Introduction of new issues into draft protocol text

Legal assistance paper

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Date produced: 08/06/2015

Can substantive legal issues, concepts and mechanisms not addressed in the Geneva text be subsequently introduced during ADP meetings in Bonn or even Paris?

Advice:

The central legal issue relates to the ‘six month rule’ laid down in Article 17 of the Convention which provides so far as material that:

“1. The Conference of the Parties may, at any ordinary session, adopt protocols to the Convention.

2. The text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months before such a session.” (emphasis added)

A similar ‘six month rule’ applies to proposed amendments to the Convention and to the Annexes to the Convention under Articles 15 and 16 of the UNFCCC respectively.

If text relating to substantive issues, concepts and mechanisms not explicitly addressed in the Geneva text is introduced during ADP meetings or at the Paris meeting, with a view to its inclusion in a new Protocol to the UNFCCC, an opposing Party may seek to argue that the inclusion of such text would contravene Article 17 UNFCCC. It could then be argued that such a text could not be adopted by the COP (this is likely to be raised as a point of order during deliberations, if not earlier).

A number of points can be made in this regard. First, some commentators have taken the view that, in the context of the breadth of the Geneva text circulated by agreement of the Parties and the range of options contained within it, the six month rule in Article 17 operates more as a general notice requirement that a treaty will be put forward for adoption at Paris, rather than as a specific notice requirement that all the substantive aspects of such a treaty be circulated 6 months in advance:

“In this context, it appears the six-month rule will provide Parties with notice that a treaty will be proposed for adoption rather than notice of the substantive ideas in it.”[1]

Second, even if a stricter interpretation is taken of Article 17 UNFCCC, such that the six month rule applies not only to the fact that it is proposed to adopt a protocol (or other instrument) but also that the broad outlines of the content should be evident, that does not necessarily greatly restrict the Parties’ room for manoeuvre to put forward issues which can be said to follow on, or derive from, elements in the existing text. Such an interpretation would still give Parties sufficient time to reflect and consider their positions and prepare a negotiating strategy but would also allow some flexibility to Parties in seeking to include further elements that will secure agreement on issues outlined in the draft text. In accordance with the principle of effectiveness under international law, it can be argued that Article 17 should not be interpreted so as to bar the possibility of including elements in a text that stem directly from the draft text circulated within the six month rule. Parties must be permitted some leeway in seeking to negotiate in good faith so as to secure an agreement which fulfils the objectives of the UNFCCC.

Third, in practical terms given the breadth of scope of the Geneva text, it ought to be possible to link any proposal to current text, to the extent that it may be said to follow on from the ideas in the existing text. Further advice could be given on any specific issue in this regard with reference to the Geneva negotiating text.

In conclusion, in the light of Article 17 (and Rule 37 of the Draft Rules of Procedure which makes similar provision) it will be advisable to present new concepts or issues as relating, so far as possible, to elements in the Geneva text (even if consequential upon, derived from or implied by those elements) so that Parties are less able to invoke legal arguments for excluding such text under a narrow interpretation of Article 17 UNFCCC. The principle of effectiveness applies to the interpretation of treaty provisions, including Article 17 UNFCCC, with the result that it can be argued that, where proposed text has wide support, a narrow formalistic approach to Article 17 should not be taken so as to block a potential agreement. The rationale of that provision can be argued to be to ensure that Parties have had sufficient time to consider all the relevant elements of a potential agreement, thus furthering the prospects of success. If however a later proposal presents an opportunity for obtaining broad agreement, it would appear to be contrary to that rationale to interpret that provision so as to bar the text being tabled or included in a proposed text. The further removed from any element in the current text the new issue appears to be, the greater the likelihood that an Article 17 argument will be raised however. It will therefore be preferable to present the new issue as intertwined with existing proposals to the greatest extent possible.

As a reserve position and in circumstances where an issue is widely considered to be completely outside the scope of the Geneva text, it may be worth exploring ways in which it could be developed and elaborated under the auspices of a new agreement at a later stage- for example through an enabling provision, as the link may therefore be easier to demonstrate in general terms. It would be important to seek to make a conceptual link of some kind between the new issue and an element of the Geneva text if possible so as to narrow the scope for an Article 17 challenge.

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[1] Rajamani, L., 2015. Negotiating the 2015 Climate Agreement: Issues relating to Legal Form and Nature. Cape Town. MAPS see page 3.