(1) Is there any place in the provisional agendas where the Santiago Network on Loss and Damage could be discussed?

(2) Are there any legal arguments that could be put forward to say that a decision to operationalise the Santiago Network on Loss and Damage is needed?

Summary:

In relation to Query (1), there is no agenda item at COP 26 (or the concurrent meetings of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA), the Subsidiary Body for Implementation (SBI) or the Subsidiary Body for Scientific and Technological Advice (SBSTA)) expressly related to the operationalisation of the Santiago Network on Loss and Damage (SNLD).

The primary avenue for a decision on the operationalisation of the SNLD appears to be the Third Session of the CMA (CMA 3). In this session, the CMA will be invited to take any action it deems appropriate on the basis of the recommendations of the SBI and SBSTA in relation to the 2021 Report of the Executive Committee (ExCom) of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM).  Both the SBI and the SBSTA will be invited to consider the 2020 and 2021 reports of the Executive Committee of the Warsaw International Mechanism and recommend a draft decision to the CMA. The recommendations made by the SBI and the SBSTA will to some extent depend upon each bodies’ review of the 2021 Report of the Executive Committee (ExCom) of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impact (WIM), however we note that the 2021 Report does set out actions taken so far in relation to the SNLD (including submissions from relevant organisations).

We consider there is a strong argument that the operationalisation of the SNLD should be addressed by the SBI and SBSTA in the context of the 2021 Report of the ExCom, on the basis that:

• the 2021 Report clearly includes the SNLD within its scope; and
• it is evident from the 2021 Report that the SNLD is not yet achieving its aim to “catalyse the technical assistance of relevant organizations, bodies, networks and experts, for the implementation of relevant approaches at the local, national and regional level, in developing countries that are particularly vulnerable to the adverse effects of climate change”.

We also note there is precedent for the operationalisation of bodies in the absence of an express agenda item.

In relation to Query 2, COP decisions are generally not legally-binding. Whether or not a COP decision carries legal force is dependent on the wording and terminology used in the decision itself. In circumstances where a decision adopts non-mandatory terminology, it is likely to be held that the decision will not carry legal force. The nomenclature of Decision 2/CMA.2 (which established the SNLD) is predominantly non-mandatory. Consequently, it is unlikely that the Decision carries legal force or gives rise to any legally enforceable rights to expedite the operationalisation of the SNLD. Nevertheless, we consider that various provisions in the preamble and Article 8 of the Paris Agreement, when combined with Decision 2/CMA.2, may give rise to a duty of good faith to operationalise the SNLD as soon as is practicable (which we consider to be at COP 26).

1. Advice in relation to Query (1):

SBI and SBSTA 52-55 Agendas

At the Fifty-Second to Fifty-Fifth Session in Glasgow (31 October – 6 November 2021) both the SBI and the SBSTA will be invited to consider the 2020 and 2021 reports of the Executive Committee of the Warsaw International Mechanism and recommend a draft decision to the CMA. This is mandated by paragraphs 62-66 of the SBI Agenda and paragraphs 23-27 of the SBSTA Agenda.[1]

The Agenda of the 14th Meeting of ExCom notes that the 2021 Report will be published in multiple parts.[2] The main report was published in late August 2021, and include a section relating to information reported by organisations providing technical assistance to developing countries under the SNLD.[3] The main report noted that organizations, bodies, networks and experts were requested at Decision 2/CMA 2 to report on their progress in providing technical assistance in relation to averting, minimizing and addressing loss and damage to the ExCom. Four bodies made submissions, including the Food and Agriculture Organization of the United Nations, the United Nations Office for Disaster Risk Reduction, the United Nations Environment Program and the World Food Programme. The details provided in these submissions are included in addendum 2 to the main report, which clustered the technical assistance in the four submissions received into four themes, including (1) risk assessment and analysis, (2) early warning systems, (3) risk insurance facilities, climate risk pooling and other insurance solutions, and (4) ecosystem-based adaptation and disaster risk reduction.

The 2021 Report of the ExCom also sets out that “the subsidiary bodies may wish to consider the information contained in this report and its addenda and to recommend draft conclusions or draft decisions on the basis of the work of the Executive Committee for consideration and adoption by the appropriate body or bodies.”

