In the Bonn ADP session (June 2015) Parties have been working on the basis of the ‘Geneva text’ but – in addition – have also created other working documents to capture the ongoing discussions. As a result, there will be two or more ADP documents at the end of the session in Bonn. What would be the legal standing and relevance of these documents and what is their relationship to one another?
As a matter of law, no party is legally bound by any position it advances or approves in negotiations until that position is formally confirmed in a final agreement. In that sense, neither the Geneva negotiating text nor any ‘working document’ that may come out of these meetings has a legal status. However, these documents are important as an understanding among negotiators on how they intend to proceed in negotiations.
Pursuant to paragraph 6 of Decision 1/CP.20, the COP decided: that the Ad Hoc Working Group on the Durban Platform for Enhanced Action will intensify its work, with a view to making available a negotiating text for a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties before May 2015.
At the eighth part of the second session of the ADP in Geneva (February 2015), Parties used as the basis of their negotiations the elements of a draft negotiating text which was acknowledged in Decision 1/CP.20 and annexed to that decision. The eighth part of the second session of the ADP culminated with the Parties agreeing a negotiating text which would be used by the ADP in Bonn in June to start substantive negotiations (Report of ADP 2-8, FCCC/ADP/2015/2). The text was referred to as the ‘Geneva Text’ (FCCC/ADP/2015/1) and was circulated to all Parties by the secretariat in accordance with paragraph 6 of Decision 1/CP.20 on 19 March 2015.
The Geneva text is, therefore, the official negotiating text of the ADP. However, in common with past practice in the UNFCCC process, it was not intended that this text be the text that would be presented to Parties for adoption in Paris at COP21. Indeed, the text itself is not drafted in a manner which is amenable to adoption without alteration; it contains many options, duplications and inconsistencies.
The task of the Parties in Bonn (ADP 2-9) was to streamline the text and, over the past days, Parties have attempted to make progress on this front. To date, the progress made has been captured in the ‘Streamlined and Consolidated Text’ and there could be additional documents (such as the table clustering thematic areas) to reflect the ongoing work. These are informal documents that are under discussion and which will be updated as negotiations progress. Accordingly, by the end of the Bonn session, there will be the official Geneva Text on the table an updated Streamlined Text and possibly further documents.
From a legal perspective, until approved by the COP, the Streamlined Text (and other working documents) will, technically, remain an informal document, leaving the Geneva Text as the only official ADP document. The ADP Co-Chairs have confirmed this in their scenario note for the Bonn Session. Based on the Note and further clarification by the Co-Chairs, the Geneva negotiating text, as issued in March, is to remain on the table through to Paris, without amendment (e.g. with all its multiple overlaps and points of difference intact and as stated in that text).
By preserving the status of the Geneva negotiating text unaltered, while the process of streamlining that Geneva negotiating takes place in the ‘working documents’, the Parties in effect enable each Party to preserve its position as reflected in the Geneva negotiating text, while still allowing streamlining to proceed in the working documents.
Notwithstanding that, the Streamlined Text is likely to be the text that will continue to be negotiated and developed through to the end of the year (and which will ultimately be adopted by the COP in Paris). This does not mean however that the Geneva Text has no relevance in the current and future ADP negotiations. Parties may, for example, reintroduce concepts from the Geneva Test into the Streamlined Text over the next 6 months (though of course from a practical and political perspective, this may be resisted by other Parties).
Realistically, there will still be pressure not to backtrack on ‘progress’ made in the working document, but no one will be able to say that the working document prevails in any legal sense over the Geneva negotiating text – unless, of course, the Parties decide to adopt the working document in Paris as the final outcome.
To summarise, although the Geneva Text is the ‘official’ negotiating text, the Streamlined Text will be the ‘more important’ text from a practical perspective and, although Parties are free to agree otherwise, is likely to be the one on which the Paris agreement is based.
As result, however, there is a risk that if Parties decide to frame the agreement as a Protocol under Article 17 of the Convention (legal form) in Paris, some may argue that the proposed text does not comply with the requirements of Article 17 (circulation 6 months in advance). For this reason, it may be a risk to introduce concepts in the Streamlined Text (and ultimately the proposed protocol text – if this legal form is chosen) that do not have a basis in the Geneva Text.