What is the legal basis for the COP decision making process? Have formal rules of procedure been adopted? If the rules are unclear and more than one option is available which option would be preferable for G77 and / or LDC groups?
1. Rules of Procedure
The Conference of the Parties, at its first session, was unable to adopt its rules of procedure and decided to apply the draft rules contained in document with the exception of draft rule 42. It was decided that the President of the Conference of the Parties would conduct informal consultations on the draft rules of procedure with a view to advancing consensus and report to the Conference of the Parties at its second session on the outcome of the consultations. Consultations did not achieve the desired result and that the differences among the Parties remained unresolved. The Conference of the Parties, at its second session was again unable to adopt the draft rules and the President ruled that the draft rules of procedure should continue to be applied as at its first session. The main outstanding issue continued to be the majorities required for the adoption of specific types of decisions on matters of substance i.e. rule 42.
The provisional agenda for COP9 is followed by a note from the Executive Secretary of the overview of the proposed organisation of the session. In relation to the adoption of the rules of procedure it states:
‘Background: At COP 8, the President informed the Conference that he intended to undertake further consultations with a view to resolving this matter. At COP 9, he will present an oral report.
Action: The COP may wish to decide to continue applying the draft rules of procedure and invite the President of COP 9 to undertake consultations to try to achieve adoption of the rules.’
3. Rules ‘adopted’ or ‘applied’ ?
We believe that the Rules of Procedure have not yet been adopted. However, despite no formal adoption there is much evidence to suggest that the Rules of Procedure (except Rule 42, discussed below) have been applied by all parties, although some aspects still under consultation. Clause 2 of the Rules of Procedure suggests as much:
2. As decided by the Conference of the Parties (COP) at the start of its first session, the draft rules of procedure are at present being applied by the COP and its subsidiary bodies, with the exception of draft rule 42: “Voting” (see FCCC/CP/1995/7, para. 10), which appears in bold type in the present document. The President of the Conference conducted consultations on the rules during the first session and, towards the end of the session, undertook to continue such consultations with a view to advancing consensus before the second session of the Conference (FCCC/CP/1995/7, para. 14).
4. What does ‘Consensus’ mean?
Consensus does not seem to have been defined anywhere within KP or Rules of Procedure, although it is mentioned in both the Rules of Procedure (Rule 42) and in KP (Article 20).
In the International Petroleum Industry’s Environmental Conservation Associations Guide to Climate Change Negotiations, the process is described as below. Although a special interest group, the guide seems to outline the process quite clearly:
‘As there is no agreed voting rule, all decisions must be adopted by consensus, which in practice means that there is no politically-viable objection to a decision. This is not quite the same as unanimity. Here the will of the Chair and his or her ability to reflect consensus—the lack of a politically viable objection—take precedence. For example, the Chair may decide to ignore a Party’s objection, or a Party may choose not to object formally to a decision, but to ask for its concerns to be taken note of in the report on the session.
The Convention may be amended by a three-fourths majority vote of the Parties present at a COP. Once an amendment has been adopted, it must be ratified by three-fourths of the Parties before it enters into force. No amendment to the Convention text has yet been adopted, but Annex I has been amended to reflect the split of Czechoslovakia into the Czech Republic and Slovakia.
In the absence of agreed rules, any protocols adopted under the UNFCCC must be adopted by consensus and define their own entry-into-force procedures. The Kyoto Protocol was adopted in this way at COP-3.’
5. Rule 42 Alternatives of Rules of Procedure – which is better?
Both alternatives outlined in the Rules of Procedure are reproduced below.
We have come to the view that in most circumstances Alternative A would be more beneficial to G77 countries and LDCs than Alternative B because Alternative A provides more opportunity for a small minority group to block key decisions in relation to financial arrangements relevant to less developed countries. However, this view depends on the nature of the decision in question (for example, whether it is a ‘financial’ decision).
This view has been reached as Alternative A would benefit a group of countries holding less than one third of the vote since Alternative A requires decisions related to certain financial matters set out in Par. 3 of Article 4 and Par.s 1,3, and 4 of Article 11 of the Convention to be made by consensus. Under Alternative B, decisions related to financial matters may be made by two thirds majority.
Therefore, a group of countries holding a small number of the applicable votes may have more opportunity to block a relevant decision under Alternative A than under Alternative B. However, Alternative A is less likely to result in a decision being adopted in these circumstances for the same reason.
[1. Alternative A
The Parties shall make every effort to reach agreement on all matters of substance by consensus. If all efforts to reach consensus have been exhausted and no agreement has been reached, the decision shall, as a last resort, be taken by a two-thirds majority vote of the Parties present and voting, except:
(a) as otherwise provided by the Convention, the financial rules referred to in Article 7, paragraph 2 (k) of the Convention or the present rules of procedure[.] [;]
[(b) for a decision to adopt a proposed protocol, which shall be taken by [consensus] [a three-fourths majority of the Parties present and voting][.] [;]
[(c) for decisions under paragraph 3 of Article 4 and paragraphs 1, 3 or 4 of Article 11 of the Convention, which shall be taken by consensus.]
1. Alternative B
Decisions on matters of substance shall be taken by consensus, except that decisions on financial matters shall be taken by a two-thirds majority vote.
Par. 3 of Article 4 of the Convention provides for a mechanism for the provision of financial resources, including for the transfer of technology, and allows for the creation of arrangements to determine its operation.
Par.s 1, 3 or 4 of Article 11 of the Convention require developed country parties to provide ‘new and additional financial resources’ to meet agreed full costs incurred by developing parties in meeting Article 12 Par. 1 of the convention (submission of emissions data and other information to the Secretariat).
6. Precedent – difficulties associated with consensus decision making
A precedent for overcoming the difficulties in achieving a decision by consensus occurred at COP 2 in which the president of the conference proposed to ‘take note’ of a Declaration in the final plenary meeting, aware that a small number of key States would object to its content. As a result, opponents could only file reservations, make qualifications or object to the Declaration but could not prevent its formal recognition by COP 2.
This is unlikely to be an appropriate solution in relation to any decision to adopt formal rules of procedure, but may be used in relation to other issues outstanding and requiring consensus at close of COP 15 / CMP 5.