We consider there would be a stronger argument for a decision fully operationalising the SNLD at CMA 3 if the 2021 Report of the ExCom expressly set out that further work was required to operationalise the SNLD. Nevertheless, we consider there is a strong argument that the operationalisation of the SNLD should be addressed by the SBI and SBSTA in the context of the 2021 Report of the ExCom, on the basis that:

• the 2021 Report clearly includes the SNLD within its scope; and
• it is evident from the 2021 Report that the SNLD is not yet achieving its aim to “catalyse the technical assistance of relevant organizations, bodies, networks and experts, for the implementation of relevant approaches at the local, national and regional level, in developing countries that are particularly vulnerable to the adverse effects of climate change”.

We consider there is precedent for the operationalisation of bodies in the absence of an express agenda item. Parallels can be drawn between the likely future operation of the SNLD and the Climate Technology Centre and Network (CTCN). We conducted a comparison of the decisions of the COP establishing and operationalising the CTCN, a process which we consider to be similar to that required to establish and operationalise the SNLD, and that which has been undertaken to date to establish the SNLD. We note that there were 3 decisions required to establish and fully operationalise the CTCN, the second of which (Decision 2/CP.17) outlined the details required to enable the operationalisation of the CTCN, most notably through providing terms of reference for the CTCN.[4] Decision 2/CP.17 more broadly related to the “Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention”. Part V of Decision 2/CP.17 related to technology development and transfer, and within this the decision operationalising the CTCN (including adopting its Terms of Reference, among other things).

There was not an agenda item for COP 17[5] (or SBI 35,[6] SBSTA 35,[7] or AWG-LCA 14-4[8]) that expressly referenced the establishment of the CTCN. The mandate to have a COP decision at COP 17 making the Technology Mechanism fully operational (including through making the CTCN operational) appears to have arisen from the following:

• Various general commitments under the UNFCCC relating to technology transfer and other decisions of the COP;
• The establishment of the TEC and the CTCN in decision 1 CP/16; and
• Paragraph 128 of Decision 1/CP.16, which included text underlining the importance of continued dialogue between parties with a view to the COP taking a decision at COP 17 to make the Technology Mechanism fully operational in 2021.

While we consider the mandate of the COP to operationalise the CTCN was stronger at COP 17, primarily due to paragraph 128 of Decision 1/CP.16, we nevertheless consider that the lack of an express agenda item for the operationalisation of the SNLD does not preclude the CMA from taking a decision to operationalise the SNLD at CMA 3.

CMA 3 Agenda

Paragraphs 37-41 of the CMA Agenda note that the CMA will be invited to take any action it deems appropriate on the basis of the recommendations of the SBSTA and the SBI (relating to the 2021 Report of the ExCom).[9] Accordingly, the action taken by the CMA is dependent on what recommendations the SBSTA and SBI bodies make upon their review of the 2021 ExCom Report regarding the status and progress of the SNLD.

COP 26 Agenda

Section 7 of the COP 26 Agenda pertains to the WIM. Paragraph 52 states that considerations related to the governance of the WIM will continue at COP 26.[10] Further, paragraph 54 states that the COP will be invited to consider the matter of its authority over and guidance to the WIM, including its Executive Committee, and to take any action it deems appropriate.[11]

In light of these paragraphs, it appears as though discussion of the WIM at COP 26 will pertain to matters of its governance rather than substantiative discussion of the work progress being undertaken in the context of the SLND. Moreover, there doesn’t appear to be any other Agenda items in the COP 26 Agenda that look to accommodate discussion of the SNLD.

2. Advice in relation to Query (2):

Decision 2/CMA.2 Mandate

The SNLD was established at COP 25 by the CMA in Decision 2/CMA.2. Namely, the Decision:

a) Established, as part of the WIM, the SNLD for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change; and

b) Invited, organisations, bodies, networks and experts to engage in providing technical assistance to developing countries to report on their progress to the Executive Committee (ExCom); and

c) Requested, that ExCom include relevant information from these bodies in its annual reports.[12]

As stated in the Santiago Network Input Paper, published by the UNFCCC in April 2021, the Decision did not provide for a process to convene or make the SNLD operational.[13] Consequently, the COP President is responsible for guiding the implementation of its functions.[14] As part of the fulfilment of this responsibility, the Presidencies (Chile and UK) have held ongoing consultations with Parties, technical organisations and civil society seeking input and submissions for the purpose of formulating a proposal to operationalise the SNLD.

