The Durban Platform’s procedural innovation – the ‘Chairs’ Informal Reflections’

A new year in the intergovernmental UN climate negotiating process begins soon, following last November’s Warsaw conference with the first session of the Durban Platform working group (ADP) in early March. In this post, I want to offer an observation about a small, but politically and procedurally interesting development in the ADP process – the emergence of the co-chairs’ ‘informal reflections’ on the progress of talks.

It has now become customary for the ADP co-chairs to produce “informal reflections” following each negotiating meeting. These comments have come to serve as a sort of stock-take of recent developments and highlight key areas to be addressed in the coming sessions, across the two workstreams (the 2015 agreement and pre-2020 action) of the Durban Platform. Surprisingly (at least to me), their emergence in the negotiating process has not received much attention, which I will try and highlight here.

The Warsaw ADP ‘dumping ground’
The first and most immediate reason for the importance of these informal reflections is highlighted in the effort to conclude the ADP negotiations at the COP19 Warsaw conference. While one of the stumbling blocks to get over the finishing line was the trade-off between mitigation ‘contributions’ and ‘commitments‘ in the 2015 agreement, a second area that was in dispute in the ADP’s final hours, to which less attention has been subsequently devoted, was a list annexed to the draft conclusions, titled ‘Non-exhaustive list of areas for further reflection’.

This annex effectively listed the main topics to be included in the 2015 agreement and sub-issues needing to be further elaborated in the future: institutional arrangements, differentiation, commitments, mitigation, adaptation, finance, and so on. For instance, the bullet point on adaptation read: “Adaptation: exploring a global goal; ways of strengthening the implementation of national adaptation plans; linking national and global efforts”.

The annex had first emerged in the first draft decision produced by the co-chairs earlier in the week, when it had been titled ‘Indicative elements of the 2015 agreement’ as part of the draft decision (not conclusions). By the fifth draft of the ADP decision, produced on the final night, it had been revised and moved to the conclusions and re-titled as above. Nonetheless, objections were still raised in the interventions that began in the resumed ADP plenary (now lunchtime of the Saturday after the conference was due to close).

First, India commented that the contents of the annex had not been discussed “as elaborately as we would have liked”, and that in their current form that “disturb the balance that we are trying to strike in the decision text”. India thus suggested, however, that the annex be taken out of the conclusions – and that the co-chairs could  “probably capture not only these [the contents of the annex], but all aspects of our discussions, including divergent views, in a reflection note from your side.”

The next intervention, from China, similarly emphasised that the annex included elements that had not yet been fully negotiated and that the list was “firstly, not balanced, secondly, very selective, and thirdly, maybe misleading”. China then added that “We’re not calling for the elements, or the list of areas for further reflection to [be put] into the trash can, but positively recommend [that] you capture [this] in your reflection note after the session. Certainly we will come back to the reflection note…”

A passage that made me sit up, however, was the following response from one of the co-chairs, Kishan Kumarsingh (see approx. 41:00 on the webcast recording here):

“…while the co-chairs are flattered by the many suggestions that should be put into the reflection note…the chairs’ reflection note remains the chairs’ reflection note. It is not for negotiation nor consideration by parties. It remains under the full responsibility of the chairs, and belongs to the co-chairs, but we thank you for the kind suggestion in any event.”

This exchange raises a number of points, but the first is that the co-chairs’ informal reflections seemed to provide a sort of ‘dumping ground’ for ideas and elements in a draft decision that were not fully negotiated, and hence still contentious, but perhaps not completely so – a place to relocate them without completely discarding them. This may be an interesting way of how to handle issues that countries are not in complete disagreement about, but which they have not yet had the time to negotiate over in a line-by-line manner. At Warsaw, once countries agreed to strike the annex, the rest of the draft conclusions proceeded to be be adopted (see the final ADP session report here).

‘Let the co-chairs include these in their reflections, but take it out of the text at hand’ may be a new halfway house in the negotiating process.

