1. Please review the Adaptation section (Chapter II) of Decision 1/CP.16 (the “Decision”), in particular paras 13-20. What is the link between finance and National Adaptation Plans (NAPs)?
2. Does the language require developed country Parties to provide finance to support the formulation and implementations of NAPs by LDCs?
3. If not, is there a legal/interpretive argument (based on the text of Chapter II and, if appropriate, precedent) which would support an interpretation of the text to achieve such a link (e.g. can it be argued that there is an implicit link between the use of the word ‘enable’ in para 15 and the provision of finance for adaptation actions in para 18?).
4. What is the relationship between NAPs, finance and the Adaptation Committee?
5. Would finance for NAPs require the Green Climate Fund and the Adaptation Committee to be operationalised first?
• The Decision does not provides an express link between finance and NAPs.
• The language used in the Decision does not impose an express obligation on developed country Parties to provide finance to support the formulation and implementation of NAPs by LDCs. The Decision does request developed country Parties to provide finance to support the implementation of NAPs by LDCs.
• It could be argued that, without adequate financing by the developed country Parties, the LDCs are not in a position to actually formulate – let alone implement – NAPs and that ‘enabling’ LDCs to formulate and implement NAPs by implication requires the provision of finance by developed country Parties.
• There seems to be no necessary direct relationship between NAPs, finance and the Adaptation Committee.
• It seems that finance for NAPs would not require the Green Climate Fund and the Adaptation Committee to be operational first (though this will in large part depend on the decisions taken in the ongoing negotiations).
1.1 Decision 1/CP.16 contains the outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention. In Chapter I of the Decision, the Conference affirms the shared vision on long-term cooperative action by all Parties. This vision addresses mitigation, adaptation, finance, technology development and transfer, and capacity-building.
1.2 Chapter IV of the Decision, paragraphs 95 up to and including 112, concern finance. Paragraph 95 of the Decision “takes note of the collective commitment by developed countries to provide new and additional resources, including forestry and investments through international institutions, approaching USD 30 billion for the period 2010-2012, with a balanced allocation between adaptation and mitigation […]”. In addition, in paragraph 98 the Conference recognises that “developed country Parties commit, in the context of meaningful mitigation actions and transparency on implementation, to a goal of mobilizing jointly USD 100 billion per year by 2020 to address the needs of developing countries.”
1.3 Chapter IV, section A provides for the establishment of a Green Climate Fund. The Parties are in the process of negotiating (via the Transitional Committee) what the exact function of the Green Climate Fund will be and what its relation will be with existing funds, including but not limited to the Least Developed Countries Fund and the Kyoto Protocol Adaptation Fund.
2. Link between finance and NAPs and requirement to fund
2.1 Paragraph 14 of the Decision invites all Parties to enhance action on adaptation under the Cancun Adaptation Framework (as set forth in the Decision) and sets forth what actions the Parties could take. The term ‘invites’ does not seem to imply a clear obligation for any Party to take any action.
2.2 In Paragraph 15 of the Decision, the Conference decides to “establish a process to enable least developed country Parties to formulate and implement national adaptation plans, building upon their experience in preparing and implementing national adaptation programmes of action, as a means of identifying medium- and long-term adaptation needs and developing and implementing strategies and programmes to address those needs.” Paragraph 15 mentions both formulating and implementing NAPs.
2.3 In paragraph 18 of the decision, the Conference requests developed country Parties to provide the developing countries with, inter alia, finance to implement adaptation actions, plans, programmes and projects. Again, the term used in this paragraph (i.e. request) does not seem to imply any clear obligation. Paragraph 18 does not mention formulating national adaptation plans explicitly. Pursuant to paragraph 18 of the Decision, with regard to the request to provide finance, the needs of those that are particularly vulnerable should be taken into account.
2.4 There is no express link between finance and NAPs in the sense that the financing by the developed country Parties is a condition precedent to the ‘obligations’ of LDCs with regard to the NAPs.
