1. What are the legal implications of the closure of SBI without adopting its agenda for issues, such as loss and damage, that have not been progressed in Bonn?
2. What are the possible options for unlocking the stalemate in Warsaw?
1. Legal implications for issues that have not been progressed in Bonn
Rule 16 of the Draft Rules of Procedure for the COP and its SBs reads as follows:
‘Any item of the agenda of an ordinary session, consideration of which has not been completed at the session, shall be included automatically in the agenda of the next ordinary session, unless otherwise decided by the Conference of the Parties.’
Based on this rule, the (long-standing) items on the SBI agenda, which were not considered due to disagreement over the agenda, will automatically be included in the SBI 39 agenda for Warsaw. In the case of loss and damage, for example, where there was a specific mandate for SBI 38, because that mandate could not be completed during the session, it should be forwarded to SBI 39 as part of the overarching issue on loss and damage. This should hold true for other SBI agenda items. It is my understanding that the disputed SBI 38 agenda item 19 will also be forwarded to SBI 39.
Please note that Rule 13 of the Draft Rules of Procedure allows the COP to add, delete, defer or amend items on the agenda during its adoption. Because these rules apply to the SBs, the same applies for the SBI, and only items considered to be urgent and important may be added to the agenda. Therefore, any item brought forward from the SBI 38 agenda to SBI 39 could be subject to deletion, deferment or amendment by the SBI. And the disputed agenda item 19 would still be open for consideration as to whether it is urgent and important.
2. Possible options for unlocking the stalemate in Warsaw
The disputed SBI 38 agenda item should remain on the SBI 39 agenda. Parties are also free to propose additional agenda items for SBI 39, so it is conceivable that a Party might propose an agenda item that nullifies (or possibly subsumes) the disputed SBI 38 agenda item 19. How this might be done would require further consideration. However, given the divisive nature of the agenda item proposed by the Russians, Ukrainians and Belorussians (RUB), an attempt to counter their proposal by adding an additional agenda item could cause even more controversy.
Another option would be for the COP to pull the SBI agenda item proposed by the RUB onto the COP agenda. As the ‘supreme body’ of the Convention, the COP can make recommendations on any matters necessary for the implementation of the Convention. It also has the power to exercise any other functions required to achieve the objective of the Convention. It should, therefore, have the authority to take over consideration of the disputed agenda item now sitting on the SBI agenda. Because the proposed agenda item concerns decision-making under the Convention, having the COP consider it (as opposed to the SBI) makes logical sense. The COP should also be able to determine the manner in which it wishes to address the agenda item to best achieve the implementation of the Convention. Therefore, it should be possible to re-formulate the current disputed SBI agenda item in such a way that is acceptable to all Parties. Arriving at an acceptable treatment could take time and might delay the operation of the COP work stream, but this approach would free up the SBI agenda for work to proceed.
Other procedural fixes might be available, but any procedural move contemplated for Warsaw would need to be considered and discussed at the appropriate level in advance of the Warsaw meeting to avoid time delays and to ensure the success of the procedural manoeuvre itself. Parties should take advantage of opportunities for diplomatic outreach to the RUB between now and the Warsaw meeting, e.g. at the UNGA sessions in September. Engagement in constructive conversations on the Draft Rules of Procedure at the ministerial level would appear to be necessary, especially to avoid similar situations in the agreement of a legal outcome in 2015.