Creation of a UNFCCC negotiation bloc

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer-client relationship. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 21/01/2011

1. What does it mean to be a “group” or a “negotiating bloc” under the UNFCCC and the Kyoto Protocol? 

2. How does a “group” or “negotiating bloc” differ from a coalition, such as the Coalition of Rainforest States?

3. Does a “group” or “negotiating bloc” under the UNFCCC or the Kyoto Protocol have legal status under other international or regional agreements or in other intergovernmental fora?

4. What is the process for becoming a group under UNFCCC and the Kyoto Protocol and are there any membership criteria?

5. What are the rights and obligations of being a “group” under the Convention and Protocol bodies? 

1. Within the United Nations (UN) system, member states possess the right to participate in negotiations and vote on certain substantive and procedural issues. Intergovernmental organisations (IGOs) and other observer organisations may view and scrutinise negotiations, but they have no right to vote in international legal fora, and only limited rights to speak upon invitation. This advice will primarily focus on the rights and obligations of state parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol.

Negotiating groups are political and/or institutional alliances between state parties to the UNFCCC and Kyoto Protocol. They enable parties to pool their resources, share information, align their voting, speak with a common voice, and consolidate their political clout with the aim of having their views and interests incorporated or considered in negotiated texts. Within the UN system, parties are organized into five regional groups: African States, Asian States, Eastern European States, Latin American and the Caribbean States, and the Western European and Other States (the “Other States” include Australia, Canada, Iceland, New Zealand, Norway, Switzerland and the United States of America, but not Japan, which is in the Asian Group). With the exception of the African Group, which also serves as a negotiating coalition, the UN’s regional groups are used almost exclusively to nominate candidates to the Bureaux and the specialised UNFCCC and Kyoto Protocol bodies, but not for the promotion of substantive interests in negotiations.

Negotiating groups originate in various ways. Some groups stem from official UN groupings, such as the least developed countries (LDCs) and the small island developing states (SIDS), while other groups unite around specific issues, such as the Coalition for Rainforest Nations. Some groups are institutionalised, such as the European Union (EU), while others are informal ad hoc alliances, such as the Umbrella Group. Most negotiating coalitions are political alliances based on the common interests or cultural, economic, or geographic affinities of their member states. Negotiating groups vary considerably in their degree of cohesion, structure, function, and objectives, which are decided entirely by a group’s member states. There are no formal legal requirements for the establishment of a negotiating group. However, some groups such as the EU and the Organisation of Petroleum Exporting Countries (OPEC), choose to govern their internal workings through a constitution, statute, or formal agreement that is legally binding upon its members.

Several categories of observer organizations also attend sessions of the COP and its subsidiary bodies. These include representatives of bodies, such as the United Nations Environment Programme (UNEP), as well as its specialized agencies and related organizations, such as the Global Environment Facility (GEF) and the Intergovernmental Panel on Climate Change (IPCC). Observer organizations include intergovernmental organizations (IGOs), such as the International Energy Agency (IEA), along with non-governmental organizations (NGOs). Although the South Asian Association of Regional Cooperation (SAARC) will likely support Bhutan’s goal of having the plight of glacial dependent communities recognised under the climate change regime, representatives of the organisation may only attend negotiations as observers.

2. There is no formal distinction between the terms “group”, “negotiating bloc” or “coalition”, because the title of each association, its organisational structure, and its functions are decided entirely by its members. Each organisation varies considerably in its structure and function. With the exception of LDCs, SIDS, and the African Group, the UN does not play any role in classifying alliances or associations between states. There do, however, appear to be two broad types of associations within the context of the climate change regime.

Negotiating blocs and coalitions such as AOSIS, LDCs, the European Union, the African Group, ALBA, and the G77 have formal member lists and represent the unified negotiating position of its members on issues where a consensus exists amongst its members. Some of these coalitions have a constitution outlining its membership rules and its structure and function, others, such as AOSIS are based on a verbal understanding amongst its members. They usually have a formally elected chair, president, or designated spokesperson to speak on behalf of all members of that bloc. The position of the bloc will usually be determined through a formal, consensus-based, decision-making process. Members are only free to negotiate and speak for themselves to the extent that their positions do not conflict with that of the group.

In contrast, groups such as the Umbrella Group, the Cartagena Group, and EIG are more informal. Their membership is more relaxed and they provide a forum for information sharing and discussion, rather than formulating a detailed position in relation to the negotiations. Their members are at liberty to speak on their own behalf and advocate their own interests during negotiations.

3. The legal status of negotiating groups under other international agreements varies from group to group. As noted above, only some groups have legal status or are formally recognised under international agreements, while others are more informal. When referring to legal status, there is a distinction between legal personality, evidenced by a governing constitution and recognition under international or domestic law, and formal rights to participate in a negotiating forum as a group, which can be done without the group having legal personality. In many instances, groups will be exercising formal right to participate as a group, rather than having legal personality.

The EU, LDCs, SIDS, G77, OPEC and ALBA operate as negotiating blocs in many other intergovernmental fora because they did not originate within the UNFCCC process and the common interests of their members extend well beyond the issue of climate change. It is entirely up to the group itself as to whether it wishes to operate only under the UNFCCC process or in other international negotiations as well.

Moreover, a group or organisation is not limited to acting as a negotiating group. The Coalition for Rainforest Nations, for example, has a broad range of activities. It conducts capacity building workshops and participates in collaborative programs such as the REDD+ Partnership.

