Can an agenda be adopted while the presiding officer of the body concerned is not an elected Chair?
Even if the adoption of a provisional agenda by a person who is not an elected Chair may give rise to a technical violation of the 1996 Provisional Rules of Procedure, it appears that Rule 13 (which applies ‘mutatis mutandis’ to Subsidiary Bodies such as the ADP) makes it possible for such violation to be remedied by a decision of the plenary meeting of the body concerned. The Secretariat, in agreement with the Chair, circulates a provisional agenda (and possibly a supplementary provisional agenda). Pursuant to Rule 13 (which applies mutatis mutandis to the ADP), it is up to the plenary of the ADP (and not the Chair, elected or otherwise) to actually ‘adopt’ the agenda.
Decision 1/CP.17 established the Ad Hoc Working Group on the Durban Platform for Enhanced Action (‘ADP’) as a subsidiary body in the sense of Article 7(2)(i) of the UNFCCC. It is noted in this context that Rule 27 of the 1996 Provisional Rules of Procedure (‘Rules of Procedure’) states that these Rules “shall apply mutatis mutandis to the proceedings of the subsidiary bodies”. As far as the adoption of the agenda for the ordinary session of a subsidiary body (such as the ADP) is concerned, Rules 9 and following state that:
“In agreement with the President, the Secretariat shall draft the provisional agenda of each session” (Rule 9);
“For each ordinary session, the provisional agenda, together with supporting documents, shall be distributed in the official languages by the secretariat to the Parties at least six weeks before the opening of the session” (Rule 11);
“The Secretariat shall, in agreement with the President, include any item which is proposed by a Party and has been received by the Secretariat after the provisional agenda has been produced, but before the opening of the session, in a supplementary provisional agenda” (Rule 12);
“The Conference of the Parties when adopting the agenda may decide to add, delete, defer or amend items. Only items which are considered by the Conference of the Parties to be urgent and important may be added to the agenda” (Rule 13)
It is our understanding that, by means of document FCCC/ADP/2012/1 (‘Note of the Executive Secretary’), the Secretariat on 16 March 2002 circulated a provisional agenda to the States Parties. If we assume that this provisional agenda was drafted in agreement with the President of the COP/MOP (acting as default chair of the ADP pending the election of officers at its first meeting), it appears that this provisional agenda was indeed circulated to the Parties six weeks before the meeting in Bonn, in conformity with Rules 9 and 11.
By contrast, on the basis of the information before us, we understand that a supplementary provisional agenda was circulated before the opening of the ADP’s ordinary session by Ms. Sandea de Wet (South Africa), who is not a member of the Bureau, but was appointed as interim chair of the ADP by the President of the COP/MOP. This supplementary agenda replaces items 3 and 4 of the provisional agenda included in document FCCC/ADP/2012/1.
It appears that this course of action sits rather uneasily with the parameters of Rule 12 of the Provisional Rules of Procedure. The latter Rule indeed provides that the Secretariat shall, in agreement with the President (in the sense of Rule 22 and Rule 27(5)) include additional items proposed by a Party after the provisional agenda has been produced, but before the opening of the session, in a supplementary provisional agenda. In the present case, it appears that the supplementary provisional agenda was not produced at the initiative of the Secretariat, nor with the agreement of the actual President. One could argue that the President may to certain extent ‘delegate’ their competences under the Rules of Procedure, but Rule 25 would appear to set limits to this possibility of delegation.
In the end, however, even if there may be a technical violation of the Rules of Procedure, it appears that such violation could be remedied. Rule 13 indeed gives the COP broad powers to add, delete, defer or amend items on the agenda. The only requirement is that items added by the COP are urgent and/or important in nature (it may be noted on a general basis in this respect that the COP has previously stressed that the ADP should start its work ‘as a matter of urgency’ (cf. Decision 1/CP.17)).
If we accept that the Provisional Rules of Procedure apply ‘mutatis mutandis’ to the activities of Subsidiary Bodies, it may well be argued that Rule 13 similarly permits the plenary meeting of the ADP to amend/supplement the provisional agenda as it sees fit (as long as new items are urgent/important in nature). In short, there would seem to be no fundamental obstacles to the plenary meeting of the ADP adopting the supplementary provisional agenda circulated by an unelected presiding officer.