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ROAD TO COPENHAGEN Legal perspectives Article 3.9 of the Kyoto Protocol states that “Commitments for subsequent periods for Parties included in Annex I shall be established in amendments to Annex B to this Protocol, which shall be adopted in accordance with the provisions of Article 21, paragraph 7. The Conference of the Parties serving as the meeting of the Parties to this Protocol shall initiate the consideration of such commitments at least seven years before the end of the first commitment period referred to in paragraph 1 above.” At CMP 1 in 2005, the Parties by their decision 1/CMP.1, decided “to initiate a process to consider further commitments for Parties included in Annex I for the period beyond 2012 in accordance with Article 3, paragraph 9, of the Protocol” and to establish an open-ended ad hoc working group of Parties to the Kyoto Protocol (AWG-KP) to undertake this work. to complete its work and have its results adopted by the CMP as early as possible and in time to ensure that there is no gap between the first and second commitment periods. Five sessions planned for the rest of the year AWG-KP- 7 sessions between May 2006 and March/April 2009 • SB30 from 1 -12 June; • 10 -14 Aug 2009: Informal meeting of AWG-LCA and AWG- KP; • 28 Sep - 09 Oct 2009: 7TH session of AWG-LCA and 9TH session of AWG-KP; • 02 Nov - 06 Nov 2009: Resumed seventh session of the AWG-LCA and resumed ninth session of the AWG-KP; • 07 Dec - 18 Dec 2009: COP 15 and CMP 5 and 31st sessions of SBs, 8th session of AWG-LCA and 10th session of AWG-KP; • Heavy schedule of meetings in the period leading to Copenhagen Article 21, para. 3 of the Kyoto Protocol provides that “The text of any proposed annex or an amendment to an annex shall be communicated to the Parties by the secretariat at least six month before the meeting at which it is proposed for adoption. …………………… ” In accordance with this provision, the text of any proposed amendment to Annex B to be adopted at the Copenhagen Conference in December will have to be communicated by the secretariat to all Parties by 17 June 2009. This text will be further refined, amended, revised and ready for adoption at CMP5. In Accordance with Article 20, para 2 of the KP • Amendments other than those proposed for Annex B, shall also be communicated to all Parties by the secretariat by the same date of 17 June 2009 • Parties will continue to work on the basis of these proposed amendments until the final text is adopted in Copenhagen. Parties differ on the interpretation of the mandate of the AWG-KP. • Developed Countries want the mandate of the AWG-KP to be interpreted broadly to cover improvements to the CDM, emissions trading and joint implementation as well as the addition of new gases to Annex A. Some are even advocating the merger of the 2 AWGs in order to promote coherence. • Developing countries on the other hand are calling for a narrow interpretation of the mandate of the AWG-KP, which will entail only amendments to Annex B and any consequential amendments flowing from it. According to the developing countries, anything beyond this would be outside of the mandate of the AWG-KP. The Chair has deferred any decision on the interpretation of the mandate and this has resulted in his being asked to prepare two documents. • A proposal for amendments to the Kyoto Protocol pursuant to its Article 3, paragraph 9. • A text on other issues outlined in the report on its resumed sixth session. These issues include improvements to the CDM , Emissions Trading, Joint Implementation and Land Use, Land Use Change and Forestry. POSSIBLE OUTCOMES AT COPENHAGEN Amendment to Annex B plus the consequential amendments. Amendment to Annex B plus other amendments to the Kyoto Protocol. New Protocol to replace the Kyoto Protocol. The United States Factor • The European Union, Japan, Australia and other Annex I Parties are eager to see the United States, the second largest emitter of greenhouse gases become engaged in international efforts to address climate change. • President Clinton was unable to get the Senate to ratify the Kyoto Protocol and President Bush did not even try. President Obama is a sign of fresh air and has brought some hope with his commitment to engage with the international community on the issue of climate change • The US wants the major developing countries to take on specific emission reduction commitments. • Just last week, President Obama announced new measures to reduce emissions from motor vehicles and to reduce the consumption of fossil fuels in the US. • The US is doing a lot domestically, but it will take a lot more at Copenhagen to get them on board. Ad Hoc Working Group on the Long-term Cooperative Action under the Convention BALI ACTION PLAN •The COP 13 held in Bali, Dec. 2007, launched a process to negotiate a global concerted action on climate change up to and beyond 2012. • “The Bali Road Map” initiated a negotiating process, with a view to concluding its work by COP 15. The Ad Hoc Working Group on the Long Term Cooperative Action under the Convention (AWGLCA) established at the Bali Conference has since held five sessions, the latest being the Bonn session held from 29 March to 8 April 2009. The ongoing negotiations in the AWGLCA are expected to result in an agreement on the five main pillars of the Bali Action Plan. (a) A shared vision for LCA (b) Enhanced national/international action on mitigation of climate change; (c) Enhanced action on adaptation; (d) Enhanced action on technology development and transfer to support action on mitigation and adaptation; and (e) Enhanced action on the provision of financial and investment to support action on mitigation and adaptation and technology cooperation. POSSIBLE OUTCOMES AT COPENHAGEN • Several COP decisions on issues being addressed under the Bali Action Plan, • No amendments to Convention possible at Copenhagen due to six months rule. A process could be set in motion to consider amendment proposals to be adopted at a future date. • A new Protocol to replace Kyoto Protocol. ENTRY INTO FORCE •Article 20, paragraph 4 states that “Instruments of acceptance in respect of an amendment shall be deposited with the Depositary. An amendment adopted in accordance with paragraph 3 above shall enter into force for those Parties having accepted it on the ninetieth day after the date of receipt by the Depositary of an acceptance by at least three-fourths of the Parties to the Protocol.” This provision is one which could be considered as a major drawback to the speedy entry into force of an amendment to Annex B. The process of obtaining the required instruments of acceptance to trigger entry into force can be a lengthy process. • The Kyoto Protocol was adopted in December 1997 and opened for signature on 18 March 1998. It entered into force in 2005 after a period of almost eight years. The amendment to enable Belarus to be included in Annex B was adopted at the CMP 2 in Nairobi in 2006 and has received only 12 acceptances as at the end of December 2008. • The Parties may wish to consider the provisional application of the amendments pending entry into force. Under Article 25 of the Vienna Convention on the Law of Treaties, a treaty or amendments to a treaty is applied provisionally if it so provides or if the Parties have in some other manner so agreed. When a treaty has a provisional application clause, the obligation of the Party is created by its participation in the adoption.
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