that this is the aim of several developing countries, but who listens to the interventions of many of them, US, Russia, Australia, in the first place, will have a clear picture in mind that it is that what they want.

Why? Not to make a new convention that would be more stringent, not at all. The idea would be to wipe out basic principles such as the science based regime, common but differentiated responsibilities, historical responsibility, the division between developed and developing countries. The alternative? A very loose new agreement, that just asks for voluntary contributions for mitigation as well as for finance and technology, and which doesn’t show the need to respond to scientific requirements.

If we don’t take care, legal discussions will make impossible the possibilities to stabilize the climate, let alone in an equitable way!

1 The options in the text actually are mixtures of different possibilities for each of the issues.

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