1. If a meeting is convened of a smaller/select group of Parties to the UNFCCC outside of the usual UNFCCC meeting times, what will the legal status of the outcome of those meetings be, if a) the UNFCCC mandates a small group of Parties to meet on specific issues outside of the normal UNFCCC process, what will the legal status of any material/decisions made by that group; and b) a group of UNFCCC parties convene a meeting without the mandate of the UNFCCC Parties, what will the legal status of the outcomes/decisions made by that group be?
2. Are other situations in which such spin-off groups might arise (ad-hoc bilateral meetings, for instance?) and what are the legal ramifications of any decisions/outcomes of those meetings?
The outcome of any work carried out outside of the UNFCCC process, whether mandated or not, has no legal status within the UNFCCC process until such time as it is formally adopted by consensus by the COP. The Copenhagen Accord itself is illustrative of this principle.
However, the fact that a document produced by a small group of Parties does not have formal legal status until adopted by the UNFCCC COP does not mean that it is without political significance. As with the Copenhagen Accord, if the Parties involved are politically key then the document produced is bound to have considerable influence on the proceedings of the UNFCCC.
There is of course no reason why parties could not decide to ignore the UNFCCC altogether and choose to develop and implement a bilateral or multilateral decision outside of the UNFCCC, while still participating in the UNFCCC as a parallel process.
We do not consider the legal status of the output of a mandated working group of parties to differ from the discussion below about unmandated work, except to the extent that any such report or proposal will likely be given greater consideration by virtue of it being the product of a mandated process.
The Copenhagen Accord represents exactly the scenario contemplated in part (b) of the query, as it was drafted by an ad hoc grouping of parties during but technically outside of the Copenhagen conference. Until such time as it may be adopted by the UNFCCC plenary, the Accord has no legal status. By ‘adopting’ the Accord (which would require consensus), the UNFCCC parties would formally endorse it and bring it within the UNFCCC framework. This would then give the COP the mandate to take action in relation to the Accord.
The treatment of proposals is regulated by Rule 36 of the Draft Rules of Procedure. This provides that:
“Proposals…shall normally be introduced in writing by the Parties and handed to the secretariat, which shall circulate copies to delegations. As a general rule, no proposal shall be discussed or put to the vote at any meeting unless copies of it have been circulated to delegations not later than the day preceding the meeting. The President may, however, permit the discussion and consideration of amendments to proposals or of procedural motions even though these amendments or motions have not been circulated only the same day.”
The Accord was thus submitted for formal adoption by the UNFCCC. But the Accord was not formally adopted under UNFCCC rules because no ‘consensus’ was achieved. Instead it was merely ‘noted’ by the UNFCCC parties at COP15. A document which is taken note of has no formal legal status, although it could be argued that a document of which the UNFCCC parties have formally taken note has a somewhat higher status in the hierarchy of UN documents than documents that UNFCCC parties might submit during COP proceedings, which are typically described as ‘miscellaneous’ or ‘informational’ (MISC or INF) documents.
However, the fact that a document produced by a small group of Parties does not have formal legal status until adopted by the UNFCCC plenary does not mean that it is without political significance. As with the Copenhagen Accord, if the Parties involved are politically key then the document produced is bound to have considerable influence on the proceedings of the UNFCCC.
Of possible, but uncertain, application is Article 7.2(c) of the UNFCCC. It was argued by some at Copenhagen that the Accord could be brought within the UNFCCC framework by virtue of Article 7.2(c) of the UNFCCC which gives the COP, at the request of at least two parties, the authority to “facilitate the coordination of measures” adopted by them to combat climate change. However, this argument does not appear to have been formally pursued.
It is unclear how Art 7.2 (c) might apply to the scenarios mooted by this query. A detailed analysis undertaken by Niranjali Amerasinghe and Kristen Hite illustrates the degree of this uncertainty. After in-depth consideration of each of the key words in the sub-paragraph, they conclude:
“Putting these terms together, ‘facilitate coordination of measures’ in this particular context, would seem to refer to enabling and enhancing harmonious action to address mitigation and adaptation actions formally adopted by specific Parties, and potentially include ways and means such as financing and transfer of technology. Taking this phrase in light of the complete text of Article 7.2(c), we see that the COP has a mandate to take action, such as issuing decisions, to ensure effective implementation of the Convention’s objective of avoiding anthropogenic interference with the climate system in a manner that supports sustainable development and takes into account common but differentiated responsibilities… As such, it is certainly possible that a subset of Parties could request the COP and CMP to facilitate the coordination of formally adopted domestic measures, and in doing so obligate the COP or CMP to act on such a request. While in theory this could enable a subset of countries to act, due to the provisional rules of procedure, in practice the COP may find it difficult to fulfil its mandate given that any decision taken would need to be by consensus.”
On this analysis it seems unlikely that Art 7.2 (c) could be invoked to accord any greater legal status to a proposal produced by a subset of Parties.
The legal implications of other spin-off group permutations do not differ from the above analysis. The LRI Analysis (para 34-38) identified a range of alternatives to the UNFCCC procedure. It notes that:
35. As is mentioned above (and throughout this analysis) there is no reason why parties associating with the Accord could not decide to ignore the UNFCCC altogether and choose to implement (and expand on) the Accord in another forum, leaving the UNFCCC as a parallel process.
36. There are a near-infinite number of alternative forums, formal and informal, which the parties could choose to use in place of the UNFCCC. We do not propose to list them all, but below we highlight a handful of different avenues (both formal and informal) which the parties might choose to pursue, subject to political will:
a) A grouping of ‘Friends of the Accord’
b) Bilateral agreements between individual states (e.g. between USA and China);
c) Regional agreements (e.g. the EU, Organisation of American States etc.);
d) Inter-regional agreements (e.g. between the EU and BASIC);
e) The Major Economies Forum (MEF), which seems to be the USA’s preference;
f)The G20 and/or the G8; and
g) Some variant of the BASIC group.
37. Yvo de Boer, in his press conference on Wednesday 20 January 2010, acknowledged that a smaller setting of countries may be appropriate in certain circumstances but caveated this by saying any agreement by this smaller setting should be “brought back to the larger community”. However, if the larger community (i.e. the UNFCCC COP) failed to adopt such an agreement, those parties that do agree with it could take it forward themselves outside the UNFCCC in any case.”