Options for discussing the special needs and circumstances of Africa under existing and/or new agenda items of UNFCCC/PA bodies

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All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 14/01/2019

What options are there to discuss the special circumstances of Africa under existing and/or new agenda items of UNFCCC/PA bodies?

Advice:

Background

Since the end of 2015 the African Group (AG) has been pushing for a formal inclusion of an agenda item in COP meetings to consider the special needs and special circumstances of Africa under the Paris Agreement (PA). This process started during negotiations in Paris, when the AG requested the Presidency to “undertake consultations on the issue of vulnerability of Africa” in the aftermath of the COP. The President of the COP responded by convening informal consultations with a view to reporting at the following COP.[1] These were prolonged at COP22, when the President invited to continue informal consultations on how to include the special circumstances of Africa for the implementation of the PA.[2] At the following COP23, the President took a similar response to the AG request, but the Independent Association for Latin America and the Caribbean (AILAC) also requested to take into account the consideration of special circumstances of all developing countries – AILAC countries included.[3] With the aim of bringing consultations to a close, in November 2018, the AG requested the inclusion of a new item in the supplementary provisional agenda for COP24, entitled “16. Special needs and special circumstances of Africa under the Paris Agreement”. The AG expressed frustration about the lack of progress after three years of informal consultations.[4]

At the opening of the session of COP24, the President informed that three additional requests for items in the supplementary provisional agenda were submitted respectively by AILAC, Asia-Pacific-States, and the Arab Group. The three items mirrored the request of the AG in taking consideration of the special needs and circumstances of the respective state groups. The President decided to propose an agenda to the COP without any of the above items and, again, invited parties to consult on the matter.[5]

As these events frustrate the AG intention of setting a process under the CMA concerning a specific and differentiated treatment of Africa under the PA[6], this advice clarifies rules and indicates potential pathways. It does so by clarifying the procedural rules for agenda setting under the COP/CMA and its subsidiary bodies (Ad-hoc Working Group on the Paris Agreement [APA]; Subsidiary Body for Implementation [SBI]; and Subsidiary Body for Scientific and Technological Advice [SBSTA]). It will then highlight the rationale and limitations in advancing agenda items concerning Africa. Finally, it will indicate three possible options that itemise substantive discussions of Africa’s needs and circumstances.

Rules for agenda setting under the COP/CMA and their subsidiary bodies

The 1996 Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies regulate how state parties to the UNFCCC/PA set the agenda of meetings.[7] In essence, the process comprises two stages. First, the Secretariat drafts in agreement with the COP/CMA President a provisional agenda. This includes “as appropriate” various agenda items, including “any item proposed by a Party and received by the secretariat before the agenda is circulated”.[8] The second, facultative stage, consists of the inclusion of additional items in a supplementary provisional agenda: this collects additional items proposed by any Party which the Secretariat receives after circulating the provisional agenda and before the opening of the session.[9] Differently from the provisional agenda, where the COP President has discretion of including new agenda items;[10] practice under the provisional agenda suggests that any item proposed for the supplementary provisional agenda must be included and circulated for adoption, unless for the case where the President would receive late requests.[11]

After circulating the provisional agenda with, possibly, the supplementary provisional agenda, under invitation of the President, the COP adopts the final agenda by adding, deleting, deferring or amending items.[12] At this final stage, the President has influence in suggesting to the COP whether to delete, defer or amend proposed items.

The COP/CMA also sets the matters to be treated by subsidiary bodies.[13] Subsequently, these bodies adopt their own agenda at each meeting, structured on the COP/CMA’s allocation of work.[14] In practice, the agenda of subsidiary bodies is proposed by the Executive Secretary in agreement with their Chair and then adopted by the body’s plenary.[15] Even if the Draft Rules apply mutatis mutandis to the proceedings of subsidiary bodies, a relevant practice of submitting items under supplementary provisional agendas of subsidiary bodies is missing.[16] This lack of practice, however, does not exclude this possibility, since rule 12 of the Draft Rules is still applicable.

