1. Is there any legal entitlement of civil society to participate in a session under the UNFCCC (in UN facilities) that consists solely of informal workshops, formal workshops, or informal consultations? 

2. Is there any legal entitlement of civil society to participate in an informal session hosted by a State Party?

3. Is there any other way, in law, in which civil society can ensure its participation in climate change negotiations that do not include any plenary sessions and contact groups (or other meetings normally open to observers)?

Summary:

The Conference of the Parties (“COP”), as the United Nations Framework Convention on Climate Change (the “UNFCCC” or “Convention”) supreme body, has an international legal obligation under Article 7(2) of the UNFCCC and Article 13(4) of the Kyoto Protocol to seek and utilize, where appropriate, the services and cooperation of, and information provided by competent non-governmental bodies. This general legal obligation limits the COP’s or its presiding officers’ discretion to exclude civil society organizations from observer status and/or from UNFCCC meetings regardless of the meeting’s character. Although there is a caveat to this being that the COP may exclude observers “where appropriate”. If the COP intends to exclude civil society from a UNFCCC meeting because it decides it is appropriate to do so, civil society could request it to explain how such step is in compliance with Article 7(2) of the UNFCCC and Article 13(4) of the Kyoto Protocol, i.e. why the participation of competent non-governmental bodies in a particular meeting is inappropriate. The fact that a UNFCCC meeting is physically hosted by a State Party does not alter the above conclusion.

Advice:

Introduction

The UNFCCC, its Kyoto Protocol, and the applicable draft rules of procedure (the “Basic Documents”) envisage participation of civil society in the Convention’s processes. In this context, ‘participation’ refers to attending, without the right to vote. In current international law, civil society and its organizations do not have an inherent right to participate in international treaty negotiations. Their right to participate must be given to them by the States participating in the treaty conference or by the States Parties to the respective treaty.

Basic framework for participation of civil society under the UNFCCC

The basic framework for participation of civil society under the UNFCCC is set forth in Article 7(6) of the UNFCCC. Pursuant to its second sentence: Any body or agency, whether national or international, governmental or non-governmental, which is qualified in matters covered by the Convention, and which has informed the secretariat of its wish to be represented at a session of the Conference of the Parties as an observer, may be admitted unless at least one third of the Parties present object.

Identical language appears in Article 13 (8) of the Kyoto Protocol and Rule 7(1) of the draft rules of procedure. This provision is further developed in Rule 7(2) of the draft rules of procedure, according to which: Such observers may, upon invitation of the President, participate without the right to vote in the proceedings of any session on matters of direct concern to the body or agency they represent, unless at least one third of the Parties present at the session object.

Under Rule 30 of the rules of procedure: (1) Meetings of the Conference of the Parties shall be held in public, unless the Conference of the Parties decides otherwise. (2) Meetings of the subsidiary bodies shall be held in private unless the Conference of the Parties decides otherwise.

Strict textual interpretation of these provisions reveals that the Basic Documents in principle envision a two-stage “clearing” process for civil society organizations: (i) an admission as an observer; and (ii) an invitation by the President of the COP to participate in the proceedings of a session.

Meetings to which civil society may have access

The Basic Documents provide for civil society participation in relation to “a session of the Conference of the Parties” (Article 7(6) of the UNFCCC, Article 13(8) of the Kyoto Protocol, and Rule 7(1) of the draft rules of procedure). A “session” is defined in Rule 2 of the draft rules of procedure as an ordinary or extraordinary session of the COP called pursuant to the standard summoning procedures of Article 7 of the UNFCCC, therefore this applies to a session of the supreme body of the Convention only. However, pursuant to Rule 27(1), the draft rules of procedure also apply to proceedings of the subsidiary bodies. As a result, the rules related to civil society participation apply to the subsidiary bodies as well as the COP.

However, the types of meetings in which civil society may participate have since been expanded by COP Decision 18/CP.4 on Attendance of intergovernmental and non-governmental organizations at contact groups of 2 November 1998, in which it was “decide[d] that the presiding officers of the Convention bodies may invite representatives of intergovernmental and non-governmental organizations to attend as observers any open-ended contact group established under the Convention process, unless at least one third of the Parties present at the session of the Convention body setting up that contact group object, and on the understanding that the presiding officers of such contact groups may determine at any time during their proceedings that they should be closed to intergovernmental and non-governmental organizations.” (emphasis added). Additionally, pursuant to decision 36/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP), the Kyoto Protocol supreme body, the admission to attend sessions of the COP also applies to sessions of the CMP.

In summary:

• a civil society organization’s right to participate in the UNFCCC (as an observer) is not automatic; it is subject to a general admission procedure and can be blocked if at least one third of the Parties object;
• the admitted civil society organizations acquire a right to participate (which in this context means the right to participate without a vote) in the proceedings only upon an invitation by the President of the COP (in practice, admitted non-governmental organizations are notified of the date and venue of sessions by the Secretariat); and
• the proceedings to which observers may be invited are only the formally convened COP or CMP sessions, proceedings of the subsidiary bodies and open-ended contact groups’ meetings.

