Observer participation in subsidiary bodies

Legal assistance paper

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Date produced: 03/09/2012

What are the rules of procedure vis a vis observer participation with respect to subsidiary bodies, in particular, the practice as applied to the Standing Committee ?

A summary of the rules of procedure for participation by observer organisations is set below under the heading “General Rules Regarding NGO Participation in UNFCCC COP Negotiations.”

In terms of the role of constituencies, whilst widely used for many years, they are not specifically provided for in the Draft Rules of Procedure. The Secretariat has prepared an informal guidance note on their role – see under observers in the participants section of the UNFCCC website – but other than this there do not appear the be written rules.

In summary, there are now 9 NGO constituencies (BINGO, ENGO, LGMA, IPO, RINGO, TUNGO, and seeking approval for COP17 – farmers, women and youth – which I believe are now approved). Constituencies provide a focal point for communication with the Secretariat, which has its benefits with over 1400 organisations seeking accreditation to observe COP proceedings.

The benefits afforded by the Secretariat include: access to plenary sessions and the ability to make interventions; allocation of secondary badges when a site access limit is planned by the Secretariat; receipt of informal advance information from the Secretariat; timely information through daily coordination meetings; limited invitations to ministerial receptions; access to bilaterals and invitation to limited access workshops between sessional periods.

The rules applied regarding badges and participation in workshops are usually only invoked where there is limited access available – either as a result of space / venue constraints or as a result of the workshop being intersessional with only limited invited participation of all involved due to costs, logistics etc.

Participation in constituencies is a matter for each individual organisation and such participation is nether official nor binding. It is merely a vehicle to facilitate the communication processes above.

I note the concerns of many NGOs regarding the quality of access to information and participation through the UNFCCC process – in particular the submissions in 2010 following experiences in Copenhagen. Without changes to the 1996 Draft Rules of Procedure and 2003 Guidelines for Participation, the current level of access is likely to remain and, with growing numbers of observers, the reliance on constituencies is expected to prevail.

 The recommendations from the findings of the 2004 workshop on observer participation do not appear to have been taken forward, but provide a good starting point for discussions with the secretariat and parties.

General Rules Regarding NGO Participation in UNFCCC COP Negotiations:

1. The Rules

1.1 There are three sources for the rules governing NGO participation in the UNFCCC COP negotiation sessions (the “Rules”):

(a) the Convention itself;

(b) the draft UNFCCC Rules of Procedure – these are not currently binding as they have not yet been formally adopted by the UNFCCC; and

(c) the Guidelines for the participation of representatives of non-governmental organizations at meetings of the bodies of the UNFCCC (the “Guidelines”). These are also not legally binding – they are intended to clarify how the draft Rules of Procedure apply in practice.

1.2 Geographical extent of the Rules’ application

(a) The Rules seem to apply only within the physical boundaries of the COP venue: the introduction to the Guidelines states that “the security of the venues for sessions and meetings of the Convention bodies is the responsibility of the secretariat”.

(b) Accordingly, its remit does not appear to extend to areas outside the venue – except, possibly, to the extent that NGOs’ activities outside the venue may jeopardise security inside it (for example, if an NGO erected a crane outside the venue to enable protesters to get inside). Even in this kind of situation, it is difficult to see what the Secretariat could do to activists outside the venue. In practice it cannot eject an individual who is not inside the venue in the first place (although perhaps it could eject other members of the same organisation who were inside).

1.3 Definition of “venue”

(a) There appears to be no express definition of “venue”. In the absence of this, the description of COP-17’s venue on its website may give some practical guidance: “the International Convention Centre (ICC), the Durban Exhibition Centre (DEC), Arena, and the paved intermediate concourse area” .

(b) In practice, it appears to be largely up to the Secretariat to decide the geographical scope of its powers – perhaps an example of its wide discretion in relation to NGO participation.

2. Eligibility for admission as an observer

2.1 In order to be considered for admission to a Convention session (including the annual COP) as an “observer”, NGOs must satisfy both:

(a) substantive requirements imposed by Article 7(6) of the Convention; and

(b) procedural requirements imposed by established practice.

3. Substantive requirements

3.1 Article 7(6) states that an NGO “may” be admitted if it is “qualified in matters covered by the Convention” unless one third of the Parties present at the session object. Decision 18/CP.4 extends the same rights to the sessions of open-ended contact groups.

