One, Two or One and a Half Protocols? An Assessment of Suggested Options for the Legal Form of the Post-2012 Climate Regime

The current international climate regime basically consists of two treaties: The United Nations Framework Convention on Climate Change (UNFCCC) adopted in 1992, which has nearly universal membership, and the Kyoto Protocol adopted in 1997. The latter treaty obliges developed states listed in Annex I of the UNFCCC to limit or reduce their greenhouse gas emissions by the amount inscribed in Annex B of the Kyoto Protocol. However, it only provides for a first commitment period lasting from 2008 to 2012. Thus, there is an urgent need to establish new rules ensuring further emission reductions after 2012.

This research article analyses and evaluates three options for the legal form of the future UN Climate Change Regime to be agreed upon at the Copenhagen Climate Summit. After a short introduction (I) and an overview of key challenges for a future agreement (II), the article describes different facets of the negotiations' setting, such as the two track negotiating structure, and examines whether these aspects favour a specific legal form (III). Then, it turns to possible options for the legal form that have been proposed by states recently (IV). The options are divided into a “one protocol-approach”, a “two protocols-approach”, and a “one and a half protocols approach” involving an amended Kyoto Protocol and additional COP decisions addressing the elements of the Bali Action Plan. Focussing on the latter, the following analysis assesses the legal nature of COP decisions, their status in domestic law and the question whether central commitments of a treaty can be established by way of decisions (V). In view of the findings, the article argues that approaches relying on COP decisions for establishing the commitments and the architecture of the post-2012 climate regime involve a high degree of uncertainty (VI). Thus, it concludes that Parties to the UNFCCC should rather adopt a single new protocol or two complementary protocols instead of pursuing the “one and a half protocols approach” (VII).

Copyright: © Lexxion Verlagsgesellschaft mbH
Quelle: Issue 3/2009 (Oktober 2009)
Seiten: 13
Preis inkl. MwSt.: € 41,65
Autor: Lutz Morgenstern

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