Negotiator's Handbook

We will start by examining the rules of procedure, which play a critical role in MEA negotiations. All too often MEA negotiators have only a limited awareness of the rules of procedure. Many are technical specialists or strategic actors focused on their own specific objectives, and prefer to leave rules of procedure to legal experts. Some may not even recognize the influence that the rules of procedure have on the negotiations and substantive outcomes, as open discussion of the rules is often avoided among negotiators for various reasons. Yet even where no explicit reference is made to the rules of procedure, they constantly operate in the background, influencing Parties’ conduct and thus exercising a profound influence on the multilateral process and its outcomes. An obvious example is a rule on majority decision-making. Voting is generally avoided in international diplomacy, but whether and how consensus is obtained on a given issue may depend to some degree on the understanding of how Parties would vote. Overall, knowing the rules of procedure is critical to deal with procedural moves by other Parties or a presiding officer, because procedural issues can have a dramatic effect on the outcome of negotiations.

When States first form an a negotiating body or forum to negotiate a new MEA, one of the first items on the agenda is to adopt rules of procedure for the negotiating body. If the negotiations lead to an MEA, the latter typically provides that a Conference of the Parties (COP- see the section on structure) will, at its first meeting, adopt by unanimous vote or by consensus the rules of procedure as well as financial rules. Many of the rules of procedure and financial rules are the same for all MEAs. However, a negotiator should always be familiar with the particular rules of the MEA in question – there can be critical differences.

The objective of this introduction is to emphasize the critical importance of understanding the rules of procedure, without which major failures and frustrations can ensue in MEA negotiations, especially if the consequences of procedural decisions are understood only after they have already been taken. Once a decision-making process is underway, it may result in a proliferation of sub-processes based on a complex set of interrelated decisions. While these processes are susceptible to congestion and inertia, it is also possible that they can move toward an unexpected direction or conclusion very quickly. It is generally difficult - if not impossible - to undo process decisions in multilateral negotiations. It is therefore important to integrate procedural considerations, such as those governing decision-making, early on in one’s negotiating strategy. Some of the most important elements commonly found in rules of procedure and financial rules adopted by COPs are highlighted below. However, there are variations under different MEAs, and the relevant texts should be consulted in specific cases. (See also Section on the Products of Negotiation Phases for more perspective on the conduct of business in MEA fora.)

The frequency of sessions/meetings of the COP and other bodies for a specific MEA are laid out in the text of the MEA, its rules of procedure or both. The first session/meeting must be typically held no later than one year after the MEA’s entry into force. At the first session/meeting, the COP often adopts the rules of procedure that provide for the frequency of subsequent sessions/meetings. Subsequent COPs often take place yearly or every two years, with variations. However, a COP may decide to alter the frequency.

Extraordinary meetings can be held at such times as may be decided by the COP at an ordinary meeting or at the request of any Party, provided that the request is supported by the number of Parties defined in the rules. Of course, budgetary concerns weigh in heavily when considering such a request. 

Extraordinary meetings are typically scheduled ahead of critical COPs. In preparation for the UNFCCC COP 15 in 2009, four extraordinary meetings took place. In contrast, due to the COVID-19 pandemic in the early 2020s, many sessions/meetings and conferences were postponed or took place virtually. This includes the rescheduling of the important CBD COP 15 tasked with developing a new global biodiversity framework from 2021 to 2022.

As for the meetings of subsidiary bodies, the COP may decide on their dates. Generally, the COP can set the meetings of its subsidiary bodies to coincide with its own meetings. In practice,  subsidiary bodies often meet more frequently than the COP to prepare draft decisions and resolutions for adoption by the COP.

Managing the negotiating agenda is very important strategically. Only issues that are on the agenda will be considered. The agenda can therefore shape, prevent or promote discussion of particular subjects.

Depending on the rules of procedure, the provisional agenda for each meeting is prepared by the secretariat, with the agreement of the President of the COP. The provisional agenda is distributed to the Parties, together with supporting documents, generally at least six weeks prior to a session/meeting.

A Party has many opportunities to add items to the agenda. It may do so prior to the circulation of the provisional agenda by addressing its request to the secretariat. If the provisional agenda has already been circulated, a Party may ask that an item be added in a supplementary provisional agenda. Finally, it may ask the COP to add items to the agenda at the meeting when the provisional agenda and its adoption are being considered. In the latter case, the rules of procedure generally provide that “only items that are considered by the COP to be urgent and important may be added.”

 Most MEAs contain a rule of procedure that provides for an agenda item to be forwarded to the next session of that body if consideration of the item has not been completed. An example is rule 16 of the draft Rules of Procedure of the UNFCCC, which have not been adopted but are nonetheless applied.

The adoption of the agenda is a procedural matter which, failing consensus, is subject to decision making by a simple majority vote under MEAs whose rules of procedure provide so, for instance under the Basel, Rotterdam and Stockholm conventions. Under MEAs where decision making on procedural matters is subject to consensus only, such as the UNFCCC, it is relatively common practice for an agenda item to be ‘held in abeyance’ . An item on which there is no consensus is set aside but kept on the agenda, or ’held in abeyance’, so that the rest of the agenda can be adopted and work can start at a meeting. If at the end of the meeting there is still no consensus on the inclusion of the item, a common procedure has been established where it will be automatically included in the provisional agenda of the next session (often with appropriate footnotes indicating that it was held in abeyance at the last session/meeting).

The agenda for an extraordinary meeting shall consist only of those items proposed for consideration by the COP at an ordinary session or in the request for the holding of the extraordinary session.

Since budgetary ramifications of any items on an agenda are likely to be of interest to all the Parties concerned, the rules of procedure provide, or a practice has developed, whereby the secretariat must report to the COP on the administrative and budgetary implications of all substantive agenda items. To ensure that proper consideration is given to these issues, some MEA processes provide that a substantive item generally may not be discussed until at least 48 hours after the COP has received such a report, unless the COP decides otherwise. Such provisions are often overlooked, but can be useful. 

Under the Basel, Rotterdam, Stockholm and Minamata conventions, budgetary implications of all draft decisions are made available to the conferences of the Parties in advance of their meetings. During the meetings, the budgetary aspects of all decisions, including any new proposal contained therein, are reviewed and cleared by the budget contact group prior to their adoption in plenary.

The Bureau is a body focusing on questions concerning the management of the intergovernmental process.  During the session, the Bureau addresses process related issues in the negotiations. Inter-sessionally, i.e. between sessions of the COP, it provides guidance to the secretariat on the organization of the sessions and meetings of the COP and the subsidiary bodies. Rules of procedure provide for the election of the Bureau’s officers by the COP. Specified in the rules are, for example, the composition of officers (President, Vice-presidents, Chair and Vice-Chair of subsidiary bodies, and Rapporteur), their number, the duration of their respective terms, the number of terms they may serve (usually two), the need to represent all five United Nations regions and, in some instances, the ex officio members of the Bureau (normally the Chairs of subsidiary bodies). In case an officer of the Bureau resigns or is otherwise unable to complete his or her term, a representative of the same State is usually appointed by that Party to complete the term. In addition to the rules, practice and precedent has developed for a number of specific sub-issues such as the order of rotation for regional representation in the Bureau. Those working on such issues should investigate the history and practice of the MEA in question.

Most of the rules of procedure for the COP also apply ‘mutatis mutandis’ (with such changes as are necessary on points of detail) to subsidiary bodies. Some MEAs lay out rules specific to particular subsidiary bodies or provide that the COP may decide to modify rules for subsidiary bodies based on proposals to that effect from the various subsidiary bodies. In addition, and more commonly, rules of procedure for MEAs contain rules specific to subsidiary bodies.

One should not assume that these rules will automatically apply to ad hoc working groups or committees established by the COP or by subsidiary bodies. Therefore, when establishing such groups or committees, it is often important to determine the key rules (e.g. the voting rule) under which they will operate.

One particularly important rule for subsidiary bodies is whether meetings are to be held in public or in private. However, whether the rules specify public or private meetings, the COP always retains the authority to decide otherwise.

Some rules also confer the power on a subsidiary body to decide on whether their meetings will be open to the public. The rules also normally provide that the COP is to determine the dates of meetings of such bodies as well as the matters to be considered by each of them. Often the COP also elects the Chair for subsidiary bodies but it is not uncommon for the COP to leave this decision to the members of the body in question. Other officers are subsequently elected by the body itself, on the basis of regional representation.

All formal meetings are generally open to all Parties, unless they agree to another negotiation format (generally based on a proposal by the Bureau). On the use of more limited negotiating settings, see below on institutional practices. 

Whether a meeting is open or closed to observers can be strategically important. It can affect the behavior of Parties, including their willingness to share information, be seen to compromise, or to be perceived as difficult. Rules normally provide that meetings of the COP themselves are open to the public unless otherwise decided. In some MEAs, COP meetings are webcast and available to watch online either live or through a recording. Normally there is also a specific rule on the openness of subsidiary body meetings for observers (see ’subsidiary bodies’, above). Generally, non-Party States may sit as observers, and participate as such at the invitation of the President/Chair, as the general approach discussed under the rules of procedure for MEAs. 

Under some MEAs, such as the UNFCCC with a large number of observers and parallel meetings, COP and subsidiary body decisions have been adopted providing more detail concerning the openness of meetings. The UNFCCC COP has decided that observer organizations may attend any open-ended contact group meetings unless “at least one third of the Parties present at the session of the Convention body setting up that contact group object.” However, the presiding officers of such contact groups may determine at any time during the proceedings that the group should be closed. (See UNFCCC Decision 18/CP.4) The UNFCCC Subsidiary Body for Implementation (SBI) has further recommended that at least the first and last meeting of informal consultations are open to observers while recognizing that the Parties have the right to keep informal meetings closed.  

All formal meetings are generally open to all Parties, unless they agree to another negotiation format (generally based on a proposal by the Bureau). On the use of more limited negotiating settings, see below on institutional practices. 

Whether a meeting is open or closed to observers can be strategically important. It can affect the behavior of Parties, including their willingness to share information, be seen to compromise, or to be perceived as difficult. Rules normally provide that meetings of the COP themselves are open to the public unless otherwise decided. In some MEAs, COP meetings are webcast and available to watch online either live or through a recording. Normally there is also a specific rule on the openness of subsidiary body meetings for observers (see ’subsidiary bodies’, above). Generally, non-Party States may sit as observers, and participate as such at the invitation of the President/Chair, as the general approach discussed under the rules of procedure for MEAs. 

Under some MEAs, such as the UNFCCC with a large number of observers and parallel meetings, COP and subsidiary body decisions have been adopted providing more detail concerning the openness of meetings. The UNFCCC COP has decided that observer organizations may attend any open-ended contact group meetings unless “at least one third of the Parties present at the session of the Convention body setting up that contact group object.” However, the presiding officers of such contact groups may determine at any time during the proceedings that the group should be closed. (See UNFCCC Decision 18/CP.4) The UNFCCC Subsidiary Body for Implementation (SBI) has further recommended that at least the first and last meeting of informal consultations are open to observers while recognizing that the Parties have the right to keep informal meetings closed. 

To address a meeting, a delegate must have the permission of the presiding officer (President/Chair/Co Chair). A delegate raises his or her country’s name-plate (called “the flag”) or activates the electronic system to request the floor to speak. Priority is normally given to representatives speaking on behalf of Regional and Negotiating Groups.

Based on a proposal from a Party or the presiding officer, the COP may decide to limit the time allowed for each speaker as well as the number of times a representative may speak. Such practices are mainly used in plenary settings. In practice the presiding officer usually makes such decisions, without much discussion, though in theory a presiding officer could be over-ruled by the Parties (if there are major or repetitive issues, they will often be worked out in the Bureau). In some MEA fora, it is relatively common for the majority of Parties to intervene on each issue (particularly where there is a high level of diversity in national circumstances), whereas in other fora, it is more common for regional and other negotiating groups to coordinate their interventions as much as possible in order to more efficiently manage demanding agendas (see also Drafting Issues).

A point of order is a formal question by a delegate on whether a specific action by a delegate or presiding officer follows the rules of procedure. Points of order are raised on matters of procedure rather than substance and the presiding officer needs to satisfy the delegate on the nature of the issue raised. The point of order may relate to: the manner in which the presiding officer is exercising the powers conferred on him/her by the rules of procedure or inherent in the office; compliance with the rules of procedure; the manner in which the proceedings or debate is being conducted; or the maintenance of order at the meeting.

A point of order may be raised at any time during a meeting. This is done by making a ‘T-sign’ with the country flag, or using hands only. After a point of order has been raised, the presiding officer must immediately give the floor to the delegate raising a point of order and rule on it before discussion on other issues continues. A ruling may be appealed but will stand unless a majority of Parties present and voting decides otherwise.

Even under such MEAs where decisions must normally be adopted by consensus, procedural questions can be subject to voting and a majority decision. For example, rule 38 of the rules of procedure for the COP to the Minamata Convention on Mercury provides that the ruling of the presiding officer shall stand unless overruled by a majority of the Parties present and voting.

A procedural motion is a formal oral proposal on a matter of procedure. For example, a motion may be to decide whether a body has the competence to address an issue or adopt a proposal. Motions may be carried by consensus or vote. Before a vote, a delegate may withdraw a motion he or she has introduced, unless it has been amended. The following procedural motions (in order of priority) have precedence over all other motions and proposals but not points of order:

• suspend or adjourn the meeting;
• adjourn the debate on the question under discussion;
• close the debate on the question under discussion.

Proposals and amendments are made by Parties (even if a text is provided, at the request of Parties, by the presiding officer or the secretariat). The objective of a proposal is to have the Parties take a decision, and may include the adoption of a text, such as a work programme, action plan, guidelines or other products. An amendment adds to, deletes from or revises a proposal.

Any proposals as well as amendments to them should normally be introduced in writing, in one of the six official UN languages, and circulated to delegations by the secretariat. As a general rule there are no discussions or votes unless the proposals or amendments have been distributed a day in advance. However, the presiding officer may decide otherwise with regard to amendments to proposals or procedural motions. A delegate may withdraw a proposal at any time before the vote, unless the proposal has been amended.

Any delegate may request that any part of a proposal or amendment be voted on separately. If another representative objects, a vote must be taken on whether to have a separate vote on part of a proposal or amendment. Delegates first vote on the amendment and, if adopted, on the amended proposal (see also Amendments and Adjustments in Treaty Making Principles).

As rules of procedure are adopted by consensus in MEAs, any modifications to the rules also require consensus. Under the UNFCCC and CBD, the rules of procedure have not been formally adopted but the practice is to apply the draft rules of procedure with the exception of the specific and controversial draft rule concerning voting majorities.

Decision-making is generally accomplished by consensus among the Parties in MEA fora. Normally, after discussion if it appears that consensus is emerging, the presiding officer will ask if there is consensus. If no Party makes a formal objection, he or she will declare that the issue is decided (often using the phrase, ‘It is so decided.’).

Depending on the applicable rules of procedure, in the absence of consensus, voting may take place by a show of hands (in practice a delegation would raise its flag) or a recorded vote. In a recorded vote, the way each delegation voted is noted in the report of the meeting. A delegation may also request a secret ballot. Voting is not to be interrupted unless a point of order is raised regarding the actual conduct of the vote. A delegation may provide a formal explanation of vote prior to or after voting (depending on the presiding officer’s decision).

A Party may also vote or join consensus ad referendum. Adoption ad referendum would allow a Party to re-open debate on an issue at the subsequent meeting of the body in question. The effect of adoption ad referendum is that the decision would automatically be confirmed at the next meeting unless re-opened. The issue would not be placed on the agenda of the next meeting, and silence would be taken to indicate consent. This approach would allow a Party to consult with national authorities as required, and to reserve the right to re-open debate, but otherwise not impede progress.

Voting is exceedingly rare in international negotiations and Parties usually try to avoid them even if the rules of procedure permit voting. Nonetheless the voting rules may come into play in critical points of negotiation, and may also have some effect on how consensus develops.

The voting majority required to decide on some given issues is specified in the MEA itself (e.g. the adoption of rules of procedure and financial rules requires a consensus). For most other matters, the voting rules are found in the rules of procedure and, for some financial matters, in the financial rules (exceptions include the Rotterdam Convention, where decision making by consensus is required by Article 22 paragraph 5 of the Convention to amend Annex III listing the chemicals subject to the prior informed consent procedure.)

During negotiations on rules of procedure, the rule on the majority required for voting on substantive issues is, for most MEAs, one of the most divisive issues. Most rules provide that Parties make every effort to reach consensus but that, if they fail in their attempts to reach agreement, decisions may be adopted with the support of a specified majority (e.g. two-thirds). In some cases, Parties are unable to agree on a voting rule, they have adopted all of the rules of procedure with the exception of the voting rule (e.g. CBD, UNFCCC) or adopted rules of procedure with brackets around the contentious rule (e.g. Rotterdam and Stockholm conventions). Rules of procedure must be adopted by consensus, which is the de facto rule for adoption of any substantive decisions in the absence of an agreed voting rule.

[1] Consensus is defined in article 161(8)(e) of the 1982 Law of the Sea Convention as “the absence of any formal objection.” The Dispute Settlement Understanding of the WTO states that the Dispute Settlement Body “shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision.” These definitions reflect what is customarily understood as consensus.

Rules of procedure usually provide that all elections are by secret ballot unless otherwise decided by the COP. The rules of the body concerned should provide a detailed procedure on how elections should proceed. In practice, however, elections are usually decided through consultations, and the nominees elected by consensus.

Interventions: In the official plenary meeting of the COP, delegates may intervene in any one of the official languages of the MEA in question, which are usually the six UN languages: Arabic, Chinese, English, French, Russian or Spanish. All interventions are interpreted in the other official languages. If a representative wishes to intervene in a language other than an official language, he or she may do so only if an interpretation in one of the official languages is provided by that representative. To continue a meeting after interpretation services have been discontinued, agreement of the Parties is required (it is generally accepted that consensus is required, although procedural voting rules may apply).

Interventions should be made at a measured pace in order to allow time for interpretation, otherwise there is a risk of a misunderstanding. In practice, Parties often provide interpreters a written copy of their statements in advance through the secretariat. Some negotiators also manage to listen to the interpretation while speaking. 