Differently from SBI and SBSTA, the APA’s first session is being convened with its adopted agenda throughout all meetings. The agenda faced changes only in response to an explicit invitation by the COP or by exhaustion of the rationale behind an item.[17]

Assessing the special needs and circumstances of Africa under the international climate change regime

The international climate change regime explicitly recognises the special needs and circumstances of Africa in a few instances. For example, the UNFCCC highlights the special needs of Africa for support on adaptation planning;[18] the COP decision on the Paris Outcome acknowledges the special status of Africa for the promotion of renewable energy access.[19]  The fact that, differently from other continental groups, Africa as a whole is recognised under these legal instruments, is an early sign of a special differentiation recognised in treaty instruments. This finds its rationale under the increasing scientific evidence on current and future disastrous effects over the continent: against the background of future population growth, poverty eradication and economic development, specific circumstances and needs of Africa arise across crucial issue areas, including enhanced adaptation, food security, displacement/migration, eradication of poverty, access to energy and mitigation ambition.

However, there are also limitations in advancing a formal recognition of Africa in negotiations under UNFCCC’s organs: firstly, many of the special needs and circumstances of Africa are regional, so that might not justify a continental approach. Second, there are already certain needs and circumstances under negotiation, which are recognised for developing and least-developing countries, including African countries. Thus, adding an additional general stream of discussions on Africa for similar needs and circumstances could be redundant and risk adding further complexity to climate negotiations. These arguments could be, or perhaps already are, voiced against adopting formal discussions on Africa under the COP/CMA and subsidiary bodies.

Options for discussing the special needs and circumstances of Africa under new or existing agenda items

Against the background of the above analysis, this advice identifies and evaluates the following options: i) submitting an agenda item on Africa to the COP/CMA and subsidiary bodies; ii) submitting sub-agenda items to SBSTA/SBI on specific considerations regarding Africa; iii) submitting selective agenda items or sub-items on specific considerations without an explicit reference to Africa.

As the latest events on the adoption of the agenda at COP24 reveal, the submission of a supplementary agenda item on Africa is likely to generate reactions from other continental and regional groups, which would also submit similar items. This is also likely to lead to the President to propose a setting aside of all these items. Given that the President should include an agenda item requested by a party in the supplementary provisional agenda, an option to avoid similar submissions by other regional groups could be the one of strategically submitting an agenda item on Africa at the latest moment possible to the President before the adoption of the agenda. However, as the latest practice shows, the President can exercise the discretion of not including the item, due to late receipt.

A similar outcome is also likely to happen, should the AG adopt the same approach under SBI and SBSTA. The AG can submit supplementary agenda items after circulation by the Executive Secretary of the provisional agenda, but, similarly to the COP, these might also spur additional submissions by other regional groups. Also, given the tight schedule and more technical nature of the SBSTA and SBI work, discussions on Africa’s special needs and circumstances under one general item might be perceived as obstructive and rejected. Finally, there is no possibility for the AG to submit agenda items under the APA, since its agenda has already been adopted and, apart for special circumstances, it is unlikely that that will be changed.

A more refined approach, which would still maintain a comprehensive take on Africa without setting a new process of discussions under a general item, would be to pre-identify and submit sub-items for every existing item where discussing Africa’s special needs and circumstances, in comparison to other regions and groups, finds strong justifications. This could be particularly effective under the future work of SBSTA and SBI, because the existing array of agenda items submitted for COP/CMA meetings is too general to substantiate such an ad-hoc approach. For instance, Africa could have good reasons to include a discussion on its special needs and circumstances as a SBSTA sub-item of “Matters related to Article 6 of the Paris Agreement”,[20] particularly in the context of distribution of mitigation outcomes from the future market-based mechanism. As noted above, these submissions could be done under provisional supplementary agendas of subsidiary bodies.

