Is a COP bis an appropriate forum to establish a mandate?
Summary
The answer to the question is: ‘yes, it is a legally appropriate forum.’
Advice
Article 7(1) of the UNFCCC establishes the Conference of Parties (‘COP’). Article 7(2) then provides that:
‘The Conference of the Parties, as the supreme body of this Convention, shall keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make, within its mandate, the decisions necessary to promote the effective implementation of the Convention.’
A list of the functions assigned to the COP follows, the final one of which is that the COP shall: ‘Exercise such other functions as are required for the achievement of the objective of the Convention as well as all other functions assigned to it under the Convention.’ This was included as a ‘savings clause’, intended to insulate the actions of the COP from challenge.
The COP is given the power to adopt its own rules of procedure (Article 7(3)). Article 7 also distinguishes between ordinary (yearly) sessions, which must take place unless the COP decides otherwise, and other, extraordinary ones, which can be held if considered necessary by at least 1/3rd of Parties, (Article 7 (4) and (5)). The COP Rules of Procedure do little more than repeat the provisions in the UNFCCC on ordinary and extraordinary sessions of the COP, except that they provide that, when requested, an extraordinary session of the COP shall be held within 90 days of the request receiving the support of at least 1/3rd of the Parties (Rule 4).
Neither the UNFCCC nor the Rules of Procedure make reference to the suspension and resumption of the COP. However, international law, in particular as it relates to negotiations and conference procedures, is a largely permissive system. Under the UNFCCC the COP is given a wide mandate, and the rules and procedures that govern the climate change negotiations have evolved pragmatically and have the capacity to continue to do so. What is crucial is the agreement of the Parties to any particular development.
As already implied, a COP bis might be viewed in two fashions, as either:
(1) a continuation of the present session of the COP (which would be suspended and resumed), or
(2) as a new, extraordinary session.
It is clear from both the UNFCCC and the Rules of Procedure, that extraordinary sessions can be convened. However, political constraints might be considerable, given the low threshold required to call such a session. Problems might also arise as regards the conference’s mandate and as a result of the short notice on which an extraordinary session can be called.
As for a suspension and resumption of the COP, there is previous practice providing a precedent for such action. COP 6 was suspended in 2000 and resumed in 2001 without objection, and the resumed COP was treated as a continuation of the original, ordinary session. This thus seems the most likely outcome provided that agreement is reached that this is the appropriate course to follow.
At COP 6 the decisions taken at the first session were largely procedural. Progress made with regard to the major substantive issues was rather reflected in an informal note by the COP President annexed to the decision to suspend the session (Decision 1/CP.6), which provided political guidance for the completion of the negotiation process.
Accordingly, in the event that a COP bis is commenced, whether it is characterised as a continuation of an earlier COP session or a new extraordinary COP session, substantive and procedural legal rules and rights of the earlier session relating to adoption of mandates flow through to the COP bis. A COP bis is legally treated as an ordinary COP for the purposes of adopting a mandate, thus an appropriate legal forum. Whether agreement on a legal mandate at a COP bis is reached or not is a separate matter.