Use and/or establish links

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 05/09/2012

1. Does the wording “use and/or establish links” with existing or newly established institutional arrangements and/or financial channels under the Convention (Green Climate Fund or NAMAs  Registry) to ensure consistency in reporting, recording and tracking and technical analysis, contained in informal draft decision text for Doha on enabling conditions under AWG-LCA under agenda item 3 b iii (REDD) have a particular meaning?

2. What would be a more effective legal statement?

1. To “use and/or establish links” would appear to hold its natural meaning in this context, being, to cooperate with, or to create a linkage with. It does not appear to go beyond this to provide any specific detail as to the nature of the linkage. i.e. it does not state how in practical terms to link with the listed “institutional arrangements” and “financial channels”. Further, as far as we are aware, the phrase “Use and/or establish links” does not hold any particular significance within the UNFCCC regime.

In terms of comparable English phrases it could range from what might be a weak link (along the lines of “forming an association with”) to a strong link (“jointly operating with”).

One observation is that its meaning is affected by the subsequent phrase “existing or newly established institutional arrangements”. It would therefore appear that links should be used with existing institutions, and established with newly established institutions. In this context, the latter would appear to refer to future institutions such as the NAMA Registry (which is currently in the prototype development stage), or the GCF (whose board met for the first time from 23-25 August this year in Geneva).

2. There are several ways to strengthen the statement. Here, we suggest two. First, to amend the phrase itself (from “Use and/or establish links”, to something else). Second, and if the text develops to a negotiating text, insert a prefatory verb mandating the use and establishment of the links.

(I) Amending the phrase “Use and/or establishment of links”

The phrase could be amended to provide for a more concrete plan of linkages with the “institutional arrangements” and “financial channels”. Examples could include specifying the nature of the link: for example, a REDD-plus window in the GCF (Option 2), or a REDD-plus Board (Option 3). Depending on how the discussions on REDD-plus are continued it might also be possible to set up a joint expert group, forum for the exchange of information or other channels of communication.

In addition it would be possible to amend “links with” to “links with and between” institutional arrangements to strengthen the text.

(II) Inserting a prefatory verb

If the text develops into a negotiating text, a more effective legal statement could be achieved by inserting a prefatory verb. The verb selected reflects the strength of the legal statement. Three options are provided below:

1) “Requires the use and/or establishment of links…..”.

2) “Urges the use and/or establishment of links…..”

3) “Requests the use and/or establishment of links….”

Requires in UNFCCC decisions means to impel or insist on some action. The three are a hierarchy of verbs, with Requires as the strongest and Requests as the weakest.

It should be noted that a counter-argument to the development of the text in its current form may be that it is difficult to specify the nature of the links when:

(I) some of the institutions do not yet exist (the NAMA Registry); and

(II) some of the links encouraged are seemingly with “concepts” (Long-term finance and International Consultation and Analysis) as opposed to institutions. It is unclear which body would represent these “institutional arrangements” and “financial channels”.