1. Can the Chair of a Plenary Session be changed?
2. Can the Chair arbitrarily decide that consensus has been reached (when it would appear that it has not)?
The bottom line is that concerned Parties must raise a point of order and seek a ruling (and vote) if they are unhappy with the procedure adopted at plenary.
1. The short answer, based on consideration of the draft Rules of Procedure is “yes”.
Rule 22 (1) provides: “At the commencement of the first meeting of each ordinary session, a President, seven Vice-Presidents, the Chairmen of the subsidiary bodies established by Articles 9 and 10 of the Convention, and a Rapporteur shall be elected from among the representatives of the Parties present at the session. They will serve as the Bureau of the session…”
Rule 24 provides: “The President, if temporarily absent from a meeting or any part thereof, shall designate a Vice-President to act as President. The President so designated shall not at the same time exercise the rights of a representative of a Party. “
Therefore, assuming that the person who took over as Chair was one of the Vice-Presidents then this would appear to have been in order.
In this regard, Rule 34 should also be noted: “During the discussion of any matter, a representative may at any time raise a point of order which shall be decided immediately by the President in accordance with these rules. A representative may appeal against the ruling of the President. The appeal shall be put to the vote immediately and the ruling shall stand unless overruled by a majority of the Parties present and voting. A representative may not, in raising a point of order, speak on the substance of the matter under discussion.”
On this basis, we assume that any objection to the substitution of the Chair can and would have been made by a Point of order challenge from the floor of the plenary.
2. The question of what is meant by “consensus” is that as there is no agreed voting rule, all decisions must be adopted by consensus, which in practice means that there is no politically-viable objection to a decision. This is not quite the same as unanimity. Here the will of the Chair and his or her ability to reflect consensus—the lack of a politically viable objection—take precedence. For example, the Chair may decide to ignore a Party’s objection, or a Party may choose not to object formally to a decision, but to ask for its concerns to be taken note of in the report on the session.”
Without being fully aware of the circumstances in which the Chair pronounced consensus when there appeared not to have been any discussion nor in fact full agreement, it is not possible to advise definitively. Is it possible for instance that discussions “behind the scenes” had already ensured that the text would be agreed and therefore there was no need for discussion?
If there had been opposition to the declaration of consensus, then it seems likely that one or more Parties would have immediately objected or otherwise raised a point of order challenge as set out pursuant to Rule 34 above. In the absence of such a challenge then, as noted above, it will be for dissenting Parties to register their concerns in the report of the session.