1. What is the difference between the language “under the Convention” and “under the authority of the COP”?
2. Does the language used in para 20 of COP Decision 1/CP.16 (“under the Convention”) mean that the Committee will be under the direct authority of the COP rather than some other subsidiary body, or is the language ambiguous in this regard?
3. How strong is the argument that the Committee is required to be under the direct authority of the COP, having regard to the language used in the COP Decision?
Summary: The wording in Article 20 of Decision 1/CP.16 does not expressly state that the Adaptation Committee is to be under the direct authority of the COP or any other UNFCCC body, but it is arguable that in the absence of such a statement, it is implied that the Adaptation Committee will report directly to the COP. In other words, the default position is that the Adaptation Committee reports directly to the COP unless the parties have expressly decided, and stated, otherwise. This is because it is strongly arguable, on the basis of logic, some precedent and in the interests of avoiding uncertainty, that if the parties intended that the Adaptation Committee be “under the authority of” or otherwise answerable to any UNFCCC body other than the COP, details of the relevant body would need to have been included in Decision 1/CP.16. On the other hand, it might be argued that the parties have deferred the decision as to which body is the most appropriate body to oversee the work of the Adaptation Committee until such time as the parties have had an opportunity to submit their proposals in relation to the composition of, and modalities and procedures for, the Adaptation Committee in accordance with Article 21 of Decision 1/CP.16. However, in our view, this is not the better argument because proposals relating to the composition, modalities and procedures are providing details of the form and function of the Committee within the context of an overarching governance framework (i.e. an Adaptation Committee which reports to the COP as implied under Article 20), but this detail does not set the framework.
As a starting point, we would argue that the difference between “under the Convention” and “under the authority of the COP” may not relevant in the context of Article 20 of Decision 1/CP.16. This is because Article 20 states that the COP “decides to hereby establish an Adaptation Committee to promote the implementation of enhanced action in a coherent manner under the Convention, inter alia, through the following functions”. The phrase “under the Convention” in this context does not appear to relate to the establishment of the Adaptation Committee itself, but rather to the function of the Committee as a means by which enhanced adaptation action under the Convention could be promoted in a coherent (perhaps also meaning co-ordinated) manner.
In other words, Article 20 is silent on which body the Adaptation Committee is answerable to. However, we would argue just on the basis of logic alone, if the COP establishes a committee and does not expressly state otherwise, then it intends for that committee to report to it (i.e. as the creator of the committee). It is an implied obligation. Such a proposition may be supported in this case by the language used in describing the functions of the Committee, such as to provide “information and recommendations…for consideration by the Conference of the Parties when providing guidance…” (Art 20(d)). This seems to suggest a direct connection between the Committee and the COP. But this connection relates to a flow to the COP from the Adaptation Committee rather than from the COP to the Adaptation Committee (as would be expected if the Adaptation Committee was “under the authority of the COP”).
Nevertheless, there is precedent for COP decisions providing express detail as to the governance framework of bodies the COP has established and which are to answer to the COP. In fact, in other occasions in which the COP establishes a body under Decision 1/CP.16 (other than the establishment of the Adaptation Committee), the COP has made statements to the effect that the body is “accountable to” and “functions under the guidance of” the COP (e.g. Art 102, establishment of the Green Climate Fund) or is “established under the Conference of the Parties” (e.g. Art 112, establishment of a Standing Committee re finance mechanism).
But in our view, the fact that the COP has provided a greater level of detail in relation to the governance frameworks of newly established bodies, other than the Committee, does not support an argument that the COP therefore intended that the Committee should answer to a body which is subordinate to the COP.
Rather, if the Committee was required to report to a subordinate body to the COP (and not the COP directly) the COP would need to have provided those instructions when establishing the Committee. By way of example, in Decision 8/CP.4, the Joint Working Group on Compliance (JWG) was expressly established by the COP under the SBI and SBSTA to design a compliance system under the Kyoto Protocol and the JWG was expressly requested to report to COP 5 “through the SBI and SBSTA” (Annex II).
We note that if our interpretation of the use of the phrase “under the Convention” is not correct, and it is intended to cover both the establishment and function of the Committee, we believe that the phrase supports an argument that the Committee is answerable to the Convention directly (for the same reasons provided in relation to the implied obligation), but that the phrase “under the authority of the COP” suggests a much greater emphasis on the oversight of, or perhaps involvement by, the COP in the relevant body and this probably goes to the function of the relevant body. For instance, the COP may want to emphasise its oversight and authority role with respect to the Green Climate Fund (whose function is, among other things, to distribute funds to developing countries). This is true, too, of the Adaptation Fund Board (AFB) under the Kyoto Protocol. Because the AFB’s role includes the allocation and distribution of funds, the requirement for a significant input into certain actions of the AFB is appropriate and understandable.
Whereas, with the Adaptation Committee (whose function is, among other things, to provide information and recommendations to the COP) such an emphasis on oversight and authority is arguably not as relevant or appropriate.
The role of the Adaptation Committee is very different from that of other bodies dealing with adaptation, such as the AFB under the Kyoto Protocol. The role of the Adaptation Committee is one of co-ordinating, identifying, information gathering, and synthesising information in relation to the adaptation actions of parties under the Convention (and subsequently preparing recommendations based on that information) as a means by which disparate and otherwise unconnected actions or information can become more connected or even possibly consolidated (to improve efficiency and effectiveness of individual actions). This includes actions being taken by or information being gathered by parties or other bodies under the Convention (such as the SBI and SBSTA).
As such, the Adaptation Committee does not appear to require the COP’s (or arguably any subordinate body to the COP) “oversight” or direction under its “authority” on a regular basis in order for it to undertake the tasks which are expressly prescribed to the Committee under Article 20. Rather, the Adaptation Committee should work as, effectively, an advisory body to the COP for example, by “considering information communicated by Parties on their monitoring and review of adaptation actions, support provided and received, possible needs and gaps…including information communicated under the Convention, with a view to recommending what further actions may be required” (Art 20(e)). Although this provision is silent on whether such a recommendation is to made directly to the COP, in the absence of a prohibition or alternative direction on doing so, it remains open to the Committee to make its recommendations directly to the COP (as is expressly contemplated under the Art 20(d)).
Finally, we note that while the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) under the Convention is tasked with reviewing submissions of the parties with respect to the composition of, and modalities and procedures for the Adaptation Committee (and producing a synthesis report in relation thereto), and elaborating those details, it is the authority of the COP in adopting or not the proposal prepared by the AWG-LCA in accordance with Article 23, that will ultimately give the composition of, and modalities and procedures for the Adaptation Committee legal force (to the extent that COP decisions can be regarded as “legal” decisions). The COP’s authority in this respect is express and unambiguous. The COP may not have authority or otherwise have a role in proposing the composition of the Adaptation Committee, but it does have the authority to accept or reject what is provided to it by the AWG-LCA.