1. Can you compare options IV.B (alignment but formal separation) and IV.C (alignment and formal integration) in the information paper of the secretariat (FCCC/SBI/2020/INF.5) and assess the potential legal implications for the relationship UNFCCC/Paris Agreement; COP/CMA and the different elements of the two review processes?

2. Has the secretariat’s paper covered all aspects correctly and/or are there any other options for COP/ CMA decisions?

Advice:

1. Summary

We have identified two key distinctions between Options B and C.

The first is whether the COP or the CMA governs the review of the CTCN. For Option C, Parties to the COP (but not the CMA) will no longer be involved in governing the CTCN review.  In practice this means that the results of the CTCN review will likely be provided to the CTCN in the form of guidance from the CMA (rather than the COP), as part of the CMA’s technology framework.   Otherwise, there are limited differences between the options. In both instances:

• The results of the CTCN review will be incorporated into the periodic assessment of the Technology Mechanism (since the guidance for the periodic assessment requires that the CMA takes into account the CTCN review).
• The Technology Mechanism and CTCN will continue to be under the authority of the COP. 
• The COP will retain authority over whether or not to extend the term of the CTC and whether the CTC will continue to be hosted by UNEP.

The second is the scope of the review of the CTCN.  Under Option B, the scope may be limited to considering the CTCN’s effectiveness in achieving the objectives of the Convention.  Under Option C, the scope may be limited to considering the CTCN’s effectiveness in achieving the objectives of the Paris Agreement.  Parties may wish to consider (i) whether the review of the CTCN should also consider whether it is achieving the objectives of the UNFCCC; and if so (ii) whether the CMA is the appropriate body to govern such a review process.

In our opinion, the Secretariat’s paper has considered all aspects of Options B and C correctly.  We identify one scenario not considered by the Secretariat: conducting the review of the CTCN as part of the periodic assessment of the Technology Mechanism from 2022.

Please note: we assume in our advice below that the scope of the review of the CTCN will not change.  The only factors that may or may not change are (i) the timing of the CTCN review, and (ii) whether the CTCN review is conducted under the authority of the COP or the CMA.

1. Background

The UNFCCC’s Technology Mechanism was established by the COP at COP16.[1]  It is intended to enhance the development of technology and the transfer of technology to developing countries.[2] The Technology Mechanism consists of two bodies: (i) the Technology Executive Committee (the TEC); and (ii) the Climate Technology Centre and Network (the CTCN).[3]

• The TEC focuses on policy.  It is a group of experts that provides advice to countries on policies that help enable technology development in and transfer to developing countries.[4]

• The CTCN focuses on implementation.  It consists of the Climate Technology Centre (the CTC), which coordinates a network (the Network) of organisations that provide services to developing countries and assist with implementing technology development and transfer.[5]  The term of the CTC extends until 2026, after which time the COP will need to decide whether to extend the term of the CTC.[6]

• The CTC is located in Copenhagen and is hosted by UNEP, pursuant to a Memorandum of Understanding between the COP and UNEP (the COP-UNEP MOU).  The MOU was adopted by the COP in 2012, at COP18.[7]  In February 2022, the COP has the option of renewing the term of the MOU by an additional 4 years (until February 2026).

The Paris Agreement provides that the Technology Mechanism will also serve the Paris Agreement.[8]  This does not change the fact that the Technology Mechanism remains guided by and accountable to the COP. Instead, the Paris Agreement establishes a “technology framework”, which is a process through which the CMA provides guidance to the Technology Mechanism.[9]  At CMA1, the Parties adopted the details of the technology framework and decided that the CTCN would implement the guidance set out in the technology framework.[10]

2. The review processes

There are five review processes relevant to the Secretariat’s paper:

• Review of the CTCN: When the COP established the Technology Mechanism, it did not establish a review process for the Technology Mechanism as a whole.  However, the COP did establish an independent review process for the CTCN.[11]  The review is conducted by an independent consultant, which considers the effectiveness of the CTCN.  The review is conducted every 4 years.[12]

• Review of the CTC: The COP agreed that the CTC will operate until 2026, after which time the COP will review its functions and decide whether to extend its term.[13]

• Review of the COP-UNEP MOU: The review of the CTCN provides the COP with information needed to decide whether or not to renew the COP-UNEP MOU. [14] The MOU was initially intended to last 5 years, with the possibility of two additional 4-year renewal periods.[15]  The last CTCN review was conducted in 2018, at COP23.  The COP agreed to extend the MOU by 4 years (i.e. until February 2022).[16]  This means that in 2021, the COP will need to decide whether to extend the MOU.

