Extending negotiations on legal form

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 06/12/2010

How can the negotiations for the legal form of the post-2012 agreement (agenda item “consideration of proposals by Parties under Article 17 of the Convention”) be extended in a continuous formal process after Cancun?

Summary:

Negotiations on legal form could be extended in a continuous formal process after Cancun in a number of ways. We discuss the key approaches which may be:

(a) expanding the mandate of the AWG-LCA;

(b) establishing a new ad-hoc working group; or

(c) establishing a new specialised or constituted body (i.e. expert group).

Regardless of which of these approaches is taken (or any other alternative approach agreed by the Parties), the key factor will be that the relevant COP decision should refer to the negotiations proceeding on the basis of the current negotiations in the contact group.

Advice:

There are many ways that negotiations on legal form could be extended in a continuous formal process after Cancun.

The key approaches the Parties may take are:

(a) expanding the mandate of the AWG-LCA;

(b) establishing a new ad-hoc working group; or

(c) establishing a new specialised or constituted body (i.e. expert group).

Regardless of which of these approaches is taken (or any other alternative approach agreed by the Parties), the key factor will be that the relevant COP decision should refer to the negotiations proceeding on the basis of the current negotiations in the contact group.

We set out below a description of the various alternative approaches.

(A) Expanding the mandate of the AWG-LCA

Decision 1/CP.13 establishing the Bali Action Plan and the Ad Hoc Working Group on Long-Term Cooperative Action (“AWG-LCA”) under the United Nations Framework Convention on Climate Change (the “Convention”) did not address the legal form required to implement the outcomes of that Working Group.

The Parties could expand the mandate of the AWG-LCA by further COP decision to make consideration of legal form part of the ongoing mandate of that working group.

(B) Establishing a new working group

Previously, the Parties have used working groups under the Convention to achieve a continuous formal process in relation to negotiations on a particular issue.

An example is the open-ended working group on technical and legal experts to study all issues relating to the establishment of a multilateral consultative process and its design established under Decision 20/CP.1.

One option for the Parties, therefore, is to establish a similar open-ended ad-hoc working group to continue the process of identifying the most appropriate means for implementing the outcomes of the AWG-LCA.

(C) Establishing a new specialised body/expert group

As an alternative to working groups, various expert groups have also been established as ‘specialised bodies’ or ‘constituted groups’. Whilst these appear to fall under the category of ‘committees and working groups’ according to the classifications set out in the draft Rules of Procedure, they are considered to be distinct from other working groups due to the technical matters that they are mandated to consider and their limited membership (corresponding to the execution of the expert tasks entrusted to them). Therefore, the mandate and membership of the expert groups have been highly specific in the past and created on an ad hoc and temporary basis.

The existing expert groups are:

(a) Consultative Group of Experts on National Communications from Non-Annex I Parties (CGE);

(b) the Expert Group on Technology Transfer (EGTT); and

(c) the Least Developed Countries Expert Group (LEG).

These expert groups are responsible to one of the two permanent subsidiary bodies under the Convention (i.e., the SBSTA and the SBI) and report any conclusions/recommendations to that body. However, the terms of reference and eventual continuation of the group are subject to review by the COP .

Another alternative for the Parties, therefore, is to establish a new expert group to look at the issue of legal form based on the precedents of the CGE, EGTT and LEG.

There are also informal methods of continuing discussion about legal form. The COP could request the President to conduct open-ended informal consultations to examine legal elements of a final agreed outcome. While this achieves the objectives of a continuous discussion about legal form, its informal nature means there is no guarantee that observers are eligible to participate

It should be noted that where Parties want discussion on legal form to continue at the next COP session (rather than be a continuous process in between COPs), the Parties can put the topic on to the provisional agenda for the next COP session. There are a number of permissible categories to do so, of which the most relevant are:

(a) mandating the COP to consider a particular issue at a future date (as set out in Rule 10(b) of the draft Rules of Procedure ); and

(b) adding items whose consideration was not completed at a previous session to the agenda of a subsequent session (as set out in Rule 16 of the draft Rules of Procedure ).