Delegation of powers to the Presidency

Legal assistance paper

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Date produced: 24/05/2012

1. In reference to Rule 24 of the draft rules of procedure, is there such a thing as a “Presidency”?

2. Can the  COP President delegate her powers to a member of her “Presidency”?

Summary: The term “Presidency” does not appear in the draft rules of procedure and its use within the UNFCCC process is ambiguous. There are at least two common interpretations of “Presidency”. Firstly, Presidency is used to refer to the function of the person elected to the post of COP President. Secondly, Presidency is used to refer to the office of the President, responsible for the smooth running of the COP. It is this second interpretation that this advice is concerned with. In the context of the UNFCCC, the Presidency is usually the country that hosts the COP. This definition has evolved as a matter of subsequent practice of the Parties and is closely linked to Rule 3 of the draft rules of procedure.

It is arguable that the COP President can delegate her powers to a member of her Presidency. Rule 23(1) of the draft rules of procedure states that the President of the COP has complete control of the proceedings and therefore, arguably, can delegate her powers to whomever she wishes (i.e. this would include anyone in the Presidency). Any such delegation could be overturned by the ADP plenary. However, in this case, it is likely that the ADP plenary would need to act by consensus.

Advice:

1. The COP President and the Bureau

Rule 24 of the draft rules of procedure (which in the absence of being formally adopted have been, save for Rule 42, applied to all meetings of the COP, CMP and subsidiary bodies) states:

The President, if temporarily absent from a meeting or any part thereof, shall designate a Vice-President to act as President. The President so designated shall not at the same time exercise the rights of a representative of a Party.

The Vice-President referred to in Rule 24 is one of seven people elected at each COP to act as part of the COP Bureau. According to the UNFCCC website which provides background guidance on the functions of the Bureau, the Bureau is, traditionally, responsible for advising the President and taking decisions with regard to the overall management of the negotiations process. A member of the bureau would usually be the first choice for an interim Chair of the ADP.

During the opening plenary of the ADP, Parties agreed that the COP President should be the interim Chair of the ADP during the Bonn session while consultations continued on the formal election of the Chair. As the COP President was not present in Bonn (save for the first meeting of the ADP plenary) it was necessary for the COP President to appoint someone to act on her behalf. Certain Parties made it clear that they were averse to an interim Chair being from the same regional group as an ADP Chair nominee. In practice, this meant that no Bureau member representing GRULAC, WEOG, or Asia-Pacific regional group could stand in as interim Chair. The remaining regional groups represented on the Bureau included Africa (the absent COP President and the Chair of the SBSTA) and Eastern-Europe (the Chair of SBI and the COP Rapporteur). The COP President was therefore faced with the dilemma that no Bureau member was available who a) did not represent a regional group of one of the ADP Chair nominees and b) was not otherwise occupied as Chair of another subsidiary body.

Subsequently, the President delegated her powers to a member of her Presidency.

Is there such a thing as a “Presidency”?

The term “Presidency” does not appear in the draft rules of procedure and its use within the UNFCCC process is ambiguous. There are at least two common interpretations of “Presidency”: The Presidency as referring to the functions of the person elected as the COP President; and the Presidency as referring to the office of the COP President.

The latter definition is one that has evolved as a matter of subsequent practice of the Parties rather than because the Convention prescribes it and it is in this context we refer to Presidency in this note. The term has been used frequently to describe the country from which the President originates and implies a team offering broader administrative support to the President. This is usually (although not always ) the country that hosts the COP.

In her opening statement on the 28th November 2011, the COP President stated the following: “It is with great honour that I accept the responsibility to preside over COP17/CMP7 on behalf of my country… We [i.e. the South African presidency] have developed a warm chemistry with members of the Bureau as well as Chairs of the various bodies of the UNFCCC process, and this is something we will continue throughout our COP Presidency… But ultimately, it is Parties, through your respective delegations and negotiators, who are the life-blood of the UNFCCC process with whom as the COP Presidency we must work, and work very well, together” [emphasis added]

In her statement, the COP President suggests that she is supported, in her role as President and in her representation of the host State, by a broader team who will work with the Parties to reach an agreement. This implies that the role of her team goes beyond logistical support for arranging the COP Summit. The COP President speaks on behalf of that team and distinguishes them from the Bureau.

As alluded to above, the concept of the “Presidency” is closely linked to the host country of a COP. Rule 3 of the draft rules of procedure states that: The sessions of the Conference of the Parties shall take place at the seat of the secretariat, unless the Conference of the Parties decides otherwise or other appropriate arrangements are made by the secretariat in consultation with the Parties.

It can be argued, therefore, that the concept of the Presidency has arisen out of the subsequent practice of Rule 3 where the COP is held in a city which is not the seat of the secretariat (i.e. Bonn). In such a situation, the host country of the COP takes on various organisational functions which would otherwise be undertaken by the secretariat (in the same way as the secretariat assists with the organisational meetings of the subsidiary bodies which are held in Bonn) pursuant to Article 7(2)(a) of the Convention.

2. Delegation of powers

While Rule 24 explicitly states that the COP President, if temporarily absent, shall designate a Vice-President to act as President (i.e. a member of the Bureau who is not necessarily a member of the host State or presidency), it can be argued that, pursuant to Rule 23(1), the President is able to delegate her role to a member of the Presidency.

Rule 23(1) states that the President “shall have complete control of the proceedings”. As a result, it can be argued that delegating powers to another person (whether that person is part of the Presidency or otherwise) falls within the President’s ability to have “complete control of proceedings”.

In this connection, however, Rule 23(3) (which states that the President remains under the authority of the COP) is also relevant. Although Rule 23(3) explicitly refers to the COP, the fact that Rule 27(5) states that the draft rules of procedure “apply mutatis mutandis to the proceedings of the subsidiary bodies” (which would include the ADP), means that in the context of the ADP, the Chair (or interim Chair) remains under the authority of the ADP plenary. The ADP plenary could object to the delegation of power by the Chair, but any such objection would, in our view, require consensus in order to be sustained.

Conclusion: Therefore, although the rules of procedure do not explicitly provide for the delegation of Presidential powers to another member of the Presidency, it can be argued that the Parties have, by subsequent practice, established the concept of the Presidency. Furthermore, pursuant to Rule 23(1), it can be argued that the COP President has the power to delegate his or her powers to, at the very least, another member of the Presidency.