Legal status of AGF report

Legal assistance paper

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Date produced: 19/11/2010

1. What is the legal status of the AGF report to the UNFCCC given that is has not been formally submitted to the UNFCCC (as per the AGF ToR)? Can it be used in the UNFCCC negotiations under the LCA track, in Cancun, for example, can it be formally recognised via a COP decision? Are there any other legal implications with regards the use of the report within the UNFCCC process if it fails to be formally submitted?

2. If the intention is to use the AGF report formally in the UNFCCC negotiations, is there any advantage in pushing for formal submission as per the ToR (or will it make little difference to have the report formally submitted)?

3. Are there any examples where a report has been formally recognised in a COP decision? Are there any implications for the report itself and the use of the report in subsequent negotiation processes? For example, were the IPCC Assessment Reports and the Financial Flows paper and update formally incorporated into any legal texts or COP decisions coming out of the negotiations, and what were the implications for these reports?

1. The short answer to the first question is that the Report of the Secretary General’s High-level Advisory Group on Climate Change Financing (AGF) does not have any legal status within the context of the UNFCCC. As noted in the AGF terms of reference, the remit of the AGF was to “study potential sources of revenue for financing mitigation and adaptation activities in developing countries” and to report on their findings to the UN Secretary-General (and arguably to the current and next president of the UNFCCC CoP, although it may have been intended that the Secretary-General would submit the report to the presidents).

2. Whether or not the document is submitted to the President(s) of the UNFCCC CoP, the document may be used by parties as the basis of developing or amending negotiating text e.g. in its views on the draft text to facilitate negotiations at the 10th session of the AWG-LGA, Australia recognised the “pivotal role financing has to play in furthering climate change action” and welcomed “the establishment of the United Nations Secretary General’s High-level Advisory Group on Climate Change Financing”.

We also note that on at least two occasions, at the AWG-KP and AWG-LCA sessions in Bonn on 9 – 11 April 2010 and also in Tianjin on 4 – 9 October, briefings were given to UNFCCC parties on the AGF and , in the case of Tianjin, its interim findings were disclosed. It is therefore open to parties participating in the AWG-KP and AWG-LCA (being aware of the AGF report and its findings) to incorporate appropriate aspects of the AGF report into their negotiations. It should be noted that the AGF report points out that “given the complexity of the analysis and the diverse group of members involved, there were differences in perspectives…These are reflected in the report”. In other words, the AGF does not provide absolute answers to issues relating to financing – rather it provides options, views and suggestions based on a methodical analysis of potential sources of revenue taking into account a specified criteria.

3. The AGF differs from the IPCC Assessment Reports and the Financial Flows paper, and other technical papers, in that the request for the report did not arise from within the UNFCCC process (in the case of the IPCC report, it was requested by the AWG-LCA and the report was submitted to the AWG-LCA). However, we do not think that this is a barrier to the effective use of the findings of the report within the UNFCCC negotiations.

Reports may be “welcomed” or “noted” in CoP decisions (although it is difficult to find examples outside the IPCC reports), however, it is more common for technical papers to be considered by and to inform the decisions of working groups such as the AWG-KP and AWF-LCA. In the case of the IPCC Assessment Reports and the Financial Flows paper, parts of the report were used to develop negotiating texts (but not the report in its entirety). In our view it is not necessary for the AGF report to be formally acknowledged by the UNFCCC CoP (by “welcome” or by “noting”) in order for the AGF report to be effective in terms of negotiating.