+
Procedural rules of the
climate negotiations
Linda Siegele
Legal Response Initiative Training
London, 3 April 2013
+
Today’s outline

Introduction to the Rules of Procedure

Specific issues

Informal approaches outside the rules

Practice and operation of other international convention
processes

Finding decisions and documents

Drafting decision text and interventions

Use of standard terminology and progressing contentious issues

Exercise – using the rules of procedure
+
UNFCCC Rules of Procedure – a
brief history

Where do we find them?



Draft Rules of Procedure (FCCC/CP/1996/2)





Convention and Kyoto Protocol (KP) texts
Draft Rules of Procedure
"the Conference of the Parties shall, at its first session, adopt its own rules of
procedure as well as those of the subsidiary bodies established by the
Convention ... .” (UNFCCC, Article 7.3)
The rules of procedure are to include decision-making procedures for matters
not already covered in the Convention
The rules of procedure remain in draft because Parties are unable to agree on
the voting rule (Rule 42) but are ‘applied’ at each session
The Draft Rules of Procedure applied to CMP (KP) sessions as well (KP Article
13.5)
Permanent committees et al operate under their own rules of procedure,
e.g. CDM Executive Board, Technology Executive Committee,
Adaptation Fund Board
+
Structure and content of rules of
procedure
I.
Scope
Rule 1
II.
Definitions
Rule 2
III.
Place of sessions
Rules 3
IV.
Dates of sessions
Rules 4 and 5
V.
Observers
Rules 6 – 8
VI.
Agenda
Rules 9 – 16
VII.
Representation and credentials
Rules 17 – 21
VIII.
Officers
Rules 22 – 26
+
Structure and content of rules of
procedure
IX.
Subsidiary bodies
Rule 27
X.
Secretariat
Rules 28 and 29
XI.
Conduct of business
Rules 30 – 40
XII.
Voting
Rules 41 – 53
XIII.
Languages
Rules 54 – 56
XIV.
Sound records of the sessions of the Conference of the
Parties
Rule 57
XV.
Amendments to rules of procedure
Rule 58
XVI.
Overriding authority of the Convention
Rule 59
+
Agenda (Rules 9 – 16)

Provisional agenda distributed at least 6 weeks before meeting,
including items proposed by Parties. (Rules 10(d) and 11)

Parties can propose additional items to be added to a
supplementary provisional agenda before the meeting opens.
(Rule 12)

The COP may add, delete, defer or amend items when adopting
the agenda. Parties may request to include additional items at
this time. Only items which are considered urgent and
important may be added. (Rule 13)

Where there is no consensus on how to include an item in the
agenda, it is held in abeyance and included in the agenda of the
next meeting unless the COP decides otherwise. (Rules 13 and
16)
+
Duties of the Conference President
(Rule 23)

Declare the opening and closing of the session;

Preside at the meetings of the session;

Ensure the observance of the rules;

Accord the right to speak;

Put questions to the vote and announce decisions;

Rule on points of order;

Have complete control of the proceedings and over the maintenance of order;

May propose the closure of the list of speakers;

May propose the limitation on time to be allowed to speakers and on the number of
times each representative may speak on a question;

The adjournment or the closure of the debate and the suspension of the adjournment of
a meeting.
+
The Bureau (Rule 22)

Eleven elected members (2 from each of the 5 regional
groups PLUS one from SIDS).

President

Seven vice-presidents

Chairmen of the subsidiary bodies

Rapporteur

Bureau members serve for one year with the possibility of
being elected for a second year, but limited to no more than
two consecutive terms.

Mainly responsible for questions of process management.
+
Representation and credentials

Parties participating in a session are represented by a
delegation consisting of a head of delegation and other
accredited representatives.

The delegation’s credentials must be submitted 24 hours
after the opening of a session.

The Bureau examines the credentials and submits a report to
the COP.

