Legal Lacuna in Durban at UNFCCC COP 17

Greetings from Durban!

My friend and colleague Mai-Linh Hong has been holding her own on Legal Lacuna for quite a while. (Thanks, Mai-Linh!) But how can one not blog from the UN Framework Convention on Climate Change (UNFCCC) negotiations in Durban, South Africa? Herewith are a few thoughts from a lone geographer trying to study a mega-event of governance and spectacle.

These meetings are being referred to as “COP 17” because it is the 17th meeting of the Conference of the Parties (the States that have signed and ratified the treaty), but there are multiple meetings/negotiations happening at the same time. There is the main COP, but there is also the Conference of the Parties that are Members of the Kyoto Protocol (COP-MOP, or CMP) (ie, not the US, and, very soon, not Canada). There are a number of permanent “subsidiary bodies” within the COP, that are made up of representatives of all State Parties (States send politicians and ‘experts’): the Subsidiary Body for Scientific and Technological Advice (SBSTA) and Subsidiary Body on Implementation (SBI). There are also ‘ad hoc’ groups that have more acronyms and are extremely important. That said, I can only cover so much. I’m looking for where biofuels are brought into the negotiations and surrounding discussions (more on that as it comes up), and I’m focusing on the SBSTA meetings, scheduled to last through the first week.

One of the reasons I’m focusing on the SBSTA negotiations is that just two weeks ago I attended the week long negotiations of SBSTTA in Montreal, Quebec. Also pronounced “substa” – but this one is the Subsidiary Body for Scientific, Technical, and Technological Advice of the UN Convention on Biological Diversity (CBD). The CBD is a ‘sister convention’ to the UNFCCC – along with the Convention on Combating Desertification, they were ‘born’ at the 1992 UN Rio Convention. The CBD acts as something of a baseline experience for me, because I was at the 10th COP in Japan last year and just recently at the 15th SBSTTA in Canada. There are a lot of differences between the CBD and the UNFCCC, which I’ll discuss more in the next few days.

But I thought a SBSTA meeting would be very similar to a SBSTTA – how much difference can one “T” make?

Well. I forgot that these SBSTA meetings are not a stand-alone, low-key affair – they are an integral part of COP17, and therefore these negotiations to provide ‘scientific and technological advice’ are deeply imbricated with all the negotiations happening right now – on the Kyoto Protocol, on whether there should be a mandate for a new legal instrument, etc etc etc. At least 20-30 times more observers were present at this first session of SBSTA than at the past CBD SBSTTA, and the State delegations certainly appeared to be politicians/negotiators rather than ‘experts’ (but I can’t confirm that).

And I should have known: UNFCCC is not known for transparency or access by observers/civil society to the negotiating processes. I happily showed up for the opening plenary meeting of the SBSTA Monday (Nov 28) afternoon, along with many other ‘observers’ (our section in the way back was packed out). After the initial statements from Party groups, the Chair announced that we would go through ‘administrative’ matters so that we could move on to substantive matters Tuesday morning. He then proceeded to run through the entire agenda, putting almost every agenda item into a Contact Group or an Informal Consultation, barely pausing for any statements, and discouraging discussion because it could be done in the side group.

No doubt, there is limited time here in Durban and a very heavy agenda. But from what I’ve seen at the CBD and here with the UNFCCC thus far, there are a number of important dynamics that follow from pushing all discussion into side negotiations:

Language – In Plenary, there is simultaneous translation into the 6 UN languages. Side negotiations are uniformally conducted in English, with no translation. Tough cookies if you have a problem with that.

Transparency – Observers are generally allowed to attend Plenary. Of the Contact Groups, generally the first and last negotiating sessions are open to observers, unless any Party objects (not uncommon). The Chair may allow observers in to the sessions in between or not, as they (and the Parties) see fit. Informal Consultations are never open to observers.

Alternative Voices – In Plenary sessions, there is usually time for representatives of inter-governmental organizations, indigenous peoples, business, and civil society to make statements after Parties have made their interventions. At the UNFCCC, it seems that observer groups don’t have space to speak in the Contact Groups they are actually allowed into (at least not in the ones I’ve attended thus far). (As opposed to the CBD, where observers can speak in Contact Groups but their suggestions aren’t reflected in text without Party support). In the case of yesterday’s SBSTA, there was no time in the plenary for any observer statements. This means the SBSTA negotiations will now run for the week in these side groups, most likely entirely missing the constructive and disruptive statements of civil society.

As much as I acknowledge the cost constraints of any UN negotiations, I do wonder about the cost of shutting out voices of outsiders and even some Parties. How can we get the most robust agreements possible? More thoughts on this in the days to come…

Apologies for the length – apparently it’s hard to communicate the most basic points about the UNFCCC without going in to context and acronyms.

Check out: for some Canadian independent journalists’ take on UNFCCC; – Perspectives of Pacific Island delegates – Law students from Lewis and Clark’s International Environmental Law Project (yes, I was once a proud IELPer)


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