4. There is no formal procedure for the formation or admission of a negotiating group under the UNFCCC or Kyoto Protocol. Countries simply decide to form a negotiating bloc and then usually notify the COP Bureau, subsidiary bodies or the Secretariat of their actions. The various negotiating blocs typically meet daily during sessions of the COP and subsidiary bodies to share information, discuss strategies, and form common positions. With the exception of the LDCs and SIDs, negotiating groups are free to formulate their own membership criteria.

Formation of an Alliance of Developing Mountainous States (ADMS)

The founding members of the alliance of small developing mountainous states should establish membership criteria that will attract members with common interests and will enable a strong common ground and negotiation position to be developed within the group. Membership criteria should be based on the fundamental objective of the group, namely that the interests of developing glacial-dependent communities are reflected in outcomes of the UNFCCC and Kyoto Protocol negotiations.

There are no formal rules for the internal workings of a negotiating bloc, but the following practices seem to be widely used by existing groups:

(i) Members elect a chair or presidency to coordinate the work of the group and lead negotiations.

(ii) The chair or presidency receives some kind of administrative and financial support either from an internal secretariat, or from non-governmental organisations and other donors.

(iii) Negotiating positions are developed on the basis of consensus among members.

(iv) Spokespersons or coordinators are appointed on the basis of their interest or expertise, to take the lead in negotiating specific issues in subsidiary bodies and contact groups.

The following elements vary from group to group and should be considered in the formation of an alliance of small developing mountainous states:

(a) Whether the group will have strict membership criteria and a formal list of members;

(b) Whether the group will have a written constitution or formal agreement amongst its members, outlining its structure, operations and functions;

(c) Whether the group will form a clear position on each particular issue, such as in the EU, whether it will formulate broad positions such as the G77 and China, whether it will be an issue-specific group, such as the Coalition for Rainforest Nations, or whether it will be a more informal platform for discussion and information sharing, such as the Umbrella Group; and

(d) Whether the group will be advised by expert groups and/or working groups.

5. Negotiating groups do not possess any formal rights or obligations with respect to any of the thematic areas that are negotiated under the UNFCCC. A group’s position and negotiation strategy depend entirely on the agreement of its members. The thematic areas (adaptation, mitigation, finance, REDD, technology transfer and capacity building) are very broad, and most negotiating groups adopt positions on narrow issues within the broader themes. The following provides a few examples of the positions that groups adopt based on the common interests and consensus of their members.

(a) Adaptation

Given their vulnerability to the impacts of climate change, AOSIS and the LDCs are primarily concerned with adaptation. They have long called for support to implement adaptation activities on the ground, and the establishment of an international mechanism or protocol to address loss and damage arising from climate change. They also call for scaled-up, accessible finance for adaptation that is additional to levels of Official Development Assistance.

(b) Mitigation

The G77 and China focus heavily on mitigation, calling for developed countries to take responsibility for their historical emissions. However there is significant division between G77 member states. BASIC and OPEC countries strive for a balanced outcome that does not jeopardise their continued economic development, while AOSIS and LDCs who are the most vulnerable to climate change, want much more ambitious emission reduction targets, with a limit of 1.5°C increase in global mean temperatures.

(c) Finance

It is unlikely that LDCs and SIDs will be able to meet the financial costs of climate change adaptation. Therefore, AOSIS and the LDCs demand higher targets on both the mitigation and adaptation finance fronts. More specifically, issues of importance for these two negotiating groups include adequate financing of the LDC Fund and the Adaptation Fund.

(d) REDD

The Coalition for Rainforest Nations focuses almost exclusively on REDD issues. This narrow focus stems from the fact that the Coalition’s members want to preserve and conserve their rainforests, but at the same time, they depend on logging for much of their income. Within the UNFCCC and Kyoto Protocol negotiations, the Coalition for Rainforest Nations has successfully campaigned for the establishment of a system for compensating countries for reducing their rates of deforestation.

The Coalition for Rainforest Nations is now carrying out a capacity development initiative for REDD with the support of the GTZ (German Technical Cooperation Agency), the BMU (German Ministry of Environment), the FCPF (Forest Carbon Partnership Facility) of the World Bank, the GEF (Global Environmental Facility), the INPE (Brazilian Space Research Agency), the Indian Forest Service and GOFC-GOLD (Global Observation of Forest and Land Cover Dynamics). It hosts global workshops and training courses on REDD topics which are open to all possible REDD countries.

(e) Technology transfer and Capacity Building

Within negotiations, AOSIS, LDCs, and the African Group voice their opinion on the need for technical assistance for incorporating adaptation concerns into national development policies; expertise and funding for the preparation and implementation of National Adaptation Programmes of Action; capacity building for participation in REDD; and improved access to the Clean Development Mechanism (CDM) in order to overcome the financial barriers that prevent their access to renewable energy technologies. Their campaign for improved access to the CDM resulted in the decision at COP16 in 2010, to establish the CDM loan scheme to support the development of projects in countries with fewer than 10 registered CDM projects.

It would be entirely up to the members of the Alliance of Developing Mountainous States (ADMS) to determine its priority items within some or each of the thematic areas discussed above, and then seek to formulate clear positions on these items. In many instances, there may be consistency between the positions adopted by other groups such as the LDCs and SIDs and that advocated by the ADMS, in which case ADMS could speak and make submissions in support of those positions. However, if an objective of ADMS is to highlight the particular vulnerability of small developing mountainous states, then formulating its own positions on specific items within the UNFCCC and Kyoto Protocol negotiations will be important in achieving this objective. For example, in the adaptation context, negotiators often make explicit references to “particularly vulnerable countries, including SIDS, LDCs and African countries”. It may be possible to single out mountainous states as another category of vulnerable countries, especially in relation to adaptation where they may be equally or more vulnerable, and require special consideration or support, such as increased access to adaptation funding, technology transfer and capacity building.