Legal Response International » Six month deadline for circulating draft text under UNFCCC

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1. What is the significance of the 6 month deadline under Art.17 para.2 UNFCCC? Is it a “hard” deadline for a protocol or does it hold for any other outcome “with legal force”?

2. If we don’t have an agreed draft text by the end of the Geneva session, does that mean that we cannot come to a legal agreement in Paris at all?

3. Could you explain what would constitute an “acceptable” document? Would it have to be something agreed at a session of the UNFCCC and formally forwarded to the UNFCCC secretariat as an agreed draft (by all parties) for negotiation? Or can any party or group of parties submit a document to satisfy the legal requirement?

Summary:

The applicable rules of procedure require circulation by the secretariat of the text of any protocol, annex, or amendment no less than 6 months before the session at which it is proposed that such text be adopted.

Circulating a text before May, more than 6 months before the Paris session, would seemingly assure that such text, whatever its legal form, would comply with the 6 month requirement.

The meaning of an outcome “with legal force” is (perhaps deliberately) not clear, but the possibility of such an alternative outcome may have been intended to leave open the possibility of an agreement that was legally binding but not necessarily within one of the established conceptual frameworks (e.g. not a protocol, annex or amendment).

The May deadline is not binding in the sense that the parties cannot be compelled to agree on a single negotiating text by a particular date. However, failure to meet the deadline would have a consequence in the sense that it does mean that a text agreed and circulated less than 6 months before the Paris session could not formally be proposed for adoption in Paris, unless the Parties decided to override the six month rule.

It is not clear to what degree a text can be subject to further negotiation, between the time of its circulation by the Secretariat (e.g. before May) and its proposal for adoption (e.g. at the Paris Session). Past practice (and common sense) would suggest that the 6 month rule does not preclude negotiation on the text between the circulation of the text and the proposal for adoption, but how far such modifications to the text could go without being rejected for failure to meet the six month rule is unclear. One reason that parties may have inserted so many alternative proposals in the text during the Geneva discussions is that there is less risk that a subsequent deletion of a provision would be viewed as disqualifying under the six month rule than if there were an attempt between May and the Paris meetings to add new proposals that were materially different to the text that had been circulated. In short, paring down a bloated text is less likely to infringe the six month rule than adding substantively new provisions.

The 6 month rule does not require that a circulated text must be a consensus text, nor does the six month rule require that there be only one text. However, the negotiators agreed to reach a single text, and the approach seems to be to have a single text with many bracketed alternatives within it on various issues. Submitting additional or competing texts, even if submitted before May in accordance with the six month rule, would probably be viewed as contrary to the understanding of negotiators, unless any such new text in fact had consensus support among parties.

Advice:

The rules of the Kyoto Protocol, the UNFCCC, and the Rules of Procedure all require a so-called 6 month rule in similar terms. Article 37 of the Rules of Procedure, for example, provides:

The text of any proposed amendment, annex or protocol to the Convention and of any proposed amendment to an annex shall be communicated to the Parties by the secretariat at least six months before the session at which it is proposed for adoption.

This rule was probably created to assure that all parties, especially those with lesser resources, would have sufficient chance to study proposals before they were called on to make decision.

The six month rule create a “binding” deadline, in the sense that it precludes “adopting” a proposed text at a session, such as the Paris session, if that text has not met the rule. Therefore, even though the ADP cannot be compelled to produce a text at least six months before the Paris session, failure to meet that deadline would mean that the ADP text could not be adopted in Paris unless the six month rule were overridden or changed.

As to whether the six month rule would apply to an alternative outcome “with legal force”, i.e. an outcome that purported not to be a “proposed amendment, annex or protocol,” it is far from clear what is meant by such an outcome, or what is meant by “legal force.” It is not clear, for example, whether the six month rule can be avoided simply by avoiding use of the terminology of the rules (protocol, annex or amendment), while producing an outcome that has the same substantive effect. The possibility of some other outcome may have been raised in the Lima Decision in order to have a way to deal with the risk that substantive agreement would be stymied or delayed by procedural objections under the UN rules.

The six month rule does not require that only a single text be proposed or that such text be an agreed text at the time it was circulated. In fact, the six month rule itself would not prohibit having competing or alternative texts. However, at this stage of the Climate negotiations, introduction of competing texts would likely be considered a bad step backward, given the decision to develop a single text, even if that single text contained elements of disagreement that still required resolution.

The rules do not state what are the requirements (other than timely circulation) to qualify as a text that can be proposed for adoption. A literal reading of the rules might suggest that a session such as the Paris session can only adopt a text (“the text”) that was unchanged from what had been submitted and circulated at least six months earlier. However, the Kyoto Protocol itself was adopted notwithstanding modifications made after the text of that protocol had been circulated. Further, it would be an absurd and self-defeating interpretation to require no changes, implying that the Parties could only give an up or down vote in Paris to a text that had been submitted six month earlier, without subsequent modification. It is normal in international negotiations that an initial single negotiating text will have provisions that are conflicting or that require elaboration and clarification. Creation of a single negotiating text can help the parties to see the scope and degree of differences that need to be resolved and points that require clarification, before there is a final text for adoption.

If the Parties are able to reach a consensus on an agreed text in the period between now and the conclusion of the Paris Session, they are unlikely to reject or delay their own agreement on grounds that the text does not meet the six month rule because of the number of modifications to the Geneva text. On the other hand, if the Parties cannot reach consensus on adoption of a text in Paris, and if there is an attempt to adopt a text on the basis of a vote over the objections of a strong minority, it is more likely that an objecting minority will raise procedural objections on the basis of a failure to comply with the six month rule.

Even if a rigid view were taken of the six month rule, it would not mean that the Paris session was prevented from coming to an agreement that might take legal effect, because nothing in the rules would prevent the Paris session from reaching agreement on a text that could be circulated and possibly adopted six months later at another session. Given the possibility also of using provisional application to advance substantive application of the rules, the procedural delay would not have to delay substantive implementation. The critical point is to reach substantive agreement, at which point procedural objections tend to melt away either by reinterpretation of procedural rules or changes to those rules. While there is no substantive consensus, Parties will use procedural pretexts to delay difficult substantive actions and decisions.