In drafting and informal groups, it is a common practice that negotiations take place in English without interpretation.

Documents: In a UN forum, official documents are generally negotiated and drawn up in one of the official languages of the UN and then translated into the other official languages. Treaty bodies often designate a “working language,” which is often English.

In the UN, the number of authentic languages varies with the body adopting them. In most cases, UN MEAs provide, in their final clauses, that the texts are authentic in all official languages, i.e. at present Arabic, Chinese, English, French, Russian and Spanish. Rarely is a multilateral agreement silent on this point. If the resolution approving or adopting an agreement does not make specific provisions on the subject of language, the practice followed by the UN Secretary-General is to consider all official UN languages as authentic. Concerns about translation errors are addressed in the manner of other textual errors as discussed below.

It is possible that corrections to original treaty text or a text adopted under a MEA may be needed as result of: an error in typing or printing, spelling, punctuation, numbering; an issue of conformity between the original of the treaty and the official records of the international negotiation conference that adopted the treaty; an issue of discrepancy between different authentic texts constituting the originals of the treaty.

With respect to a treaty text, generally it is the depositary that initiates a correction procedure at the request of one or more of the States that participated in the negotiation and adoption of the treaty, or on its own initiative.

For a decision text, a similar process would be initiated by the MEA secretariat. A Party may raise an issue informally or through a formal letter to the secretariat or depositary. At COP 2 of the Minamata Convention, for example, the issue was raised immediately following the adoption of the contested decision.

In each case, the potential error should be carefully considered to determine whether there is an error or an issue and whether it effectively modifies the meaning or substance of the agreement. This could involve informal discussions involving Parties/ States and the depositary as well as the presiding officer(s) of the relevant negotiations. If the Parties and the secretariat or depositary cannot resolve the issue, it may be officially referred to the signatory States and/or Parties by the treaty secretariat or depositary, as the case may be. It can be quite important for all Parties to review corrected texts to ensure that their interests have not been improperly undermined.

Where the issue relates to the translation of an official treaty or decision text from a UN forum, the secretariat or depositary concerned would consult with UN translation services, either at UN headquarters in New York or in the relevant regional office. Translation into other languages will be based on this adopted text. Many agreements provide that all official languages are generally taken to be equally authoritative. However, if an issue of discrepancy between languages is raised in a timely fashion, as described below, the language of the text adopted by the Parties or the international negotiation conference in question is determinative.

With respect to official treaty text, the long-standing practice of the UN has been to circulate proposed corrections to all the States represented at the meeting that adopted the treaty, and all signatory States and contracting Parties.

In the absence of objections to the proposed corrections within the time limit, a correction is deemed to be accepted and is then effected in the original and initialed by a depositary authority. A corresponding procès-verbal of rectification is circulated under cover of a depositary notification.

While the depositary may circulate proposed corrections more broadly, only signatories or contracting States have a legal right to participate in any decision related to a correction. Objections to the correction of the original must be notified to the depositary within a certain period of time. Article 79.2 of the VCLT provides that the depositary “shall specify an appropriate time-limit within which objection to the proposed correction may be raised”. The general UN practice is a time-limit of 90 days from the date shown on the notification. However, in establishing the time-limit for objections to proposed corrections, account will be taken of factual circumstances such as the nature and the number of proposed corrections, and whether or not the treaty is in force.

If the depositary receives an objection to the proposed corrections within the time-limit, the depositary notifies the Parties concerned. If an objection is received after the time-limit has expired, the depositary will also generally inform Parties, even if it has no legal status.

Any interested State is entitled to object, if it does not accept that the proposed correction is justified or if it considers the correction procedure inappropriate. For example, a State may object that the time-limit is not sufficient; or it may object that a procedure that presumes tacit consent is not appropriate on the basis that the proposed correction would affect the substance of the agreement and amounts to an amendment, which should follow a specified amendment procedure. In case of a disagreement related to a correction, States must resolve it themselves.

In many instances, an MEA will provide that the COP shall adopt its own financial rules, though they are often based on UN financial rules, and may refer to them. These rules are meant to govern the financial administration of the COP, its subsidiary bodies and the MEA secretariat. They cover financial matters essential to MEAs and usually provide that, for other matters, the Financial Rules and Regulations of the United Nations will apply. For example, the UNCCD provides as follows:

The Conference of the Parties is the supreme body of the Convention. It shall make, within its mandate, the decisions necessary to promote its effective implementation. In particular, it shall: ... (e) agree upon and adopt, by consensus, rules of procedure and financial rules for itself and any subsidiary bodies;

Other MEAs may have different provisions. Key matters found in these rules are laid out below.

Income is added to, and expenditures drawn from, trust funds managed by the entity designated by the convention or the COP. Normally the rules provide for the creation of a number of such funds:

This fund is made up of contributions by Parties as well as non-earmarked contributions from other sources. In order to ensure the continuity of operations in case of a temporary cash flow problem, part of the fund is composed of a reserve, the level of which is determined by consensus of the COP. Any amount drawn from the reserve must be restored from contributions as soon as possible.

This fund is used to pay for the cost of participation in meetings of the COP and subsidiary bodies of representatives of specific categories of countries (e.g. in the financial rules for the UNCCD, participation costs are covered for representatives of developing, and in particular least-developed country Parties affected by desertification and/or drought, particularly those in Africa; in the financial rules of the UNFCCC for representatives of developing country Parties, in particular those that are least-developed countries or small island developing States; in the financial rules for the Stockholm Convention for representatives of developing countries and countries with economies in transition). It is composed of contributions specifically earmarked for that purpose by Parties and from other sources and is additional to those required to be paid by Parties to the general trust fund.

The rules sometimes provide for other types of trust funds (e.g. a Supplementary trust fund in the UNCCD for the participation of some representatives of NGOs from affected developing country Parties, particularly the least developed among them, and the Specific Trust Fund for the Specific International Programme of the Minamata Convention, a part of its financial mechanism.). In addition, the rules provide that the COP may approve the establishment of other trust funds consistent with the objectives of the Convention.

Contributions of Parties are due annually, normally by January 1, to the general trust fund on the basis of an indicative scale determined by the COP. MEAs do not contain binding obligations on Parties to make contributions, although they are generally treated as obligatory. Typically, the basis for the scale itself is the provision that proves the most difficult to negotiate, some Parties favouring the UN General Assembly’s scale as a model while others prefer other formulae. Generally, the former is ultimately adopted (modified with respect to Party membership, on a pro rata basis). The provision also specifies minimum and maximum contributions.

In addition, Parties may make other contributions, including some earmarked for the special trust fund. Parties should give notice of the intended amount and timing of their contributions sufficiently in advance. Non-Party States as well as governmental, intergovernmental and non-governmental organizations may also contribute to any of the funds. The secretariat must inform all Parties of the status of pledges and payment of contributions (depending on the rules this is done at each COP, annually or more often during a year).

A projection of income and expenditures for each year of a financial period must be prepared and forwarded to all Parties to the MEAs in advance (usually 90 days) of the COP meeting at which it is to be adopted.

The rules normally provide that the COP must adopt the following by consensus: the scale of contributions by Parties (each Party has a set contribution level); the budget for a financial period; the level of capital reserve; and any amendments to the rules.

The first part of this section provides a review of the institutional structure of MEAs as well as the informal mechanisms developed during MEA meetings to facilitate negotiations. The second part explains the main negotiating groups. UN MEAs are also part of a wider network of environment-related governance structures that together play a key role in the development of norms, policies and mechanisms to protect the environment (see ANNEX A, key non-MEA bodies in international environmental matters).

While MEAs typically establish the key bodies through which their objectives will be pursued, Parties have also developed, through practice, various ways to organize themselves to negotiate the different kinds of issues that need to be addressed on a regular basis.

Most MEAs establish a  supreme governing body called the Conference of the Parties (COP). Most protocols have a Meeting of the Parties (MOP) which performs the same functions set out for the COP below. In some cases, the COP of the Convention also serves as the meeting of the Parties to a Protocol - for example, the COP/MOP of the Cartagena Protocol and the CMP of the Kyoto Protocol. Even in such instances the COP/MOP and the CMP are distinct decision-making bodies and their membership is not necessarily completely overlapping with that of the COP.

All governing treaty bodies are composed of only Parties to the treaty in question and only Parties to a given instrument, such as a protocol, are competent to participate in related decision-making. In other words, if a country is a Party to the main Convention but not to a protocol, it cannot participate in decision-making under the protocol’s governing body (e.g. MOP or CMP).

States that are not Parties to the treaty in question, the United Nations and its specialized agencies as well as other intergovernmental and non-governmental organizations and civil society representatives may attend these meetings as observers in accordance with the applicable rules (see on observers above).

A COP often includes a High-level Segment (also called “Segment for high-level participation” or ”High-level Meeting”). This is composed of the highest-level representatives of States Parties attending a meeting, typically the Minister or equivalent. In some of the most important UNFCCC COPs, most Parties have been represented by their Heads of State/Government. It may be noted, that the High-Level Segment (HLS) is a forum for high-level political engagement but not commonly a forum for decision-making. This is the practice for instance under the Basel, Rotterdam, Stockholm and UNFCCC conventions. However, this is not the case for the ozone treaties, where decisions are adopted during the high-level segments.

The functions of the COP are set out in each MEA. Generally, a COP’s main function is to continuously review and evaluate the implementation of the MEA, and take such decisions as are required to promote its effective implementation. Some of the tasks are expressly provided for in the provision establishing the COP as well as in other provisions with specific issues. Depending on the MEA, these tasks may include:

• adopting rules of procedure and financial rules, rules for arbitration and conciliation procedures as well as financial provisions for the functioning of the secretariat;
•  establishing subsidiary bodies;
• receiving and examining periodic reports from Parties or its subsidiary bodies;
• adopting decisions as called for by the MEA (e.g. on guidelines, rules, implementation plans, technical and financial assistance, best practices, compliance);
• evaluating periodically the effectiveness of the MEA;
• making decisions regarding financial resources and mechanisms;
• developing and approving non-compliance mechanism;
• co-operating, where appropriate, with other organizations;
• mobilizing financial resources necessary for implementation;
• considering and adopting any proposed amendments to the MEA.

A provision of a more general nature usually confers on the COP the authority to consider and undertake any additional action that may be required for the achievement of the objectives of the MEA. Such actions can include the adoption of new agreements under the MEA in question.

Some MEAs establish or mandate the establishment of specific, permanent, subsidiary bodies.^[1]  Many of the essential features of these bodies are included in the MEA itself, including:

Purpose and functions: For instance, the UNFCCC provides that the task of the Subsidiary Body for Scientific and Technological Advice (SBSTA) is to provide “timely information and advice on scientific and technological matters relating to the Convention.” It goes on to list various tasks to be performed by this body. The CBD creates the Subsidiary Body for Scientific, Technical and Technological Advice (SBSTTA) to provide the COP and, as appropriate, other subsidiary bodies “with timely advice relating to the implementation of the Convention.” The CBD also includes a list of more specific tasks of the body. Under the Rotterdam Convention, the Chemical Review Committee (CRC) is tasked to review the information provided by Parties on their final regulatory actions. Under the Stockholm Convention, the Persistent Organic Pollutants Review Committee is tasked to review proposals for listing chemicals under the Convention.

Composition: Some of the permanent subsidiary bodies are open-ended, that is, all Parties to the MEAs are entitled to participate in their sessions/meetings while others have limited membership. Thus, the UNFCCC Subsidiary Body for Implementation (SBI) and SBSTA as well as the CBD SBSTTA are open-ended. On the other hand, the Stockholm Convention provides that the Persistent Organic Pollutants Review Committee “shall consist of government-designated experts in chemical assessment or management” and that “the members of the Committee shall be appointed on the basis of equitable geographical distribution.” In addition to equitable geographic distribution, some subsidiary bodies also encourage requirements for equitable gender composition and due regard to the special conditions of developing countries. One such example is the Subsidiary Body on Implementation of the CBD.[2] Other subsidiary bodies can be composed of independent experts not representing any Party, such as the Compliance Committee under the Aarhus Convention, where it is possible for civil society to submit nominations.

Decision-making: Commonly, subsidiary bodies adopt their decisions by consensus. However, there are some exceptions. The Rotterdam Convention provides that if all efforts at consensus have been exhausted, the Chemical Review Committee may adopt recommendations by a two-thirds majority vote.

MEAs may not preclude the establishment of subsidiary bodies in their text. Instead, the treaty may confer the COP the power to create such subsidiary bodies. For instance, Article 22(2)(c) of the UNCCD provides that the COP shall “establish such subsidiary bodies as are deemed necessary for the implementation of the Convention.” The Technology Executive Committee, The Standing Committee on Finance and the Adaptation Committee are indeed subsidiary bodies established under the UNFCCC on the basis of such a provision.

Some subsidiary bodies are, by the very nature of their tasks, meant to be temporary or ad hoc groups. For instance, the COP of the Basel Convention routinely establishes expert working groups  to consider specific legal and technical issues, for instance small intersessional working groups on the development of technical guidelines on the environmentally sound management of specific waste streams or the expert working group on the review of Annexes to the Convention with a view to improving legal clarity.  COP1 of the UNFCCC set up the Ad Hoc Group on the Berlin Mandate (AGBM), which negotiated the Kyoto Protocol. Similarly, in 2011 the UNFCCC COP established the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) to develop a protocol, other legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties by no later than 2015. One of its outcomes was the adoption of the Paris Agreement.

COPs may and do revise on a more or less regular basis the names and functions of subsidiary bodies (for example, bodies may be amalgamated). One subsidiary body found in all MEAs is the Bureau (for details on its functions, see the section on Roles).

Subsidiary bodies may also create subgroups to work on part of the mandate. Such groups may also be created directly by the COP. For example, the UNFCCC COP established a joint working group under its two standing subsidiary bodies, the SBSTA and SBI, to develop the compliance system of the Kyoto Protocol (see COP decision 8/CP.4, Annex II). The working group reported to the COP through the subsidiary bodies.

The COP decides how often these bodies will meet. In general, work of subsidiary bodies often takes place inter-sessionally and is considered at the following COP. For instance, the Legal Working Group of the Basel Convention met a number of times between COP5 and COP6. The work of the group allowed COP6 to adopt a number of decisions on subjects such as a compliance mechanism and an emergency fund mechanism.

Rules of procedure normally provide that the Chairs of standing subsidiary bodies are elected by the COP, although exceptions exist, for instance the Chair of the Implementation and Compliance Committee of the Basel Convention is elected by the Committee. Other officers are subsequently elected by the body itself on the basis of regional representation. However, all officers of the COP Bureau are elected by the COP.

MEAs normally establish a secretariat and provide for its functions. MEAs generally provide that, unless the Convention has already done so, the COP shall designate the entity to administer the secretariat at its first meeting. For instance, in its Decision 1/7, COP1 of the Basel Convention requested the Executive Director of UNEP to carry out the functions of the secretariat. UN MEA secretariats generally follow UN administrative rules and regulations and, unless otherwise decided by the COP, UN practices.

The functions of a secretariat may vary but it plays an essential role in ensuring the effective functioning of the COP and its subsidiary bodies. Indeed, its primary role is generally to provide administrative, logistical, process management, and procedural and substantive support to the COP. The COP may, and normally does, assign additional tasks to the secretariat. Often these tasks relate to the various international activities required to meet the objectives of the agreement. The tasks may be set out in the MEA, in decisions under the MEA, and often in rules of procedure.

In general, with the evolution of MEAs, the role of the secretariat has expanded considerably. Aside from preparing the documentation for the meetings of the COP and the subsidiary bodies, the secretariat is tasked with keeping the record of documents and decisions, and also keeping the official registries of implementation commitments and documentation. For example, the UNFCCC secretariat is responsible for keeping a registry of national communications, nationally determined contributions (NDCs), national adaptation plans and adaptation communications. The secretariat is also often tasked with writing synthesis reports and technical papers to support Parties in developing, communicating and effectively implementing agreements under the respective MEA. In addition to this, the secretariat, through its legal division, provides independent legal and procedural services to support the sound delivery of all mandated activities under the Convention and to support the intergovernmental process

Some MEAs list in great detail the tasks of the secretariat. For instance, Article 16.1 of the Basel Convention lists, in 10 subparagraphs, tasks for the secretariat, adding in an eleventh subparagraph that the secretariat shall “perform such other functions relevant to the purposes of this Convention as may be determined by the Conference of the Parties.”

Some of the most common tasks performed by the secretariats include arranging and providing logistical support for meetings of the COP and its subsidiary bodies. This includes giving notice of dates and venue of meetings, preparing the provisional agenda and reports, generally with the guidance of the President/Chair or bureau, and circulating the agenda along with any pre-sessional documents; many of these documents are prepared by the secretariat, while others are forwarded to it by Parties or observers. In addition, the secretariat arranges for all official documents to be available in the official languages of the MEA. Information (INF) and miscellaneous (MISC) documents and technical papers are normally in English only.

Other tasks carried out by secretariats are:

• support meetings by arranging for interpretation, distribution of documents during the meeting as well as the subsequent publishing and distribution of official documents such as the report of the meeting;
• report at meetings on the activities it has carried out between meetings and on administrative and budgetary matters;
• coordinate as required with other relevant international bodies;
• receive the information required from Parties by the MEA or requested from Parties or other sources by the COP or a subsidiary body and compile it in time for the next meeting;
• communicate all relevant information received from one Party to all other Parties to the MEA, as requested/appropriate;
• arrange for support for Party implementation of COP decisions, and respond to requests to the secretariat in COP decisions.

A treaty will generally designate a depositary which is responsible for managing documentary functions (e.g. recipient of expressions of consent to be bound or not be bound, of declarations or reservations by Parties, and keeper of the authentic versions of the MEAs and any amendments thereto). Parties may choose to designate any institution as its depositary, and most MEAs make such a provision in the MEA itself. Depositaries may also be joint, with more than one responsible authority, and they may also be transferred from one authority to another, if so decided by the Parties.

In the case of UN agreements, the UN Secretary-General is commonly given this responsibility, otherwise the depositary is often the State which hosted the last negotiating conference. The Secretary-General may agree to be responsible for the depositary for other multilateral agreements, subject to certain criteria, but this is not automatic unless it is a UN agreement.

