Legal assistance

SBI requesting the GEF

Legal assistance paper

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Date produced: 16/09/2019

Can the Subsidiary Body for Implementation (SBI) directly request the Global Environment Facility (GEF) to do something or does only the COP have such authority?

Advice:

The operation of the Financial Mechanism of the UN Framework Convention on Climate Change (UNFCCC) has been entrusted to the GEF and the Green Climate Fund (GCF). Article 11 UNFCCC states that the Financial Mechanism is accountable to the Conference of the Parties (COP), which decides on its climate change policies, programme priorities and eligibility criteria for funding. Hence, the GEF as an operational entity of the UNFCCC operates under the guidance and instructions of the COP. The general role of the SBI in this connection is to assist the COP in the preparation and implementation of its decisions.

In line with this formal “chain of command” the SBI, therefore, regularly recommends to the COP to request or invite the GEF to do something. For example: to simplify its procedures and improve effectiveness and efficiency of its process;[1] continue to ensure that financial resources are provided to meet the agreed full costs incurred by developing country Parties;[2] or finalize any remaining operational procedures to ensure the timely disbursement of funds for the States [3].

At times, the SBI, however, also directly “invites“, “encourages“, “urges“, or “requests” the GEF to do something. Most commonly it “invites” the GEF. For examples:

  • At its 30th session (from 1 to 10 June 2009), the SBI, in its conclusions, “invited the GEF to continue to provide information, ensuring that it is detailed, accurate, timely and complete” (para.16 of the report of the session, document FCCC/SBI/2009/8) [4].
  • At its 35th session (28 November to 3 December 2011), the SBI “invited the GEF to support the operationalization and activities of the Climate Technology Centre and Network without prejudging any selection of the host” (para.99 of the report of the session, document FCCC/SBI/2011/17)[5].
  • SBI 37 (26 November to 2 December 2012) “invited the GEF to consult with the CTCN, through its advisory board, on the support the GEF will provide for the work of the CTCN and to report on the findings of those consultations to the COP at its nineteenth session” (para.124 of the report on the session, document FCCC/SBI/2012/33)[6].

But there are also examples of other language having been used. This includes:

  • SBI 21 (6 to 14 December 2004) “urged the GEF and other bilateral and multilateral agencies to continue to make financial resources available for Article 6 activities” (para.61 of the report of the SBI 21, document FCCC/SBI/2004/19).[7]
  • SBI 23 (28 November to 6 December 2005) “encouraged the GEF to continue to provide the required financial resources to ensure that the remaining eligible developing countries are engaged in the NCSAs [National Capacity Self-Assessments] by SBI 24” (para.87 of the report, document FCCC/SBI/2005/23). At the same session the SBI “urged… the GEF and other bilateral and multilateral agencies, to continue to support financially the implementation of activities relating to Article 6 of the Convention” (para.74 of the report).[8]
  • SBI 30 (1 – 10 June 2009) “requested the GEF to expedite this work, particularly in providing financial support for developing country Parties in conducting and updating their technology needs assessments and in acting on the results” (para.70 of the report, document FCCC/SBI/2009/8).[9]
  • SBI 45 (from 7 to 15 November 2016) “encouraged the GEF, subject to the availability of financial resources in the CBIT Trust Fund, to approve the first set of CBIT projects as early as possible” (para.33 of the report, document FCCC/SBI/2016/20).[10]

While the terms “invite”, “encourage” and “urge” clearly advocate a certain activity they also indicate that the addressee may not be required to act accordingly. “Urge”, in this connection, is stronger than “encourage” or “invite”. “Request” in comparison could be understood as a slightly more formal request. As a result SBI generally uses “invite” and “request” appears to be the exception. But it is not without precedent.

Unlike the COP, the SBI does not take decisions. It reaches conclusions and can recommend decisions to the COP. In this connection, liaising with other international bodies and institutions may be considered part of its mandate to assist the COP in the preparation and implementation of its decisions. The parties to the UNFCCC have long accepted the practice.

If parties, however, wanted to follow a more formalistic approach in the future and, for example, only allow the SBI to recommend that the COP invites the GEF this may have some minor operational implications:

  • It may potentially slow down the UNFCCC decision-making process and the completion of a specific GEF task. Previously, for example, the SBI could have agreed to invite the GEF as part of its conclusions reached during its regular meeting in Spring. In the alternative option, the COP would need to decide to do so at the following COP session at the end of the year.
  • In general, the SBI meetings are also less high profile than the COP. They tend to focus more on substantive issues and are not as politically charged as the COPs. At a COP where groups and individual parties often insist on their positions it is generally more challenging to overcome disagreements and reach consensus. Theoretically, the COP may also decide not to follow the SBI recommendation.

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[1] Report of the 33rd session of the SBI (30 November to 4 December 2010), document FCCC/SBI/2010/27, available at https://unfccc.int/resource/docs/2010/sbi/eng/27.pdf, paras.50 and 53.

[2] Report SBI 27, available at https://unfccc.int/sites/default/files/resource/docs/2007/sbi/eng/34.pdf para.35.

[3] Report SBI 33, https://unfccc.int/resource/docs/2010/sbi/eng/27.pdf, para.51.

[4] Report SBI 30, https://unfccc.int/sites/default/files/resource/docs/2009/sbi/eng/08.pdf

[5] Available at https://unfccc.int/sites/default/files/resource/docs/2011/sbi/eng/17.pdf Other uses of “invites the GEF” in the report of SBI 35 para.99, SBI 36, paras.56 and 57 and many more.

[6] https://unfccc.int/sites/default/files/resource/docs/2012/sbi/eng/33.pdf

[7] https://unfccc.int/sites/default/files/resource/docs/2004/sbi/19.pdf

[8] https://unfccc.int/sites/default/files/resource/docs/2005/sbi/eng/23.pdf

[9] https://unfccc.int/sites/default/files/resource/docs/2009/sbi/eng/08.pdf

[10]https://unfccc.int/sites/default/files/resource/docs/2016/sbi/eng/20.pdf

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