1. Are there any legal requirements on how the negotiations should proceed after Copenhagen, if Copenhagen does not result in: (i) an amendment to the Kyoto Protocol; or (ii) an agreement under the LCA track (whether in a treaty or a COP Decision)?
2. The Bali Action Plan states that Parties should reach agreement by the end of 2009 – does this have any legal implications for the negotiations in post-2009? Are there any legal constraints on when a COP bis or CMP bis can be held?
3. Legally, how early after Copenhagen can the Parties agree on (i) and (ii)?
Negotiating mandates such as the Bali Road Map are a political declaration of intent which are unlikely to be binding. However, the distinction between legally and politically binding is not particularly meaningful in this context given that the COP has a general duty to make the decisions necessary to promote the effective implementation of the Convention (see below). Further, in practice, such negotiating mandates are not unpicked otherwise negotiations tend to break down.
On expiry of the Bali Road Map mandate, and in the absence of agreement on amendment to the KP and/or a new instrument, the Parties are free to set a new deadline or way to proceed. This would normally be done by way of a further COP Decision either taken at a resumed COPbis, or a further ordinary or extraordinary session provided of course that agreement can be reached on the way forward. Clearly, the more specific and exacting the new timetable, the more pressure Parties will be under to reach agreement but ultimately neither the Bali mandate nor any new mandate can be ‘enforced’ legally if the negotiations break down. It can be argued that Article 7(2) of the UNFCCC and Article 13(4) KP require the Parties to set a timetable as soon as possible to allow matters to move forward. However this is primarily a political issue and it is difficult to see how these obligations could be enforced.
As shown below, timetables are flexible but it appears from the rules that a formal session cannot take place within two months. From a procedural point of view, however, it is important for the Chair to arrange for informal open ended negotiating sessions to be undertaken before the next/resumed formal COP as happened with the Cartagena Protocol (see below).
Obligations under the UNFCCC and KP
From a legal point of view, the Parties have a broad discretion as to a precise timetable and manner of proceeding if there is a failure to reach agreement at Copenhagen. Article 7(2) UNFCCC requires the COP to make, within its mandate, the decisions necessary to promote the effective implementation of the Convention. Article 13(4) of the KP calls on the COP/MOP to do the same.
Clearly, the expiry of the first commitment period under Kyoto sets one parameter for the time within which action must be taken, as do the scientific findings on the pace of global warming presented to the Parties by the IPCC. However, it remains the case that there is a broad political discretion as to how to proceed.
Possible way forward if no agreement is reached at Copenhagen
The draft Rules of Procedure, which apply in the absence of Rules of Procedure being formally adopted, afford the Chairperson the power to suspend the COP, see earlier Advice to Query 53 which we can provide if requested. In this case, business will be resumed at the COPbis. Alternatively, the Chair may elect to close the COP. If closed, business can be conducted at the next ordinary session which is currently due to be COP 16 to be held in December 2010 – however there does not appear to be any bar to the next ordinary session being brought forward if the Parties so decide, Article 7(4) UNFCCC provides that an ordinary session shall be held every year ‘unless otherwise decided by the Conference Parties’. It could be argued that this allows Parties to decided to hold the ordinary session at longer or shorter intervals. An additional Extraordinary session could also be held (although note that it appears that a Protocol cannot be adopted at an Extraordinary session).
The Draft Rules of procedure lay down a number of requirements as to the timetabling of both ordinary and extraordinary sessions. In relation to ordinary sessions of the COP, the COP must decide the date and duration of the next session at the preceding COP (Rule 4). In relation to an Extraordinary session held at the request of a Party, the meeting will be held provided that, within 6 months of the relevant request, the request is supported by a least one third of the Parties. The Extraordinary session must be held within 90 days of such support being given. Draft Rule 5 requires the Secretariat to notify all the Parties of the dates and venue of a session at least two months before the session is held (this would appear to apply to either an ordinary or extraordinary session). However, although not entirely clear from the draft rules, it does not appear that a Protocol can be adopted at an Extraordinary Session.
The Rules do not specifically provide a timetable for a resumed COP but presumably the minimum timeframes provided for notice of other meetings should apply (two months for notification of date and venue). This suggests that even if the date and venue are decided at COP15, two months should elapse before the COP is resumed (although this is not entirely clear from the Rules). A further example of a resumed (Extraordinary) Cop is the CBD COP which eventually adopted the Cartagena Protocol on Biosafety. The Extraordinary Cop was suspended in February 1999 and resumed in January 2000 (when the Protocol was finally adopted). In the interim, a series of informal negotiating meetings were held.
The 6 Month Rule
An amendment to the KP must be submitted to the Parties at least 6 months before a COP/MOP (Article 20(2)), similarly an amendment to the Convention must also be submitted to the Parties at least 6 months in advance of the COP which is to consider the amendment (Article 15(2)).
It might be argued however that a resumed COPbis is simply reconvening to consider further the texts which have already been submitted to the Parties. In which case, the COPbis could be held within a shorter period than 6 months, provided that no new texts are considered. A completely new proposal would have to be submitted to the Parties (via the Secretariat) at least 6 months before the COP in order to comply with the 6 month rule, even if the session is a resumed session. However, it is worth noting that the 6 month rule can be circumvented to the extent that any new proposal reflects proposals in text submitted within the correct timeframe. We have given more detailed advice on the effect of the 6 month rule which we can provide on request.