Non-negotiable common ground

The second interesting aspect of these informal reflections, however, is the comment cited above about the non-negotiability of the reflections: “It remains under the full responsibility of the chairs”. Something that is “not for negotiation” is a striking comment amid the constant refrain of ‘party-driven process’. Again, this appears to mark a sort of halfway house that is neither just the submissions and views of members, nor draft or agreed language itself, but an attempt to set out in a somewhat impartial way what they see as the common ground. It appears to be a novel way of attempting to capture ideas that do not yet have full agreement, but may be on the way to doing so, and perhaps to avoid losing momentum between negotiating meetings and a reversion to previously articulated positions that a long, drawn-out negotiating process may be prone to.

One earlier note, published after the first Bonn ADP session in 2013, echoes this more directly, when it included two-and-a-half pages of ‘perceived areas of common ground’ as an annex to the reflections proper. This initiative received some pushback from countries at the second Bonn ADP session in 2013, but it nonetheless points to the broad potential of these informal reflections to capture progress in ways short of formal negotiating language itself. The fact that they are not negotiated may be cause for reticence in using them too closely during negotiations themselves, but this same fact may also be a bit of a guiding hand for countries who may be nervous about putting forward a proposal themselves.

The role of the (co-)chairs

The third interesting aspect of these informal reflections, thus, is more generally about the entrepreneurial role of the co-chairs in this UNFCCC negotiating process in their novel creation of this new procedural device. This new method was introduced by the first set of ADP co-chairs in 2012, and then seamlessly continued by their successors such that they are no longer, in this brief span of time, seen as exceptional.

As Joanna Depledge pointed out a few years ago (£), chairpersons in the UNFCCC process already have considerable discretion in the management of conference proceedings. Chairs, as a result of their election, are endowed with a certain degree of authority, even while their leadership is expected to be impartial. They can “act as a third party, and intervene in the negotiating dynamics among parties to cajole, persuade, pressurize, arbitrate, intermediate, or otherwise broker deals”.

In practical terms, they make judgements about the balance of the text, whether in take-it-or-leave-it scenarios or as a result of mandates given by states to synthesize and consolidate proposals into a single text (as in the ‘consolidated negotiating text’ prepared by chair Estrada-Oyuela in the Kyoto Protocol negotiations). During the AWG-LCA negotiations in 2010, a series of ‘indicative questions’ on each issue area was issued by the chair in order to prompt a more focused method of discussion, questions that are perhaps not too dissimilar from the ones being raised by the ADP co-chairs now.

These new ADP reflection notes very much emerge out of this lineage, and they also reflect the even greater roles of the co-chairs in the ADP process (they are also distinct from the ‘scenario notes’ which are typically issued ahead of negotiating meetings that lay out the proposed way of organising the work of the session, see the one issued for the March 2014 ADP session). The UNFCCC website now features a ‘co-chairs’ corner‘ section alongside ADP documentation, perhaps another indication of their status as independent third parties within the negotiating process.

When the first such note was issued after the Bangkok 2012 ADP session, it was caveated at the outset: “This note has been prepared under our own responsibility, and is without prejudice to future negotiations. It is not a basis of negotiations, but made available to Parties to help them in their preparations for Doha”. That first note was also issued without any formal document symbols or formatting. In 2014, a few such informal notes later, there is no need for such caveats about the status of the document – instead, as the co-chair’s comments quoted above suggest, the status of their independence is more assertively put.

The irony may be that this development takes place alongside discussions on the organisation of the UNFCCC negotiations, raised by Russia in wake of the Doha COP, a key element of which seeks to scrutinize the conduct and roles of the chair and presiding officers, as well as the assisting secretariat. Formally titled ‘decision-making in the UNFCCC process’, these ’17(d)’ discussions were the reason for the Bonn sessions of the subsidiary bodies being held up in June 2013, but were convened in an open-ended way in Warsaw to offer  a discussion space for questions on how the negotiations would be conducted. Even as these discussions begin in a formal manner, however, the co-chairs have continued to demonstrate the agency and independence that they possess – as the informal notes indicate.

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