Are there are any legal arguments that could be used to say that the grievance mechanism envisaged in para.68 of the Annex to the draft CMA decision on the rules, modalities and procedures for the mechanism established by Article 6, paragraph 4, of the Paris Agreement should not be handled by the Supervisory Body; or are there any other safeguards that should be put in place to ensure the mechanism can adequately fulfil its functions?

Summary:

Our initial view is that there is no express textual support in the Paris Agreement for a requirement in this context to address grievances independently.

However, there are various examples of independent processes being introduced in relation to grievances in other international law contexts, which could be relied upon as examples to support the proposition that an independent process should be implemented.

In terms of practical next steps, the delegate who raised this point could:

• seek to incorporate into para 68 additional language to the effect that grievances are raised with the Supervisory Body in the first instance, but that there lies an appeal to the CMA in the event that the complaining party is not satisfied with the Supervisory Body’s response; or
• paragraph 68 could otherwise be amended to provide that grievances are to be dealt with not by the Supervisory Body but by an independent body to be established by the CMA for this purpose.

If (and we presume this to be likely) there is now insufficient time to agree the details of either option but they could be agreed in principle, a provision could be included in paragraph 68 requiring the CMA to outline the details by or at the next meeting.  

Advice:

Our analysis in response to this query is set out below, which we note is based on the understanding that a grievance (as opposed to an appeal) falls to be addressed by the Supervisory Body, with the idea being that the grievance does not necessarily arise out on a decision of the Supervisory Body, but out of the impact of an activity previously sanctioned by the Supervisory Body. We have briefly addressed below the possibility of the outcome of the grievance process before the Supervisory Body being itself susceptible to the appeal contemplated at paragraph 68, but further consideration is necessary as to whether this is the intention of paragraph 68 and what the mechanics would look like.

Grievance mechanisms – potential legal arguments / key principles in support:

The UNGPs set down effectiveness criteria for grievance mechanisms that should inform the architecture of these mechanisms (UNGP 31). They should be legitimate, accessible, predictable, equitable, transparent, rights-compatible and a source of continuous learning.

There is also jurisprudence in international law on the requirements for authorities responsible for adjudicating complaints. In short, the jurisprudence includes requirements around (i) competence; (ii) functional independence from the primary authority and (iii) participation of the complainant (see e.g. Ananyev and Others v Russia, ECtHR, 10 January 2012 (paras 215-216) and Torreggiani and Others v Italy, ECtHR, 8 January 2013 (para 51) – as cited in ICJ, Universal Grievance Mechanisms, 2019).

Suggestions on appeal/grievance process / oversight of Supervisory Body:

In terms of immediate comparators in the environmental context, the Clean Development Mechanism (“CDM” – see: here) under Art 12 of the Kyoto Protocol installed an emission reduction certificate scheme for projects in developing countries. The Art 6.4 Mechanism under the Paris Agreement is essentially an extension of the CDM but with the additional controls outlined in the background section to ensure it does not meet the same criticism/ill fate as the CDM. The CDM is overseen by an Executive Board which answers to the Conference of the Parties to the Kyoto Protocol. There does not appear to be any provision for appeals/grievances. Similarly, the draft decision on Art 6.4 creates a Supervisory Body (“SB”) which is under the authority and guidance of the CMA and fully accountable to the CMA. If we want to take this further, we might take account of the following examples.

Belgium’s Federal Institute of Sustainable Development has produced a toolbox which cites examples of grievances mechanisms (see: here).

World Bank example: Grievance Redress Service (GRS) to address complaints from affected communities in the framework of projects financed by the World Bank (see: here). The GRS is part of World Bank Management but is functionally separate and independent from the Bank’s teams that are responsible for preparing and supporting the implementation of projects. Complaints are treated as confidential.

The example provided by delegate who raised this query is the Ad Hoc complaints Handling Mechanism (ACHM) of the Adaptation Fund (see: here). The ACHM sits in addition to the relevant implementing entity’s grievance mechanism and is to be used if a solution at the grievance level isn’t reached within a year. The ACHM is overseen by the Adaptation Fund Board Secretariat (specifically its Ethics and Finance Committee) – so not dissimilar to the World Bank.

The other example provided in respect of the Independent Redress Mechanism of the GCF is also very helpful. However, it appears that the GCF – much like the Adaptation Fund, the World Bank and the CDM mechanism under the Kyoto Protocol – has an executive board function. By contrast, the draft decision in respect of the Supervisory Body under Article 6.4 does not appear to envisage such a function so it is difficult to establish an independent mechanism which reports to a board but is separate from the day to day of the Supervisory Body. One way around this might be to establish a redress mechanism which reports to the CMA, to which the SB is ultimately accountable.  

In conclusion, for today’s purposes, it strikes us that there are potentially two ways of providing for independent review of grievances raised:

• it could be made expressly clear by way of addition to the existing language at paragraph 68 that what is contemplated in respect of grievances is that they are raised with the Supervisory Body in the first instance, but that there lies an appeal to the CMA in the event that the complaining party is not satisfied with the Supervisory Body’s response. This would give some independence to the ultimate result, if not at first instance; or

• paragraph 68 could otherwise be amended to provide that grievances are to be dealt with not by the Supervisory Body but by an independent body to be established by the CMA for this purpose.

 If (and we presume this to be likely) there is now insufficient time to produce the detail of this option during these negotiations, a provision could be included in paragraph 68 requiring the CMA to outline the details by or at the next meeting.