2.5 Paragraph 2(a) of the Decision states that the developed country Parties should show leadership by undertaking, inter alia, financial resources to developing country Parties. The Conference affirms that mobilisation and provision of scaled-up, new, additional, adequate and predictable financial resources is necessary to address the adaptation (and mitigation) needs of developing countries (paragraph 2(d) of the Decision). Paragraph 11 of the Decision states that “international cooperation is required in order to enable and support adaptation actions aimed a reducing vulnerability and building resilience in developing country Parties, taking into account the urgent and immediate needs of those developing countries that are particularly vulnerable.”
2.6 It could be argued that, without having access to finance, LDCs are not in the position to implement their national adaptation plans and that therefore, the Decision is of no value without any finance being made available by the developed country Parties for the developing country Parties. As such, it could be argued that the provision of finance by developed country Parties is implicit in paragraph 15 in order to “enable LDCs to formulate and implement NAPs”.
2.7 Article 4, paragraph 4 of the United Nations Framework Convention on Climate Change (the “Convention”) states that the developed country Parties and other developed Parties shall “assist the developing country Parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects”. However, this is a very general obligation and does not provide for specific obligations imposed on specific Parties.
3. Relationship between NAPs, finance and the Adaptation Committee
3.1 With regard to the relationship between NAPs and finance, we refer to paragraph 2 above.
3.2 The Decision does not explicitly attribute any role with regard to finance to the Adaptation Committee. The Adaptation Committee is established in order to promote implementation of the enhanced action on adaptation in a coherent manner. It could be argued that this also comprises mobilising and/or administrating finance. The tasks of the Adaptation Committee expressly mentioned in the Decision include providing information and promoting cooperation and sharing knowledge and experience.
3.3 The Adaptation Committee has a role in promoting cooperation and the sharing of information, knowledge, experience and good practices. This is likely to include sharing information which helps the LDCs implementing their NAPs.
4. Would finance for NAPs require the Adaptation Committee and the Green Climate Fund to be operational first?
4.1 The text of the Decision is not completely clear in this respect, but it could be argued that finance for NAPs does not require the Adaptation Committee and the Green Climate Fund to be operational first.
4.2 As mentioned in paragraph 3.2, it could be argued that one of the tasks of the Adaptation Committee is to mobilise and/or administrate finance, although this does not directly follow from the text of the Decision. This does not necessarily mean that finance requires the Adaptation Committee to be operational first.
4.3 Paragraph 100 of the Decision states that “a significant share of new multilateral funding for adaptation should flow through the Green Climate Fund, referred to in paragraph 102”. The wording ‘significant share’ implies that there is a remainder that does not flow through the Green Climate Fund. It could be argued that, until the Green Climate Fund is in place, the finance should be made available through other channels. In addition, article 11 of the Convention refers to financing through bilateral, regional and other multilateral channels.
4.4 On several occasions, the word ‘urgent’ is used in connection with mitigation and adaptation actions (e.g., fifth recital on pages 2 and paragraphs 11, 18 and 97). It could be argued that not providing funds until the Green Climate Fund and the Adaptation Committee are operational is not consistent with the urgent nature of the problem.
5.1 The Decision does not provide for an express obligation on developed country Parties to provide funding to LDCs for the implementation of NAPs. It could be argued by LDCs that the obligation is implicit and follows from the urgent nature of the problem and the fact that LDCs are not in a position to address adaptation and to implement NAPs without funding from the developed country Parties.
5.2 There is no express relationship between the provision of finance, the Adaptation Committee and the Green Climate Fund (though we note that this may change as the negotiations progress). With respect to the Green Climate Fund, it should be noted that the Convention and the Decision both leave room for alternative channels of funding. Thus, funding for NAPs would not have to wait for the operationalisation of the Adaptation Committee or the Green Climate Fund.