b 6 From Rb 6 Sent I Friday Janua 23 2015 6 53 PM To b 6 FW Kyoto Negotiating History Subject This email ls UNCLASSIFIED From b 6 Sent I_ 7 Jesday January 13 2015 9 51 AM To b § b 6 Cc4b 6 Subject Re Kyoto Negotiating History Great• thanks so much for doing this Interesting and potentially useful that a short version was prepared 'w o prejudice' to all the proposals on the table Fyi as I recall it we were keeping open the amendment option because it only requires 2 3 I think of Parties to adopt - and we were worried about Saudis others blocking consensus I don't remember another option being considered as cop 2 had already decided on legally binding targets From b 6 I Sent Monday January 12 2015 09 26 PM Eastern Standard llme To Jb 6 kb 6 Cc kb 6 Subject Kyoto Nego6attng History Dear All For your reference and consideration a few initial points and issues about the 1997 Kyoto negotiating history Contcntofa Negotiating Text The Kyoto ''negotiating text by the Chainnan was a I00 page compendium of in essence Party proposals see first attachment For example there are 10 separate proposals for the preamble 7 for the objective Titles arc still included but a footnote notes that they arc solely to assist the reader The document was characteriz ed in the covering report as organizing the texts adopted at the previous sixth AGBM session as well as additional proposals submitted up until I April NB The text had previously evolved through various stages including a quasi•narrative synthesis of proposals in November 1996 to a ''framework compilation in February 1997 During this process the Chair bad employed various techniques including organizing ''roundtables for infonnal discussions of Parties' proposals and of issues such as differentiation Subsequent evolution ofthe text At the session following the issuance ofthe negotiating text in July August the Chair convened infonnal consultations on various topics quantified emission limitation and reduction objectives policies and measures introductory and final clauses etc and subsequently issued a report in the fonn of bracketed and non-bracketed material with some editorial observations notes to the reader FCCC AGBM 1997 INF 1 At the same July August session the Chair was given a mandate to issue a consolidated negotiating text This consolidated negotiating text issued prior to the October session is 23 pages long and it includes some brackets and for Art 14 two alternatives see second attachment Notably it was issued ''without prejudice to the original negotiating text or original proposals from Parties which remain before the Group The consolidated text is characterized as drawn from the work of the AGBM at the previous session as well as lnfonnal consultations conducted by the Chainnan 1 Legal Fonn The legal form of the instrument was not decided until the December COP Documents through the year mentioned two possible types of legal instrument•· a protocol and amendment -- but left open the door to other IUlspecified options Presumably one other option could have been a COP decision lt is not clear what additional options might have been possible considered Notably both the attached documents at paras 7 and S respectively state that the negotiating text has been structured as a protocol and flag that if another option such as an amendment is selected the text would need to be restructured accordingly Apparently at one point quite late in the process a version structured as an amendment was issued In pitching an agreement rather than a protocol we will likely face questions about structure and whether there is a substantive difference between the two instruments or whether it is simply an issue of nomenclature arguably avoiding the 6-month rule A1 mHcabjljty of6-month Ru e Under the Convention the six-month rule applies to protocols and amendments per Art 15 2 and 17 2 respectively in fact it applies to annexes too Specifically the Convention provides that text of any proposed amendment protocol shall be communicated to the Parties by the secretariat at least six months before the session meeting at which they arc to be adopted During the Kyoto process there was clearly an emphasis on making sure the rule was met As a practical matter the rule needed to be met in order not to foreclose options and limit the choice of the Parties But perhaps Parties did not truly conceive of any alternative to a protocol or an amendment and so did not 11eed to think through whether there were possible instruments that did not require the six-month rule Indeed at times the approach seems sloppy or inconsistent For example at one point the Chair seemed to equate another legal instrument with an amendment The AGBM will recall that the text of a proposed protocol or another legal instrument must be circulated in all six official languages ofthe United Nations by t June 1997 in order to meet the requirements of Articles 15 2 or 17 2 ofthe Convention whereas later he implied that an amendment was only one possible category of another legal instrument Parties may wish to note however that other options are still open to the AGBM and that were agreement to be reached on another legal instrument for example an amendment See FCCC AGBM 1997 2 at para 9 emphasis added BIid FCCC AGBM l997n at para S Intea retation of6-month Rule The Chair interpreted the 6-month rule as follows Parties will nx all that in accordance with Article 15 2 or 17 2 of the Convention the negotiating text produced to meet the t June 1997 deadline should include all the basic concq ts on which the AGBM will negotiate up to the third Conference of the Parties COP 3 Therefore whilst p Qposals additional to this negotiating text may be put forward these should be clearly derived from the submissions already Within it and should not introduce substantially new ideas first attachment para 2 The Executive Secretary's view appeared broader at least as parapbrased in the report of the March session - the last session before the negotiating text would need to issue ''the main characteristics of the text would therefore need to be agreed here He further observed that whilst additional proposals could be accepted after I Jwte these should fall within the CQOO ptual framework of the text prepared by that deadline FCCC AGBM 1997 3 at para 3 emphasis added Working method and process The docwnents from the sessions leading up to the COP in Kyoto arc worth a look for what they reveal about working methods and related issues eg the Chair's use ofgroups the frequent requests for input from Parties eg to submit proposals and or views on specific issues the fact that the Chair was mandated to produce a negotiating text and a consolidated text seemed to hold on to control ofthe text the carefulness and caveating with which all textual options and issues oflegal form remained open etc Docwnents can be found at http unfccc int c@3 resoun e agbm btm Also a briefhistory of the process can be found at hgp www jisd ca vol 12 cnb I 276e html Jt might be useful to prepare a timeline of the Kyoto process and askb has noted try to analyze how the six-month rule worked in practice cg it seems new ideas were incorporated post negotiating text such as tfte CDM It would also be useful to do some further thinking on what lessons can be learned from the process and what will or must be different this time around For instance any calls for submissions by Parties are bound to generate far more proposals given that we BrC working on an agreement that will require commitments from all and given the demands concerns we have heard from Parties as to the content of the new agreement It is also interesting to note that negotiations did not technically start until issuance of the negotiating text although Parties were encouraged in their review of the framework compilation to narrow the range of proposals and concentrate on the major options in order to aid the development of a negotiating text Parties were also told at the stage ofthe Kyoto process that roughly correlates to where we are now While it would be premature at this stage to embark on a word-by-word analysis of text Parties may find it useful to exchange views on their preferred proposals on a section-by-section basis in order to identify both areas of convergence and options that can be put aside for future consideration FCCC AGBM 1997 2 at para 9 Best b 6 b 6 OoEs 2 U S Department of State Email kb 61 Office te'Pl plkt ' s _ _ ___ BB bX6 SBU This email ls UNCLASSIFIED 3