New Quantified Collective Goal Decision and Loss and Damage

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Advice to Q107 and 108 – NCQG Decision and Loss & Damage Download

Query:

Can paragraph 5 of the Decision adopted at CMA 6 on the NCQG (the “Decision”)[1] be interpreted as meaning that “loss and damage” contributions in Nationally Determined Contributions (“NDCs”) will be supported? For example, Vanuatu has costed their Loss and Damage contributions in their NDC.[2](“Query 1”); and

The FRLD is an operating entity of the Financial Mechanism of the United Nations Framework Convention on Climate Change (the “Convention”). What implications does paragraph 16 of the Decision have for the provision of public resources to the FRLD? Paragraph 16 also decides to at least triple annual outflows from those Funds listed from 2022. The FRLD did not receive pledges until 2023. What implication does this have for the FRLD? (“Query 2”)

Summary:

Query 1:

Our view is that paragraph 5 does not reflect an intention by the parties for the NCQG to meet funding needs for loss and damage. There is no express reference to loss and damage in paragraph 5 to support the contrary conclusion and we are not persuaded that an intention can be implied. In particular, paragraph 1 of the Decision makes clear that the intended purpose of the NCQG is to contribute to “accelerating the achievement” of the global average temperature targets contained within the Paris Agreement and “increasing the ability to adapt to the adverse impacts of climate change”. No explicit reference is made to loss and damage. While paragraph 5 refers to adaptation, we do not consider this to extend to the funding of loss and damage. This interpretation is consistent with our understanding that:

Whether loss and damage would form a component of the NCQG was a highly controversial issue in the lead up to, and at, COP29, which parties had extremely diverging views on.

While the parties considered including loss and damage, they appear to have been unable to agree to its inclusion and therefore it is not expressly referenced in relation to the NCQG.

In this context, without an express inclusion of loss and damage, we think that the text of the Decision, pre-sessional and negotiating documents and state practice all suggest that the parties did not intend for the NCQG to be put towards loss and damage.

While the reference in paragraph 5 to the “needs and priorities of developing countries” might in isolation be given a very open-ended interpretation, we think that in the context of the text of the Decision this was intended by the parties to refer to the “needs and priorities of developing countries” in relation to mitigation and adaptation.

Notwithstanding our conclusions above, we note that within Vanuatu’s NDC loss and damage contributions are several items that might reasonably be said to amount to adaptation, and these could be funded pursuant to the NCQG.

Query 2: Given our conclusions on Query 1, while not expressly excluded, we do not consider it likely that it was intended by the parties that paragraph 16 would apply to the FRLD, given that its financial mandate is focused on loss and damage and not mitigation and adaptation. This is supported by the fact that paragraph 16 cross-refers to paragraph 8 which refers to mitigation and adaptation actions, not loss and damage. On this basis, we think that contributions to the FRLD will not contribute to the finance goal in paragraph 8 of the Decision nor will the goal of tripling outflows impact the FRLD.