What is the status of an NGO treaty submitted to the secretariat by NGOs under Article 17 of the Convention? Is there any precedent for non-party proposals to have legal status in the UN system? Is there scope for non-governmental proposals to have legal status in the UN system? If the proposal does not have legal status, is there any way to elevate the proposal so it has legal status (eg if a country submitted it as its own proposal)?
Article 17 UNFCCC – to which query 45 refers – states that “the text of any proposed Protocol shall be communicated to the Parties by the Secretariat” (§ 2). While the provision does not explicitly say that proposals can only be submitted by States, one must take account of the different role of States Parties and observers (whether they be NGOs or IGOs). As for States Parties to the UNFCCC, it is clear that they can submit formal proposals, which must then be circulated to other Parties. Conversely, it is clear that NGOs that do not enjoy observer status within the COP 15 cannot participate in any way in the actual proceedings of the conference. As far as NGOs with observer status are concerned, Article 7(6) UNFCCC merely determines that their admission and participation “shall be subject to the rules of procedure adopted by the Conference of the Parties.”
The next step is then to look at the applicable Rules of Procedure. In this context, the COP15-website refers to document FCCC/CP/1996/2 (to our knowledge this document has not (yet) been replaced by a more recent one). Rule 7 of the document finds that “observers may, upon invitation of the President, participate without the right to vote in the proceedings of any session in matters of direct concern to the body or agency they represent, unless at least one third of the Parties present at the session object.”
The extent of this ‘participation’ is not further specified in the Rules of Procedure. In practice, while it is clear that they are never allowed to vote, the procedural rights of observers may diverge strongly in different institutional settings (IGOs or international conferences). Sometimes observer rights may go relatively far: the European Community, for instance, has received ‘enhanced observer’ status in a number of UN bodies, implying that it may participate in both formal and informal meetings; that it may submit proposals and may even preside over certain meetings. Absent any memorandum of understanding/exchange of letters between the observer and the international organization, or absent any specific rules in the relevant rules of procedure, however, the rights of observers are normally more limited. Thus,
Klabbers concludes that: “Observers usually cannot vote; they cannot circulate documents as official documents unless with special permission; and if the observer has a proposal relating to the organization’s field of activities, it may need a full member to table the motion” (International Institutional Law, Cambridge University Press, 2009).
In the present case, it seems all the more unlikely that observers can claim broad procedural rights, given the fact that observer participation in the COP 15 is very open (resulting in a very large number of NGO observers).
Conclusion: The implication is that NGOs participating in COP 15 may either circulate their proposals on their own initiative to the States Parties (in which case they will not be official proposals), or may ask one or more States to submit these proposals as their own. In our view, however, NGOs cannot directly invoke Article 17(2) UNFCCC to claim legal status for the NGO treaty proposal.