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Mainstream, VOL 61 No 1-2, December 24, December 31, 2022 (Double issue)

Letter to UN Sec Gen on procedural lapse while adopting the biodiversity framework at COP15 Montreal, Dec 2022 | S Faizi

Saturday 24 December 2022

From: Faizi S
Date: Wed, Dec 21, 2022 at 1:34 PM
Subject: UN CBD COP’s breach of the ROP: CBD COP doesnt have a legal advisor
To: UN -> sgcentral[at]un.org
Cc: CBD Executive Secretary -> executivesecretary[at]cbd.int

To

The Secretary General

United Nations

CC: The Executive Secretary

CBD Secretariat

Your Excellency,

Greetings.

1. The adoption of the Global Biodiversity Framework by the CBD COP15, early this week, raises issues of substance as well as serious procedural issues. The substantive issue, in short, is that while ritually repeating the triple objectives of the Convention, the GBF virtually unmakes the CBD by carefully ignoring some key operative provisions of the treaty- provisions that were unacceptable to a number of western countries right from the negotiations in the CBD INC (I had been one of the youngest negotiators there). The subject matter of Article 16 is just one example, which was to finely balance Article 15. CBD has 21 operative articles but the GBF cherry picked just a few favorite provisions of the treaty, effectively replacing it with the GBF.

2. The reason I am writing to you is not the substantive issue which is the right of the sovereign body that is the COP- although it would be worthwhile to examine the trajectory of how a UN treaty had been unmade without formal amendment.

I am writing this to bring to your urgent attention a critical procedure issue. This issue has two parts, one part being a decision of the President of the COP you may not have authority to address but may want to take serious note of in the interest of democratic multilateralism, the other part is regarding the wrongful action of a UN staff and that merits your attention and action.

3. The first part of the issue is the manner in which the decision annexing the GBF was adopted. I am providing below the official video of the proceedings which is self explanatory. The President announces that he will adopt six decisions as a package and proceeds to adopt the first of the six, DR Congo (one of the highest biodiverse countries, and the centre of origin of humans) takes the floor instantly and raises objection. Now an OECD country, Mexico, expresses support for the president’s proposal. The chair consults with the team on the podium and then announces in a tearing hurry that all the six decisions are adopted. He didnt even pauses to breathe. An unfortunate disregard for the Rules of Procedure. No opinion of the floor was sought, no opportunity was provided for objection. Floor was given to Cameroon and Uganda only after the adoption and they registered objection. Uganda raised a point of order but that was ignored by the president. DR Congo took the floor once again, reiterated its objection raised before adoption. This has been an illegitimate act of conducting a multilateral meeting.

4. I invite your attention to a similar procedural issue at the 6th COP of CBD reg decision VI/23 on invasive species. Australia carried its objection to the final plenary, and raised its objection when there was near consensus, considerable efforts were made to resolve the issue by the plenary and eventually their objection that the procedure adopted was not legitimate was recorded as a footnote (a) to the decision, and this footnote is repeated in all subsequent documents concerning further work on VI/23. But when 3 important stakeholder countries (they together carry 20% of the world’s biodiversity) raised serious objections, the president simply brushed it aside. This action poses a serious challenge to democratic multilateralism and is a matter of serious concern to all who invest their hope in the UN system.

5. I am also aware that you have no authority to act on this wrong doing, and that has to be done by another meeting of the COP or by a verdict of the ICJ. I also take this occasion to call upon you to use your influence with the senior diplomats of countries at the UN hq to help resolve the dispute about the decision making process in the CBD COP ROP where Rule 40.1 remains bracketed even after 30 years of CBD.

6. Consensus decision making is an important mechanism within the UN, but it is also important to debate and reach a consensus in the GA on a definition of consensus, with provision for reflecting significant body of dissention, and make it applicable to all policy making arms of the UN and the treaties under UN aegis.

7. The issue that requires your urgent attention and action is the following. You will see in the video the president inviting ’our legal advisor’ and he in turn delivering a ’legal opinion’ on DR Congo’s objection is a breach of the ROP. The CBD COP doesnt have a ’legal advisor’. The ROP in Rules 21 mentions the officers of the COP, legal advisor is not one of them. The COP is the sovereign body of the CBD and it makes and interprets its own decisions. It is the mandate of the ICJ to give a legal opinion upon the request of the GA via a resolution. Here the president is utterly wrong in considering a staff of the secretariat as the legal advisor of the COP, and it is a breach of the UN service rules that this secretariat staff masqueraded himself as legal advisor to the COP.

8. I request your urgent intervention to investigate and take disciplinary action against this UN staff member for posing himself as legal advisor of CBD COP. The secretariat’s role is well defined in the ROP Rules 28, legal advice to the COP is not among its mandate (b). Your excellency, this is not the first time this happened. This happened at the 11th meeting of the COP too, when the house was divided on finance agenda. A secretariat staff delivered a ’legal opinion’ there as wrongly asked by the chair. I was then consulting with the Philippine delegation led by Ms Bernaditas Muller, arguably the best negotiator ever on the subject, when that particular staff member came down to the delegation for a private chat. When I asked him which instrument has made him the legal advisor of COP he was apologetic about it. It is no coincidence that such ’legal opinions’ always favour the developed countries. The president can ask the secretariat staff to read the relevant rules, ask information about precedents and ask for factual information/data but not a legal opinion, especially when the parties are divided on an issue. When the president wrongly asked for ’legal opinion’ he should have reminded the president of the remit of the secretariat as per the ROP and refrained from audacity of delivering an illegitimate ’legal opinion’.

As we are promised even more depletion and extinction of species and no let up in global warming we need more democratic multilateralism to chase the dream of resolving these, therefore respecting the ground rules of multilateralism is more important than ever before.

I take the liberty of sharing this letter with the Parties and friends in the civil society.

With the best regards

S Faizi Ph D
Ecologist, UN Environmental Negotiator
Trivandrum, India
s.faizi111[at]gmail.com

(a) One representative entered a formal objection during the process leading to the adoption of this decision and underlined that he did not believe that the Conference of the Parties could legitimately adopt a motion or a text with a formal objection in place. A few representatives expressed reservations regarding the procedure leading to the adoption of this decision (see UNEP/CBD/COP/6/20, paras.

(b) Rule 28 The Secretariat shall, in accordance with these rules: (a) Arrange for interpretation at the meeting; (b) Receive, translate, reproduce and distribute the documents of the meeting; (c) Publish and circulate the official documents of the meeting; (d) Make and arrange for keeping of sound recordings of the meeting; (e) Arrange for the custody and preservation of the documents of the meeting; and (f) Generally perform all other work that the Conference of the Parties may require.

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