A depositary’s duties are international in character, and the depositary is under an obligation to act impartially in the performance of those duties. In the case of the UN, the Secretary-General is guided in the performance of depositary functions by:

•  Provisions of the relevant treaty;
•  Resolutions of the General Assembly and other UN organs;
• Bulletin ST/SGB/2001/7, entitled “Procedures to be followed by departments, offices and regional commissions of the United Nations with regard to treaties and international agreements”;
• Customary international law; and
• Article 77 of the VCLT.
• In practice, the Treaty Section of the United Nations Office of Legal Affairs carries out depositary functions on behalf of the Secretary-General.

For original treaty texts and authoritative citations and references, the UN maintains a comprehensive treaty collection (https://treaties.un.org/). Under Article 102 of the Charter of the United Nations:

Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.[1]

Formally, it is for a COP to determine how an issue is to be addressed and disposed of. In practice, it is never easy to address issues, especially the difficult ones, in plenary meetings attended by all Party representatives along with many observers. This is also true for subsidiary bodies. This is why in MEA negotiating practice, matters are routinely referred to various groups not provided for in the treaties and related decisions. In fact, most of the negotiations in any given session will take place in such groups – in formal and informal settings and spaces. The work of these groups is often crucial to solve issues.

In most cases, the COP or subsidiary body adopts the proposals arrived at in such groups. In the end, for any proposal that such a group agrees upon, it must receive the formal approval of the body which created the group in order to move forward.

From the point of view of process management, it is important to ensure that not too many negotiating groups are in existence at the same time; it could be difficult for smaller delegations to cover simultaneously any more than one or two groups. At COPs and other big meetings, several groups are often created to address different issues but arrangements are made so that they meet at different times of the day. Some MEAs have established specific rules or practices with respect to the number of meetings that can take place concurrently. Under the UNFCCC, a scheduling rule of 2+4 is commonly applied, meaning that no more than two contact groups and four informal consultations may be scheduled in parallel. Under the Basel, Rotterdam and Stockholm conventions, the general approach is not to have more than two contact groups running in parallel.

Some of the most common groups to which the COP and subsidiary bodies employ are described below.

These groups are usually established to look at key issues on the agenda. After having introduced an item and given delegations the opportunity to state their opening positions on the matter, the presiding officer may suggest, on his or her own initiative or at the request of one or more Parties, that the item in question be considered in more detail in a working group. This ensures that important issues are carefully considered by a group of interested States while at the same time allowing the presiding officer to move to the next item on the agenda on the understanding that he or she will return to the deferred item once the working group is ready to report back to the official plenary meetings of the COP.

While the working groups are open-ended, the number of participants to the group will, in practice, vary depending on the number of States interested. The President of the COP or Chair of a subsidiary body will normally designate a Chair or, if it is a large group or one that deals with a particularly difficult issue, Co- Chairs (see section on the Chair) for the working group.

COPs and subsidiary bodies can both create working groups when needed. For instance, at the 2nd Meeting of the Ad hoc Open-ended Inter-sessional Working Group on Article 8(j) and Related Provisions of the CBD, the delegates met in two sub-working groups for most of the meeting to discuss substantive agenda items.

A common practice in MEA negotiations is to set up contact groups to deal with a specific issue. The President of the COP, or Chair of a subsidiary body or of a working group may suggest the establishment of a contact group. While a contact group is usually open-ended and open to the participation of observers, it most often involves those States and observers that have most interest in the issues at hand. One exception under some MEAs to the open nature of contact groups is the contact group on programme of work and budget which discusses budgetary matters.

One can expect contact groups to be created at almost all COPs. For instance, during meetings of the Conference of the Parties of the Basel Convention, there is a long-standing practice to establish three such contact groups: on strategic matters, on technical matters and on legal matters. In addition, given that the meetings of the Conference of the Parties of the Basel Convention are convened simultaneously with the meetings of the conferences of the Parties to the Rotterdam and Stockholm conventions, some joint contact groups on issues of common interest (e.g. technical assistance, international cooperation) are established, with substantively similar outcomes to be considered by each Conference of the Parties.

Under the UNFCCC, the opening plenaries of the COP and its subsidiary bodies routinely refer a number of agenda items to contact groups. These typically prepare draft SBI/SBSTA conclusions and/or COP decisions.

MEA negotiations commonly also take place in smaller informal settings. Depending on the MEA, informal groups are often established by the presiding officer rather than a plenary (President of the COP, Chair of a subsidiary body or Chair of a contact group) with the concurrence of the group or under his/her own responsibility.

Informal groups tend to have  similar characteristics in the various MEA processes and have designations such as: informal consultations, Friends of the President/Chair, informal-informals, drafting groups, spin-off groups, and indabas (the latter being distinctly UNFCCC).  Such groups are formed with a view to finding compromises on seemingly intractable issues; to advance negotiations on politically sensitive issues; to resolve issues through drafting proposals; to break political deadlocks; or to provide space for Parties to exchange views and identify areas of convergence/divergence. It is normal for work to start in a working or contact group but later continue in an informal group. For example, at UNFCCC COP21 the final text of the Paris Agreement arose out of the work of an informal group christened the Indaba of Solutions established by the President of the COP under the Comité de Paris.

In the context of particularly sensitive or complex negotiations, the President/Chair may take the initiative of creating an informal group to carry out specific tasks. This group is variously called “Friends of the Chair,” or the “Eminent Persons Group”. The group is often comprised of a relatively small number of delegates selected to represent regional groupings, to explore strategies for achieving consensus. Those that are invited are often the Parties that have most actively intervened on relevant issues. Under the CBD, the ‘Vienna Setting’ was used during negotiations on the Cartagena Protocol and the ‘Vienna+ Setting’ during negotiations on the Nagoya Protocol. Other actors with relevant interests may also be invited. For example, at CBD COP4, indigenous and community representatives joined Parties to draft a decision on traditional knowledge.

Inclusion in such groups may be a sensitive issue with some Parties or groups, and it is often preferable to include any Party with strong views in the group. One of the most obvious examples concerning the importance of transparent negotiating processes and inclusiveness is the UNFCCC COP 15 in Copenhagen where a small group, comprising mostly of Heads of State/Government, convened in parallel with negotiating groups established by the COP and drafted the ‘Copenhagen Accord.’ The group that produced the Copenhagen Accord was chaired by the COP President and included representatives from all regional groups and key UNFCCC negotiating groups. However, at the COP closing plenary, several countries challenged the negotiating process on the basis that it had not been approved by the Parties and was not adequately representative. Ultimately, the Copenhagen Accord was not adopted but only “taken note” of by the COP.

A Committee of the Whole (COW) is a body that can be differentiated from the formal plenary meetings of the COP but is composed of all the Parties. A COW was used to negotiate the final text of the Kyoto Protocol, for example. UNEA, although not an MEA governing body like COPs, establishes a COW to address various items on its agenda. A COW generally runs in a parallel meeting with the COP, allowing the COP to continue with its agenda, and is open-ended. For instance, at COP 3 of the UNCCD, the delegates agreed to establish a COW to consider various issues such as a proposal for an additional annex, outstanding rules of procedure, and annexes on arbitration and conciliation procedures. A presiding officer of COW was designated and invited to attend meetings of the Bureau.

The presiding officer may set up a drafting group to develop text on very specific issues. These groups normally meet in closed sessions. For example, at INC 6 of the POPs Convention an informal drafting group was set up to prepare a draft decision on methodology standards for effectiveness evaluation. The text was later presented to the INC that adopted it with only minor changes.

A Legal Drafting Group (LDG) can be set up as an open-ended group composed of lawyers from various delegations, to examine legal issues in general, or such a group may be set up to deal with a specific issue within a specific time frame. These issues vary greatly depending on whether an MEA is still under negotiation, is adopted but not yet in force or has entered into force. During negotiations, a legal drafting group will, among other things, carefully review the wording of each article proposed for inclusion in an MEA. Once the MEA is adopted and prior to its entry into force, the LDG will focus on legal matters that need to be addressed shortly after the entry into force of the MEA (e.g. rules of procedure and financial rules). Once an MEA is in force, other issues may arise, such as the elaboration of a compliance mechanism.

Originally, UN Member States were unofficially grouped into five geopolitical regional groups. Nowadays, equitable representation of all regions of the world in many UN bodies are allocated on the basis of geographical representation. This is particularly the case in the context of UN bodies with limited membership. The UN formally recognizes five regional groups organized primarily on the basis of region, but also in some cases, on the basis of shared interests with States from a particular region (e.g. Australia is part of the Western European and Other States Group).

When a subsidiary body or another group has a limited membership (e.g. a group composed of only five members), members of each regional group must decide which Party will represent them in the group. Where members of a regional group do not share the same position on an issue to be addressed, consideration should be given to proposing a body or group with sufficient numbers to fairly represent all interests. One of the chief tasks of each regional group is to nominate representatives to be elected as Bureau members.

The regional groups are as follows:

·         Group of African States

·         Group of Asia and Pacific States

·         Group of Latin American and Caribbean States (known as GRULAC)

·         Group of Eastern European States

·         Group of Western European and Other States (known as WEOG—this group includes Western European countries as well as Australia, Canada and New Zealand. Although the US only has observer status, it does attend the meetings and is considered as a member of WEOG for election purposes. In December 2013 Israel was  accepted into the WEOG, to be effective as of 1 January 2014. In the case of some MEAs, such as the Montreal Protocol, the WEOG regional grouping is referred to as the Like- Minded Group which includes WEOG members but also the Central and Eastern Europe Group, and some member States of the Asia-Pacific group, e.g. Japan.).

Many MEAs specify different obligations and treatment for countries designated as developing country Parties, least developed country Parties (LDCs), developed country Parties and countries in transition (CITs) to a market economy or economies in transition to a market economy (EITs). See also, ’International  Cooperation’, and ’The Rio principle of common but differentiated responsibilities’.

Many MEAs specify differentiated obligations and treatment for developing countries. In the absence of applicable definitions or mechanisms to determine which countries are developing countries, the practice in some MEAs has been for countries to voluntarily self-identify.

As noted below, the OECD has a list of developing countries for purposes of donor country reporting of bilateral aid. That list includes some countries that are also Eastern European. Other organizations, including the World Bank, have their own definitions. No such list or definition has been taken as authoritative for purposes of interpretation of MEAs, though donor Parties have used them for purposes of managing international cooperation in relation to MEAs (see International Cooperation). By way of example, the Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer, pursuant to Decision IV/7, considers whether a Party can be classified as a developing country on a case-by-case basis. The MOP has considered such factors as a country’s inclusion on World Bank, OECD and UNDP classification lists.

The United Nations Conference on Trade and Development (UNCTAD) is the body responsible for compiling the list of least developed countries (LDCs). This definition is used by the OECD and also in at least one MEA. For example, Article 4.9 of the UNFCCC uses this definition when it establishes that “the Parties shall take full account of the specific needs and special situations of the least developing countries in their actions with regard to funding and transfer of technology.” The UNFCCC COP has also established a special work programme for the LDCs, a Least Developed Countries Fund (LDCF), and a Least Developed Countries Expert Group (LEG). The designation LDC is also important with respect to bilateral aid, including bilateral aid related to MEAs.

Under some MEAs, developing country sub-groups other than LDCs have been defined. Under the UNFCCC and related agreements, Small Island Developing States (SIDS) are recognized as a sub-group of developing countries. SIDS are considered particularly vulnerable to the adverse effects of climate change and are given particular consideration in provisions related to adaptation.

The Paris Agreement also refers to developing countries that are “particularly vulnerable to the effects of climate change,” (see, for example, Article 9.4 of the Paris Agreement). The Agreement often mentions SIDS as an example of particularly vulnerable developing countries. The Agreement also extends the particular consideration of SIDS and particularly vulnerable countries from adaptation to also mitigation (Article 4.6), finance (Articles 9.4 and 9.9), capacity building (Article 11.1) and transparency/reporting (Article 13.3).

The countries of Central and Eastern Europe and the former Soviet Union Republics began, in the late 1980s/early 1990s, transition from centrally planned communist economies to a market economy. They are considered Countries in Transition (CITs) or Economies in Transition (EITs) by the DAC and the World Bank. Under several MEAs, CITs/EITs receive special consideration wherever developing countries are involved, particularly with regard to capacity development and financial assistance for implementation of the MEA in question.

Many MEAs also specify different obligations and treatment for developed countries, particularly with respect to financing and transfer of technology. This treatment is based in the principle of common but differentiated responsibilities contained in Principle 7 of the Rio Declaration on Environment and Development.[1] In general, the MEAs do not provide a definition of developed country. As with developing countries, in the absence of applicable definitions or mechanisms to determine which countries are developing countries, the practice in MEAs has been for countries to voluntarily self-identify.

Some MEAs  however, contain more specific definitions. In the UNCCD, “developed country Parties means developed country Parties and regional economic integration organizations constituted by developed countries.”

In the UNFCCC, Annex I lists the countries that were considered as developed ones at the time of its adoption in 1992. Annex I includes 41 countries; those that were members of the OECD in 1992 as well as the Russian Federation and other Central and Eastern European EITs. Annex II of the UNFCCC includes a shorter list of the wealthiest developed countries with special financial responsibilities.  Only Annex I countries had emission reduction targets under the Kyoto Protocol. However, the bifurcation between Annex I and non-Annex I country obligations grew increasingly controversial over the years due to changes in countries’ economies and greenhouse gas emissions since 1992. Reflecting this, the Paris Agreement does not refer to Annex I and non-Annex I countries but relies mainly on self-differentiation albeit with certain normative expectations.[2]

In order to have more leverage in negotiations within the UN system, countries with shared interests have, over the years, constituted negotiating blocs. These groups have become a permanent feature of the system and are very active in MEA negotiations.

While these groups are effectively very important, their status is generally informal, as opposed to the formal status of Parties and even regional groups. The main negotiation groups are as follows:

As of May 2022, there are 27 States that are Members of the EU. These are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.  The United Kingdom was part of the European Union until 2020.

Certain areas of the EU member States are not part of the EU, like the Faroe Islands (Denmark) and Aaland Islands (Finland). Areas that are far from Continental Europe on the other hand may be part of the EU. For example, the Azores, and the Madeira islands are represented by Portugal within the EU and the French Guiana, Guadeloupe, Martinique, Mayotte and Reunion by France. In total, the EU includes 32 special territories.

The EU differs from the other negotiating blocs in that adopting common positions in MEA negotiations is a legal requirement deriving from the Union’s founding treaties and regulated in detail by the Treaty on the Functioning of the European Union. To this effect, the EU Member States and the EU Commission collaborate closely during the inter-sessional period, including through the Environment Council. The Council is made up of Member States’ ministers working on environmental matters as well as the EU Commissioner for the Environment and the EU Commissioner for Climate Action. The Environment Council convenes four times a year and is responsible for adopting EU positions for international conferences and UNFCCC negotiations.

The EU Commission is explicitly mandated to represent the Union externally including in the field of international environmental policy-making. In practice, the Commission services and Delegation’s staff collaborate to ensure proper external representation in line with agreed positions. For instance, in public venues, such as plenary meetings of international conferences, or for delivering formal statements, the Commission and the Presidency take the floor on behalf of the EU.

Included are the Central and Eastern European countries that are not members of the EU. Russia as well as States that were former Soviet republics are in this group. Some MEAs contain specific provisions, usually regarding technical and financial assistance, that refer to these States as “countries with economies in transition.”

Several MEAs have negotiating groups/coalitions which are unique and specific to them.

Another example of a negotiating group is the Landlocked Developing Countries (LLDCs), which occasionally intervenes in MEAs negotiations. This group consists of 32 countries, 17 of which are classified as LDCs. See: https://www.un.org/ohrlls/content/landlocked-developing-countries.

The presidency or leadership of each of the negotiating blocs is usually assumed on a rotating basis. The G-77 & China presidency rotates annually, and generally a spokesperson will be designated for specific issues at specific meetings. While the G-77 & China positions will always be expressed by the formal spokesperson, individual G-77 & China members will often take the floor to support the official position tabled.

The groups often meet just prior to the beginning of a session and at various times during the session itself in order to determine priorities, common positions, disagreements and, more generally, to share information and discuss and review together their respective positions as negotiations progress. Meetings are also held between negotiating groups, e.g. between JUSCANZ and the EU, which comprise WEOG.

Cohesiveness during negotiations is not the same in each bloc. As discussed above the EU is a special case as it is rigorously cohesive in presenting a common position in its negotiations with other blocs. Its negotiating team is headed by the presidency and works in what is known as the Troika. The composition of the latter changes every six months and is made up of the Member State holding the presidency at the time of the negotiations, the Member State which will hold it for the next six months and the European Commission . The presiding Member State usually intervenes on behalf of the Union, although it may delegate this responsibility to another Member State on specific issues.

In contrast, JUSCANZ is more of an informal group and does not intervene as a bloc. Rather, it develops, in advance and to the extent possible, positions based on common interests. Each member then attempts to advance these common interests during negotiations, but intervenes independently with respect to their own interests.

During a session, Parties to an MEA that are also members of other organizations, such as the Commonwealth or La Francophonie, may also decide to meet to discuss issues of common interest and to intervene in a coordinated manner.

States are the main actors in international law and possess an international legal personality, including the ability to hold international legal rights and obligations. MEAs, as treaties concluded under international law, are essentially agreements between States. Only States  - and, if so provided, regional integration organizations (RIO), have the power to collectively adopt an MEA and an MEA may only enter into force through State – and RIO, acts of ratification or accession. Only States – and RIO, which ratify or accede to the agreement become Parties  to that agreement.  Other States are termed “non-Parties.” A Party’s interest to join an MEA may, to a great extent, depend on whether the international activities accomplished through the instrument correspond to domestic priorities.

Once an MEA is in force, decisions on how to implement it may only be taken by Parties as members of the COP. Only Parties may add to the agenda prepared by the President/Chair and the secretariat. In addition, Parties determine which items, within the agenda, will be treated as priorities. While each Party is entitled to a vote at a COP and all Parties are, formally speaking, equal, it is clear that influence within the various bodies of an MEA varies depending on a number of factors. These include whether other Parties have a strong interest in that State’s participation, whether the Party belongs to a bloc in which it plays a lead role, its ability to provide financial and technical resources, and the leadership it has demonstrated during the negotiations leading to the adoption of the MEA and thereafter.

