What are the legal and governance questions involved if an institution serves two agreements: how can an institution such as the WIM be under the guidance of the COP and the governing body of the new agreement at the same time? what does this mean? Joint COP/PARIS COP agenda items?
It is not uncommon, in international law, for international bodies/institutions to serve different international agreements. Examples include the World Bank, the Global Environment Facility, which operates the multilateral financial mechanisms of several environmental conventions, or potentially the International Court of Justice.
The particular scenario envisaged here covers the situation where protocol(s) are adopted under the auspices of a ‘parent’ convention and existing convention institutions are being deployed to serve the protocol(s). The rationale for doing this is clear: to avoid the proliferation of new institutions and minimize operational costs. One example is the 2000 Cartagena Protocol on Biosafety adopted under the Convention on Biological Diversity. Whilst the parent convention will usually define basic institutional and procedural links between the two instruments, the protocol itself may add further links to the parent treaty, for example by designating mechanisms existing under the treaty (e.g. the Conference of the Parties) that are also to serve the protocol.
Another example closer to home is that of Article 15 of the Kyoto Protocol which provides that the SBSTA and SBI will also serve the KP, and the provisions relating to them under the Convention will apply mutatis mutandi. In practice, sessions of the subsidiary bodies under the KP are held in conjunction with meetings of the SBs under the Convention, although separate agenda items will be drawn up for the SBs acting under the Convention and under the KP. Under Article 15(2), when a subsidiary body exercises functions in relation to the KP, only Parties to the KP may take part in the adoption of any decision the subsidiary body reaches. Parties to the Convention which are not Parties to the KP may nonetheless participate as observers.
The same institution may have two different mandates under two agreements, and therefore operate under the guidance of one authority, say the COP in some instances, and under the guidance of another authority, say the COP serving as the meeting of the parties under the X Protocol, when it performs functions established under this latter Protocol. In theory, there may be a conflict if the mandates overlap, but because broadly the same countries are represented in both bodies (and take the same substantive position) this is rather unlikely.
The query singles out the Warsaw International Mechanism as potentially raising these governance issues. Decision 2/CP.19 is clear that the WIM was established by the COP, and that its Executive Committee must function under the guidance of, and be accountable to, the COP.
Some of the specific references to the WIM in the Co-Chairs’ Tool do not appear to change this position:
- There is no mention of the WIM specifically in Part One of the Co-Chairs’ Tool, which is designed to reflect the potential Paris Agreement.
- The WIM is mentioned in Part Two of the Co-Chairs’ Tool, which is designed to reflect the potential Paris COP Decision, but this does not appear to undermine the fact that the WIM will remain governed by the COP:
- Para 25 establishes a financial technical panel under the WIM;
- Para 26 establishes a climate change displacement coordination facility separately to the WIM; and
- Para 27 establishes a clearing house for risk transfer, again, separately to the WIM.
However, the position does appear to be changed by a general provision in the Paris Agreement applying to all existing subsidiary bodies, mechanisms and institutions. The Secretariat has made a suggestion to amend para 46 of Part I of the Co-Chairs Tool, which seems to intend that the WIM would be governed by the new governing body established in the Paris Agreement: “[This agreement [shall][should][other] build on the subsidiary bodies and other institutional arrangements established by or under the Convention. All subsidiary bodies, mechanisms and other institutional arrangements established by or under the Convention shall serve this agreement, unless otherwise decided by the governing body. The governing body may provide further guidance or strengthen these institutional arrangements as appropriate.”]
This is reinforced by para 44, Option III, of Part 3 of the Tool which provides that:
WARSAW INTERNATIONAL MECHANISM TO SERVE THE AGREEMENT [The Warsaw International Mechanism shall serve this agreement as a process with its modalities and procedures to be developed and adopted by the governing body].
If para 46 of Part 1 is included, then this would seem to make it clear that all existing bodies and mechanisms, including the WIM, should “serve this agreement” (i.e. the Paris Agreement), and will in future operate under the guidance of, and be accountable to, the Paris governing body in relation to the functions they perform under the Paris Agreement.
You could of course end up with a situation where the Paris Agreement deals somehow with the WIM, without making it clear whether the WIM is still operating under the guidance of the COP. In a best case scenario, this would be recognised and dealt with through a COP Decision (e.g. making it clear where the Executive Committee was to report to, and how it would be formed). In a worst case scenario, it could lead to paralysis of the WIM, as the status and mandate of its Executive Committee could be questioned.
More broadly, it is in principle possible to have a potential overlap between bodies established under e.g. the UNFCCC, and then re-established or otherwise empowered under a Paris Agreement. Ideally, the language in para 46 of Part I should be clarified so that this is not in doubt. The obligations between parties where there are successive treaties on the same subject matter can get fairly complex:
- Under the Vienna Convention on the Law of Treaties (VCLT), if the parties to both treaties are the same, then the earlier treaty generally applies only to the extent that it is compatible with the later treaty (Art 30(3)).
- If the parties to both treaties are different, then: a) as between State X and State Y who are both parties to both treaties, then the same rule (Art 30(3)) applies; but b) where State P is party to both treaties, and State Q is party to only one treaty, then as between P and Q they are governed only by the treaty to which Q is party (Art 30(4)).
- The best solution is therefore to include a ‘conflict clause’ in the later treaty, to make it clear how it relates to earlier agreements. The classic way to resolve issues between two successive treaties is to include a clause such as Art 103 of the UN Charter: “In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
- Assuming that most of the UNFCCC parties will become parties to the Paris Agreement, then para 46 of Part I will ideally resolve any conflict about the ongoing operation of institutions such as the WIM, and make it clear that in future they only operate under the authority of the Paris governing body in relation to the functions assigned to them under the Paris Agreement.
Parties should therefore consider:
- Clarifying the language in para 46 of Part I of the Co-Chairs’ Tool;
- Whether the Paris Agreement will contain any ‘conflicts clause’ or overall provision making it clear that it supersedes prior agreements between the parties (obviously fraught with difficulties if the states parties at any point in time are different);
- Whether the displacement coordination facility and the clearing house in paras 26 and 27 of Part II should be clearly formed as institutions sitting under the WIM, or whether they remain separate.
- (Note that Decision 2/CP.19 notes that the structure and mandate of the WIM will be reviewed at the 22nd COP, so these issues could be resolved at that point if necessary.)