Decision making agenda item

Legal assistance paper

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Date produced: 04/11/2013

Can you provide a legal analysis of Russia’s letter of 28.10.2013 to the secretariat on decision making process, and give an indication of what legal implications it might have for Warsaw?

The letter submitted by the Russian delegation provides additional information in relation to the inclusion of sub-item 17(d): “Decision-making in the UNFCCC process” on the provisional agenda of COP19. It is essentially an opportunity for Russia to re-emphasize its concerns on procedural rules for decision-making under the UNFCCC, including in the context of the 2015 agreement, and gives an indication of Russia’s position on this issue. The only concrete request made in the letter is for the UN Office of Legal Affairs to provide a legal opinion on the meaning of consensus.

The proposed new sub-item on the COP19 agenda does not necessarily mean that a similar item proposed on the SBI agenda for the Bonn session in June is no longer an issue. However, there is an expectation that Russia and others will agree to treatment of decision-making issues under the COP and not the SBI. This means that the provisional agenda for SBI 39 is freed up for adoption (subject to any other stumbling blocks clearly) and will allow the SBI to make progress on substantive matters.

A repeat of the Bonn scenario, with the COP stalling and unable to adopt its agenda, is also possible in theory although it is our understanding that Parties are working to avoid this. It should be noted, however, that the COP agenda includes a number of important finance issues that do not appear on any of the other Warsaw agendas, e.g. a report from the work programme on long-term finance. Therefore, any problems associated with agreeing the COP agenda would hold up work on these issues.