International Consultation and Analysis (ICA)

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 06/12/2010

1. What is the meaning of international consultation and analysis (ICA) for nationally appropriate mitigation actions (NAMAs) by developing country Parties under the UNFCCC?

2. How would this differ from the meaning of ICA under the WTO?

Summary:

ICA: The Copenhagen Accord states that measuring, reporting and verification (“MRV”) of unilateral NAMAs (i.e. NAMA’s undertaken with no linked international support) will be conducted domestically, subject to “international consultation and analysis” (“ICA”). There is no definition of ICA in the Accord. Guidelines on what ICA means are to be developed by the COP. Part III B of the new LCA Chair’s Note contains options for negotiating ICA. ICA is intended to be a lesser form of oversight as compared to MRV of “supported NAMAs” (i.e. NAMAs linked to international technology, finance or capacity building support). The Accord states that supported NAMAs are to be subject to international MRV, with guidelines to be developed by the COP. Again this is developed in Part III B of the new LCA text.

WTO: As the meaning of ICA under the Accord is not yet developed it can’t be compared to the meaning of ICA under the WTO, but Part 2 contains a summary of the Trade Policy Review Mechanism (and refers to other international examples). The key element of the TPRM is that it is intended to improve transparency and facilitate the international trade system. It is not designed to enforce the obligations of the Parties. The Member State produces a report, which is then reviewed by an expert body within the WTO Secretariat. The Secretariat adds its report, and both reports are then discussed by the Trade Policy Review Body (all WTO members). The reports, including minutes of the discussion, are published. Members with a larger share of world trade are reviewed most frequently (2 years ranging down to every 6 years, possibly longer for LDCs).

Advice:

1. Nationally Appropriate Mitigation Actions (NAMAs) for developing countries were first introduced in the Bali Action Plan.

The Bali Action Plan contained no provisions on MRV of NAMAs. The Copenhagen Accord paragraph 5 provides for two levels of MRV for the NAMAs of developing countries:

a) on unsupported NAMAs, paragraph 5 states: “Mitigation actions taken by Non-Annex I Parties will be subject to their domestic measurement, reporting and verification the result of which will be reported through their national communications every two years. Non-Annex I Parties will communicate information on the implementation of their actions through National Communications, with provisions for international consultations and analysis under clearly defined guidelines that will ensure that national sovereignty is respected.”

b) on supported NAMAs, paragraph 5 goes on to state: “Nationally appropriate mitigation actions seeking international support will be recorded in a registry along with relevant technology, finance and capacity building support. Those actions supported will be added to the list in appendix II. These supported nationally appropriate mitigation actions will be subject to international measurement, reporting and verification in accordance with guidelines adopted by the Conference of the Parties.”

The Copenhagen Accord therefore specifies different levels of MRV:

– for unsupported NAMAs, MRV is domestic, but reported every 2 years, and subject to international consultations and analysis. ICA is not defined in the Accord, but guidelines are to be developed at the COP which “ensure that national sovereignty is respected”.

– for supported NAMAs, MRV is intended to be international, and guidelines for this type of MRV are also intended to be developed at the COP. Because of the international support, the Accord envisages more rigorous scrutiny undertaken at international level, without the same reference to national sovereignty.

– however, MRV for supported NAMAs by developing countries is still not intended to be as rigorous as the MRV for mitigation actions by developed countries. This follows from the fact that the need for “rigorous, robust and transparent” monitoring referred to in paragraph 4 of the Accord (in relation to Annex I Parties) is not replicated in paragraph 5.

The new LCA Chair’s Note (Chair’s note of 4 December 2010 (FCCC/AWGLCA/2010/CRP.2)) contains options for developing country NAMAs at Part III B (page 9). Some relevant features to note:

• Paragraph (a) refers to enhanced support for enhanced reporting by developing country parties

• Paragraph (e) states that the “approach to reflecting information, and reporting and consideration of national communications [on NAMAs]” will depend on either emissions levels of a Party, or characteristics of action, or groupings in the Convention – suggesting different levels of reporting for different groups of developing country Parties

• Paragraph (h) refers to verification of international support provided

• Paragraph (j) states that:

“Domestically supported mitigation actions will be

Option 1 Verified domestically in accordance with general guidelines under the Convention and develop general guidelines for domestic verification;

Option 2 Measured, reported and verified on a voluntary basis;”

This repeats the Accord position that unsupported NAMAs will have domestic MRV;

• Paragraph (k) slightly changes the position under the Accord – rather than a new international MRV system for supported NAMAs, the paragraph states:

“internationally supported actions will be measured, reported and verified in accordance with requirements of entity providing support, including any funds established under the Convention.”

• Paragraph (l) introduces 2 yearly reporting by non-Annex I parties, and states that national communications from non-Annex I parties will be enhanced, but the requirements will not be more onerous than Annex I party communications, and will provide flexibility for LDCs and SIDS

• Paragraph (m) states that guidelines will be developed for biennal submissions as part of revision of guidelines for national communications of Non-Annex I parties

• Paragraph (n) contains the provisions on ICA.

Paragraph (n) states:

“Option 1: Agree to consider national communication or biennial submissions in a

multilateral process under the Convention, after technical analysis by experts, in a

manner that

(i) is facilitative and non-punitive;

(ii) fully respects national sovereignty;

(iii) increases transparency of mitigation actions;

Launch a process to develop modalities and guidelines for such consideration;

Option 2: International consultation and analysis process;

Option 3: No process for international consultation and analysis;”

• Part B ends with consideration of a dedicated work programme for development of “various modalities and guidance”

• It is also worth noting that the LCA Chair’s Note includes the same Option 1 from paragraph (n) as an alternative to a compliance mechanism for review of national communications from Annex I parties on progress in achievement of mitigation commitments and provision of support to developing countries

We do not have any further information on the intention of the drafter of the new Chair’s Note as to what difference is envisaged between Options 1 & 2 of Paragraph (n). There is no further definition in the text of international consultation and analysis.

These options will be negotiated and developed in the LCA track during Cancun.

 2. As regards the meaning of ICA under the WTO, below is a link to a briefing note dated December 2010 from the Pew Center on Global Climate Change which compares MRV processes in various multilateral regimes, including WTO, IMF, OECD, UNHRC and the Montreal Protocol. There is a very useful table at pages 6 and 7 comparing key elements of the various processes:

http://www.pewclimate.org/publications/brief/mrv-survey-reporting-and-review-multilateral-regimes

Specifically on the WTO, the Trade Policy Review Mechanism (TPRM) could be considered to be a form of “international consultation and analysis” in a multilateral regime. It is established by Article III of the Marrakesh Agreement. Annex 3 to the Marrakesh Agreement describes the Mechanism.

The stated objectives of the TPRM are to facilitate the functioning of the trading system, to better understand the trade policies and practices of the individual Parties, to improve their transparency, and to enable a multilateral assessment of the effects of policies on the world trading system. It is explicitly stated in the Annex that the Mechanism is not there to enforce specific obligations or to impose new commitments on Members. Cases of alleged violation are taken up in the separate Dispute Settlement Procedure.

The TPRM process is that the Member State produces a report, which is then reviewed by an expert body within the WTO Secretariat. The Secretariat adds its report, and both reports are then discussed by the Trade Policy Review Body (all WTO members). The reports, including minutes of the discussion, are published. Members with a larger share of world trade are reviewed most frequently (2 years ranging down to every 6 years, possibly longer for LDCs).