1. Are there any rules of procedure for Contact Groups under the UNFCCC, both in terms of how they are established and how they should operate? Do the Draft Rules of Procedure (RoP) of the UNFCCC apply mutatis mutandis to Contact Groups? In particular, does the Contact Group need to discuss all the proposals that are on the relevant agenda item of the COP/CMP? Also, does Rule 43 of the RoP apply to Contact Groups (ie proposals must be voted on in their order of submission)? Alternatively, are there no particular rules or any informal rules in operation?
2. How can a proposal that was not submitted six months before the COP/CMP be discussed and adopted? Can a proposal that was submitted in time be amended to reflect new text? How far can such a proposal be amended before it is deemed not to be an amendment but a new proposal (under Rules 44-46 of the RoP)?
3. Given that the RoP have not formally been adopted, can a Party challenge the President of the COP/CMP for relying on them? In particular, if the President relies on a majority vote under Rule 34 of the RoP (on an appeal of a ruling on a point of order) can a Party challenge this?
Question 1 – Contact Groups:
A Contact Group is an informal working group. By its nature, an informal group has fewer procedural rules than plenary sessions. Usually, an informal group is called a Contact Group when it is convened by one of the Subsidiary Bodies (SBTA or SBI). There are informal practices (soft rules) that have emerged during the UNFCCC process. Some of these Rules are found in Decisions of COP/CMP (eg the 1998 Buenos Aires COP decision on permitting NGOs to attend unless one third of Parties at the COP/CMP that establishes the Contact Group objects). However, there is no single clear source of rules about Contact groups (although we have not been able to ascertain whether the Secretariat has a comprehensive or informal rule set). See also glossary reference at annex to this note.
Procedure to establish a Contact Group:
Contact Groups are usually established by Decision of the COP/CMP.
Example 1, CMP 2 in Nairobi 15 November 2006 decided under agenda item 5 in relation to clean development mechanism:
The President said that, in order to acknowledge the work accomplished and to guide further work, a decision would need to be adopted by the COP/MOP at its second session. On his proposal, the COP/MOP decided to establish a contact group on this agenda item, co-chaired by Ms. Christiana Figueres Olsen (Costa Rica) and Mr. Georg Børsting (Norway), to conclude discussion on the matter before the beginning of the high-level segment on 15 November
Example 2, CMP 3 in Poznan December 2008 decided:
“The CMP will be invited to establish a contact group to consider this item and to recommend a draft decision for adoption by the CMP at its fourth session.”
Contact Groups may also be convened directly by the subsidiary bodies. The Subsidiary Body for Implementation regularly reviews procedures for the effective conduct of meetings. But as noted above, no clear and comprehensive set of rules for contact groups appears to be available.
Application of Rules of Procedure:
Informal groups are supposed to be informal. They are established under the umbrella of the Rules of Procedure, but as long as they do not contradict those rules, there is no in principle difficulty with them organising their meetings flexibly. Thus we see no reason why a Contact Group would have to consider all the items that are on the agenda of the COP/CMP. Indeed, their remit is often to consider only a narrow part of that agenda.
Voting in Contact Groups:
Rule 47 refers to voting in COP (and therefore by implication CMP). “If 2 or more amendments are moved to a proposal, the COP shall first vote on the amendment…” However, Contact Groups are informal and so do not generally make binding decisions that call for a vote. They are in general advisory. So rule 47 would not apply.
Mandate of Contact Groups:
The Contact Groups mandate derives from the COP/CMP, and so at the point the Contact Group is established, rules for it may be adopted. For example, at COP 13 in Bali, December 2007, the LCA was established as follows:
On a further proposal by the President, the COP established a contact group to determine the next steps in enhancing long-term cooperative action to address climate change. The President clarified that the group would have a limited mandate. It would not be asked to conclude on the issue, but would instead be asked to prepare options for consideration by ministers. He gave the contact group the task of identifying and narrowing down the options for the issues that such a process would need to consider, the potential modalities of working, taking into account other relevant processes under way under the Convention, and the time frame for completing the process. He suggested that the group focus on the form of the process and the scope of the substantive issues that the process should address.
The lack of clarity reflected in the legal analysis below means that there is a lot of room for manoeuvre. Whether or not a particular proposal is discussed and adopted is ultimately a highly political question. Practically speaking, the Chair can introduce proposals/amendments whenever he or she wishes to do so. However, the 6 month rule is often cited by states seeking to block proposals they do not support.
Article 17(2) of UNFCCC states that “the text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months before such a session”.
Rule 37 of the UNFCCC Rules of Procedure states that the “text of any proposed amendment, annex or protocol to the Convention and of any proposed amendment to an annex, shall be communicated to the Parties by the secretariat at least six months before the session at which it is proposed for adoption”.
Lavanya Rajamani from the Centre for Policy Research, Climate Initiative, comments on page 8 of her paper entitled Addressing the “Post-Kyoto” Stress Disorder Reflections on the Emerging Legal Architecture of the Climate Regime” (Working Paper 2009/2 (September):
“What form should the text take? The relevant treaty provisions do not provide any guidance on the nature of the text that is required to be communicated six months in advance of Copenhagen. Does the text have to be bracket-free agreed text, draft negotiating text, substantially agreed text, or a compilation of Parties’ proposals? Are there any minimum requirements in terms of structure and coherence in the proposed text? Or is it sufficient merely that it be labelled a Protocol? If Parties are free to submit and propose fully-drafted alternative Protocols or competing amendments for adoption, as appears to be the case, the text referred to must mean draft text, subject to subsequent negotiation.However, if the six-month rule is intended to give Parties time for reflection on the proposed protocol, an unstructured much-bracketed, many-optioned text may not serve the purpose. It is worth noting that for Kyoto the AGBM provided the Chair with a mandate to produce a draft. The draft contained many brackets but it had a broadly coherent structure which is reflected in the Kyoto Protocol. And, as highlighted above, the Chair had requested Parties to ensure that no substantively new proposals were introduced after the negotiating text was communicated. In essence states will need to consider the tabled text as a reasonable basis for negotiation. The text that AOSIS had tabled as a draft Protocol before Kyoto was not considered by the UN Office of the Legal Counsel, on being requested for an opinion, as a sufficient basis for negotiation.”.
She adds on pg. 10: “It is worth noting in this context that the notice, if Kyoto practice is of persuasive value, is for the substantive ideas in the proposal – of the conceptual place holders – not of the fact that a treaty will be presented for adoption. The Kyoto Chair had indicated at the time that the Kyoto negotiating text was produced that “proposals submitted after the production of the negotiating text should be clearly derived from concepts already included within it and should not contain substantially new elements.”
In practice no, a Party cannot challenge the COP/CMP for relying on the RoP, except for the disputed rule 42.
Although the RoP has not been formally adopted, the COP/CMP can govern its own procedure, and agrees to apply the RoP. See eg Bali meeting 2007, at which “On the proposal of the President, the COP decided that, in the meantime [ie pending agreement on voting rule 42], as at previous sessions, the draft rules of procedure… should continue to be applied, with the exception of draft rule 42.”
The draft status of the Rules is still relevant to rule matters of substance. But rule 34 is about process, not substance, so it would be difficult for a Party to challenge. The subject of the rules remains controversial, and there are periodic attempts to resolve it.