Permanence of an international mechanism

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Date produced: 21/10/2015

How do you ensure permanence of the international mechanism on loss and damage?

Background and Summary:

There are many countries who state that their chief concern is to ensure the permanence of an international mechanism. They fear that, given its current mandate and scheduled review, the Warsaw International Mechanism could disappear after 2016. For this reason, they are calling for a mechanism to be established/defined in a ratifiable instrument in Paris. The United States argues that permanence can be addressed in a decision text and does not require text in the Paris Agreement.

In principle, the permanence of any institution or mechanism is a matter of political will and agreement among the parties to the UNFCCC. In practice, whether a mechanism is anchored in a treaty-­‐level instrument or in a COP decision will have legal and practical implications on permanence (and other issues).

The two most relevant considerations are that treaty-­‐level instruments create legally binding international obligations (and corresponding rights) and they generally have formal procedures for amendment. In comparison COP decisions generally do not create binding legal obligations (but can in some circumstances) and can be superseded by subsequent decisions.

While anchoring the loss and damage mechanism in the Agreement text will more likely contributeto the permanence of the mechanism there are drawbacks to consider.

Parties trying to ensure permanence of the loss and damage mechanism should consider three general options, each with pros and cons:

  • Anchor the existing loss and damage mechanism into the Agreement as is;
  • Establish a new loss and damage mechanism in the Agreement;
  • Clarify the scope of the 2016 review to exclude (or at least delay) termination of the existing loss and damage mechanism.

Advice:

Assumptions

For the purpose of answering this query the analysis further below will focus on the pros and cons of addressing permanence in a treaty-­‐level instrument as compared to addressing it in a COP decision.

However, it is important to remember that the legal form of the Paris agreement is still not fully agreed by the parties. While the incoming French COP presidency has publicly stated that a binding agreement is the goal in Paris and the latest unofficial draft text from the ADP Co-­‐Chairs1 is in the form of a treaty-­‐level instrument, a Paris agreement in the form of a binding treaty is not a foregone conclusion.

Generally

In principle, the permanence of any institution or mechanism is a matter of political will and agreement among the parties to the UNFCCC. In that sense, permanence could technically be addressed in a COP decision as the United States argues. However, in practice, whether a mechanism is anchored in a treaty-­‐level instrument or in a COP decision will have legal and practical implications on permanence (and other issues).

The two most relevant considerations are that treaty-­‐level instruments create legally binding international obligations (and corresponding rights) and they generally have formal procedures for amendment. A detailed discussion of the nature of international obligations, such as how binding or enforceable they are, is outside the scope of this advice. In brief, however, parties to a treaty have to honour the legal obligations they undertake and they generally do. It is also formally and practically onerous to withdraw from a treaty once it has been ratified (ie. incorporated into domestic law). Amending treaty text similarly involves legal and practical hurdles which reduces the likelihood of amendments. These characteristics of treaty-­‐level obligations generally increase legal certainty at the expense of flexibility. Legal certainty in the context of an institutional mechanism would contribute to its permanence.

In comparison COP decisions generally do not create binding legal obligations (but can in some circumstances) and can be superseded by subsequent decisions. This means that the content of COP decisions is essentially unenforceable “promises” that can be implicitly amended or supplanted by later COP decisions. While parties generally honour the terms of COP decisions there is little (if any) recourse to formal legal remedies or sanctions if a party does not.

What the above considerations mean in practical terms is that the permanence of the loss and damage mechanism will more likely be achieved if it is anchored in treaty-­‐level text rather than in a COP decision.

Two further considerations

Importantly, parties that strongly supported establishing the loss and damage mechanism (eg. the least developed countries and small island developing states) consider loss and damage to be separate from adaptation. Conceptually, this approach makes sense and is in line with the literature on loss and damage. However, the loss and damage mechanism was established under the Cancun Adaptation Framework so the current legal reality is that loss and damage is addressed as part of adaptation under the Convention. This needs to be kept in mind when considering how to anchor the mechanism in the Agreement.

Additionally (as the enquirer rightly notes), the language relating to the 2016 review of the mechanism does not rule out the possibility that the mechanism could be terminated following the review.

Options for anchoring the mechanism in Paris

While anchoring the loss and damage mechanism in the Agreement text will more likely contribute to the permanence of the mechanism there are drawbacks to consider.

