In the Bonn ADP session (June 2015) Parties are working on the basis of the “Geneva text” but – in addition – have also created a working document to capture the ongoing discussions (see http://unfccc.int/meetings/bonn_jun_2015/session/8857.php). As a result, there will be two ADP documents – the Geneva text and the working document – at the end of the session in Bonn. What would be the legal standing and relevance these two documents and what is their relationship to one another?
As a matter of law, no party is legally bound by any position it advances or approves in negotiations until that position is agreed in a final agreement to which the party has agreed. In that sense, neither the Geneva negotiating text nor any “working document” that may come out of these meetings has legal status. However, these documents are important as an understanding among negotiators on how they intend to proceed in negotiations.
Based on the Scenario Note of May 2015, as well as the “Further Clarification” issued by the Co-Chairs, the Geneva negotiating text, as issued in March, is to remain on the table through to Paris, without amendment (e.g. with all its multiple overlaps and points of difference intact and as stated in that text).
However, a second “working document” is being created, with a view to “streamlining” the Geneva text. By preserving the status of the Geneva negotiating text unaltered, while the process of streamlining that Geneva negotiating takes place in the “working document”, the parties in effect enable each party to preserve its position as reflected in the Geneva negotiating text, while still allowing streamlining to proceed in the working document.
The Co-chairs are probably hoping to expedite the “streamlining” by proceeding in this way. Delegations will probably be more willing to make progress in the working document if they know that they can revert to their respective full positions in Paris in the form of the Geneva negotiating text if, upon review, they come to realize that what they had thought to be acceptable streamlining was not. This can be particularly helpful for smaller delegations who may not have the resources to fully evaluate simultaneously numerous proposed changes in a highly complex set of documents and who would fear that they would be bullied if they had “agreed” to change the Geneva negotiating text itself.
Realistically, there will still be pressure not to backtrack on “progress” made in the working document, but no one will be able to say that the working document prevails in any legal sense over the Geneva negotiating text – unless, of course, the parties decide to adopt the working document in Paris as the final outcome.