Each Party has one vote.
+
Points of order / motions (Rules 34
– 40)

A representative may raise a point of order at any time if the President
has not followed the rules of procedure. (Rule 34)

The President rules on a point of order immediately. The representative
may appeal and have the ruling put to a vote. (Rule 34)

A representative may make a motion calling for a decision on the
competence of the COP to discuss any matter or to adopt a proposal or
an amendment to a proposal submitted to it. (Rule 35)

Motions to suspend or adjourn meetings or to adjourn or close the
debate on the question under discussion can be spoken to by the
proposer, another in favour and two against, before a vote. (Rule 38)

A point of order is procedural in nature; a motion can be procedural or
substantive and can be made in writing.
+
Proposed amendments, annexes,
or protocols

Must be communicated to Parties at least six months before
the session where they are proposed for adoption.

Draft Rules of Procedure 37
AND

UNFCCC articles 15(2), 17(2)

KP article 20(2)
+
Voting

Procedural matters are decided by a majority of the Parties
present and voting.

There is no agreement on a voting rule for substantive
matters. This means that consensus is still required for all
substantive matters.


Draft Rules of Procedure 42(1), Alternatives A and B
This lack of agreement means that the rules of procedure
remain in draft BUT are ‘applied’ at each session, primarily
because all other rules have been agreed.
+
Rule 42(1) – Alternative A
1.
The Parties shall make every effort to reach agreement on all
matters of substance by consensus. If all efforts to reach
consensus have been exhausted and no agreement has been
reached, the decision shall, as a last resort, be taken by a twothirds majority vote of the Parties present and voting, except:
(a) as otherwise provided by the Convention, the financial
rules referred to in Article 7, paragraph 2 (k) of the
Convention or the present rules of procedure[.] [;]
[(b) for a decision to adopt a proposed protocol, which shall
be taken by [consensus] [a three-fourths majority of the
Parties present and voting][.] [;]
[(c) for decisions under paragraph 3 of Article 4 and
paragraphs 1, 3 or 4 of Article 11 of the Convention, which
shall be taken by consensus.]
+
Rule 42(1) – Alternative B
1.
Decisions on matters of substance shall be taken by
consensus, except that decisions on financial matters shall
be taken by a two-thirds majority vote.
+
Voting under the Convention and
the KP


Amendments to the agreement

UNFCCC Article 15 – Amendments to the Convention

KP Article 20 (Amendments)
Adoption and amendment of annexes

UNFCCC Article 16 – Adoption and amendment of annexes to the
Convention

KP Article 21 (Annexes)
-make every effort to reach agreement by consensus, but
where consensus cannot be reached, amendments may be
adopted by a 3/4 majority vote of the parties present and
voting-
+
Recent examples of the use of
rules of procedure

Amendments


New agenda items



Mexico / PNG proposal on voting amendment
 Amend UNFCCC articles 7 and 18 – allowing decisions of the
COP to be made by a ¾ majority
SBSTA 34 – Bonn (by numerous Parties)
COP 17 – Durban (by India on equity, IPRs and trade)
Points of order / objections



COP 15 – Copenhagen Accord (no agreement)
COP 16 – Cancun Agreements (agreement)
COP 18 – Doha Climate Gateway (agreement)
+
Informal approaches outside the
rules, e.g.

Applying rules of procedure to all inter-sessional meetings

Agenda items added by way of COP decisions

Inclusion of observers in non-plenary sessions

Determining consensus

Chairing working groups and other informal groups
+
Practice and operation of other
international convention processes

UNFCCC Draft Rules of Procedure were based on those of Basel
Convention

Basel, Copenhagen and Rotterdam Conventions conduct joint
meetings BUT maintain their own rules of procedure

The voting provisions for the CBD’s rules of procedure are also
contested, but all other rules have been adopted

UN General Assembly requires a 2/3 majority vote on important
questions (e.g. peace and security; Security Council
membership; admission of new members) – otherwise a simple
majority of those present and voting

Montreal Protocol (to the Vienna Convention) requires a 2/3
majority of those present and voting for matters of substance but
only a simple majority on procedural matters
+
Documents to keep in mind

Annotated provisional agenda

Note from the Chair

Draft negotiating text

Compilation of parties’ submissions

Expert reports

Non-papers
+
Finding decisions and documents

UNFCCC website

Search engine (and other sidebars)

Meetings webpages

Agendas

Reports

Daily programme

Other (including workshops, schedule of meetings, etc)
+
Document symbols

FCCC/AWGLCA/2010/MISC.2/Add.1

Organ group (FCCC)

Subsidiary body or working group (AWGLCA)

Year or session (2010)

Nature (MSIC)

Number (.2)

Modifications (Add.1)
+
Drafting decision text and
interventions – general context

What are your government’s / regional group’s policies and
objectives on the issue?

