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ecbi european capacity building initiative initiative européenne de renforcement des capacités LEGAL ISSUES IN THE NEGOTIATIONS By: Litsabako Kali (Lesotho Ministry of Natural Resources) 27th November, 2010, Cancun for sustained capacity building in support of international climate change negotiations pour un renforcement durable des capacités en appui aux négociations internationales sur les changements climatiques

BACKGROUND There are two processes which are ongoing, namely: Ad Hoc Working Group on Long term Cooperative Action under the Convention (AWG-LCA)which was set up in Bali, Indonesia in 2007. The Ad Hoc Working Group on further Commitments for Annex 1 Parties (AWG-KP) was established in 2005 in Montreal, Canada on the basis of a mandate given at CMP1 pursuant to Article 3, paragraph 9 of the Protocol.

MANDATE OF AWG-LCA To launch a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term Cooperative action now, up to and beyond 2010 in order to reach an agreed outcome and adopt a decision by its Fifteenth session with the focus on the 5 building blocks of the Bali Action Plan, namely; Adaptation, Finance, Shared Vision, Mitigation, Transfer of Technology and Capacity building.

MANDATE OF AWG-KP It involves the broad and narrow interpretation. Narrow interpretation relates to amendment of Annex B and consequential amendments that flow from it. Broad interpretation deals with taking on board all other amendments proposed by Annex 1 Parties and others as a means to enable their enhanced commitments. Amendment of Article 3.9 of the KP to cater for Annex 1 Parties further commitments. Initiated a process to consider further commitments for parties included in Annex 1 for a period beyond 2012. Establish ad hoc working group of parties to the KP to undertake this task.

There is an expectation for AWG-KP to: Finish its work as early as possible. Work and have its results adopted by the CMP so as to avoid a possible gap between the first commitment period and the second one.

ENTRY INTO FORCE Pursuant to Article 20, paragraph (4) of the Protocol which provides that,” instruments of acceptance in respect of an amendment shall be deposited with the Depository. An amendment adopted in accordance with paragraph 3 above shall enter in to force for those parties having accepted it on the nineteenth day after the date of receipt by the Depository of an acceptance by at least three-fourths of the Parties to the Protocol” It is on the basis of this provision that a speedy entry into force of an amendment to Annex B should be considered.

A desirable OUTCOME UNDER KP Amendment to Annex B of the KP pursuant to article 3, paragraph 9 of the protocol. Mitigation efforts of Annex I Parties should be determined by science namely the 4th IPPC assessment report- a reduction of 40-45% by 2020 using 1990 as the base year.

EFFECTS OF A GAP BETWEEN FIRST AND SECOND COMMITMENT PERIODS If in Cancun there is no agreement there is a possibility that a gap will exist between the first and second commitment periods. To avoid such a gap, there has to be an agreement on the amendments to Annex B at Cancun and it has to enter into force by the end of December 2010.

Options to avoid the gap There is a need to explore the possibility of avoiding a gap. Options for avoiding a gap are: To get an agreement in Cancun otherwise time is getting shorter and there is a need to speed to speed-up the process. There will be a need to extend the first commitment period by the decision of CMP.

Possible form of the outcome of COP16 at Cancun A legally binding outcome (that is treaty-protocol or convention: COP decision) or a combination of both. Many parties prefer a binding treaty while others prefer a combination of binding elements and non-binding (COP decisions). EU supports a legally-binding agreement, but it is of the view that it could be flexible on the form of the outcome, as long as it is legally binding.

Continued…. Developing countries want a legally- binding agreement which respects the two-track approach. For developing countries a legally- binding agreement would resolve issues of performance and provide greater leverage to nations to achieve domestic action and implementation. Issue of concern-what is legally binding? A treaty, either a new Convention- new Protocol or Decisions accepted by the Parties to be binding. Overarching decision ( contents similar to list elements distributed by the AWG-LCA Chair at Tianjin on October, 2010.

AN anticipation FOR CANCUN To Taking the previous sessions, progress, the prospects are already poorer as with the results that focus is being shifted to South Africa in 2011. To avoid a gap, bold decisions and outcomes would be acknowledged.

Thank you