Mechanisms and institutions established to serve the CMA

Legal assistance paper

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Date produced: 16/11/2016

A number of mechanisms and institutions are established or made to serve the CMA under the Paris Agreement. The market mechanism established under Article 6.4 is established under the “authority and guidance” of the CMA. The Warsaw International Mechanism on loss and damage is made subject to the “authority and guidance” of the CMA. On the other hand, the mechanism for facilitating implementation and promoting compliance in Article 15 is established under the Paris Agreement without explicit reference that it is under the “authority” or “guidance” of the CMA.

What are the implications of establishing a mechanism without explicitly putting it under the “authority and guidance” of the CMA; can it be assumed that any mechanism/institution established under the Agreement is necessarily under the authority and guidance of the governing body of the agreement?

Summary:

The Article 15 mechanism is distinct from the other mechanisms referred to in the query in that its purpose – reviewing parties’ performances – is best achieved with some degree of independence from the CMA and this is reflected in the wording of Article 15 itself. This explains the omission of an explicit reference to the CMA’s “authority and guidance” in Article 15. It ought not, therefore, be assumed that any mechanism or institution established under the Agreement is necessarily under the authority and guidance of its governing body. The implications of establishing such a mechanism cannot be clearly determined prior to the adoption of the modalities and procedures accompanying Article 15; though some guidance may be drawn from the operations of the Compliance committee under the Kyoto Protocol.

Advice:

The mechanism for facilitating implementation and promoting compliance in Article 15 of the Paris Agreement is distinct from the other mechanisms referred to in the query, in that its purpose is best achieved with some degree of independence from the CMA. This is reflected in the wording itself of Article 15(2), which states that the mechanism “shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive”. Unlike the market mechanism and the Warsaw International mechanism, the implementation/compliance mechanism in Article 15 aims to review and evaluate parties’ performances under the Paris Agreement – a function that requires transparency and independence which will likely be best achieved by a body separate from the CMA. For this reason, the omission of an explicit reference to the “authority and guidance” of the CMA in Article 15 should be regarded as deliberate.

The modalities and procedures of the Article 15 mechanism, which ought to provide detailed guidance on its purpose and functioning, have yet to be adopted.[1] The need for independence in the compliance context is, however, clearly recognised in the corresponding provisions of the Kyoto Protocol (which, along with the 1989 Montreal Protocol, laid the foundation for the compliance mechanism in the Paris Agreement). Rule 4(1) of the Kyoto Compliance committee rules of procedure provides that “[e]ach member and alternate member shall serve in his or her individual capacity and, with respect to any matter that is under consideration by the Committee, act in an independent and impartial manner and avoid real or apparent conflicts of interest.”[2] Members are, further, required to take an oath which includes an obligation to “disclose immediately…any interest in any matter under discussion before the Compliance committee which may constitute a conflict of interest or which might be incompatible with the requirements of independence and impartiality”.[3]

As to the implications of establishing a mechanism which is not expressly stated to be under the “authority and guidance” of the CMA, the answer to this question depends to a great extent on the modalities and procedures yet to be adopted. As provided in Article 15(3), it is clear that, notwithstanding its independence, the Compliance committee will be required to report annually to the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement. The preamble to the Agreement also establishes that the Committee “shall consist of 12 members with recognised competence in relevant scientific, technical, socio-economic or legal fields, to be elected by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement on the basis of equitable geographical representation”.[4] Some further guidance may be drawn from the operations of the Kyoto Compliance committee, which is made up of two branches, “facilitative” and “enforcement”, and is widely regarded as one of the most rigorous in the international environmental arena.[5] It should be noted, however, that such comparisons may be of limited usefulness insofar as some have suggested that the language of Article 15 (“to facilitate implementation…and promote compliance”[6]) does not provide for an “enforcement” function comparable to that of the Kyoto committee.[7]

More generally, the operation of other mechanisms and functions included in the Agreement may be influenced by a comparable need for independence (for example, the Kyoto Protocol also recognises the importance of independence with regard to the expert review of national communications – a function also appearing in the Paris Agreement[8]). Rather than assuming that all mechanisms or functions established under the Agreement are necessarily subject to the authority and guidance of its governing body, each mechanism or function should, therefore, be assessed individually having regard to its purpose.

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[1] They are due to be adopted, in accordance with Article 15(3), by the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement at its first session.

[2] The rules of procedure were approved by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol at its second session. See decision 4/CMP.2, and amendments in decision 4/CMP.4 and decision 8/CMP.9.

[3] Rule 4(2) of the rules of procedure (decision 4/CMP.2).

[4] Pre-amble to the Paris Agreement, para. 103.

[5] See e.g. the UN Framework Convention on Climate Change website, available at: http://unfccc.int/kyoto_protocol/compliance/items/3026.php; and Xueman Wang & Glenn Wiser, The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocol, 11 RECIEL 181, 198 (2002).

[6] Article 15(1).

[7] See e.g.  the IIED’s Climate Change Group paper, available at: http://pubs.iied.org/pdfs/10166IIED.pdf.

[8] See e.g. Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol, decision 9/CMP.2 ; and Articles  13(11)-(12) of the Paris Agreement.