Legal status and mandate of the Local Communities and Indigenous Peoples’ Platform

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 However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments.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: 26/07/2019

 

  1. What is the legal status and mandate of the Local Communities and Indigenous Peoples’ Platform (LCIPP)? 
  2. What obligations, if any, have Parties with respect to the LCIPP at the national and international levels
  3. Should the implementation of the LCIPP be informed by other international treaties related to the rights of indigenous peoples ratified by a country as well as by domestic law?

Summary:

The LCIPP is a forum established by the Conference of the Parties to the UNFCCC (COP). The facilitative working group (FWG) is its operational arm, which helps implement the functions of the LCIPP.

The COP has mandated the LCIPP to work in three key areas: exchange of knowledge, capacity for engagement and climate change policies and actions.

The Parties’ obligations in relation to the LCIPP are largely not-mandatory and therefore, non-binding. However, encouragement and preferred action are clearly expressed in COP decisions, which create expectations in relation to how Parties should act in implementing the LCIPP.

There are a range of international treaties that can and should inform the implementation of LCIPP (see Decision 2/CP.24 which provides that the purpose and functions of the LCIPP and its FWG will be carried out consistent with international law). Implementation of the LCIPP may also be informed by domestic law (as well as other relevant country-Party laws, as determined by the Parties).

Advice:

 Introduction

The Local Communities and Indigenous Peoples’ Platform (LCIPP) was established by the Conference of the Parties to the UNFCCC (COP) at COP21 in Paris in 2015. The LCIPP was established in recognition of the need to strengthen knowledge, technologies, practices and efforts of local communities and indigenous peoples related to addressing and responding to climate change (Decision 1/CP.21, paragraph 135).

Following COP21 in 2015, COP Decision 2/CP.23 confirmed the overall purposes and three core functions of the LCIPP and provided that LCIPP’s first activity would be a multi-stakeholder workshop on the implementation of those functions. Decision 2/CP.23 set a path to further operationalise the LCIPP.

Decision 2/CP.24 established the FWG and set out the modalities and rules for the FWG’s composition and operation: it consists of 14 representatives, half of whom are representatives of parties and the other half of which are from indigenous people’s organizations. A further six members (three from local communities and three additional parties) will be considered in 2021.

Decision 2/CP.24 envisages that the FWG meets twice a year in conjunction with the sessions of the subsidiary bodies and the session of the COP.

The first meeting of the FWG took place in Bonn in June 2019 from 14 – 16 June at SBSTA 50 and was open to parties and observers. Matters considered included:

  • a dedicated LCIPP web portal;
  • in-session workshop on enhancing the participation of local communities, in addition to indigenous peoples in LCIPP;
  • activities related to all three functions of the LCIPP; and
  • a draft initial two-year workplan for implementing the functions of LCIPP (exchange and strengthen knowledge, capacity for engagement, and climate change policies and actions).

The FWG is aiming to prepare an initial draft two-year workplan for the period 2020-2021 for implementing the functions of the LCIPP for consideration by the fifty-first session of the SBSTA at COP25 in Madrid.

1. Legal Status

The LCIPP was established by the COP as a forum for the exchange of experiences and lessons learnt, among other things. The LCIPP’s remit is determined by the functions entrusted to it by the COP, as set out in relevant decisions of the COP.

The LCIPP is a type of forum that is not unique in the UNFCCC context. The UNFCCC process has created some groups, platforms, dialogues and committees that engage with non-Party stakeholders. For example, recently the Talanoa Dialogue, established as a facilitative dialogue to take stock of the collective efforts of Parties in relation to progress towards the long-term goals of the Paris Agreement and to inform the preparation of nationally determined contributions (NDCs), included processes to engage with non-Party stakeholders. Also, the Technology Executive Committee (policy arm of the technology mechanism) established task forces with non-Party representation. The technology mechanism also includes a designated website that includes information on projects, policy recommendations and the negotiation process.

As the name FWG (‘Facilitative Working Group’) suggests, it is not intended to be a negotiating body under the Convention. This is reflected in the text of COP Decision 2/CP.23 (at paragraph10). The primary function of the FWG is to operationalize the LCIPP by communicating with local and indigenous peoples and parties to the COP and make its recommendations to the COP at their relevant sessions.

The FWG is, however, a constituted body with limited membership and established to address technical, specific areas relating to the implementation of the Convention[1]. This means that the draft Rules of Procedure likely apply to the LCIPP, although Decision 2/CP.24 sets out the FWG’s own modus operandi, covering election of officers, schedule of meetings, operation on the basis of consensus, etc.

