APA mandate under Decision 1/CP.21 versus Paris Agreement

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Date produced: 19/05/2016

Could you provide one or more lines of argument to extend the mandate under Decision 1/CP.21 to  include additional agenda items, predominately related to adaptation, in the APA agenda?

Advice:

In Paris, the Conference of the Parties (COP) established the Ad Hoc Working Group on the Paris Agreement (APA) as a subsidiary body with a specific mandate.

This mandate is to ‘prepare for the entry into force of the Agreement and for the convening of the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’ (Decision 1/CP21, para. 8).

As a subsidiary body to the COP, the mandate of the APA is not all-encompassing, but is outlined in Decision 1/CP.21 (Adoption Decision). This mandate identifies some issues, which presently do not seem to include adaptation.

However, the Paris Agreement should be interpreted in light of Article 18 of the Vienna Convention on the Law of Treaties (Obligation not to Defeat the Object and Purpose of a Treaty Prior to its Entry into Force):

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.”.

The signatory Parties to the PA have to consider the duty under Article 18 mentioned above when considering the interpretation of the Adoption Decision.

Following this line of argument, the mandate of the APA could include an adaptation component, alongside the mitigation component. The following paragraphs of the Adoption Decision would support such view:

  • Para. 8 of the Adopting Decision, which is important in framing the overall task of the APA, namely to prepare for entry into force of the Agreement and for convening the first CMA. The scope of the APA mandate under this paragraph is broad, and does not only encompass accounting, transparency (etc) rules singled out in various paragraphs of the Adoption Decision. Please note that the counter-argument to such proposition would be that rules on adaptation are not needed to ‘prepare for the entry into force of the Agreement’ and that these can be adopted by the CMA in due course;
  • Para. 18, which notes the inclusion of adaptation needs in the INDCs submitted by many developing countries. This, it can be argued, confirms that adaptation can be a component of NDCs and that the ongoing work of the Parties in relation to NDCs must take account of this;
  • Para. 91, which mandates the APA to develop recommendations for modalities, procedures and guidelines in relation to the transparency framework. An argument can be made that since, under Article 13(5), the purpose of the framework for transparency of action is to provide a clear understanding of climate change action, including progress towards achieving NDCs and adaptation actions, the scope of the APA mandate encompasses developing modalities, procedures and guidelines in relation to reporting on adaptation actions; and
  • Para. 100, which requests the APA to identify the sources of input for the global stocktake and report to the CMA with a view to the CMA making a recommendation which will include information on the state of adaptation efforts, support experiences and priorities as well as the overall effect of the NDCs. It can be argued that the APA will therefore need to address an adaptation component in its work relating to the NDCs in order to take account of the adaptation element included within many (I)NDCs so as to fully inform the Global Stocktake process in accordance with Articles 7 and 14 of the PA.

The mandate of the APA should also be considered in light of the following articles of the PA:

  • Article 2 of the PA, which confirms that there are (at least) three key elements to the strengthened response represented by the PA: mitigation, adaptation and mobilisation of finance. This should be born in mind when considering the specific paragraphs setting out the tasks of the APA in the Adoption Decision. The interlinking of these elements is important to the interpretation of the PA as indicated in particular in Articles 2 and 3, 9, 10, 11, 13 and 14. Work on these components will need to achieve coherence in order to facilitate the work to be undertaken under the PA.
  • Article 7(14) of the PA also confirms that the Global Stocktake shall include recognition and review of the Parties’ work on adaptation.

At the end of the day, the question of Parties’ interpretation of what is or should be on the APA agenda is largely a political one.