Article 29. Conference of the Parties serving as the meeting of the Parties to this Protocol

679. Multilateral environmental agreements generally establish a governing body known as the “Conference of the Parties” or “Meeting of the Parties” to steer and supervise the entire process of implementing and further developing the treaty. These bodies are comprised of representatives of all States that are party to the agreement in question, and meet on a periodic basis.

680. The legal link between the Protocol and its parent convention, the CBD, means that there is a relationship between the governing body of a Protocol and that of the CBD. In this case, the Conference of the Parties to the CBD (CBD COP) will also serve as the meetng of the Parties to the Protocol. This gives rise to the use of the convoluted term “Conference of the Parties serving as the meeting of the Parties to this Protocol” used in Article 29 and other provisions of the Protocol. This term is generally abbreviated to “COP/MOP”. The COP/MOP is the governing body of the Protocol.

681. When drawing up Article 29, as well as the other institutional provisions (see commentary on Articles 30 and 31), the approach of the negotiators of the Protocol was to assign the functions to be carried out under the Protocol to the existing bodies of the CBD in order to achieve greater coherence and efficiency between the two instruments, while ensuring the necessary independence of the work under the Protocol. This approach was considered to have several advantages, including avoiding the proliferation of new institutions, and minimizing operational costs. At the same time, the negotiators recognized the need for a certain flexibility to take into account the distinct nature of the Protocol.121 Thus the COP/MOP is considered a distinct and independent body for all practical purposes, save for two issues: the guidance to the financial mechanism, and the costs of Secretariat services to the extent that they cannot be split up between the CBD and the Protocol (see commentary on Articles 28 and 31 respectively).

682. Since the Protocol is a separate legal instrument, the functions of the COP/MOP differ to some extent from those of the CBD COP. In addition, the membership of the two bodies is not entirely the same: not all Parties to the CBD (who are represented in the CBD COP) may necessarily opt to become Parties to the Protocol, and those that do not will not be entitled to participate in the decision-making of the COP/MOP.

683. Article 29(1) establishes the principle that the CBD COP shall serve as the meeting of the Parties to the Protocol (MOP). Article 29(2)–(8) put this into practice by laying down the mode of operation of the COP/ MOP.

684. Article 29(2) addresses who is entitled to participate in the COP/MOP. In meetings held by the COP in its capacity as COP/MOP, States that are Parties to the CBD but not to the Protocol may participate as observers. Observer status is governed by Rules 6 and 7 of the Rules of Procedure of the CBD COP:122 it means participation without the right to vote. Only Parties to the Protocol may vote and thus take part in the adoption of the decisions of the COP/MOP, which relate to the Protocol.123 This is a restatement of the principle set out in Article 32(2) of the CBD. Although not entitled to vote, observers may participate in the discussions, make interventions and submit proposals. In practice, some observers play a very active role in the discussions. Observer status for States that are not Parties to the CBD is addressed by Article 29(8).

685. Article 29(3) refers to the bureau of the COP/ MOP. The “bureau” performs functions relating to the meetings of the COP/MOP, for example: providing guidance to the Secretariat for the preparation and conduct of the meetings of the COP/MOP;124 organizing the work of the meetings; and chairing informal negotiations during meetings of the COP/MOP. Since the CBD COP serves as the meeting of the Parties to the Protocol, it follows that the bureau of the COP serves as the bureau of the COP/MOP. This means that as a general rule, the bureau of the COP/MOP will have the same composition as the bureau of the COP, as laid down in the Rules of Procedure of the CBD. The bureau of the COP is composed of 11 members: the President; and 10 Vice-Presidents (one of whom also acts as Rapporteur) representing the five UN regions.125 The bureau is elected at the beginning of each ordinary meeting of the COP. The President then serves from the beginning of that meeting until the beginning of the next ordinary meeting, while the Vice- Presidents serve from the closure of that meeting to the closure of the next meeting. The bureau also serves at any extraordinary meeting of the COP held during its term of office. No bureau member may serve for more than two consecutive terms.126

686. In accordance with the overall aim to streamline the institutions and procedures of the CBD and the Protocol while ensuring the necessary independence of the Protocol, Article 29(3) provides that if the bureau of the COP includes one or more members representing States that are not Parties to the Protocol, those members shall be replaced with representatives of Parties to the Protocol when the COP meets as COP/MOP. In keeping with the Rules of Procedure, which apply mutatis mutandis127 to the Protocol, the representation of the five UN regions must be maintained if a replacement is made in accordance with Article 29(3).

687. This provision sets out the functions of the COP/MOP. It corresponds to Article 23(4) of the CBD, which sets out the function of the CBD COP,128 and is structured in the same way. An introductory provision states the general function of the COP/MOP, and is followed by a list of specific functions. The introductory provision requires the COP/ MOP to keep under regular review the implementation of the Protocol and make the necessary decisions to promote the implementation of the Protocol. It goes on to specify that the COP/MOP shall perform the specific functions assigned to it in other Articles of the Protocol as well as the functions listed in Article 29(4) (a)–(e). In addition, subparagraph (f) gives the COP/ MOP the authority to “exercise such other functions as may be required for the implementation of this Protocol”. Taken together, this provision and the introductory provision to Article 29(4) ensure that any present and future function needed for the implementation of the Protocol may by carried out by the COP/MOP, even where this is not specifically listed in Article 29(4) (a)–(e).

