Mandate of climate change department

Legal assistance paper

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Date produced: 19/09/2017

What subject areas should be included in the mandate of a department or other institution in a developing country party jurisdiction that is responsible for addressing climate change at the national level to fully comply and benefit from the provisions of the Paris Agreement?

Advice

Given the cross-sectorial nature of climate change impacts, governments will have to consider a very broad range of law and policy interventions to respond adequately to climate change. Government action will depend on a country’s specific needs, vulnerabilities and political priorities as well as its commitments and expectations under the Paris Agreement.

The Paris Agreement provides a framework for further substantive decisions by the parties on its implementation. At present, the necessary processes, methodologies and regulations – the so called “rule book” of the Paris Agreement – are still being developed.

As a result, this advice can only give an initial overview of the relevant subject areas that may be covered by the mandate of a new body tasked to coordinate the response to climate change across government. The Paris Agreement provides the following broad guidance for developing country parties: 

  1. Mitigation

Under Art.4 of the Agreement each party must “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve” and “pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions”. The nationally determined contributions (NDCs) “shall” be communicated every five years. The Agreement sets an expectation that each Party’s NDC will represent a scaling-up of the level of action relative to the previous version “and reflect its highest possible ambition”. In addition, parties have to provide national GHG inventory reporting and information necessary to track progress made in implementing and achieving mitigation NDCs (Art.13.7).

Consequently, a climate change department should be tasked to e.g. review, prepare or propose policy, law and implementing regulations in various areas such as air pollution, energy, industry, transport etc., and also to improve emissions data collection, monitoring and reporting. They may suggest realistic overall emission targets, track progress and report as required. Its mandate should, therefore, include a reference to the measuring, reporting and verification of GHG emissions, and could further identify systems, governance structure and/or allocate responsibilities to gather and process relevant information and monitor outcomes of mitigation efforts. (This would feed into the biennial reporting under the transparency framework and the global stocktake.) Alternatively, the mandate may broadly task the department to issue detailed instructions and specific rules at a later point in time.

Other mitigation issues the department should be ready to address under the Paris Agreement are:

  • The formulation and communication of low-emission development strategies (Art.4.19);
  • The conservation and enhancement of sinks and reservoirs of GHGs, including through results-based payments (Art.5); and
  • The (voluntary) use of market mechanisms (Art.6.4) with proceeds to support adaptation in particularly vulnerable countries.

In the department’s mandate this could be expressed in general terms as:

  • The preparation, review and proposal of long-term (until 2050) economy-wide and/or sector specific national economic policies, plans and strategies that promote sustainable social and economic development while reducing GHG emissions; and
  • The development of proposals for policy and law on forest protection, water management and other environments and activities that absorb more carbon than they release. A more detailed description of duties and responsibilities should – pending the adoption of the Paris Agreement Rulebook – take into account the existing framework as set out in guidance and decisions agreed under the UNFCCC, including land use, land use change and forestry (LULUCF) reporting guidelines and the decisions forming the Warsaw Framework for REDD-plus.
  • Examining the potential and the development of suggestions for markets and trading mechanisms of carbon and other climate change relevant commodities, interests and rights (with a view to the emerging criteria under the Paris Agreement). In this connection the department may also be mandated to review the wider law and policy framework for trade, financial services and investment.
  1. Adaptation

According to Art.7 of the Paris Agreement each Party shall, “as appropriate”, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions. The adaptation efforts of developing countries “shall be recognised”. How will be decided by the parties as part of the Rulebook.

Other specific party commitments on adaptation are:

  • The submission and updating of communications and information on adaptation priorities, needs, plans and actions (Art.7.10-12, Art.13.8);
  • Adaptation should follow a gender-responsive, participatory and transparent approach taking into account vulnerable groups, communities and ecosystems (Art.7.5); and
  • Strengthen cooperation on enhancing adaptation action (Art.7.7).

Hence, the department should be given a mandate to e.g. formulate, oversee, consolidate, develop and/or review existing and future adaptation plans and strategies; overarching laws, regulations and policies; emergency preparedness and disaster risk reduction plans and programmes; as well as to propose and manage large scale projects. The priorities of such initiatives will depend on the particular circumstances of the country, but may include enhanced flood defence measures, efforts to help diversify agriculture in light of the changing climate, new building regulations or a welfare fund for the most vulnerable groups. In this connection, the department may also be tasked to propose, allocate or control financial resources to implement the various adaptation activities.