• Review of the Technology Mechanism: The CMA established a review process for the Technology Mechanism as a whole.[17]  The periodic assessment of the Technology Mechanism is conducted by the CMA, which considers the effectiveness of the Technology Mechanism, but also the adequacy of support provided to it.[18] The review takes place every 5 years.[19]  The results are reflected in updates to the technology framework. [20]

• The Global Stocktake: The Global Stocktake was established by the Paris Agreement.[21]  It takes place every 5 years to assess collective progress towards the long-term goals of the Paris Agreement.  The Paris Agreement states that the Global Stocktake shall take into account information about efforts relating to the support of technology development and transfer for developing countries.[2]
• Governance

The Technology Mechanism and the CTCN are guided by and accountable to the COP.[23] The results of the CTCN review are considered by the COP, including any recommendations for enhancing the CTCN.[24]  Any changes to the CTCN review process will require COP decisions. The COP-UNEP MOU can be amended by written agreement between the COP and UNEP.[25]

The periodic assessment of the Technology Mechanism, the updates to the technology framework, and the input into the Global Stocktake, all fall within the mandate of the CMA.  Any changes to the periodic assessment of the Technology Mechanism will require CMA decisions.

4. The review of the Technology Mechanism and the review of the CTCN

The review of the CTCN is a component of the review of the Technology Mechanism as a whole.  However, as described in more detail below, the review of the Technology Mechanism is limited to a consideration of its effectiveness in achieving the objectives of the Paris Agreement (not the UNFCCC).  Since the CTCN serves both the UNFCCC and the Paris Agreement, Parties may wish to consider whether the scope of the periodic assessment needs to be amended to review the effectiveness of the CTCN in achieving both the objectives of the UNFCCC and the Paris Agreement.

A. Periodic assessment of the Technology Mechanism

The periodic assessment of the Technology Mechanism covers: (a) the effectiveness of the Technology Mechanism in implementing the Paris Agreement; and (b) the adequacy of support provided to the Technology Mechanism for its functions.[26]

(a) The effectiveness of the Technology Mechanism is assessed by reference to a series of factors that are focused on the goals of the Paris Agreement.  The review considers the work of the TEC, the CTCN, the linkages between the TEC and the CTCN and work on technology needs assessments. [27]

(b) The adequacy of the support provided to the Technology Mechanism is assessed by considering the Parties that are supported by the TEC and CTCN, the sources and types of support they receive, how the support is used, the level of support provided, and whether that level of support has changed over time.[28]

The periodic assessment uses the following sources of information: the technology framework; the annual reports of the TEC and CTCN to the CMA; other UNFCCC reporting documents on technology development and transfer; input from relevant stakeholders; and reports of the IPCC. [29]  Significantly, it will also include documents and outcomes resulting from the COP’s independent review of the CTCN.[30]

In terms of procedure, the CMA initiates the assessment and provides guidance to the Secretariat to prepare an interim and final report on the periodic assessment.  The Secretariat engages a consultant to conduct the work.  Based on the interim and final reports, the SBI prepares draft recommendations for adoption by the CMA.[31]

B. Review of the CTCN

The independent review of the CTCN considers the effectiveness of the CTCN in achieving the objectives of the UNFCCC.[32]  There is no further guidance on the scope of the review.  The 1^st independent review of the CTCN considered the following factors: the relevance of the CTCN, its effectiveness, its efficiency, impacts and sustainability.  The review provided the COP with a number of recommendations to enhance the performance of the CTCN.[33]

[1] Decision 1/CP.16, para. 117.

[2] Decision 1/CP.16, para. 113.

[3] Decision 1/CP.16, para. 117.

[4] Decision 1/CP.16, para. 121.

[5] Decision 1/CP.16, para. 123.

[6] Decision 2/CP.17, Annex VII, Chapter VIII.

[7] Decision 14/CP.18, para. 3 and Annex I.

[8] Paris Agreement, Article 10.3.

[9] Paris Agreement, Article 10.4.

[10] Decision 15/CMA.1, para. 1 and Annex. 

[11] Decision 2/CP.17, Annex VII, para. 20.

[12] Decision 2/CP.17, Annex VII, para. 20.

[13] Decision 2/CP.17, Annex VII, para. 23.

[14] Decision 2/CP.17, Annex VII, para. 22.

[15] Decision 2/CP.17, Annex VII, para. 23.

[16] Decision 14/CP.23, para. 5.

[17] Decision 16/CMA.1, para. 1. Decision 16/CMA.1, Annex.

[18] Decision 16/CMA.1, Annex, para. 5.

[19] Decision 16/CMA.1, para. 3

[20] Decision 16/CMA.1, Annex, para. 11.

[21] Paris Agreement, Article 14.

[22] Paris Agreement, Article 10.6.

[23] Decision 1/CP.16, paras. 117, 118; Decision 2/CP.17, Annex VII, para. 7.

[24] Decision 2/CP.17, Annex VII, para. 20.

[25] Decision 14/CP.18, Annex I, para.33.

[26] Decision 16/CMA.1, Annex, para. 1.

[27] Decision 16/CMA.1, Annex, paras. 2-3.

[28] Decision 16/CMA.1, Annex, para. 4.

[29] Decision 16/CMA.1, Annex, para. 9.

[30] Decision 16/CMA.1, Annex, para. 9(e).

[31] Decision 16/CMA.1, Annex, paras. 6-7.

[32] Decision 2/CP.17, Annex VII, para. 20.

[33] FCCC/CP/2017/3.