The 18th meeting of the Conference of the Parties (COP) to the UN Framework Convention on Climate Change started on Monday, Nov. 26. Undoubtedly, COP 18 is a key meeting since it is the last meeting before the expiration of the first commitment period on December 31, 2012 for the Kyoto Protocol’s Annex B emission reduction commitments. This meeting will hopefully lead to the adoption of amendments to the Kyoto Protocol allowing for the commencement of a second commitment period in January 2013.
The International Institute for Sustainable Development provides terrific daily meeting summaries, available at http://www.iisd.ca/climate/cop18/enb. Among the key things that happened on Monday were not just the opening statements, which included mandatory posturing, but also the adoption of the meeting’s rules of procedure. These rules are critical not only for the orderly conduct of the meeting but also for the adoption of decisions that become the official outcomes of this gathering of the COP (the governments that are parties to the treaty).
According to the Monday summary, the COP adopted the 1996 draft rules of procedure (FCCC/CP/1996/2), with the exception of draft rule 42. (The draft rules can be found here: http://unfccc.int/resource/docs/cop2/02.pdf .) The 1996 draft rules were first put forward for adoption by the COP at its second meeting in 1996. In spite of UNFCCC Article 7.2(k), which requires that the COP “agree upon and adopt, by consensus, rules of procedure . . . for itself,” and Article 7.3, which requires that the COP adopt these rules of procecure at its first session, that has never occurred in the 20 year history of the UNFCCC. Thus, as far as I can tell, at each COP meeting since then, the parties have used the draft rules provisionally with the exception of draft rule 42.
What is draft rule 42? In essence draft rule 42 sets out the key voting requirement for COP “decisions on matters of substance,” i.e. anything that really matters. Without draft rule 42, there is no explicit voting rule for the meeting. However, that does not mean that there can be no binding votes. Instead, the default rule in international law applies – decisions must be taken by consensus of all the parties.
Thus, if one ever wondered why it is so difficult to for the UNFCCC parties (and Kyoto Protocol parties, or for that matter many international environmental treaty organizations) to make controversial decisions, the inability to adopt a voting rule altering the consensus requirement should tell a lot.