The category “observers” includes a wide variety of actors, such as States not Party to an MEA, the United Nations and its specialized agencies, international organizations, the secretariats of other MEAs, environmental NGOs, representatives of indigenous peoples, business and industry, youth, gender, the academia and other research organizations.

Observers may participate in the COP and other bodies established under MEAs, but in most cases, they cannot make formal proposals nor can they participate in decision-making.

As mentioned in section 3.1.1.2, among the observers, the United Nations and its specialized agencies and States not Parties to a Convention have more  privileges to participate in meetings than the others, but for all observers, participation is a privilege, not a right.

In some processes, a State not Party to the Convention, while having no right to vote, is generally accorded the privilege of participating actively in the plenary as well as in the working groups, contact groups and all other groupings. This is, for example, the case of the United States that, although not a Party to the Basel Convention, is actively engaged in the work of the various bodies of the Convention. This privilege may, however, be withdrawn by the Parties. However, even in those cases, a body may not always accord a non-Party the privilege of intervening in any particular session, or may limit the duration and specify the time for such interventions, depending upon the situation.

If requested by a COP decision, the United Nations and its Specialized Agencies will report on the aspect of their work that is relevant to the MEA and may take part in the debates on issues that touch directly or indirectly on their mandate, for example, in the context of the Basel Convention, the International Maritime Organization and the International Labour Organization engaged in discussions on ship dismantling. The same is true for international organizations, for example, the OECD takes an interest in the work of the Basel Convention in part because OECD members have adopted a binding decision on wastes aiming to be consistent with the Basel Convention.

The secretariats of other MEAs are usually invited to engage in the process of negotiating a new MEA when issues of common concern are discussed. For instance,  the secretariat of the Basel Convention, the scope of which covers hazardous wastes, participated in the INC of the Stockholm Convention on Persistent Organic Pollutants. More recently, in its resolution launching the negotiations of a new treaty to address plastic pollution, UNEA reaffirmed the importance of cooperation, coordination and complementarity among MEAs, including the Basel, Rotterdam and Stockholm conventions, the UNFCCC and the CBD, and requested the UNEP Executive Director to facilitate the participation of and close cooperation and coordination with these MEAs in the the work of the Intergovernmental Negotiating Committee. 

Observers that are non-State actors, such as environmental NGOs, representatives of indigenous peoples, business and industry and the youth, will each represent the interests of their particular constituency and strive to have them reflected in the decisions taken under an MEA. 

There is a growing recognition of the important role that non-State and sub-national actors play in the implementation of MEAs, and the governance structures of MEAs are evolving accordingly. For example, UNFCCC Decision 1/CP.21, which adopts the Paris Agreement: “Welcomes the efforts of all non-Party stakeholders to address and respond to climate change, including those of civil society, the private sector, financial institutions, cities and other subnational authorities;”^[1] invites non-Party stakeholders to scale up their efforts on adaptation and mitigation^[2] and to register them in the Non-State Actor Zone for Climate Action platform;^[3] and creates a platform for the exchange of experiences and sharing of best practices on mitigation and adaptation in a holistic and integrated manner, for local communities and indigenous peoples.^[4] The Local Communities and Indigenous Peoples Platform (LCIPP) is an open and inclusive space and seeks to ensure the engagement, inclusion and partnership of indigenous peoples and local communities in UNFCCC processes.^[5]

Under the UNFCCC, the Parties also created the role of High-level Champions and these launched the Marrakech Partnership for Global Climate Action as a framework to strengthen the collaboration between Parties and non-Party stakeholders. Since the adoption of the Paris Agreement and throughout the evolution of the Marrakech Partnership, there has been unprecedented growth of non-Party stakeholders taking ambitious action on climate change.

Non-State Actors have been influential from early on in the negotiations of the Convention on Biological Diversity (CBD). In fact, the objectives of the Convention are of direct relevance to other organizations and stakeholders. In particular, the CBD recognizes the dependency of indigenous peoples and local communities on biological diversity and, under Article 8 (j) of the Convention, Parties have undertaken to respect, preserve and maintain the knowledge and innovations of indigenous peoples and local communities.

The role of non-State actors varies somewhat under different MEAs. They may be accorded the privilege to intervene in plenary on the various issues, usually after the Parties, non-Parties and the United Nations and its specialized agencies and other MEAs have had a chance to intervene. They may also be granted the privilege of participating in working groups and general contact groups but will usually be excluded from drafting and informal groups. In some cases, for reasons of transparency, they may be invited to participate as observers in the initial phases of discussion by these groups, with no right to speak except at the invitation of the presiding officer. As with non-Party States and IGO actors, a body may not always accord the privilege of intervening in any particular session, or may limit the duration and specify the time for such interventions, depending upon the situation. But with the evolution of decisions under certain conventions like the CBD and the UNFCCC, non-State actors’ rights to actively participate alongside Parties are being increasingly recognized.

For example, the CMS negotiation process is very dynamic and open to the participation of observers. The CBD also gives the right to non-State actors to participate in plenary sessions and contact groups of every working session unless one third of the Parties object to the presence of observers.

In recent developments, some non-State actors have gained the right to deliberate alongside Parties in working groups that inform the subsidiary bodies of the MEA and the COP. For example, the Parties at UNFCCC COP 24 decided to establish a Facilitative Working Group for the Local Communities and Indigenous Peoples Platform that has a mixed composition of Parties and seven representatives for indigenous peoples’ organizations, with members of indigenous peoples as co-chairs.^[6]

Under the Ad Hoc Working Group on Article 8 (j) under the CBD, observers can present proposals if supported by a party. Also, this working group has made recommendations to the COP to develop a new programme of work on Article 8 (j) aligned with the post-2020 global biodiversity framework with the full and effective participation of indigenous peoples and local communities.^[7]

Non-state actors can also play a key role by lobbying delegations in the corridors, informally suggesting text, holding information sessions on their activities, talking to the media, hosting side-events, etc. Frequently, they also play an important function in terms of providing information on the extent of domestic implementation and in alerting the international community to new problems not sufficiently addressed by existing MEAs.

Non-state actors can also play a role in terms of addressing compliance. For example, the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice (Aarhus Convention) established an independent compliance review body that reviews allegations of Parties’ non-compliance submitted by other Parties, but also by “members of the public”, in other words, individuals, groups of individuals or NGOs/associations.

Elected to preside over the work of a COP, the President/Chair is a key actor in MEA negotiations. He or she also chairs the Bureau. While in theory many of the formal and informal functions of a President/Chair allow him or her to exercise a great deal of influence on the outcome of meetings, in practice the extent of a President’s/Chair’s authority depends very much on the political capital he/she has gained with Parties, his or her own personal and diplomatic skills as well as whether there is broad support for the proposals before a meeting. Ultimately, the President/Chair remains under the authority of the COP and therefore, while in practice a decision of a President/Chair is not often challenged, it is always subject to being overruled by a COP.

The President/Chair, is elected by all Parties to the COP. The position rotates among the five United Nations regional groups. In practice, the host of the COP session normally nominates a high ranking official, often a Minister, for election as President/Chair of the COP. The nominee is then elected by consensus at the first meeting of the session. However, the person elected as President/Chair no longer represents his or her country since the President/Chair must be, and must appear to be, impartial (see Process Issues and Violations).

There has been increasing recognition of the importance of achieving gender balance in MEA negotiation processes, including for chairing roles. For instance, during their 2017 meetings, the COPs to the Basel, Rotterdam and Stockholm conventions noted that “Efforts are still needed to ensure that women and men from all Parties are represented in the bodies and processes of the three conventions” (Decisions BC-13/20, RC-8/13 and SC-8/23). All Parties are reminded of these decisions in the invitation letters to attend the meetings of the conferences of the Parties and when invited to consider putting forward candidates for election in bodies of the conventions. A similar approach is followed when choosing the chairs of contact groups during the meetings with an effort to ensure overall gender balance in addition to regional balance.

Another  example is that, the UNFCCC Parties at COP 18 “invited parties to commit to meeting the goal of gender balance by, inter alia, nominating women to bodies established under the Convention and the Kyoto Protocol with the aim of a gradual but significant increase in the participation of women…”[1] The COP also requested the Secretariat to maintain information on the gender composition of constituted bodies and to add the issue of gender and climate change as a standing item on the agenda of sessions of the COP.[2] In addition to this, the Paris Agreement recognized the need to respect and promote gender equality when taking action on climate change,[3] and Parties at UNFCCC COP 25 “recognized that the full, meaningful and equal participation of women in all aspects of the UNFCCC process…is vital for achieving long-term climate goals.”[4]

A recent innovation is replacing the term “Chairman” with the gender-neuter term “Chairperson.”

The main role of the President/Chair is to guide and conduct the process towards a successful outcome. As such, the President/Chair has a facilitative role but also authority under the rules of procedure to ensure that the process is fair, transparent and inclusive. As conductor and facilitator of the process, the President/Chair has to earn the Parties’ trust through impartial, efficient and transparent behavior and procedures.[1] He/she must ensure the observance of the rules of procedure, that is, the procedural integrity of the process. Once a President/Chair has been elected, they are hired for the process, not for the Party or group of States that they belong to. It is important for a President/Chair to “realize from the outset the importance of the management of people, dynamics, and process, and the ability to listen to everyone’s ideas, yet still combine them over time into something coherent.”[2]

As the person formally responsible for the orderly and efficient conduct of a meeting, the President/Chair has many functions and powers, including, to:

• open and close meetings
• introduce, usually with the assistance of the secretariat, each item on the agenda;
• recognize and give the floor to a representative of a Party or observer. If more than one delegation wants to intervene on a matter, the President/Chair will give the floor to delegations in the order they signified their desire to speak. Parties will be allowed to intervene first, followed by observers. The secretariat will assist the President/Chair in identifying the order in which Parties ask to intervene;
• allow or refuse discussion and consideration of proposals, amendments to proposals or procedural motions circulated for the first time on that day;
• determine whether a matter is substantive or procedural in nature;
• decide when to put a question to the vote;
• determine the order of voting on proposed amendments
• allow or refuse a Party to explain its vote;
• rule on points of order;
• call a speaker to order when remarks are irrelevant or repetitious;
• ensure that the rules of procedure are followed– hair the meetings of the Bureau held during or in preparation of the meeting;
• propose to the meeting the Chairs or co-Chairs of working groups, contact groups, etc – however, with regard to the Chairs of subsidiary bodies, their election is normally the responsibility of the COP; and,
• the President/Chair may also propose the following to the plenary:
• time limits on interventions;
• the number of times a representative may intervene on any given issue;
• the number of interventions before putting a question to the vote or closing the discussion on an agenda item;
• adjournment or closure of debate on a question under discussion; and,
• adjournment or suspension of a meeting/session.

More generally, a skillful President/Chair is often a key factor to a successful meeting. He or she can lead in plenary by encouraging representatives to focus on key issues, by asking representatives to clarify complex positions, probing positions for challenges and opportunities (in a balanced way), etc. A President/Chair is also frequently called upon to participate and intervene in working groups and contact groups. A President/Chair also has the discretion to form a group of Friends of the Chair to attempt to resolve particularly difficult issues (see section on smaller groupings). In addition, the President/Chair will often be invited to meetings held by regional groups in order to, among other things, discuss in advance upcoming agenda items.

Between meetings, a President/Chair will prepare with the secretariat and in consultation with the other members of the Bureau, a provisional agenda. Moreover, he or she will preside over inter-sessional meetings of the Bureau.

The President/Chair also has a key role to play in facilitating informal consultations prior to and during important conferences in order to prepare the ground for the solution of difficult topics or issues during formal negotiation sessions. These informal consultations may now also involve non-State actors because of the growing influence and voice of civil society.

The President/Chair may exercise great influence on the development of a negotiating text (see section on Chair’s text).

The President/Chair may propose a determination of the point at which sufficient views have been received from various countries to proceed with the drafting of a negotiating text that can serve as a basis for negotiations. The negotiating text will often be assembled by the President/Chair with the help of the secretariat, or may proceed based on a text put forward by a Party. The Chair will then present and explain his or her approach to discussing the text to the plenary, and if the text was put forward by a Party, the Chair would normally ask that Party to explain their text.

Between and during negotiations, the President/Chair will hold informal consultations with the negotiating blocs and work to identify issues of concern and identify common ground among the various positions. For instance, the President/Chair could attend a GRULAC meeting to share his or her views on the progress of negotiations and to discuss some of the key issues. In the final days of the negotiations, the President/Chair could intervene in small groups to broker consensus. The role of the President/Chair to facilitate negotiations on difficult topics has become increasingly important as demonstrated by the successful  Paris Agreement in 2015 where several inter-sessional high-level meetings involving key delegations developed an innovative solution, blending binding elements of accountability with non-binding emissions targets.[1]

During the plenary, the President/Chair will hear various views on a specific issue and may put forward proposals (to delete brackets, eliminate text, suggest new wording for acceptance) when he or she feels that members are ready to compromise and finalize the text. Text proposed by the President/Chair  often takes into consideration views expressed by non-State actors during formal and informal negotiation sessions.[2]

Any formal or informal group created in the context of an MEA requires a presiding officer (normally a chair/co-chairs or facilitator/co-facilitators).  In the case of a subsidiary body, the Chair is normally elected by the COP (usually by consensus), unless the latter decides otherwise. For other groups, Chairs/Facilitators are chosen on a proposal by the President of the COP or the Chair of a subsidiary body, often after informal discussions with interested Parties. In the case of co-Chairs/co-Facilitators, usually one is chosen from a developed country Party and one from a developing country Party. As mentioned above, there is a growing practice to take into account gender balance.  In general, the Chairs/Facilitators perform, more or less, the same functions and objectives set out for the President/Chair of the COP above. Whatever the outcome of a particular group, it is for the presiding officer of that group to report to plenary on the results of the meeting.

The Bureau is composed of at least one representative of each UN regional group. The size of the Bureau varies. For instance, the Bureau of the Rotterdam Convention has 5 members, the Bureau of the Stockholm Convention and the Bureau of the Basel Convention each have 10 members, the Bureau of the UNFCCC has 11 members . The Aarhus Convention states in its Rule 22 that:

“The Bureau shall invite a representative of non-governmental organizations established for the purpose of, and actively engaged in, promoting environmental protection and sustainable development […] to attend bureau meetings as an observer."

The officers of the Bureau are as follows: a President, Vice Presidents and a rapporteur. The positions of President and Rapporteur rotate among regional groups . In addition, members of subsidiary bodies are, in some MEAs, ex officio members of the Bureau. In the case of the Basel Convention for instance, the two co-Chairs of the Open-ended Working Group and the Chair of the Committee administering the mechanism for promoting implementation and compliance with the Basel Convention are full members of the Bureau. Similarly, under the UNFCCC the Chairs of SBSTA and SBI are members of the COP Bureau. The members of the Bureau are elected by the COP (see section on Bureau, under Machinery). In practice, discussions are held prior to the meeting between the various regional groups to arrive at an agreement on the members that will serve on the Bureau. Members usually serve up to two terms.

Between sessions, the Bureau will work closely with the secretariat to provide administrative and operational direction with regard to the work that the COP or subsidiary bodies have asked the secretariat to accomplish as well as guidance with respect to preparations for upcoming sessions. As the Bureau must also plan for the upcoming meetings, it will discuss agenda items and meeting structure with the secretariat. For instance, the Bureau will consider how many workings groups/contact groups will likely be necessary, how long the High-level segment of the meeting should be, what dates and venues should be selected for future COPs and subsidiary groups, whether there are any pressing budget issues and so on. It will receive and examine reports that are prepared by the secretariat in the interim, including reports of a budgetary nature. It can also be tasked with substantive tasks. For example, the Expanded Bureau of the Basel Convention frequently examined draft interim guidelines for an Emergency Fund.

The Bureaus of the different MEAs,  played an important role to determine how best to proceed during the 2020 COVID-19 related lockdowns and travel restrictions. In many instances, the COPs and inter-sessional meetings were postponed for 2021, and in other cases, meetings took place in hybrid formats. For example, the Bureau of the Fourth meeting of the COP to the Minamata Convention on Mercury decided to organize COP-4 in two segments: a first virtual segment conducted online in November 2021 and one in-person conducted in March 2022 in Bali, Indonesia.; while the 2021 meetings of the COPs to the Basel, Rotterdam and Stockholm Conventions took place virtually in a first segment and many of the COPs’ agenda items were deferred to June 2022, when Parties and stakeholders are expected to meet face-to-face.

During the session, the Bureau normally meets daily to discuss how the session is progressing and to address any process related issues as well as what to anticipate for the next day. As there is at least one member per region on the Bureau, each of them usually consults regularly with his or her own regional group in order to keep the Bureau abreast of particular concerns raised in the respective groups.

The Bureau also has the responsibility, at the beginning of the meeting, to examine and report to the COP on the credentials submitted by representatives of Parties.

A secretariat’s function is to serve the Parties, and in doing so, it is always presumed to be neutral. The secretariat’s functions are discussed in more detail in section 3.2.1.3. Its key functions during conferences relate to supporting the presiding officers and Parties to conduct meetings effectively. The secretariat, inter alia, arranges logistics for the meetings; ensures availability of documentation; circulates substantive proposals submitted by Parties; maintains a speakers’ list; and supports the presiding officer in the conduct of the proceedings by providing substantive, procedural and legal advice upon request.

At the beginning of the session/meeting, after introductory remarks by the President and a representative of the host country, the Executive Secretary of the secretariat will normally address the plenary. As the session/meeting progresses through the agenda, the President will frequently rely on the secretariat to explain the documentation. In addition, the secretariat will actively help the President in the procedural aspects of the meeting. It will take note of changes to a text and proceed to make revisions, under the supervision of the President. As mentioned previously, it will also assist the President in recognizing delegations from the floor and providing a speakers’ list. The secretariat can also provide information to the Parties, as well as various experts needed by working groups or contact groups on financial, legal and other matters, as well as the necessary support personnel.