With the difficulties of effectively nesting formal discussions on Africa under the COP and subsidiary bodies, the third and final option for the AG is to pre-identify a set of the most crucial needs and circumstances of the AG and request their formal discussions in agenda items without specifically referring to Africa. This comes with advantages in terms of acceptability, but also with the drawback of relinquishing a formal pathway of negotiations on Africa alone. As to acceptability by other groups, the same procedures and strategies above would apply, but the lack of reference to Africa could set in motion acceptance by other regional groups or individual states that share similar needs and circumstances. These needs and circumstances should be sufficiently specific to avoid redundancy with other agenda items, or could be submitted as sub-items to existing processes (e.g. Loss and Damage, Article 6 of the Paris Agreement, or the Koronivia joint work on agriculture), and be sufficiently specific to be treated as areas of substantive decision-making under processes of the Paris Agreement.

Finally, and regardless of the difficulties, there is still a political and symbolic value in persisting with the submission of supplementary provisional agenda items about Africa for future COP and subsidiary bodies’ meetings. As a ‘low-power negotiating’ tactic,[21] agenda setting affects outcomes. Thus, the formal recognition of continuing refusals by the COP President and other states about Africa’s special needs can be used as a tool for advancing other claims under existing negotiating items.
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[1] Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, FCCC/CP/2015/10, 29 January 2016, paras 72-73.
[2]  Report of the Conference of the Parties on its twenty-second session, held in Marrakech from 7 to 18 November 2016, 31 January 2017, FCCC/CP/2016/10 paras 31-2.
[3] Report of the Conference of the Parties on its twenty-third session, held in Bonn from 6 to 18 November 2017, 8 February 2018, FCCC/CP/2017/11para 33.
[4] Provisional agenda and annotations, 30 November 2018, FCCC/CP/2018/1/Add.1.
[5] Draft report of the Conference of the Parties on its twenty-fourth session, 11 December 2018, FCCC/CP/2018/L.1.
[6] Generally justifiable under the Common but Differentiated Responsibilities and Respective Capabilities in the Light of National Circumstances principle of the PA. See Paris Agreement, Art. 2(2).
[7] 22 May 1996, FCCC/CP/1996/2 [hereafter ‘Draft Rules’].
[8] Ibid, rule 9 and rule 10(d).
[9] Ibid, rule 12.
[10] Inferred by the expression “as appropriate” in ibid, rule 10.
[11] See Draft report of the Conference of the Parties on its twenty-fourth session (n5), para 6.
[12] Ibid, rule 13. This is done under consensus according to the practice of not applying rule 42 on majority voting.
[13] The change of allocation of work to subsidiary bodies is done after a request of the Chairman to the President and authorization of the COP/CMA. See Draft Rules, rule 7.
[14] Rule 27(7).
[15] See, for instance, SBI – Provisional agenda and annotations, 12 October 2018, FCCC/SBI/2018/12.
[16] For an exception see UNFCCC Executive Secretary, Notification, 1 June 2011, CAS/AGEN/PART/JUNE/11 http://unfccc.int/files/parties_and_observers/notifications/application/pdf/notification_to_parties_-_sbi_34_and_sbsta_34_-_supplementary_provisional_agenda_-_web_version.pdf
[17] The APA added a sub-item on matters related to the Adaptation Fund after invitation by the COP, and it deleted an agenda item regarding the entry into force of the PA, once the event happened.
[18] UNFCCC, Art. 4(1)(e).
[19] Adoption of the Paris Agreement, Decision 1/CP.21, FCCC/CP/2015/10/Add.1, 29 January 2016, preamble, rec. 15.
[20] SBSTA, Provisional agenda and annotations, 12 October 2018, FCCC/SBSTA/2018/7.
[21] Charles Roger and Satishkumar Belliethathan, ‘Africa in the Global Climate Change Negotiations’ (2016) 16(1) International Environmental Agreements: Politics, Law and Economics 91.