The secretariat’s note on AIM (arrangements for intergovernmental meetings – see https://unfccc.int/sites/default/files/resource/6e_0.pdf ) contains in its annexes draft provisional COP, CMP, and CMA agendas for COP25. Both provisional COP and CMA agendas include an item on the Warsaw International Mechanism for Loss and Damage associated with Climate Change impacts (WIM). The entry in the provisional COP agenda has a generic footnote that generally refers to the “authority over and guidance to the WIM, including its Executive Committee”. There is no equivalent footnote in the provisional CMA agenda, however. What are the legal and practical implications of having this footnote in one but not both provisional agendas?

Summary:

As a matter of law, the inclusion of the footnote in Annex I of the secretariat’s note, but not Annex III, has no legal effect in terms of decision-making. However, it does gives rise to certain procedural considerations. The most important practical implication is that, if the item is adopted as presently formulated, there will inevitably be discussion of the governance of the WIM under the COP. This would not necessarily be so without the footnote.

a. Does the inclusion of the footnote in the COP provisional agenda have the effect of prejudging the governance discussion in any way? Does the inclusion of the footnote in the COP provisional agenda have the effect of prejudging the discussion of the future work of the WIM?

The secretariat’s note on AIM sets out the “ossible elements of the [COP] provisional agenda”, not the provisional agenda. Parties will be invited to present their view on those possible elements. The secretariat will then finalize the provisional agenda in agreement with the President, taking into account the Parties’ views. The provisional agenda will be made available at least six weeks before the opening of the sessions (draft rule 11 ; para. 28). Accordingly, an item, or a footnote relating to an item, may still be commented upon by the Parties before the finalisation of the provisional agenda.

Moreover, the adoption of the agenda, including the nature and scope of its terms, is a matter for the COP, not the secretariat (see, e.g. art. 8 of the Convention) . When adopting the agenda, the COP may decide to amend items (draft rule 13). The COP could therefore decide by consensus to remove the footnote from the WIM agenda item, for example.

In any event, even if the draft provisional agenda were to be adopted as presently formulated, it is difficult to see how the footnote would have the effect of prejudging the governance discussion. It provides: “Authority over and guidance to the Warsaw International Mechanism, including its Executive Committee.” (p. 10) It does not state or otherwise imply that the COP should adopt a particular position in respect of the governance of the WIM. A decision on the governance of the WIM under the Convention would, as a matter of law, be taken by the COP, by consensus . The same is true of any discussion of, and decisions as to, the future work of the WIM.

In sum, the inclusion of the footnote in the draft provisional agenda does not have the effect of prejudging the governance discussion. However, in practical terms, if it is included in the agenda, there will inevitably be discussion of governance of the WIM, which is not necessarily the case were it to be excluded from the agenda.

b. Does the inclusion of the footnote have the effect of restricting the scope of discussions on that agenda item (to the WIM governance), or is the footnote merely indicative or explanatory of what could be considered, leaving open the possibility of discussions on substance?

The footnote is not clearly drafted.

On one view, the footnote contemplates restricting the scope of discussions to governance. Along the model of footnote 2 of Annex I, the secretariat could easily have written: “Includes matters relating to the authority over and guidance to the Warsaw International Mechanism, including its Executive Committee.” It did not do so. Nor was this footnote included in the COP24 agenda.

However, it may equally be argued that, in the absence of express language, the item should not be so restricted.

Both are reasonable interpretations.

With this discussion in mind, we recall the procedural distinction between, and respective functions of, the possible elements of the provisional agenda, the provisional agenda and the adopted agenda.

It is still open to a Party, before the provisional agenda is finalized, to comment on its items – for example, to propose an amendment to the secretariat, within the relevant timeframe. That amendment may seek to clarify the nature and scope of the footnote, in relation to the proposed agenda item.

If the secretariat finalizes the provisional agenda with the footnote as presently drafted, it would still be open to a Party to propose a supplementary item, which may seek to address any concerns it may have about the scope of an agenda item, to be included in a supplementary provisional agenda (draft rule 12).

Moreover, as previously noted, the decision on the adoption of the agenda remains with the COP. Given the ambiguity of the provision, there could be no assurances that the approval of an agenda containing the footnote would necessarily have the legal effect of restricting the scope of discussions. In practical terms, the process of adopting the agenda would be the occasion for the Parties to clarify the scope of the item – if not already been addressed before or after finalisation of the provisional agenda.

c. Could the inclusion of the footnote in the COP agenda only be interpreted as an indication that the WIM will be solely under the authority of the CMA and this would in effect be a rubber stamping exercise?

For the reasons previously mentioned – in particular the terms of the footnote and the fact that decisions must be taken by the COP , and by consensus – the inclusion of the footnote in the COP agenda could not reasonably be interpreted as indicating that the COP discussion would simply be a rubber – stamping exercise, leaving the WIM under the sole authority of the CMA.

d. Does it prejudge the WIM review agenda item in any way?

See above, our response to (a).