1. Would a COP15 bis be considered an ‘ordinary session’ or an ‘extraordinary session’?
2. Could a protocol be adopted at a COP15 bis? Within a COP and a COP bis scenario, is it possible to adopt COP decisions at the first session of the COP (ie Copenhagen) and then to adopt further COP decisions at the bis session?
3. If so, is there any specific language needed in the COP decision to suspend COP15? Would it be possible to adopt a framework protocol in Copenhagen, with the objective of tying in a certain level of agreement, and then to agree a mandate in Copenhagen to incorporate further detail into the framework at the COP bis, so that more content can be defined in as legally robust an instrument as possible?
4. We are told that COP decisions were taken at both COP6 and COP6 bis. Is this true and, if so, were the decisions procedural or substantive?
Decisions and adoption of a protocol at COP15 bis:
The suspension and resumption of Conferences of the Parties does not appear to have been envisaged either in the Framework Convention or the subsequent Procedural Rules generally applied by the Parties. However, few of the rules and practices that govern the climate change negotiation process are considered to be set in stone, but rather have evolved pragmatically from the combined experience of the Parties, influenced by the practices of the United Nations.
Apparently motivated by a political reluctance for COP 6 formally to be considered a failure, that session was suspended in 2000 and resumed in 2001 (this practice was also used in respect of INC 5, the deadline for negotiations on the Framework Convention, when the Parties failed to reach agreement and therefore suspended and resumed that session).
The resumption of COP 6 in 2001 has been treated by legal commentators as the continuation of an ordinary Conference of the Parties. It is therefore likely that, should COP 15 be suspended and resumed at a later date, it would also be treated as an ordinary session.
There seems to be no reason in principle why a protocol might not be adopted at a resumption or second part of COP 15. The adoption of decisions by the COP at its resumed sixth session (although the agreement reached there is generally considered to be political in nature with the subsequent Marrakesh Accords putting it on a legal footing) and the adoption of the Framework Convention at the resumed INC 5 (albeit that the latter was a different forum) would be precedent for this.
Equally, there is no principle which would preclude the Parties reaching agreement to an extent at a first session of COP 15 (for instance, in the form of a framework protocol), with further detailed agreement being reached at the resumed session. However, this scenario might be unlikely given that it would involve Parties making legal commitments (subject of course to the ratification and entry into force of any such protocol) while items remained outstanding for negotiation, and the approach taken in relation to COP 6 would seem more likely.
Decisions were taken by the COP at the first part of its sixth session. However, these were largely procedural in nature. Rather than reflect any progress the Parties had made in respect of the major substantive issues in that first session in any formal decision, that progress was instead reflected in an informal note by the COP President annexed to the decision to suspend COP 6 (Decision 1/CP.6). The President’s note was referred to as providing political guidance for the completion of the negotiation process. Given the practical and political challenges presented by reaching consensus on a new protocol, if COP 15 were to be suspended, it seems more likely that this approach would be followed.
Nature of extraordinary sessions
We have not had time to fully look into the nature of extraordinary COP sessions. The query assumes that a protocol could not be adopted at an extraordinary COP session. Obviously, given that there has never been an extraordinary session there is no precedent suggesting that the COP’s decision-making powers are limited in any way at such a session.
Moreover, we have not, in the limited time, come across any legal principle which would suggest the COP could not adopt a protocol at an extraordinary session. Perhaps this assumption merely reflects the practical reality that an extraordinary session called at comparatively short notice, potentially only with the support of a third of the parties and confined in its agenda to the items proposed in the request for such a session, would be unlikely to have sufficient scope or be approached with the requisite level of political will for a protocol to be adopted.
___________________________________________________
Resources
- United Nations Framework Convention on Climate Change (New York) 9 May 1992
- Rules of Procedure FCCC/CP/1996/2
- Yamin, F and Depledge, J (2004) The International Climate Change Regime: A Guide to Rules, Institutions and Procedures, Cambridge: CambridgeUniversity Press
- Sands, P (2003) Principles of International Environmental Law, Cambridge, CambridgeUniversity Press
- Bodansky, D “The United Nations Framework Climate Change Convention: A Commentary”, 18 Yale Journal of International Law 451 (1993)