Drafting issues arise in a number of MEA contexts, such as treaty negotiation, decisions of Conferences of the Parties, recommendations from subsidiary bodies to Conferences of the Parties and meetings of related organizations such as UNEA. Approaches to strategic flexibility, drafting terminology (including drafting structures), common provisions of MEAs and other drafting issues are addressed below.

In general, there needs to be a sufficient basis of common understanding of an issue in order to elaborate a text. If a text is proposed for which there is an insufficient basis of common understanding, additional information gathering and discussion options should be explored. For example, a workshop or working group could be considered. Examples of this are the ad hoc working groups under the CBD and the UNFCCC that have developed important aspects under each Convention driving its implementation and further development with a view to achieving its objectives. Under the UNFCCC ad hoc working groups with time-bound mandates have included: the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol that negotiated the Doha Amendment and the Ad Hoc Working Group on the Durban Platform for Enhanced Action that negotiated the Paris Agreement. Under the CBD, a noteworthy example is Working Group on Article 8 (j) on the role and involvement of indigenous peoples and local communities where a number of voluntary guidelines on this have been developed.[1]

Another notable example were the deliberations of the open working group tasked with the development of the 2030 Sustainable Development Agenda and the sustainable development goals, which benefitted from various inputs by experts, UN agencies and civil society on different topics during the course of more than a year leading up to the adoption of the Agenda in 2015.[2]

An agenda and all proposals that are to be the subject to discussion should be made available to Parties  prior to the meeting (often there are specific deadlines set in rules of procedure). Including a new agenda item is an important strategic matter that could change the course of direction of a given MEA, which is why there are strict rules of procedure governing this matter. For example, under the UNFCCC, the provisional agenda needs to be distributed at least six weeks before a meeting, including new items proposed by Parties before the provisional agenda is circulated.[1] Any item proposed by a Party after the provisional agenda has been circulated is usually included in a supplementary provisional agenda. 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 that are considered urgent and important may be added.

Preparing for a negotiation by developing a national position on the different agenda items is of critical importance to ensure that national interests have been adequately considered and represented. This is why one of the most important work negotiators do often happen before they sit down at the international negotiating table. It is important for negotiators to have mandates from their governments that clearly establish objectives, bottom lines and red lines. Since MEA objectives are long term, it is advisable to take this into account when defining negotiation mandates since they should, overall, contribute to the process moving forward. The mandate obtained should be based on national interests rather than positions set out in specific language. It should also be designed with options and fallbacks so that it is flexible enough to allow negotiators to respond to proposed texts as they evolve during a meeting. Preparation should be done with reference to the whole annotated agenda for the meeting and with specific regard to the draft proposals under discussion, with a view to minimizing the number of interventions required to achieve your negotiating position.

At the negotiations, Parties will have varying views about negotiating texts. When making a drafting suggestion one should remain constructive and flexible. Demonstrating a willingness to explore drafting flexibility can help a negotiator build influence and ultimately achieve important points. Negotiators should have a clear sense of priorities, be prepared to adapt priorities depending on opposition and opportunities presented by other Parties, and should avoid proposing meaningless changes for stylistic or grammatical reasons.

Negotiators should always understand their negotiating position well enough so that they can maintain their substantive points as required by the negotiating mandate, yet be flexible enough with language to accommodate proposals by other countries. Interventions on other Parties’ proposed text or on bracketed text (see below) must be diplomatic, and preferably should provide precise language to resolve the negotiator’s concern, directing the presiding officer and the room to the precise paragraph and line. Strategically, it is better to build on proposals put forward by other negotiators, so it is important to be able to re-conceptualize issues in different ways, based on a clear understanding of national interests. Alternatively, if major structural revisions are required in order to reflect key interests, then providing your own compelling conceptual framework in a persuasive manner is important.

When another Party’s position is compatible with yours, an ideal intervention allows the other language to stand while proposing precise textual additions or changes that meet your negotiating mandate. When another Party’s intervention is directly opposed to your delegation’s interests, it is important to express disagreement politely in the form of square brackets around the language. It is also useful to focus and limit opposition as much as possible. Providing a clear, concise rationale for opposition, and a clear alternative proposal may help sway those delegations that have no firm position and enable the room to come to a compromise solution.

When proposed language is longer than a few words it is helpful to read the text at dictation speed, and/ or indicate to the presiding officer that a written copy will be made available to the secretariat for the next textual revision, or for the meeting report, as the case may be. During virtual meetings and negotiations (see section on virtual negotiations), submission of text and proposed language are commonly required in written form, either through the chat box or as an attachment.

The type of language used in a treaty depends on the particular context. As treaties are legally binding, language should be as clear as possible in order to enable the determination of compliance by Parties. However, agreed language in COP decisions often has additional meaning because it may be tied to other parts of the document as a result of a compromise. This is why delegations ought to keep records of previous negotiations and to refer to them in preparation for future meetings. Recognizing that “constructive ambiguity” is often used to produce agreement in the waning hours of negotiation, this should nevertheless be avoided if possible. As ambiguity could mean that there has not been a meeting of the minds, this could later complicate domestic discussions on how to properly implement the treaty in question. Moreover, ambiguous drafting may lead to a situation where a treaty body, such as a compliance committee, may need to make an interpretation in order to make a decision. This may result in outcomes that negotiators had not anticipated.

Square brackets connote a lack of agreement about the text they contain, possibly including when a text has simply not been discussed. Where a proposed text is offered for discussion for the first time in an MEA forum, such as when it is drafted by the secretariat at the request of countries, generally the presiding officer will invite Parties to insert square brackets in an early round of discussions to indicate those areas with which they have difficulty. (Sometimes the first round of discussion will be limited to the general and conceptual level.) Once areas of difficulty have been identified, the brackets around the whole text can be dropped.

If there is any doubt about the acceptability of any text, square brackets should be considered. However, there will often be pressure from the presiding officer and other Parties to keep bracketed text to a minimum, so one should be prepared to give some justification, even if it is only to indicate that consultation within your delegation is required. A proliferation of brackets can make it difficult to manage negotiation of a text, especially where a complicated set of nested options is inserted. At worst, Parties might even have to reconsider whether the text or part of a text in question is a useful basis of discussion. However, when used well, brackets help to focus discussion on points of concern and allow for inclusion of alternatives in brackets for negotiators to consider at subsequent sessions or meetings. The following, taken from the Biosafety Protocol negotiations, provides a glimpse of the complexities of square brackets[1]:

Similarly, the following text from the negotiations towards the Minamata Convention provide an overview of the use of square brackets[2]: 

Mutatis mutandis is a Latin phrase that is used to mean ‘with such changes as are necessary on points of detail.’ It is often used where a principle or rule applies in more than one context. For example, the rules of procedure for the COP generally apply mutatis mutandis to its subsidiary bodies. This term should be used with care, however, as in some cases it is put forward when there is a need for more specificity.

Paragraphing is a common way of arranging legislative text. It involves dividing a sentence into different blocks of text. Paragraphing is hierarchical in the sense that a particular unit may be subdivided into further units. The way in which paragraphing is done in MEAs varies, but commonly, MEAs contain articles that are subdivided in paragraphs and subparagraphs. They are differently numbered, to distinguish their hierarchical relationship. For example:

·         Article 1: numbered to address a provision on a specific theme.

·         Paragraph: can be divided with or without numbering, e.g. with italicised lower case letters in round brackets: (a), (b), …

·         Subparagraph, commonly numbered, e.g. with lower case Roman numerals in round brackets: (i), (ii), …

The following example provides an illustration of paragraphing in the Minamata Convention:

If a text, as a whole, is generally acceptable as a basis of negotiation, then detailed amendments may be prepared and proposed to specific parts of the text. When providing written revisions, it is useful to follow a standard format, such as:

Language to be deleted should be put in square brackets with the bolded word ”Delete” at the beginning of the square brackets, e.g. [Delete: All governments should consider the importance of the global transition to sustainability]

New language to be added to the text should be put in square brackets, preceded by the bolded word “New” with the new text written in italics, e.g. [New: The new generation of global sustainability challenges require new forms of partnership and solidarity between nations]

Existing language to be changed in the text should be put in square brackets, preceded by the bolded word “Revised” with the revised language to be underlined, e.g. [Revised: It is particularly important that developed country governments consider the importance of the global transition to sustainability]

Where a text has been under negotiation, new paragraph proposals do not alter the paragraph numbering; otherwise there will be confusion. In such cases, the international technique used is to create provisions called “bis,” “ter,” “quater,” “quinque,” etc. to indicate a second, third, fourth, fifth etc. after the original provision. This type of numbering will be rectified after the negotiations are over.

In general, MEA processes have secretariat support for editing of documents before the adoption of final texts. For UN bodies, there is a standard approach to editing for spelling, grammar and style, including dates, numbers, capitalization, punctuation, quotations, as well as the structure of recitals and operative provisions. Some secretariats will pre-edit, proof read or provide informal advice on drafting.

This can help avoid difficulty in adopting final texts. There is a number of simple rules of thumb to keep in mind. In a report or other document it is preferable to use simple sentences. A decision is technically one long sentence, often with many clauses and sub-clauses. There should generally be only one operative verb in each paragraph. Avoid acronyms, as well as the use of the word ‘and’ as a means to link paragraphs. Refer to other documents with footnotes rather than in the body of the text.

With respect to English, standard UN spelling usually (but not always) takes UK forms particularly for nouns, and often takes US forms for verbs that end in ’ize’. Numbers 10 and higher are written in numerals. Note also that the US definition of ‘billion’ is used, i.e. a thousand million. In most cases, existing model text can be used.

Treaty and decision texts are created in a number of ways. For example, the Stockholm Convention on POPs evolved from a request by INC-1 to the secretariat to provide a basic text that could be considered by the INC at the next meeting as the negotiating text. In other contexts, such as the Biosafety Protocol, the secretariat was requested to draft less controversial provisions while countries made submissions on key issues that eventually were turned into a negotiating text by the Chair. The latter process that included several rounds of Party draft text resulted in a very cluttered “final” negotiating text heading into what was planned as the last session in Colombia.  In every multilateral negotiation, each delegation should consider which type of process is preferable for the creation of the initial negotiation text. This decision will be based on a number of factors, including the novelty of the area of international environmental law, the level of controversy, whether your delegation’s views would be properly reflected in a secretariat text, the perceived competence of the secretariat, and the process more likely to facilitate negotiations. Negotiations will unfold more easily when the initial draft text garners more support and is less contested, which is why early consultations with key delegations on the draft during the preparatory phase of negotiations may be critical. Annex B Case- Study IV provides a case study of how a Canadian delegation inserted a proposal into the negotiating text of the Stockholm Convention, laying the groundwork beginning at INC-3.

Preambular texts tend to be fairly long and less precise than operative provisions, and its drafting is typically left till the end  of the negotiating process. From a policy perspective, the preamble is used to establish the history and context of the issue, to refer to relevant pre-existing conventions and instruments and to explain how it came to be managed by the international community in treaty form; it is also used as a repository for matters not accepted for inclusion in the operative text. Because preambular[1] text can come into play in treaty interpretation as part of the treaty context as per the Vienna Convention on the Law of Treaties 1969, it is important that it be crafted in a manner that is supportive of an overall interpretive approach to the treaty that is acceptable.

Preambular text is written as a series of recitals and has a particular form as set out in , for example, the Stockholm Convention on POPs, which starts as follows:

As noted above (in ‘Elements of MEAs’), control provisions in MEAs are substantive provisions, which focus on an agreement to act or not act in a certain way in order to protect, conserve or enhance the environment. These commitments may focus on results, and take the form of control measures, standards or limitations, including specific bans and/or quantifiable targets. They may also include a focus on process (e.g. prior informed consent) or mechanisms to govern decision making and how certain activities are managed, the latter of which may be broken out and elaborated.

Control provisions should be examined from two perspectives: perceived difficulties a Party might have complying with strong language and environmental impacts if the language will not control other countries strongly enough. Where a Party seeks legally binding obligations, such provisions should be written with the use of mandatory terms such as “shall” or “must” as opposed to “should” or “may”. Negotiators tend to use “shall” coupled with other words that soften the impact of the “shall”.  For example, “shall, as appropriate” or “shall encourage” or “shall promote”. For more on “should” and “shall” see ’Forms of MEAs’ above, and ’Decision Texts’ below.

It is generally important to avoid the word “ensure” whenever possible as it is generally used inappropriately (see ’Decision Text’, below). An obligation should be constructed clearly enough so that it will be fairly obvious as to whether a party has complied or not with its obligations. Consideration should be given to whether obligations should be crafted as obligations of result, or obligations of conduct. Emission reductions are obligations of result and unless the means of reduction are specified in a treaty, each party will have the option of achieving that target in a number of ways. Alternatively, if the obligation is to implement a prior informed consent system for hazardous wastes, this is an obligation of conduct. Again, negotiators will have to consider which type of language is appropriate in the context.

The Paris Agreement is a treaty that combines both legally binding and non-binding components. In this regard, the communication of nationally determined contributions (NDCs) is legally binding, but the emission targets are not. In effect, the obligation created is one of conduct, that is, the “communication of an NDC” and not of result, that is, the “achievement of the NDC”.[1] 

Obligation of Conduct – Article 6(1) of the Basel Convention:

(1) The State of export shall notify, or shall require the generator or exporter to notify, in writing, through the channel of the competent authority of the State of export, the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes or other wastes. Such notification shall contain the declarations and information specified in Annex V A, written in a language acceptable to the State of import. Only one notification needs to be sent to each State concerned.

Obligation of result – Article 2A (1) of the Montreal Protocol:

(1) Each Party shall ensure that for the twelve-month period commencing on the first day of the seventh month following the date of entry into force of this Protocol, and in each twelve-month period thereafter, its calculated level of consumption of the controlled substances in Group I of Annex A does not exceed its calculated level of consumption in 1986. By the end of the same period, each Party producing one or more of these substances shall ensure that its calculated level of production of the substances does not exceed its calculated level of production in 1986, except that such level may have increased by no more than 10 per cent based on the 1986 level. Such increase shall be permitted only so as to satisfy the basic domestic needs of the Parties operating under Article 5 and for the purposes of industrial rationalization between Parties.)

In various MEAs, a compliance mechanism (see also section 2.4.13) is established to promote implementation of the treaty. This is the case, for example, in both the Kyoto Protocol and the Paris Agreement as well as the Minamata Convention. The Compliance Committee of the Kyoto Protocol has two branches: an Enforcement Branch and a Facilitative Branch. The Enforcement Branch addresses questions of implementation arising from reports of expert review teams and determines whether a Party is in compliance with its emissions target, reporting obligations or eligibility requirements for participation in the Kyoto Protocol mechanisms. In cases of non-compliance, the Enforcement Branch may suspend participation in the mechanisms or impose penalties for non-compliance. The Facilitative Branch, on the other hand, is mandated to provide advice and facilitation to Parties, provide early warning of potential non-compliance, and facilitate financial and technical assistance.

 The mechanism to facilitate implementation and promote compliance established under Article 15 of the Paris Agreement consists of an expert-based committee and is conceived as “facilitative in nature” and required to “function in a manner that is transparent, non-adversarial and non-punitive”. The Committee is mandated to address individual cases of non-compliance and systemic issues affecting several Parties. The Committee has the authority to engage in dialogue with the Party concerned, issue factual findings, make recommendations, and assist the Party to engage with finance, technology and capacity building bodies. The Committee is required to pay particular attention to the respective national capabilities and circumstances of Parties.

In May of 2019, the joint COPs to the Basel, Rotterdam and Stockholm Conventions achieved several notable outcomes, including: the establishment of a compliance mechanism under the Rotterdam Convention on Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The Compliance Committee is a subsidiary body of the COP to the Rotterdam Convention that was established under Article 17 of the Convention. The Committee has a double mandate to:^[2]

·         Deal with submissions relating to the compliance of an individual party;

·         Review systemic issues of general compliance.

Final provisions address issues such as depositary, languages, entry into force, voting, reservations, signature, application, amendments, and annexes (some of which are addressed above). The text of final provision tends to be very similar from treaty to treaty, and negotiators are advised to refer to precedents in other MEAs as these are heavily referenced by secretariats and legal drafting groups in drafting and reviewing these treaty texts.

Nevertheless, there is some variety, particularly in texts regarding amendment of annexes, so precedents should be considered very carefully and any variations from precedent given appropriate consideration (see also ’Treaty Mechanisms’).

The substantive outcomes of the Conferences or Meetings of the Parties to MEAs are usually decisions and, in some instances, resolutions. Decisions taken under an MEA are considered not to be legally binding unless that MEA explicitly provides the authority for legally binding decisions (see also section on Hard and Soft law above). If such authority is not provided for, but is required, Parties may decide to amend an agreement (see 'Amendments' above). However, amendments generally enter into force only after they are ratified by a certain number of Parties, or in some cases, in the absence of a certain number of objections.

There are examples of decisions including mandatory language (using 'shall’) taken under treaty provisions where it is not clear that there is authority to do so (e.g. Article 7 Guidelines under the Kyoto Protocol). Some Parties are of the view that if such decisions are adopted by the Parties, this reflects a clear intent on behalf of the Parties to accept a legally binding obligation. This notion should not be relied upon. In general, so that the intent of all Parties is clearly established, it is preferable to provide a clear delegation of authority in an agreement where this is the intent of the Parties, and to avoid mandatory language in decisions where the agreement in question contains no such authority (see also ‘Control Provisions’ and 'Decision Texts’). Parties have different views on these issues, so it is often important to seek legal advice on them. An example of an agreement, which provides authority for legally binding decisions is the Montreal Protocol, and which also provides for the Meeting of the Parties to decide to make adjustments that expand the coverage of the agreement.

Even non-binding decisions should be carefully negotiated for several reasons. First, they create good faith and political expectations including that Parties will comply with the decision. Second, some treaty bodies use decisions to provide effective interpretations of the treaty that were not made explicit in the treaty. Third, some decisions may contain or approve guidelines on a particular subject that may become the subject of an amendment or separate international agreement on the subject at a later date.[1] Indeed, it is possible that a non-binding text could be converted by Parties into a binding text through amendment (e.g. under Article 18 of the Kyoto Protocol), and there are examples in other areas of international law where a review or compliance mechanism is then added.

