Procedural decision on Adaptation Fund

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

Print Friendly, PDF & Email

Date produced: 10/11/2017

What could draft decisions that the AF shall serve the Paris Agreement look like? Could you review the draft CMP and CMA decisions, comment and advise on any critical issue? In addition, could you have an overall look at the text to see if anything is missing, or suggest any improvements?

Summary:

In my view, it is correct that the two draft decisions should reflect the separate and autonomous status of the Kyoto Protocol (KP) and the Paris Agreement(PA), under the UNFCCC. In this case, the CMA must make an autonomous (albeit complementary) decision to that taken by the CMP and the language should reflect that. In order to make the relationship clear on the face of the two decisions, I have therefore suggested some amendments to the wording as outlined below.

I have also suggested the addition of wording to paragraph 4 so that operational policies and guidelines for Parties to access funding from the Adaptation Fund can be reviewed by the CMA/APA so as to ensure coherence with the relevant new provisions of the Paris Agreement.

Advice:

COP decision 1/CP.21 (adopting the Paris Agreement) states that the Adaptation Fund may serve the Agreement, subject to relevant decisions by the CMP and the CMA, and further invites the CMP to consider the issue and make a recommendation to the CMA[1]. At COP22, the CMA decided that:

…the Adaptation Fund should serve the Paris Agreement, following and consistent with decisions to be taken at the third part of the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, to be convened in conjunction with the twenty-fourth session of the Conference of the Parties, and by the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol that address the governance and institutional arrangements, safeguards and operating modalities of the Adaptation Fund[2].

In view of this language, it can be argued that the CMA has already decided this issue, subject to the adoption of further implementing decisions by the CMP and the CMA, and that accordingly, the autonomy of the CMA (from the CMP) is already established. However in recognition of the fact that the KP and the PA are autonomous agreements under the UNFCCC[3], it would appear more appropriate for the CMP decision either to recommend action to the Parties to the PA (as indicated in the earlier COP Decision 1/CP.21), or to frame any decision it makes on this matter as subject to the consent of, or confirmation by, the CMA. The latter option may be more efficient as the corresponding decision of the CMP will then become immediately effective, once the complementary decision is confirmed or decided by the CMA.

In the CMA decision, it may also be useful to provide in paragraph 4 for a review of the Adaptation Fund operational policies and guidance referred to, in the light of the different, more elaborated, legal framework governing adaptation and other related matters under the PA (including, but not limited to, the requirements of Article 7(5), the emphasis in the PA on climate resilience, the preambular reference to the need for Parties to respect, promote and consider existing human rights obligations and the provisions relating to transparency and finance under Articles 13 and 9 respectively). This review could be directed to the APA or the CMA in the first instance.

__________________________________________

[1] Paragraphs 59 and 60 of Decision 1/CP.21.

[2] Decision 1/CMA.1, at paragraph 11, FCCC/PA/CMA/2016/3/Add.1

[3] See Decision 1/CP.3 Adoption of the Kyoto Protocol to the UNFCCC, at paragraph 1, FCCC/CP/1997/7/Add.1 and see Decision 1/CP.21, Adoption of the Paris Agreement, paragraph 1, in Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, FCCC/CP/2015/10.Add.1.