Chair Patrick Széll (UNITED KINGDOM) opened the third session of the Ad Hoc Group on Article 13 (AG13-3) on Monday, 16 December, and recalled that AG13-1 decided to request Parties, non-Parties, intergovernmental and non-governmental organizations to make written submissions to a questionnaire relating to a multilateral consultative process (FCCC/AG13/1995/2, para.17). Delegates had before them the responses to the questionnaire (FCCC/AG13/1996/Misc.1 and Add.1, and Misc.2 and Add.1) and a synthesis of the responses prepared by the Secretariat (FCCC/AG13/1996/1).
The synthesis document notes responses from 19 Parties, one non-Party and 10 NGOs. The document provides a spectrum of views on the establishment of a multilateral consultative process (MCP) and identifies emerging areas of consensus. It outlines the responses to questions on: the definition and scope of the process; the relationship of Article 13 to Conventions institutions and processes; the legal and procedural considerations; and other issues.
The Chair noted that AG13 has completed one year of work and has focused on preparatory rather than substantive issues. He reported that AG13 has received authority from the COP to continue its work, but noted that the process is neither clear nor simple. The key question to be addressed over the next year will be the fundamental character of the regime. Széll noted the panel presentation held at AG13-2 and his conclusions, which are annexed to the report of AG13-2 (FCCC/AG13/1996/2). The Chair also reported the election of Victor Chub (Uzbekistan) as Vice-Chair and Andrej Kranjc (Slovenia) as Rapporteur. The Chair also distributed a paper containing elements of an MCP (elements paper), which addresses the possible characteristics, functions, institutional arrangements and procedures for an MCP.
CHARACTERISTICS: Under characteristics, the paper focuses on defining the following for a future MCP: nature (facilitative, cooperative, transparent); objective (find solutions, non-confrontational, non-compliance, preventive); expertise (legal, economic); application (optional, compulsory); and evolution (static, dynamic, flexible).
In the discussion that followed, many delegates emphasized that their comments were preliminary in nature. Several delegations stressed that the work of AG13 must be based on the language of Article 13 and noted that the open nature of the Article allows Parties to define its structure. Delegations also noted that the MCP should be non-binding, non- adversarial and non-judicial. Delegates urged for an MCP that is cooperative, transparent, practical and timely. Many also noted the need to coordinate with the SBI and cautioned against duplicating the work of the SBSTA. CANADA and JAPAN noted that it must be flexible and evolve over time. The EU, the RUSSIAN FEDERATION, CANADA and AUSTRIA highlighted an MCPs potential to prevent disputes.
Differing positions emerged on other aspects of an MCP. The EU suggested a new standing body that would consider implementation questions, although decision-making power should remain with the COP. SWITZERLAND called for a permanent body with approximately 10 members that are appointed by the COP. CHINA stated there was no need to establish a new body. The EU drew comparisons to the non-compliance procedures under the Montreal Protocol, while the RUSSIAN FEDERATION characterized the non-compliance procedures as extremely complicated.
COSTA RICA, on behalf of the G-77/CHINA, said that review mechanisms of the SBI and the SBSTA should be used in the AG13 process. CHINA noted that an MCP should be invoked only by Parties, involve discussions between Parties and should not pass judgment on implementation efforts. CANADA said an MCP could involve a representative group of Parties with expert input, if needed. The RUSSIAN FEDERATION suggested that an MCP could be a special ad hoc group of experts on legal and economic questions. JAPAN noted that the process should only involve a limited number of Parties, otherwise the SBI should be involved.
On Tuesday, 17 December, delegates provided additional statements on characteristics. CANADA said that Parties should be free to raise their own implementation issues. She said that referring to the performance of other Parties presents difficulties. The PHILIPPINES cautioned against derogating the balance within the Convention and said an MCP should be a consultative process and nothing else. She said addressing compliance is by its nature confrontational. CHINA reiterated that it was not urgent to establish an MCP.
Regarding an MCPs area of expertise, MOROCCO said that legal, economic, social and technical issues should be addressed. SWITZERLAND said technical and scientific issues could be addressed unless it would duplicate other bodies work. The US and CANADA suggested drawing from a roster of experts for consultation. Most countries agreed that the application of an MCP should be optional rather than compulsory, and stressed flexibility to accommodate future needs. The EU noted that some elements regarding the characteristics of an MCP need further consideration before it can be finalized. She offered to draft a paper on points of convergence that have already emerged. CHINA and KUWAIT said it is premature to draw conclusions.
