1. Can informal consultations on a subsidiary body (SB) agenda item continue after the SB closing plenary?
2. Can the SB plenary put in a placeholder to note that informal consultations on this item are continuing and that the final outcome will be reported to the COP? If not, are there other procedural options?”
Parties have not been able to agree to informal consultations on an issue so far but the SBSTA Chair now looks likely to facilitate this, however, the consultation is unlikely to be completed owing to the fact that permission was granted one day before the SBSTA closing plenary. In some instances, depending on the nature of the consultations, (both in SBI and SBSTA) informal consultations have been allowed to continue after the relevant SB closing plenary. Examples are:
1. Election of Officers: At SBSTA 35 (Durban) and SBSTA 33 (Cancun), the Parties were unable to elect officers during the SBSTA meeting (because there were no nominations made). In both cases, SBSTA agreed that as an exception to Rule 27(6) of the draft Rules of Procedure, the COP should elect the SBSTA officers at the COP closing plenary (FCCC/SBSTA/2011/5, para 8; FCCC/SBSTA/2010/13, para 8). This necessarily would involve consultations on a SBSTA agenda item after the closure of SBSTA.
In the case of Cancun, a Vice-Chair of SBSTA was elected by the COP but re: the Rapporteur, no nominations were received so, in accordance with Rule 22(2), the then current Rapporteur stayed in office and SBSTA 34 was requested to conduct an election. In the case of Durban, no agreement was reached on the nomination by the end of the COP, so the then current Vice-Chair remained in office (with a successor to be elected at SBSTA 36).
2. Draft Decisions recommended by SB: From time to time, there are informal consultations on draft decisions recommended by an SB after the closure of the relevant SB which lead to the SB recommendation being substantially revised. A good example of this is Loss and Damage in the SBI at Doha. The Conclusions adopted and Draft Decision recommended are found in FCCC/SBI/2012/L.44. The conclusions are found in the report of the session (FCCC/SBI/2012/33, section X, paras 94-97) but the ultimate decision on L&D (Decision 3/CP.18) is substantially different from the draft decision recommended by SBI (in FCCC/SBI/2012/L.44, annex).
The amendments were made as a result of a number of very long informal consultations held after the formal closure of SBI but before the closing COP plenary. Arguably, these were COP consultations (as they related to a decision to be adopted), but they related to an SBI agenda item. See also Report of CO18 (FCCC/CP/2012/8, para 51 and 55, which states that in respect of a draft decision forwarded by SBSTA for further consideration by the COP, the President requested the SBSTA Chair to continue consultations on this matter – ultimately it led to the adoption of a draft decision).
3. SB conclusions: A quick review of recent SBSTA reports does not offer precedent for a situation where the SBSTA has been unable to adopt conclusions and requested the COP to adopt them on its behalf following informal consulations. Usually, where matters are yet to be resolved, they are forwarded to the next SBSTA session. This is because the conclusions represent the work of SBSTA (draft decisions are prepared by SBs but then forwarded to COP or CMP for adoption) and closure of an SB means that all relevant conclusions are adopted (whether such conclusions are final or whether they require further consideration at the next SB session). However, arguably, Parties are free to agree by consensus to some other procedure and forward SBSTA conclusions to the COP for adoption on behalf of SBSTA. The SBSTA would have to say that no conclusions could be adopted and rather than forwarding to the next SBSTA session, the draft conclusions were forwarded to the COP for further consideration and potential adoption. I’m not sure Parties would be able to agree this (by consensus) as presumably the reason for forwarding to the COP would be that there was no consensus on the draft conclusions within SBSTA itself so it is unclear why Parties would agree to forward in this manner.
However, there are instances where, having adopted conclusions of its own, SBSTA recommends additional draft conclusions for adoption by the COP (see FCCC/SBSTA/2012/L.25, para 10; FCCC/SBSTA/2012/L.25/Add.1; FCCC/SBSTA/2012/5, para 45; and FCCC/CP/2012/8, para 55). Although it is not clear from the Doha COP report whether consultations were held on these draft conclusions, there is no reason why such consultations could not occur – but it is important to note in this context that they were COP conclusions (which were additional to the SBSTA conclusions contained in FCCC/SBSTA/2012/5).