It is very important that decisions that are not intended to be binding are drafted in language that is not mandatory. Other options include permissive language, such as “may”; or hortatory language such as “should”; rather than mandatory language, such as “must” or “shall.” It is also very important, if mandatory language is used, that there is a clear authority for the treaty body in question to take a decision with mandatory language on the subject in question. (see 'Forms of MEAs’ as well as 'Control Provisions’ above).

As noted above, it is preferable to avoid the word ”ensure” especially in conjunction with mandatory language, as it is generally used inappropriately. “Ensure” means to make certain or guarantee, so it should not be used in a situation where governments are not in a position to effectively implement. (see ’Control Provisions’, above).

When in a particular forum, it is useful to have previous decisions as precedents, but also important from a substantive perspective to have a set of the most recent decisions on the topic under consideration.

Decisions typically take the form of a series of preambular clauses or recitals, followed by numbered operative text with the actions that Parties are to take. The opening word of each preambular or operative paragraph has significance. If a COP is asking for the assistance of another organization, it would not “request” action as it does not control that organization; rather it is considered more appropriate to “invite” the other organization to assist.

If action is considered urgent, Parties can be “urged”[2] to take action, if less urgent, Parties can be “invited”.

Since the secretariat is at the service of the Parties/countries, it can be “requested” to take certain actions, as can subsidiary bodies or the Parties themselves.

A subsidiary body or the secretariat can be given firmer direction via “instructed”.

When Parties are reluctant to “approve” a report an option is to “note” it instead; this can be a useful approach when a report has been insufficiently considered by delegations, for example, when issued with short notice prior to a meeting; where a report has been read and is supported by a delegation, the following words are appropriate: “welcomes,” and where strongly supported: “endorses.”

Care also needs to be given if a particular treaty article directs action to be taken in a certain way, such as by decision, then the draft text’s operative provisions should use the word “decides.”

Recommendations are typically used by scientific, technical or compliance bodies—i.e. those bodies that are subsidiary to the Conference of the Parties—to couch advice and propose actions. Sometimes such advice is couched in recommendation form and other times the recommendations are provided to the COP in the form of draft COP decisions.

In both situations, even where the ultimate decision will not be legally binding, care needs to be taken to make the recommendations as agreeable as possible for the reasons cited above.

Negotiating MEAs or COP and MOP decisions generates diverse documents. Many of them are official meeting documents prepared either in advance of a meeting (pre-sessional documents) or shortly after it has ended (meeting report). These documents are normally posted on the official website of the MEA in question. Other documents will be drafted and distributed for the first time at the meeting itself (in-session documents) with the immediate and short-lived aim of influencing negotiations. This type of document dies with the end of the meeting and is not posted on the MEA website.

Most of the pre-sessional documents are prepared by the secretariat and made available on the treaty website in advance of the session, although some may be submitted by Parties and circulated by the secretariat as information papers or MISC documents.

As a rule, these documents should be available in the official languages of the MEA. In practice, they are often first issued in one language and later translated. Moreover, while these  documents should be circulated at least six weeks in advance as per the applicable rules of procedure, many may only be ready on the eve of the meeting. This is often the case for pre-sessional documents of a budgetary nature.

Different types of documents are distributed at the meeting itself. Included among these are the following:

These documents serve a number of purposes: to explain in detail the position of a Party or negotiating bloc on a complex issue; to put forward new negotiating text; to report to the plenary on the results of the deliberations of a group. They are officially numbered (CRP.1, CRP.2 etc.) and their origin is clearly identified (from a group of countries, from a working group etc.). As mentioned above, these papers die at the end of the meeting. However, a Party may ask that part or all of a CRP be included in the final report of the meeting. CRP documents are often used when there is not enough time for translation into the official languages, as would be required for an L document.

These documents contain conclusions and decisions, and are central to the process, and must be translated into all six official languages before they are adopted. The “L” stands for ”limited distribution” as these documents are distributed only to meeting participants for the limited purpose of adopting their content. For instance, at the end of a COP, the secretariat will distribute to the Parties a draft final report identified as an L.doc. and the COP President will then ask Parties to approve it. It will then go through a formal secretariat editing process. Often, a pre-editing service is available, which can help avoid difficulties related to the final approval by Parties. Likewise, a draft decision will be circulated as an L. doc. In some cases, the COP President may propose adoption of items without the text having been circulated. If so, you should ask that an L version of the text in question be made available. Reports of sessions often provide an overview and contain addenda that may contain a number of specific decisions that, in turn, may contain annexes. These texts are very important. It should be noted that annexes and addenda are considered to be part of the document to which they are annexed or added. The legal effect of such texts is determined by reading a decision as a whole, with reference to the underlying authority for the decision.

A Party may draft what is called a non -paper for any number of reasons: for information purposes; to float possible proposals in order to elicit comments from other countries or to generate support. Contrary to CRPs, they have no official numbers. Observers or other groups may also distribute informal documents outside the meeting rooms either to provide information or to attempt to influence negotiations, or for both purposes. The secretariat will also circulate informal documents that contain the most recent version of text still subject to negotiations in various groups (e.g. the Legal Drafting Group will regularly receive an updated informal copy of whatever texts it is working on).

In order to assist the process of negotiating a draft MEA or a draft decision,  the presiding officer may be asked or may take the initiative to put forward a negotiating text. This may occur either before or during the meeting. In the negotiations of the Stockholm Convention, the Chair was asked by the INC 4 to clean up the draft text of the Convention in time for INC 5, including making attempts to address some of the non-contentious brackets. During the sixth meeting of the Open-ended Ad Hoc Working Group to negotiate a Protocol on Biosafety, the Chair, on the fifth day of the negotiations, introduced a Chair’s text (numbered as an L. doc. as it was distributed at the meeting – see UNEP/ CBD/BSWG/6/L.2 ). Some of the key provisions in this text differed significantly from the draft negotiating text previously distributed as a pre-sessional document.

Negotiating text may often contain bridging proposals by the presiding officers linking two or more topics as a means of facilitating an agreement by the Parties. Such was the case for the text proposed by the Ad hoc Working Group on the Durban Platform for Enhanced Action that would serve as a basis for the Paris Agreement on climate change.[1] Unless important national interests are at stake, delegations should refrain from taking stances that might undo these carefully crafted packages, which are intended to constructively move the process forward.

The report of the meeting is a key document as it records all the substance of the discussions and the main results of the meeting and, most importantly, will include in its annexes the adopted decisions. In addition, other important documents resulting from the meeting may also be included in the annexes. For example, if during the meeting the provisions of a compliance mechanism or the terms of reference of a particular subsidiary body were negotiated in detail, the most recent draft text on these items may be included in the annexes.

The adoption of the report is always the last substantive agenda item at an INC or a COP. As mentioned previously, an L version of the report is distributed and the President then proceeds to the adoption of the report, normally one paragraph at a time. If you do not agree with the accuracy of a portion of the report, it is important to say so at that point otherwise it will be too late. At that point you cannot add anything that was not said, discussed or produced in the session.

At INC 6 of the Stockholm Convention, countries had divergent views with regard to the extent of the work that should be done on compliance for INC 7. Some countries would have liked the secretariat to prepare, based on written comments from governments, a draft model for a compliance mechanism. Other countries proposed that the secretariat only prepare a synthesis based on the comments. A third group of countries wanted the secretariat to limit itself to compiling the written comments received from governments. At the time of the adoption of the report of the meeting, a number of countries stated that the report did not properly reflect the debate and, therefore, proposed modifications to the text. Further debate ensued and, in the end, the work to be accomplished on the compliance issue prior to INC 7 was laid out in some detail in the final report.

Reports of meetings do not usually name a Party that intervenes on a particular issue, referring instead to “a representative” or “some representatives”. Therefore, if you feel that your delegation’s position should be clearly reflected in the report, you should mention it to the President in plenary and, in order for the report to record verbatim your intervention, give a copy of it to the secretariat.

In some cases, when a meeting finishes late in the day, only parts of the draft report are available. As a result, the participants have no other choice but to rely on the secretariat to finalize the report in question, which often can be done in close cooperation with the Rapporteur. If a key issue was outstanding and not included in the draft report, you should review the complete report as soon as it is posted on the web (usually a few weeks after the meeting) to verify its accuracy. If some parts of it do not accurately reflect the meeting, you should immediately communicate suggested changes to the secretariat.

Like all UN documents, official documents prepared for or issued from meetings have series of acronyms and numbers which identify the MEA, the nature of the meeting, the serial number of the particular document, whether the document has been modified, the nature of the document, etc.

For UNEP MEAs the identifiers on the document will first state UNEP, followed by the acronym for the specific MEA. For example:UNEP/CHW: the Basel Convention

• UNEP/CBD: CBD
• UNEP/CMS:  CMS
• UNEP/POPS: the Stockholm Convention
• UNEP/FAO/PIC : The Rotterdam Convention (The secretariat functions are to be performed jointly by the Executive Director of UNEP and the Director General of FAO.)
• UNEP/MC: The Minamata Convention on Mercury

Documents of other MEAs will simply have the acronym of the MEA in question. (e.g. FCCC for the Climate Change Convention or ICCD for the Desertification Convention). For example:

• FCCC/CP/year/number (for UNFCCC)
• FCCC/PA/CMA/year/number (for the Paris Agreement).

Following the name of the MEA, an acronym will indicate which body of the MEA is meeting. The list below is far from exhaustive. While it highlights some of the most common acronyms (e.g. COP), it more than anything else, illustrates the multiplication of bodies, many of which are of a temporary nature.

• COP – meetings of the Conference of the Parties are indicated by COP followed by a number that indicates which meeting of the COP the document was prepared for or was issued from. For instance,
• UNEP/CBD/COP/6/20 is the report of the sixth COP of CBD. In some cases, there is no direct reference to the COP but simply a number after the acronym of the MEA. For instance, pre-sessional document UNEP/CHW.6/1 refers to the agenda for COP 6 of the Basel Convention. For UNFCCC, the documents refer to the CP for the Conference of the Parties and to the year of the meeting instead of the number of the meeting (e.g. FCCC/CP/2015/10/Add.1 is document that contains the decision adopting the Paris Agreement – 1/CP.21, and the Agreement itself).
• INC – meetings of the Intergovernmental Negotiating Committee. UNEP/POPS/INC.7/1 is the provisional agenda for the 7th meeting of the POPs INC.
• OEWG – means a meeting of an open-ended working group. Document UNEP/CHW/OEWG/1/1, a pre-sessional document, is the provisional agenda for the first meeting of the open-ended working group of the Basel Convention.
• LWG – means Legal Working Group. Document UNEP/CHW/LWG/1/9 is the report of the first session of the Legal Working Group of the Basel Convention.
• UNEP/CBD/ICCP/2/1 is the provisional agenda of the second meeting of the Intergovernmental Committee for the Biosafety Protocol.

Further examples of documents:

• UNEP/CBD/SBSTTA/8/1 is the provisional agenda of the eighth meeting of the Subsidiary body on Scientific, Technical and Technological Advice of CBD
• UNEP/CBD/BCH/LG-MTE/1/1 is the provisional agenda of the first meeting of the Liaison group of the technical experts of the Biosafety clearing-house.
• UNEP/CBD/CHM/Afr.Reg/1/1 is the provisional agenda of the Africa regional meeting of the Clearinghouse mechanism.
• UNEP/CBD/MYPOW/1 is the provisional agenda of the Open-ended intersessional meeting on the multi-year programme of work for the Conference of the Parties.

Modifications to texts are indicated through the following identifiers added at the end of the series of acronyms and numbers on a document:

Add. – this document adds to the initial text. For instance, UNEP/CHW.6/1/add.1 is the annotated provisional agenda that adds information to the provisional agenda for COP 6 of the Basel Convention.

Corr. – this is a text that corrects an error in a previous document. In UNEP/CHW.6/36/Corr.1 three corrections were made to the document on Consideration of matters related to the budget. UNEP/CBD/COP/5/1/Add.1/Corr.1 is corrections to the annotated provisional agenda for COP 5.

Rev. – this means that this text replaces the one previously issued. For instance, UNEP/CHW.6/ INF/2/Rev.1 is an updated list of pre-session documents for COP 6 of the Basel Convention. UNEP/CBD/COP/5/1/Add.1/Rev.1 is a revision of the annotations to the provisional agenda of COP 5. It supersedes and replaces document UNEP/CBD/ COP/5/1/Add.1 and Corr.1.

Pre-sessional documents prepared either by Parties, observers or the secretariat for information purposes are known as INF documents. For instance, UNEP/ CHW.6/INF/10 is a submission by Canada to the COP 6 of the Basel Convention providing comments on the “Analysis of issues related to Annex VII”.

However, comments received from Parties and circulated without any formal editing may be classified as miscellaneous documents with the identifier MISC. Document FCCC/SBSTA/2003/ MISC.3 for example contains individual submissions from nine Parties to the Subsidiary Body for Scientific and Technological Advice of the UNFCCC on needs for specific methodological activities and on a strategic approach to future methodological work. Each of the submissions is reproduced in the language in which they were received and without formal editing.

Approaches to achieving one’s negotiating mandate differ depending on the size of the meeting and the type of group in question: a plenary, a contact group, a drafting group, a “Friends of the Chair” session or a meeting of experts. This section first addresses issues common to most meetings, regardless of their size, and then turns to strategic issues as they play out in meetings of different sizes.

Always be prepared. Know your brief thoroughly, including all of your fallback positions, and be ready to respond to questions from other delegations, both formal and informal. Always carry your negotiating instructions and briefing book with you.

You should learn about a particular forum before you arrive (e.g. its objectives, history, and structures, key players), and have access to the rules of procedure should you need them. You should also have a copy of the relevant MEA and consult it frequently during your discussions. If you are participating in negotiations with responsibility for specific issues, you should nevertheless have a copy of the whole draft text in order to keep the overall context in mind. It is also wise to keep a brief record of your delegation’s positions in previous meetings and how they have fared.

Immediately prior to and at the meeting, participate in regional/negotiating groups coordination meetings and discussions related to your issues to generate support for your delegation’s approach (e.g. in JUSCANZ, European Union, G-77 and China, AOSIS etc.). Get to know your foreign but like-minded colleagues responsible for your issues, as this will facilitate reaching agreement as the meeting progresses. In most cases, you should communicate to them your delegation’s initial position only.

Informal discussions before the meeting and during breaks are important venues to discuss your delegation’s positions “on the margins” and canvass and encourage support for them. Working or social meals with other delegations can also be a means to improve rapport and understanding generally and on specific issues. Be prepared to participate in meetings during lunch hours. Building good relationships and trust with delegates with differing positions during breaks, being courteous and professional at all times and maintaining a constructive demeanor can reap many benefits during difficult negotiation sessions. This is particularly the case in the long-term since you are likely to encounter the same delegates at different COPs and meetings.

If you are responsible at the microphone for an issue on behalf of your delegation, you should never leave the presiding officer/microphone unattended. When numbers permit, you should ideally have another member of the delegation with whom you can consult, and who can carry notes and drafting proposals to other delegations on your behalf, while you engage in debate.

At the beginning of the meeting, you should ascertain the method of being recognized by the presiding officer: this can be by raising your Party’s name card (called the ”flag”), by pressing a button or both[1] and in any meeting, but particularly in smaller groups, by getting the attention of the secretariat member supporting the presiding officer.

All interventions are directed to the presiding officer. Upon being given the floor, you should thank the presiding officer before moving into your intervention, all of which should be framed as an address to the presiding officer, even when points are intended for a specific Party.

There are different types of interventions at different stages of MEA meetings and negotiation sessions. For example, during high-level events at COPs, heads of delegation present the foundations of their countries’ positions and will point in the direction where they think the overall negotiation process ought to go. These statements are political in nature and, as such, are intended for multiple audiences, including domestic constituencies, which is why some of the issues raised in these statements may, at times, seem not to be as focused as desirable to the tasks at hand during the negotiations. Nonetheless, these statements serve an important purpose in terms of garnering the necessary political support domestically for what delegations are about to undertake during negotiation sessions. Other interventions, at the technical level, happen in contact groups and informal settings and these are meant to bring clarity to issues regarding which there may not be a common understanding as yet. Later in the process, when delegations meet to consider proposed text, the interventions are usually oriented to making changes and suggestions to the language in the document being considered. These interventions need to be informed by national interests and made in good faith, (see section 4 below).

A good intervention:

• Is spoken slowly for the benefit in particular of the interpreters and for those whose first language is not covered by interpretation services;
• Is concise;
• Provides your delegation’s position clearly along with a compelling rationale;
• Provides precise drafting language in the simplest terms possible;
• Works to the extent possible with existing language; and,
• Avoids re-opening issues that have been laid to rest/have had square brackets eliminated; alternatively, in the rare case where circumstances justify re-opening, be prepared for resistance and justify why your approach should be followed (for example, it helps solve a set of square brackets).

 It is critical to listen carefully to the interventions of others and, to the greatest extent possible, support interventions that are generally consistent with your own position in order to generate support for your delegation’s proposals. In your intervention, it is strategic to indicate support for particular countries that have a common position and, in doing so, to name countries from different regions where possible. As noted in the section on Drafting, where you cannot agree with a proposal, you need to clearly say so, identify the concern, ensure that the proposal is bracketed, and if possible, insert your own into the text (in brackets when there are other points of view).

The timing of an intervention is a matter of judgment (see section on Strategic issues in a plenary/large meetings). Whenever possible, let other countries do the heavy lifting. For instance, if another Party has already intervened to secure one of your objectives, for example to insert square brackets around problematic text, and if this has been accepted, you may not need to intervene. However, it may be important to show support and generate momentum for Parties with whose position you agree, but who appear to be isolated. In such cases it is important to at least register your delegation’s position, and possibly to provide supporting rationale. Moreover, if it is likely that a small group may be convened to discuss the issue, making an intervention may result in an invitation to join the group. And otherwise, if the other Party concedes, it will be difficult to prevent the presiding officer from closing the issue.