FUNCTIONS: AG13 then considered an MCPs functions. The Chairs list of elements on functions addresses ways to define the questions regarding implementation. It contains sub-items on: the advisory or supervisory role of an MCP (cooperation and support, noncompliance); the specific or general nature of the issues to be addressed (country performance, interpretation); the areas of competence (communications, obligations, issues); and the relationship to other Convention bodies, processes and articles.
Parties presented different views regarding an advisory or supervisory approach. Some called for a supportive and assisting function, whereas others supported a review process on the performance of individual Parties. The EU stated that an MCP is needed to solve the performance problems of individual Parties. In no case would COP decision-making authority be reduced. AUSTRIA noted that if an MCP advises Parties on solving problems then questions of individual performance must be part of the procedure. Many countries, including CANADA, VENEZUELA, AUSTRALIA, IRAN and SLOVENIA, supported an advisory approach. MOROCCO said an MCP could play both an advisory and a supervisory role. CHINA said an MCP must provide recommendations and be non- supervisory and non-judgmental. The US noted that Article 8.2(c) empowers the Secretariat to provide support to Parties and urged delegates to keep an open mind. The NETHERLANDS suggested that an MCP should function as a help desk where a Party with a problem can seek advice.
On the nature of issues to be addressed, the US expressed concern on having an MCP interpret the Convention and noted that this issue needs careful consideration. CANADA noted that only Article 14 refers to interpretation and issues might be referred to an MCP via Article 13. VENEZUELA said that interpretation should be left to the COP. FRANCE responded that the possible role in interpretation should not be excluded. AUSTRALIA said an MCP could play a role in interpreting or clarifying obligations through practical assistance rather than judicial-style interpretation. CHINA stated that many differences of opinion are due to misinformation and an MCP could allow Parties to exchange views on interpretation.
On the relationship of an MCP to other bodies, processes and articles, many delegates cautioned against duplicating the work of the SBI. MOROCCO said an MCP should adopt recommendations and report to the COP independently of the SBSTA and the SBI. KUWAIT noted the importance of identifying the areas of concern for an MCP and said that many of the issues presented here fall under existing bodies. On the relationship between Articles 13 and 14, JAPAN, VENEZUELA, MOROCCO and SLOVENIA noted that Articles 13 and 14 are clearly different. CHILE noted that Article 14 requires Parties to settle disputes through negotiation or any other peaceful means and an MCP could provide this type of advisory service.
INSTITUTIONAL ARRANGEMENTS: On institutional arrangements, the Chairs elements paper addresses a future MCPs: establishment (new institution, existing body); nature (ad hoc, standing); size (open-ended, limited in size, geographical representation); and constitution (government representatives, experts, roster). It also proposes that delegates consider a combination of all the elements contained in the paper. Delegates commented on the institutional arrangements and several reiterated that their remarks were only preliminary.
Many delegates proposed the establishment of some type of body, with a number preferring a standing body or committee, with membership on a rotational basis, to provide a sense of reliability. CANADA, ITALY, the EU, ZIMBABWE, SLOVENIA, the PHILIPPINES and CHILE supported a standing committee. Others envisioned an ad hoc group formed to address issues on an as needed basis. The RUSSIAN FEDERATION favored an ad hoc group of experts to expedite work on SBI documents. JAPAN preferred an ad hoc group to address issues as identified by the SBI. The NETHERLANDS cautioned that associating the committee too closely with the SBI would hamper its freedom of movement. KUWAIT stated that the creation of another institution would be burdensome and noted that any group formed should be linked to the SBI. The INTERNATIONAL INSTITUTE FOR APPLIED SYSTEMS ANALYSIS (IIASA) noted that delegates can have both a committee and an ad hoc group, and provided examples of this approach from the Montreal Protocol and the International Labor Organization.
