Query: 

Could you clarify the governance of the AC and its relationship to CMA and COP? 

Advice: 

The AC was formulated by the COP pursuant to the Cancun Adaptation Framework (Decision 1/CP.16) and is officially governed under the COP (Decision 2/CP.17). However, since the Paris Agreement, the AC serves both the Convention and the Paris Agreement, and reports to the CMA as well as the COP (Decision 11/CMA.1).  

Both the COP and CMA provide mandates to the AC by directly making requests or inviting it to conduct various adaptation related tasks (see the AC decision booklet which summarises all requests to the AC from the CMA and COP).  As the AC was initially set up under the Convention, the SB60 agenda includes assessing the suitability of the AC in accomplishing the Paris Agreement’s goals.  

Among these mandates, there are requests that might be similar to asking the AC to develop/support the develop of indicators for the GGA: For example, Decision 11/CMA 1 invites the AC, in collaboration with the CGE and the LEG, to develop recommendations on how to improve reporting on adaptation action and progress, including with a view to informing the review and update, as appropriate, of the modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement contained in the annex to decision 18/CMA.1 and the review of the training course referred to in decision 9/CMA.4, paragraph 10; 

This could be useful to note in the negotiations on indicators to support the request for the AC to take a partial role in such work, in alignment with an expert body.  

Further detail on the AC Governance: 

1. The AC was established pursuant to the Cancun Adaptation Framework at COP16 (Para II(20), Decision 1/CP.16)  

2. The functions, composition, modalities were decided at COP17, including the decision that the AC “shall operate under the authority of, and be accountable to, the Conference of the Parties, which should decide on its policies in line with relevant decisions” (Para III(95), Decision 2/CP.17)  

3. Until the Paris Agreement, the AC reported to the COP, which approved its “three-year workplans”, commented on progress, and made decisions regarding its composition (see Decision 11/CP.18; para 6 Decision 16/CP.19) and the AC provided recommendations directly to COP (see Decision 4/CP.20 (Annex)).  

4. Post the Paris Agreement, the COP21 requested the AC to prepare recommendations for consideration and adoption by the CMP (alongside the Least Developed Countries Expert Group as per Article 7(3) of the Paris Agreement) (see paras III(41, 42 and 45) of Decision 1/CP.21).  

5. The CMA decided that the AC will also serve the Paris Agreement (Para I(1) Decision 11/CMA.1) and requested the AC to prepare technical papers and regularly update an inventory of adaptation needs.  

6. Both the COP and CMA directly mandate the AC (see AC decision booklet).The latest mandates (not comprehensive, included as illustrative examples) are: 

1. Decision 2/CMA.5 invited the AC to technically support the UAE Framework for Global Climate Resilience. 

2. Decision 9/CP.27 requested the AC to continue formulating recommendations for National Adaptation Plans.  

7. At SB59, a review of the progress, effectiveness and performance of the AC was meant to be considered, but it was decided that this will now take place in SB60 (June 2024) (SBSTA 59). This review will probably open the discussion regarding the governance of the AC.  

The WIM governance as an example:  

The Paris Agreement integrates the WIM and its functions. It provides (in Art.8 para.2) that the WIM will also be subject to the authority and guidance of the supreme governing body of the Agreement – the COP serving as Meeting of the Parties to the Paris Agreement (CMA). Hence, formally the WIM already operates under both international agreements (the UNFCCC and the Paris Agreement). Parties may, however, decide to decouple it from the UNFCCC and make it subject to the guidance and authority of the CMA only. This would require additional decisions by the Parties similar to those taken to move the Adaptation Fund established under the Kyoto Protocol to the Paris Agreement.  

The legal implications or potential implications of moving the WIM (or the AC) to the CMA are as follow:  

1. It would provide for an opportunity to review the mandate and functions of the AC, which could be detrimental if some parties are looking to weaken this constituted body.  

2. Only parties’ signatories of the Paris Agreement would be able to participate in the mechanism. Parties that have not ratified it of withdraw in the future will not be able to participate (ie. Russia, USA).  This could affect its influence/ but also it could promote a more ambitious work of this constituted body if those parties are not in the governing body.  

These implications are further elaborated in an LRI advice: ‘Moving the Warsaw International Mechanism for Loss and Damage’.  

A dual governance, on the other hand, would need to be agreed. There, there is no straight answer, various forms of relationship between COP and the AC and CMA and the AC are possible, but it would be important to clarify to which body the AC will be accountable for, and of course, which body will establish mandates. Here’s an advice on possible dual governance of the WIM, that might illustrate the considerations at play.