Before making an intervention, particularly if it is complex or sensitive, you should consult other members of the delegation(s) most concerned with the topic and obtain their views on the intervention. For major interventions, it is ideal to have a printed text available for consultation and for use during the intervention. For responsive interventions in the heat of debate, it is important to jot down your key points before you intervene, always taking into consideration the time limits for interventions.

If you are in a meeting and it appears that you have little or no support in a room for your delegation’s position, there are a number of options available to you:

• You may wish to reconsider your position in light of what you have learned from delegations with other similar interests and conditions, but any changes in national position must be consulted with and approved by the head of delegation.
• If you are alone, you may wish to intervene with questions for other delegations (without being obstructionist).
• In exceptional cases, such as the final stages of a negotiation where you are alone in a small group, you may try to contact your head of delegation by cell phone, text message or e-mail if this is an option. Depending upon the kind of group you are in, you could ask for a brief adjournment, or in extremis you could suggest the presiding officer consider an issue on which your delegation takes no position and step out of the meeting.
• You can seek the support of other delegations by approaching them via a member of your delegation or others, or if alone, by leaving your microphone only briefly.
• You can apologize to the meeting, clarify your concern, insert square brackets but indicate that you will confer with your delegation/capital to see if you can release the square brackets later in the session.
• You can use a range of drafting/wording strategies (see Drafting).
• If these strategies are not successful, another option is to concede a point on the condition that your delegation obtains satisfaction on other issues of importance to it.

If you cannot achieve your bottom line, such a decision should be taken in consultation with your head of delegation. Prior to making this kind of proposal you should, to the extent possible, first conduct informal consultations with other countries. For example, you could indicate to the presiding officer that this was an important point for your delegation, but that in order not to hold up progress, your delegation is releasing its objection, with some expectation of a sympathetic consideration regarding issue X, which arises later. Depending upon the state of negotiations you may need to make it explicitly clear to the presiding officer that if your delegation is not satisfied with the outcome on issue X, your delegation will then reserve the right to revisit the original issue. However, sometimes it may be more effective to manage such situations informally, so that Parties are not forced to react for the record.

Be prepared to report to the delegation, clearly and concisely, on what happened on your issue. Take detailed notes, particularly on negotiating text changes. This will help you verify the accuracy of the next version and of the final meeting report. As square bracketing in negotiating text can be complex at times (see, for example, 3.4.1.2.1), it is important to verify that all of your textual changes and square brackets are properly inserted by the secretariat in the succeeding draft. Also, noting which delegations and regions had particular perspectives in support or opposition to your own will enable you to more effectively target delegations you need to win over or support. In practice, the secretariat edits the text while negotiators intervene and all changes are visible to participants.

Keeping a daily record of negotiations, with a brief summary of what happened at the end of the day, will help you report to your delegation next morning and also prepare your final report at the end of the meeting or session.

As noted in 3.4.1.1 on drafting strategy, it is important in a meeting to intervene only as often as necessary to secure a resolution of an issue in line with your delegation’s mandate. In large negotiating venues, such as a plenary, negotiators tend to intervene only once on a particular issue. In plenary, if it is necessary to intervene a second time, the negotiator may apologize to the President for intervening again on the matter.  However, UN protocol aside, ultimately the bottom line is achieving your delegation’s negotiating position by being forthright and speaking when the negotiating text is not satisfactory. Therefore, a sufficient number of interventions should be made to secure your position and also increase the likelihood that the presiding officer  will name your delegation to join any closed drafting groups or friends of the Chair.

Unless you are, for a particular reason, trying to lead opinion in the room and start a wave of support, it is usually wise not to make an intervention too early.

It is useful to wait and hear from each of the five UN regions or the negotiating groups/coalitions, as appropriate, at a minimum; look around the room to gauge the number of flags raised in order to intervene at an appropriate moment. There may be certain countries that you want to follow because you know their position and want to rebut or support it.

As other countries speak, it is important to take note of interventions being made in the room by Party and region/negotiating group; this enables the delegation to assist the negotiator at the microphone to “work the room” by shopping alternative proposals and drafting suggestions to other delegations.

To give the negotiator additional clarity, it is advisable to organize notes by issues of interest to your delegation and noting next to them the delegations that seem to support your country’s position on the matter or to oppose it.

If a position is particularly complex, or a completely new negotiating text is desired, a new proposal could be more easily accepted, or at least understood, if presented as a Conference Room Paper (”CRP”), which is a formal numbered paper distributed only in the language(s) in which it was prepared. CRPs die after the meeting at which they are presented and are not found on the MEA websites.

Another option is to circulate among potentially like-minded countries an informal document called a “non paper”. A “non paper” provides ideas, allows for the integration of comments from other countries, and can generate support. Because of its informality, it is not submitted to the secretariat as a CRP and does not receive a number.

Where the delegation is not successful in having a text finalized according to instructions, whether the text is a draft provision of an MEA or a COP decision, it may insist to the President that its particular understanding of the text in question be reflected in the meeting report. This understanding may later serve as interpretative guidance.

Where the text at issue is a provision of a draft MEA, a delegation may:

• Seek to have an issue mentioned in a resolution at the diplomatic conference or as a footnote to the COP decision formally adopting the treaty. This is often done when an issue has not been addressed directly in the treaty itself. Mention of it in the resolution/COP decision may keep this issue alive for the future.
• Seek to have the issue included in the interim work programme.
• Formulate, in cases where there are serious concerns about the text, an interpretive statement upon signature or file it with an instrument of ratification. Since most MEAs preclude the filing of reservations to the treaty (see section 2.3.7.), these interpretive statements should be prepared in consultation with legal and policy advice.
• Block, if the concern is of paramount importance, adoption of a treaty text where the decision making rule is by consensus. This is done only in rare and very serious cases, and would have to be done by the head of delegation, probably in consultation with capital.

As mentioned above, most negotiations take place in groups other than the plenary, whether in working groups, in contact groups, in informal groups, in drafting groups, through Friends of the Chair, or otherwise. Many of the methods previously mentioned may be employed to make your point in these venues. You should continue to speak through the presiding officer unless the level of informality does not require it. It is acceptable to make more frequent interventions, and such meetings are often heavily influenced by personality and the synergy that arises when compromises are actively sought.

Meetings of smaller groupings are held in various places. Although contact groups, informal consultations and drafting groups are sometimes quite large in number, such as in the context of UNFCCC negotiations where a contact group can consist of more than fifty people. While often they are around hollow square tables, in some cases the presiding officer sits facing the room. Choosing where to sit is often key in contact groups, informal consultations and drafting groups, so arrive early and deposit your papers on your preferred seat. Make sure to be located so that the presiding officer can see you clearly. This will prevent the presiding officer from “conveniently” not recognizing you for whatever reasons, including when you are about to express a controversial position.

On occasion it may be important to sit beside the delegation of another Party with a similar position to facilitate consultations. However, if too many like-minded countries sit together, be aware that this may be perceived negatively. For instance, if some like-minded countries are seen as intransigent, while you want to be perceived as more flexible, this seating arrangement could hurt your position. If you wish to intervene after others have done so, it is useful to sit at the back of a room where you can see all of the flags raised. In other situations, such as in a very small drafting group, you may wish to sit in the middle to have more influence and eye contact with the entire group.

Location can also be important at meetings where text is negotiated on an overhead screen. You definitely want a seat where you have an unobstructed view of the text. This type of negotiation is easier because there will be a print-out at the end of the session, but you should still take notes and verify the text carefully before and after it is printed out.

Expert meetings will normally be set up with a clear mandate from another body, typically the COP. Usually a group, anywhere from roughly 30 to 60, is selected, based on equitable geographical representation and relevant qualifications.

Individuals attending expert meetings are not expected to represent national positions, but rather to provide expert advice (nonetheless, representatives are generally expected to avoid openly criticizing their Party’s own position). If a participant has any doubts about this, it can be clarified beforehand with the presiding officer or secretariat and made clear to all at the outset of the meeting. This means that the results of an experts meeting may later be disclaimed by any government, including those that sent participants. However, you should be mindful that if your delegation’s participant agreed with a report from an expert meeting, there will be some expectation that your delegation will likewise agree with it when the report is presented to the COP.

Because an expert is not expressing a government view, there is typically less strategizing at these meetings. Nevertheless, the techniques on interventions are still relevant, as are the strategies of speaking to other experts outside the meeting to try to influence their interventions. Ultimately, your delegation’s expert should try to ensure that his or her views are reflected fairly in the meeting report. This is even more important when these views are not shared by the majority of participating experts.

It is important to understand at the outset the nature of the outcome to be generated by the meeting. In other words, you should be careful to ensure that the meeting report reflects what the mandate required. If the COP did not ask for recommendations on an issue, no such recommendations should be included in the meeting report; it should only contain a summary of the different perspectives raised.

As previously mentioned, secretariats are intended to be neutral servants of the Parties to an MEA (see the section on roles). However, it is important to remember that they also have their own views and advice received from them should be taken with this in mind. Informal conversations with secretariat personnel are often very useful as they will be able to share their insights on an issue and how the meeting is progressing. If you have any doubts or questions concerning procedural or legal matters, it is appropriate to address them to the office of legal affairs of the secretariat.

When proposals are made from the floor, these should be provided to the secretariat in writing as soon as possible to facilitate inclusion in the text or meeting report.

If you are approached to chair an ad hoc meeting, you should speak/consult with your head of delegation to consider whether this is in your delegation’s best interests. There are a number of considerations to be taken into account. If your delegation is small, it may deplete your numbers too much to be able to allow it to function effectively in that and later sessions. At times, you may be asked to act as a presiding officer because you are clearly one of the most qualified persons to do so; alternatively, it can be because you are a compromise candidate or your delegation’s strong position is known and the offer to chair is intended to neutralize your delegation.

When your delegation is chairing a session, it may make it more difficult for your delegation to take strong positions– without putting the presiding officer in a difficult position. Therefore, if you are making interventions with your delegation in the presiding officer, you should generally take as low key an approach as possible in achieving your negotiating position. Further, there may be times when your colleague will rightfully rely on you to facilitate his or her role as presiding officer, by proposing compromises or supporting procedural approaches and decisions. However, there are times when your mandate will require you to intervene forcefully. If you can foresee such a situation, it is a good idea to warn your colleague acting as presiding officer ahead of time.

In some cases, an issue may not be “ripe” for decision by the COP, and may be deferred for decision at a later date. There may be various substantive or strategic reasons for either timely or delayed decisions, including the availability of relevant information, urgency, progress on related issues, or how an issue fits into the overall package at a specific meeting.

Strategic thinking about shaping the final package is important from the outset, but there are certain critical points of particular importance, such as when the agenda is being set, or when negotiations are at the point of moving from one body to another.

Where an issue is or could be dealt with in different groups, it is also important to consider how the structure of the meeting, and the influence of different actors may impact outcomes, and to consider working through the bureau for the

most reasonable or advantageous allocation of issues among negotiation groups. Often it is moreimportant to influence the process than to develop strong rationale and substantive positions. However, a combination of both can produce the best results. Strategically influencing the venue and participants, in key discussions at the official and ministerial level, can be much more efficient and effective at producing desired outcomes. Relationships are important in this context, and delegates who are more familiar with the key players and the process have a distinct advantage.

In general, technical discussions are best handled in smaller groups, subsidiary bodies, or informal groups. The more an issue involves policy choice, the more it will need to be addressed by the plenary of a subsidiary body, the COP or a High-level forum. Where there is a lack of agreement on policy issues, often a solution can be brokered among key players in a “Friends of the Chair” format or ministerial informal consultations or outreach processes as is often the case in climate change negotiations. If an issue is still unresolved toward the end of a session, another option is to set up more technical discussions in order to develop more options for policy makers. If the issue continues to prove challenging to address, it can be forwarded to a technical group for the next session, or to an intersessional technical meeting or workshop.

Where it can be foreseen that there will be difficulty reaching consensus on an issue with technical dimensions, often a side event during a session may be a useful way to raise understanding and comfort levels on policy options. Another option is to organize brainstorming or “lab” sessions under Chatham House Rules[1] where delegates, in their personal capacity, and protected by confidentiality in what is said during the meeting, can find common ground and better understanding as a result of the more informal setting and topic and interest focused discussions.^[2]

Some diplomatic conferences are set up with a view to addressing high-level policy choice issues, some of which will require high-level political decision making, and generally require the involvement of Ministers. These conferences require a higher level of organization and strategic preparation, and generally begin with or culminate in a ‘high-level segment’ that is set up to resolve key issues. Other conferences will be of a more technical nature, or the policy choice issues can be resolved at a relatively lower official level, and do not require this much preparation.

Setting up higher level decision making in order to achieve desired outcomes requires a broad perspective not only of the specific issues under negotiation in any given session, but also of related, current, past and future negotiations, as well as relationships among key players. At this level, the art of the deal involves setting up the trade-offs in such a way as to allow for balanced outcomes, aggregating issues and constructing options so as to produce desired outcomes. If emerging outcomes are unexpected or undesirable, it becomes necessary to focus on how the most important issues are treated, and how they could quickly be realigned in a new strategy.

It is particularly important to keep in mind that high-level officials and Ministers will generally not be able to deal with more than a very few issues (usually a half a dozen or less) with clear options. If they are overloaded, they will generally opt for simple solutions. This dynamic can be and is used strategically, and is of particular concern to those Parties whose proposals are complex. If you are supporting such a position, you need to make progress at the working level, and be concerned about delay tactics. Another consideration to keep in mind is that high-level decision making is relatively final. Whereas technical issues may be re-considered as a matter of course in relation to new developments, high-level decisions are rarely reconsidered, and once an issue is set up for a high- level decision it is very difficult to stop or change the direction of the decision-making process. So it needs to be set up well in the first place, and the high-level decision makers need to be periodically informed on the matter so that they are fully abreast of the issue when the time comes.

It is very important to consider the role of leadership, such as the bureau and presidency of a COP, and the secretariat role in supporting such leadership. The secretariat and the Chair or presidency will often develop a strategy and an overarching vision of the package of outcomes they see as necessary in order to gain agreement and move forward. Parties that can work on this level, influencing or presenting their own compelling vision, can greatly increase the likelihood of being successful with their mandate. In almost every case the President and the secretariat will endeavour to be neutral, but they nevertheless need to show leadership.

It is generally important to work with and support the President and the secretariat, but in some cases you may find that they are consistently working toward outcomes that are incompatible with your mandate. In the latter situation, it is very important to work at high levels and through the bureau to ensure that your concerns are addressed. And in any case, it is always important for the delegation to follow bureau discussions to learn about issues that are raised by others.

Regional/negotiating groups play a key role, organizing and coordinating leadership on different issues of common concern to the group, as well as feeding into bureau discussions. Not only is it important for the delegation to participate in the appropriate regional/negotiating group, but it may also be useful to monitor and, where possible, influence the deliberations of other groups.

One of the most powerful tactics that can be employed by a COP President is to present a ‘take it or leave it’ package near the end of a session. In some cases they may indicate that they will consider a limited number of changes only. In such situations, one or a few Parties may be isolated. If you can foresee a likelihood of your delegation being isolated in such a way, it is important to consider whether or not your delegation is in a position to block consensus. It is far preferable to seek solutions before a public ultimatum comes from the COP Presidency. If your delegation is in a position to block consensus, it is important to be able to convince the President that your delegation’s position is firm, and that if negotiations are to have a successful outcome, other options must be found. Similarly, if another Party is likely to block consensus, it is important to seek solutions, and consider how this may affect general and specific outcomes.

Often delegates will be asked to negotiate under conditions where they lack sleep, food, water and other amenities. All-night sessions are typical on the eve of the final negotiating session^[1] and are also known to occur at Conferences of the Parties.^[2] The ultimate strategy is to come prepared. Start the day with a good breakfast as it may be your last meal of the day. Always be prepared with food, drink, medication, tissues, coins for vending machines and the like. If you are not tied-up in a late-night group, try to support other members of your delegation by sitting with them to provide moral, drafting, and food-fetching support. No one should be left alone negotiating late at night for both security and substantive reasons.

Fatigue may factor into negotiation accuracy and having another pair of eyes at hand is always useful. Also, keeping a record of late-night discussions is indispensable to correct any mistakes or oversights by the presiding officer or Secretariat when drafting a final version of the text. Regarding safety precautions, be sure to share your lodging, telephone and emergency contacts with at least another member of your delegation, preferably, the head.

The presiding officer, the secretariat and other actors usually act in good faith and strive to interpret the MEA according to the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. However, in some instances, the presiding officer or other actors may deviate from the spirit of the treaty or the rules of procedure. If this is this seems to be the case, any delegation has the right to take the floor on a point of order to ask for clarification as to how the process or deliberations are being conducted.

The COP President can make a ruling that there is consensus. Such ruling can be challenged and overruled by a decision of the Parties (see section on the rules of procedure). However, it is rare for Parties to take such an action even if they consider it, as there may be a number of direct and indirect disadvantages to opposing a President, and it is considered important to maintain the spirit of consensus.

During negotiations, you may encounter some key actors who may not respect processes or rules of procedure, either willfully or not. If you encounter such an actor, or are unsure about it, it is important to consult your delegation’s legal advisor and/or head of delegation to consider the implications and options.

Often it is possible to coordinate with like-minded Parties and develop a strategy to manage such an actor, with informal discussions, polite interventions from the floor (often humor and humility are effective persuasive tools). Working with the secretariat can also be key. A similar approach can be followed whether the actor in question needs help or whether they are the source of the difficulty. In both cases, direct informal approaches can be effective, but obviously the strategy varies. Such approaches, if necessary, usually need to be taken at a senior official or head of delegation level. Consulting with your capital may be advisable when dealing with sensitive issues such as these. Relevant authorities in your capital may be able to intervene through the appropriate diplomatic channels in the key actor’s capital, if the situation merits such attention, e.g. when the situation is directly affecting your delegation’s participation at the meeting.

Examples of infringements:

• When a presiding officer makes “rulings” on matters of substance (a presiding officer can only ’rule’ on matters of procedure, substance is the purview of the Parties);
• When a presiding officer arbitrarily cuts off debate and gavels a decision over the objection of a Party;
• When a presiding officer ignores a request for the floor or refuses to give the floor to a Party on a point of order;
• When a presiding officer imposes a text upon the Parties;
• When a presiding officer ignores a request to speak from a Party and the list of speakers has not been closed;
• When a presiding officer requests approval of a decision before Parties have been provided documentation of a decision (sometimes even before a decision has been formulated);
• When decisions on amendments or supplemental agreements are taken which are not in accordance with the relevant provisions of a treaty;
• When subsidiary bodies exceed the terms of their mandate.

