Plan C Switching track to the Kyoto Protocol Benito M ü ller, Oxford Institute for Energy Studies

1. ecbi european capacity building initiative initiative européenne de renforcement des capacités Plan C Switching track to the Kyoto Protocol Benito Müller, Oxford Institute for Energy Studies 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

2. ‘Plan A’ and ‘Plan B’ • Cancun delivered welcome progress on mitigation. … To fully capture the significance of Parties’ targets and actions and set the groundwork for raising ambition, further formalisation and clarification of mitigation efforts is now needed. Substantial decision(s) on mitigation in Durban that clarify the mitigation actions and targets put forward, and set a framework for further work, will contribute to a progressive outcome in Durban encompassing both Convention and Kyoto Protocol tracks. • The suggestions and views put forward here do not prejudice outcomes for the Kyoto Protocol. They can be the starting point for a new legally binding agreement capturing targets and actions, whether • in parallel to the Kyoto Protocol [‘Plan A’] or • as a single treaty for Parties with mitigation targets and actions, both developed and developing [‘Plan B’].

3. The problems with Plan A and Plan B • There is a significant risk that even if a mandate for a new legally binding instrument as the ‘agreed outcome’ from the LCA is secured in Durban, such negotiations would likely lead to a mitigation framework akin to a ‘pledge-and-review’-type agreement: • Many of the desirable Kyoto architectural elements (such as common and agreed accounting rules, compliance for developed country QELROs; and multilaterally agreed aggregate ambition levels) would need to be renegotiated in a form acceptable to the USA, which would more than likely result in a bottom up ‘domestically binding’ pledge and review approach that is far less stringent than the present framework under the Kyoto Protocol. • Furthermore, there is no guarantee that the adoption of a negotiating mandate would produce a new legal instrument in short order. Instead, it may result in protracted negotiations as the Kyoto Protocol hobbles along with significantly reduced Annex B membership, or even worse, without a second commitment period at all.

4. The American Predicament There are Parties that are not necessarily appreciative of a legally binding outcome: "What are we supposed to do? We are supposed to enshrine and inscribe a target for greenhouse gas emissions. What do we intend to do? The President has been quite clear about that: we intend to follow Congress. And this I think is again a departure from where we had been in the process leading up to and following Kyoto, where the administration went out with a statement of what we thought we could do, brought it home, and it was not acceptable. We did not have the work, the background, the leg-work, to bring home an agreement that would be accepted by Congress.“ [Jonathan Pershing at Center for Strategic and International Studies, 13 January 2010] The Problem: The US Congress is not going to ratify any binding climate change treaty

5. The Conundrum of the Willing • Even among the Parties who do appreciate a legally binding outcome, there is a chasm of trust. • Example −Shifting the Bali Action Plan ‘Goal Posts’ Concessions regarding MRV/ICA/IAR by developing countries were made in return for an agreement to negotiate a legally binding second commitment period (‘2CP’) of the KP, without concurrent legally binding obligations on developing countries. Any attempt to either renege on a 2CP, or to demand concomitant developing country obligations is seen as an unacceptable shifting of the goal posts agreed in Bali. • Hence no developing countries obligations over and above to MRV/ICA/IAR prior to 3CP • A 2CP ratification by appreciative Annex B without a sufficient level of assurance that it will be followed by some form of obligations by (certain) developing countries is not possible. • Hence there is a need for ‘balanced sequencing’: How can we assure the Parties who actually do want a legally binding outcome that when the take a step forward into that direction, the others will actually follow.

6. The Substance: Annex C • Use the Kyoto Protocol as the ‘legal vessel’ of the new regime by formalizing a second commitment period for Annex I countries and, at the same time, adding a legally distinct pathway for developing countries to record their Cancun pledges and nationally appropriate mitigation actions (NAMAs) in a legal framework on terms that are consistent with the principle of common but differentiated responsibilities (CBDR). • Creating a framework for recognizing developing countries mitigation pledges would require amendments to the Kyoto Protocol, most simply through the creation of a new Annex C and operationalized through an amended Article 10. The new Annex C would list the names of those developing countries who requested to be included and who had submitted pledges to the Registry (which is being developed under the UNFCCC in the AWG-LCA), with the Convention Registry being where these pledges and NAMAs would be formally recorded. No developing country party could be listed in Annex C without the prior written consent of the Party concerned. Developed country Parties could not be listed in Annex C..

7. Plan C’s Balanced Sequencing December 2011 • CMP.7 In addition toan agreement on negotiating a 3CP with legally binding obligations for willing developed (Annex B) and developing (Annex C) countries, Plan C requires an agreement on a 2CP with an amended Annex B. There is no need for a new mandate to negotiate the latter, as this is already meant to be the task of the AWG-KP, but it does require a new mandate to negotiate the envisaged 3CP. As a first step in the required balanced sequencing, the willing Parties therefore decide at CMP.7 to • step up the hitherto lacklustre negotiations under the AWG-KP in order to produce by CMP.8 the necessary KP amendments for a 2CP, and • start negotiations on a mandatefor a 3CP as envisaged under Plan C to be completed by CMP.8. • COP.17 AWG-LCA is instructed by the COP to continue its work, focussing on issues that will not be covered under Plan C and on Parties that are unable/unwilling to take on legally binding obligations under it, with a view of concluding a set of draft decisions for adoption at COP.18.

8. Plan C’s Balanced Sequencing December 2012 CMP 8 (taking into account the outcome of the AWG-LAC) adopts the mandate for the Plan C negotiations, to be concluded by CMP.10 (2014), as well as the amendment for a 2CP. Annex B Parties that have signed up to the 2CP issue a declaration that they will fully implement their obligations with a view of ratifying the 2CP amendments as a package together with the Plan C 3CP amendments to be adopted at CMP.10. COP.18adopts the set of decisions drafted by the AWG-LCA, and a decision to disband the AWG-LCA, distributing any remaining issues to be handled by the relevant subsidiary bodies. December 2014 CMP.10 adopts a single amendment to the KP, encompassing both the 3CP and the 2CP amendment adopted at CMP.8 (so as to avoid ‘ratification fatigue’), with a view to entry into force of the enhanced KP before the end of the negotiated 2CP (2020?).

9. Plan C’s Two-fold Strategy Enable those who do appreciate a legally binding framework to become willing to join. Ensure that those who do not cannot take hostage those who do.