Mandate

The three functions of LCIPP (established in Decision 2/CP.23) are interlinked and intended to inform the content of LCIPP. They are as follows:

  • Exchange of knowledge: The LCIPP promotes the exchange of experiences and best practices to apply, strengthen, protect and preserve traditional knowledge, knowledge of indigenous peoples and local systems and their technologies, practices and efforts of local communities in response to climate change.
  • Capacity for Engagement: The LCIPP allows indigenous peoples and local communities to engage with the UNFCCC process and allows those involved directly with the UNFCCC process to engage with the indigenous peoples and local communities in relation to the implementation of the Paris Agreement and other climate change processes.
  • Climate Change Policies and Actions: The LCIPP facilitates the integration of knowledge systems, practices and innovations in the design and implementation of national and international actions, programmes and policies in a manner that pays due respect to the rights and interests of local communities and indigenous peoples. The LCIPP also facilitates the undertaking of more ambitious action by local communities and indigenous peoples that could contribute to the achievement of a party’s NDC.

2. Obligations of Parties under LCIPP

Parties decided to establish LCIPP which indicates that, at least at the time of its establishment, the LCIPP was supported by the Parties. The decisions of the Parties that set up LCIPP and provide its mandate do not impose any binding obligations. There are minimal mandatory commitments or requirements for Parties (very little use of language such as ‘shall’, ‘must’ or ‘will’ be undertaken or achieved as part of the LCIPP). Decision 2/CP.23 generally uses aspirational language (eg: “should”).

Decision 2/CP.23 recommends that the interests and views of indigenous peoples and local communities, and principles proposed by indigenous peoples organizations be taken into account when operationalizing LCIPP.

Decision 2/CP.24 does refer expressly to Parties and uses persuasive terms, rather than mandatory language (eg: “invites”):

  • in para.13, invites Parties to promote the engagement of local communities in LCIPP with a view to enhancing their participation in the FWG and LCIPP; and
  • in para.16, by inviting Parties … to take into consideration LCIPP and its functions at the local, national and regional level to enhance the engagement and inclusion of indigenous peoples and local communities to facilitate the exchange of experience and the sharing of best practices.

While these provisions are non-binding they do create an expectation that Parties will promote local communities’ engagement and also consider the exchange of knowledge, building capacity for engagement etc. at local, national and regional level.

3. Should the implementation of the LCIPP be informed by other international treaties related to the rights of indigenous peoples ratified by a country and by domestic law

International law is relevant to the implementation of the LCIPP and should be taken into account. This is reflected in COP Decisions 2/CP.23 and 2/CP.24, which both refer to the UN Declaration on the Rights of Indigenous Peoples in preambular paragraphs:

“ …emphasizing, in its entirety, the United Nations Declaration on the Rights of Indigenous Peoples in the context of the implementation of the functions of the Local Communities and Indigenous Peoples Platform involving indigenous peoples” (Decision 2/CP.24)

This confirms an expectation that the UN Declaration on the Rights of Indigenous Peoples should be used to inform the implementation of the LCIPP.

Also, Decision 2/CP.24 emphasizes that the purpose and functions of the Local Communities and Indigenous Peoples Platform and its Facilitative Working Group will be carried out consistent with international law. The second preambular paragraph of COP Decision 2/CP.23 provides:

acknowledging that Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on the rights of indigenous peoples and local communities,”

Content in COP Decisions 2/CP.24 and 2/CP.23 creates an expectation that Parties should consider and respect obligations under other international treaties related to the rights of indigenous peoples that they have adopted or ratified, as well as any relevant obligations under domestic law. Other international instruments, which are consistent with the LCIPP and relevant may be used to inform the work of LCIPP.

Also, relevant experiences under national law and policy might be instructive in terms of providing examples of approaches/initiatives that have worked and not worked well, in the context of the mandate of LCIPP. National law and policy experiences may inform exchanges about best practice (knowledge sharing) through the LCIPP.

The COP has encouraged (not required) the FWG to collaborate with other bodies under and outside the Convention to enhance the coherence of the actions of the LCIPP (Decision 2/CP.24, paragraph 20). This further confirms an intention that other relevant international instruments and bodies might inform implementation of the LCIPP.

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[1] These are only a few examples of bodies in the UNFCCC process that have decided to include non-Party stakeholders in their proceedings as representatives of observer organizations or as individual experts, in advisory as well as in technical functions.