Legal assistance paper

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Date produced: 05/12/2012

What procedure could be used to create a COP18-bis (like COP6-bis)?   

Article 7.4 of the UNFCCC provides that an ordinary session of the COP shall be held once every year, unless otherwise decided by the parties. Deciding to hold a COP18bis is not the creation of a new ordinary session. But rather, it is the extension of an existing COP session. It is referred to as a ‘second part’. Using UNFCCC language, the ‘first part’ of a session is ‘suspended’, and later ‘resumed’ as the ‘second part’. While the UNFCCC does not explicitly provide for this, as the parties are able to decide a) when a COP shall be held, and b) on rules of procedure, it is within the power of the COP to decide to carry over or extend a COP.

This process was utilised at COP6, as follows.

COP6 was suspended and then resumed as COP6bis. At the conclusion of the first session of COP6, the COP decided in Decision 1/CP.6 to suspend the session and for the President to seek advice on the desirability of reopening the session in order to complete its work. At the second part of COP6 (COP6bis), the President stated that he had called for a formal resumption of the COP upon the recommendation of the Bureau. According to the report of proceedings at COP6, the President introduced a draft decision (which formed the basis of Decision 1/CP.6), “to prepare the ground for further work at a resumed sixth session.” There was reportedly a brief discussion of the document and some amendments made, and the decision was then adopted by the COP. From our review of the draft decision and the final decision, no amendments were made to the language regarding the suspension and possible resumption of the COP. The report of Proceedings states that the President proposed the draft decision which suspended the COP “in line with the views expressed by the representatives of many Parties, and also with the agreement of the Bureau.”

Based on this precedent, it therefore appears that suspending COP18 and reopening it at a future date as COP18bis would require three steps:

1. A proposal to this effect to be put forward in the COP:

  • Under the Draft Rules of Procedure, rule 23.1, the President has complete control over proceedings, subject to the other rules. Under Rule 23.2 the President may propose to suspend a meeting;
  • Rule 36 provides that proposals must usually be circulated in writing at least the day before they are to be discussed or put to the vote, but gives the President the right to permit discussion or consideration of motions which have not met this requirement. Therefore the proposal would need to be circulated the day before, or the President would have to allow consideration of it in any event;
  • Rule 38 provides that a motion to suspend a meeting will take precedence over any other motion. Thus, if a proposal to suspend the meeting is put forward, it would have to be dealt with before any other business of the COP.

2. The COP to make a decision to suspend the COP and to potentially resume it at a later date. As the UNFCCC does not provide otherwise, consensus would be required for this decision to be adopted:

  • If consensus could not be achieved, then the motion will be rejected. A motion which has been rejected normally cannot be reconsidered at the same session of the COP. However, it may be possible to reconsider the motion at a later stage of the meeting, if two-thirds of the parties agree (rule 40 of the Draft Rules of Procedure).

3. The resumption of the COP at a later date:

  • Under Rule 4 of the Draft Rules of Procedure, the COP usually decides on the dates and durations of its meetings. Given the time constraints involved at the present negotiations, it may not be possible to settle a date for when the COP will be resumed. The Rules do not appear to provide any procedure to be followed in this circumstance;
  • For COP6bis, the process to resume the COP appears to have been that a decision was made by the President of the COP, with the advice of the Bureau. It is likely that regional groups would have been consulted in making this discussion. A notification is likely to have been sent by the secretariat to the Parties informing them of the decision to resume COP6. However, such notification (if it exists) is not publicly available – notifications to the Parties on the UNFCCC website only go back as far as 2004.