Summary:
- Decisions under the UNFCCC regime (including under the Kyoto Protocol and the Paris Agreement) are generally made “by consensus” (except for decisions on certain specified matters). The concept of “consensus” is not clear cut. Current practice shows a degree of dependence on the COP President’s interpretation of consensus when determining whether consensus has been achieved. When conducting the negotiations, the COP President has considerable procedural discretion and has the obligation to exercise their powers fairly.
- Rule 34 of the UNFCCC draft Rules of Procedure enables delegates to raise points of order, which are key to escalate procedural concerns, including to challenge the existence of consensus or to challenge the fact that the COP President did not scan the room for objections immediately before adopting the NCQG text. Post-adoption of the NCQG text, India reportedly signalled that it wanted to raise a point of order, but it seems this was not acknowledged by the COP President, and India’s statement later on had both substantive and procedural points, which means that it was not unequivocally raised as a point of order according to Rule 34. The COP President did not take it as such either.
- In considering the issue of quorum in the context of the closing plenary, to our knowledge, negotiating groups have not claimed that they were not represented during the adoption of the NCQG text, and post-session there is no mechanism to retrospectively verify if there was a quorum at that point in time. Hence, quorum does not seem to be a potential ground to challenge the NCQG decision.
- Generally in international negotiations, procedural concerns are expected to be raised as they arise, with little recourse after the session has ended. Considering the facts and the nature of international negotiations processes, it is unlikely that a post-session procedural challenge would be successful. That said, Parties have options to express their views or to seek changes, and in this advice we suggest a few avenues Parties could consider taking forward.