3.2 To gain admission, NGOs must first apply to the Secretariat, which has initial responsibility for screening NGOs’ applications. If approved by the Secretariat, the NGO’s application is then passed to the Bureau of the COP, which reviews it. If approved by the Bureau, the application is then considered for official admission at the following session of the COP, which takes the final decision. The COP can revoke this decision at any time if one third of the Parties present at the session object to the NGO’s presence.

4. Procedural requirements

4.1 Established practice dictates that, at the time of its application, the NGO must furnish the Secretariat with proof of its:

(a) independent juridical personality; and

(b) non-profit and/or tax-exempt status in a UN Member State.

4.2 Independent juridical personality

(a) The “independent juridical personality” requirement means that the NGO in question must be autonomous in nature, rather than a mere subdivision of some wider organisation.

(b) For example, a department within a university is precluded from participating in its own right, because it is not a free-standing entity: the university as a whole must make the application.

(c) This requirement has caused difficulties for NGOs which are organised in loose alliances or networks. Where these arrangements apply, the Secretariat has blocked individual partner’s applications on the basis that they are not independent from the rest of the network. The administrative body at the head of the alliance must make the application.

4.3 Non-profit and/or tax-exempt status in a UN Member State

(a) The requirement for NGOs to prove their non-profit or tax-exempt status is designed to prevent businesses from participating directly in Convention proceedings. However, businesses are still able to participate by establishing trade associations or not-for-profit groups, provided they can provide the documents listed in the next section. Examples of business associations with observer status include the International Emissions Trading Association, the World Business Council on Sustainable Development, The Pew Centre and The Climate Group.

4.4 Necessary documentation

(a) To prove their independent juridical personality and non-profit and/or tax-exempt status, established practice dictates that NGOs must provide the Secretariat (by email or post) with:

(i) a letter of application from the head of the organisation;

(ii) copies of documents detailing the mandate, scope and governing structure of the organisation (including an organisational chart, if possible) – for example, the organisation’s charter, statutes constitution, byelaws or articles of association. These documents should include any amendments, and should include information regarding the handling of assets in case of dissolution of the organisation;

(iii) a certificate of incorporation/registration/establishment of the organisation issued by a government authority in a UN Member State;

(iv) a certificate of the non-profit and/or tax-exempt status of the organisation issued by a government authority – or, alternatively, a copy of the relevant law certifying the non-profit status of the organisation due to its legal nature;

(v) a recent annual report, including a financial statement that provides information on the organisation’s funding sources and expenditure;

(vi) information on activities undertaken by the organisation in the last 12 months indicating the competence of the organisation in matters relating to the UNFCCC, such as brochures, newsletters and other publications;

(vii) information on the affiliation of the organisation with other NGOs or institutions involved in climate change; and

(viii) a completed contact details form, signed by the head of the organisation with the contact details of the organisation and a designated contact point for official communication with the secretariat.

4.5 Timing

(a) The formal deadline for applications is 1 March each year. In practice, the Secretariat normally reviews observer applications twice a year, in advance of interim negotiation sessions (with the application due in February-March) and in advance of the COP meeting (with the application due in July-August).

4.6 The majority of applications for admission are successful. At COP-14, 114 of 121 applications were successful; at COP-16, 93 of 131 applications succeeded. However, the figure at COP-15 was much lower – 358 admissions were granted out of a total 528 applications. In general, it appears that NGOs’ difficulties have less to do with getting permission to attend, and more to do with what they are allowed to do once they do so.

5. What can observers do?

5.1 Once admitted, observers’ activities are regulated by the Rules and the Guidelines. Although neither of these is formally binding on the Parties, in practical terms NGOs should adhere to both documents, as the Secretariat can be restrictive in its application of them.

5.2 Once admitted, the draft Rules of Procedure state that observers may attend COP sessions, including the annual COPs, unless at least one third of the Parties present object. The names of their representatives must have been communicated to the secretariat, and they must be registered and wear a badge.

5.3 Upon invitation of the President, observers may also participate in those sessions in matters of direct concern to them – that is, make general statements and give briefings – unless at least one third of the Parties present object. Observers are not, however, allowed to vote.

5.4 Observers may likewise request the opportunity to make interventions on agenda items, and issue written submissions to the Convention on issues in respect of which the Parties have asked for their views.

5.5 Observers may have a booth and display material inside the official meeting areas, and host “side events” (e.g. seminars, workshops, etc.) inside official meeting areas.

