EXPLAINER: WHAT IS RULE 16 OF THE UNFCCC?

BY SAADA MOHAMED AND JAMES KAHONGEH

It became one of the most referenced negotiation elements towards the end of the just-concluded Bonn Climate Conference. Specifically, the rule was applied to the Global Goal on Adaptation (GGA) negotiations following a severe deadlock between developed and developing nations over climate finance.

Because the two sides could not even agree on procedural text to serve as the basis for talks at COP31, the co-facilitators were left without a choice, but to declare an impasse.

Rule 16 was, therefore, invoked, deferring negotiations on the GGA text to Antalya, Türkiye, in November during the Conference of the Parties (COP).

Rule 16 and how the UNFCCC works

The conduct of the meetings under the United Nations Framework Convention on Climate Change (UNFCCC) is guided by a set of rules, commonly referred to as the draft rules of procedure. 

Applying Rule 16 means an unfinished agenda item is ‘‘automatically included in the agenda of the next ordinary session.’’ In this case, COP31.

The meetings and brokering of agreements within the collective decision-making framework of the COP, therefore, involve negotiations, concessions, and compromise between countries, called the Parties.   

Decisions are usually negotiated by the Parties, based on the official agenda adopted under the subsidiary bodies (SBs). Countries usually develop the first draft text of the decision on the given agenda item, or use an unfinished draft carried over from earlier sessions. This forms the basis for negotiations.  ‍ ‍

This draft is then revised through an iterative process, including formal and informal sessions and consultations. During these sessions, Parties discuss matters to identify areas of convergence, clarify points of disagreement, and seek consensus on each part of the decision. 

The 3 scenarios ‍ ‍

It is not easy to predict the outcome of an agenda, since countries and negotiating blocs take divergent positions on an issue depending on their interests. But each agenda item could take any of three likely scenarios. 

Optimal scenario: Parties resolve all issues at hand and reach an agreement. This enables the SBs to adopt procedural conclusions to forward the draft decision to the COP, CMP or CMA for approval. 

Parties make progress on a draft decision but cannot reach full consensus: In this case, countries may prepare procedural conclusions for the SBs to forward the draft to the COP, CMP or CMA, for further consideration. This approach is often used for politically sensitive issues that are unlikely to be fully resolved at the technical level. 

Worst-case scenario: Here, the Parties fail to agree on the draft decision text, and the SBs conclude that there was no outcome on the agenda. Rule 16 of the draft rules of procedure is applied, deferring the matter. 

What Rule 16 says‍ ‍

The rule states:

“Any item of the agenda of an ordinary session, consideration of which has not been completed at the session, shall be included automatically in the agenda of the next ordinary session, unless otherwise decided by the Conference of the Parties.” 

When that happens, any draft text from the current session is discarded, and Parties must start over at the following session. 

It is generally considered more constructive for Parties to adopt a procedural conclusion when they cannot fully agree on a draft decision during the SBs, rather than resorting to Rule 16. Acknowledging that the work is unfinished gives the Parties a stronger starting point at the subsequent session, instead of beginning afresh.

It’s a dreaded procedural tool, and as Ana Mulio Alvarez says, the decision to push GGA negotiations to COP31 portends danger. ‘‘This rule is worse than a procedural outcome,’’ says the policy advisor at E3G, adding that it’s a warning sign.

“Countries have effectively pressed pause on a process that was supposed to help turn adaptation commitments into action,” Alvarez adds.

Previous invocations‍ ‍

This is, however, not the first time the rule has come into play.

At COP25 in Madrid, Spain, the rule was invoked when the Parties failed to agree on multiple issues, notably long-term climate finance, the Paris Agreement’s enhanced transparency framework and reporting guidelines, and rules regarding international carbon markets and non-market approaches.

These matters were subsequently pushed to COP26 in Glasgow, Scotland.

With the GGA now deadlocked, all eyes will be on Antalya to see how it unlocks that impasse to take the discussion forward.

Saada Mohamed is the Climate Finance Advisor at Power Shift Africa

James Kahongeh is the Lead, Media and Communications, at Power Shift Africa