First, the Agreement would not operate until it enters into force in accordance with its provisions (unless applied provisionally). Second (and as mentioned previously), treaty-­‐level obligations and text are generally rigid and not easy to amend. Third, there are different ways to anchor the mechanism in the Agreement with some being more binding than others. These factors can have a big impact inthe context of the loss and damage mechanism in particular.

In the light of the above considerations, parties trying to ensure permanence of the loss and damage mechanism should consider three general options each with pros and cons:

Option 1: Anchor the existing loss and damage mechanism into the Agreement as is

Pros -­‐ it would meet with the least resistance from developed country parties.

Cons -­‐ the loss and damage mechanism would remain under the adaptation framework; it is difficult to address the issue of potentially losing the mechanism following the 2016 review since the ultimate decision rests with COP rather than the CMA.

Option 2: Establish a new loss and damage mechanism in the Agreement

Pros -­‐ it provides an opportunity to separate the loss and damage mechanism from the adaptation framework; it is easier to address the issue of potentially losing the mechanism following the 2016 review since the new mechanism under the CMA would be independent from the existing mechanism and its review.

Cons -­‐ the new mechanism would only become operational when the Agreement enters into force with a potential gap in implementation if the existing mechanism is terminated before the Agreement enters into force; it would also meet with the most resistance from developed country parties.

Option 3: Clarify the scope of the 2016 review to exclude termination of the existing loss and damage mechanism

Pros -­‐ developed country parties are more likely to include text relating to loss and damage in non-­‐ binding COP decisions than in treaty-­‐level text such as the Agreement; it provides greater flexibility (eg. subsequent decisions could in principle separate the loss and damage mechanism from the adaptation framework).

Cons -­‐ the mechanism would remain under the adaptation framework (unless otherwise agreed); it provides little legal certainty since a subsequent decision could overturn the decision to exclude termination; the legal framework under the Agreement would effectively exclude loss and damage from the post-­‐2020 regime.

Possible draft text

The following suggested text will only highlight the elements relevant to the anchoring/establishment of the mechanism and permanence.

Option 1: Article 5 of the Agreement -­‐ anchoring the existing mechanism

1. The Warsaw International Mechanism on loss and damage, including the Executive Committee, established by decision 2/CP.19 shall serve this Agreement.

2. The mechanism shall continue under this Agreement to fulfil the role under the Convention of promoting the implementation of approaches to address loss and damage associated with the adverse effects of climate change, pursuant to decision 3/CP.18 by undertaking, inter alia, the following functions:

[components of decision 2/CP.19, paragraph 5] [Other provisions]

XY. Parties acknowledge the importance of addressing loss and damage associated with climate change impacts and recognize the need for a comprehensive, integrated and coherent approach to action and support on loss and damage, adaptation and mitigation.

Option 2: Article 5 of the Agreement -­‐ establishing a new mechanism

1. An international loss and damage mechanism is hereby established to serve this Agreement.

2. The mechanism shall be under the authority of the CMA.

3. An executive committee of the international loss and damage mechanism is hereby established, which shall function under the guidance of, and be accountable to, the CMA.

4. The mechanism shall build upon and intensify the work of the Warsaw international mechanism on loss and damage established in decision 2/CP.19.

5. The mechanism shall continue under this Agreement to fulfil the role under the Convention of promoting the implementation of approaches to address loss and damage associated with the adverse effects of climate change by undertaking, inter alia, the following functions:

[components of decision 2/CP.19, paragraph 5]

[Other provisions]

XY. Parties acknowledge the importance of addressing loss and damage associated with climate change impacts and recognize the need for a comprehensive, integrated and coherent approach to action and support on loss and damage, adaptation and mitigation.

Option 3: Decision 1/CP.21 -­‐ clarifying the scope of the 2016 review

The Conference of the Parties,

XY. Recognises the need to continue addressing loss and damage associated with climate change impacts under the Agreement in fulfilling the important and fundamental role of the Convention to address such loss and damage;

XY. Recalls the decision to review the Warsaw international mechanism at the twenty-­‐second session of the Conference of the Parties, with a view to adopting an appropriate decision on the outcome of the review, pursuant to decision 2/CP.19;

XY. Clarifies that the decision to be adopted on the outcome of the review of the Warsaw international mechanism shall not include the termination of the mechanism;