5.6 In the past, many NGOs have complained that they have been unable to engage meaningfully in Convention sessions, particularly at COP-15. They are frequently not allowed in meetings at all, or are ejected after they have started. In fact the majority of negotiations take place in meetings closed to observers, which makes developments particularly difficult to follow when they happen quickly – as happened in the latter stages of COP-15. Moreover, where they are invited to participate, NGOs may speak only at the beginning and the end of the session – not during it – and their briefings must be cleared in advance by the Secretariat.

6. What can’t observers do?

6.1 The Guidelines place greater emphasis on what NGOs cannot do than on what they can do. The Guidelines are set out under four headings: “Access”, “Etiquette and safety”, “Participation” and “Information materials”.

6.2 The Guidelines are not binding, but in practice the Secretariat has relied on them to justify excluding NGOs or otherwise limiting their participation – although this is legally questionable.

6.3 Moreover the Secretariat has been criticised for applying the Guidelines in a manner unduly adverse to NGOs – for example, at COP-15, it reportedly ejected an NGO for acting in a threatening behaviour, merely for naming a particular international organisation in a demonstration. The Secretariat is even free to introduce new rules and restrictions in its sole discretion – for example, at COP-15, it imposed a new requirement for civil society delegates to wear an additional badge, after the proceedings had commenced, which had the effect of excluding most NGOs from the meeting rooms. NGOs have objected to a general lack of clarity regarding how the Guidelines are interpreted, and the possible sanctions for breaching them.

6.4 Spontaneous protests inside the venue

Guideline D(5) states:

“Non-governmental observers shall refrain from using the UNFCCC venues for unauthorized demonstrations, and when distributing written materials shall respect other participants’ social, cultural, religious or other opinions and refrain from personal attacks.” (Emphasis added.)

Events at past COPs suggest that spontaneous protests result in ejection of the NGO in question from the venue – although that does not seem to stop them happening reasonably regularly.

7. The Aarhus Convention and the Almaty Guidelines

7.1 NGOs have argued that the Secretariat’s application of the Convention rules regarding their participation breaches its obligations under the Aarhus Convention, as clarified by the Almaty Guidelines.

7.2 In Article 3(7) of the Aarhus Convention, its parties agree to promote the application of its principles, including those concerning access to information, public participation in decision-making and access to justice, in international environmental decision-making processes and within the framework of international organisations in matters relevant to the environment.

7.3 Reflecting this, in May 2005 the parties to the Aarhus Convention adopted a set of guidelines clarifying its implications for international processes such as the Convention process (the Almaty Guidelines).

7.4 Guidelines 15 and 28 are particularly relevant to NGOs’ participation in the Convention.

7.5 Guideline 15 states:

“Where members of the public have differentiated capacity, resources, socio-cultural circumstances or economic or political influence, special measures should be taken to ensure a balanced and equitable process. Processes and mechanisms for international access should be designed to promote transparency, minimize inequality, avoid the exercise of undue economic or political influence, and facilitate the participation of those constituencies that are most directly affected and might not have the means for participation without encouragement and support.” (Emphasis added.)

7.6 Guideline 28 states:

“Public participation generally contributes to the quality of decision-making on environmental matters in international forums by bringing different opinions and expertise to the process and increasing transparency and accountability. The forms of participation might vary according to the nature and phase of the process, and the format of the meeting. Efforts should be made to proactively seek the participation of relevant actors, in a transparent, consultative manner, appropriate to the nature of the forum.” (Emphasis added.)

7.7 The Almaty Guidelines provide a useful benchmark against which NGOs can assess the quality of their participation in the Convention process. However, they are not a legally binding instrument – although the Aarhus Convention, on which they are based, does bind its signatories.

8. Conclusion

8.1 The rules regarding NGOs’ participation in the Convention are set out in the Convention itself, the Guidelines and the Rules. Only the first of these formally binds the Parties, although in practice they are all treated by the Secretariat and the Parties as if they were binding.

8.2 NGOs’ problems tend to relate more to participating meaningfully in Convention sessions, than with being able to participate at all – although often they are simply denied access to meetings with no notice. NGOs’ difficulties with participating in the Convention have less to do with the rules themselves, which are brief and vague, and more to do with the Secretariat’s application of these rules, which is often said (by NGOs) unduly to stretch its wide discretion in this regard.

8.3 In light of this, NGOs have argued that the Secretariat’s approach to public participation in the Convention process often breaches its obligations to the Aarhus Convention, as clarified by the Almaty Guidelines. The Secretariat has accordingly been involved in a continuous dialogue with NGOs on how to improve their participation in the proceedings, particularly since COP-15, although the full results of this dialogue have yet to become apparent.