1. Can the COP enter into an MOU arrangement with the AFB (created under the KP) for the AFB to be the managing body of a new adaptation fund under the UNFCCC? Are there legal obstacles that would need to be dealt with first (ie such as changes required to the constitution of the AFB)? If so, what are they and how could they be dealt with?
2. Is this similar or different to a hybrid Board approach, as suggested in query number 15 (regarding the Adaptation Fund Board and management of future funds)?
The COP (Conference of the Parties) is the ‘Supreme Body of the Convention’, and is authorised and mandated, in terms of Article 17 of the Convention, to ‘keep under regular review the implementation of the Convention and any related legal instruments that the Conference of the Parties may adopt, and shall make, within its mandate, decisions to promote effective implementation of the Convention’ (my emphasis).
In relation to the AFB, the decision-making body is the Conference of the Parties serving as a Meeting of the Parties to the Kyoto Protocol (CMP). Under the terms of the Convention, only Parties to any protocol may make decisions in relation to that specific protocol. This effectively means that the USA, in relation to the Kyoto Protocol, cannot cast a vote in relation to matters under the Kyoto Protocol.
For all intents and purposes, the COP and CMP are the same body (the difference being the exclusion of non KP parties, and the fact that when acting as the CMP, it does so in terms of the mandate given to it by the KP, and not the Convention), however, as the CMP is obliged to act in terms of the Convention, all decisions taken by it must have regard to the Convention and the guidance of decisions taken by the COP.
AFB as the managing body of a new adaptation fund
Unlike the GEF, which is an entity independent to the Convention, the AFB was created in order to implement the Kyoto Protocol. Although the AFB is under the authority of the CMP, pursuant to Article 17 of the Convention, the COP is authorised to review the implementation of the Kyoto Protocol and, by extension, the AFB.
As a result, there is no reason for the COP to enter into any form of MOU with the AFB (as was necessary with the GEF after the UNFCCC was agreed) as the COP, through the CMP, can give guidance to how the AFB operates.
Accordingly, should the AWG-LCA recommend that a unified fund for adaptation be created and be managed by the AFB, it could recommend to the COP that such steps as are necessary be taken to enact such provisions.
However, it should be noted that it would not simply be a case of the AFB being appointed to be the managing body of a unified fund. As discussed in the response to Q15, the AFB has been created by the Kyoto Protocol. Changes to the way it operates can only be made by CMP decision. This means that the USA would not be able to take part in such a decision.
If such a decision was made, we assume the USA would expect representation on the newly composed AFB. This is problematic as it would require the USA to be able to take decisions under the Kyoto Protocol, something which is expressly prohibited by the Convention.
Therefore, as long as the AFB remains under the Kyoto Protocol, and in order for the AFB to become the managing body of a new adaptation fund, a change to the Convention would be required allowing non-parties to a Protocol to make decisions in relation to that specific protocol. Alternatively, an exception to the rule could be made by the Parties in relation to the AFB. [Note: it is unlikely the USA would agree to the exception option as it would still have no say at the CMP level (which has authority over the AFB).
2. Hybrid Board (referencing advice provided in query number 15):
If the agreement of both the CMP and the COP could be obtained, then it may (with careful drafting) be possible to achieve a hybrid solution with the constitution and role of the KP Adaptation Fund Board expanded so that it:
(i) continued to be constituted in broadly the same way and report to the CMP for the purposes of the Adaptation Fund under the Kyoto Protocol; and in addition
(ii) sat, with additional input / membership from the non-Kyoto Protocol members (possibly by way of one additional member being selected from the non-Kyoto Protocol countries) for the purposes of administering a new Fund under the Convention. There are a number of ways the constitution of the Board could be amended for these purposes to take account of the involvement of additional Convention parties.
This approach would require some amendment to the existing constitution of the KP Adaptation Board under e.g. Decision 1/CMP.3 to recognise that the KP Adaptation Fund Board would no longer report solely to the CMP, and issues such as sources of funding would need to be addressed. In the time available detailed analysis of how such a hybrid might work and all the drafting issues that arise has not been undertaken.
We do not know how the author intended the hybrid option to operate, but in our view the hybrid option might prove difficult to implement without amending the Convention itself (and making the amendments to the constitution of the AFB that author suggests).
If the Convention were amended, then it might be possible, with careful drafting, for the AFB to be under the authority of the CMP of the Kyoto Protocol for adaptation issues under the Kyoto Protocol and for the AFB (with different or additional members) to be under the authority of the CMP of a new protocol for adaptation issues under the new protocol. This however would raise practical problems such as how to deal with sources of funding and whether conflicts of interest might arise within the AFB if it were to act two capacities (ie under the Kyoto Protocol and a new protocol).