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Briefing note on the ‘legal form’ of a new climate agreement
I. Introduction and background
The UN Climate Change Conference in Cancun ended with the adoption of a
package of decisions (referred to as the ‘Cancun Agreements’). The decision on the
outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action
(AWG-LCA) explicitly states that ‘nothing in this decision shall prejudge prospects for,
or the content of, a legally-binding outcome in the future’.
However, the legal form of
a final deal that may establish a wider comprehensive framework to tackle climate
change remains an open question.
This briefing note aims to facilitate a better understanding of the different options
available to the parties of the United Nations Framework Convention on Climate
Change (UNFCCC) negotiation process.
II. Summary
COP and CMP decisions are not legally-binding on the parties to the
UNFCCC and the Kyoto Protocol.
The robustness and credibility of a post-Kyoto regime depends on clear rules
and incentives for compliance which are more likely to be achieved through
legally binding commitments.
A new arrangement to combat climate change is arguably not restricted by
the distinction between Annex I and non-Annex I countries and may employ
other forms of differentiation between parties.
Parties have been focusing on amendments to Annex B of the Kyoto Protocol
(containing emission limitation and reduction targets).
Parties have also made proposals for new legal instruments to either
supplement or replace the Kyoto Protocol.
However, an agreement on a post-Kyoto regime appears some way off and a
legally binding deal prior the expiration of the first commitment period seems
increasingly unlikely.
While a gap between commitments periods would not immediately affect the
application of the Kyoto Protocol there would be no directly applicable
emission reduction targets.
In order to bridge a gap between the end of the first Kyoto commitment period
and subsequent periods, it may be possible to apply the current or newly
agreed emission limitation and reduction targets on a provisional basis.
Initiated by the Mary Robinson Foundation – Climate Justice (MRFCJ) and prepared by the
Foundation for International Environmental Law and Development (FIELD) in February 2011
Draft decision -/CP.16 Outcome of the work of the Ad Hoc Working Group on long-term
Cooperative Action under the Convention

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