1. Can the CMA adopt decisions if it chooses to suspend its session, or can it only adopt decisions when it closes?
2. Has this happened before?

Summary:

The CMA is able to adopt decisions and suspend the session.  The CMA is not limited to adopting decisions when the session closes.  There is precedent for this from COP 6.

Advice:

Question 1

By virtue of the Paris Agreement (Article 16(5)), the UNFCCC draft Rules of Procedure (FCCC/CP/1996/2) apply equally to the CMA.  The Rules do not provide express guidance about the power of the Parties to adopt decisions when proceedings are being suspended or adjourned.  Relevant Rules to the operation and extension of the CMA include the following (emphasis added in underline):

• Rule 16: Any item of the agenda of an ordinary session, consideration of which has not been completed at the session, shall be included automatically in the agenda of the next ordinary session, unless otherwise decided by the Conference of the Parties.

• Rule 23: The President may propose to the Conference of the Parties the closure of the list of speakers, a limitation on the time to be allowed to speakers and on the number of times each representative may speak on a question, the adjournment or the closure of the debate and the suspension or the adjournment of a meeting.

• Rule 31: the presence of 2/3 of the Parties is required for decision to be taken.

There is no Rule that precludes decisions being adopted when a body or conference of the parties is being suspended or adjourned.  In particular, there is no temporal limitation on the President’s exercise of powers.

Question 2

At COP 6 substantive decisions were adopted and the session was suspended.

By way of context, at COP 4 in 1998 the Parties agreed to create the Buenos Aires Plan of Action (BAPA), which was to finalise the rules and operational details of the Kyoto Protocol (KP).  The BAPA was to be finalised at COP 6 in 2000, but certain issues were not, resulting in COP 6 being suspended until COP 7 in July 2001 and the relevant draft decisions being forwarded to COP 7 for final determination.

In particular, Decision 1/CP.6 (25 November 2000) entitled “Decisions adopted by the Conference of the Parties at the first part of its sixth session”, among other things, decided to suspend the sixth session, while concurrently inviting parties to submit views on the President’s informal note dated 23 November 2000 by 15 January 2001 (and for the Secretariat to compile those views in a MISC document), requested the President to take advice on resuming a session in 2001 to complete the work of the texts and adopt decisions on all issues covered by the BAPA, and to make proposals for further development of those texts.

The relevant text of Decision 1/CP.6 reads as follows:

“Having made progress in considering all issues under the Buenos Aires Plan of Action, on the basis of the work of its Subsidiary Body for Scientific and Technological Advice and its Subsidiary Body for Implementation,

1. Takes note of the informal note by the President dated 23 November 2000 annexed to this decision as an element of political guidance to the completion of work on the negotiating texts forwarded to the Conference;
2. Invites Parties to submit views thereon by 15 January 2001, and requests the secretariat to compile these submissions in a miscellaneous document;
3. Decides to suspend its sixth session and requests its President to seek advice on the desirability of resuming that session in May/June 2001 in order to complete work on those texts and adopt a comprehensive and balanced package of decisions on all issues covered by the Buenos Aires Plan of Action;
4. Requests its President to make proposals for the further development and consideration of those texts at a resumed session and to seek the necessary advice beforehand in a transparent manner;
5. Urges all Parties to intensify political consultations among themselves and explore areas of common ground that would enable the successful conclusion of negotiations at a resumed session on all issues covered by the Buenos Aires Plan of Action.”

The first session of COP 6 also adopted a number of substantive decisions, such as Decision 3/CP.6 (25 November 2000) on the second compilation and synthesis of initial national communications from Parties not included in Annex I to the Convention (document FCCC/CP/2000/5/Add.2).

The above provides evidence of a Conference of the Parties making substantive decisions while also agreeing to suspend a session, which could apply equally to the CMA.