688. The Rules of Procedure and Financial Rules of the CBD129 were adopted by the CBD COP in accordance with Article 23 CBD. The Rules of Procedure govern, for example, the timing and preparation of the COP, and the conduct of COP meetings. They cover important issues such as decision-making procedures in the COP. The Financial Rules govern the Trust Fund which is used for financing the administration of the CBD, including the functions of the Secretariat.

689. The application of the Rules of Procedure and the Financial Rules “mutatis mutandis” means that while the same rules are applied, the differences between the CBD and the Protocol that are relevant to a given issue must be taken into consideration when applying the Rules to that issue. In concrete terms, the rules may be modified in applying them to the Protocol, to the extent necessary to adapt them to the specificities of the Protocol. In addition, the COP/MOP may, by consensus, decide against the application of the rules in particular instances. In a number of instances, the Protocol itself establishes provisions regarding issues addressed by the Rules of Procedure. To the extent that such provisions differ from the Rules of Procedure, they take precedence. Within Article 29, for example, such provisions address the members of the bureau (Article 29(3)); ordinary and extraordinary meetings of the COP/MOP (Article 29(6) and (7)); and observers (Article 29(2) and (8)). In summary, it can be said that the Rules of Procedure and the Financial Rules are applicable to the Protocol, with modifications if necessary, unless the COP/MOP by consensus decides otherwise or if the Protocol itself establishes a different provision.130

690. Article 29(6) and (7) address the meeting arrangements for the COP/MOP, building on Rule 4 of the Rules of Procedure and taking into account the special relationship with the CBD COP. They are largely self-explanatory. They adhere to the concept of utilizing the existing rules and bodies of the CBD as far as possible while retaining sufficient independence for the Protocol. Article 29(6) harmonizes the schedule for the meetings of the COP/MOP with those of the COP, while Article 29(7) provides that extraordinary meetings of the COP/MOP may be held outside this schedule. Article 29(6) also reiterates that the COP/MOP by consensus may decide on a differing schedule for its ordinary meetings.

691. The provision grants observer status to the UN, its specialized agencies, and the International Atomic Energy Agency, as well as to member and observer States of these organizations that are not Parties to the CBD. Thus, States that are not Parties to the CBD may be represented as observers at meetings of the COP/MOP. As discussed above, States that are Parties to the CBD but not to the Protocol are accorded observer status under Article 29(2). The implications of such observer status are discussed under Article 29(2).

692. Any governmental or non-governmental body or agency may also apply to the Secretariat for observer status. This is granted if the body in question is qualified in matters covered by the Protocol, and unless one-third of the Parties present at a particular meeting object. The mention of Parties “present” indicates that at each meeting of the COP/MOP, an objection can only be made by Parties attending that meeting and thus only with respect to the presence of a non-governmental body or agency at that meeting. The acceptance or rejection of a body or agency is therefore only valid for that particular meeting. At the next meeting, it is possible that a different decision could be taken with respect to the same body or agency, depending on which Parties are present.

693. Applications for observer status are made to the Secretariat. In practice, a large number of organizations attend the open-ended meetings held under the auspices of the CBD. Judging from observer participation at the meetings of the BSWG that negotiated the Protocol, as well as subsequent meetings of the ICCP, the number of observers is also likely to be high at the meetings of the COP/ MOP once the Protocol has entered into force. The terms used in Article 29(8) have been broadly construed in the CBD – nongovernmental agencies or bodies may include environment, consumer or development organizations, indigenous peoples' groups, academic or research institutions, industry associations or individual companies.

121 See Note by the Executive Secretary of CBD on Rules of Procedure for Meetings of the COP/MOP, UNEP/CBD/ ICCP/2/6, 31 July 2001.

122 Rules of Procedure for the Meetings of the Conference of the Parties to the CBD, Annex to COP Decision I/1, as amended by Decision V/20.

123 It should be noted that the rules of procedure of the CBD COP do not presently contain a voting rule for making decisions on matters of substance. The Parties to the CBD have been unable to agree such a rule. Decisions on matters of substance are therefore taken by consensus.

124 Rule 21 of the Rules of Procedure.

125 The five UN Regions are Africa, Asia, Eastern Europe, Latin America, and Western Europe and others. Their representation is laid down in Rule 21 of the Rules of Procedure, as amended by CBD COP Decision V/20.

126 Rule 21 of the Rules of Procedure, as amended by CBD COP Decision V/20.

127 For an explanation of this term, see commentary on article 29(5).

128 For a discussion of Article 23 of the CBD see Glowka et al., p.112.

129 CBD COP Decision I/6, as amended by Decision III/1.

130 See Note by the Executive Secretary of the CBD on the rules of procedure for the COP/MOP, UNEP/CBD/ICCP/ 2/6, and ICCP Recommendation 2/5, UNEP/CBD/ICCP/2/15.

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