1. Can you confirm the interpretation that committees are in fact SBs for the purpose of Art 7.2? If this is the case, how do they differ from the more familiar subsidiary bodies: SBI and SBSTA?
2. Does this mean that there is no automatic hierarchy of ‘committees’ as sitting beneath SBSTA and SBI except where explicit in the decision that defines the committee? I.e. a committee does not necessarily have to report to SBSTA or SBI?
3. Please review the decision on the Adaptation Committee which states that recommendations on finance are given through the COP. SBI and SBSTA are not mentioned. Does this decision therefore establish the Adaptation Committee as a committee that reports directly to the COP?
4. What is the current status of the Standing Committee in terms of its structure as a Committee or a Subsidiary Body? The decision on the Standing Committee says that it is under the COP and assist the COP in exercising its functions regarding the financial mechanism. There is no mention of the SBI or SBSTA. If the Standing Committee is positioned as a committee, could it report to the COP directly, or would it have to go through SBI/SBSTA?
Summary: All committees and specialised bodies established by the COP or CMP are technically ‘subsidiary bodies’ but they differ from each other (and the SBI and SBSTA) depending on the provisions (whether in the Convention or COP / CMP decisions) which establish them. These provisions will set out, amongst other things, who can participate, what the mandate of the body is and who the body reports to. In terms of the practice of participants, however, the general view is that only those bodies that have participation of all Parties should be referred to as subsidiary bodies (SBI, SBSTA, AWG-LCA and AWG-KP); but this is not, in our view, strictly correct. The ‘hierarchy’ of committees/subsidiary bodies and reporting lines is a result of the explicit decision establishing the committee/body rather than established by default. Notwithstanding that paragraph 20(d) of Decision 1/CP.16 suggests that the Adaptation Committee will report to the COP in relation to means of incentivizing the implementation of adaptation actions, it is not clear whether the committee as a whole is be required to report to the COP or one of the Convention subsidiary bodies (SBI or SBSTA). The Parties have submitted views on, inter alia, the committee’s linkages with other Convention institutions (such submissions are likely to include the relationship of the committee with the COP and/or the SBI/SBSTA). Who the Standing Committee will report to (i.e. the COP or SBI/SBSTA) is not yet clear and is something the Parties will need to address when elaborating its roles and functions. There is no reason why it could not report directly to the COP rather than through SBI or SBSTA.
1. Committees v Subsidiary Bodies
Rule 2.8 of the draft Rules of Procedure (RoP) define a ‘Subsidiary body’ as “those bodies established by Articles 9 and 10 of the Convention, as well as any body, including committees and working groups, established pursuant to Article 7(2)(i) of the Convention”.
Yamin and Depledge argue that that the specialised bodies established by the Convention (the Consultative Group of Experts on NA1 Natcomms, the Expert Group on Technology Transfer and the LDC Expert Group) fall within the definition of ‘subsidiary bodies’ in the RoP, and would by implication, therefore, be subsidiary bodies for the purpose of Art 7(2)(i) of the Convention.
They also make a distinction between the Convention specialised bodies and the Kyoto Protocol specialised bodies (namely, the CDM Executive Board, the Article 6 Supervisory Committee, the Compliance Committee and the Adaptation Fund Board) in respect of their functioning and reporting (see below for more details on reporting).
On this basis, it is our view that each of these bodies (under the Convention and Kyoto Protocol) are technically ‘subsidiary bodies’ for the purposes of Art 7(2)(i) of the Convention and Art 13(4)(h) of the Kyoto Protocol.
However, the committees and specialised bodies established by the COP or CMP differ from the Convention subsidiary bodies (SBI and SBSTA) in a two key ways: (i) eligible participants and (ii) issues falling under that subsidiary body’s mandate.
(i) In relation to eligible participants, the Convention (and Kyoto Protocol) provide that the SBI and SBSTA be open to all Parties. On the other hand, and with the exception of the two current ad-hoc working groups that are also open to all relevant Parties, the participation of Parties in the specialised bodies established by the COP or CMP is restricted to a specific number of Parties from different categories of Parties. The participation restrictions are set out in the decisions establishing the relevant body.
