1. What options are there to integrate the non-paper on the elements of a new agreement formally into the COP decision prepared by and currently under negotiation in the ADP?
2. What are the implications of different options and their relative strengths?
As a technical matter, there is no legal obstacle to integration of the non-paper into the COP decision. The only limits are those imposed by the role given to the COP under the UNFCCC, along with the COP’s rules of procedure. As a practical matter, however, it could be problematic to integrate the non-paper into the COP decision, in part because: (a) the decision and the non-paper have different normative roles and status; and (b) States Parties may resist references to the non-paper in a decision they must vote on, especially if it is not clear whether, or the extent to which, the reference is meant to signal endorsement of the non-paper, which itself expresses a range of approaches and “options” for addressing climate change.
The non-paper on the elements of a new agreement and the COP decision both address goals and progress relating to the evolution of the legal regime on climate change, but they have different status and serve different purposes. The COP decision will be a formal decision by a specific body established, recognized and governed by the UNFCCC, a duly ratified treaty. A COP decision arrived at in conformity with the treaty reflects a formal decision by the states parties. Pursuant to Article 7, the COP is the “supreme body” of the Convention. In contrast, the non-paper is an aide-mémoire, a negotiating text circulated informally, without attribution, and without any formal legal status. In other words, while the COP decision has a formal status under the treaty (and thus under international law), the non-paper self-consciously lacks any such status.
Although the COP decision can say whatever the States Parties to the UNFCCC want it to say, they should be careful not to muddle or misrepresent the status of the non-paper. They should also be careful not to interfere with the evolution of the non-paper by prematurely subjecting it to a formal decision making process now, when it might otherwise evolve (or more) between now and the 2015 COP, at which the States Parties hope to reach agreement on a formal legal instrument. Moreover, because the non-paper includes multiple options and raises unresolved issues, States Parties may be wary of appearing to support options they may in fact disagree with.
There is no formal obstacle to referencing the non-paper in the text of the COP decision, or to including the non-paper as an annex. However, in light of the foregoing, it is not clear such a reference or annexation would be useful or acceptable to the COP. Any reference to the non-paper in the text of the decision should be clear and precise as to which version of the non-paper is referred to, why it is being referred to, and that the decision does not purport to elevate the status of the non-paper from discussion text to formal instrument. To the extent the COP wishes to incorporate concepts or ideas from the non-paper, it can simply restate those concepts or ideas in the text.
Including the non-paper as an annex to the COP decision would clarify which version the COP decision means to refer to, and it could serve as a historical marker, but it may also be unacceptable and/or counterproductive. As noted, appending the non-paper to the COP decision could be construed as endorsement or attribution of the non-paper to the COP (and all the States Parties who vote in support of the decision), which could impede its further development.
Finally, the role and authority of the COP are circumscribed by the text of the UNFCCC (Art. 7), as well as the COP’s rules of procedure. Any particular use of the non-paper in a decision of the COP would have to conform to Article 7 of the Convention and the COP rules of procedure.