Legal Response International » Glasgow Dialogue mandate

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1) Does the mandate of the Glasgow Dialogue resulting from the CMA decision allow for negotiation on Loss & Damage or is it going to be a series of workshops (and talkshops) held on the sidelines, in conjunction with the SBI session, with no inputs to the COPs?

2) How might the process feed into the COP, and with a decision at the COP, given that para.73 of the CMA Decision provides that the Dialogue is to be concluded at the SBI 60th session in June 2024. Can the view of the Subsidiary Body chairs, that this is not intended to lead to any COP decision, be challenged by Parties? If the Glasgow Dialogue cannot feed into a decision (legally) at the COP what other hooks are there to agree to a finance facility at the COP?

Advice:

1) Does the mandate of the Glasgow Dialogue resulting from the CMA decision allow for negotiation on L&D or is it going to be a series of workshops (and talkshops) held on the sidelines, in conjunction with the SBI session, with no inputs to the COPs?

The scope of the Glasgow Dialogue, established under decision 1/CMA.3, para 73, is open to interpretation. While many developing countries were not happy with the UK Presidency’s proposal for the Glasgow Dialogue (as a compromise for the lack of agreement to a loss and damage finance facility), the proposal was accepted, often accompanied by expressions of regret.

Clearly, one interpretation of the scope of the Glasgow Dialogue has been incorporated in the recently published draft SBI 56 provisional agenda. There is no agenda item for the Glasgow Dialogue in the draft provisional agenda, which most likely means the SBI Chair intends to treat the Dialogue as a mandated event.[1] Under this treatment, there would be no scope for Party conclusions / draft decisions emanating from the Dialogue in June 2022 (Bonn, SBI 56). Instead, the outcome of the Dialogue at the June session would be captured in some way in a report by the SBI Chair.

While the information in an SBI Chair’s report could be used as evidence to influence future negotiations on loss and damage finance, the current treatment of the Dialogue under the SBI 56 draft provisional agenda does not provide this kind of space at SBI 56. Should this treatment continue, the next mandated Dialogue event would be in June 2023, thus precluding a substantive outcome at COP 27.

To inject the Glasgow Dialogue and its outcomes into the COP 27 / CMA 4 process, a Party or group of Parties could propose the inclusion of an agenda item on the Glasgow Dialogue at SBI 56 (or, alternatively, at COP 27 / CMA 4). The draft rules of procedure for UNFCCC bodies allow this.[2] Regardless, there is no guarantee that a proposal by a Party or Parties to include an agenda item will be successful, and the UNFCCC has been plagued in recent years by long drawn out procedural wrangling over whether to include or exclude agenda items.

Barring agreement to a proposal for an agenda item on the Glasgow Dialogue, one way for a discussion to be had on the Dialogue at COP 27 / CMA 4 would be for the WIM ExCom to consider the results of the SBI 56 Glasgow Dialogue event at its Autumn meeting (ExCom 16) and provide recommendations to Parties in its annual report. Recommendations in the ExCom’s annual report are considered at each COP / CMA and this consideration is usually followed by a Party decision. A risk associated with this approach is the watering down of the issue either during the preparation of the recommendations at the ExCom level or during discussions among Parties at COP 27 / CMA 4.

Using the model followed by discussions under the Presidencies on the Santiago Network, developing countries could ask the current and incoming Presidencies to facilitate, in the second half of 2022, a similar set of discussions on the Glasgow Dialogue. This could provide a reasonable expectation for some form of outcome on it in Sharm El Sheik, regardless of whether there is a specific agenda item on the Glasgow Dialogue. Of course, the counter argument to taking this approach is that discussions are already envisioned under the Glasgow Dialogue; therefore, the Presidencies would not need to or potentially might not have any real authority to conduct their own. Nevertheless, it would be important for Parties and / or groups of Parties to communicate to both the current and (especially) the incoming Presidencies the expectation of a progressive outcome on financing for loss and damage financing at COP 27 / CMA 4.

Briefly, other ideas or options that could be considered would include including loss and damage financing in other UNFCCC and Paris Agreement processes, e.g., the technical and political phases of the GST; the technical discussions around the NCQG; the Glasgow and Sharm-el-Sheik work programme on the GGA; and the mitigation work programme. Finally, Parties and other stakeholders may wish to pursue options outside the process, for example, holding a highly visible parallel set of discussions on finance for loss and damage the outcomes of which could in time find their way into the UNFCCC process, potentially, initially at the political level. The unilateral pledges made to provide finance for loss and damage made by Scotland and the Walloon region of Belgium could be a starting point for buy in to such parallel discussions. This last suggestion might be most impactful if this form of ‘shadow dialogue’ ultimately were tied to some form of international multilateral process.

[1] Informal discussions with various stakeholders who raised this matter with the COP 26 / CMA 3 President appear to confirm this interpretation.

[2] See rules 10 and 13, UNFCCC, Draft Rules of Procedure of the Conference of the Parties and its Subsidiary Bodies (FCCC/CP/1996/2, 22 May 1996), available at, https://unfccc.int/sites/default/files/resource/02_0.pdf.