(ii) In relation to issues falling under a subsidiary body’s mandate, the scope of the relevant subsidiary body is set out in the Convention or the COP or CMP decision establishing the relevant body. For example, the mandate of SBSTA and SBI is much broader than those of the specialised bodies.
In summary, therefore, committees and specialised bodies established by the COP or CMP are technically ‘subsidiary bodies’ but they differ from each other (and the SBI and SBSTA) depending on the provisions (whether in the Convention or COP / CMP decisions) which establish them. These provisions will set out, amongst other things, who can participate, what the mandate of the body is and who the body reports to. In terms of the practice of participants, however, the general view is that only those bodies which have participation of all Parties should be referred to as subsidiary bodies (SBI, SBSTA, AWG-LCA and AWG-KP); but this is not, in our view, strictly correct.
2. Hierarchy of committees
As between the subsidiary bodies, there is no default hierarchy. This is partly because the mandates of the respective subsidiary bodies are generally distinct from each other.
It is also because, in relation to reporting requirements, the provisions establishing the subsidiary body will explicitly set out who it reports to. The SBI and SBSTA are required to report to the COP (or CMP) , the AWG-LCA reports to the COP and the AWG-KP reports to the CMP.
The Convention specialised bodies report to SBSTA or SBI (who will then in turn report to the COP) whereas the Kyoto Protocol specialised bodies report directly to the CMP.
In theory, there is no reason why a body established under the Convention could not report directly to the COP (in the way that the Kyoto bodies report to the CMP). One of the reasons the current Convention bodies report to SBI or SBSTA is that their mandate also falls within the mandate of SBI and/or SBSTA.
As a result, the ‘hierarchy’ of committees/subsidiary bodies and reporting lines is a result of an explicit decision rather than established by default.
3. Who does the Adaptation Committee Report to?
Paragraph 20, Decision 1/CP.16 establishes the Adaptation Committee. It sets out five functions it will perform:
a) provide technical support and guidance;
b) strengthening information and knowledge sharing;
c) engaging with non-UNFCCC organisations;
d) provide recommendations for incentivising adaptation actions; and
e) consider information – related to adaptation – submitted by Parties.
Unlike the COP decisions establishing the other Convention specialised bodies, this decision does not explicitly specify who the Adaptation Committee will report to. Instead, the Parties were invited to submit proposals which set out, amongst other things, how the committee should relate to other institutional arrangements (including, the COP, SBI and SBSTA).
Paragraph 20(d) states that the Adaptation Committee is to provide “information and recommendations … for consideration by the [COP] when providing guidance on the means to incentivise the implementation of adaptation actions, including finance …” (emphasis added).
This suggests that in respect of incentivising adaptation actions, the Adaptation Committee will report directly to the COP. Since there is no similar suggestion in the rest of paragraph 20, it could be argued that who the Adaptation Committee is required to report to for the purposes of para 20(a)-(c) and (e) is yet to be decided in accordance with paragraph 24. On the other hand, it could be argued that since paragraph 20(d) requires reporting to the COP, by implication the Committee as a whole should report to the COP. In our view, both interpretations are equally viable and who the Adaptation Committee will report to will be determined by the Parties acting through the AWG-LCA pursuant to paragraph 24.
4. Status of the Standing Committee
On the basis of our response to part 1 above, we would say that the Standing Committee is technically a subsidiary body. However, whether it functions as a ‘typical’ subsidiary body (such as the SBI or SBSTA, with the participation of all Parties) or a specialised body (with restricted participation of the Parties) will depend on how its roles and functions are further elaborated by the Parties pursuant to paragraph 112 of Decision 1/CP.16.
Additionally, who the Standing Committee will report to (i.e. the COP or SBI/SBSTA) is not yet clear and is something the Parties will need to address when elaborating its roles and functions. Based on our responses to part 3 above, there is no reason why it could not report directly to the COP rather than through SBI or SBSTA.