Examples of infringement of the spirit of the rules:

• When a presiding officer becomes a clearly partisan participant in negotiations;
• When the presiding officer of a Conference makes “take it or leave it” proposals;
• When a presiding officer proceeds with a meeting without first ensuring that all negotiating groups are represented;
• When a presiding officer selects participants in small group negotiation forums without consulting the relevant negotiating groups/coalitions;
• When a presiding officer attempts to isolate, exclude or undermine a Party, or privileges or colludes with a Party;
• When a host or other influential Party abuses its position and influence (by, for example, announcing or attempting to impose agreements unilaterally or prematurely);
• When new texts are presented at the last minute and accepted as the basis of negotiation, without a rationale for urgency or other justification;
• When informal negotiations disadvantage a Party because of language ability;
• In general, nothing prevents a presiding officer from making any kind of proposal, but when they purport to impose text or decisions, this should be seen as a process violation.

It is important to bear in mind that all of the actions that infringe the rules of procedure or their spirit, undermine the transparency and legitimacy of the process and its outcomes. As such, they are very detrimental to the effectiveness of an MEA.

In general, formal meetings are open to participation by all Parties, unless the rules or a decision provide otherwise (see 3.1.1.8). Informal meetings are not subject to the rules, and may be organized by any Party or actor in any way that they wish. Informal meetings are often called “informals”, “informal working groups”, and “Friends of the Chair” are also considered informal. Informal meetings organized by the presiding officer of a formal group are effectively subject to a certain amount of transparency and inclusiveness, at least with respect to outcomes that a presiding officer may present to a formal group. Parties may block progress in negotiations if they are not satisfied with how informal groups have been organized, how the participants were selected or the inclusiveness of the group.

In many contexts, there is some uncertainty about the status of particular groups, such as “working groups” and “contact groups” (an exception to this observation is the POPs Convention, where decisions are being considered which would clarify that working groups and contact groups are subject to the rules of procedure). The latter are generally treated as formal groups subject to the rules of procedure, but not in all cases. The former can be treated as either formal or informal. Determination of the status of a group can be made by ascertaining whether or not the group was created by agreement or decision (there are a number of “ad hoc groups” or “joint working groups” which have been created by decision and are treated as formal bodies, subject to the rules).

If a group is created by decision, then unless that decision provides otherwise, the rules of procedure can be expected to apply. Therefore all Parties, even those bodies with designated or elected membership, should have access, at least as observers. If membership is not limited in such a decision, then Parties should have full rights to participate, including the right to interpretation services.

In some cases, particularly for high-level negotiations, a decision may be taken by the bureau to limit participation in focused negotiation formats. Such decisions can be controversial, and issues of representation are common, although generally regional/negotiating groups simply select a number of participants, often with lead responsibility for particular issues. Presiding officers have found innovative solutions to this problem. For example, the composition of the Open Working Group (OWG) for the negotiation of the 2030 Sustainable Development Agenda followed a creative format according to which, despite regional groupings, one seat could be shared by more than one country. In this way, the original group of thirty countries that had been envisaged increased to seventy.[1] For example, Colombia and Guatemala shared a seat, while France, Germany and Switzerland shared another.

To achieve the goals set out by MEAs, funding mechanisms are often an integral part of individual agreements. These MEAs and their associated financial support are complex, and requirements and restrictions regarding access to funds are variable and subject to frequent change. The Global Environment Facility (GEF) and Thematic Trusts are the most common funding mechanisms for MEAs. Regardless of the agency, eligibility criteria and programme priorities are usually specified by the MEA and/or designated convention authority and may be subject to change annually.

The GEF is the most experienced multilateral fund with USD 5.33 billion USD in pledges in 2022 for the next four years.[1] The GEF’s role is to support developing countries to prioritize environmental action that delivers global environmental benefits. The GEF is the only entity whose mandate embraces all facets of a healthy environment, from biodiversity to climate change and land degradation to international waters, chemicals and waste. “The GEF operates on the basis of collaboration and partnership among the Implementing Agencies (UNDP, UNEP, World Bank), as a mechanism for international cooperation for the purpose of providing new and additional grant and concessional funding to meet the agreed incremental costs of measures to achieve agreed global environmental benefits.”[2]

The GEF’s six focal areas are climate change, biodiversity, international waters, land degradation, and chemicals and waste. Investments are made through Executing Agencies, eighteen in total, including the United Nations Development Programme (UNDP), the United Nations Environment Programme (UNEP), the World Bank, the regional development banks and well-recognized non-governmental organizations.[3]

Recipient countries propose projects to the GEF Executing Agencies, that then develop them through the project pipeline before submitting them to the GEF secretariat and Council for approval. The GEF also works in close partnership with civil society organizations to implement projects through non-governmental and community-based organizations.[4]

The GEF is mandated with investing in Global Environmental Benefits (GEBs) that respond to national and international commitments made within the realm of MEAs. This is accomplished through dedicated focal area windows that ensure targeted investments in response to guidance from the MEAs, while at the same time anchoring integrated approaches that deliver impactful outcomes for the people and planet.[5] The GEF is uniquely placed to harness synergies across the different MEAs by financing projects with multiple co-benefits.

The GEF serves as the financial mechanism to five conventions: CBD, UNFCCC, Stockholm Convention on Persistent Organic Pollutants (POPs), UN Convention to Combat Desertification (UNCCD) and the Minamata Convention on Mercury. The conventions, for which the GEF serves as financial mechanism, provide broad strategic guidance to the two governing bodies of GEF. The GEF Council converts the guidance provided by the COPs into operational criteria (i.e. guidelines) for GEF projects.

With respect to the UNFCCC, the Parties have established three trust funds: the Special Climate Change Fund (SCCF) and the Least Developed Countries’ Fund (LDCF), under the Convention managed by the GEF and the Adaptation Fund, established under the Kyoto Protocol, and managed by the Adaptation Fund Board with the GEF providing secretariat services. The GEF also serves the Paris Agreement, including provision of funding to strengthen the institutional and technical capacities of developing countries to meet the enhanced transparency requirements of the Agreement.

Regarding the CBD, the Nagoya Protocol Implementation Fund supports signatory countries, as well as those in the process of signing the protocol to undertake activities related to the access to genetic resources and the fair and equitable sharing of benefits arising from their utilization.

The GEF, although not linked formally to the Montreal Protocol, supports implementation of the Protocol in countries with economies in transition. The GEF is also associated with many global and regional MEAs that deal with international waters or transboundary water systems.

The GEF operates in four-year funding cycles and since its inception, it has provided more than US$ 21.1 billion in grants and mobilized an additional US$ 114 billion in co-financing for more than 5,000 projects in 170 countries. Through its Small Grants Programme, the GEF has provided support to more than 25,000 civil society and community initiatives in 133 countries. Since its inception, the GEF has supported the creation and/or management of over 3,300 protected areas totaling more than 860 million hectares of globally significant biodiversity value. GEF investments have also resulted in more than 8 billion tons of avoided greenhouse gas emissions avoided.[1]

The GEF-6 cycle introduced the Integrated Approach Pilot (IAP) programs and other larger-scale systemic investments. In GEF-7 the Impact Programs were launched to promote large, integrated, and impactful programs across more sectors and address multiple drivers of environmental change. The GEF-8 encourages countries to move more of their programming through eleven Integrated Programs that address the major environmental needs of the planet for which the GEF has a mandate.[2] The GEF- 8 integrated programmes are:

·         Food systems

·         Ecosystem Restoration

·         Sustainable Cities

·         Amazon, Congo and critical forest biomes

·         Circular solutions to plastic pollution

·         Blue and Green Islands

·         Clean and Healthy Ocean

·         Greening Transportation and Infrastructure Development

·         Net-zero, Nature- positive accelerator

·         Wildlife conservation for development

·         Elimination of hazardous chemicals from supply chains

Collectively, the proposed eleven integrated programs address major drivers of environmental degradation and/or deliver multiple benefits that fall under GEF’s mandate.[3] The strategy for GEF-8 is framed against the backdrop of three inter-related challenges to the global environment: the COVID-19 pandemic, mounting stressors on natural systems, and the urgency for robust financing and a transformative agenda. The GEF recognized the seriousness of the pandemic and created a task force to assess the impacts and the opportunities created by the pandemic on the work of the GEF.

GEF funds activities based on the following principles:

• Additionality: funded activities would not be undertaken in absence of GEF support
• Incrementality: funded activities produce global environmental benefits that are beyond local or regional benefits required for national development. GEF determines incremental costs by subtracting the costs of baseline activities from estimated total project costs.
• Complementarity: funded activities must be coherent with national programmes and policies to maximize global environmental benefits

All projects or programmes must abide by the following eligibility criteria for GEF funding:

• A country must have ratified the conventions the GEF serves and conforms with the eligibility criteria decided by the COP; or the country must be eligible to receive World Bank (IBRD/or IDA) financing for development; or if it is an eligible recipient of UNDP technical assistance.
• The project must be country-driven and consistent with national priorities and that these priorities are aimed at tackling the drivers of environmental degradation in an integral fashion, including through “impact programs” on food systems, land use and restoration, sustainable cities, and sustainable forest management;
• The project must seek GEF financing only for the agreed incremental costs and measures to achieve global environmental benefits;
• The project must involve the public in project design and implementation.

There are three proposal development streams and four project types funded by the GEF:

• Full-sized projects (FSPs) – more than US$ 2 million. The GEF provides funding for ESPs only to governments and then governments can decide the executing agency. The GEF Council approves the FSP concepts, which are then fully developed over 18 months. The GEF CEO endorses the fully developed ESP for subsequent approval by the GEF Partner Agency to start project implementation.[1]
• Medium-sized projects  - between US $1million and US $2million. MSPs offer opportunities for a broad range of programming that is typically smaller in scale than full-sized projects.  The approval process is simpler, allowing them to be designed and implemented more quickly and efficiently. This project type increases the GEF’s flexibility in allocating resources since a wide range of stakeholders can propose and develop project concepts. The GEF Council delegates approval of MSPs to the GEF CEO.[2]
• Enabling Activities  - up to US $ 1 million. EAs represent the basic building block of GEF assistance to countries. EAs are a means of fulfilling essential reports to conventions. They provide a basic level of information to enable policy and strategic decisions, or help identify priority activities within a country. The GEF Council delegates approval of EAs to the GEF CEO. Either the country or the GEF agency can access funds directly.[3]

Direct Access for NPFEs and Convention Reports.  The GEF provides resources directly to the countries for National Portfolio Formulation Exercises (NPFEs) and the drafting of convention reports that are undertaken as obligations of countries to the conventions.[4]

Programmatic Approaches. Programs are a strategic combination of FSPs and MSPs with a common focus to build upon or complement another. In this way, they can produce results not possible through a single project. Programs maximize the impact on the global environment. They do this by implementing medium-to-long-term strategies for achieving specific global environmental objectives consistent with national or regional strategies and plans of recipient countries.[5]

The MEAs provide guidance to the GEF through treaty text and through decisions by their respective COPs. The GEF functions under the guidance of, and is accountable to, the COPs. The COPs decide on the policies, programme priorities and eligibility criteria related to the particular MEA.

The GEF secretariat is responsible for coordinating with MEAs secretariats and for representing the GEF at meetings of the MEAs. The GEF Council is responsible for ensuring that GEF-financed activities conform to convention guidance. Parties to MEAs should keep in mind that the GEF provides incremental costs; therefore, guidance provided to the GEF should address incremental costs only. The MEAs providing guidance should address policies, programme priorities and eligibility criteria, but should avoid micromanaging the GEF with too much guidance.

The GEF secretariat proposes to the Council how guidance from the MEAs may best be incorporated into GEF policies, programmes and strategies. The secretariat consults with the GEF Executing Agencies,  the Scientific and Technical Advice Panel (STAP), and the appropriate MEA secretariat in preparing proposals.

MEA guidance is operationalized by translating it into guidelines and criteria that, with the GEF’s OPs, are used to develop operational activities. GEF’s OPs correspond to Focal Areas and directly reflect MEA objectives and priorities. They provide a conceptual and planning framework for the design, implementation, and coordination of a set of projects within a focal area.

The GEF Instrument is amended when new focal areas are introduced. Following the procedures set forth in paragraph 34 of the Instrument for its amendment, different amendments to the Instrument were adopted by the GEF Assembly, including in October 2002, August 2006, May 2010, and May 2014.

Representatives of the GEF and Implementing Agencies attend COPs as observers but do not actually participate in negotiations. GEF organizes workshops at these meetings to communicate current activities and to informally solicit input on further guidance. Where appropriate, negotiators should undertake consultation with GEF staff to promote guidance that is realistic and practical.

The GEF reports regularly to the conventions, through the CEO, on the development of operational strategies and the results being attained by GEF-funded projects. Individual countries are not required to report on GEF-funded activities in their national reporting and communications to the COPs.

The System for Transparent Allocation of Resources (STAR) will see continued improvements in GEF-8 to increase flexibility, support vulnerable countries and maximize the impact of GEF resources.

The GEF-8 STAR model will remain within the context of a set of core principles, which are: transparency, performance, commitments assumed by the countries in the MEAs for which the GEF serves as a financial mechanism, country ownership and flexibility to strategically direct scarce resources towards the issues and opportunities where the highest global environmental impact will be achieved.

The GEF has made extensive revisions and updates to its policies and approaches related to stakeholder engagement, gender equality and environmental and social safeguards.The initial STAR country allocations for GEF-8 reflect a total replenishment level for programming of US$5,330million. In accordance with the agreed resource allocation framework, the GEF-8 envelopes for the three STAR focal areas are US $1,919million for Biodiversity, US $852 million for Climate Change, and US $618 million for Land Degradation. After adjusting for focal area set-asides, the amounts available for initial STAR country allocations are as follows: $1,453million for Biodiversity, $524million for Climate Change, and $458million for Land Degradation..[1]

National MEA Focal Points provide guidance to the GEF through their participation in COPs negotiations. They may also provide guidance through communication with National Operational and Political GEF Focal Points represented at GEF Council.

In relation to the GEF, National Convention Focal Points are responsible for:

·       receiving and distributing convention documentation

·       coordinating national policies consistent with the conventions

·       communicating government views and reporting on conventions

·       acting as in-country contact points for consultations.

GEF can have difficulties in translating broad MEA guidance into practical operational activities. As a result, clarity in the decisions of the COPs to the MEAs is essential. MEAs should consistently provide clear guidance that can be translated into meaningful action in support of MEA objectives.

GEF is limited in its ability to respond to guidance. MEAs bodies should work to ensure that new language factors in previous guidance to the GEF. 

The GEF secretariat should consult with GEF and MEA National focal points when developing operational criteria from convention guidance.

It is important to promote country coordination among the GEF Focal Point and the National Focal Points for the MEAs.

Guidance needs to be within the scope of the incremental cost agenda.

The Green Climate Fund was established by the UNFCCC COP 16 in 2010 (COP Decision 1/CP.16, paragraph 102). The GCF is one of the operating entities of the Convention’s financial mechanism and is headquartered in the Republic of Korea. The GCF serves the UNFCCC exclusively.

The Fund aims to support a paradigm shift in the global response to climate change by making a significant and ambitious contribution to the global efforts to combat climate change. It aims to deliver climate finance that is adequate and predictable to developing countries.

The GCF is a platform that brings together both public and private funding. Beyond developed countries’ contributions agreed under the UNFCCC, the GCF receives funds from other sources, including from developing countries and the private sector.

The GCF has become the largest multilateral climate fund. During the initial resource mobilization, it received pledges worth US$11.4 billion.

The GCF has its own Secretariat and is governed by the GCF Board. The Board is composed of 24 members – 12 from developing and 12 from developed countries, selected by their respective constituencies. The Board’s developing country members include representatives of UN regional groupings, SIDS and LDCs. The Board makes decisions by consensus, although it has adopted procedures for adopting decisions in the event that all efforts at reaching consensus have been exhausted.

The Board has powers to make all the decisions that are necessary for the Fund’s operations, including overseeing the operation of the Fund and implementation of funds disbursed, appointing the Executive Director of the Secretariat, approving operational modalities, operational policies and funding proposals.

The GCF draws its existence and mandate from the UNFCCC. The Fund’s Governing Instrument was approved by COP17 in 2011 (see COP Decision 3/CP.17, paragraph 2). The COP also has the power and the ultimate responsibility to decide on the policies, programme priorities and eligibility criteria of the GCF. Hence, the GCF functions under the guidance and is accountable to the COP. The COP provides annual guidance to the GCF, the GCF takes appropriate actions in response to the guidance received and reports back to the COP on an annual basis. The COP also retains the power of assessing the GCF’s overall performance and deciding on its termination.

The GCF offers financial support through diverse financial instruments, including concessional loans, equity investments, grants and guarantees.

A core GCF principle is to follow a country-driven approach. National Designated Authorities are government institutions that serve as the interface between each country and the Fund. They provide broad strategic oversight of the GCF’s activities in the country and communicate the country’s priorities for financing. However, the projects financed by the GCF are implemented through partnerships with entities accredited by the GCF. The Accredited Entities work directly with developing countries’ National Designated Authorities for project design and project applications. The Accredited Entities are also responsible for overseeing the implementation of approved projects. 

The GCF provides funding to projects that qualify under one of eight priority areas. Four impact areas relate to climate change mitigation (Health, Food and Water Security; Livelihoods of People and Communities; Infrastructure; and Ecosystems and Ecosystem Services) and another four to adaptation (Energy Generation and Access; Transport; Buildings, Cities, Industries and Appliances; and Forests and Land Use). The Fund aims for a balance between mitigation and adaptation investments.

The Fund aims for 50 percent of the adaptation allocation for particularly vulnerable countries, including Least Developed Countries (LDCs), Small Island Developing States (SIDS), and African States. Moreover, GCF seeks to engage both with public and private sectors.