Legally binding consequences The alpha and omega of the negotiations

As has been seen, the issue of the legal character of any binding consequences that would result from the Kyoto compliance system played a central role in the negotiations. At the outset, the mandate contained in Article 18 of the Protocol set an expectation and an ambition that binding consequences would form part of an effective compliance system. However, Article 18's links between such consequences and the need for an amendment to the Protocol complicated the situation and thus constrained those pressing for a clear legal outcome.

Article 18 of the Protocol requires that '[a]ny procedures and mechanisms under this Article entailing binding consequences shall be adopted by means of an amendment to this Protocol'. Delegations on all sides of the debate recognized that the regular amendment procedures under Article 20 of the Protocol would raise problems with regard to uncertainty, timing and the general application of the amendment to all parties. Waiting for the COP/MOP to adopt an amendment, and for all parties to ratify it, could leave a long period during which at least some parties would not be bound by the agreed consequences. It also left open the question of the status of those parties that wished to participate in the Protocol but were unwilling or politically unable to ratify a compliance amendment.

There were various attempts to finesse or exploit these constraints in order to either secure or prevent agreement on legally binding consequences. Those parties that were in support of legally binding consequences, including the EU, the G-77 and the US, recognized the difficulties of finding a legally sound manner of providing them with a legal basis that was consistent with Article 18 and that would be universally applicable. These delegations were intent on finding a creative solution. Those that did not want binding consequences, including Japan, Australia and Canada, sought to stick to the letter of Article 18 and to cite the complexities of amendment as another good reason to opt for a softer, politically binding solution.

As delegations approached COP-6, part 1 in The Hague, four overlapping options were offered by the co-chairs.43 Option 1 would have recommended the adoption of the compliance system by decision, without reference to its legal character. Option 2 would have asserted the authority of COP/MOP-1 to adopt the compliance system as a legally binding decision, without reference to the need for any additional procedure to give it legal force. The first of these options was considered by most as weak, the second as having little or no legal basis.

Option 3 would have required the adoption at COP-6 of a legal instrument containing the entirety of the procedure, which would be available for ratification by parties in conjunction with the ratification of the Protocol. This proposal assumes that those countries that have already adopted, signed and even ratified the Protocol are prepared effectively to amend it prior to its entry into force, and that all delegations undertake to ratify both instruments as a package. The proposal has the advantage of providing immediate certainty as to agreement on the compliance package, but relies heavily on political will to ensure that all ratify both the protocol and the package.

Option 4 would recommend to a future COP/MOP that it adopt, as part of the legal instrument adopting the targets for the second commitment period still to be negotiated, the binding consequences applicable to the first commitment period. This proposal assumes that all countries committed to the long-term success of the climate regime will be prepared to adopt and ratify their new second period commitments before the end of the first commitment period. The proposal would provide a sound legal basis for these countries, but would provide a long time delay and uncertainty between Marrakesh and the eventual adoption by the COP/MOP of the final package.

In Bonn, at COP-6, part 2, the ministers reached consensus on the need for tough consequences and agreed terms that described the application of these consequences in clear and mandatory terms. They failed, however, to agree on how to bring the compliance system into force. The rump of the Umbrella group sought to interpret the failure of ministers to agree as to how the compliance procedure would come into force as a failure to agree whether the consequences resulting from the procedure were intended to be binding. This would have suggested, contrary to what many saw as the plain meaning of the Bonn Agreement, that delegations had viewed the Enforcement Branch consequences as part of an optional or 'menu' approach. This tactic nearly led to the breakdown of discussions in Bonn. A new approach emerged at COP-7, which was to suggest that the Bonn Agreement had not prejudged whether COP/MOP-1 would decide to adopt compliance procedures entailing binding consequences. The G-77 and the EU felt that the choice of ministers in the Bonn Agreement to describe the proposed consequences in clear and mandatory terms, including through the use of the word 'shall', in fact did pre-judge the binding nature of those consequences.

The Marrakesh Accords do not resolve this fundamental dispute about the legal form of the compliance procedure. The issue was deferred, in neutral terms, to the first COP/MOP, by '[n]oting that it is the prerogative of the Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol to decide on the legal form of the procedures and mechanisms relating to compliance'.44 The implications of having left this aspect of the regime open are discussed in detail in Chapter 2.

Negotiating Essentials

Negotiating Essentials

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