How is the national position articulated?

What options are available?
+
Hierarchy of documents

Treaties


Decisions


Interpretation and expansion of treaty provisions
Conclusions


Legally binding agreement among States
Written expression of agreed meeting outcomes
Other (e.g. workshop reports, technical papers)
+
Negotiation Text
Agreements usually consist of:
The Title
The



Puts the operative part in context
No binding legal value
Used to guide interpretation of binding paragraphs, or to strategically
include language
The



Preamble (“Recalling…”; “Noting…”)
Operative Part (or “Decision Text”)
Represents the actual “agreement” between Parties
Prevails in direct conflict with preambular language
Where ambiguous, preambular language used to interpret the
Parties’ intention
+
Drafting – where to start

Past decisions on similar or complementary subjects

Conclusions from inter-sessional meetings

Chair’s text

Other UN resolutions

Suggestions from stakeholders? (e.g. NGOs and other
stakeholder groups)
+
The Importance of Diction
“Scaled up predictable, new and additional, and adequate
funding shall be provided to developing country Parties…”

May: permissive and discretionary

Should: not required but advised

Shall, Will, Must: almost always binding unless combined with a
weaker word, e.g. “shall endeavour”

And: all connected clauses or provisions must be satisfied

Or: only one of the connected clauses or provisions must be
satisfied
+
Qualifying Language
As appropriate / If necessary: gives states discretion
To the extent feasible / practicable: to take action within
limits set by the Party taking action
Consider: Think about further without necessarily making a
decision
Towards: allows approximating a goal without getting there
Organize a workshop: often used as a fallback when
agreement can’t be reached, and usually a delay mechanism
See Fry, I., Pacific Islands Negotiations Manual (2003)
+
Qualifying Language
“The Parties decide to request that the secretariat organize a
workshop on the provision of scaled up funding to developing
country Parties…”
“Developed country Parties shall consider taking steps, as
appropriate and to the extent practicable, towards scaled
up…funding for developing country Parties.”
+
Decision 2/CP.17, paragraph 83
Defines a new market-based mechanism, operating
under the guidance and authority of the Conference
of the Parties, to enhance the cost-effectiveness of,
and to promote, mitigation actions, bearing in mind
different circumstances of developed and
developing countries, which is guided by decision
1/CP.16, paragraph 80, and which, subject to
conditions to be elaborated, may assist developed
countries to meet part of their mitigation targets or
commitments under the Convention;
+
Decision 2/CP.17, paragraph 83
Defines a new market-based mechanism, operating
under the guidance and authority of the Conference
of the Parties, to enhance the cost-effectiveness of,
and to promote, mitigation actions, bearing in mind
different circumstances of developed and
developing countries, which is guided by decision
1/CP.16, paragraph 80, and which, subject to
conditions to be elaborated, may assist developed
countries to meet part of their mitigation targets or
commitments under the Convention;
+
Decision 7/CP.17, paragraph 5
Appreciates the need to explore a range of possible
approaches and potential mechanisms, including an
international mechanism, to address loss and
damage, with a view to making recommendations on
loss and damage to the Conference of the Parties for
its consideration at its eighteenth session, including
elaborating the elements set out in decision 1/CP.16,
paragraph 28(a–d);
+
Decision 7/CP.17, paragraph 5
Appreciates the need to explore a range of possible
approaches and potential mechanisms, including an
international mechanism, to address loss and
damage, with a view to making recommendations on
loss and damage to the Conference of the Parties for
its consideration at its eighteenth session, including
elaborating the elements set out in decision 1/CP.16,
paragraph 28(a–d);
+
Process

Conference room paper (CRP)


Oral intervention with written submission for inclusion in
Chair’s text or non-paper


in-session documents containing new proposals or outcomes of
in-session work
Written submissions from Parties are usually miscellaneous
documents (MISC)
Sharing / building consensus with interested parties
+
Making an Intervention
Types of interventions (oral statements)
Points
of order: If you believe the Chair has not followed the
rules of procedure

“I would like to make a point of order.”
Motions:
Input on how the Chair should deal with an issue
(procedural or substantive)

“I would like to make a motion.”