To ensure national efforts are subsequently recognised at the international level, the department should be further responsible for the documentation, monitoring and evaluation of adaptation efforts in all areas, including in the vulnerability and adaptation section of national communications and monitoring of national adaptation plans (where available). (As in the case of mitigation) the mandate should clarify responsibilities for planning, implementing and reporting on adaptation-related activities, and how regional or local authorities integrated in the process.

  • The department should also be responsible to submit and periodically update an adaptation communication to the UNFCCC. This process can be part of the NDC and should be coordinated with adaptation plans, the recognition of adaptation efforts, and, in particular, the comprehensive and clear assessment of financial needs to adapt to the adverse effects of climate change.
  • To meet the criteria of Art.7.5, government will need to facilitate the access and dissemination of information, consultation processes and inclusive decision-making. The department’s mandate should, therefore, include references to diversity, environmental and other impact assessments; safeguards for human and indigenous peoples’ rights and/or a link to existing national human rights institutions, laws and mechanisms.
  • International and regional collaboration on national and sub-national level implementation issues; policies and initiatives to support and/or enhance North-South and South-South cooperation including for data exchange, on technologies for adaptation and the financing of adaptation policies and measures.
  1. Loss and damage

 The parties to the Paris Agreement recognise the importance of averting loss and damage (Art.8.1) and enhancing understanding, action and support (Art.8.3). As a result, the department’s mandate may include, (see also above) climate change risk assessments, disaster risk reduction strategies, emergency preparedness plans and programmes; depending on the national context and the anticipated climate change impacts migration and resettlement considerations and plans; and in addition the provision of financial support, including public-private partnerships and initiatives and humanitarian aid, to address cases of loss and damage.

  1. Finance

Developing country parties should provide information on financial, technology transfer and capacity-building support needed and received (Art.13.10). As result, they are expected to put in place finance and budgeting processes, including accessing and accounting for (reporting on) development aid and climate finance (required and received). While a climate change department may be assigned primary responsibility to, for example, cost mitigation and adaptation actions over the medium and long-term, other responsibilities (e.g. accessing and accounting for available funds) will likely fall under separate government departments. In this context, the mandate could require regular consultations between relevant government departments. In addition, the climate change department may be tasked to propose amendments to the existing rules and regulations on financial services, companies, investment etc. with a view to attracting foreign climate capital (if this is a political priority).

  1. Technology development and transfer

On technology development and transfer, parties agreed to

  • Strengthen cooperative action (Art.10.2);
  • Guide the existing Technology Mechanism through the newly established technology framework (Art.10.4); and
  • That developing country parties should receive support by developed country parties (Art.10.6) and report on needs and the support received (Art.13.10).

 Domestically this may have implications for law and policy areas such as science, technology, research and intellectual property. For the mandate of a climate change department this could result in the following tasks to be carried out in collaboration with other competent government institutions:

  • Developing, managing or proposing processes and systems to identify technology needs by, for example, the national industry and/or other stakeholders;
  • Determine support needed for the development, adjustment or rollout of climate technologies; and
  • Cross-government coordination to collect and synthesise information on support needed.
  1. Capacity building

Developing countries parties should report on progress made in implementing capacity-building plans, policies and actions to implement the Paris Agreement (Art.11.4) and support needed and received (Art.13.10).  Accordingly, the new department could be broadly tasked to establish the systems to identify capacity-building needs in all areas of the Agreement; design plans and programmes for addressing them and accessing financial and other forms of support; tracking success and subsequent reporting; or specify in more details how this should happen.

  1. Education & public awareness

To enhance climate change education, training, public awareness, public participation and public access to information (Art.12 Paris Agreement and Art.6 (a) UNFCCC) the department could be given the mandate to formulate an education strategy to promote public awareness about climate change.  This may include collaborating with the education ministry to add classes on climate change to the school syllabus and preparing textbooks and other teaching materials. It may also include TV and social media campaigns designed to engage the widest possible audience.

  1. Transparency

Under the transparency framework of the Paris Agreement developing country parties should provide information on support needed and received (see above). In addition, there will be a technical expert review process and a “facilitative, multilateral consideration of progress” (Art.13.11). As mentioned above, a mandate to identify capacity-building needs across government departments to determine what processes and/or institutions, including in the areas of participation and support, would be useful to comply with requirements under the transparency framework.