1. Paris Agreement Article 13(7), (8), (9) and (10) requires the Parties to provide certain information, using the textual language of “shall” and “should”, whereas decision 1/CP.21 para. 91 states that Parties (save for LDCs and SIDs) “shall” submit the information in Article 13 “as appropriate” and no less frequently than on a biennial basis. How do these provisions fit and work together?
2. Paris Agreement Article 4(9) states that each Party “shall” communicate a NDC every five years in accordance with decision 1/CP.21, and Article 7(10) states that each party “should, as appropriate, submit and update periodically an adaptation communication”. How do these provisions fit and work together?
Summary:
(1) Parties other than SIDS and LDCs are required to report at least every 2 years on the matters outlined in Article 13(7). Information on adaptation should be provided, but there will be no legal compliance impacts if it is not. Developed country Parties are also legally required to provide information on support provided under Article 13(9). Developing country parties should provide information on support needed and received, but again there will be no legal compliance impacts if they do not.
(2) NDCs were originally conceived of a statement related to mitigation and there is no obligation to include adaptation information in an NDC. However, as many INDCs included adaption information, there is now a question of whether adaptation information should be reported on and updated as part of the NDC or through separate communications. To this end, a key part of the work of the APA is to provide guidance in relation to the adaptation communication, including, inter alia, as a component of NDCs (see APA Agenda item 4). Parties are still discussing issues related to the purpose, frequency, elements /content, mode of communication and flexibility for adaptation communications. At this stage, none of these matters have been resolved. The outcomes of this work group will determine whether adaptation communications are a part of each Party’s NDC, and therefore need to be communicated and updated on a five yearly basis, or whether more flexible arrangements will apply.
Advice:
(1) Reporting
Article 13 of the Paris Agreement includes the following relevant provisions on reporting by Parties:
7. Each Party shall regularly provide the following information:
(a) A national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases, prepared using good practice methodologies accepted by the Intergovernmental Panel on Climate Change and agreed upon by the Conference of the Parties serving as the meeting of the Parties to this Agreement; and
(b) Information necessary to track progress made in implementing and achieving its nationally determined contribution under Article 4.
8. Each Party should also provide information related to climate change impacts and adaptation under Article 7, as appropriate.
9. Developed country Parties shall, and other Parties that provide support should, provide information on financial, technology transfer and capacity-building support provided to developing country Parties under Articles 9, 10 and 11.
10. Developing country Parties should provide information on financial, technology transfer and capacity-building support needed and received under Articles 9, 10 and 11.
The use of the word “shall” in Articles 13(7) and (9) creates a compulsory requirement for the provision of the information outlined. The use of the word “should” in Articles 13(8) (9 – in respect of other Parties) and (10) create an obligation to provide the information, but this is not compulsory.
Articles 13(7)-(10) are not prescriptive about the timeframes under which information should be provided. Article 13(7) refers to “regularly” providing information. It is arguable that the types of information outlined in Articles (8) – (10) form a subset of the information that is necessary to track progress against nationally determined contributions (NDCs) referred to in Article 13(7)(b) and the timing for the provision of that information should also be “regularly”.
Decision 1/CP.21 elaborates and provides guidance on the matters required for implementation of the Paris Agreement. In relation to the implementation of obligations under Article 13 of the Paris Agreement, paragraph 90 of Decision 1/CP.21 states:
90. Also decides that all Parties, except for the least developed country Parties and small island developing States, shall submit the information referred to in Article 13, paragraphs 7, 8, 9 and 10, of the Agreement, as appropriate, no less frequently than on a biennial basis, and that the least developed country Parties and small island developing States may submit this information at their discretion;
Whilst decisions of the COP are not legally binding, they nevertheless provide a strong imperative for parties to comply with their terms. As such, it will be expected that all Parties (except LDCs and SIDS) provide the information required at least biennially (i.e. every 2 years).
Given that Article 13(7) places a legal obligation on all Parties to report regularly, it could be argued that LDCs and SIDS are still required to provide the inventory and NDC information. However, in their circumstances, the concept of “regularly” is applied more flexibly and LDCs and SIDS have a discretion as to when this information is submitted.
Therefore, Parties other than SIDS and LDCs are required to report at least every 2 years on the matters outlined in Article 13(7). Information on adaptation should be provided, but there will be no legal compliance impacts if it is not. Developed country Parties are also legally required to provide information on support provided under Article 13(9), whist other Parties should also provide information on support provided. Pursuant to Article 13(10) developing country Parties should provide information on support needed and received, but again there will be no legal compliance impacts if they do not.
We note that the Ad Hoc Working Group on the Paris Agreement (APA)is developing modalities, procedures and guidelines for the transparency of action of support which will provide a framework for improved reporting and review in accordance with paragraphs 91-95 of Decision 1/CP.21. The APA is due to conclude its work on these matters by no later than 2018. We note that the modalities, procedures and guidelines are to apply upon entry into force of the Paris Agreement. However, as this occurred immediately prior to COP 22 in Marrakech, the first meeting of the parties to the Paris Agreement (CMA 1) was opened but suspended, and these rules will be adopted upon the conclusion of CMA-1 (likely to be at COP 24 in 2018).
Of note, in developing the modalities, procedures and guidelines the APA is to consider the types of flexibility available to those developing countries that need it on the basis of their capacities (para 94(a)). It is likely that this flexibility will apply to LDCs and SIDS in particular.
(2) Relationship between NDC and Adaptation Communications
Article 4(9) of the Paris Agreement States that:
9. Each Party shall communicate a nationally determined contribution every five years in accordance with decision 1/CP21 and any relevant decisions of the Conference of the Parties serving as the meeting of the Parties to this Agreement and be informed by the outcomes of the global stocktake referred to in Article 14.
A nationally determined contribution (NDC) was initially conceived of as a statement that addressed mitigation. To this end, Article 4(2) states that:
2. Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.
Articles 4(3) and (4) reinforce the mitigation aspect of NDCs by referring to “reflecting highest possible ambition” and, for developed country Parties “taking economy-wide absolute emission reduction targets”.
However, we note that the majority of intended NDCs submitted prior to COP21 and which now operate as NDCs for those Parties that have ratified the Paris Agreement, include sections which address adaptation and support needed to implement adaptation activities.
Article 7(10) states that:
10. Each Party should, as appropriate, submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs, plans and actions, without creating any additional burden for developing country Parties.
In addition, Article 13(8) of the Paris Agreement provides:
8. Each Party should also provide information related to climate change impacts and adaptation under Article 7, as appropriate.
Decision 1/CP.21 does not expressly address adaptation communications under Article 7(1). Instead, it is likely that the modalities, procedures and guidelines being developed pursuant to para 91 will include guidance on reporting adaptation priorities and support needs.
To this end, a key part of the work of the Ad Hoc Working Group on the Paris Agreement (APA) is to provide guidance in relation to the adaptation communication, including, inter alia, as a component of NDCs (see APA Agenda item 4). Parties were invited to submit views on the issue prior to COP 22, including on the purpose, frequency, elements /content, mode of communication and flexibility. At this stage, none of these matters have been resolved. Early positions expressed at COP 22 included that parties should be able to choose the most appropriate vehicles for their communications (e.g. G-77/China, EU, Norway), whilst others supported using existing reporting vehicles (e.g. LMDCs). The Secretariat has been requested to develop an information note on the issue which will be followed up with a further round of submissions and a workshop.
The outcomes of this work group will determine whether adaptation communications are a part of each Party’s NDC, and therefore need to be communicated and updated on a five yearly basis, or whether more flexible arrangements will apply.