Guidance from the COP to the GCF

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced (please refer to the date produced below). However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. You should seek legal advice to take account of your own interests. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Advice Q 7-25 Guidance from COP to GCF Download

This memorandum addresses three queries regarding the Green Climate Fund’s (GCF) obligations to consider guidance from the Conference of the Parties (COP), the nature of the relationship between COP and GCF, and the mechanisms available to ensure that all relevant guidance is brought to the GCF’s attention and considered by it.

Query:

Does the GCF have a mandate or obligation to consider and respond to guidance included in all COP Decisions?

Summary: In our view, the GCF is obliged to consider and respond to any guidance from the COP that is directed to it, regardless of the form, heading or location of such guidance. The arrangements between the COP and the GCF do not limit the communication of guidance to the designated item ‘Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund’ (Report and Guidance Item), although this is where most guidance is located. The GCF has previously recognised and acted on guidance from the COP that was not contained under the Report and Guidance Item, such as the guidance contained in Decision 9/CP.19.

Does this behaviour by the GCF represent a breach of the agreed arrangements between COP and GCF?

Summary: We consider the GCF Board’s current practice of only considering guidance under the Report and Guidance Item as arguably inconsistent with its obligations under its Governing Instrument and the arrangements between the COP and the GCF. The Governing Instrument requires the GCF Board to take action in response to any COP guidance. Selective consideration based on the location of the guidance risks undermining the accountability framework established under Article 11 of the United Nations Framework Convention on Climate Change (the Convention).

As an additional analysis and provided the GCF would not be acting in breach of existing arrangements, how can the guidance to the GCF contained in other COP decisions be brought to its attention (rather than those in Report of the Green Climate Fund to the Conference of the Parties and guidance to the Green Climate Fund)? Can this be done only by a specific request by parties in a decision, or could the UNFCCC secretariat, or someone else (GCF Board member?) do this?

Summary: There are several mechanisms through which such guidance may be brought to the GCF Board’s attention:

by a specific request in a COP decision, which may clarify that guidance to the GCF may appear in any COP decision;

via the Standing Committee on Finance (SCF), which may recommend that the GCF consider guidance embedded in other decisions;

through informational transmission by the UNFCCC Secretariat; or

by GCF Board members themselves raising relevant COP decisions for discussion during meetings of the Board, or for it to be included as an item on the agenda for a Board meeting.

These mechanisms for bringing guidance to the GCF Board’s attention are available regardless of whether the GCF Board is in breach of its obligations. Based on our review, there are no other mechanisms available to address a failure by the GCF Board to consider or act upon COP guidance.

For completeness, we have also considered whether complaints could be raised relating to the GCF Board’s performance via the GCF’s Independent Redress Mechanism (IRM). While the GCF’s Governing Instrument describes the IRM in broad terms, stating that it “will receive complaints related to the operation of the Fund and will evaluate and make recommendations”, the IRM’s Terms of Reference (TOR)¹ provide a narrower and more specific mandate. In particular, the TOR provide that the IRM will:

address requests for reconsideration of funding decisions (in accordance with paragraphs 6–10 of the Arrangements between the GCF and the COP); and

address grievances and complaints by individuals or communities who have been or may be adversely affected by a GCF-funded project or programme, where there is alleged non-compliance with the Fund’s operational policies and procedures.

As such, the IRM’s scope is limited to funding- and project-related matters, and it does not extend to allegations of non-compliance by the GCF Board more generally.