Experts group on international transport and climate finance

Legal assistance paper

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Date produced: 22/11/2012

What would be the process to establish the high level experts group, as recommended by the co-chairs report on the Long Term Finance Work Program?

1. The recommendation of the Chair envisages that the COP would give the UNFCCC Secretariat the mandate to establish a high level experts group with IMO and ICAO.

This recommendation follows an established practice to task the Secretariat with creating a platform of cooperation with other organisations – for example the Joint Liaison Group of the Rio Conventions.

So ‘yes’ there is some precedent.

But it couldn’t be established unilaterally.

The participation of other international organisations (IMO/ICAO) depends entirely on their internal decision making process.

Thus, the IMO and ICAO Councils/Assemblies will have to adopt a decision that requests their Secretariats/Secretary Generals to cooperate with the other organisations by doing this and that, including through the establishment of a high level experts group to…

If this was a contentious issue within IMO/ICAO without agreement on the establishment of such a body they would probably find some diplomatic language along the lines of “continue the current cooperation” or “further explore means of cooperation and make recommendations…” that does not allow the IMO/ICAO Secretariat to fully engage with the proposal.

If IMO and ICAO endorsed the idea, the 3 Secretariats would probably jointly develop draft terms of reference (possibly including the number of members, their expertise, background, the nomination process etc.) to be adopted by the COP/Councils/Assemblies.

So, in order to influence the operation, role and potential outputs of the expert group, these TOR/Modus Operandi/Rules of Procedure or whatever they are called will be crucial.

Following the same approach (convention bodies task secretariats to do establish/draft/collaborate…) the organisations could also enter into formal Memoranda of Cooperation/Understanding, develop Joint Programmes of Work or other initiatives with one another and give the joint expert group a role in the process; and/or subsequently add further tasks to its mandate.

Because there is an ever increasing number of international agreements, the question how to enhance synergies and cooperation between different conventions processes has developed into a real science…

We have asked a couple of academics to (think big and) make proposals on how the possible nexus between UNFCCC, IMO and ICAO could be shaped in a 2015 agreement.

2. The Marine Environment Protection Committee (MEPC)’s mandate (under Art.38, IMO Convention) is to consider matters “concerned with the prevention and control of marine pollution from ships”.

This includes, for example:

“the acquisition of scientific, technical and any other practical information on the prevention and control of marine pollution from ships… and, where appropriate, make recommendations and develop guidelines” – para. (c) of Art.38

or

“consider and take appropriate action with respect to any other matters…which would contribute to the prevention and control of marine pollution from ships including co-operation on environmental matters with other international organizations, having regard to the provisions of Article 25”. – para.(e) of Art.38.

However, Art.25 (a) of the IMO Convention then makes it fairly clear that it remains the prerogative of the Council to

“enter into agreements or arrangements covering the relationship of the Organization with other organizations…. Such agreements or arrangements shall be subject to approval by the Assembly.”

So MEPC could debate the establishment of joint expert group and make a recommendation to this effect. The Council could task the Secretariat accordingly and decide on all necessary arrangements subject to subsequent approval by the Assembly.

The ICAO situation (under the Chicago Convention on International Civil Aviation) is similar:

Article 65 on Arrangements with other international bodies states:

“The Council, on behalf of the Organization, may enter into agreements with other international bodies for the maintenance of common services and for common arrangements concerning personnel and, with the approval of the Assembly, may enter into such other arrangements as may facilitate the work of the Organization.”

3. Re text, I would try to use the joint liaison committee precedent:

In SBSTA document FCCC/SBSTA/1999/L.7 (para.6) “The SBSTA welcomed the efforts of the secretariat to explore possible ways of cooperating with the secretariats of other conventions, in particular the UNCCD and the CBD, in order to strengthen cooperation on issues of common interest, bearing in mind the relevant decisions of the COP. It encouraged the secretariat to continue consultations with the relevant secretariats, and to inform it on the outcome of these consultations at subsequent sessions of the subsidiary bodies.”

Subsequently, SBSTA (in doc. SBSTA/2001/L.1 para.4) then “endorsed the formation of a joint liaison group between the secretariats of the UNFCCC and the CBD and requested the secretariat of the UNFCCC to invite the secretariat of the United Nations Convention to Combat Desertification to participate in this liaison group in order:

(a) To enhance coordination between the three conventions including the exchange of relevant information;

(b) To explore options for further cooperation between the three conventions, including a possibility of a joint workplan and/or a workshop.”

So based on the co-chairs approach, you could suggest something along the lines of: “requests the Secretariat/Executive Secretary to explore/promote/suggest the establishment of joint high level expert group with IMO and ICAO to

(a) review and develop proposals for MBM taking into account Parties’ commitments under the existing legal instruments, [in particular the principle of CBDRRC] [and the principle of non-discrimination?];

(b) examine options for ensuring that revenues from MBM for international shipping and aviation contribute to the GCF;

(c)…”