Academics have held that COP decisions are generally not legally binding by nature. Daniel Bodansky contends that generally, the UNFCCC does not authorise the COP to make legally binding decisions, however an exception may apply where the decision is phrased in mandatory terms.[15] Drawing on the COP 21 decisions relating to the Paris Agreement as an example, Bodansky states that these decisions did not create legal obligations due to the fact that they either were directed at institutions like the UNFCCC subsidiary bodies or, when directed at the parties, did not use mandatory language. The decisions ‘invited’, ‘requested’, ‘called upon’ or ‘urged’ parties to perform obligations, rather than instructing that parties ‘shall’ perform the obligations.[16]

Similarly, Lavanya Rajamani states that from a formal legal perspective COP decisions are not generally legally binding by nature and that neither the UNFCCC nor the Kyoto Protocol explicitly authorise binding law-making by the COP.[17] Further, Rajamani echoes Bodansky by contending that COP decisions may take on legal force as based on their enabling clause, the language and content of the decisions, and Parties’ behaviour and legal expectations.[18]

On this basis, the legal force (or lack thereof) of a COP decision is dependent on the wording and terminology used in the decision itself. Given that the terminology used in Decision 2.CMA/2 is non-mandatory, we do not consider it creates any legally enforceable requirement to operationalise the SNLD.

Nevertheless, we consider that the text of the Paris Agreement includes some additional reasons supporting the argument that a decision to operationalise the SNLD is needed at COP 26. First, reference may be made to various provisions of the preamble, including the “need for an effective and progressive response” to climate change, “the specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change,” “the specific needs and special situations of the least developed countries with regard to funding and transfer of technology”. Second, reference may be made to Article 8 of the Paris Agreement, including that “Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change.” While these provisions do not create a legal mandate to operationalize the SNLD at COP 26, when combined with Decision 2/CMA.2, we consider they may give rise to a duty of good faith[19] to operationalise the SNLD as soon as is practicable (which we consider to be at COP 26).

[1] Provisional agenda of the Subsidiary Body for Implementation, fifty-Second to fifty-fifth session, to be held in Glasgow from 31 October – 6 November 2021 and Provisional agenda of the Subsidiary Body for Scientific and Technological Advice, fifty-Second to fifty-fifth session, to be held in Glasgow from 31 October – 6 November 2021.

[2] Provisional agenda of the Fourteenth meeting of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change, held in Bonn from 7 September – 24 September 2021.

[3] Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts – Part 1.

[4] Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011

[5] https://unfccc.int/resource/docs/2011/cop17/eng/01.pdf

[6] https://unfccc.int/resource/docs/2011/sbi/eng/08.pdf

[7]

[8] https://unfccc.int/resource/docs/2011/awglca14/eng/awg-lca_14_adopted_agenda.pdf

[9] Provisional agenda of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, third session, to be held in Glasgow from 31 October – 12 November 2021.

[10] Provisional agenda of the Conference of the Parties, twenty-sixth session, to be held in Glasgow from 31 October – 12 November 2021.

[11] Provisional agenda of the Conference of the Parties, twenty-sixth session, to be held in Glasgow from 31 October – 12 November 2021.

[12] Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts and its 2019 review.

[13] UNFCCC, Santiago Network Input Paper dated April 2021.

[14] UNFCCC, Santiago Network Input Paper dated April 2021.

[15] Daniel Bodansky, ‘The Legal Character of the Paris Agreement’, Review of European Community and International Environmental Law, p. 147.

[16] Daniel Bodansky, ‘The Legal Character of the Paris Agreement’, Review of European Community and International Environmental Law, p. 147.

[17]  Lavanya Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’, International and Comparative Law Quarterly, p. 500. 

[18]  Lavanya Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’, International and Comparative Law Quarterly, p. 500. 

[19] The principle of good faith is a general principle of international law. For example, in the Nuclear Tests (New Zealand v France) (Judgment) [1974] ICJ Rep 457, 473 [49], the International Court of Justice held that: “One of the basic principles governing the creation and performance of legal obligations… is good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential.”