Can deflect attention from substantive issues
Presenting
Country/Bloc Position
+
Presenting Country/Regional or
Political Group Positions
1)
Raise your country flag and wait to be called
2)
Acknowledge the President/Chair
“Thank you Madame Chair.”
3)
Associate with a larger group or announce that you’re
speaking on behalf of a larger group
“Madame Chair, I would like to associate myself with
the remarks made by” / “I present the following
remarks on behalf of…”
4)
Remain positive and remark on positive aspects of the
negotiation
Adapted from Fry, I., Pacific Islands Negotiations Manual (2003)
+
Presenting Country/Regional or
Political Group Positions
5)
Make a clear, concise, and focused statement
“Madame Chair, my intervention will be brief. My
delegation would simply like to highlight two concerns…”
6)
Diplomatically offer a different viewpoint to other
interventions
“Madame Chairman, my colleague from Germany has
eloquently raised some very important points…However,
one area where her approach might prove problematic
is…”
7)
Conclude by suggesting your view is most reasonable
8)
Thank the Chairman
Adapted from Fry, I., Pacific Islands Negotiations Manual (2003)
+
Negotiating Strategy
Creating Bargaining Power

To create bargaining power, you will need something to
bargain with

Highlight your assets and disadvantages


Assets which others want to have or preserve

Disadvantages which others feel responsible for or are obligated
to do something about
Form coalitions
+
Negotiating Strategy
Advantages of Coalitions

Decrease the number of negotiating groups

Increase leverage and reduce transaction costs for smaller
developing countries

Can advance overlooked points of view
Disadvantages of Coalitions

Difficult to move between coalitions

Consensus within a coalition may be difficult

Difficult to shift away from consensus once formed
+
Integrative Bargaining
Distributive (zero-sum) vs. Integrative Bargaining
Integrative Bargaining (Package Building):

Tends to favour pro-active Parties who link issues

Parties make concessions in different areas but reach a
combined result satisfactory to all

Strategies include:

broadening the issues or goods under discussion

offering concessions on the side

trading off lower priority issues
+
Package Building
Key steps in building negotiation packages:
1) Finding the Ripe Moment
These
often come during a mutually hurting stalemate or a
recent or impending catastrophe
Follow
the negotiations and have informal discussions with
other negotiators
While
you have bargaining power, don’t give in too early
Agreements
exhaustion”
are sometimes reached through “negotiation by
+
Package Building
2) Forming the Core Group

A small group of key parties usually lays down the issues that
are part of the package

Make it known that you are speaking for on behalf of a
coalition

Indicate (informally) to other key Parties that you may have
some solutions
3) Find Tradeoffs

Tradeoffs which aim to give something to everyone, are key
to obtaining broad agreement
+
Package Building Traps
Watch out for:
1) Sequential Packaging
Some
Parties will try to build a package sequentially and
address the things they want first
2) Unrealistic Offers
Some
Parties will make offers they know are completely
unacceptable to other Parties

“We tried”
+
Exercise – ADP outcomes Background

Decision 1/CP.17

Launches a process to develop a protocol, another legal
instrument or an agreed outcome with legal force under the
Convention (ADP)

Establishes the Ad hoc Working Group on the Durban Platform for
Enhanced Action (ADP)

ADP to complete its work no later than 2015

Protocol, another legal instrument or an agreed outcome with
legal force to come into effect in 2020

Launches a workplan on enhancing mitigation ambition to identify
and to explore options for a range of actions that can close the
ambition gap
+
Exercise – Durban Platform
outcomes (ADP)



Legal form

New protocol

Amendment or Annex to the Convention / KP

Outcome with legal force
Objectives and principles

Same?

New?
Adoption of the outcome

See e.g. decisions 1/CP.3 and 1/CMP.8