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Trading Carbon : December - January 2011
period. Since the existing rules for afforestation and reforestation projects explicitly apply only to the first commitment period, new rules would be needed. New CDM rules would also be needed if CERs were used for compliance with regional and national emissions reduction targets, to ensure that the credits were not re-used. To the extent that CERs were used to comply with a regional or national emissions target, they would need to be cancelled, as is currently the case. If there were an extended period without Kyoto Protocol emissions targets, this would give added importance to progress under the Copenhagen/Cancun framework. This establishes a more incremental, bottom-up process, involving political commitments to reduce emissions, new financial assistance for developing countries and a process for international analysis and/or review of national actions. A crucial question is whether failure to reach agreement on a second Kyoto period would provoke a backlash by developing countries, stymying efforts to further elaborate the Copenhagen/Cancun framework. Assuming this framework continued to evolve, however, the infrastructure established by the protocol might be adapted to play a role under it. Scenario two: Adoption of a Kyoto Protocol amendment establishing a second commitment period At the other end of the spectrum from no-agreement, the Kyoto Protocol parties could agree to an amendment establishing a second commitment. Given Japan's, Russia's, and Canada's stated opposition to a second period, such a decision would presumably include only a rump of the original Kyoto parties. Within this small group, the EU would play the decisive role. Agreement on a second period would be possible only if the EU were determined to demonstrate that Kyoto is not only alive but well. Adoption of a second commitment period amendment faces huge political obstacles. Even the EU would find it politically difficult to accept a second period unless there were parallel progress in the Convention track of the negotiations, presumably including agreement on a mandate to negotiate a new legal agreement. The countries assuming new Kyoto targets might also insist that the amendment include a linked entry-into-force requirement. This would provide that it not enter into force until the simultaneous entry into force of the parallel agreement to be negotiated under the S11 POST 2012 emissions targets. For example, Article 5 requires developed countries to have "national systems" for the estimation of their GHG emissions. Similarly, Article 7 requires developed countries to include in their national communications whatever supplementary information is necessary to demonstrate compliance with the protocol. Although these requirements were included to promote compliance with the Kyoto's emissions targets, they are not dependent on the existence of caps. Hence, it would continue in effect even after the protocol's first commitment period targets expire. The same is true of the general obligations set forth in Article 10 and the financial obligations for Annex II parties set forth in Article 11. Similarly, the protocol's institutions -- the Meeting of the Parties (Article 13), the Secretariat (Article 14), the Subsidiary Body for Scientific and Technological Advice, the Subsidiary Body for Implementation (Article 15), the Adaptation Fund and the Compliance Committee (Article 18) -- are not tied to the existence of Kyoto commitment periods and do not depend on national emissions targets. The same is true of the expert reviews of national inventories provided for by Article 8, as well as the periodic reviews of the protocol by the parties pursuant to Article 9. Although one of the main purposes of expert reviews is to determine compliance with a party's target, they serve an important function in verifying a country's emissions inventory, even in the absence of targets. The CDM would continue to operate after the expiration of the first commitment period, since it too is not dependent on emissions targets. In establishing the CDM, Article 12 identifies as one of its purposes to "assist (developed) countries in achieving compliance with their quantified emission limitation and reduction commitments under article 3". But Article 12 does not define this as the CDM's only purpose. Indeed, the Article begins with the CDM's role in "assist(ing) developing countries in achieving sustainable development and contributing to the ultimate objective of the Convention." The CDM Executive Board could still register projects. Designated operational entities could still verify and certify emission reductions. The resulting Certified Emission Reduction (CERs) could still be deposited in the country's registry. And a "share of the proceeds" could still be used to finance the Adaptation Fund. It is unclear how many CDM projects would be funded if Annex I countries no longer had any targets. But to the extent that a country still wanted to pursue a CDM project -- for example, as a means of achieving its Copenhagen/ Cancun pledge to limit emissions, or because CDM credits were recognised under a national or regional trading system -- there is nothing in the protocol that would preclude it from doing so. Some adjustments to the CDM's modalities and procedures would be necessary if there were no second commitment Daniel Bodansky Several Kyoto Protocol provisions are not dependent on emissions targets