Additional SBSTA agenda item on water

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 02/02/2011

1. What is the legal status of the call for an agenda item on water, as raised in the closing plenary of SBSTA in the Cancun session? Is the Chair obliged to take note of it? What are the procedures in terms of the call being acknowledged officially? If the Chair does not acknowledge the call, is there any way of addressing this through the Secretariat?

2. On a more general level, what is the best way of securing an agenda item under the SBSTA? When and where can such requests be made and how should they be initiated?

Summary: The call for an agenda item on water was not included in the session’s report as the sessions’ conclusions had already been adopted when the issue was raised. As such, it will gain no formal recognition in the process. The SBSTA Chair is not obliged to take note of it in the formal report of the SBSTA session (which has not yet been issued) but could note the issue at his discretion. However, the Parties that raised this issue can attempt to place this on the SBSTA provisional agenda for consideration at the next SBSTA session (likely to be June 2011) in accordance with the draft rules of procedure. Although there is no requirement for the call for an SBSTA agenda item on water to be officially acknowledged, a Party cannot be prevented from attempting to place an agenda item on water on to the SBSTA agenda. It would be up to the rest of the Parties to agree, reject or modify the agenda item, or in the case of irreconcilable disagreement, for the item to be held in abeyance.

1. During the closing plenary for SBSTA on Saturday 4 December 2010, and after the adoption of conclusions, 6 state Parties to the Convention (Ecuador, Syria, Sudan, Chile, Sierra Leone and El Salvador) drew attention to the linkages between climate change impacts and water. In particular, Ecuador, supported by the other 5 states, called for a process under the Convention to address water-related matters, including a SBSTA programme of work on water.

The US expressed concern with the proliferation of agenda items and new work programmes and proposed informal discussions to identify what interests were not being considered under the Nairobi Work Programme. SBSTA Chair Konaté noted that since the report had already been adopted, the issue of water could not be included in the session’s report.

Since the call for an agenda item on water was not included in the session’s report, it will gain no formal recognition in the process. The SBSTA Chair is not obliged to take note of it in the formal report of the SBSTA session (which has not yet been issued) but could note the issue at his discretion.

There are no ways in which the issue can be acknowledged officially (other than attempting to place it on the agenda for the next SBSTA session, see below). Additionally, there are no ways of addressing this through the Secretariat, whose role in this context is one of objective support rather than ensuring active consideration of particular issues.

2. Even though the call for an agenda item in SBSTA on water was not officially acknowledged, the Parties that raised this issue can attempt to place this on the SBSTA agenda for consideration at the next SBSTA session (likely to be June 2011).

The rules for placing items on agendas is the same for the COP, the CMP and the two subsidiary bodies (SBs).

Pursuant to Rules 9 and 11 of the draft rules of procedure (which have been consistently applied, but not adopted, save for the Rule 42 on voting procedures) (“RoP”), a provisional agenda for each COP/CMP and SB session is drafted by the Secretariat, in agreement with the COP President, and is circulated to Parties at least 6 weeks before the relevant session in all six UN languages.

The Secretariat has limited leeway in drawing up the provisional agenda, and each item must be justified according to the permissible categories specified in the RoP. These comprise:
1. Items arising from the Convention (such as reviews of national communications);
2. Items that a previous session decided to include on the provisional agenda;
3. Any item on the agenda of a previous session whose consideration was not completed at that session;
4. Items proposed by a Party and received by the Secretariat before the provisional agenda is circulated; and
5. Budgetary and administrative implications of matters arising from the substantive agenda.

Given that the call for a water agenda item was not officially acknowledged in Cancun and it was not formally placed on the agenda for that session or the next session, it will not automatically be placed on the provisional agenda for the next SBSTA session. It would not qualify for the provisional agenda under the first or last categories listed above either.

However, as set out in the 4th option above, the Parties (or at least one of them) could propose an agenda item for water in SBSTA and send it to the Secretariat before the provisional agenda is circulated (i.e. if the next SBSTA session is scheduled to commence on 1 June 2011, the provisional agenda would be circulated on or before 20 April 2011 and the proposal for an agenda item should be sent to the Secretariat well before then, preferably by the beginning of April).

All items proposed by Parties will be placed on the provisional agenda. However, this does not guarantee that the item will be agreed and discussed. In the opening plenary of the next SBSTA session, the Parties will decide whether or not to adopt the provisional agenda. Adoption is done by consensus (i.e. with no Party objecting).

Parties can, and often do, request additions, deletions or changes in the wording of the items on the provisional agenda. In effect, this means that not all items on the provisional agenda make it onto the final adopted agenda.

The adoption of a final agenda is nearly always preceded by a heated discussion between the Parties since refusing to allow an item on the agenda is the best way of blocking any future discussion of an unwelcome issue, removing the need to try and block the adoption of a decision in the future.

However, a Party can insist that its proposed item remains on the provisional agenda from session to session even if it never makes it onto the final agenda. Where a item on the provisional agenda is controversial, one strategy that has been used in recent COPs is to place the item in ‘abeyance’, meaning they are neither discussed at the session, nor struck of the agenda, and are then carried over to the provisional agenda for the next session.

Given the US’s concern in Cancun about the proliferation of agenda items under SBSTA, even if an interested Party proposed an item for the provisional agenda (which the Secretariat then subsequently included on it), there is likely to be considerable debate over whether the item should be accepted. It would then be open to the SBSTA Chair to try and resolve the impasse informally, or to declare the item be held ‘in abeyance’.