Subsequent Practice

The States Parties to the UNFCCC have always been careful to assert their pivotal role in the UNFCCC processes. For example, in COP Decision 18/CP.4 on Attendance of intergovernmental and non-governmental organizations at contact groups “[t]he Conference of the Parties … Affirm[ed] that negotiations under the Convention are a matter for the Parties”. According to the “Guidelines for the participation of representatives of non-governmental organizations at meetings of the bodies of the United Nations Framework Convention on Climate Change” published by the Convention’s Secretariat for the benefit of the non-governmental organizations in March 2003 (the “Guidelines”): “Meetings of the Convention bodies are convened for negotiations between Parties to the Convention.” (p. 3) “The participation of non-governmental observers in the proceedings of meetings, and of open-ended contact groups, is governed by rules 7 and 30 of the draft rules of procedure of the Conference of the Parties being applied, contained in FCCC/CP/1996/2, and by decision 18/CP.4. In this context, meetings designated as CLOSED are not open to observers.” (p. 5) “[NGO] participation flourishes in an atmosphere of mutual trust which acknowledges respect for others and their opinions, and takes into account the nature of intergovernmental sessions.” (p. 3)

However, it could be argued that the limited scope of civil society participation has been expanded further by relevant subsequent practice within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties. The best evidence of this modification through subsequent practice is the Guidelines, which according to their own words “reflect the current practice regarding attendance of observers at sessions and meetings of the UNFCCC.” (p. 3) and which deal with observers’ “appropriate conduct during meetings of bodies of the United Nations Framework Convention on Climate Change at whatever premises are used for such meetings.” (p. 5) (emphasis added). The Guidelines do not make any distinction between formal and informal meetings. Accordingly, observers’ participation under the UNFCCC has arguably been expanded through practice to all meetings of all Convention bodies without general limitation.

The Guidelines have recognized the key role of civil society participation and this recognition forms the context in which the UNFCCC and the Kyoto Protocol must be interpreted: “Since the early days of the climate change Convention, non-governmental organizations (NGOs) have been actively involved, attending sessions and exchanging views with other participants, including delegates. It is recognized that this involvement allows vital experience, expertise, information and perspectives from civil society to be brought into the process to generate new insights and approaches. Furthermore, the access and participation of observers to the process promotes transparency in this increasingly complex universal problem.” (p. 3) Civil society could not fulfil its vital role, if it were excluded from the UNFCCC informal meetings.

Obligations of COP to ensure participation of civil society

The Basic Documents do stipulate binding (albeit qualified) obligations on the COP as the supreme body of the UNFCCC to include civil society in the UNFCCC processes:

Pursuant to Article 7(2) of the UNFCCC: The Conference of the Parties, as the supreme body of the Convention, shall keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make, within its mandate the decisions necessary to promote the effective implementation of the Convention. To this end, it shall: … (l) Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies. (emphasis added)

The Kyoto Protocol in its Article 13(4) similarly states: The Conference of the Parties serving as the meeting of the Parties to this Protocol shall keep under regular review the implementation of this Protocol and shall make, within its mandate, the decisions to promote its effective implementation. It shall perform the functions assigned to it by this Protocol and shall: … (l) Seek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies.

Consequently, the COP has an international legal obligation to seek and utilize, where appropriate, the services and cooperation of, and information provided by competent non-governmental bodies. This general legal obligation limits the COP’s and its presiding officers’ discretion to exclude civil society organizations from observer status and/or from UNFCCC meetings regardless of the meeting’s character. If the COP or its presiding officers intend to exclude civil society from a UNFCCC meeting, because it is appropriate to do so, they could be requested to explain, how such step is in compliance with Article 7(2) of the UNFCCC and Article 13(4) of the Kyoto Protocol, i.e. why the participation of competent non-governmental bodies in a particular meeting is inappropriate.

The fact that a UNFCCC meeting is physically hosted by a State Party does not alter this conclusion because the COP’s obligations under the UNFCCC apply regardless of the location of the meeting.

Principle 10 of the Rio Declaration on Environment and Development

The importance of participation of civil society in addressing environmental issues has been emphasized in many international environmental documents, including the 1992 Rio Declaration on Environment and Development. In its Principle 10, the Rio Declaration stipulated that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Even though the Rio Declaration is formally a non-binding document, it expresses a common position of the 172 governments, which participated in the Rio Summit, and states should not disregard the declared principles lightly. However, it can also only be viewed as an articulation of a general regime, which can be specified and modified by a specialized treaty framework such as the UNFCCC. Additionally, Principle 10 primarily focuses on public awareness, making information available, and access to judicial and administrative proceedings, rather than on seeking and utilizing the cooperation of civil society organizations in international treaty (re-) negotiations.