Tag: Legal outcome

Taking Leadership

Submitted by Anonymous on December 6, 2011 - 11:25pm

The legal options discussion has come up with at least one that ECO approves. Option 1 decides to develop a Protocol or other legally binding instrument under the Convention based on the Bali Action Plan and the Cancun Agreements, with negotiations starting in 2012 and in place by 2015. Excellent!

However, the rumour is that the US, India and China have opposed it. ECO shares India and China’s love of the Kyoto Protocol and their devotion to a second commitment period, but is dismayed by the potential rejection of the lovely Option 1.

ECO has long considered itself soulmates with India and China – based on mutual deep respect for a rules-based system with common but differentiated responsibilities and respective capabilities. If those Parties are really serious about a binding second commitment period they should also constructively engage to ensure a mandate at Durban that will build on the second commitment period.

Rather than taking a rigid stance in the legal group, India and China should move in line with the press comments they have made stating they are receptive to new ideas and looking at solutions with an open mind.

Of course, responsibilities should be based on equity and CBDR+RC as embedded in the Convention. Rather than being a basis for obstructing progress, however, this should be the basis to work towards a legal outcome. It is imperative that all Parties should extend their views beyond the short term for the sake of the planet.

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Who’s Afraid of Provisional Application?

Submitted by Anonymous on December 1, 2011 - 11:20pm

If only we could apply climate change provisionally!

For the last couple of days, we have heard a number of developed countries make allusions to constitutional concerns about provisional application of the amendment for a second commitment period under the Kyoto Protocol.

While commending these parties for continued support of a multilateral, legally binding, rules-based regime, we are nonetheless confused.

ECO keeps a copy of the Vienna Convention on the Law of Treaties by its bedside (for those restless nights after the informals) and has the impression that provisional application is a widely used tool of international law.

A quick Google search confirmed this and there are a slew of examples in which provisional application has been used, such as:

* The 1994 United Nations International Tropical Timber Agreement, which was provisionally applied by a number of countries including Belgium, EU, Finland, France, Germany, Japan, Luxembourg, Netherlands, Spain and the UK.

* 1994 Energy Charter Treaty, which Australia, Iceland and Norway are currently applying provisionally. (Of course, Russia was applying it provisionally until 2009 – which just serves to reinforce the point that provisional application is needed as a mechanism to avoid a gap but ratification is ultimately needed).

* The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea

* The International Coffee Agreement (particularly important for those late night sessions!)

* A number of bilateral agreements, such as the 1996 Agreement between the European Community and New Zealand on sanitary measures applicable to trade in live animals and animal products (which was applied provisionally until its entry into force in 2003) and the 2006 Agreement between the European Community and New Zealand on certain aspects of air services .

* And who can forget the mother of all provisional applications – the 1947 General Agreement on Tariffs and Trade (GATT) was applied provisionally through the Protocol of Provisional Application from 1948 until the WTO agreement entered into force in 1995!

ECO just can’t understand what makes the climate change regime different. Why couldn’t we apply the amendment for the second commitment period provisionally?

Durban needs to deliver a mandate for a legally binding instrument under the LCA. For a balanced outcome we must pair legal with legal – thus provisional application of a legally binding amendment under the Kyoto Protocol is crucial.

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Provisional application

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COP17/CMP 7 – Durban

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Informing Legal Form

Submitted by Anonymous on October 6, 2011 - 9:54am

Judging by the number of delegates and observers crowding the room over the last two days, there is certainly a keen interest in the legal form of the LCA outcome. ECO welcomes these discussions and urges the Parties to build on the bare bones outline of legal form options presented yesterday, by adding specific content that can inform deliberations in Durban. ECO is impressed by the surprisingly constructive tone and substantive content of the discussions. We can only imagine what would happen if a second commitment period under the KP were adopted!

While we recognize the often repeated line that form should follow function, we echo Colombia’s point that negotiators need some sense of where they are headed – a political declaration is very different from a long-term binding regime. ECO is appreciative that the meetings of the group are open to observers. We note however, that some confusion remains concerning the degree of “bindingness” of different legal options. We offer the brief table below to clarify.

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