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Trading Carbon : December - January 2011
S12 POST 2012 l What modifications, if any, would be made to the Kyoto rules -- for example, concerning accounting, land-use change and forestry credits, the CDM, reporting, review and compliance? l What kinds of linkages, if any, would be developed between Kyoto and the new legal agreement negotiated under the UNFCCC? For example, could countries with emissions reduction targets trade across the two agreements? Similarly, could countries in the convention track of the negotiations make use of CDM credits? Scenario three: Political agreement on a second commitment period An intermediate outcome would be a transitional regime, establishing a "political" second commitment period in which emission targets are political rather than legally- binding obligations, in anticipation of the eventual development of a legally-binding regime. This scenario has received attention in the run-up to Durban as a more politically realistic option than a legally- binding second Kyoto commitment period. Political commitments could be adopted through a decision of the parties or a political declaration, rather than requiring a protocol amendment. Although agreement even to a "political" second commitment period would depend on parallel progress in the convention track, less progress would be needed to make scenario three politically viable than scenario two. What would be the difference between a "political" second commitment period and a "legal" second commitment period adopted in a protocol amendment? In essence, not much. As critics of international law are fond of noting, even legal obligations are generally not "enforceable," given the absence of sanctions in international law. Despite this shortcoming, treaties are usually seen as convention. Such a requirement would help ensure mutuality of legal obligation between the countries with Kyoto targets and the other major emitters. But it would be fiercely resisted by developing countries, as they have already made clear. Even assuming a Kyoto amendment could be adopted without a linked entry-into-force requirement, it almost certainly would not enter into force quickly enough to prevent a gap between the first and second periods. Amendments to Kyoto require acceptance by three quarters of the protocol parties, and enter into force 90 days later. So to prevent a gap between the first and second periods, an amendment would need to be accepted by 143 countries by October 3, 2012. To address this issue, a Kyoto amendment establishing a second period could provide for its "provisional application" pending entry into force. Provisional application is a recognised technique in treaty law by which states undertake to apply a treaty pending its entry into force. Several treaties have been provisionally applied pending entry into force, including the 1964 European Fisheries Convention, the 1979 Long-Range Transboundary Air Pollution Convention, the 1991 Protocol on Environmental Protection to the Antarctic Treaty and the 1998 Agreement on the International Dolphin Conservation Program. Provisional application raises conceptual puzzles. For example, how can a treaty provision providing for provisional application have legal effects if the treaty as a whole is not yet in force? However, the prevailing view is that an agreement by states to provisionally apply a treaty creates legal obligations that are largely the same as if the treaty entered into force. Important issues that would need to be resolved include: l Which countries would agree to new Kyoto targets, and which would prefer to proceed under the Copenhagen/ Cancun framework? Dec 2011/Jan 2012 www.pointcarbon.com KACPER PEMPEL/REUTERS