UNFCCC Secretariat Releases Parties’ Submissions on Legal Implications Arising from Work of AWG-KP

March 2009: The UNFCCC Secretariat has released four submissions on views on the legal implications arising from the work of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) pursuant to Article 3, paragraph 9, of the Kyoto Protocol. It received the submissions from Belarus, the Czech Republic on behalf of the EU, Japan and New Zealand. Article 3.9 states that commitments for subsequent periods for parties included in Annex I shall be established in amendments to Annex B and the Conference of the Parties serving as the Meeting of the Parties shall initiate consideration of such commitments at least seven years before the end of the first commitment period.

The Belarus submission states that it is necessary to provide a more flexible framework for the possibility of introducing amendments, particularly when voluntary commitments are assumed by countries. The main legal implication highlighted, resulting from implementation of Article 3.9, is the need for discussion on and elaboration of more thorough procedures and mechanisms for the introduction of amendments into the subsequent international climate change agreement.

The EU submission on the issue of the AWG-KP mandate provides that it is not possible to give legal effect to amendments of Annex B or under Article 3.9 without other wider amendments (for example, to Article 3). The EU also notes that Articles 20 and 21 of the Protocol provide the mandate needed to permit the tabling of amendments to the Protocol and its annexes, should they become desirable as a result of the work of the AWG-KP or for any other reason. The submission proposes various amendments to the Protocol to give necessary effect to the second commitment period, including: updating the Protocol where applicable in accordance with the new commitment period; adding the duration of and the overall emissions reduction aim for the second commitment period; and  inscribing new commitments in Annex B. In addition, the EU submission states that the work of the AWG-KP could also result in other amendments to the Kyoto Protocol to improve its functioning, such as simplification of certain procedures (such as those relating to amendments of Annex B to the Protocol); inclusion of a specific article affording immunities to individuals serving as members on bodies constituted under the Protocol; and changes to improve clarity and avoid ambiguity.

Japan's submission outlines their preferred option on the framework beyond 2012 as the adoption of a new protocol to include obligations of both developed and developing country parties, established as a result of joint discussions of both the AWG-KP and the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA). Japan also states that in such a protocol, the long-term goal of reducing at least 50% of global greenhouse gas emissions by 2050 should be stipulated as a non-binding shared vision by parties.

New Zealand considers that negotiations under both the AWG-KP and the AWG-LCA should feed into an integrated post-2012 instrument within the UNFCCC framework. New Zealand suggests that the terminology of the Kyoto Protocol or any future legal framework will require updating in light of the Bali Action Plan and particularly that developing countries will need to be included in any post-2012 framework. References to commitment periods will have to be amended. On inscription of new commitments, any post-2012 framework should have simplified and straightforward procedures for allowing new parties to take on new commitments and/or nationally appropriate mitigation actions during any commitment period, to avoid unnecessary delays around ratification procedures by parties. New Zealand considers that, if the Kyoto Protocol is to be extended post-2012, there will need to be appropriate entry into force provisions that link activation of the second commitment period with the entry into force of an agreement under the AWG-LCA negotiating track that encompasses all major emitters. On immunity provisions, New Zealand considers that legally binding immunity provisions are required for individuals serving on constituted bodies and Article 8 Expert Review Teams established under the Kyoto Protocol, and that this should be an essential element of any post-2012 legal framework. On gases covered by a post-2012 framework, New Zealand proposes that any post-2012 legal framework should not use general terms to describe groups of gases, and in particular that it should itemize the different HFCs and PFCs for which parties need to account. Should additional HFCs and PFCs be discovered following its entry into force, then normal procedures for amendments would apply. [The Submissions]