Equitable geographic distribution was a frequently mentioned consideration, although a number of delegations noted it would be difficult to achieve. CANADA, the EU, ZIMBABWE, ITALY, MOROCCO, the PHILIPPINES and CHILE called for equitable geographic representation. The PHILIPPINES and CHINA proposed forming an open- ended group, but cautioned that limiting the size could also limit equitable geographical distribution. The US urged delegates to consider criteria other than equitable geographic distribution. He suggested using existing categories such as Annex I countries, countries with economies in transition, developing countries and least developed countries. He also suggested rotating seats; representation for the Party requesting assistance; and ex officio seats for Chairs of other subsidiary bodies. JAPAN supported using other criteria and the NETHERLANDS supported further consideration of ex officio representation for SBI and SBSTA.
Many Parties preferred using government representatives or government-appointed experts. Some also called for a roster from which to select experts depending on the nature of the problem. Some delegates proposed a combination of these elements. The EU suggested including members from various fields, such as legal, economic, social, technical, environmental, scientific and technological. ZIMBABWE stated that individual Parties should decide whether committee members are delegates, national NGOs or others. CHINA preferred governmental officials who are experts on Article 13. ITALY proposed ensuring stability through the election of a president and a vice-president, and appointing members on the principle of rotation, with two-year memberships. KUWAIT suggested drawing experts from the SBSTA and the IPCC.
PROCEDURES: On procedures, the Chairs elements paper addresses: establishment of the process (COP decision, amendment, protocol); the governing body for the process (COP, SBI, other); the procedure for raising issues (Parties, SBI, COP, Secretariat); the result of the process (recommendations to SBI or the COP); and the frequency of deliberations.
A majority of delegations stated that a COP decision was the most appropriate action for establishing the process. On a governing body, most delegates stated that the COP would act as final arbiter, while many stated that the SBI could serve as a useful intermediary. A number of delegations noted that the ability to raise issues should be limited to Parties. KUWAIT, IRAN and INDIA said that issues taken up should be restricted to those submitted by Parties and subsidiary bodies. Delegates agreed that an MCP should produce recommendations, but expressed different views on whether to forward the recommendations to the SBI or directly to the COP.
CONCLUSIONS: On Wednesday, 18 December, the Chair presented his draft conclusions and a revised elements paper. Delegates also considered an EU-proposed draft report on points of convergence on the characteristics of an MCP and the draft report of the meeting. The Chair reminded delegates to regard this meeting and the February 1997 meeting as two parts of a single whole. This meeting was only intended to take stock, but the February meeting will not have the luxury of being so loosely woven.
The Chairs draft conclusions state that AG13-3: reiterates that the work of the group is conducted within the framework set by Article 13; notes that the elements, which will be listed in an annex to the report of the meeting, are recorded without prejudice to any decision on the establishment of an MCP; invites Parties to submit any further proposals; and requests the Secretariat to issue any proposals received by 15 February 1997.
On the revised elements paper, the US suggested that an additional objective for an MCP is to provide assistance to Parties and to include scientific and technological issues as an area of expertise. The RUSSIAN FEDERATION proposed specifically addressing the mandate of an MCP at future meetings. IRAN proposed amending geographical representation to equitable geographical representation. CANADA, supported by the RUSSIAN FEDERATION, proposed deleting a protocol as a possible way of establishing an MCP. The elements paper was adopted as amended.
The EUs proposed report on points of convergence states that a high degree of some convergence was recorded with regard to characteristics, such as: the nature should be facilitative, co-operative, non-confrontational, transparent and non-judicial; the objective should be to assist Parties in questions of implementing the Convention, solve problems and prevent potential disputes; the evolution of the process should be flexible; duplication of existing institutions and procedures should be avoided in designing the procedure; the process should be separate and without prejudice to Article 14; and the MCP should be advisory in nature. The proposed report further notes that many Parties stated further elaboration of the MCP would imply dealing with interpretation matters and that caution would be needed in this area.
CHINA, the PHILIPPINES, IRAN, JAPAN, THAILAND, CHILE, the RUSSIAN FEDERATION, GAMBIA, KUWAIT and MOROCCO said it would be premature to make conclusions on areas of convergence because the process is still evolving and contributions have been preliminary. The EU withdrew its informal proposal.
Delegates then considered the draft report of the meeting (FCCC/AG13/1996/L.1). The US, referring to the summary of the Chairs opening statement, recalled that the Chair had noted the potential link between the work of the AG13 and the AGBM. He also proposed deleting a reference to the process to be established because delegates have not agreed that a process should be established. The report was adopted, as amended.
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