Election of members to the committee under Article 15, Paris Agreement

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 06/12/2018

1. Is it still legally/procedurally possible to nominate and/or elect members for the committee at CMA1-3 (in Katowice)?

2. What are the practical implications of the Committee’s rules of procedure not being adopted until CMA3 or CMA4 given that the PA implementation is set to start in 2020,  keeping in mind that some obligations don’t kick in immediately in 2020 (e.g. submission of biennial transparency reports won’t be before 2022 at the earliest) ?

Advice:

1. The basic make up (number, qualifications, geographical representation) of the Committee was decided in Decision CP.1/21. Therefore, strictly speaking, there are probably no legal impediments to the nomination and/or even election of its members. In terms of sequencing, the COP would adopt the modalities and procedures of the Committee and the CMA would appoint the members. It’s a party led process and they can largely decide as they wish.

Procedurally, however, that would be very unusual. There is a standard UNFCCC practice on notifying, nominating, consulting, publishing and then finally – during the COP – appointing members of bodies. For more details, please refer to https://unfccc.int/process-and-meetings/bodies/election-and-membership. This reflects basic principles of democratic and transparent decision-making and to do it all in one go may be seen as conflicting  somewhat with the spirit of the Paris Agreement itself (which mentions e.g. public access to information or participation in its Preamble).

A rushed nomination and selection process may also have an impact on the quality of individual nominees and members. The suitability of candidates – I think – can only be determined in light of the Committee’s full mandate as determined by the modalities and procedures likely to be adopted in Katowice.

2. The draft modalities and procedures already determine some of the Committee’s procedures (e.g. what constitutes a majority) and will focus on its internal functioning. If they are only adopted in 2021, the Committee may not be fully prepared to deal with very early Paris Agreement implementation issues. But in practice would that be a problem?   If it is up and running by the end of 2020, and it drafts further rules in 2021 that are then adopted at the end of 2021 the damage – I think – would be limited.

If you are really keen to speed up the process, however, you could call for nominations now and tasks SBI to appoint members for confirmation by the COP; or agree on a number of acting/interim committee members whose terms expires when the 12 members have been elected.