|
On 29 November 2011 IETA published a Memorandum Regarding the Continuation of the Clean Development Mechanism prepared by Professor Michael Bothe and Alex Sarac of DLA Piper LLP. This Memorandum addressed the fundamental question of the status of the CDM in the absence of operating quantified emission limitation and reduction commitments of the Parties to the Kyoto Protocol (“KP”) in a second commitment period (“CP”).
The conclusion of this Memorandum is clear; the continuation of the CDM is not contingent on the adoption of 2nd commitment period QELROs.
 Download the full Document
The conclusion of this Memorandum is clear; the continuation of the CDM is not contingent on the adoption of 2nd commitment period QELROs. This conclusion is built on three persuasive elements:
First, the text of Article 12 the Kyoto Protocol, supports the on-going operation of the CDM independent of the adoption of new QELROs by the Parties to the KP or the UNFCCC, and as a corollary, the text does not support an unduly narrow reading of the purpose of the CDM and limitation of this mechanism, in sharp contrast to the JI mechanism and its associated wording in Article 6 of the KP. Specifically, the purposes of the CDM set out in Article 12 are addition to each other and not mutually exclusive.
Second, Article 31 of the Vienna Convention on the Law of Treaties supports a liberal and purposive – as opposed to unduly restrictive - interpretation of Article 12 and the legality of its continuation beyond and in the absence of any further QELROs.
Third, both pattern and practice and the rulings of the CDM EB support the legal continuation of the CDM independent of QELRO commitments. In the absence of this constructive and purposive interpretation of Article 12 supporting the independent operation of the CDM, many of the existing LOA decisions of host countries, registration crediting period decisions of the EB, and EB member appointments would be frustrated in complete antithesis to the express purpose of the CDM and its associated modalities, procedures, rules and guidelines.
In addition the Memorandum briefly considers the practical implications of the continuation of the CDM in the absence of QELROs, with a particular focus on the extant Institutions, self-funding and its legal obligation to continue its functions.
|
