Civil society participation in the Adaptation Fund

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer-client relationship. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Date produced: 06/12/2010

What level of civil society participation can be mandated for a fund under the UNFCCC?

Rules governing the participation of non-governmental observers

The participation of non-governmental observers in the proceedings of meetings, and of open-ended contact groups, of the UNFCCC is governed by Rule 7 and Rule 30.

Rule 30 provides that meetings of the Conference of the Parties (“COP”) are public unless the Conference of the Parties decides otherwise. Rule 30 also provides that meetings of the subsidiary bodies are to be held in private unless the COP decides otherwise.

If the Fund is considered to be a subsidiary body of the COP (which might be assumed, although, in the absence of any details in relation to the Fund, not be confirmed with any degree of certainty), the COP will therefore have to explicitly provide for the participation of NGOs in the sessions, let alone the governance structure, of the Fund.

Rule 7 provides that United Nations, its specialised agencies and the International Atomic Energy Agency, as well as any State member of or observers to the same which are not a Party to the Convention, may be represented at sessions of the COP of the UNFCCC as observers unless at least one third of the Parties present object.

Rule 7 further provides that the admission and participation of observers is to be subject to the rules of procedure adopted by the Conference of the Parties.

It would therefore seem that NGO may attend Conferences of the Parties as observers subject to the rules established by the COP in relation to such attendance.

Decision 18/CP.4 of the COP provides that the presiding officers of Convention bodies may invite representatives of intergovernmental and non-governmental organisations to attend as observers any open-ended contact group established under the Convention process, unless at least one third of the Parties present at the session of the relevant Convention body object.

Any such participation will be on the basis that the presiding officers of such contact groups may determine at any time during their proceedings that they should be closed to intergovernmental and nongovernmental organisations.

Whilst Rule 7 and Decision 18/CP.4 provide that NGOs may participate in COPs and other bodies established by the same, such participation is always subject to rules established by the COP and the relevant body.

It could therefore be argued that absent an explicit decision by the COP, a representation of NGOs with voting rights at a body established under the UNFCCC would be contrary to the provisions of Rule 7 and Decision 18/CP.4 as it would be placing the relevant NGOs in a legislative position (including in relation to rules to which their participation would be subject).

The experience with the CDM Board

The Executive Board of the clean development mechanism (CDM) may serve as a model of current NGO participation in a body constituted by the COP. The Executive Board of the CDM’s task is, broadly, to supervise the CDM and to ensure its functioning.

Decision 17/CP.7 provides for the CDM modalities and procedures and includes a defined role for NGOs in relation to the CDM.

Pursuant to Decision 17/CP.7, NGOs have various opportunities to participate in the decision making process of the Executive Board of the CDM. Such opportunities range from observing meetings of the Board in a listening room, to responding to calls for input on substantive and procedural matters.

According to information made available by the Executive Board, NGOs have made “ample use of these opportunities and important contributions and feedback to the CDM process have been forthcoming and taken into account by the Board”.

NGO participation in the Global Fund

Based on the information about the governance structure in relation to the Global Fund’s international Board available on its website, the international board includes “representatives of donor and recipient governments, non-governmental organisations, as well as the private sector (including businesses and foundations) and affected communities”.

The website lists in particular other development agencies and organisations as participating on the international board of the Global Fund, including the World Health Organization (WHO), the Joint United Nations Programme on HIV/AIDS (UNAIDS), public-private partnerships (Roll Back Malaria, Stop TB, UNITAID) and the World Bank which serves as the Global Fund’s trustee.

In the timeframe available for answering this query, it has not been possible to review the governing structure of the Global Fund in detail. However, we would recommend that the same is reviewed in some detail if the COP decides to adopt a governance model for the Global Fund in which NGOs are represented as board members other than in an observer role.