1. Does the SBI Chair have the right to close SBI 38 without consensus from all Parties?
2. If SBI 38 is closed (without any agenda being adopted), will the provisional agenda for SBI 39 in Warsaw be based on
(i) the provisional SBI 38 agenda (from 17 April 2013);
(ii) the supplementary provisional agenda (from 29 May 2013);
(iii) recommendations of the SBI Chair in consultations with the secretariat, to create a new provisional agenda; or
(iv) some other basis (if other, please elaborate)?
The agenda issue is entering into previously uncharted UNFCCC territory. In the past where there has been disagreement about new agenda items the item has been rejected or held in abeyance while consultations took place about future inclusion of the item at the next session. This has not held up the adoption of the agenda itself, rather moved the contentious item into high level discussions. But so far, the proponents of the proposed new agenda item have rejected this option.
In relation to the specific questions:
1. Rule 23 of the draft Rules of Procedure allows the President (and the chairs of subsidiary bodies by virtue of Rule 27.1) to declare the opening and closing of a session. However, in the exercise of this function s/he remains under the authority of the parties (Rule 23 para.3). So if there is no consensus of the parties to close the meeting, Parties could raise a point of order regarding the closure of the meeting under Rule 34. The Chair would then be required to rule on the point. Should the Chair overrule a Party’s objection to the adjournment of the meeting, the Party objecting to closure could appeal against the Chair’s ruling. A decision on the appeal could be taken by vote. The more likely scenario, however, is that because the chair will close the meeting and (because the meeting is closed) not allow for any further debate.
2. If agenda items are not resolved, they carry over to the next meeting (Draft Rule 16). Consequently, the SBI provisional agenda of 17 April 2013 will carry forward with the supplementary SBI provisional agenda of 29 May 2013. On the basis of the Draft Rules, the SBI 39 agenda would be comprised of 1) items decided at a previous SBI meeting (Rule 10); 2) items proposed by Parties between SBI 38 and SBI 39, if any (Rule 10); and 3) items whose consideration has not been completed at a session (Rule 16). As a result the same debate that occurred at the opening of SBI in Bonn is likely to continue – unless a solution can be found in the meantime – at the next SBI session.
Any new agenda item would need to be proposed by a Party, rather than the SBI Chair. This may limit the ability of the Chair to refer an item in terms different to those already referred by Russia. The Chair can still include a summary of the discussions at this meeting in his report on the session. It remains open for new agenda items to be added to the provisional agenda for the next SB meeting. This would be done in accordance with the procedure in Rule 10. There are, however, indications that parties are considering ways in which the proposal for a new agenda item on legal and procedural issues might be transferred to the agenda of COP in Warsaw. The COP may be considered the more appropriate forum for discussing as it concerns the Rules of Procedure of the Convention. Such a move would also free up the SBI agenda.