1. Can the Subsidiary Bodies evade the application of Rule 16 of the draft rules of procedure (automatic inclusion of items in future agendas) by an informal agreement between the parties? 2. Is there any precedent for Rule 16 not applying based on an agreement by the parties or otherwise? 3. What options do parties have to insist on the application of Rule 16?
1. Can the Subsidiary Bodies evade the application of Rule 16 of the draft rules of procedure (automatic inclusion of items in future agendas) by an informal agreement between the parties?
Draft Rule 16 states: “Any item of the agenda of an ordinary session, consideration of which has not been completed at the session, shall be included automatically in the agenda of the next ordinary session, unless otherwise decided by the Conference of the Parties.”
In short, my understanding is that there is no way around the application of Rule 16. If there is no agreement by the parties – in the formal sense of adopting draft conclusions or decisions – then the item is deferred to the next session.
However, I do not believe that the nature of the informal agreement on the IPCC Special Report on 1.5 degrees Celsius seeks to evade the application of Rule 16. Instead, it is my understanding that the “gentlemen’s agreement” revolves around whether or not consideration of the discussion can be considered to have been completed at SB 50. As far as I am aware, Parties agree to engage in a discussion on substance on this issue at this session. But engagement in a discussion on substance at this session (a COP 24 mandate) does not automatically lead to consideration of the report going forward.
Rule 16 only “kicks in” when consideration of an agenda item has not been completed at an ordinary session. Therefore, if at this session Parties agree that the discussion of Special Report has been completed, then it will not be carried forward.
2. Is there any previous precedent for Rule 16 not applying based on an agreement by the parties or otherwise?
Not than I am aware of.
3. What options do parties have to insist on the application of Rule 16?
From my perspective, Parties would be in a position to “insist” on the application of Rule 16, where there was a plausible argument that consideration of the SBSTA agenda item on the Special Report was not completed at this session.
This is where the informal understanding between Parties comes into play. In other words, those Parties demanding to discuss the report at this session (as mandated by COP decision 1/CP.24) informally agreed that, provided there could be a discussion on substance at SBSTA 50, the discussion would be considered to be completed at the end of the session – meaning that Rule 16 would not apply.
If, in practice, however, the chair fails to broker an outcome and agreed text the rule applies. Any Party that seeks the application of the rule may, therefore, try to ensure that no such agreement is reached. Should those Parties reluctant to allow a substantive discussion of SR 1.5C at this session be seen to be blocking a free-flowing discussion, then other Parties would be well within their rights to “invoke” Rule 16.
As an aside, we would argue that the term “gentlemen’s agreement” used in the meeting is not in line with the current UNFCCC gender approach (and may reflect old style non-transparent male decision making…).