Adaptation, Additionality and ODA

Legal assistance paper

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Date produced: 03/11/2009

How would the legal text look like to ensure that finance commitments by developed countries to support mitigation and adaptation in developing countries  are additional to resources developed countries provide to meet their existing Overseas Development Assistance commitments (to provide 0.7% of their GNI as aid)?  Are there precedents that can be used to draft language that will ensure that UNFCCC adaptation or mitigation finance provisions are distinct from other finance commitments? Would this be “treaty language” in case a treaty gets agreed to or COP decision language?

By way of preamble, we are aware that the experience to date on the interpretation of ‘additionality’ as it appears in the Kyoto Protocol, has not been good: the use of the term has failed to achieve the original intention (precisely the issue raised in the query): that is to ensure that the funds provided were over and above any that developed country parties were and are obligated to provide through ODA.

Turning to the question, we are not aware of any precedents that would help in this instance.

Considering the text as it stands, we recommend:

  1. Avoidance of use of the word ‘additional’ or ‘additionality’. Given its misuse in the past, it would not serve developing country Party purposes to allow the confusion around its chequered interpretation to interfere with clarity as to the meaning of the requirements.  It would be preferable to utilise substitute words of the same meaning (for example ‘more than…’)
  1. Secondly, rather than merely referring to ‘additional to ODA targets’, defining the actual amount of ODA that has been committed to (either by referring to the UN resolution, or specifically recording the amount of finance to be provided – for example ‘over and above 0.7% of GDP that the developed country Party in question is obliged to commit in ODA…’), will go some way to addressing the concerns.

Consideration will then also have to be given to the sources of funding.  Various proposals are on the table to fund adaptation and mitigation through auction levies, air fare levies, fines and so forth, over and above the ‘assessed contributions from developed country Parties’ (paragraph 23 to Annex XII to the finance non-paper).  This however allows for further obfuscation: if you have a total defined contribution ($x billion per year), how are the country obligations to be assessed, if there is uncertainty around how much will be received from the other proposed sources?

Beyond the above, we would suggest, further, that merely distinguishing ‘Copenhagen’ commitments from other financial pledges should only be a part of the strategy in addressing the issues raised.  Of equal importance is to focus on the architecture of the relevant text insofar as it applies to:

–          structure of any governing body

–          the composition of that body

–          MRV provisions.

On the first point, the powers of the body established (see paragraph 16 of NP 34) need to be broad enough to empower it to address issues such as non-compliance by parties with their obligations (including financial obligations).

On the second, composition, it would be important to ensure that all stakeholders were adequately represented on the governing body in a meaningful manner, and that the structure of the body prevented deadlock situations that could effectively be used to block sanction (this could also be addressed through the structure of the rules – see MRV below).

Finally, the monitoring, reporting and verification procedures need to be both strong and all-encompassing.  Paragraphs 42 and 43 of NP 34 make a start, however, these provisions could go further by incorporating obligations imposed by other bodies / treaties without imposing dictats on those bodies through this text.  For example, it would be important to enable the governing body to take into account (and oblige countries to report on) other financial obligations, the levels of compliance with same, and how this would impact on ‘Copenhagen’ obligations, including addressing instances of double counting and additionality.

Accordingly, it is not only important to move away from a narrow consideration of ‘additionality’ in attempting to address the issue, but to go further and target the MRV and enforcement text as a means of compelling developed country Parties to comply with their various obligations.